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HomeMy WebLinkAbout2023-20 - Approving an Amendment to Title 20 (Planning and Zoning) of the Newport Beach Municipal Code Related to Noise in the Airport Area Necessary to Implement the 6th Cycle Housing Element (PA2022-0201)ORDINANCE NO. 2023-20 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING AN AMENDMENT TO TITLE 20 (PLANNING AND ZONING) OF THE NEWPORT BEACH MUNICIPAL CODE RELATED TO NOISE IN THE AIRPORT AREA NECESSARY TO IMPLEMENT THE 61th CYCLE HOUSING ELEMENT (PA2022-0201) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, in January 2019, the City Council initiated a comprehensive update of the Newport Beach General Plan, however, due to the Regional Housing Needs Assessment ("RHNA") allocation of 4,845 new housing units to plan for the 2021-2029 housing period, the City Council directed City staff to focus on the Housing Element, Land Use Element, and Circulation Element; WHEREAS, the City Council adopted the 6t" Cycle Housing Element covering the period 2021-2029 planning period ("6th Cycle Housing Element") on September 13, 2022, and it was certified by the State Department of Housing and Community Development on October 5, 20221 WHEREAS, the 6th Cycle Housing Element, including Appendix B, has been subject to extensive public participation in accordance with Government Code Section 65351 including thirteen community workshops, fourteen Housing Element Update Advisory Committee ("HEUAC") meetings, review of the Housing Element by the Planning Commission, and six duly noticed City Council study sessions; WHEREAS, additionally, the HEUAC formed five different subcommittees to thoroughly review and identify all feasible sites for potential redevelopment as residential in the future and those sites are captured in Appendix B (Adequate Sites Analysis), which demonstrates the City's capacity to meet the RHNA allocation; Ordinance No. 2023-20 Page 2 of 8 WHEREAS, the 6th Cycle Housing Element identifies five focus areas where future housing opportunities will be created through the adoption of housing opportunity overlays or other rezone strategies to establish the ability to develop additional housing to meet the RHNA; WHEREAS, the increase in units above the minimum RHNA allocation is in response to the unusually high percentage of below market rate units the RHNA mandates coupled with the significant challenges to planning, financing, and constructing workforce housing with higher -than -average land costs; WHEREAS, the entire Airport Area Environs is proximate to John Wayne Airport and subject to the John Wayne Airport Environs Land Use Plan ("AELUP"); WHEREAS, forty-eight housing sites identified in the focus area are within or bisected by the 65 weighted decibel ("dBA") community noise equivalent level ("CNEL") noise contour identified in the AELUP; WHEREAS, the following amendments to the Noise Element and Land Use Element of the General Plan, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC"), Newport Place Planned Community Development Plan (PC- 11), and Newport Airport Village Planned Community Development Plan (PC-60) are necessary to allow residential use, including mixed -use residential, on housing opportunity sites that are wholly or partially located outside the 65 dBA: Land Use Element: • Policy LU6.15.3 (Airport Compatibility), • Figure LU11 — Statistical Areas J6, L4, • Figure LU22 —Airport, and • Figure LU23 - Airport Area Residential Villages Illustrative Concept Diagram (removal of 65 CNEL noise contour line); Noise Element: • Policy N 1.2 (Noise Exposure Verification for New Development), • Policy N1.5.A (Airport Area Infill Amendments (new policy), • Policy N 2.2 (Design of Sensitive Land Uses), • Policy N 3.2 (Residential Development), • Figure N4 - Future Noise Contours, and • Figure N5 — Future Noise Contours; Ordinance No. 2023-20 Page 3 of 8 Title 20 (Planning and Zoning) of the NBMC: • Section 20.30.080(F) (Noise -Airport Environs Land Use Plan); Planned Communities: • Newport Place Planned Community Development Plan (PC-11) — Part III. Residential Overlay Zone, Section V.D.1 (Airport Noise Compatibility), and • Newport Airport Village Planned Community Development Plan (PC-60) — Section I.D (Purpose and Objective) & Section II.B.2 (Prohibited Uses); WHEREAS, the Amendments change noise compatibility policies and regulations and do not change the existing underlying land use categories or zoning designations of any property; WHEREAS, the Amendments do not add residential unit capacity to the Land Use Element, and therefore, the General Plan amendments included in the Amendments do not require a vote of the electorate pursuant to Charter Section 423; WHEREAS, a public hearing was held by the Planning Commission on August 3, 2023, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, at the conclusion of the hearing, the Planning Commission adopted Resolution No. PC2022-015, unanimously (4 ayes and 3 recusals), recommending the City Council approve the Amendments; WHEREAS, Section 21676(b) of the California Public Utilities Code ("CPUC") required the City to refer the Amendments to the Orange County Airport Land Use Commission ("ALUC") for a determination that the Amendments are consistent with the AELUP; WHEREAS, on August 17, 2023, ALUC determined the Amendments were inconsistent with the AELUP; Ordinance No. 2023-20 Page 4 of 8 WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council may, after a public hearing, propose to overrule ALUC with a two-thirds vote, if it makes specific findings that the Amendments are consistent with the purpose of Section 21670 of the CPUC to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses; WHEREAS, a public hearing was held by the City Council on September 12, 2023, in the City Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the hearing was given in accordance with CPUC Section 21676(b) and the Ralph M. Brown Act. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing; WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution No. 2023-52 by a unanimous vote (5 ayes, 1 recused, 1 absent), to notify ALUC and the State Department of Transportation, Aeronautics Program ("Aeronautics Program") of the City's intent to override ALUC's inconsistency finding; WHEREAS, notice of the City's intent to override the ALUC inconsistency determination, along with Resolution No. 2023-52 was sent via certified mail and emailed to ALUC and Aeronautics Program on September 13, 2023; WHEREAS, the City received timely comments in response to the notice of the City's intent to override the ALUC inconsistency determination from John Wayne Airport, ALUC, and the Aeronautics Program in accordance with CPUC Section 21676; and WHEREAS, a public hearing was held by the City Council on November 14, 2023, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the hearing was given in accordance with the Ralph M. Brown Act, Chapter 20.62 (Public Hearings) of the NBMC, and CPUC Section 21676(b). Evidence both written and oral, was presented to, and considered by, the City Council at this hearing. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Ordinance No. 2023-20 Page 5 of 8 Section 1: The City Council hereby approves an amendment to Title 20 (Planning and Zoning) of the NBMC amendment, as set forth in Exhibit "A", which is attached hereto and incorporated herein by reference and finds that an amendment to Title 20 is legislative act. Neither Chapter 20.66 (Planning and Zoning, Amendments) of Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of such amendments. Notwithstanding the foregoing, the amendment to Title 20 (Planning and Zoning) of the NBMC is consistent with the following City of Newport Beach Housing Element Policies and Policy Actions: Findings: 1. Housing Element Policy 4.2. Enable construction of new housing units sufficient to meet City qualified goals by identifying adequate sites for their construction. 2. Policy Action 4J (Airport Environs Sub Area Environmental Constraints). Policy Action 4J requires the City to take the following actions to address potential environmental constraints in the Airport Environs Sub Area and ensure continued feasibility of sites, particularly for lower -income RHNA: a. Require new residential development projects in the Airport Environs Sub Area provide noise studies and acoustical analyses to ensure designs include proper sound attenuation; b. Require new residential development projects in the Airport Environs Sub Area to explore advanced air filtration systems for buildings to promote cleaner air; C. Encourage on -site indoor amenities, such as fitness facilities or recreation and entertainment facilities; and d. Continue to implement park dedication requirements consistent with the City's Park Dedication ordinance and Land Use Element Policy LU 6.15.13 (Neighborhood Parks —Standards) and Policy LU 6.15.16 (On -Site Recreation and Open Space) to ensure adequate recreational space to ensure at least 8- percent of a project's gross land area (exclusive of existing rights -of -way) of the first phase for any development in each neighborhood or '/2 acre, whichever is greater, is developed as a neighborhood park, unless waived through Density Bonus Law. Ordinance No. 2023-20 Page 6 of 8 Facts in Support of Findings: The City has taken actions to address potential environmental constraints in the Airport Area and ensure continued feasibility of sites, particularly for lower -income RHNA by providing the following uniform and concise criteria: a. Prior to the issuance of any building permits for such development, a noise study shall be prepared by a City -approved qualified acoustical consultant and submitted to the Community Development Director for approval; b. All new residential structures or the residential units within a mixed -use development shall be attenuated to provide an interior noise level of 45 dBA CNEL or less; C. The design of the residential portions of mixed -use projects and residential developments shall have adequate noise attenuation between adjacent uses and units (common floor/ceilings) in accordance with the California Building Code; d. New mixed -use developments shall incorporate designs with loading areas, parking lots, driveways, trash enclosures, mechanical equipment, and other noise sources away from the residential portion of the development; e. Use of walls, berms, interior noise insulation, double paned windows, advance insulation systems, or other noise mitigation measures, as deemed appropriate shall be incorporated in the design of new residential to bring interior sound attenuation to 45 dBA CNEL or less; f. Residential uses shall be indoor -oriented to reduce noise impingement on outdoor living areas; g. On -site indoor amenities, such as fitness facilities or recreation and entertainment facilities shall be encouraged; and h. Advanced air filtration systems for buildings shall be considered to promote cleaner air. Lastly, all new housing opportunity sites are located wholly or partially outside the updated 65 dBA noise contour area. By requiring conditions of approval identified in amendment to Title 20 (Planning and Zoning) of NBMC, the City has taken actions to address potential environmental constraints in the Airport Area and ensure continued feasibility of sites, particularly for lower -income RHNA. Section 2: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Ordinance No. 2023-20 Page 7 of 8 Section 3: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 4: The City Council finds the action to override the ALUC's August 17, 2023, determination and the approval of the Amendments are exempt from the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Section 15183 because they do not change the underlying land use or zoning designations of any specific parcels, including parcels within the Airport Area or within the updated noise contours based upon the findings set forth in Exhibit "B," which is attached hereto and incorporated herein by reference. Section 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption. Ordinance No. 2023-20 Page 8 of 8 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 14th day of November, 2023, and adopted on the 28th day of November, 2023, by the following vote, to -wit - AYES: Mayor Blom, Mayor Pro Tern O'Neill, Councilmember Avery, Councilmember Grant, Council member Kleiman, and Councilmember Stapleton NAYS: RECUSED: Councilmember Weigand BLOM, MA ATTEST: CITY ATTORNEY'S OFFICE f AARON C. HARP, CI ATTORNEY Attachment(s): Exhibit A - Amendment to Title 20 (Planning and Zoning) Exhibit B - CEQA Findings of Consistency EXHIBIT "A" Amendment to Title 20 (Planning and Zoning) of the Newport Beach Municipal Code Amend Section 20.30.080.17 (Noose °irpert Enviren? Land Use plan Residential Use Proximate to John Wayne Airport) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code to read as follows: F. Residential Use Proximate to John Wayne Airport Environs Land Use plan Residential uses, including mixed -use residential, shall be prehibited within the 1985 iGhR Wayne Airport (IVVA) Master Plan 65 dBA GNEL Gen+niir allowed on parcels or sites wholly or partially outside the John Wayne Airport 65 dBA CNEL noise contour as shown in Figure N5 of the Noise Element of the General Plan, as identified in the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report (EIR No. 617) and consistent with Title 21 of the California Code of Regulations, subject to the following conditions that apply to all residential projects within the John Wayne Airport 60 dBA CNEL or higher CNEL noise as shown in Figures N4 and N5 of the Noise Element of the General Plan: 1) Prior to the issuance of any building permits for such development, a noise study shall be prepared by a City -approved qualified acoustical consultant and submitted to the Community Development Director for approval; 2) All new residential structures or the residential units within a mixed -use development shall be attenuated to provide an interior noise level of 45 dBA CNEL or less; 3) The design of the residential portions of mixed -use projects and residential developments shall have adequate noise attenuation between adjacent uses and units (common floor/ceilings) in accordance with the California Building Code; 4) New mixed -use developments shall incorporate designs with loading areas, parking lots, driveways, trash enclosures, mechanical equipment, and other noise sources away from the residential portion of the development; 5) Use of walls, berms, interior noise insulation, double paned windows, advance insulation systems, or other noise mitigation measures, as deemed appropriate shall be incorporated in the design of new residential to bring interior sound attenuation to 45 dBA CNEL or less; 6) Residential uses shall be indoor -oriented to reduce noise impingement on outdoor living areas; 7) On -site indoor amenities, such as fitness facilities or recreation and entertainment facilities shall be encouraged; and 8) Advanced air filtration systems for buildings shall be considered to promote cleaner air. 9) Residential development shall be limited to parcels or sites wholly or partially outside the 65 dBA CNEL noise contour, unless and until the City determines, based on substantial evidence, that the parcels or sites wholly within such contour area are needed for the City to satisfy its 61h Cycle RHNA mandate. Non-residential uses are encouraged on parcels or sites located wholly within the 65 dBA CNEL contour area. CEQA Findings of Consistency The California Environmental Quality Act ("CEQA") (California Public Resources Code §§21000 et seq.); the State CEQA Guidelines (Title 14, California Code of Regulations §§15000 et seq.); and the rules, regulations, and procedures for implementing CEQA as set forth by the City of Newport Beach ("City") provide guidance regarding when additional environmental review is required. Pursuant to the provisions of CEQA and the State CEQA Guidelines, Newport Beach is the Lead Agency charged with the responsibility of deciding whether to approve the Amendments to Newport Beach General Plan Land Use and Noise Elements, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC"), Newport Place Planned Community (PC-11), and Newport Airport Village Planned Community (PC-60) (Amendments) to accommodate housing units identified by the certified 2021-2029 Sixth Cycle General Plan Housing Element ("6t" Cycle Housing Element"). The provisions of State CEQA Guidelines Section 15183 are applicable to the Amendments. The Amendments are not subject to further environmental review pursuant to CEQA Guidelines Section 15183 because the Amendments do not change the underlying land use or zoning designations of any specific parcels, including parcels within the Airport Area or within the updated noise contours; and would not result in new significant impacts or a substantial more adverse impact than addressed in John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No. 2001111135) (EIR No. 617). The Amendments are also exempt because they fall within the scope of analysis contained within the previously certified EIR No. 617, prepared for the 2014 John Wayne Airport Settlement Agreement, to which the City is a party. CEQA Guidelines Section 15183 provides, in relevant part: (a) CEQA mandates that projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project -specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies. (b) In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis: (1) Are peculiar to the project or the parcel on which the project would be located, (2) Were not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent, (3) Are potentially significant off -site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action, or (4) Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR. (c) If an impact is not peculiar to the parcel or to the project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards, as contemplated by subdivision (e) below, then an additional EIR need not be prepared for the project solely on the basis of that impact. (d) This section shall apply only to projects which meet the following conditions: (1) The project is consistent with: (A) A community plan adopted as part of a general plan, (B) A zoning action which zoned or designated the parcel on which the project would be located to accommodate a particular density of development, or (C) A general plan of a local agency, and (2) An EIR was certified by the lead agency for the zoning action, the community plan, or the general plan. As part of its decision -making process, the City is required to review and consider whether the Amendments would create new significant impacts or significant impacts that would be substantially more severe than those disclosed in the John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No. 2001111135) (EIR No. 617). Additional CEQA review is only triggered if the Amendments create new significant impacts or impacts that are more severe than those disclosed in EIR No. 617 such that major revisions to the EIR would be required. The Amendments provide for updated noise contours as established in EIR No. 617 and revisions to General Plan policies, Title 20 of NBMC, Newport Place Planned Community (PC-11), and Newport Airport Village Planned Community (PC-60) to allow for consistency between the certified 6th Cycle Housing Element and the Newport Beach General Plan and NBMC as it applies to future housing uses near John Wayne Airport. The Amendments are proposed to ensure consistency pursuant to the State Planning and Zoning Law and the City's compliance with its RHNA allocation. As explained below, none of the Amendments revise the land use designation, density or development standards applicable to residential or non-residential development in the Airport Area. The Amendments do not grant any development entitlements or authorize development. Rather, the purpose of the Housing Element Noise Update is to advance the policies and goals of the 6th Cycle Housing Element by removing the barrier in multiple General Plan and zoning policies that prohibit residential development within the 1985 65 dBA CNEL. The Amendments, therefore, will not result in development of greater intensity than is allowed under the 2006 General Plan and Newport Airport Village Planned Community, as amended. Although the City's 2006 General Plan approved a maximum of 2,200 residential units in the Airport Area at a maximum density of 50 dwelling units per net acre (du/net acre), the General Plan Program EIR evaluated 4,300 residential units in the Airport Area. California courts have upheld reliance on this exemption for programmatic planning decisions. See, e.g., Lucas v. City of Pomona, 92 Cal.App.5th 508 (2023) (city properly relied on CEQA Guidelines section 15183 when approving a zoning overlay district allowing commercial cannabis activities on specific parcels located in certain areas within the City; court noting that "the Project merely imposes an overlay use on existing zoning; it does not guarantee anyone the automatic right to establish a cannabis -related business, but rather, provides the option to apply for a cannabis business permit. In that sense, the Amendments does not cause project -specific effects `peculiar' to it.") Because no additional CEQA review is required, the City is not required to analyze additional mitigation measures for the Housing Element Noise Update at this time. Furthermore, as noted above, the Housing Element Noise Update requires (as a local regulatory requirement, not CEQA mitigation measure) residential projects located within the 65 dBA CNEL contour line to include appropriate in -door sound attenuation methods. The Noise Chapter of EIR No. 617 explained how the dBA CNEL noise contours have reduced in size compared to the 1985 Airport Environs Land Use Plan ("AELUP") Master Plan CNEL noise contours, in which the City's General Plan policies and maps are based on. The 1985 Master Plan noise contours are considerably larger than the existing noise contours presented previously. This is largely due to a quieter fleet of existing commercial aircraft and a dramatic reduction in the number of generation aviation operations. The noise contours in EIR No. 617 are based on more contemporary noise modeling programs, as the EIR explained that "one of the most important factors in generating accurate noise contours is the collection of accurate operational data". Airport noise contours generated in this noise study using the INM Version 7.Od which was released for use in May 2013, and is the state - of -art in airport noise modeling. As such, the City proposes to update the Noise Element to include these noise contours, which in part, modify where residential uses could occur outside of the 65 CNEL contour in the Airport Area. Based on these updated noise contours, certain Housing Opportunity Sites will now be outside of the 65 CNEL contour while others will be within the 65 CNEL contour. However, the Amendments will not result in development of greater intensity than is allowed under the 2006 General Plan and Newport Airport Village Planned Community, as amended. Residential uses can be allowed in the Airport Area on parcels that are wholly or partially outside the 65dBA CNEL contour as denoted in Figure N5 of the Noise Element. The JWA noise contours depicted in Figure N5 as proposed are the noise contours from EIR No. 617. Residential uses may be approved in these areas provided interior living areas are protected from excessive noise by appropriate construction techniques that reduce the interior noise to 45 dBA CNEL, consistent with state law. Parcels that are wholly within the 65 dB CNEL contour shown in Figure N5 (e.g., those identified as experiencing noise levels above 65 dB CNEL) are unsuitable for residential development unless and until the City determines, based on substantial evidence, that the site(s) wholly within the 65-70 dB CNEL contours are needed for the City to satisfy its 6th Cycle RHNA mandate. The changes would not allow for more development than assumed in the growth assumptions in the General Plan nor would it impact the City's RHNA obligations. To the extent new parcels are able to be developed in the future for residential uses, by nature of no longer being located within areas identified as experiencing 65 dB CNEL or greater, those parcels must be part of a specific proposed project for consideration and processing by the City for approval. Future housing development would be subject to compliance with the established regulatory framework, namely federal, State, regional, and local (including General Plan policies, NBMC standards, and Standard Conditions of Approval). While by -right housing projects may be exempt from CEQA, all future residential uses affected by the Amendments would continue to be subject to further development review, which can include technical supporting reports. The Amendments are also exempt because they fall within the scope of analysis contained within EIR No. 617, prepared and certified by the County for the 2014 John Wayne Airport Settlement Agreement Amendment, to which the City is a party. EIR No. 617, fully analyzed impacts on sensitive receptors (including residential uses) in adopting the Settlement Agreement Amendment, including the updated CNEL contour boundaries associated therewith, using both the County and City's thresholds of significance. The City was a responsible agency for EIR No. 617, and co -signatory to the Settlement Agreement Amendment. EIR No. 617 concluded that the Settlement Agreement Amendment (and associated updated CNEL contours) would result in less - than -significant impacts related to noise increases at sensitive receptors, but a significant and unavoidable impact from increasing noise levels at exterior use areas of residences. A Statement of Overriding Considerations was adopted. No lawsuits were filed challenging the adequacy of EIR No. 617. EIR No. 617 fully analyzed impacts on sensitive receptors (including residential uses) in adopting the Settlement Agreement Amendment, including the updated CNEL contour boundaries associated therewith. In April 2014, the County of Orange prepared a EIR in connection with the Airport Settlement Amendment (SHC No. 2001111135). The County Board of Supervisors certified the EIR on September 30, 2014. The County's approval of the Project would be contingent upon the City Council of Newport Beach and the governing boards of Stop Polluting Our Newport ("SPON") and Airport Working Group ("AWG") approving and executing the agreed upon amendment to the Settlement Agreement. The City was a responsible agency and the City Council relied on EIR No. 617 for CEQA purposes in approving the Settlement Agreement Amendment. A Statement of Overriding Considerations was adopted. No lawsuits were filed challenging EIR No. 617. EIR No. 617 analyzed potentially significant environmental effects of residential land uses in the 65 dB CNEL. Specifically, the noise and land use and planning chapters of EIR No. 617 quantified and analyzed noise and land use incompatibility impacts associated with existing residential uses (and noise receptors) in the 65 dBA CNEL. The cumulative impacts analyses in the 65 dB CNEL expressly reflected future planning trends, growth projections and specific projects located in the Airport Area in proximity to JWA. Noise EIR No. 617 provides an explanation as to why the 2014 dBA CNEL contours are smaller than the 1985 Master Plan CNEL contours. The EIR observed that "the Mater Plan noise contours are considerably larger than existing noise contours ... due to a quieter fleet of existing commercial aircraft and a dramatic reduction in the number of generation aviation operations ...."1 The 2014 CNEL contours were also based on a newly adopted, "state- of-the-art" noise modeling program.2 Overall, the EIR found that the 65 dBA CNEL contour area was 114% smaller than the analog from the 1985 Master Plan. • 60 and 65 CNEL contour: Master Plan contours are 114 percent larger than the Existing Condition contours. As allowed by the Master Plan, the area outside the Airport boundaries that would be exposed to noise levels in the 60 to 65 dB CNEL range is 125 percent larger than the currently exposed area. • 65 and 70 CNEL contour: Master Plan contours are almost 50 percent larger than the Existing Condition contours. As allowed by the Master Plan, the area outside the Airport boundaries that would be exposed to the 65 to 70 dB CNEL noise levels is 80 percent larger than the currently exposed area. 70+ CNEL contour: Master Plan contours are 80 percent larger than the Existing Condition contours. As allowed by the Master Plan, the area outside the Airport boundaries that would be exposed to noise levels that exceed 70 dB CNEL is 311 percent larger than the currently exposed area. EIR No. 617 then quantified the number of sensitive receptors (including residential uses) within the updated 65 dba CNEL contour area, compared those to those covered under the now -outdated 1985 CNEL contours. In doing so, the EIR noted that the area surrounding the Airport is generally urban in character. Surrounding uses include industrial, commercial, and residential uses. The residential area is predominately south and southwest of the Airport. (Id. at 2-12). Specifically, EIR No. 617's Noise Technical Report, prepared by Landrum and Brown,3 quantified the number of sensitive receptors (including residential units) that would be impacted by the Project and its utilization of the 2014 EIR at 4.6-34. 2 Id. at 4.6-31. Airport noise contours were generated using the INM Version 7.0d. The latest version, INM Version 7.0d, was released for use in May 2013 and is the state-of-the-art in airport noise modeling. 3https://wvvw.newportbeachca.gov/pin/CEQA REVIEW/John%20Wayne%20Airport%20DEIR/CC%205A%20Appendices%20to%20 FEIR%20617/Append ix%20C°/o20-%20Noise%20Anaiysis%20Technical°/o20Report. pdf updated CNEL contours.4 Table 22 of the Noise Technical Report compared the number of residential units within both the 1985 and 2014 65 dBA CNEL contours: • 70 CNEL contour: 379 acres/0.59 square mile, including 1 place of worship (the Orange Coast Free Methodist Church), but no other noise -sensitive land uses. • 65 to 70 CNEL contour: 561 acres/0.88 square mile, including 96 residences (of which 49 are sound insulated) and 2 places of worship (Islamic Educational Center of Orange County and Berean Community Church), but no other noise -sensitive land uses. • 60 to 65 CNEL contour: 1,313 acres/2.05 square miles, including 932 residences (of which 348 are sound insulated), 5 places of worship, and 4 schools, as listed below: Using the City's thresholds of significance, EIR No. 617 ultimately concluded that the Project would not result in noise increases at sensitive receptors where existing exposure is 65 CNEL or above, between 60 and 65 CNEL, or 45 and 60 CNEL. However, the EIR determined that the Project would generate aircraft noise that would increase noise levels at exterior use areas of residences or schools to noise levels of 65 CNEL or above or interior areas of residences or schools to noise levels of 45 CNEL. Specifically, the Project would have a significant exterior noise impact on 31 residences in Phase 1, 62 residences in Phase 2, and 77 residences in Phase 3. The Proposed Project would have a potentially significant interior noise impact on 21 residences in Phase 1, 39 residences in Phase 2, and 43 residences and one place of worship in Phase 3. A Statement of Overriding Considerations was adopted to cover this significant and unavoidable impact, which was not subject to legal challenge (nor was EIR No. 617). Land Use and Planning EIR No. 617's land use and planning chapter acknowledged that JWA is located in an urbanized area. The surrounding land uses for areas in the City that are adjacent to JWA included the same land uses that exist today, including but not limited to, AO (Office Airport), CO-G (General Commercial Office), CG General Commercial, MU-H2 (Mixed Use Horizontal). (EIR at 4.5-17). As noted above, the Noise Analysis Technical Report analyzed land uses within the 2014 CNEL contours, to determine "the amount of area and sensitive receptors" in such contours. (See directly above.) EIR No. 617 observed that, "as the 65 CNEL contour expands beyond the existing contour and includes additional residences this would be a significant impact." (EIR at 4.5-32). The EIR ultimately concluded that, with all phases of the Proposed Project, there would be a significant, unavoidable land use and land use impact due to an increase in the number of noise -sensitive uses exposed to noise levels in excess of the 65 CNEL exterior noise standard. There are no feasible mitigation measures for exterior noise levels. Implementation of Mitigation Measure LU-1 would potentially reduce impacts associated with excess interior noise levels to less than significant levels. However, until interior noise measurements are taken, it cannot be determined if all the noise sensitive uses with interior noise levels in excess of 45 CNEL would qualify for sound attenuation based on FAA criteria. Given the uncertainty that this measure is feasible to adequately reduce interior noise levels at all potentially impacted residences, the impact was determined to 4See, e.g., 2014 EIR Table 4.6-18 (at p. 4.6-69); be significant and unavoidable. A Statement of Overriding Considerations was adopted to cover this significant and unavoidable impact, which was not subject to legal challenge (nor was EIR No. 617). Cumulative Impacts Chapter 5.0 (Cumulative Impacts) of EIR No. 617 considered existing and future residential uses when analyzing impacts of the Settlement Agreement Amendment and 2014 CNEL lines. For example, the cumulative impacts analysis considered countywide growth and development forecasts based on input from the County of Orange and the cities located in the County. These projections reflect adopted land uses and future growth scenarios based on local land use policies. (EIR at 5-3). The EIR explained: "The OCP-2010 Modified projections provide forecasts to the year 2035 and take into account the projected growth Orange County in its entirety. OCP-2010 Modified projections are particularly useful in evaluating the cumulative impacts associated with traffic, air quality, greenhouse gas ("GHG") emissions, and noise because they provide growth assumptions consistent with the local general plans that have been developed with a long-range horizon year. This allows the cumulative analysis to go beyond just a listing of projects, which would not adequately reflect conditions at Project buildout." (Id.) Further, Section 5.2.2 of the EIR contains a list of reasonably foreseeable probable future projects, some of which are located in the Airport Area of the City. See, e.g., Table 5-2 (including, among others, Koll Mixed Use Development, MacArthur at Dolphin -Striker Way, Newport Business Uptown Newport Mixed Use Development, and the previously considered Land Use Element Update). The cumulative impacts analysis expressly found that "[w]hen compared to existing conditions, the [] Project and all the alternatives would extend the 65 CNEL contour into areas designed for mixed -use development in the City of Newport Beach's Airport Area. The City of Newport Beach General Plan's Noise Element noise/land use compatibility matrix (see Table N2 in the Noise Element, page 12-23) lists mixed use land uses within the 65 CNEL contour as "normally incompatible,`... If new construction or development does proceed, a detailed analysis of noise reduction requirements must be made and noise insulation features must be included in the design." (EIR at 5-37). "Though design plans for the development projects identified as part of the Newport Beach LUE have not been prepared, it is reasonable to assume that the City of Newport Beach would evaluate each of the cumulative projects for policy consistency through the entitlement process. Therefore, the Project would not contribute to any cumulative impacts associated with plan or policy inconsistency." (EIR at 5-39). No new information that was not known at the time the General Plan and EIR No. 617 were prepared is now available that demonstrates that the Amendments will result in a new or increased significant impact. The Amendments would not cause growth beyond that accommodated by the General Plan. The Amendments do not introduce new land use designations or otherwise alter general land use patterns or development standards. Therefore, the findings of previously certified EIR No. 617 are applicable to the Amendments. Implementation of the Amendments would not substantially increase the severity of previously identified impacts, including but not limited to air emissions and greenhouse gas emissions. Although the noise contours would be updated, the requirements for compliance with noise standards would not change. Finally, overriding ALUC and adoption of the Amendments does not constitute piecemealing. Additional environmental review for the Housing Element Noise Update is not needed for two independent reasons: (i) the update is exempt under CEQA Guidelines section 15183, and (ii) it is fully within the scope of the 2014 Settlement Agreement Amendment No. 617 and the 2014 CNEL contours analyzed therein. For this first determination, a lead agency's finding that a particular proposed project comes within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment." (Davidon Homes v. City of San Jose (1997) 54 Cal.AppAth 106.) If an exemption applies, the project is excused from CEQA's environmental review, which occurs only if an agency determines the project is not exempt from CEQA. (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1186, ["Environmental review is required under CEQA only if a public agency concludes that a proposed activity is a project and does not qualify for an exemption."].) California courts have held that improper piecemealing does not occur when "projects have different proponents, serve different purposes, or can be implemented independently." Different projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects can be implemented independently. A project may also be reviewed without reference to potential future projects when it has "significant independent or local utility" and would be implemented with or without approval of the future project, even if the two are related in some other respects. See, e.g., Aptos Council v. Cnty. of Santa Cruz, 10 Cal.App.5th 266, 282 (2017). Here, the Housing Element Noise Update functions independently and does not rely on any future planning decisions or project -level approvals. The Housing Element Noise Update involves removing an inherent barrier based on General Plan policies and zoning regulations that prohibit residential development within the 1985 65 dBA CNEL. The Housing Element Noise Update is a necessary, isolated planning action to allow the City to implement the Housing Element. Conclusion Thus, because EIR No. 617 analyzed impacts associated with the updated CNEL noise contours, the City's adoption of the updated CNEL noise contours within its own internal policies is fully within the scope of EIR No. 617, and the 2006 General Plan, as amended. The Amendments would not result in any new significant environmental effects that are substantially different from those identified in EIR No. 617 nor would it substantially increase the severity of significant effects previously identified in EIR No. 617. Therefore, based on the provisions of State CEQA Guidelines Section 15183, no additional CEQA documentation is required. STATE OF CALIFORNIA } COUNTY OF ORANGE ; ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2023-20 was duly introduced on the 14th day of November, 2023, at a regular meeting, and adopted by the City Council at a regular meeting duly held on the 28th day of November, 2023, and that the same was so passed and adopted by the following vote, to wit: AYES: Mayor Noah Blom, Mayor Pro Tern Will O'Neill, Councilmember Brad Avery, Councilmember Robyn Grant, Councilmember Lauren Kleiman, Councilmember Joe Stapleton NAYS: None RECUSED: Councilmember Erik Weigand IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of November, 2023. STATE OF CALIFORNIA } COUNTY OF ORANGE } CITY OF NEWPORT BEACH } i2'.PFOR% Leilani I. Brown, MMC City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION ss. I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2023-20 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation on the following dates: Introduced Ordinance: November 18, 2023 Adopted Ordinance: December 2, 2023 In witness whereof, I have hereunto subscribed my name this day of December, 2023. PMA ORT 4 �,EW o i Leilani I. Brown, City Clerk U T,Z City of Newport Beach, California