Loading...
HomeMy WebLinkAbout25 - Traffic Phasing Ordinancec CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 35oo NEWPORT BOULEVARD, P.O. Box 1768 NEWPORT BEACH, CA 92658-8915 (949) 644.32oa; FAX (949) 644-3250 Hearing Date: Agenda Item No.: Staff Person: REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Traffic Phasing Ordinance June 14, 1999 av Patricia L. Temple (949) 644 -3200 SUMMARY: Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to modify the definition of feasible improvement, to establish a threshold for traffic impacts that require circulation system improvements, and to change the number of affirmative votes needed to override the provisions of the Ordinance to 5 /7ths of the members eligible to vote. ACTION: Conduct public hearing, introduce Ordinance No. 99 -_, and pass to second reading on June 28, 1999. • Background In May 1997, the Planning Commission commenced consideration of a comprehensive update of and revisions to the City's General Plan Circulation Element and the Traffic Phasing Ordinance. The changes considered at that time would have, if adopted, substantially altered the City's approach in establishing the correlation between the development limits provided for in the Land Use Element and the circulation system Master Plan. The amendments, developed pursuant to specific guidelines adopted by the City Council, included a number of concepts not contained in the City's existing planning documents. These included establishment of Level of Service (LOS) E for the Airport Area, the use of intersection averaging in determining circulation system adequacy, focusing project traffic analysis on short and mid term impacts (5 and 10 year horizons), and prioritizing traffic improvements within the 5 and 10 year capital improvement program adopted by the City Council. After two public hearings by the Planning Commission, it became apparent that the comprehensive changes were beyond what was acceptable to the community, and also required more detailed environmental analysis. As a result, the City created a working group to make recommendations on appropriate changes to the Traffic Phasing Ordinance (TPO). This group, which included City Council members, Planning Commissioners, representatives from the Chamber of Commerce, Building Industry Association (BIA) and Stop Polluting Our Newport (SPON), and staff, started meeting in February of 1998. It was quickly established that the goal in considering revisions to the . TPO would be to only address legal and operational problems with the Ordinance. The revisions under consideration have been developed with that goal in mind. Public Review • Since any changes to the TPO are of interest to many segments of the community, the City undertook a public review and comment program prior to the formal public hearing process. This included the development of a PowerPoint presentation to describe both the functions of the existing Ordinance, and the changes under consideration. The Ordinance revisions and staff presentation were taken to the Environmental Quality Advisory Committee (EQAC), the Economic Development Committee (EDC), the Newport Harbor Chamber of Commerce, the transportation committee of the BIA, and Speak Up Newport (SUN). Specific comments and recommendations made by the EQAC and EDC are described below. Additionally, written questions and comments were received from SPON, the Community Association Alliance (CAA), and the BIA, which are attached to this report. Planning Commission Review and Recommendation The Planning Commission commenced formal review of the Traffic Phasing Ordinance revisions with an informational study session on March 18, 1999. Following that study session, the City Attorney drafted additional refinements to the draft Ordinance, based on comments and questions received through the public review process and correspondence. The first Planning Commission public hearing occurred on May 6, 1999, and was continued to a special meeting on May 18'h. The Commission completed the full review of the Ordinance at the special meeting, although the hearing was continued to June 101h, to allow the Commission to review the language developed by • staff to enact the specific changes adopted by the Planning Commission. The Planning Commission's deliberations and public testimony were structured around a 19 issue matrix developed by the Planning Commission Chairman (with the assistance of SPON and the BIA), which incorporated all of the issues identified in public testimony and correspondence. Speakers on both sides of each issue were then allowed to testify. Once testimony on the 19 identified issues was completed, open public testimony was taken. Once testimony was completed, the Commission discussed and took a straw vote on each of the 19 issues. Through this process the Commission largely supported the ordinance revisions forwarded by the TPO working group as modified by the City Attorney. There were two issues where the Planning Commission requested revisions to the Ordinance. These were in regard to the exempt intersection concept, and the level of majority vote needed to override the provisions of the Ordinance. This report summarizes the key issues related to the proposed changes to the Traffic Phasing Ordinance, and the recommendation of the Planning Commission on each. Analysis The proposed changes to the TPO fall into two categories, those intended to address legal issues, and those to address operational issues. The changes are summarized below, and the Municipal Code reference is in parentheses: Traffic Phasing Ordinance June 14,1999 Page 2 Legal: Please refer to the attached memorandum from the Office of the City Attorney for a complete discussion of legal issues concerning the existing TPO. • Rough Proportionality: The revisions to the ordinance establish that a mitigation requirement imposed on any project pursuant to the TPO must be roughly proportional to the project's impact (15.40.075). This addresses the legal issue raised in the Dolan decision of the United States Supreme Court, which allows for the imposition of mitigation measures only to the extent of the project's contribution to the impact. The Planning Commission concurred with the recommendation of staff in regard to this issue, and the proposed Ordinance includes this language. • Inverse Condemnation: The original draft Ordinance considered by the Planning Commission included the possibility for the City Council to identify intersections as exempt from improvement requirements, if the intersections meet certain criteria. In order to be exempt, an intersection would need to have a feasible improvement identified which, if constructed, would result in an acceptable level of service. Additionally, the improvement could not be included in the 5 year capital improvement program and the improvement would be found to adversely affect residents or businesses in the vicinity of the improvement. Finally, the City Council, by a 4/5"s vote, would establish the intersection as exempt. Currently, there are only six intersections which meet the first two criteria, making them eligible for consideration as exempt (the list is attached to this report). The effect of this provision would have been that the City Council could still approve a project, without requiring an improvement identified in the Circulation Element that the Council does not want to implement (15.40.040 B). This was intended to address the legal issue which confronted the City of Laguna Beach in the Diamond - Crestview decision. The Planning Commission was not comfortable with the concept of exempt intersections. They found it unfair that a developer would be exempted from the requirement to make any improvements in a case where the City did not wish to make an improvement, when alternative improvements could be required (which substantially outweighed the project's impacts) when there are no feasible improvements (a feature of the existing Ordinance). The Commission felt that a more equitable approach would be to alter the definition of feasible improvement, to include placement in the City's 5 year Capital improvement program as a criterion. This approach would still avoid undesirable improvements. However, the developer of a project with adverse impacts on an intersection the City does not want to improve would be required to make, or contribute to, improvements at other intersections in the area of the project. By doing this, the legal protection sought by the City Attorney can be achieved, and projects with no feasible improvement can be treated the same as those with identified improvements the City does not wish to make at this time. As an aside, the Planning Commission's deliberation on this issue revealed that there was some language missing from Section 15.40.030 if the existing Ordinance, which is included in the Ordinance forwarded for the consideration of the City Council. Tbffic Phasing Ordinance June 14, 1999 Page 3 Operational: • Critical Intersections: The draft Ordinance defines critical intersections (that is, those subject to TPO analysis) as those listed in Appendix `B" of the Ordinance, which are the intersections analyzed in the Circulation Element. The current Ordinance does not actually identify which intersections are to be analyzed, but states that a project cannot cause or make worse an unsatisfactory level of service on any `major,' `primary- modified,' or `primary' street. There are many problems with the current language. One problem is that the arterial roadways identified represent only three of the seven arterial roadway categories defined in the Circulation Element. A second problem is that the criterion (LOS D) is a function of intersection capacity, not roadway capacity. Additionally, the proposed definition of critical intersection is consistent with the actual implementation of the Ordinance over the last 20 years. Since the intersections analyzed in the Circulation Element represent those which govern the overall function of the circulation system, and are those included in the City's traffic model, it is the opinion of staff that the use of the list is the most appropriate way to determine which intersections are subject to TPO analysis (15.40.040 A). The proposed Ordinance also provides that the City Traffic Engineer may require analysis of additional intersections when deemed. appropriate. The Planning Commission concurred with the recommendation of staff in regard to this issue, and the proposed Ordinance includes this language. • 1 % Test: The draft ordinance eliminates the I% screening test which has been a feature of the TPO for many years. Instead of this test, all intersections identified by the Traffic Engineer will be subjected to ICU analysis. The reason for this change is that the working group felt it was better to keep the entire TPO analysis focused on the peak hour traffic, and the 1% test is based on a 2 1/2 hour peak period. This change will make our procedures more consistent with standard traffic study methodologies used throughout the County. Additionally, although this is not a compelling reason to make this change, elimination of the 1% test should reduce the cost of yearly street counts for the City (we will count fewer hours), and also reduce the cost of traffic studies for applicants (fewer types of analysis, and a reduction in special procedures in the City of Newport Beach). Significance Threshold: While not described as such, the draft Ordinance does establish a different threshold for the significance of traffic impacts. This concept is utilized to address what has been characterized as "the rounding problem." Currently, Intersection Capacity Utilization (ICU) calculations are carried to three decimal places, and rounded to two decimal places. As a result, an increase of as little as 1 /10th of I% could result in a project being required to make a major improvement. For example, if the existing ICU is .914, and a project added .001 to the ICU, it would round up to .92, triggering the requirement to make an improvement. In the revised Ordinance, a project would have to add at least .005 (or '/2 of 1 %) to the ICU before a traffic improvement would be required. generating a very low number of peak hour h (15.40.030 B 2 b). This would reduce the possibility that a project ips would incur an improvement requirement The establishment of significance thresholds is common for communities throughout Orange . County. Typically, these thresholds are established at either 1% or 2 %. Thresholds of Traffic Phasing Ordinance June 14, 1999 Page 4 significance are considered appropriate because of the nature of ICU calculations generally. • ICU calculations are based upon street traffic counts, which can vary by as much as 10% from day to day. Additionally, baseline assumptions of lane capacity and other factors do not account for the unique characteristics of intersections (such as lane width and geometrics) which affect the actual capacity of intersections to handle traffic. As a result, ICU calculations are considered relatively reliable to predict project impacts (i.e., the change), but are not as reliable to establish actual intersection function, particularly when estimated for future conditions. Therefore, it is the opinion of staff that this provision represents an acceptable change to the City's operational procedures, while still preserving a reasonably low threshold for mitigation to preserve acceptable traffic service levels in the City. The Planning Commission concurred with the recommendation of staff in regard to this issue, and the proposed Ordinance includes this language. • Override Vote: Currently, the vote to override the provisions of the Traffic Phasing Ordinance is 4 /5'hs, or six of seven members eligible to vote. Some parties have noted that this level of majority is higher than needed to amend the TPO, adopt the General Plan, or increase taxes. However, the community has long considered compliance with the TPO to be an important consideration in the approval of new development, so the TPO working group supported maintenance of the existing override provisions. The Planning Commission felt that a larger majority than typical should remain a feature of the Ordinance for overriding its provisions. However, they also felt that the ratio should reflect the . actual numerical composition of the City Council and Planning Commission (seven members each). Additionally, they felt that the requirement for a majority of six of seven members was too high, and recommended that the override requirement be established at 5/7ths. • Traffic Study Threshold: There was some discussion regarding the appropriate project size which should be subjected to analysis pursuant to the TPO. Representatives of the Building Industry Association had suggested raising the amount of daily traffic a project could generate before a TPO study is required from 300 to 500 average daily trips (ADT). However, the Planning Commission and staff felt the existing threshold should be maintained. Other changes: While not described in detail in this report, the draft TPO includes many changes in the organization, format, and other non - operative parts of the chapter. These include refinements to the findings and objectives to better describe the reasons the City is adopting the ordinance, an expanded list of definitions consistent with the long term administration of the existing code, and the incorporation of the Traffic Study procedures (now a City Council Policy) into the Municipal Code. Implications of Changes The chart on the following page illustrates how the changes will affect traffic studies prepared for . projects. Traffic Phasing Ordinance June 14, 1999 Page 5 u u TPO COMPARISON CHART Before and After Amendments Traffic Phasing Ordinance June 14, 1999 Page 6 Under With Current Proposed Project causes: TPO Changes Comments ADT 300 or less Not subject to Not subject to No change TPO TPO ADT greater than TPO analysis TPO analysis No change 300 required re uired Peak hour traffic Project passes ICU analysis 1% test eliminated, all potentially less than 1 % at TPO, no further required affected intersection subject to ICU an intersection analysis required analysis Peak hour traffic ICU analysis ICU analysis I% test eliminated, all potentially I% or greater at required required affected intersection subject to ICU an intersection analysis ICU is less than Project passes Project passes No change .90, or does not TPO TPO increase ICU goes over Identify a Identify a Existing TPO: .90, or increases feasible feasible • A.001 (1 /10 of 1 %)increase in the an ICU already improvement improvement if ICU can cause a rounding up of over .90 the ICU increases the ICU, and thus require an by .005 improvement New TPO: • A .005 (1/2 of 1 %) increase in the ICU must occur to require an improvement Feasible Improvement Improvement Existing TPO (as administered): improvement required required if • Improvement made at time of identified roughly development proportional; New TPO: contribution • Consistent with "rough required if not proportionality" standard proportional • Improvement may be made after development is completed No improvement Project is denied, Project is denied, Changes the override vote available at the or a 4 /5ths or a 5 /7ths intersection override vote is override vote is required, or other required, or other improvements improvements which outweigh which outweigh the project's the project's impacts are made impacts are made Traffic Phasing Ordinance June 14, 1999 Page 6 Comparison of Sample Project Approvals Under the Existing and Proposed Ordinances As requested by the Planning Commission, the Traffic Engineering Division of the Public Works Department compared the outcome of two recent traffic studies, under the provisions of the existing and proposed Traffic Phasing Ordinances (see memorandum, attached). The projects selected were the Burger King project on Jamboree Road (representing a smaller project) and Corona del Mar Plaza (representing a larger project). This study revealed that the mitigation requirements resulting for both projects would be the same under both Ordinances. However, a modest reduction in the Burger King Project (1 to 2 cars), would have reduced that project's impact below the .005 significance threshold for the intersection of MacArthur and Jamboree Road. If the new ordinance had been in effect, and the project had been reduced slightly, mitigation at that intersection would not be required of this project. However, since that project was approved with a requirement to contribute only a proportional share of the future improvement, the project's obligation under the existing Ordinance was small. Environmental Determination As part of its submittal to the Planning Commission, staff recommended that the proposed changes to the Traffic Phasing Ordinance be considered a Class 5 Categorical Exclusion (minor changes in land use regulations) pursuant to the California Environmental Quality Act. It was suggested at the public hearing that the potential for environmental degradation, which could occur if intersections were designated as exempt, necessitate the preparation of an initial study. Staff continues to believe that the Categorical Exclusion is appropriate, because the changes to the Ordinance represent only modest changes to procedures and standards under which new development is reviewed for traffic impacts. Also, as previously shown in this staff report, substantially similar traffic improvements are expected to be identified, and constructed or funded. Additionally, it is important to note that this ordinance does not authorize any new development, but only establishes the procedures under which development requests are analyzed. Recommendations of EOAC and EDC Following are the recommendations made to the City Council from these two Committees. Please note, however, that these comments were made on the draft Ordinance which came out of the TPO working group, so some of these recommendations are not pertinent to the Ordinance now before the City Council. Recommendations of EOAC In making its recommendation to the Planning Commission and City Council on the proposed changes to the TPO, EQAC reiterated its position that a General Plan Update should be a high priority for the City. They also recommended the following changes to the draft Ordinance: 1. If exempt intersections are necessary, they should require a 4/5`h, vote of the City Council to be so designated. Traffic Phasing Ordinance June 14,1999 Page 7 2. The Ordinance be clarified to establish that funding under the TPO is in addition to, and • separate from, required funding under the Fair Share Ordinance. This recommendation has been incorporated into the draft Ordinance in the Proportionality section (15.40.075 A 3), which states that the TPO is intended to address short term impacts of projects, while Chapter 15.38 (Fair Share) is intended to address overall development impacts on the circulation system. Recommendations of EDC At their meeting of February 12, 1999, the EDC made the following recommendations: 1. The EDC supports the establishment of LOS E for the Airport Area, including a 15% margin for error, similar to the City of Irvine. 2. The EDC recommends that the majority vote for override of the TPO be reduced to 5n 1h, 3. The EDC recommends that the original concept of intersection averaging be dropped in lieu of exempt intersections, but that if exempt intersections are not approved, a limited use of intersection averaging should be adopted. 4. The EDC supported the concept of exempt intersections, but recommended that different terminology be considered, such as "special circumstances intersections" or "exception intersections." 5. The EDC recommended that the threshold for the traffic study requirement be raised to 500 average daily trips from the current 300 trips. The EDC further discussed the TPO at its March 24, 1999 meeting, and further stated that it endorses the Traffic Phasing Ordinance amendments even if the recommendations of the EDC are not incorporated into the Ordinance. Submitted by: SHARON Z. WOOD Assistant City Manager v, Attachments: 1. Draft Traffic Phasing Ordinance 2. Traffic Study Procedures 3. Flow charts for existing and proposed TPO 4. Intersection and roadway link LOS exhibits 5. Planning Commission minutes 6. Planning Commission staff reports 7. 19 Issue Matrix used by the Planning Commission Prepared by: PATRICIA L. TEMPLE Planning Director 8. Memorandum from City Attorney 9. Memorandum from Transportation and Development Services Manager 10. List of Candidate Exempt Intersections 11. EQAC Minutes 12. EDC Minutes and Motion 13. Correspondence 14. Existing TPO Traffic Phasing Ordinance June 14, 1999 Page 8 Chapter 15.40 TRAFFIC PHASING ORDINANCE SECTIONS: 15.40.010 Findings. 15.40.020 Objectives. 15.40.030 Standards for Approval /Compliance /Exemptions. 15.40.035 Expiration. 15.40.040 Definitions. 15.40.050 Procedures. 15.40.060 Hearings /Notice. 15.40.070 Appeal /Review. 15.40.075 Proportionality. 15.40.080 Severability. 15.40.010 Findings. A. The phasing of development with circulation system improvements to accommodate Project generated traffic is important to maintaining the high quality of the residential and commercial neighborhoods in Newport Beach; B. While some development may be important to the continued vitality of the local economy, the City should continue to utilize growth management techniques, such as requiring mitigation of traffic impacts by Project proponents, to ensure the circulation system functions as planned; C. Circulation system improvements should not alter the character of neighborhoods or result in the construction of streets and highways which expand the capacity of the roadway system beyond levels proposed in the Circulation Element; D. This Chapter is consistent with the authority of a public entity to ensure Project proponents make or fund improvements that increase the capacity of the circulation system to accommodate Project generated traffic. 15.40.020 Objectives. The City Council has adopted this Chapter to achieve the following objectives: A. To provide a uniform method of analyzing and evaluating the traffic impacts of Projects that generate a substantial number of average TPOrev052534599 1 daily trips and/or trips during the morning or evening peak hour traffic periods; B. To identify the specific and short-term impacts of Project traffic as well as Circulation System Improvements that will accommodate Project traffic and ensure that development is phased with identified circulation system improvements; C. To ensure Project proponents, as conditions of Approval pursuant to this Chapter, make or fund Circulation System Improvements that mitigate the specific impacts of Project traffic on Critical Intersections at or near the time the Project is ready for occupancy; D. To provide a mechanism for ensuring that a Project proponent's cost of complying with traffic related conditions of Project approval is roughly proportional to Project impacts; and E. To coordinate development - related Circulation System Improvements with other ordinances, plans policies, programs and resolutions of the City of Newport Beach, 15.40.030 Standards for Compliance /Approval /Exemptions. A. Standards for Approval. Unless a Project is exempt as provided in Subsection B, no building, grading or related permit shall be issued for any Project until the Project has been approved pursuant to this Chapter (Approved or, in appropriate cases, Date of Approval). A Project shall be Approved only if the Planning Commission, or the City Council on review or appeal, finds that the Traffic Study has been prepared in compliance with Appendix A and that: 1. Construction of the Project will be completed within sixty (60) months of project approval; and a. The Project trips will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection; OR b. The Project trips when mitigated by Circulation System Improvements that the Project proponent is required to make or fund, will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection. Ee *sludORe aR E* T C. The Project trips will cause or make worse an TPOrev05253�899 2 Unsatisfactory Level of Traffic Service at one or more Critical Intersections but the Project proponent is required to construct and /or fund Circulation System Improvements or other mitigation such that: (i) The Project trips will not cause or make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection (^ )(^' diRg a ' C... Mpt #ef-& —for which there is a Feasible Improvement; and ii The benefits to traffic circulation resulting from Circulation System Improvements constructed or funded by the Project proponent outweigh the adverse impacts of Project trips on the Level of Ttraffrc Service at en-- pDy _Critical Intersections —(eel a=ye— Exempt IRterse #Gfgfor which there is no Feasible Improvement. In balancing impacts and benefits, the following contributions and improvements shall be given the greatest weight: a. Improvements that either mitigate impacts of Project trips on any Critical Intersection in the vicinity of the Projecta# is b. Improvements that —ems improve other Critical Intersections operating, or projected to operate, at or above 0.80 ICU C. Contributions to a plan that is designed to mitigate the impact of Project trips on any residential area in the vicinity of any impacted Critical Intersection. shall he given greatryF weight than ether System IR;pFevemeRtS; and de. The Project complies with (1)(a) upon the completion of one or more Circulation System Improvements; and: (i) The time and /or funding necessary to complete TPOrev05253�899 3 the Improvement(s) is (are) not roughly proportional to the impacts of Project generated trips; and (ii) There is a strong likelihood the Improvement(s) will be completed within forty -eight (48) months from the date the Project and Traffic Study are considered by the Planning Commission, or City Council on review or appeal. This finding shall not be made unless, on or before the Date of Approval, a conceptual plan for each Improvement has been prepared in sufficient detail to permit estimation ion of cost and funding sources for the Improvement(s); the Improvement(s) is (are) consistent with the Circulation Element or appropriate amendments have been initiated; and an account has been established to receive all funds and contributions necessary to construct the Improvement(s); and (iii) The Project proponent pays a fee to fund construction of the Improvement(s). The fee shall be calculated by multiplying the estimated cost of the Improvement(s) by a fraction equal to the number of Project generated trips at the Critical Intersection divided by the increase in capacity at that Critical Intersection attributable to the Improvement. OR 2. The Project is a comprehensive phased land use development and circulation system improvement plan with construction of all phases not anticipated to be complete within sixty (60) months of Project approval and; a. The Project is subject to a development agreement which requires the construction of, or contributions to, Circulation System Improvements early in the development phasing program; and b. The Traffic Study contains sufficient data and analysis to determine if that portion of the Project reasonably expected to be constructed and ready for occupancy within sixty (60) months of Project approval satisfies the provisions of Subsections 1 a or 1 b; and C. The Land Use and Circulation Elements of the General Plan are not made inconsistent by the impact of Project generated trips (including Circulation TPOrev05253�899 4 System Improvements designed to mitigate the impacts of Project generated trips) when added to the trips resulting from development anticipated to occur within the City based on the Land Use Element of the General Plan and Zoning Ordinance; and d. The Project is required, during the sixty (60) month period immediately after approval, to construct Circulation System Improvement(s) such that: (i) Project trips will not cause or make worse aAn Unsatisfactory Level of Service will net be coUced Gr rr!ode— wetaa —at any Critical Intersection for which there is a Feasible Improvement; and ii (ii� —The benefits to traffic circulation resulting from the Circulation System Improvements outweigh the adverse impact of Project trios on the Level of Traffic Service at air 44)aeted Critical Intersections (eVnl ding any Exempt tater-seG#GA�--for which there is no Feasible Improvement. that weFe Rot ed In balancing the benefits and the impacts the following shall be given the greatest weight: a. - Improvements that mitigate ei#li the impacts of Project trips at any Critical Intersection in the vicinity of the Projecta#i,, b. Improvements that - eFimprove other Critical Intersections operating or predicted to operate at or above 0.80 ICU shall be given greater weight than other Circulation System Improvements; and Contributions to a plan that is designed to mitigate the impact of Project trios on any residential area in the vicinity of any impacted but unimproved Critical Intersection: -GF (�I�) T -I ;Rrc ;G AR AMP '.11 in I .. ..In of System 1FRpFeye... ents by the PFejeGt n1.W6tQd fl-REIPtA R TPOrev052534599 5 3. The Planning Commission or City Council on review or appeal finds, by the affirmative vote of five - sevenths feaf- f4hs of the members Eligible to Vote, that this Chapter is inapplicable to the Project because the Project will result in benefits that outweigh the Project's anticipated negative impact on the circulation system. B. Exemptions. The following Projects are exempt from the provisions of this Chapter: 1. Any Project that generates no more than three hundred (300) daily trips. This exception shall not apply to individual Projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty four (24) month period cumulatively generate more than 300 average daily trips; 2. Any Project that, after analysis of all potentially impacted Critical Intersections in accordance with Appendix A, increases the ICU at all Critical Intersections by less than .005. 3. Any Project which meets all of the following criteria: a. The Project would be constructed on property that is within the jurisdiction of the County of Orange or an adjacent city as of the effective date of this Ordinance; and b. The Project is subject to a vesting tentative or parcel map, development agreement, pre- annexation agreement and /or other legal document that vests the right of the property owner to construct the Project in the County or adjacent city; and C. The property owner enters into a development agreement, pre- annexation agreement, or similar agreement with the City of Newport Beach that: (i) establishes the average daily trips generated by the Project ( "baseline "); (ii) requires the property owner to comply with this Chapter prior to the issuance of any permit for development which would, in any twenty -four (24) month period, generate three hundred (300) average daily trips more than the baseline for the Project; and iii (4i�—makes this Chapter applicable to the TPOrev052594599 6 property immediately upon annexation and the issuance of the final certificate of occupancy for the entitlement vested in the Agreement and any additional entitlement approved pursuant to this Chapter. d. The City Council determines, prior to annexation, that the environmental document prepared for the Project fully complies with CEQA and the CEQA Guidelines. 15.40.035 Expiration. A. The Planning Commission, or City Council on review or appeal, shall establish a specific date on which the Approval of the Project shall expire - (Expiration Date). In no event shall the Expiration Date be less than twenty- four (24) months from the date of Approval or the earliest date of expiration of any other discretionary approval required by the Project. The initial Expiration Date for Projects other than those described in Section 15.40.030 (A)(2) shall be no more than sixty (60) months from the Date of Approval unless subsequent approval is required from another public agency. In the event the Project requires approval from another public agency subsequent to Approval pursuant to this Chapter, the Date of Approval shall be the date of the action taken by the last public agency to consider the Project. Approval pursuant to this Chapter shall terminate on the Expiration Date unless a building permit has been issued for the Project and construction has commenced pursuant to that permit prior to the Expiration Date or the Expiration Date has been extended pursuant to Subsection C. B. Any Project approved pursuant to this Chapter shall be considered a "Committed Project" until the Expiration Date or until the final certificate of occupancy has been issued if construction has commenced on a portion of the Project.. All trips generated by each Committed Project shall be included in all subsequent Traffic Studies conducted pursuant to this Chapter as provided in Appendix A. C. The Planning Commission or City Council may, subsequent to the Date of Approval, extend the Expiration Date for any Project. D. The Planning Director and Traffic Manager shall, at least annually, monitor the progress of each Project to ensure compliance with this Chapter. 15.40.040 Definitions. TPOrev0525334999 7 below: The following terms used in this Chapter shall have the meaning indicated A. "Critical Intersection" shall mean those intersections identified in Appendix B and, with respect to individual Projects, any additional intersection selected by the Traffic Manager pursuant to Section 15.40.050. BS. "Eligible to vote" shall mean all members lawfully holding office except those disqualified from voting due to a conflict of Interest. Cp. "Feasible Improvement" means a Circulation System Improvement: 1. That is csontemplated by, or consistent with, the Circulation Element at the Date of Approval. i ^^I• ^^-^^I^-i t^ Jill appFeyal that, if implemented, would satisfy the provisions of Section 15.40.030 A.1.a., and is identified as an Improvement to be constructed in the Five Year Capital Improvement Plan (CIP); or 2. That is consistent with any amendment(s) to the Circulation Element initiated and approved in conjunction with Approval of the Project would satisfy the provisions of Section 15.40.030 A.1.a., and which the Project Proponent and /or the City has committed to complete within the time frames TPOrev052534599 8 required by this Chapter. E. `ICU" means the intersection capacity utilization calculation computed in accordance with standard traffic engineering principles and the procedures outlined in Appendix A. F. "Level of Service" shall mean the letter assigned to a range of ICU's in accordance with Appendix A. G. "Circulation System Improvements" or "Improvements" shall mean a physical change to a Critical Intersection and /or a related roadway link that increases the capacity of the Critical Intersection or related roadway link. H. "Circulation Element" shall mean the Circulation Element of the General Plan of the City of Newport Beach as amended from time to time. "Project" shall mean "project" as defined in the California Environmental Quality Act (Public Resources Code S 21000 et sec .), the CEQA Guidelines, and relevant decisional law without regard to whether any environmental document would be required. The term "Project" shall also mean any application for a building or grading permit for development that would generate more than three hundred (300) average daily trips unless specifically exempt pursuant to Section 15.40.030(B). J. "Traffic Manager" shall mean the person employed by the City and who occupies the position of Traffic and Development Services Manager or similar position. K. "Traffic Engineer" shall mean the traffic engineer retained by the City to prepare the Traffic Study. L. "Traffic Study" shall mean the study prepared by theTraffic Engineer in strict compliance with this Chapter including Appendix A. M. "Unsatisfactory Level of Service" shall mean a Level of Service at a Critical Intersection, which is worse than Level of Service "D" (.90 ICU), during any a.m. or p.m. peak hour period determined in accordance with standard traffic engineering practices. N. "NBTAM" means the most current City Council approved Traffic Analysis Model for the City of Newport Beach. O. "Peak Hour" or "Peak Hour Traffic Period" shall mean the one hour period between 7:00 a.m. and 9:00 a. m. (morning) and the one hour period between 4:00 p.m. and 6:00 p.m. (evening) with TPOrev052534599 9 the highest traffic volumes as determined by the biennial traffic counts required by Appendix A. 14.40.050 Procedures. A. The Planning Commission shall determine compliance with this Chapter based on the Traffic Study for the Project, information from staff and /or the Traffic Engineer, and the entire record of the proceedings conducted with regard to the Project. The Traffic Study shall be prepared in compliance with Appendix A. B. Subject to review by the Planning Commission, the Traffic Manager, in the exercise of his /her professional discretion, shall; 1. Direct the preparation of each Traffic Study by a Traffic Engineer retained by the City and determine those Critical Intersections (or other intersections if the impact of Project traffic on Critical Intersections may not be representative) that may be impacted by the proposed Project; 2. Ensure that each Traffic Study is prepared in compliance with the methodology described in Appendix A and independently evaluate the conclusions of the Traffic Engineer; 3. Make recommendations to the Planning Commission and /or City Council with respect to the criteria for evaluating trip reduction measures, the appropriate trip generation rates of land uses and otherwise ensure that the Traffic Studies conducted pursuant to this Chapter reflect modern transportation engineering practice. C. Any finding or decision of the Planning Commission with respect to any Project that also requires discretionary action on the part of the City Council, such as an amendment to the General Plan or Zoning Ordinance, shall be deemed an advisory action. In such cases the City Council shall take any action required by this Chapter at the same date and time that the City Council considers the other discretionary approvals required by the Project. D. The application for any building, grading or other permit for any Project subject to this Chapter shall be approved, conditionally approved or denied within one year from the date on which the application is deemed complete. In the event action is not taken on an application within one year, the Project shall be deemed approved provided it is consistent with the General Plan and Zoning Ordinance of the City of Newport Beach. TPOrev052534899 10 E. A fee as established by resolution of the City Council to defray the expenses of administering this Chapter shall accompany the application for a Traffic Study. The application for a Traffic Study shall be submitted in compliance with Appendix A. 15.40.60 Hearings /Notice. A. The Planning Commission, and the City Council on appeal or review, shall hold a public hearing on any Project pursuant to this Chapter. The public hearing on the Traffic Study may be consolidated with other hearings required by the proposed Project. The hearing shall be noticed in the manner provided in Section 20.91.030C of the Newport Beach Municipal Code or any successor provision. B. All findings required or provided for in this Chapter shall be in writing and supported by the weight of the evidence in the entire administrative record for the Project including the Traffic Study. 15.40.070 Appeal /Review. A. With respect to this Chapter, any Planning Commission decision on a Project shall be final unless there is an appeal by the Project proponent or any interested person. The appeal shall be initiated and conducted pursuant to the procedures set forth in Chapter 20.95 of the Newport Beach Municipal Code or any successor provision; B. The City Council shall have a right of review as specified in Chapter 20.95 of the Newport Beach Municipal Code or any successor provision; C. The City Council shall be subject to the same requirements as the Planning Commission relative to decisions and findings required by this Chapter. 15.40.075 Proportionality. A. In no event shall the Planning Commission or City Council on review or appeal: 1. Impose any traffic related condition or conditions on the Approval of a Project which would require the Project proponent to construct one or more Circulation System Improvement(s) if the total cost of traffic related conditions and /or Improvements is not roughly proportional to the impact of trips generated by the Project; or 2. Impose any traffic related condition or conditions on the Approval of a Project which would require the payment of TPOrev05253a 999 11 I fees or costs that are not roughly proportional to the impact of trips generated by the Project. B. The provisions of this Chapter are intended to address the specific and, in most cases, short term impacts of Project generated trips on Critical Intersections rather than the overall impact of Project traffic on the circulation system. Chapter 15.38 of the Newport Beach Municipal Code is intended to address the overall impact of development on the circulation system. Conditions or fees imposed pursuant to this Chapter shall be in addition to fees required pursuant to Chapter 15.38 except as otherwise provided in Chapter 15.38 or a development agreement approved pursuant to Chapter 15.45. C. The provisions of this Section shall not limit or restrict the authority of the Planning Commission, or City Council on review or appeal, to impose on any Project all feasible mitigation measures pursuant to the provisions of applicable law, including CEQA and the CEQA Guidelines. D. The provisions of this Section shall not require Approval of any Project if the Planning Commission, or City Council on review or appeal, is unable to make the findings required for Approval pursuant to this Chapter. E. The provisions of this Section shall not require Approval of any Project which the Planning Commission is authorized to deny or modify pursuant to any State law or City ordinance, resolution or plan. F. The provisions of this Section shall not limit or restrict the authority of the Planning Commission, or City Council on review or appeal, to impose conditions, fees, exaction or dedications on a Project pursuant to: 1. A development agreement; 2. A reimbursement agreement or any other agreement acceptable to the Project proponent; 3. The consent of the Project proponent; or 4. An amendment to the Land Use Element or Zoning Ordinance of the City of Newport Beach that is required for approval of the Project. 15.40.080 Severabililty. If all or a portion of any Section or Subsection of this Chapter is declared invalid, the remaining Sections and Subsections are to be considered valid. TPOrev052534599 12 0 050399Draft APPENDIX A ADMINISTRATIVE PROCEDURES FOR IMPLEMENTING THE TRAFFIC PHASING ORDINANCE 1. General. These Administrative Procedures (Procedures) apply to any Project for which a Traffic Study is required by the Traffic Phasing Ordinance (TPO). 2. Application. a. The proponent of any Project subject to the TPO shall (i) file an application for a Traffic Study; (ii) pay the required fees and (iii) sign an agreement to pay all costs related to the Traffic Study. b. The application shall be accompanied by the following information: L A complete description of the Project including the total amount of floor area to be constructed and the amount of floor area allocated to each proposed land use; ii. A Project site plan that depicts the location and intensity of proposed development, the location of points of ingress and egress, and the location of parking lots or structures; iii. Any proposed Project phasing; iv. Any trip reduction measure proposed by the Project proponent; V. Any information, study or report that supports any request by the Project proponent to use trip generation rates that differ from those used in the NBTAM or the most current version of the ITE Manual or the SANDAG Manual, if the Traffic Manager determines those rates are more appropriate for purposes of the Traffic Study; and vi. Any other information that, in the opinion of the Traffic . Manager, is necessary to properly evaluate the traffic 050399Draft 0 impacts of the Project or the Circulation System Improvements that could mitigate those traffic impacts. 3. Traffic Study Assumptions. a. The definitions in Section 15.40.040 of the Newport Beach Municipal Code shall be applicable to these Procedures. b. ICU calculations shall assume a lane capacity value of 1600 vehicles per hour of green (vphg) for both through and turn lanes. No factor for yellow time shall be included in the lane capacity assumptions. ICU calculations shall be made by calculating the volume to capacity ratios for each movement to three decimal places, and then adding the four critical movements to obtain an ICU with three decimal places. The increase in the ICU attributable to Project trips shall be calculated to three decimal places. The ICU shall then be rounded to two decimal places. For example. an ICU of .904 shall be rounded to .90 and an ICU of .905 shall be rounded to .91. A Critical Intersection shall not be considered impacted by Project trips, and no mitigation shall be identified for or required of feFa Project , unless Project trips cause an increase of at least .005 ICU. C. Circulation System Improvements may be included in the Traffic Study for a Project provided that the Traffic Manager determines: I. The Improvement will be completed no more than one year after completion of the Project or Project phase for which the Traffic Study is being performed; and ii. The Improvement is included in the Circulation Element of the General Plan, and is defined in sufficiently precise terms to allow the Traffic Engineer to conduct an ICU analysis; or iii. The design of the Improvement is consistent with standard City design criteria or has been approved by the City Council, or other public entity with jurisdiction over the Improvement, and is defined in sufficiently precise terms to allow the Traffic Engineer to conduct an ICU analysis. 050399Draft d. Traffic volumes shall be based on estimates of traffic volumes expected to exist one year after completion of the Project, or that portion of the Project for which the Traffic Study is being performed. The intent of this Subsection is to ensure use of the most accurate information to estimate traffic volumes one year after Project completion and to avoid duplication of trips. Traffic volume estimates shall be based on: Biennial field counts conducted for each Critical Intersection with counts taken on weekdays during the morning and evening peak traffic how- periods (from 7:00 a.m. to 9:00 a.m. and from 4:00 p.m. to 6:00 a.m.) between February 1 and May 31 of each year; ii. Traffic generated by Committed Projects as determined in accordance with these Procedures iii. Projects reasonably expected to be complete within the one year after Project completion yefkW -and which are located in • the City of Newport Beach or its sphere of influence; iii. Increases in regional traffic anticipated to occur within t4a one year after Project completionpe4aa as Projected in the NBTAM or other accepted sources of future Orange County traffic growth; and iv. Other information customarily used by Traffic Engineers to accurately estimate future traffic volumes. e. For purposes of the traffic analysis of Circulation System Improvements, 70% of the incremental increase in intersection capacity (based on a capacity of 1600 vphg for each full traffic lane) shall be utilized. Upon completion of any Circulation System Improvement, traffic volume counts shall be updated, and any additional available capacity may then be utilized in future Traffic Studies. f. Trip generation rates for the land uses contemplated by the Project shall be based on standard trip generation values utilized in NBTAM estahlishpd iR th ITC AARRIARI AF th RUMAr+ ne i . except as provided in this Subsection. The Traffic Engineer may, with the concurrence of the Traffic Manager, use trip 050399Draft 0 generation rates other than as specified in the NBTAM when NBTAM trip generation rates are based on limited information or study and there is a valid study of the trip generation rate of a similar land use that supports a different rate. g. The Traffic Engineer may, with the concurrence of the Traffic Manager, reduce trip generation rates for some or all of the land uses contemplated by the Project based on specific trip reduction measures when: i. The Project proponent proposes in writing and prior to commencement of the Traffic Study, specific, permanent measures that will reduce Ppeak [hour traffic generated by the Project; and ii. The Traffic Manager and Traffic Engineer, in the exercise of their best professional judgment, each determine that the proposed measure(s) will reduce Ppeak Haour trips and the specific reduction that can reasonably be expected; and iii. The Project proponent provides the City with written assurance that the proposed trip generation reduction measure(s) will be permanently implemented. The Project proponent must consent to make permanent implementation of the measure a condition to the approval of the Project, and the measure must be made a condition of the Project by the Planning Commission or City Council. h. In determining the trips generated by the Project, credit shall be given for existing uses on the Project site. Credit shall be given based on the trip generation rates in the NBTAM. The Traffic Manager may, in the exercise of his /her professional judgment, authorize the use of trip generation rates in the ITE Manual, SANDAG Manual, or on the basis of actual site traffic counts— In the event the property has not been used for any purpose reaseR-,for as period of one (1) year prior to the filing of an application for a Traffic Study, credit shall be limited to trips generated by the last known land use that could be resumed with no discretionary approval. For any land use that is not active as of the date of the application for Traffic Study, the Project proponent shall have the burden of . \J 050399Draft establishing that the use was in operation during the previous one (1) year period. I. In calculating traffic volumes, trips generated by Committed Projects shall be included subject to the following: i. All trips generated by each Committed Project or that portion or phase of the Committed Project whese Appreva4 for which no certificate of occupancy has been issued shall be included in all subsequent Traffic Studies conducted prior to the Expiration Date of that Committed Project; ii. In the event a final certificate of occupancy has been issued for one or more phases of a Committed Project, all trips shall be included in subsequent Traffic Studies until completion of the field counts required by Subsection 3(d)(1). Subsequent to completion of the field counts, those trips generated by phases of the Committed Project that have received a final certificate of occupancy shall no longer be included in subsequent Traffic Studies. iii. The Traffic Manager and Planning Director shall maintain a list of Committed Projects and, at least annually, update the list to reflect new Approvals pursuant to the TPO as well as completion of all or phases of Committed Projects. iv. The total trips generated by Committed Projects shall be reduced by twenty percent (20 %) to account for the interaction of Committed Project trips. J. For purposes of Chapter 15.40 and these Procedures, the following Levels of Service ranges shall apply: A .00 -.60 ICU B .61 -.70 ICU C .71 -.80 ICU D .81 -.90 ICU E .91 —1.00 ICU F Above 1.00 ICU 4. Initial Traffic Study Procedures. a. The Traffic Manager shall retain a qualified Traffic Engineer pursuant to contract with the City to prepare a Traffic Study for the 050399Draft Project in compliance with the TPO and the methodology specified in these Procedures. b. The Traffic Manager shall advise the Traffic Engineer of the methodology and assumptions required by these Procedures and provide the Traffic Engineer with a copy of the TPO and these Procedures. G. The Traffic Manager, in consultation with the Traffic Engineer and in accordance with accepted traffic engineering standards and principles, shall identify, in general terms, which Critical Intersections may be affected by the proposed Project according to its size and geographic location. This preliminary determination shall be consistent with NBTAM and decisions on trip distribution patterns for previous Projects of similar size and location. d. The Traffic Engineer shall determine if Project generated trips will increase the ICU en-any -leg of any potentially impacted Critical Intersection by 0.005 wlll-,during the morning or evening Peak Hour one year after Project completion, 0 e. In the event the Traffic Engineer determines that Project generated trips will not increase the ICU f any potentially impacted Critical Intersection by 0.005 during the morning or evening Peak Hour wiN -one year after Project completion_ aet effaal sr emseed onePereent (1 %) of the PF-ajested ••-mimeo eR that leg the-analysis will be terminated. In such event the Project shall be deemed to have no impact on, and no mitigation shall be identified or required for, that Critical Intersection. In the event no Critical Intersection is impacted by Project generated trips as specified in this Subsection, the Traffic Study and worksheet shall be submitted to the Planning Commission with a recommendation that the Project be determined exempt from the TPO. 5. Traffic Studv Methodology. a. The Traffic Engineer, in preparing the Traffic Study, shall evaluate the trips generated from all Project land uses based on the u • i • 050399Draft assumptions specified in Section 3 and the methodology specified in this Section. b. In the case of conversion of an existing structure to a more intense land use, the incremental increase difference in td'ps a:MG generated by the Project develepRea4--shall be evaluated. In the event the uses within the existing structure changed during the preceding twelve (12) months, the differential shall be calculated on the basis of the rp for use or uses with the lowest #igbest—trip generation rates according to the NBTAM (or ITE Manual or SANDAG Manual as appropriate). C. The following ICU calculations shall be performed for each Critical Intersection where, one year after Project completion, Project generated trips will increase the ICU of a Critical Intersection by at least 0.005 during the morning or evening Peak Hour. ea- apy- leg-e€ the intersection during the a.Fn. 9F p.m-2.5 hew peak «.^"'^ peFied 0 es a°^ Hag. The existing ICU; The ICU, with Circulation System Improvements that will be in place within one year after Project completion, based on all projected traffic including regional traffic increases and trips generated by Committed Projects ; exincluding Project generated trips;, and iii. The ICU in (ii) with Project generated trips: iv. The ICU in (ii) with Project generated trios and any trip reduction measures approved by the Traffic Manager V. The ICU in (ii) with Project generated trips and any mitigation resulting from Improvements vi. The ICU in (v) with trip reduction measures approved by the Traffic Manager. 050399Draft • d. The Traffic Study shall, for each Critical Intersection with an Unsatisfactory Level of Service (ICU of .918 or more) that has been caused or made worse by Project generated trips, identify each feasible Improvement that could mitigate some or all of the impacts of Project generated. The Traffic Study shall also determine the extent to which the lmmprovement provides additional capacity for Critical Movements at the Critical Intersection in excess of the Project generated trips. e. The Traffic Study shall, for each Improvement identified pursuant to Subsection d, estimate the cost of making the Improvement including the cost of property acquisition, design, and construction. The Traffic Engineer may perform the cost estimate or, with the approval of the Traffic Manager, retain a civil engineer or other qualified Professional eer eu#aaA-to prepare the cost estimates. f. The Traffic Study shall also provide the Planning Commission with any additional information relevant to the findings required by the TPO. 6. Staff Analysis r a. The Traffic Engineer shall transmit a draft Traffic Study to the Traffic Manager for review, comment and correction. The Traffic Manager shall review the draft Traffic Study and submit corrections to the Traffic Engineer within 15 days after receipt. The Traffic Engineer shall make the corrections within ten (10) days of receipt and transmit the final Traffic Study to the Traffic Manager. b. The Traffic Manager shall transmit the final Traffic Study to the Planning Department for presentation to the Planning Commission. 7. Issuance of Permits. The City shall not issue building, grading or other permits for a Project until each Improvement that has been assumed to be in place for purposes of Project Approval, or is to be constructed or funded as a condition to Project Approval, satisfies the following criteria: a. The Improvement has been budgeted and committed for construction by or on behalf of the City; or 050399Draft 0 b. The State, County or other governmental agency making the Improvement has accepted bids for the Project; or C. The Improvement is: (i) to be constructed by the Project proponent in conjunction with development of the Project or (ii) the Project proponent has guaranteed construction of the Improvement through the posting of bonds or other form of assurance, and (iii) the Improvement has been approved by the appropriate governmental jurisdictions. F: \cat \shared\ Ordinance \TPO \Tpoadmi n proc031999.doc 0 APPENDIX B CRITICAL INTERSECTIONS Bayview & Bristol Birch & Bristol North Birch & Bristol Campus & Bristol Campus & Bristol North Campus & Von Karman Coast Highway & Avocado Coast Highway & Bayside Coast Highway & Dover /Bayshore Coast Highway & Goldenrod Coast Highway & Jamboree Coast Highway & MacArthur Coast Highway & Marguerite Coast Highway & Newport Center Coast Highway & Newport Ramp Coast Highway & Orange Coast Highway & Poppy Coast Highway & Riverside Coast Highway & Tustin Coast Highway & Superior Dover & 16th Dover & Westcliff Irvine & Dover /1gth Irvine & Highland /20th Irvine & Mesa Irvine & Santiago /22nd Irvine & University Irvine & Westcliff /17th \\MIS_1 \SYS\ Users \PBW\Shared \TRAFFIC\Appendix B.doc Jamboree & Bayview Jamboree & Birch Jamboree & Bison Jamboree & Bristol North Jamboree & Bristol Jamboree & Campus Jamboree & Ford /Eastbluff Jamboree & MacArthur Jamboree & San Joaquin Hills Jamboree & Santa Barbara Jamboree & University /Eastbluff MacArthur & Birch MacArthur & Bison MacArthur & Campus MacArthur & Ford /Bonita Canyon MacArthur & San Joaquin Hills MacArthur & San Miguel MacArthur & Von Karman Marguerite & San Joaquin Hills Newport & Hospital Newport & Via Lido Newport & 32nd Placentia & Superior San Miguel & San Joaquin Hills Santa Cruz & San Joaquin Hills Santa Rosa & San Joaquin Hills t� 0 0 m m 0$ACIj 4 c d N z° C 3 z° p C o � M U •L N Z N z O Y MEN\ 00 > U ffi W Yzo a `L V r O Z N Z } v t0 O L r d C N O I F N m "c 'O d r V L CL Q Q 0$ACy H a � V �CAai'3 r c N Z p V m N o i z 0 o Z � L > O Z r } b MW®R U oo i CD z° H Y o z v O m i a ` a Jc N C Q r y y Y CL } � Q > } N_ C v V L a a dy aw"' Ec O yy ` a u 04113 o 0 0 Z z z O � m d d } Z C C LL CL as C W d r y m > a i CL EUU } z° y ¢ Y O Y LL y � 9 7 N 0 0 0 z z z 0 Z IO Z � m �O d117 0 0 0 z z z O a C d T m } L R R m > O 0 N m T Z bC d d d o E LL d p OI m > >. U O " O p O d LL E O O 0 4 m T d E .d. o d d 0 rx O } } L0 } z° N } LL Q 0 0 z z 0 Z • • • W 0 xw N � a> m �qU O O O N O O s°mow sss U 000 U O .... OGf i •] U1 U1 W sss • a 0 xm N W a N � a> m w a c]i 0 0 0 Cl) O O 00 0i .w N m 0 F W 0 s ow r% sss U N m A m d a Imu •7 iA U1 iA sss i 0 a x 0 x� � a> N O O N O O y O O W C I I sAWw sss V N 0ONO 0 Z- w I* I f O O .. 0 00 1- V y C W U m Ul U1 933 0 0 a x 0 xW a w m w a� N O O CV O O d O O " d n s C]Ww sss �mrgo O � 0 d 6 ca sss m w o w m m m s s 0 ® ®e • 0 a x W U'U C7 s O O v o0 ED mwa s owrw d sss U 0Om O O 0 i- d > ¢rocs coo coo v w c o 14 sss ® ®e 1] Ll a 0 x m a� � a> m z4U 7.� z s O 0 � 07016 s awW „ �wm sss U W m m 0 Z-- O ,_,� O GO U y <imci a mwm sss U W 6 O W W VJ U1 sss ® ®e • • 0 U W w >O �r 00> 0 La N� UUUU 0080 111 pp O��O W 1 U' dOWW � sass GF8 N� G 0 • U wa w orn w >o m � tz a w oa oQ N� UUUU O mWp� I11 Q $ U W I � aoww � ssss 8 pN� GFj N G n Ll w w U a5 �w O qE VJ d aO w U�G. IQ s� U D» 0000 61 a1p0 III oaoa°� A z v w I z, aaww � ssss S N�n CITY OF NEWPORT BEACH Planning Commission Minutes May 18, 1999 Study Session - 6:00 p.m. ROLL CALL Commissioners Fuller, Tucker, Ashley, Selich, Gifford, Kranzley and Hoglund -all present STAFF PRESENT: Sharon Z. Wood - Assistant City Manager Patricia L. Temple- Planning Director Robert Burnham,- City Attorney Rich Edmonston - Transportation and Development Services Manager Ginger Varin - Executive Secretaryto Planning Commission i Public Comments None Posting of the Agenda: The Planning Commission Agenda was posted on Friday, May 14, 1999 0 INDEX Public Comments Posting of the Agenda City of Newport Beach Planning Commission Minutes May 18, 1999 SUBJECT: Traffic Phasing Ordinanc • Amendment No. 864 Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to allow the City Council to exempt from improvements intersections that meet criteria established in the Ordinance, and to establish a threshold for traffic impacts that require circulation system improvements. Chairperson Selich noted that this is a continued public hearing from May 6th and that testimony would resume from Item No. 8 of the Issue Matrix. Issue No. 8 - Trip generation study threshold for smaller projects. Tim Strater, 3801 Inlet Isle - BIA spokesperson He explained about a project of a 7,000 square foot restaurant that was reduced to a 5,000 fast food restaurant. This project was required to do a traffic study which, based on the current TPO, indicated that there could be an additional 343 trips generated by the fast food uses. That delayed the project some five months resulting in a loss of revenue. If the Ordinance had provided for 500 ADT as the trip generation threshold, this project would have proceeded without the necessity of having to go to the Planning Commission and the City Council in order to achieve an exemption based upon a vote of 6/7. He supported a change in the ADT and recommended a creation of an exempt intersection technique as well as going to a majority vote as the basis to determine what occurs under the TPO. Marko Popovich - SPON spokesperson • Stated that SPON supports the staff recommendation of 300 ADT as an absolute maximum. • The TPO is not meant to stop homes, duplexes, jeweler shops or similar small projects. The threshold should be high enough to make sure that none of them are caught. • The threshold should also be low enough to prevent piecemealing, that is, big projects being broken down into smaller projects. For example, a 40,000 square foot industrial building being changed to four 10,000 square foot buildings to avoid the TPO at a time when the TPO had a 10,000 square foot threshold. • SPON believes that the threshold should be set lower, not higher, and suggested 150 ADT. Concluding, he suggested that the Commission consider using peak hour trips INDEX Item No. 1 A No. 864 Continued to 6/10/99 1] 0 City of Newport Beach • Planning Commission Minutes May 18, 1999 instead of average daily trips. Commissioner Tucker asked about the exemption of the 300 ADT, does it exempt the project from contributing money towards funding and improvements if it were a few more trips? What is the distinction of having to do a full traffic study or not having to pay or nor do a study? Mr. Burnham stated that all projects pay their Fare Share Fee. It is proposed in the new Ordinance a .005 ICU trigger, that is, any project that does not increase an ICU at a critical intersection by more than .005 would be exempt from an improvement requirement. The TPO does have an exemption built in for those projects that slightly increase ICU's or slightly increase traffic congestion at intersections even though the average daily trip threshold may be triggered. Commissioner Tucker stated that everybody who impacts a critical intersection with an unacceptable level of service should have to pay something for their trips. It may be a modest fee because it is a modest project, but why do some people not have to pay anything? Mr. Edmonston stated that is one of the reasons why the Fare Share fee was • developed so that even the smallest project contributed funds towards the construction of the circulation system. The threshold of 300 trips was that if a project comes in with a single - family lot and a duplex is built, you don't have to do a traffic sturdy for those two units. The number of 300ADT has been in place for some time. Commissioner Gifford asked if there was a fee separate from the fare share fee if the TPO is not tripped, or were you suggesting that maybe the Commission should think how to extend some small fee proportionally below the trip level? Commissioner Tucker stated he did not understand the logic as to why somebody at 305 ADT has to pay something and that somebody at 295 ADT pays nothing. If you have an unsatisfactory intersection, you have a rough proportionality test, then, why doesn't everybody pay from trip one? I can understand not asking somebody to do a traffic study for a single - family house, or that the Transportation Manual says will not generate over 300 ADT. Mr. Burnham added that to calculate the fee for 295 ADT you would have to go through the same kind of analysis you would for 305 ADT. To calculate a fee appropriate for that project in relation to some cost of improvement, some intersections would require substantial analysis. This in turn would increase the cost of processing and the times associated with the process. Mrs. Wood added that it is not always the case that the project with 305 trips • 3 INDEX City of Newport Beach Planning Commission Minutes • May 18, 1999 INDEX would pay some kind of a fee or be required to make an improvement based on the TPO, that is the threshold for doing the traffic study. Depending on the impacts that are found, there is a determination as to the improvements or the contributions that have to be made. Issue No. 9 Criteria for "project impact" Jean Watt, 4 Harbor Island - SPON spokesperson • Asked that if the 1% per leg test for an exemption as a threshold is changed, it should be .0025 of 1 % of the intersection capacity. • Any percent has inherent problems because the bigger the intersection the more traffic and the more exemptions can be made. • The BIA request would raise the threshold four times as high as it is now. • Looking at the sum of all four legs, then 1/4 of 1% is somewhat equivalent to the existing 1% per leg. • If this is how we are going to deal with growth and infrastructure capacity questions now, then I hope you can see the importance that the 1% versus the 1/4 of 1% detail in the bigger perspective. • Reducing thresholds for the TPO are counter productive to important community values such as the elusive quality of life and balanced growth. • If you need to change the TPO before doing the visioning and planning with this built out road system, then, do not lower the threshold for exemptions. Commissioner Gifford asked Mrs. Watt, as one of the originators of the original wording of the TPO, what she thought of eliminating the provision for exempt intersections and relying simply on an override of the TPO where there were improvements that the City didn't want to make but would conceivably allow the project? Mrs. Watt stated that she would prefer to stick to the override for the moment because it is more informative to the community. If we have exempt intersections, then it is hidden in the process as far as what the community would understand. An override would be explained and discussed. What SPON has been asking for is not to do anything to the TPO other than the proportionality wording until there is a chance to do some planning with regard to what we are going to do to the road system and whether we can make it serve the added growth or not. Yes, I would rather stick with the override. At Commissioner inquiry regarding override votes to approve a project and another time deny another project leading to possible litigation, Mr. Burnham noted that the concept of exempt intersections would apply to all projects. The analysis of each project would be seen on the same basis. Before an intersection is declared exempt, you have to have the 6/7 vote of City E 0 City of Newport Beach • Planning Commission Minutes May 18, 1999 Council. The concept is to avoid the situation where there is approval of some projects and disapproval of others even though the impacts at the intersection may be the same. The analysis is a little different talking about a different point in time and different base line of volume to intersections. The analysis is essentially the same in terms of the threshold needed to achieve before there was a mitigation requirement. The override is useable where a project, as a whole is, good for the community. The concept of exempt intersections has built into it the same kind of protection that you have with an override, and that is the 6/7 vote of the Council as well as a number of criteria that must be met in order for an intersection to even be considered exempt. The TPO allowing the City Council and the Planning Commission to approve a project on the 6/7 vote does not automatically mean that the use of that option in one case creates the risk of litigation. The risk that we are concerned with is the denial of a project based on impacts to intersections we have chosen not to approve. Not so much as the fact that one project may receive approval and another one might not. Commissioner Tucker noted that the language states that the Planning Commission or City Council makes a finding that the project will result in benefits that outweigh anticipated negative impact on the circulation system. The benefit is not defined. • Chairperson Selich noted that if the exempt intersection concept is adopted, when the Council votes to exempt an intersection, does that have to be consistent with the General Plan? Mr. Burnham answered that the Council would not be adopting an ordinance or resolution that would be crafted in a way to make it as consistent with the General Plan as possible. The City Council is deciding in declaring an exempt intersection, not to make General Plan improvements for a period of at least five years. Mike Erickson - BIA spokesperson • BIA does not disagree with the direction of the staff recommendations or the application of it. • The staff recommendation is .005 that equates to about 8 cars in a lane. That is reasonable. • The problem is that if you are the unlucky project that has a rounding issue and moves it up, then to hit that .005 it could be as little as 1 /10,000 of a point which is .16 cars per hour which can not be measured. • The 8 cars is right, the BIA has suggested a .01 which works to about 2 cars when rounded up. • The idea of an exempt intersection means that you will have to hear and approve /disapprove every project and the same citizens that the City has listened to will have to keep coming out to each session as each project INDEX City of Newport Beach Planning Commission Minutes • May 18, 1999 INDEX is reviewed to let their positions be known. • It seems more efficient for the City, staff and citizens to really address this in one big picture decision, make the decision and have it stay until a criteria is broken. • The concept of a 6/7 vote is a tough issue and is more reasonable and it is necessary to look at 5/7 vote. Issue No. 10 - Decimal place methodology for ICU calculations. Mr. Tony Petros - BIA spokesperson. • ICU's have been calculated to 2 decimal points since being used as a tool to do traffic studies. • The reasoning is the perception of the exactness of the art versus science as this is a prediction of where people will be in the future. • Traffic counts vary by as much as 10% over individual days. • BIA supports the status quo, continuing to use ICU's to the 2 decimal points. • The City of Newport Beach is consistent with Measure M, with the Congestion Management Program, the Growth Management Program and all other traffic consistency measures through the use of the two decimal points for the ICU. • He recommended a change to the override to 5/7 vote. Karl Hufbauer, 20241 Bayview Avenue - SPON spokesperson. • A calculation of four decimal points gets significantly different results, plus or minus than rounding to two places. • The builders might see it as an arbitrary taking and in such an instance they might prefer a more precise calculation. • In general, there is no harm in being precise then you can see how it is going to turn out. • The trouble is less with the existing TPO than the General Plan. • The General Plan needs to be revised first. Chairperson Selich asked staff about the comments of imprecise science and that the industry of professional standards is more at the two decimal point level. Mr. Edmonston agreed that there is a variation in daily traffic and the ability to predict that traffic even five years out is one of the reasons why there is a limit of five years on the TPO. The farther out you go, the less certain you are that your projections are going to be reasonably valid. The situation here, is that we are trying to identify what the criteria would be which is separate from the issue of the actual preciseness of it. You can pick precise criteria, and utilize that if that is what you want to do. • City of Newport Beach Planning Commission Minutes May 18, 1999 In the recommendation proposed, we have tried to clarify this issue because in the past it has been dealt with a little differently. The guidelines we have now would require you to calculate it to three decimal places. We are trying to avoid in the overall series of changes made rather than a one digit change, that third decimal place, you would have to have a change of at least .005 caused by the project itself, not some small rounding. We have addressed the rounding aspect of it, because that seems to go with the precision that has been brought up. Staff is comfortable with this, but an argument can be made either way. We have tried to eliminate some potential that the existing Ordinance could be applied different ways. If is not clear how to get to those two decimals places, and that is what we are trying to specify here. You carry it to the third, do the math, and then do the final rounding at that point to the two decimal places. At Commission inquiry, Ms Temple noted that the Burger King intersection had to do with the third decimal place rounding over to a higher ICU at two intersections, even though the project's contribution to the traffic at those intersections was small. Issue No. 11 - Approval permitted even if cause or make worse as long as no . feasible identified improvement. Mr. Tom Hyans - SPON spokesperson. • It is not reasonable to ignore the obvious and allow the project to make a congested intersection worst, simply because there is determined to be no feasible mitigating improvements. • The worst intersection in town should not be treated in the some manner as the best intersection is treated. • The following amendments to the TPO are suggested to the revision of 05/03/1999 on page 2, last line on the page at A.l.b.(1), strike "...for which there is a Feasible Improvement:' On page 4, at A.2.d.(I), strike "...for which there is a Feasible Improvement" On page 8, Section 15.40.040, Definitions, delete the definition of "Feasible Improvement:' • He asked that the Commission recommend adopting SPON's simple 25- word change to keep the TPO running while addressing the true problem that is, conflict within two elements of the General Plan. • There can be no reasonable TPO without resolving the obvious and ignored discrepancies in Land Use and Circulation Elements. We've heard that from EDC, EQAC, and others. • SPON wants to remove the ability to approve, by default, projects impacting such intersections. • The change that is an improvement, but not enough of an improvement, is the added language referring to 0.80 ICU near the top of.pages 3 and 5. 0 INDEX City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX Mitigation of non - feasible sites should be in the vicinity of the project, a result that would be achieved if you would accept SPON's definition of "Critical ". Mr. Chip Utera, 512 Redlands - BIA spokesperson. • Supports the staff recommendation keeping the language in the current draft document relative to the feasibility improvements. • Any business decision made on feasibility is an important consideration. • If is also important relative to traffic improvements. • Supports the concept for exempt intersection, the increase in the threshold for small projects and the change for the super majority vote from 6/7 to 5/7. At Commission inquiry he explained that he refers to small projects as being a 7,000 square foot restaurant and a 10,000 square office building. They are to be specifically listed in the Ordinance. Mr. Burnham noted that there is no provision in the TPO for requiring improvements to be made at a particular intersection or another. The current TPO has the concept of allowing approval if there is no feasible improvement at an impacted intersection as long as there are improvements at other intersections where there is a net benefit. The proposed change would be to require in the consideration whether there is a net benefit, improvements that are proposed to intersections that are different from the one that is impacted and can not be improved or those intersections are predicted to function at or above .80. Commissioner Kranzley asked about having some language that talks about intersections in the vicinity of the intersection where there are no feasible improvements. Mr. Burnham answered that they have tried to minimize the changes to as many provisions of the TPO as possible. We have tried to not change this provision except to the extent it was necessary to deal with rough proportionality because the old language said something to the affect that the other improvements had to substantially outweigh the impact. Therefore, we have moved to the concept of a net benefit with the improvements at other intersections being improvements at intersections that would function at or above .80. If you just talk about in the vicinity, there is more subjectivity built in. Continuing he noted, the traffic engineer would look at intersections on a particular roadway length and look at improvements along that roadway length and if those improvements were related to an intersection that was impacted, that would be one thing. If those intersections were on another corridor then they may not be particularly helpful to alleviate congestion at that one intersection. f� 8 0 City of Newport Beach Planning Commission Minutes May 18, 1999 Commissioner Kranzley asked that the determination of which intersections are improved is the determination of the traffic engineer? Mr. Burnham answered that under the current TPO with this particular section, it's within the province of the Planning Commission or City Council on appeal. All you determined is whether the impact at that one, or more intersections where there is no feasible improvement that is substantially outweighed by improvements at other intersections. We have tried to at least qualify in weighing the benefits of the impacts, require Planning Commission or City Council to give greater weight to improvements at other intersections that function above .80. Mr. Edmonston added that if the traffic engineering consultant who is hired by the City and paid for by the developer, gets a study completed and identifies that they have an impacted intersection for which there is no improvement, then their next step of work is to look for alternative improvements. At that point, the two options that the project has are to try to identify other improvements at other locations, or to try to seek the 6/7 override. The way the Ordinance works, is that the traffic consultant and I would sit down and talk about what might be candidate locations and what improvements might be available at those candidate locations. There could be a question raised at the time the traffic study gets to the Planning Commission if there is a something that might have been overlooked. The decision however, still rests with the Planning Commission or the City Council. Commissioner Ashley noted that if an improvement were to be proposed by a developer and it was found that the trip generated from this project was to impact an exempt intersection, he would have to pay money for the improvement at a more isolated intersection problem. If he were to be permitted to suggest which intersections he would like to donate his money to, he would always choose the intersection that would be the least painful in terms of money he would have to contribute. Why would you let this happen? Mr. Edmonston answered that this would not apply to an exempt intersection. The concern is that typically if there were two intersections that could be improved, that were not the one the developer is tripping, certainly we would look for a rough proportionality of improvement. If he liked one better than the other because it was closer to his project, that would work. One of the things crafted in the Ordinance is that the developer could not fa one near his project that had a very low ICU, but just happens to have a very cheap improvement he could make. The goal is to get improvements made to the system overall not just to allow a developer to find a cheap solution. If a cheap solution exists at a good candidate location, we certainly would accept that. 0 INDEX City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX At the time this Ordinance goes forward to the City Council, they will be asked to develop a list from the candidate exempt intersections that staff has identified. There is a potential where a candidate intersection could be proposed and that could be considered concurrently with the project. Commissioner Tucker asked if the intersection is exempt, there is no mitigation that has to be made under the TPO. If the some intersection comes forward in a project and is deemed infeasible, then it has to make a payment, even though the payment may end up improving another intersection. Why would we have exempt intersections when we can have infeasible improvements and collect money? Mr. Burnham stated that the two concepts are distinct. If an intersection qualifies as exempt, it is by definition an intersection where there is a feasible improvement and the City has chosen not to make that improvement within a five -year period. You can not have an exempt intersection and finding that there is no feasible improvement. It is either one situation or the other. The current TPO does have provision for approving a project that impacts an intersection where there is no feasible, identified improvement. What we are trying to do is fine -tune that language in the proposed TPO so that the money that is paid by the property owner to offset the impact is directed to those intersections that are most in need of improvement. Commissioner Tucker, referencing Page 2 of b. (1), 'The Project will not cause or make worse an Unsatisfactory Level of Traffic Service at any critical intersection (excluding any exempt intersection) for which there is a feasible improvement; and...." It seems that the corollary then is that there is no feasible improvement and the project will not cause or make worse an unsatisfactory level of service for which there is a feasible improvement. If you have something that doesn't qualify as a feasible improvement, then this sub - section (i) doesn't need to be satisfied. It is satisfied in that there is no feasible improvement. I am trying to understand the difference between exempt, why the City wouldn't choose to reject improvements that otherwise would qualify for an exemption and just knock out this feasible improvement requirement and accomplish the same goal. The improvement would not have to be made, but the developer would have to make a contribution that might end up elsewhere in the circulation system. Mr. Burnham answered that we have tried to limit the concept of exempt intersections and limit the changes to the TPO so they are as minimal as possible to deal with what we perceive to be some legal issues. Commissioner Tucker noted that it would be easy for him to support the exempt intersection concept if it was the only way to assist the City in spending money other than giving it to a developer that sued because of 10 0 City of Newport Beach . Planning Commission Minutes May 18, 1999 that concept. The way feasible improvement has been defined, it has to be initiated and approved in conjunction with the approval of the project that you eliminate the need for a feasible improvement by simply saying that the Council says it is not approved. Mr. Burnham noted that the definition of feasible improvement is not going to be changed. Frequently, there may be situations where as part of an evaluation of a project, we identify modifications to the Circulation Element that will mitigate traffic but they are different from the current provisions of the Circulation Element. We have tried to anticipate the concurrent processing that frequently goes forward on the larger project where you amend the Land Use Element and the Circulation Element to provide for roadway improvements or intersection improvements that were not contemplated by the Circulation Element when the project was submitted. In the case of an exempt intersection they are in the Circulation Element, so they are contemplated but none have been made in the past four or five years. Commissioner Gifford asked if it was possible that the definition of feasible improvement include one that the City is not intending to find or initiate for more than five years. That would bring the feasibility into Issue 11 context. • Mr. Burnham answered that if the phrase feasible improvement include the situation where the improvement was contemplated by the General Plan but was not going to be made for a specified period of time. That would be another way of addressing the concern that we have about denying a project because it impacts an intersection that the City has chosen not to improve to General Plan standards. Commissioner Gifford - would the result of that be that we could eliminate the concept of exempt intersection and we could have some kind of in lieu or an improvement at another location? How does proportionality fit into the concept of what improvement someone is required to make at another intersection? Mr. Burnham answered that we try to make the Ordinance comply with the law and hope that as it is implemented, the property owner whose project that is being considered also believes you are complying with the law. The current Ordinance has a provision that requires the off site improvements to substantially outweigh the impacts at the intersection that can't be improved. We are proposing to remove that language and substitute the balancing provision so there is a net benefit with a greater weight being given to improvements to other intersections which are projected to function at or above .80. The Ordinance as written complies with the law, as I understand it. A nexus is established if an improvement was done by a developer in another area than the intersection the project is at. 11 INDEX City of Newport Beach Planning Commission Minutes • May 18, 1999 INDEX Commissioner Tucker stated that the concept of exempt intersections and improvements that are deemed not to be feasible seem to be almost alike except in one case you pay nothing and in the other case, you contribute. One Council may decide that an intersection is exempt and two years later something changes on that and somebody went ahead and put a big development and didn't pay anything. The next guy is all of a sudden held to • different standard. I believe that everybody ought to chip in and if there is • way to call something not feasible and have a contribution to the circulation system versus exempt where the result to the developer is the same. He would not have to make an improvement to an intersection that the Council doesn't want to see improved, than at least there are improvements made elsewhere in town. They would be paying twice if they were to make worse an unsatisfactory level of service because they pay the Fare Share fee anyway. Chairperson Selich restated the comments. If someone were to be in a situation where there was an improvement and we didn't have exempt intersections, that we had them as a feasible improvement that is contemplated to not be done in five years. They would pay their Fare Share fee and then whatever percentage by the Ordinance, their proportional contribution to the make worse condition that would normally be satisfied at that point in time, whatever those dollars transferred to that would be contributed by the City in addition to the Fare Share fees. Commissioner Ashley added that Section 15.40.030 referring to standards for compliance, approval and exemptions. Standards for approval should be expanded. If we change the wording and add another insert that, "The project will cause or make worse an unsatisfactory level of traffic service at any critical intersection for which there is no feasible improvement" This is saying that at that time the project will still have to make a substantial contribution to the improvement of an intersection elsewhere equal to the cost of what would have been reguired at the intersection where there was a feasible improvement. In this instance, there is no feasible improvement. Mr. Burnham agreed that he understands where the Commission is going with this concept. He noted that when you are trying to get equivalent contributions based upon a project's impact at an intersection that can not be improved to one that can be improved, you are running into some analytical difficulty. That is why we have tried to minimize the changes to the existing TPO to do as little damage to the analytical structure as possible. I understand the concept of eliminating exempt intersections and then taking some of those concepts and putting them into the definition of feasibility so there is at least some contribution in every case where there is an impact at a critical intersection. 12 E City of Newport Beach . Planning Commission Minutes May 18, 1999 INDEX Also to be further examined is the issue of a nexus. The connection between the condition you impose on a person whose project impacts the intersection A and doesn't impact intersection B but whose project would be approved if improvements are made to intersection B. The current Ordinance allows that. One of the reasons we are trying to modify the Ordinance is to deal with legal issues. In the definition of feasible improvement, the contribution requirements to other intersection improvements needs to be linked to the Ordinance itself, as well in practice. Issue No. 12 - Cost sharing provisions for mitigation of a project involving a GPA. Mr. Philip Bettencourt - BIA spokesperson • Stated that BIA supports the staff recommendation. • In attempting to reform the Ordinance, it was recognized that the rough proportionality provision was a reality of law. • If you go against staff's recommendation on this issue, you compromise that important determination. • The recommendation treats all projects evenly and does not put an applicant seeking a General Plan Amendment in a lesser stand to make • his case. • It requires proportionality be applied in all instances, even if a General Plan Amendment is part of the entitlement proceedings. Dean Reinemann, 1877 Parkview, Circle Costa Mesa -SPON spokesperson • SPON' s position is that there are two different issues, the TPO and the General Plan Amendment, which branches out into a different category. • These should be dealt with in a separate distinct way. • It is important to discuss a General Plan. • You can't have a system that handles absolute, critical peak hours at maximum demand. At Commission inquiry, Ms. Temple stated that the Traffic Phasing Ordinance is an operational ordinance and tool used for the analysis of short term impacts relating to projects that are seeking permits. The General Plan is a more comprehensive look at the overall picture of the City. The TPO can be viewed as one of the tools used to implement the General Plan because it is a tool to achieve Master Plan Improvements. The TPO does not provide an analytical framework for long -range traffic analysis. When we deal with General Plan issues, we do two separate analysis. One is related to the TPO and one related to the long -range build out program through the traffic model. It is not inconsistent to review the TPO prior to any update of the General Plan. 13 City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX Issue No. 13 - Timing of development permits relative to status of mitigation. Don Harvey, 2039 Port Weybridge - SPON spokesperson. A project that has traffic mitigation measures as required by the TPO for development, can fail for several reasons: • Traffic mitigation measures require substantial funding. • Funding availability can change. • Residents can be subject to traffic delays • Taxpayers are left holding the bag. The present Ordinance requires a completion of mitigation measures. The proposed administrative procedures requires bids for them be accepted. Does either wording suffice? SPON recommends that the situation would be clarified once written fully executed contracts for most of the traffic mitigation measures (807o) are in place. The taxpayers and residents would be at less risk then, and that is all we ask. Jeff Gordon, 332 Catalina - BIA spokesperson. • Traffic is always a concern. • Rarely does a particular project cause a problem to occur in an • intersection or roadway, it is usually cumulative and occurs over time. • Traditionally, developers have always paid their fare share of the percentage of the dollar amount that the ultimate fix will take as recommended by the traffic studies. • The notion of having 80% of the funds on hand for a particular improvement is totally unfair. It would basically stop a smaller project, because as a developer, you can never obtain an 80% funding commitment. • In conclusion, he asked that the Planning Commission reconsider the super majority of 617 in favor of 5/7. Commissioner Gifford asked about the language to preclude issuance of permits until improvement budgeted and committed for construction. What would be a test for whether something is committed for construction, what criteria would meet that? What would be reasonable and objective? Mr. Gordon opinioned that all the dollars would be in place and committed for those improvements. Some type of bonding mechanism would be reasonable and objective. Mr. Burnham said this discussion addresses when the City is able to withhold the issuance of permits, or, when is the City required to issue permits, when does the City have a level of certainty that the improvement will in fact be 14 • City of Newport Beach . Planning Commission Minutes May 18, 1999 made within one year after occupancy of the project. What is proposed is to incorporate the administrative guidelines that have provisions relative to requirements for issuance or not issuance of improvements based upon findings. Whenever there is an improvement that requires a condition to approval, the City under the current guidelines has to make certain findings before it issues permits on that project after the project is approved by the Planning Commission or the City Council. There are still decisions to be made by staff as to whether the improvements that were conditions to approval are in fact going to be made within reasonable time frames. Mr. Bettencourt, BIA spokesperson stated that there has to be enough certainty on the funding mechanism in order to add on the nature of the improvements to be able to prepare a forecast of the cost of the improvements. You have to use that as the basis for setting the mitigation in the first place. Mr. Burnham noted that in some cases, the TPO does allow projects to be approved if it simply pays a fee. But in many other cases, the TPO requires the project proponents actually make an improvement. An improvement that is contemplated to be in place either as a result of the findings and fee or improvements in place in order to allow you to make the finding that the project does not cause or make worse an unsatisfactory LOS. In the later case, you are dealing with actual improvements. We have had this process in place in the guidelines at the end of the Appendix A, Subsection 7. It is an area that can be refined. There are three tests for staff to be able to issue a permit in a case where the project proponent has bee required to make improvements. Mr. Alan Beek clarified that in Appendix A, Subsection 7, b. it is proposed to be amended to add the words "signed contracts by..:' Issue No. 14 - Treatment of development agreements. Bob Break, 2605 Vista Ornado - BIA spokesperson. • Section 15.40.030 recognizes the uniqueness of the development agreements in terms of early contributions to circulation improvements in the City. • Under state law, vested protections are accorded to projects approved with a development agreement. • The purpose is to support comprehensive planning and contribution to the City that are over and above other contributions made by other projects. • SPON's proposal ignores these attributes. • The staff recommendation is consistent with the long- standing practice in • 15 INDEX City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX the City with respect to the TPO and development agreement projects. It is appropriate and we support the staff recommendation with the exception that the threshold for re- analysis should be at 500. Barry Eaton, spokesperson for EQAC • The Fare Share Fees are based upon a long -term assessment of the ultimate built out of the circulation system, assuming a lot of contributions from Measure M and the Congested Management Program and the Arterial Highway Program. • The TPO is looking at the intermediate situation and the timing of the improvements relative to a specific project. • The TPO has a provision that says these fees are in addition to any others. • That is the concern, that that provision be retained. Where that is provided for is in Section 15.40.075. • The only need for a development agreement here is to waive traffic mitigation fees and allow one to count toward the other. This is not consistent with what EQAC thought it was recommending. • It is not consistent with the general purpose of a development agreement, which is guaranteed entitlement for the builder, some concessions and improvements and mitigation for the City. Please drop that last clause. Issue No. 15 - Treatment of entitled developments annexed into the City. Phil Arst, 2601 Lighthouse Lane -SPON spokesperson. • This applies to two annexations, Banning Ranch and Newport Coast. • Banning could be subject to a development agreement, which may or may not be difficult on the developer. • There should be no exemption from the TPO analysis at the time of annexation. • The Newport Beach taxpayer would have to pay to bring any road up to standard. • The people living in those areas are in an area of lower traffic quality than Newport Beach. • 1 propose that this exemption be dropped. Looking at the median prices in the adjacent of $729,000 in Corona del Mar is three times that of Irvine. Certainly a developer will take advantage of that price differential that is much larger than saving some money in not bringing roads up to a LOS D standard. • Newport Beach is a premier City and others want to join us. We don't need to provide inducements; we do not need to give away City traffic improvement dollars. Commissioner Ashley asked if we would be exempting Banning Ranch and Newport Coast from the TPO analysis if we agree to annex them to the City. is 16 01 City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX Ms. Temple answered that in the case of Newport Coast, that is a fully entitled project with a development agreement. As part of the approval a full traffic analysis was done and mitigation set of criteria was established. Were we to annex that particular area because it has a fully committed and vested development agreement that there would be no additional traffic analysis under the TPO unless changes to the project were proposed by one or more developers which would generate an increase in the ADT by 300 or more. In terms of the Banning Ranch project, the entitlement program for that project is in the initial stages. One of the things the City has asked for and the County has agreed to, as part of the environmental work prepared, is analysis that would have been required should the area been in the City of Newport Beach including a TPO analysis. Through that process, we will identify the sufficient mitigation necessary. Mr. Break - BIA spokesperson. • Stated that the Irvine Company financed Newport Coast Drive. Without that Pacific Coast Highway through the City of Newport Beach would still be operating well above LOS E. • The provisions provide the City full and adequate protection and invites earlier annexation. • With that annexation, as projects are built in the City fees are being paid to the City. • The unintended result of not providing these types of provision in the TPO is the same unintended result you see around the airport. • We support the City's recommendations. A five - minute recess was called. Issue No. 16 - Treatment of the Ordinance's Findings and Purposes. Richard Luehers, President of the Newport Chamber of Commerce - BIA spokesperson He stated that BIA agrees with the staff report for the following: • No substantial amount of change • Establish a balance of development • Avoid misleading verbiage such as moratorium Mr. Alan Beek - SPON spokesperson • He stated that the TPO is a law to protect the public health, safety and welfare. • Provided in the TPO is that the developer doesn't have to wait until the City improves an intersection. He can improve the intersection himself 17 City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX and proceed with the project if he chooses. • The TPO has turned out to be a fund raising vehicle. • Keep existing wording as being more legally defensible Issue No. 17 - TPO Override /Exempt intersections Vote Gail Demmer, 2812 Cliff Drive - SPON spokesperson • 1 live in a community behind one of your proposed exempt intersections. • Overriding the TPO is making an exceptional approval. • A moratorium is making an exceptional disapproval. • It is fare they should both take the some 4/5, super majority. • Do we want congestion, or do we want enough infrastructure to prevent congestion? We have to have one or the other. Answer that question, and we won't have any problem with the TPO. Philip Bettencourt - BIA spokesperson • This Ordinance draft has been worked on for months and months. • We are considering tonight crafting new concepts that are untested. • There are a number of tools to control land use. • Suggest that five votes as a premium is more representative with the democratic process. • We propose a 5/7 (71 %) vote required (super majority requirement maintained). Commissioner Gifford stated that the existing TPO has had the requirement of 6 out of 7. Where has that created a real issue? Mr. Bettencourt answered that the 4/5 provision was removed from a Carlsbad Ordinance that dealt with the common, general law, city provisions for special circumstances. He was not aware of any projects where there were serious problems with the vote. We think the majority of the Planning Commission and the majority of the City Council ought to govern life in a democratic society. There will be some extraordinary circumstances. Ms. Temple noted that projects have been approved through an override vote both at the City Council level twice in twenty years. The first time was for a project called the Corona del Mar Homes Project. The second one was the Burger King Project and was approved on the basis of the timing of an available improvement. Working with development projects over time, there is a high level of sensitivity to the prospect of needing that kind of majority. If an intersection would be impacted for which there is no available improvement, the most common affect would be for the project to be reduced so as not to create the mitigation requirement or not move forward at all. 9 18 10 City of Newport Beach Planning Commission Minutes May 18, 1999 Commissioner Kranzley asked why you couldn't get four City Council members to amend the General Plan to allow a development to be built that was tripping the TPO? Everyone seems to be holding onto the 6/7 majority, yet, it only takes four votes to amend the General Plan. I am perplexed and do not understand the BIA and SPON positions. Mr. Bettencourt noted that there was a different set of findings and different due process requirements for the Ordinance. It would require two hearings, less immediacy involved in the process. You are pointing out the unusual circumstance where four members of the Council can adopt the Ordinance, but it takes six members to deal with the failure to comply. Commissioner Kranzley suggested five votes all across the board. It would take five votes to amend and to override. This would make it consistent. Mr. Burnham noted that the Planning Commission could recommend any vote it wanted to the City Council. He noted that the rational for proposing these amendments was legal issues. We didn't feel the 617 vote was a legal issue requiring modification. Issue No. 18 - Inconsistency between predicted levels of service in the Circulation Element and LOS D standard in the TPO. Mr. Philip Bettencourt - BIA spokesperson • This item could be addressed in a separate process as the TPO operates to enforce a standard that is inconsistent with the General Plan. • Accepts the staff recommendation. • The adoption of a more stringent requirement is not likely to affect the actual operation of the intersections in question. Jennifer Winn, 515 Gorgonio - SPON spokesperson • The General Plan is general, is a long -range tool and is a vision. • The TPO is a tool for achieving that vision. • SPON asks for a second phase of this work effort should occur as a review of the consistency between the build out and the circulation. • A review of the TPO should then be done to determine its consistency with the Circulation Element. Issue No. 19 - Airport Area Level of Service Philip Bettencourt - BIA spokesperson • BIA accepts staff recommendation. 19 INDEX City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX • Recommend that there be consideration of criteria consistent adjacent jurisdictions when the airport area is studied. Chairperson Selich then invited a representative of the Economic Development Committee to give a presentation. Mr. Gary DiSano, 1840 Leeward Lane - EDC spokesperson • Thanked the Planning Commission for their work on this topic. • The EDC has had a long- standing interest in revising the TPO. • Recommended an earlier proposal to revise the General Plan Circulation Element as well as the TPO. • EDC supports and recommends that the following be added to the current provision: Exceeding LOS D in the airport area and changing the override vote from 6/7 to 5/7. • EDC recommend that traffic studies are required that generate 500 ADT rather than the existing threshold of 300 ADT. • EDC recommends the approval of the proposed TPO even without the three recommendations listed above. • Rough proportionality provisions are needed for fairness and to limit threat of lawsuits from developers. • The rounding problem needs to be corrected so we are not requiring mitigation for minuscule impacts, especially when those impacts are calculated using a lot of assumptions and data as much as two and a half years old. • Need to be able to exempt some intersection requirements so that property owners can re- develop their property in a way that brings economic benefit to the City. Barry Eaton, EQAC spokesperson. • Supports the 4/5 vote for all votes. • The General Plan does need to be updated. Public comment was opened. Dick Nakles, 519 Iris - • TPO was set up to allow small projects to be able to build out. • TPO did not include large projects, which come in via county land with a lower zoning. • Annexed land impacts people's rights who have been paying taxes all along. • Override vote should be a super majority. • All communities need to have proper traffic infrastructure. 10 20 0 City of Newport Beach Planning Commission Minutes May 18, 1999 UMT ;3 • The TPO was originally proposed as an interim Ordinance and was never intended to survive the twenty years it has now survived. • The TPO has significant problems: • Constitutionally a City can not expect a project to provide more in public improvements that what is roughly proportional to the project's impacts. • The TPO is not consistent with the General Plan. • No city has followed the example set by Newport Beach on a TPO. • The TPO invites clever developers to find ways around and get to a project approval that is contrary to the best interest of the City. • Drop the Traffic Phasing Ordinance. Barry Eaton, representing the Eastbluff Homeowners Association noted: Two of the three entrances to the Eastbluff Community are on the Appendix B candidate list for exempt intersections. Representing himself: • Compliance with CEQA category is classified with minor alterations, land use limitations. • Provisions in CEQA limit the extent of this category. • The process of creating exempt intersection is guaranteeing that those intersections will go to a significant impact. • Either get rid of exempt intersections, or, do an initial study of a Negative Declaration. Ms. Temple stated that the issue of CEQA compliance, we do believe that they do fit within the Categorical Exemption Class 5. Should the Council actually adopt exempt intersections, that would be an act subject to CEQA and at that time some specific analysis as to the environmental effects of that decision could be subject to further environmental review. Elaine Lynhoff, 1760 East Ocean Boulevard Suggested that the Planning Commission get a new perspective. The purpose of the TPO is to keep the traffic flowing in the City of Newport Beach. Any amendments passed to the TPO won't allow the traffic to do that. The TPO has worked and I am glad that we have one. At Commission request, Mr. Edmonston stated that the proposed changes were done to address the legal issue and the rounding issue. This Ordinance as proposed tonight, would not operate with any noticeable difference from the way it has operated for the last twenty years. 21 City of Newport Beach Planning Commission Minutes • May 18, 1999 INDEX Mr. Beek, SPON representative. • Decimal points and accuracy - keep it accurate to four digits and do not do any rounding. Rounding off two places then the threshold of LOS D is not 907. it is 90.5 %. They are getting another .57o free and since most of the troubled intersections are around 90 to 90.5% that is a significant thing to give them. • Proposed definitions of benefit as the increase in intersection capacity. Definition of impact as traffic through the intersection at a peak hour. Definition of critical intersection that would confine improvements to the intersections that are relevant to the project. • Deal with exempt intersections as if they were not feasible is a creative solution. Remove exempt intersection from the Ordinance in Section B and leave it in the one place where you need it to make exempt intersections. • We are not addressing proportionality. Create deficit intersections. Mr. Philip Bettencourt - BIA spokesperson • Staff has pointed out planning tools for you to utilize. • Fare Share Fees is a reasonable method. • We have identified legitimate impacts. . • Reformed package is a reasonable balance of the pros and cons spoken. Public comment was closed. Chairperson Selich stated that the Commission would take straw votes on each issue. He suggested that Item No. 17 would be taken third in order and every other item will fall down one. General Plan Update Commissioner Ashley agreed with the staff recommendation of not applicable. However, a General Plan update is essential and the TPO that we act upon tonight, should be reviewed at the conclusion of the General Plan update. The Planning Commission was in agreement Straw vote - All ayes 22 . City of Newport Beach • Planning Commission Minutes May 18, 1999 Commissioner Fuller stated: • He is troubled by the fact that with an exempt intersection, you are exempt from a TPO fee. • He asked for discussion on the extraction of some sort of fee towards improvements at collateral intersections that would possibly be impacted. • If a project is built that will impact an intersection at Riverside which is designated as an exempt intersection, the developer does not pay a fee. • The developer should pay some sort of fee. Commissioner Tucker stated: • He would like to see the definition change in feasible improvements so that we could potentially do away with this concept of exempt intersections. • Not necessarily in favor of somebody having to pay both the Fare Share Fee and a mitigation amount under the TPO. • With the exempt intersection you can have a circumstance where somebody would have to pay if there is a feasible improvement but yet, • somebody who is contributing to a troubled intersection it becomes exempt doesn't have to pay anything. Commissioner Ashley stated: • Need to address having exempt intersections in order to avoid litigation. • Opposed to allowing anyone who wants to build a project that negatively impacts an exempt intersection to not have to pay a TPO fee that would be equal to the impact his project would have caused to happen at another intersection that is critical. • It is a 4/5 vote by Council that is required to exempt an intersection. Commissioner Gifford stated: • A practical solution to a problem we are facing and supports staff recommendation with the addition of a change in the definition of feasible improvement. Commissioner Kranzley stated: • Would we look at each project as it comes in? • Would we have a blanket exemption at an intersection? • Are we just calling exempt intersection a different name just to extract fees from a developer? Commissioner Tucker stated there needs to be consistency when the needed improvement for an intersection is not made for whatever reason. Why is 40 23 INDEX City of Newport Beach Planning Commission Minutes • May 18, 1999 INDEX someone off the hook with the concept and two years later, a new Council has a different concept. It ought to be the same and the TPO fee as well. Until an intersection is categorized as exempt, the improvements may not be feasible or it never gets done. In one case somebody pays and in the other case, they don't pay. Commissioner Kranzley clarified that the net result is that somewhere in Newport Beach and close to the intersection that is impacted, we will have improvements on intersections that are projected to function at or above .80 ICU. We will be seeing improvements on troubled intersections in Newport Beach. The overall impact will be that we are going to get an improvement of traffic if we use the feasible language as opposed to the current language of exempt intersection. He stated his support for this type of language. Commissioner Hoglund supported the comments of Commissioner Kranzley. He noted that one troubling thing to him in looking through the draft TPO and listening to the tapes from the last minute, is the concept that somebody could come along to an exempt intersection and basically not have to pay any mitigation fees other than their Fare Share Fee, which is assessed to everybody. There is a parity issue that needs to be addressed. Whether we are not going to have exempt intersections and call these feasible or infeasible, the point is that everyone is treating equally. You don't benefit from the fact that you are developing a project at an intersection that for whatever reason is not going to be improved. Mr. Burnham commented that he understands where a majority of the Planning Commission wants to go with this issue. That is, to delete the definition of exempt intersections and to expand the definition of feasible improvements to include the situation where the intersection could be approved and for whatever reason is not in the five -year plan. We would impose a mitigation requirement so long as we can create a nexus or connection between the project impacts and the project contributions. Whether that is contributing to a plan to mitigate the impacts of the additional traffic in a residential community, or, mitigation the impact of some project of traffic on another intersection, there needs to be a nexus. As long as there is that nexus, I am comfortable legally that we can do that. You are comfortable that we have established a level of parity between people that impact exempt intersections. The motion is to give staff direction to draft language that is consistent with what I believe is your intent. Chairperson Selich clarified to delete the definition of exempt intersections and the concept of exempt intersections. There was a lot of work and discussion in the working group on this and I am concerned that the concept can be so easily discarded. Mr. Burnham noted that it would allow a project to be approved under Sub 24 • City of Newport Beach • Planning Commission Minutes May 18, 1999 Section B. You are not discarding the concept entirely, you are preserving the ability of the City Council and the Planning Commission to approve a project that impacts an intersection that could be improved, and if it was improved would function better than LOS D. What you are doing is changing it from a situation where no mitigation is required to a situation where you are requiring some mitigation, but you are saying that mitigation will be connected to the impacts of the project. I can take what I need from the exempt intersection concept and definition and put it into the definition of feasible improvements and still carry through a mitigation requirement. Commissioner Kranzley noted for the record that he would support this only if there was some relationship between the impacted intersection and mitigation that will be required. Chairperson Selich noted that if the City Attorney is comfortable with this, he was too. He wants to see the exact language before it is forwarded to City Council. Commissioner Tucker noted that one of the legal purposes of the TPO was to address the circumstance where an improvement that is on the General Plan Circulation Element has not been made and somebody therefore can't develop. If an improvement is deemed not to be feasible, it has the same consequences. Ms. Temple noted that the suggestions being made by the Planning Commission accomplish the goals intended by exempt intersections. The suggestions level the playing field whether an intersection is not improved because there is no feasible improvement or because the City declines to make an improvement. Being required to make a nexus finding that the mitigation is in fact connected to the project's impacts also accomplishes the interest of the Commission. Mr. Edmonston stated that this is something we can work with. I would like to see it in writing and think through some hypothetical cases. I am not sure how it deals with being able to avoid a lot of two sides of an issue at every development project that comes before the Commission and the Council. I am not sure this does that or not, and I want to see it in writing first. Discussion followed on the timing of forwarding the recommendations to the City Council and seeing language regarding this issue. It was decided that all items would be decided on in concept tonight, with the exception of this issue and any other one that may have a change of language. Motion was made by Commissioner Tucker to direct staff to integrate the concept that previously existed with the exempt intersection into something that is an expansion of the feasible improvement definition and then delete 0 25 INDEX City of Newport Beach Planning Commission Minutes May 18, 1999 references to exempt intersections. This language will both treat everybody equitably that comes before the Commission and the Council as well as provide for a solid legal position. Ayes: Fuller, Tucker, Ashley, Selich, Gifford, Kranzey and Hoglund Noes: None Absent: None Abstain: None Override Vote Commissioner Hoglund stated that the objection seems to be that we are setting up super majority, yet it is so easy to amend this. Maybe as a compromise we should change the whole thing to be 5/7. Personally, we should stay with the 6/7 as it is. We did not intend this TPO to revise every aspect of it. The reason it came before us is to revise what was detected as a legal problem. Commissioner Kranzley stated that the ability to amend the TPO with 4/7 vote is a huge hole in this entire Ordinance. He proposed a 5/7 vote across the board, including any amendments to override or amend. Commissioner Gifford agreed with Commission Hoglund to leave the way it is. Commissioner Ashley supported a 517 vote on the override only. Commissioner Tucker agreed with Commissioner Kranzley and go for a 5/7 vote for everything. Commissioner Fuller supported a 5/7 vote. Chairperson Selich noted his support of 5/7 on the override only and leaving the remainder of the Ordinance as is. Commissioner Ashley noted an example. Say that the Council wanted to change the definition of what is a critical intersection. If you make it that you need an extraordinary majority just to do that, it is taking to an extreme. He recommended to leave it 5/7 for some of the other things. Commissioner Gifford noted that she found a balance of 617 and then a standard majority to amend the Ordinance. If there are real problems with the Ordinance, it needs to be amended. If you leave it as is, then create exceptions, the exceptions should have a super majority. Making exceptions within the context of an Ordinance that you choose not to amend, I am comfortable in having the balance work out with a 4/7 for amendment but 617 to override. INDEX 0 26 • City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX Mr. Burnham noted that the Charter specifies that four affirmative votes are necessary to amend any Ordinances and to adopt any Ordinance except for an emergency or urgency Ordinance and then five affirmative votes are necessary. Talking about amending the TPO with some number more than four, that provision may not be consistent with the Charter. we should be confining the discussion to the provisions of the Ordinance that are internal to the workings of the TPO rather than how it should be amended which is a subject covered by the Charter. Commissioner Tucker withdrew his 5/7 overall and keeps it to the override. Commissioner Fuller moved to utilize the 5/7 vote for the TPO override. Straw vote - Commissioners Gifford and Kranzley - No All others - Ayes Provisions for trip Generation reductions Commissioner Fuller moved to support the staff recommendation for the Traffic Manager review. • Straw vote - All Ayes Use of mixed criteria versus exclusive use of peak hour standards Commissioner Gifford moved to support the staff recommendation. Straw vote - All Ayes Source of trio distribution for each oroiect Commissioner Kranzley noted a potential language change. Mr. Burnham stated that the language in the administrative guidelines which proposed the incorporation of the tighter language into the Ordinance. Commissioner Gifford moved to adopt the staff recommendation. Straw Vote - All Ayes 27 City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX Formula for calculating contribution to improvement by project that is too small to pay full cost (Section 7 5.40.030.A.1.c(ii0 Commissioner Gifford moved to support staff's recommendation to determine project share by dividing project -added trips by increase in intersection capacity. Straw Vote - All Ayes Definition of Critical Intersection Commissioner Gifford moved to support staff's recommendation. Straw Vote - All Ayes Trip generation study threshold for smaller projects Commissioner Fuller noted his support for 300 ADT. Commissioner Tucker noted his concern with the categorical exemption for projects that are smaller when projects that are slightly bigger and have to pay a traffic mitigation fee. I believe that a project that does not generate at least 300 ADT should not have to do a traffic report and should not have to go through a traffic analysis but should have to pay if it impacts an intersection that is performing at an unsatisfactory LOS. I would support the 500 ADT in B.1 and .01 in B.2. Discussion followed on the need for some type of traffic analysis, fare share fees, impact on intersections and how to determine how much a developer would pay beyond the fare share fee. Mr. Burnham stated that the TPO is the short-term analysis that is focusing on impacts on intersections one -year post occupancy. Even though it would be nice to try to equalize everything, there will be some projects that are big enough to have that requisite impact on the intersection short term. If you try to ratchet down the number so that you have a fare share fee plus some sort of additional traffic fee, you will run into problems with rough proportionality. You will also create even smaller increments in increases in intersection congestion that would trigger some additional analysis. Commissioner Tucker stated that when he has a traffic study prepared, it covers a whole wish list of concerns to address issues that local residents might want to know that are too far away from the project to have much of an impact. It is all study. Would it be possible for smaller projects to have 28 City of Newport Beach Planning Commission Minutes May 18, 1999 abbreviated study, somewhere between the 300 and 500 ADT where the Traffic Manager looks at the likely intersections to be impacted are and gauge it on that. Mr. Edmonston answered that the analysis his staff makes when a project proponent comes in is to try to determine whether they would exceed the threshold of 300 ADT. If they are, the traffic study they do is strictly to conform to the TPO. The larger projects include larger topics such as CEQA impacts on neighborhoods, and the TPO does not deal with that. That is the minimum amount of study that is required and we select the intersections based on project size and location. Commissioners Ashley, Gifford, Kranzley, Tucker and Hoglund noted their support of the staff recommendation of 300 ADT. Commissioner Selich noted his support of 500 ADT. I know what is entailed in doing a traffic study. Motion was made by Commissioner Gifford to adopt the 300 ADT pursuant to the staff recommendation. Straw Vote - 6 Ayes Chairperson Selich - no Criteria for "protect impact' Motion by Commissioner Fuller to support the staff position. Straw Vote - 6 Ayes Commissioner Tucker - no Decimal place methodology for ICU calculations Commissioner Ashley stated he supports SPON position to do all calculations to fourth decimal point and not do any rounding. Commissioners Hoglund, Kranzley, Gifford and Tucker supported the staff recommendation to calculate to the third decimal point through addition of critical moves, then round to two decimal places. Commissioner Fuller supported carrying calculations to two decimal points. Chairperson Selich supports the BIA position to perform calculations at two decimal places. Motion by Chairperson Selich to perform calculations at two decimal places. 0 29 T,TT 1 City of Newport Beach Planning Commission Minutes May 18, 1999 Straw Vote - Aye - Selich, Fuller, Ashley Noes - Hoglund, Kranzley, Gifford, Tucker Motion by Commissioner Ashley to perform calculations to third decimal place and not round off to two decimal places. Substitute Motion by Commissioner Fuller to substitute staff recommendation to calculate to the third decimal point through addition of critical moves, then round to two decimal places. Straw Vote - Ayes - b Ayes No - Commissioner Ashley Approval permitted even If cause or make worse as Iona as no feasible identified Improvement Commissioner Fuller stated support of staff's recommendation. Mr. Burnham stated that the Planning Commission has stated support of this concept so long as there is a nexus established between the impacts and project related improvements. Commissioner Kranzley stated that under the old, now gone, concept of exempt intersections, we would exempt an entire intersection. Under the no feasible improvement, we would look at each project as it comes forward. Mr. Burnham stated that the definition of feasible improvement would apply to an intersection or a category of intersections, it would not be project specific. You would have uniformity in treatment of projects. If there is no feasible improvement that means the intersection is incapable of being improved or the City has chosen not to improve. If it is not on the City's five - year plan, it is not feasible. Commissioner Gifford reiterated that this is on an intersection, not a project. Commissioner Kranzley asked if there was going to be a list of no feasible improvement intersections? So what is the difference? Mr. Burnham answered that the core difference is that you are going to require some mitigation that where there is a nexus between project impacts and the mitigation you require. There will be a definition given of the feasible improvements. Commissioner Gifford stated that before we contemplated making the INDEX 30 0 City of Newport Beach Planning Commission Minutes May 18, 1999 change with respect to incorporating the exempt intersection into the definition of feasible, this provision was there and there were going to be these identified intersections with no feasible improvements. Motion was made by Commissioner Ashley to direct the City Attorney to supply wording that will allow this item to dovetail with establishing exempt intersection criteria. Straw Vote - All Ayes Cost sharing provisions for mitigation of a protect involving a GPA Motion was made by Commissioner Gifford to support staff recommendation. Straw Vote - All Ayes Timing of development permits relative to status of mitiaation Motion was made by Commissioner Gifford to support staff recommendation. . Straw Vote - All Ayes Treatment of development agreements Motion was made by Commissioner Gifford to support staff recommendation. Straw Vote - All Ayes Treatment of entitled developments annexed into City of Newport Beach At Commission inquiry, Ms. Temple noted that included in the staff report was colored exhibits which show both intersection and roadway link function. All of the roadways and intersection perform at a Level of Service C or better in the Newport Coast area. Mr. Burnham stated that to be added to the Ordinance is that properties within the Sphere of Influence of the City of Newport Beach will ultimately be annexed. This is a way of trying to accelerate the annexation rather than the decision of whether it will or will not be annexed. Motion by Commissioner Gifford to approve the staff recommendations and • 31 INDEX City of Newport Beach Planning Commission Minutes May 18, 1999 INDEX 0 to provide for the addition of language that it applies to annexations within the sphere of influence. Straw Votes - All Ayes Treatment of the Ordinance's Findings and Purposes Motion was made by Commissioner Gifford to adopt staff's recommendation. Straw Votes - All Ayes Inconsistency between predicted levels of service In the Circulation Element and LOS D standard in the TPO Motion was made by Commissioner Gifford to adopt staff's recommendation. Straw Votes -All Ayes Airport Area Level of Service Motion was made by Commissioner Gifford to adopt staff's recommendation. Chairperson Selich noted his support for going to LOS E. The City's General Plan recognizes that the airport area can not be mitigate to LOS D and is stated in both the Land Use and Circulation Elements. In this regard, the TPO is inconsistent. Straw Votes - 6 Ayes 1 No, Commissioner Selich Chairperson Selich noted that the Commission wants to see the language on the exempt intersection issue. He suggested that the Commission take a vote and adopt everything that was done with the exception of items two and twelve being in concept subject to approval at the June 10th meeting. At that time, we would open up public hearing on those items only. Motion was made by Chairperson Selich to adopt everything that was done with the exception of items two and twelve being in concept subject to 32 • 0 City of Newport Beach Planning Commission Minutes May 18, 1999 approval at the June IU'" meeting. At that time public hearing will be opened on those items only. Ayes: Fuller, Tucker, Ashley, Selich, Gifford, Kranzley and Hoglund Noes: None Absent: None Abstain: None ADJOURNMENT: 10:25 p.m. RICHARD FULLER, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 33 INDEX Continued City of Newport Beach . Planning Commission Minutes May 6, 1999 10. This approval shall expire unless exercised within 24 months from the end of the appeal period, in accordance with Section 20.91.050 of the Newport Beach Municipal Code. SUBJECT: BeffingenResidence (BIII Edwards, Architect) 2215 Pacific Drive Variance No. 1228 • `Modification No. 4908 Request to approve a variance to permit alterations and additions to an existing non - conforming single family dwelling (due to height and parking) that will exceed the height limit in the 24/28 foot Height Limitation Zone by approximately 18 feet and exceed the, maximum allowable floor area limit on property located in the R -1 District. The application also includes a modification to the Zoning Code to allow a second floor bay window to encroach into the required side yard setback area and the roof eaves to encroach within 1 foot of the side property lines:., • Ms. Temple stated that the applicant has asked that this item be continued to the next meeting on May 20th. Motion was made by Commissioner Gifford to continue this item to May 20th. Ayes: Fuller, Tucker, Ashley, Selich, Gifford and Kranzley Noes: None Absent: None Abstain: Hoglund \ SUBJECT: Traffic Phasing Ordinance • Amendment No. 864 Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to allow the City Council to exempt from improvements intersections that meet criteria established in the ordinance, and to establish a threshold for traffic impacts that require circulation system improvements. Following a five minute recess, Chairperson Selich read the following procedures to the Traffic Phasing Ordinance Hearing: 0 13 INDEX Item No. 3 Variance No. 1228 Modification No. 4908 Item No. 4 A No. 864 City of Newport Beach Planning Commission Minutes May 6, 1999 INDEX The staff will present their report, which answers questions that were asked at the last meeting by the public and commissioners and present the major issues for Planning Commission discussion. Questions by the Planning Commission to staff will follow. 2. The City Attorney will address the changes made by the City Attorney's office to the proposed ordinance. Questions by the Planning Commission will follow. 3. The public hearing will be opened. The two main interest groups that participated in the City Council appointed TPO Working Group, SPON and BIA will be allowed to testify first. Since these two groups have spent over a year on this effort the 3- minute time limit on their testimony will be waived. Both groups have agreed to a format whereby a representative of each group will address 19 issues, on which there is disagreement. Each side will alternate in presenting their testimony on each issue, with SPON testifying first on issue No. 1. 4. After SPON and BIA complete their testimony the representatives of EDC and EQAC will be invited to present their testimony, subject to the 3- minute time limit. 5. Then the hearing will be opened to the general public with testimony limited to the 3- minute time limit. It is requested that the testimony not be repetitive of previous speakers. If you have no new information to present you may simply state that you agree with a previous speaker. 6. After the general public testimony is complete, BIA and SPON will be invited to make a 3- minute or less summary of their position. 7. The public hearing will be closed. Planning Commission discussion and further questions of staff will then commence. The Commission will then have the opportunity to poll a straw vote on the 19 SPON /BIA issues, or any new issue that comes about as a result of the evening proceedings or an issue that a Commissioner raises. 8. The Commission may or may not take a final vote on the ordinance tonight, depending on the length of the testimony and information or questions that arise tonight. If, at 11:00, it appears that the Commission will not complete its work this evening the Commission may decide to continue it over to the next regular meeting. Ms. Temple presented the staff report and noted that at the last hearing on this issue, a number of questions were asked of staff and that information has been prepared and delivered in the staff report. She then proceeded to highlight some key questions: i 14 • City of Newport Beach • Planning Commission Minutes May 6, 1999 He introduced Mr. Phil Kohn, City Attorney of Laguna Beach (in the audience) who is an acknowledged expert in inverse condemnation litigation. He has evaluated the TPO and has been presented with certain hypothetical fact situations that could occur in the future and he concurs that there is a significant risk of litigation under those circumstances. He is available to respond to questions. Also proposed is a provision to create an annexation exemption. If there was a project outside the City that the City Council would like to annex to the City, that section establishes a certain level of certainty as to how the TPO would apply to the project. Basically it would not apply to the project if approved by another jurisdiction and then annexed to the City unless the project proponents proposed an intensification of the project that would increase trips by 300 ADT or more. In the last few days, we have met with representatives from SPON and the BIA to discuss ways to narrow the differences of opinion over certain issues and as an outgrowth of those discussions, there were five additional changes proposed to the Ordinance as outlined in the staff report. Responses to questions: Commissioner Tucker: Q. The project will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection. - regarding standard of approval, if an intersection is performing at Level of Service C and trips are added to it but does not cause nor make worse an Unsatisfactory Level of Service is a contribution to an improvement required? A. Not unless the trips cause it to go to LOS D or worse. Q. You can have a series of developments that cause the intersection to degrade until it hits the point of D or worst, that series of projects would be exempt from the requirements of the TPO? A. They would not have any mitigation obligations pursuant to the TPO. Q. How is a feasible improvement determined? If an improvement is on the circulation element but Council rejects it, is that no longer a feasible improvement? A. As long as it is in the Circulation Element, the fact that the City Council chose at a particular point in time not to implement that particular improvement, would not change its feasibility. The definition is intended to allow for changes in the Circulation Element concurrently with approval of the project and identification of the feasible improvement as part of that process. This definition has been in the Ordinance for thirteen years. 16 INDEX /V' City of Newport Beach Planning Commission Minutes May 6, 1999 INDEX Q. Page 3, Paragraph c (i) does this have to do with those types of improvements where the proportionality rule would apply? The time and /or funding to complete is not roughly proportional to the impacts of project generated trips - are those specific identified improvements? A. They are identified in the course of the Traffic Study. Those improvements were necessary so that the project will not cause or make worst an unsatisfactory level of service. Commissioner Ashley: Q. How is money appropriated, what triggers fees and by what proportion? A. Mr. Edmonston noted the following. Identified for a number of intersections is a long range need for improvements. As time passes and the Traffic Model is updated to reflect the most current conditions those intersections change, and there is not always an immediate estimate of the new improvements that might be needed. There are some intersections where we have not identified improvements because of the scope needed in terms of the amount of right -of -way, etc. For example, in the airport area that we have not attempted to identify what it would take in terms of the improvement(s) and /or costs. We have made the reasonably doable improvements at many of the intersections in the past and the ones that are yet to be costed, typically are the ones that require considerable right -of -way acquisition. . There are two levels of fees. The one not in discussion tonight is the Fair Share Fee which every development pays and is intended to help build out the circulation system as we have identified it needs to be further constructed. The fee in conjunction with the Traffic Phasing Ordinance (TPO), has to do with the timing of identified improvements or, to the extent that through a traffic study an additional improvement is identified, the implementation of new improvements. Everybody from a single family dwelling on up pays a Fair Share fee. The additional TPO fee would really be a function of additional improvements or improvements that are needed perhaps sooner that are identified through the short-term traffic analysis. City Attorney Burnham noted that the TPO is geared towards the actual construction of improvements as conditions to project approval than it is to impose fees to fund construction of improvements. Commissioner Kranzley: Q. If the City Council has exempted Riverside and Coast Highway, and a development is built near that intersection, but two years later a new City Council decides they are going to widen Coast Highway. Have we collected TPO fees from that development? What happens there? A. If the intersection is declared exempt by the City Council it is not subject to ( 17 City of Newport Beach . Planning Commission Minutes May 6, 1999 1 fee related to the TPO. The Fair Share Ordinance would collect that project's fair share towards the unfunded cost to the Circulation Element improvements. Commissioner Gifford: Q. As I understand the response regarding monies, the improvement of the condition would cost money and the last person who tripped the LOS would pay the monies? A. Yes. Commissioner Tucker: Q. There is a definition and references to exempt intersections, but there is no section on exempt intersections. Why? A. Because it is in the Finding Section, that is the operational part of the Ordinance. Q. Any procedure for reversing exemptions? A. If the Council were to decide it wanted to make the circulation improvement, that would eliminate one of the criteria and the intersection would not remain an exempt intersection. Commissioner Fuller: Q. Inverse condemnation - There is agreement that a public agency will be liable in inverse if it adopts regulations that constitute a physical invasion or deprive the owner of all beneficial use of property. The issue of ripeness, is if difficult to prove? A. (by Mr. Kohn and Mr. Burnham) It is not difficult to prove. It is difficult to get to that stage where the court believes you have fulfilled the requirement. They want to make sure that whatever determination or regulation one may be challenging is final, official, conclusive and there are no other options available and all the remedies have been exhausted. A number of cases on the books have found just how many repeated applications you need to make before you can make a complaint that your efforts to make use of the property have been frustrated. It is a hurdle that many courts have established to avoid addressing these claims on their merits. You would have to file, as a property owner, at least one development application and pursue that application through all of the administrative remedies. A potential hurdle of a property owner would be whether that improvement was going to be made or not. At least, in the current situation, it would be fairly easy for the property owner to establish that fact. In order for a project do INDEX City of Newport Beach Planning Commission Minutes May b, 1999 INDEX to be exempt from the TPO under the ADT threshold, it would be at about a .10 FAR as opposed to a .50. Anything above that, assuming that project did trip the TPO, would carry the same mitigation requirement as a larger project. There is no differential if the impact is a little bit or a lot long as you cause or make worse that unsatisfactory level of service. Q. Is there a legal problem to ask that developer to pay a fee that is equal to what they would have paid had the exempt intersection improvement been made? A. Potentially, you would have the ability to impose that fee in conjunction with a zone change, a general plan amendment or a development agreement. But if that property owner was able to avoid all of those, we would have a great difficulty imposing a fee because there would be no statutory basis. We could possibly impose it under CEQA as well. There is a requirement that city's use development fees within a given period of time. If the funds are not used for that specified purpose within 3 to 5 years, then you have to give the money back. Q. If the ICU increases beyond LOS D at an exempt intersection, is the only alternative to down -zone the property that increased that density to make sure that the condition wasn't worsened? A. Mr. Kohn answered that the problematic nature of the ordinance, as presently written is the City is put in a position of being forced to deny a project because of the impacts it will create, notwithstanding the fact that the General Plan has specified improvements, presumably has expressed a willingness to implement them, but the City does not act to implement them. At the same time the applicant is willing to either contribute its fair share towards the cost of constructing those improvements or perhaps constructing new improvements themselves, but yet the City says the only option is to deny this application and to force the applicant to come back with something less than otherwise would be permitted, through no fault or wrong doing on the part of the property owner. Because of the perceived difficulty in approving a project because of the constraints imposed by the TPO, it is felt the only recourse is to in terms, down zone the property to avoid the harsh results that the TPO as it exists now, would cause, you would not escape the problem. You have not eliminated the potential of legal vulnerability of the City's position. The potential for the TPO to create liability for inverse condemnation, or a taking of property, is not as clear as the issue of proportionality and there is considerable disagreement on the subject among lawyers who practice in that area. The California Supreme Court and the United States Supreme Court have ruled that regulations may constitute a taking depending on numerous factors. When you see a negative treatment in order to protect against a particular harm that should be born by the public generally, in this case, down zoning one parcel to minimize congestion 19 r. /.. City of Newport Beach Planning Commission Minutes May 6, 1999 at an intersection which according to the Circulation Element should be uncongested to begin with. Public comment was opened. Issue No. 1 - General Plan Update Claudia Owen - SPON representative: • Optimum approach for the Traffic Phasing and responsible development in the City would be a thorough and complete study and update of the General Plan. • Address the existing TPO to resolve legal and operational problems. The TPO would be in good perspective and could then wait for a new General Plan. • An updated General Plan would have us all come to grips with what we want Newport Beach to be. We want streets to be free of congestion but to do that we need to look at the possibility to widen boulevards, widen intersections or perhaps construct overpasses or underpasses. She suggested to look at what Newport Beach is to be and all citizens need to come to grips with the General Plan. At Commission inquiry, she stated that the General Plan Amendment needs to be done before any other changes. The various factors that comprise the City as it is and the differences from the 1988 General Plan need to be addressed through this update. Lynn Fishalt, Deputy Director of the Building Industry Association: • Thanked staff and Planning Commission for allowing BIA to participate in this process. Philip Bettencourt, BIA introduced Mike Erickson of Robert Fein, William Frost Associates and Tony Petros of LSA. • TPO needs to be updated now. • There is neither work - program, nor budget to update the General Plan now and it should not impede the necessary reforms being considered to the TPO. Issue No. 2 - Establish Exempt Intersection Criteria. Tony Petros, LSA representing BIA: Referenced a graphic which depicted the exempt intersections that are expected and accepted to operate at a greater than Level Service D 20 INDEX City of Newport Beach Planning Commission Minutes May 6, 1999 INDEX conditions. They are primarily located in the airport area and on Mariner's Mile. The only two exceptions are Jamboree and Santa Barbara and Newport at Hospital. The vast majority of the street system is under the control of the TPO. The mandates and the requirements of the TPO are still in place. The majority of the residential areas within the City are insulated from these exempt or unsatisfactory intersections. There are focus areas in the airport and along Mariners Mile and regardless of the outcome, it maintains the integrity of the circulation system, the TPO and the residential quality of life. Q. Commissioner Gifford asked for clarification regarding the "peninsula as being isolated from the affects of exempt intersections ". A. He explained that the corridors of Newport Boulevard and Balboa Boulevard would still be subject to the TPO. There have been no signalized intersections along the peninsula that have been identified in the long range horizon as being unsatisfactory. Those are limited primarily to the east /west corridors of PCH. The General Plan has accepted the ingress and egress to the peninsula as already being at those LOS. Commissioner Kranzley clarified that the Ordinance as proposed, does not contain specific exempt intersections. It only introduces the concept of exempt intersections. The City Council will make the decisions of what is an exempt intersection. Q. Commissioner Tucker asked what exempt intersections are designated? A. City Attorney Bob Burnham answered that in Appendix B are listed six potential exempt intersections. At a public hearing, the City Council would make a determination if it wanted to declare any intersection to be exempt so that each project would be evaluated on the same criteria. Mr. Vandersloot, SPON representative: As a resident of the Newport Heights area, he noted his area is directly impacted by what happens at Mariner's Mile and Coast Highway. He asked to reject the notion of the exempt intersections at Riverside /Coast Highway and other Coast Highway intersections. The first reason would be you would not collect fees if the intersection were exempt. You are accepting the fact that intersections will get worse and no one will be paying for any improvements. The second reason, it doesn't make sense to treat the worst intersections the same as the best intersections. If you exempt an intersection, you will treat it as if there is nothing wrong with it. You have to try to relieve the congested intersections. The third reason is you try to correct the problem. By allowing the exempt intersections, you will make it worst. He concluded, asking the Planning Commission to deny the concept of exempt intersection. 21 City of Newport Beach • Planning Commission Minutes May 6, 1999 Commissioner Ashley noted that the whole concept of the exempt intersection is that it is not feasible to pour money into a particular intersection for improvements so that additional traffic can be absorbed. If you didn't exempt the intersection when you recognize its limitations of being expanded or improved, it would mean that our TPO as it applies to those intersections, would be subject to litigation and we would lose. Mr. Burnham noted that the concept of exempt intersection is designed to avoid one of those bad facts situations like treating the worst intersection like the best intersection. The concept is these intersections would not be the worst if the City Council chose to implement improvements identified in the Circulation Element. If if chooses not to do so, the bad factual situation that we are trying to avoid is the denial of the project because of this intersection. Chairperson Selich noted that the Fair Share fee includes a cost to improvements to any intersection, exempt or not. Mr. Burnham stated that under the current TPO any project would have to make the improvements at the intersection if the project would cause or make worse unsatisfactory level of traffic service, or it would be denied. That would be the same result under the proposed TPO if you take out the concept of exempt intersections. The TPO could be overridden with the same number of votes that it takes to declare an intersection exempt by the City Council. Commissioner Tucker stated that this is a legal issue and is not within the purview of the Planning Commission. We should leave that to the City Council. Mr. Burnham emphasized that these are intersections that would be declared exempt only when the City Council has made a conscientious decision not to improve them, not to put them in the five year capitol improvement program. If is not the situation where you are exempting them because they would be improved at some time in the future, you are exempting them because a conscientious decision has been made not to improve them within the foreseeable planning and capitol improvement horizon. Commissioner Gifford stated that the Council is not telling the Planning Commission to create exempt intersections. There is a desire to avoid potential litigation over inverse condemnation issues. We have a situation where the General Plan and the desire to make improvements are in conflict and there are a number of ways it could potentially be addressed. This is one of them. Mr. Burnham stated that he is not telling the Planning Commission to adopt a . 22 INDEX yr City of Newport Beach Planning Commission Minutes • May 6, 1999 INDEX concept of intersections and to declare certain intersections exempt. What he is saying is that there is potential legal risk inherent in not doing so. We have tried to identify that risk and tried to develop a solution that does as little damage to the TPO as possible. The same vote is necessary to override the TPO as it is to declare an intersection exempt. Either way you will need six out of seven Council members or Planning Commissioners. The purpose of an exempt intersection concept was to level the playing field so that everybody that has property in the City would know what intersection improvements could or would be expected of them. Commissioner Gifford stated that we are focusing mostly on developers paying the City, but, taking the range of possible solutions, one other way would be for the City to condemn certain properties and pay fair value for them. Commissioner Fuller asked if there was any mechanism to collect for an exempt intersection and was told there is none. Commissioner Tucker stated that the concept of an exempt intersection is one way out of a difficult situation that the City Attorney believes could arise. It is up to the City Council at the point to decide whether there will actually be any exempt intersections. All we are voting on tonight is whether or not that concept will exist, not whether or not there will be any exempt • intersections. Mr. Burnham stated that he has just received a letter from Mr. Williams, lawyer for SPON and that he will be asked to confer on this issue. Issue No. 3 - Provisions for trip generation reductions. Nancy Skinner, SPON representative. • At the time the TPO was being developed, the Air Quality Management was pushing for air quality improvements and this was put in to reduce the car trips and encourage the use of other means such as carpools, bicycle, etc. • SPON is asking to eliminate the ability to incorporate trip reductions because of the way it is set up. If one is able to use the trip reduction credits then it is permanently implemented. There is also the possibility of abuse of that credit and it might circumvent the goal of the TPO. Philip Bettencourt, BIA representative. • Supports staff position, which is to have Traffic Manager review /approve reductions, proposed by applicant. 23 City of Newport Beach • Planning Commission Minutes May 6, 1999 Issue No. 4 - Use of mixed criteria versus exclusive use of peak hour standards. Philip Bettencourt, BIA representative. • Supports staff recommendation which is to have three criteria (peak hour, peak 2 % hour traffic pe(od) used for various situations. Howard Hall, SPON representative. A resident of the Balboa Peninsula since 1945 stated that the residential area has been changed from R -3 to R -1 merely to improve the traffic on the peninsula. The residences have been impacted already by various urban planning within the City. SPON's position is that if should be standardized on 300 ADT and that there should not be a combination of ADT and peak hours. The peak hour trips are about 1 /10 the average daily trips. A conversion from the ADT to a peak hour would result in office buildings growth to 43 %. Issue No. 5 - Source of trip distribution for each project. . Mr. Beek, SPON representative: Need to get accurate data. What is being used now, is rough estimating. He then proceeded to explain about an "overlay" method that is currently being done in the City of San Clemente. The traffic model is run with the project in to find out what the trip distribution is. They can get the model to print out for all the intersections of interest and how many trips are ending at the traffic analysis zone in which the project is located. They then take the total trip generation for that zone and compare the trip generation for the project. The calculations are then based on the comparisons. He proceeded to explain the pros and cons. Mr. Bob Burnham stated that there was general consensus of the working group that the administrative guidelines adopted by council policy be incorporated in the ordinance. When we went back and looked at those guidelines, they needed to be updated and we did so. Looking at the Section 4 Initial Traffic Study Procedures, it notes that preliminary determination shall be consistent with NBTAM and decisions on trip distribution patterns for previous projects of similar size and location. This will be part of the ordinance and is consistent with what Mr. Beek is requesting. If is an attempt to try to standardize the trip distribution decisions that the Traffic Engineer has made in the past with input from trip distribution assumptions in the traffic analysis model. At Commission inquiry, Mr. Beek stated that this does not determine the 0 24 INDEX City of Newport Beach Planning Commission Minutes . May 6, 1999 INDEX distribution. He agreed that with these administrative guidelines some point will be reached. Mr. Bettencourt, BIA representative stated his satisfaction with the City Attorney's representation. Issue No. 6 - Formula for calculating contribution to improvement by project that is too small to pay full cost (Section 15.40.030A.1.c (iii) Mr. Michael Erickson, BIA representative: The City should use the standard methodology used throughout the county. What is being done is that the share of the project is compared to the share of the future traffic. This should be how it is done from a technical standpoint. From the developer's point of view, if the developer is going to share in the cost of the improvement that helps the project as proposed as well as the future and will share in the future trips. Simply divide the project share by what is going to be added in the future as projected. It's simple, consistent and fair. Mr. Beek, SPON representative: Mr. Beek disagreed with the previous speaker giving an example. You have . an intersection and have made an improvement that costs $100,000. The effect of the improvement is to increase the capacity by 100 peak hour car trips. You have spent $100,000 for a benefit of 100 trips. The project itself is only going to put 25 trips into that intersection. It has only used a quarter of what it did to improve it. It seems fair and reasonable to only pay a quarter of $100,000. You did 100 trips worth of goods you only use 25 of them, you pay only a quarter of the cost. The formula for your share, take the cost of the improvement then multiply by the trips you put in and divide by the increase of capacity. There has been no definition given of the increase of capacity and I have proposed a definition which is a technical point that needs to be discussed at a later time. We propose the term effective capacity and how and why it works. Capacity has to be matched to the traffic that wants to go through an intersection. We propose the term effective capacity to indicate how much you're improving the capacity. Commissioner Kranzley asked Mr. Erickson about the example just proposed. Mr. Erickson stated that you should have a share of everything, all the capacity from improvements that are going to occur. Again, what we are proposing takes away the concern about phasing. There is going to be some series of improvements, to be measured against and some series of projected trips to be added and are all adding to the different phases of improvement, 25 /-i„ City of Newport Beach • Planning Commission Minutes May 6, 1999 0 be it one, two, three, etc. So what is your share as the project that added trips. So you are really paying your share of the improvements that are mitigating what will happen in the future as you build out the area. There are so many variables, it is hard to deal with. Mr. Burnham stated for clarification that the TPO looks one year post occupancy of the project. It is a short term time frame, where some of the scenarios you are talking about are over time and sound more like improvements we would make using Fare Share Fees. One concern the working group had was the formula the BIA is proposing is really the same formula we used to calculate Fair Share fees. The TPO is the ordinance that looks at the shorter term impacts and as such it is thought that the SPON proposal in this regard was more appropriate given the short -term focus of the TPO. The TPO looks to a specific project and a specific improvement designed to mitigate that project. We will be able to come up with a definition of the effective enhancement of capacity resulting from an improvement that will solve Mr. Beek's remaining problem. Commissioner Kranzley stated that since it looks like we are not going to get to vote on this issue tonight, proposed the Planning Commission should continue this item to the next Planning Commission meeting. Chairperson Selich stated that we would take issue no. 7 and at that point will continue the public hearing to the next meeting on the May 20th, Mr. Burnham stated he would not be available to attend that next meeting. Chairperson Selich following a discussion of staff and Commisssioners' availability, suggested that this item be continued to a special meeting on the 17th at 6:00 p.m. Issue No. 7 - Definition of Critical Intersection. Mr. McGert, SPON representative: The definition has to be locked into concrete and not allowed to be changed by City Council deciding something is exempt which they can then reverse after a project has been approved and then avoid the whole problem of having to turn down projects. The definition is that it is to have a signal light, over 90% ICU and that a project will increases it over 90% by its impact. At Commission inquiry, he stated that critical intersections have a specific definition. If the City Council cares to, they can take any critical intersection and decide that it is exempt. Therefore, it does not follow under this policy. 26 INDEX ,/I- City of Newport Beach Planning Commission Minutes May 6, 1999 INDEX Mr. Burnham explained that the criteria for exempt intersections based on current information, would allow six of the 59 intersections to be deemed exempt. It would not allow the other 53 to be exempt and one of the criteria for exempt intersection, it would be an intersection that could function better than LOS D with a General Plan improvement. The City has for 20 years, used the same 59 intersections as the basis for all traffic studies and as a basis for determining consistency between the Land Use and the Circulation Element. They are important, significant intersections that anyone would expect to see modified in any way. All of the critical intersections are signalized, but not all signalized intersections are critical. Mr. Erickson, BIA representative. Exempt intersections are not exempt from CEQA, not exempt from the disclosure of an impact, not exempt from identifying mitigation. There is still full and complete disclosure. The issue is the definition of critical intersection. BIA supports staff recommendation. Motion was made by Commissioner Kranzley to continue the public hearing on this item to a special meeting at 6:00 p.m. on Monday, May 17th. Ayes: Fuller, Tucker, Ashley, Selich, Gifford, Kranzley . Noes: None Absent: Hoglund Abstain: None SUBJECT ,_..,... - Procedural.._... o-__•____- --•---- -- .-..... Rules fr Study Sessions Item No. 5 Procedure Rules for Study Sessions Discussion Only Proposed language amending Section VI, Time of Meetings of the Planning Commission's Procedural Rules. Commissioner Gifford proposed that the new language to this section was correct with the exception of a`'word that was missed. She suggested that a sentence in VI. C Time of Meetings, should read,'The time of the Study Session shall be announced and set at least at the preceding meeting ". Motion was made by Commissioner Gifford including this edited verbiage. Ayes: Fuller, Tucker, Ashley, Selich, Gifford, Kranzley Noes: None Absent: Hoglund Abstain: None ~" 27 r /„ City of Newport Beach . Planning Commission Minutes April 8, 1999 Motion was made by Commissioner Kranzley to adopt Resolution No. 1499 recommending approval of Amendment 887 to the City Council. Ayes: Ashley, Selich, Gifford, Kranzley and Hoglund Noes: None Absent: Fuller, Tucker Abstain: None SUBJECT: Planning Commission Appointments to the Newport Center Planning Study Group Chairperson Selich stated this is a subcommittee to address all the issues that have been presented to the City Council at the joint meeting. He appointed himself, Commissioners Kranzley and Gifford to work with staff.. They will then be coming back to the Planning Commission with a recommendation as to the approach on those items. . SUBJECT: Traffic Phasing Ordinance • Amendment No. 864 Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to allow the City Council to exempt from improvements intersections that meet criteria established in the ordinance, and to establish a threshold for traffic impacts that require circulation system improvements. Chairperson Selich noted that with the absence of Bob Burnham and Sharon Wood that the procedure for this item will be for the Commission to ask their questions of staff; then testimony from the public which will be answered at the next public meeting on this item. Commission inquiries or concerns: • Map showing intersections at or above Classifications D - to be prepared. • Build out under present ordinance identifying those intersections in excess of Classification D - as of a Traffic Analysis Model dated 1996. • Feasibility Study for improvements of deficient intersections with related costs. • Need to widen Jamboree Road from Ford Road northerly funding source. • 1996 Austin Faust report - traffic engineering firm who has been working with the City for past 15 years. • Traffic Model report to include the San Joaquin toll road and will it . diminish the LOS areas by the airport and Eastbluff. How often is the 24 INDEX Item No. 7 Approved Item No. 8 A 864 City of Newport Beach Planning Commission Minutes April 8, 1999 INDEX Traffic Model updated to be consistent with the County model and how expensive would it be to update on a yearly basis? • In next staff report would like to have an index that clarifies where the documents are coming from and include a color copy of the flow charts previously presented by staff. Public comment was opened. Alan Beek, 2007 Highland noted the following: • Comprehensive update of Circulation and Land Use Elements are connected and needed for future projections. • Need study using best information for projections on 2010, 2020, 2030, 2040 and 2050 for traffic to be handled at LOS D assuming no change from existing Land Use Element. • Need model to show the streets and intersections as they are now at LOS D. • Need model to show the expansion with final projections with related costs and revenue and cost of system to serve the traffic. • Phased land use and circulation elements that show the development and streets in 2010, 2020, 2030, 2040 and 2050. • No one can claim entitlements when the circulation system won't be able to serve them until 30 years from now. • He agrees with the wording of the proportional fee calculation. Phil Arst spoke as Chairman of the Community Association Alliance of Corona del Mar noted the following with a slide presentation • Concerned with outdated information. • Use existing TPO while developing a General Plan update. • Include crucial definitions. • Satisfy legal requirement. • Taking without compensation. • Does not mandate mitigation of unsatisfactory traffic - can put money into a fund, but there is no guarantee that money will ever be used to mitigate the impacted intersection while existing TPO requires the intersection to be mitigated. • Development Agreements - remove dispensation for DA. • Need to address proportionality, Mr. Steve Poppo, 452 62nd Street spoke as President of Newport Shores Community Association. He noted: • TPO does not seem to address the Newport Banning Ranch nor the down coast development in Newport Coast. • Critical to include these developments. 25 51)/1- City of Newport Beach Planning Commission Minutes April 8, 1999 INDEX Mr. Philip Bettencourt, 110 Newport Center Drive noted the current proposed ordinance is too timid. Proportionality needs some additional language. Will forward strike out wording to Commission for their consideration. Mr. Mike Erickson, representing the Chamber of Commerce noted the following: • The TPO should allow for an override or inclusion of intersections on "Exempt Intersection List" based on a 5/7 super majority vote rather than the currently proposed 6/7 semi - unanimous vote. • Inclusion of the "rough proportionality' concept is a key revision to the TPO. • Getting money into the City, even do it doesn't give a full particular improvement, can become seed money. Exempt intersections - is a decision that should be a policy issue. • Level of sensitivity - should be established at 0.01 • Consistency in planning criteria consistent capacity criteria for both long -term and short-term criteria deal with gaps. Barry Eaton, 727 Belles spoke representing EQAC, the Eastbluff Homeowners' Association, and himself. • Administrative guidelines specifically say that all projects within the sphere of influence of Newport Beach are to be included in the modeling. Agrees with Mr. Arst, it is clear from the language that under the proposed TPO, the mitigation money does not have to be applied to the affected intersection. Weight shall be given if that occurs. Do you really need exempt intersections at all? • The total trips generated by Committed Projects shall be reduced by 20% to account for the interaction of Committed Project trips should be looked at. Representing Environmental Quality Advisory Committee noted: • Importance of a General Plan update. • 4/5 vote should be retained in the ordinance. • Existing TPO fees should be separate from any other fees (Fair Share). • Development Agreement says can merge monies - the developer gets a guaranteed commitment (entitlement) the City gets some concessions, that's the basic trade off. Incentives given to developers should not cost the City money in traffic mitigation fees. Representing the Eastbluff Homeowners Association he noted: • Concern with exempt intersections, have a list of candidate list that does not include the Jamboree intersections as there is going to be substantial growth. • Change to intersections going over an ICU of 1.0 • Refer to Master Plan Highway Program not the Capital Improvement Program. 26 �J City of Newport Beach Planning Commission Minutes April 8, 1999 Public comment was closed. Commissioner Ashley thanks the speakers for their input. Motion was made by Commissioner Kranzley to continue this item to May 6th. Ayes: Fuller, Ashley, Selich, Gifford, Kranzley and Hoglund Noes: None Absent: Tucker Abstain: None ADDITIONAL BUSINESS a.) ` -City Council Follow -up - Oral report by the Assistant City Manager regarding City Council actions related to planning - None. b.) Oral report from Planning Commission's representative to the Economic Development Committee- None. C.) Matters that a Pldnping Commissioner would like staff to report on at a subsequent meeting• None. d.) Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report - None. e.) Requests for excused absences - Comq'ssionerFuller excused from April 22nd meeting. rte.. 4` V e, ADJOURNMENT: The meeting was adjourned at 10:10 p.rn±-�_ RICHARD FULLER, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 27 INDEX ! Additional Business Adjournment 0 0 5,11V 4 �gW PORr O p C9S�FORN`* CITY OF NEWPORT REACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT moo NEWPORT BOULEVARD, P.O. Box 168 NEWPORT BEACH, CA 92658 -895 (949) 644-5200; EAX (949) 644-5250 Hearing Date: May 6, 1999 Agenda Item No.: 4 Staff Person: Patricia L. Temple (949) 644 -3200 REPORT TO THE PLANNING COMMISSION SUPPLEMENTAL REPORT SUBJECT: Traffic Phasing Ordinance Automatic SUMMARY: Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to allow the City Council to exempt from improvements intersections that meet criteria established in the ordinance, and to establish a threshold for traffic impacts that require circulation system improvements. ACTION: Adopt Resolution No. , recommending approval of'Amendment No 864 regarding the Traffic Phasing Ordinance to the City Council. Background On April 8, 1999, the Planning Commission opened this public hearing on the proposed revisions to the Traffic Phasing Ordinance. The Commission asked questions of staff, requested information for this staff report, and took testimony from the public. This report is intended to supplement the prior report, and provides the additional information requested by the public and Planning Commissioners. The report also provides a guide to the key changes proposed in the Ordinance, to assist the deliberations of the Planning Commission. Discussion Additional information attached to this report: Maps showing intersection levels of service Copies of the TPO flow charts prepared by the City Attorney Response to questions: Q: Can the City charge the Fair Share fee and also a pro -rata share for a feasible intersection improvement, if the intersection is exempt? R: Staff believes that paying the fair share fee is justifiable, because that fee is for the overall build- out of the circulation system master plan. Requesting an impact mitigation fee for an improvement which the City has declared it will not make in the foreseeable future may not be appropriate, because it is reasonable for a developer, if imposed a mitigation requirement, to expect to receive the benefits intended to be achieved by the requirement. Q: When the City looks at future build -out, do we identify which intersections are at an unacceptable level of service? A: Yes. That information is contained in the General Plan Circulation Element. Additionally, the staff prepares updated information in association with all General Plan Amendment requests. Q: Can the City do feasibility studies for improvements to deficient intersections, with related costs? A: The City has done this, and included the information in the Circulation Element. However, the information in the Circulation Element is dated and incomplete. The 1996 version of the Traffic Model identifies more and different intersections that require mitigation. Additionally, not all intersections have improvements identified. More detailed improvement studies for specific intersections are done in association with project approval through the TPO. Q: Can the City devise improvements to make all intersections operate at acceptable levels? A: Theoretically, yes. Realistically, no. Improvements to achieve Level of Service D at all intersections would require the construction of grade separated intersections, or the taking of land and buildings to obtain the necessary right -of -way in some areas of the City. Q: Was the traffic model prepared by Austin - Foust? A: Yes. Q: What is the effect of the toll road on the traffic model, and what effect has the toll road had on the level of service in the airport area? A: The toll road and its capacity is included in the traffic model. It has not significantly helped traffic in the airport area because the traffic generated in that area is still on the surface streets, as it seeks to access the toll road and I -405. The benefit to the City of Newport Beach has been a reduction of diversion traffic on Marguerite Avenue, San Miguel Road and San Joaquin Hills Road as capacity was freed -up on Coast Highway in Corona del Mar. Q: How often do we update the traffic model? A: Approximately every 4 to 5 years. Q: What would be the cost to update the model on a yearly basis? Traffic Phasing Ordinance May 6, 1999 Page 2 LI A: It costs from $20,000 to $30,000 to update the model. However, since the model update process • includes updating the land use data of the surrounding communities, a yearly update would only be useful if those cities were willing to spend the time to update their data yearly as well. Q: Is the development in the Banning Ranch accounted for in the City's traffic model? A: Yes. In fact, our database includes a project which is larger than the current request. Q: Why is there a 20% discount of trips from the "committed projects list ?" A: This accounts for the interaction between projects. For instance, a tenant in a new office building in Newport Center may patronize businesses in Corona del Mar Plaza. Without the discount, those trips would be counted twice. The percentage was established using the traffic model. Major Issue Areas for Discussion and Vote Through the public review process, certain features of the existing and proposed TPO changes have generated discussion and/or concern. These are briefly highlighted below, with the first three being the principal revisions to the ordinance. 1. Exempt Intersections: Many parties have expressed some concern with the exempt intersection concept. There are two general positions most commonly expressed. One is that exempt intersections, if adopted by the City Council, will acknowledge that some intersections should not be improved, even though they will be congested in the future, because the improvements themselves would have adverse impacts. The other position voiced in this regard is that the City should do improvements if they are feasible, even if the improvements are controversial. 2. Rounding/Significance Threshold: Some parties have voiced a concern relative to the establishment of the .005 ICU increase before a traffic improvement is required (the original draft ordinance had .01 ICU). Suggested solutions include increasing the number of decimal places included in the ICU calculation to 4 places. In staffs opinion, this suggestion exacerbates the problem associated with mathematical rounding, since that suggestion could result in a mandated traffic improvement when the project's contribution is 1 /1000"' of 1% of an intersection's capacity. To put the .005 value into perspective, it equates to an increase of 8 cars an hour per lane, or 1 car every 7 %= minutes. 3. Override Vote: In Newport Beach, the vote to override the provisions of the Traffic Phasing Ordinance is 4/51hs, or six of seven members eligible to vote. Some parties have noted that this level of majority is higher than needed to amend the TPO, adopt the General Plan, or increase taxes. However, the community has long considered compliance with the TPO to be a key consideration in the approval of new development, so the TPO Committee continues to support maintenance of the existing override provisions. Traffic Phasing Ordinance May 6, 1999 Page 3 I,l2 4. General Plan Update: Some have expressed the opinion that the City should conduct a comprehensive General Plan Update before amending the TPO. This was discussed and . rejected by the City Council at their goal setting session in January. However, key commercial districts are going to be studied, including Newport Center and the Airport Area. Staff would point out, however, that the amendments to the TPO are considered by staff to be the minimum necessary to correct legal and operational problems with the current ordinance, and are needed whether amendments to the General Plan are considered or not. 5. Airport Area Level of Service: The City's Economic Development Committee (EDC) and the Building Industry Association (BIA) requested the establishment of a Level of Service E in the Airport Area. It is the opinion of staff that a change to level of service goal within the TPO would constitute a significant change, which would require an EIR. It would be more appropriate to consider this in association with an Airport Area General Plan study. 6. Traffic Study Requirement: The City's EDC and the BIA also requested that the threshold for projects being subject to the TPO be raised to 500 daily trips, from the current 300. The 300 trip threshold was established in 1986, and was based upon a review of all traffic studies approved by that date. No project which generated fewer than 300 daily trips had ever been required to make an improvement, so that threshold was deemed appropriate (the prior threshold was 130 trips). Since traffic impact is one of the most critical issues in Newport Beach, staff continues to support the 300 daily threshold for traffic studies. 7. Development Agreements: Both the existing and proposed ordinances contain language which • allow the City Council to waive traffic mitigation and fee requirements if a project has a development agreement. It should be noted, however, that there is no requirement that the Council do so, it just allows the City to do so if it so chooses. Some commentators have requested removal of the opportunity. Development Agreements are usually done for larger projects, where there are benefits accruing to both parties. They are a form of negotiated development. Development Agreements present unique opportunities for the City to achieve significant public benefits (such as parks and open space), which it might not be able to achieve in a normal review process. Therefore, staff is of the opinion that this provision should remain, so that the City has as many tools available to it when such negotiations occur. 8. Security and Accounting for TPO Fees: Several suggestions have been made regarding how the funds collected as a result of the TPO should be accounted for, and that this should be established in the Ordinance. Staff would point out in this regard, that the City's Administrative Services Department provides complete financial services to the City, including fund accounting and auditing. They have several accounts for the various sources that fund our capital projects, including road improvement. For instance, there is a special account that holds Fair Share Fees, as well as one for the CIOSA traffic contributions. According to the Transportation and Development Services Manager, it would be standard practice to set up a separate fund for the TPO Fees. Staff is of the opinion that this level of detail is not necessary to include in the Ordinance. . Traffic Phasing Ordinance May 6, 1999 Page 4 • 9. Adjustments to Wording: Many requests for adjustments to wording and definitions have been received. The City Attorney will be preparing a follow -up memorandum discussing each. This memo will be delivered to the Planning Commission on Tuesday. Environmental Determination The proposed project has been reviewed pursuant to the California Environmental Quality Act, and it has been determined that the project is categorically exempt under Class 5, Minor Changes in Land Use Regulations. Prepared and submitted by: PATRICIA L. TEMPLE Planning Director Attachments: 1. Intersection Exhibits 2. TPO flow Charts 3. Draft Resolution 4. Package from Alan Beek 5. Correspondence from Phil Arst, Community Association Alliance 6. Correspondence from the BIA 7. Miscellaneous Correspondence • Cassidy • North Bluff Community Association • Dwan • Albert • Windl Traffic Phasing Ordinance May 6, 1999 Page 5 • CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD, P.O. Box 1768 NEWPORT BEACH, CA 92658 -8915 (949) 644 -3200; FAX (949) 644 -3250 Hearing Date: April 8, 1999 Agenda Item No.: 8 Staff Person: Patricia L. Temple (949) 644 -3200 Council Review: Automatic REPORT TO THE PLANNING COMMISSION SUBJECT: Traffic Phasing Ordinance SUMMARY: Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to allow the City Council to exempt from improvements intersections that meet criteria established in the ordinance, and to establish a threshold for traffic impacts that require circulation system improvements. ACTION: Conduct public hearing. After discussion, provide staff with further direction on additional information necessary to respond to the questions of Commissioners and the public, and continue the hearing to April 22, 1999. Background • In May 1997, the Planning Commission commenced consideration of a comprehensive update of and revisions to the City's General Plan Circulation Element and the Traffic Phasing Ordinance. The changes considered at that time would have, if adopted, substantially altered the City's approach in establishing the correlation between the development limits provided for in the Land Use Element and the circulation system Master Plan. The amendments, developed pursuant to specific guidelines adopted by the City Council, included a number of concepts not contained in the City's existing planning documents. These included establishment of Level of Service (LOS) E for the Airport Area, the use of intersection averaging in determining circulation system adequacy, focusing project traffic analysis on short and mid term impacts (5 and 10 year horizons), and prioritizing traffic improvements within the 5 and 10 year capital improvement program adopted by the City Council. After two public hearings by the Planning Commission, it became apparent that the comprehensive changes were beyond what was acceptable to the community, and also required more detailed environmental analysis. As a result, the City Council created an Ad Hoc Committee to make recommendations on appropriate changes to the Traffic Phasing Ordinance (TPO). This Committee, which included City Council members, Planning Commissioners, representatives from the Chamber of Commerce, Building Industry Association (BIA) and Stop Polluting Our Newport (SPON), and staff, started meeting in February of 1998. The Committee quickly established that the primary goal in considering revisions to the TPO would be to address legal and operational • 1.11 problems with the Ordinance only. The revisions now under consideration have been developed in keeping with that goal. Public Review is Since any changes to the TPO are of interest to many segments of the community, the City undertook a public review and comment program prior to the formal public hearing process which commences with this hearing. This included the development of a PowerPoint presentation to describe both the functions of the existing Ordinance, and the changes under consideration. The Ordinance revisions and staff presentation were taken to the Environmental Quality Advisory Committee (EQAC), the Economic Development Committee (EDC), the Newport Harbor Chamber of Commerce, the transportation committee of the BIA, and Speak Up Newport (SUN). Specific comments and recommendations of the EQAC and EDC have been made and are described below. Additionally, written questions and comments were received from SPON, the Community Association Alliance (CAA), and the BIA, which are attached to this report. Recommendations of EOAC In making its recommendation to the Planning Commission and City Council on the proposed changes to the TPO, EQAC reiterated its position that a General Plan Update should be a high priority for the City. They also recommended the following changes to the draft Ordinance: 1. If exempt intersections are necessary, they should require a 4/5'h, vote of the City Council to be so designated. This recommendation has been incorporated into the draft Ordinance now under • consideration. 2. The Ordinance be clarified to establish that funding under the TPO is in addition to, and separate from, required funding under the Fair Share Ordinance. This recommendation has been incorporated into the draft Ordinance in the Proportionality section (15.40.075 A 3), which states that the TPO is intended to address short term impacts of projects, while Chapter 15.38 (Fair Share) is intended to address overall development impacts on the circulation system. Recommendations of EDC At their meeting of February 12, 1999, the EDC made the following recommendations: 1. The EDC supports the establishment of LOS E for the Airport Area, including a 15% margin for error, similar to the City of Irvine. 2. The EDC recommends that the majority vote for override of the TPO be reduced to 5/7"s, 3. The EDC recommends that the original concept of intersection averaging be dropped in lieu of exempt intersections, but that if exempt intersections are not approved, a limited use of intersection averaging should be adopted. . Traffic Phasing Ordinance April 8, 1999 Page 2 t! 4. The EDC supported the concept of exempt intersections, but recommended that different terminology be considered, such as "special circumstances intersections" or "exception • intersections." 5. The EDC recommended that the threshold for the traffic study requirement be raised to 500 average daily trips from the current 300 trips. The EDC further discussed the TPO at its March 24, 1999 meeting, and further stated that it endorses the Traffic Phasing Ordinance amendments even if the recommendations of the EDC are not incorporated into the Ordinance. Analysis The proposed changes to the TPO fall into two categories, those intended to address legal issues, and those to address operational issues. The key changes are summarized below, and the Municipal Code reference is in parentheses: Legal (Please refer to the attached memorandum from the Office of the City Attorney for a complete discussion of legal issues concerning the existing TPO): • "Rough Proportionality" — The revisions to the ordinance establish that a mitigation requirement imposed on any project pursuant to the TPO must be roughly proportional to the project's impact (15.40.075). This addresses the legal issue raised in the Dolan decision of the United States Supreme Court, which allows for the imposition of mitigation measures only to the extent of the project's contribution to the impact. "Exempt Intersections" — The draft Ordinance includes the possibility that the City Council may identify intersections as exempt from improvement requirements, if the intersection meets certain criteria. In order to be exempt, an intersection must have a feasible improvement identified which, if constructed, would result in an acceptable level of service; the improvement is not included in the 5 year capital improvement program; the improvement could adversely affect residents or businesses in the vicinity of the improvement; and the City Council, by a 4/5" vote, establishes the intersection as exempt. Currently, there are only six intersections which meet the first two criteria, making them eligible for consideration as exempt (the list is attached to this report). The.effect of this change is that the City Council can still approve a project, without requiring an improvement identified in the Circulation Element, which it does not want to implement (15.40.040 B). This will address the legal issue which confronted the City of Laguna Beach in the Diamond - Crestview decision. Operational: • "Critical Intersections " — The draft Ordinance defines critical intersections (that is, those subject to TPO analysis) as those identified in the General Plan Circulation Element. The current Ordinance does not actually identify which intersections are to be analyzed, but states that a project cannot cause or make worse an unsatisfactory level of service on any `major,' `primary- Traffic Phasing ordinance April 8, 1999 Page 3 1. I modified,' or `primary' street. The problem with the current language is that the arterial roadways identified represent only three of the seven arterial roadway categories defined in the Circulation Element. Additionally, the proposed critical intersection definition is consistent • with the actual implementation of the Ordinance over the last 20 years. Since the intersections analyzed in the Circulation Element represent those which govern the overall function of the circulation system, and are those included in the City's traffic model, it is the opinion of staff that the use of the list is the most appropriate way to determine which intersections are subject to TPO analysis (15.40.040 A). The proposed Ordinance also provides that the City Traffic Engineer may require analysis of additional intersections when deemed appropriate. "Significance threshold" — While not named as such, the draft Ordinance does establish a new threshold for the significance of traffic impacts. This concept is utilized to address what has been characterized as "the rounding problem." Currently, Intersection Capacity Utilization (ICU) calculations are carried to three decimal places, and rounded to two decimal places. As a result, an increase of as little as 1 /10" of 1% could cause a project to make a major improvement. For example, if the existing ICU is .914, and a project added .001 to the ICU, it would round up to .92, triggering the requirement to make an improvement. In the revised Ordinance, a project would have to add at least .005 (or % of I%) to the ICU before a traffic improvement would be required. This would reduce the possibility that a project generating a very low number of peak hour trips would incur an improvement requirement (15.40.030 B 2 b). The establishment of significance thresholds is common for communities throughout Orange County. Typically, these thresholds are established at either 1% or 2 %. Thresholds of significance are considered appropriate because of the nature of ICU calculations generally. ICU calculations are based upon street traffic counts, which can vary by as much as 15% from day to day. Additionally, baseline assumptions of lane capacity and other factors do not account for the unique characteristics of intersections (such as lane width and geometries) which affect the actual capacity of intersections to handle traffic. As a result, ICU calculations are considered relatively reliable to predict project impacts (the delta, or change), but are not as reliable to establish actual intersection function, particularly when estimated for future conditions. Therefore, it is the opinion of staff that this provision represents an acceptable change to the City's operational procedures, while still preserving a reasonably low threshold for mitigation to preserve acceptable traffic service levels in the City. Other changes: While not described in detail in this report, the draft TPO includes many changes in the organization, format, and other non - operative parts of the chapter. These include refinements to the findings and objectives to better describe the reasons the City is adopting the ordinance, an expanded list of definitions consistent with the long term administration of the existing code, and the incorporation of the Traffic Study procedures into the Municipal Code. Traffic Phasing Ordinance April 8, 1999 Page 4 /l /: 0 J 0 Implications of Changes This chart illustrates how the changes will affect traffic studies prepared for projects. Traffic Phasing Ordinance April 8, 1999 Page 5 %O/I, Under With Comments Current Proposed Project causes: TPO Changes AD 1 300 or less Not subject to of su Iect to o c ange TPO TPO ADT greater TPO analysis I PO analysis No change than 300 required required -Fe-ak hour traffic PFoject passes rolect passes No change less than I% at TPO, no further TPO, no further an intersection analysis required analysis required Peak our traffic U analysis 1 sis ana y o change 1 % or greater at required required an intersection ICU is less than Project passes Project passes o c ange .90, or does not TPO TPO increase -TCU goes over entt y a entt y a xishng .90, or increases feasible feasible • A.001 (1/10 of 1 %)increase in an ICU already improvement improvement if the ICU can cause a rounding up over .90 the ICU of the ICU, and thus require an increases by improvement .005 New TPO: • A.005 (1/2 of 1 %) increase in the ICU must occur to require an -Fe-asible improvement Improvement Improvement Existing 'FPO: improvement required required if • Improvement made at time of identified roughly development proportional; New TPO: contribution • Consistent with "rough required if not proportionality" standard proportional; • Improvement may be made after improvement not development is completed required if • Exempt intersections may not be intersection is improved exempt No improvement Project is Projectis No change available at the denied, or a denied, or a intersection 4 /5ths override 4 /5ths override vote is required vote is required Traffic Phasing Ordinance April 8, 1999 Page 5 %O/I, Comparison of Project Approvals Under the Existing and Proposed Ordinances As requested by the Planning Commission, the Traffic Engineering Division of the Public Works Department compared the outcome of two recent traffic studies, under the provision of the Existing and proposed Traffic Phasing Ordinances (see memorandum, attached). The projects selected were the Burger King project on Jamboree Road (representing a smaller project) and Corona del Mar Plaza (representinga larger project). This study revealed that the mitigation requirements resulting from both analyses would be the same under both Ordinances. However, a modest reduction in the Burger King Project (1 to 2 cars), would have reduced that project's impact below the .005 significance threshold for the intersection of MacArthur and Jamboree Road. If the project was reduced slightly, mitigation would not have been required of this project, if the new ordinance was in effect. Items Most Discussed or Disaizreed With Through the public review process, certain features of the proposed changes have generated discussion and /or concern. These are briefly highlighted below: Exempt Intersections: Many parties have expressed some concern with the exempt intersection concept. There are two general positions most commonly expressed. One is that exempt intersections, if adopted by the City Council, will acknowledge that some intersections will not be improved and, therefore, will be congested in the future. This can be considered as a degradation of traffic level of service in the community. The other position voiced in this regard is that the City should do improvements if they are feasible, even if the improvements are controversial. 2. Rounding/Significance Threshold: Some parties have voiced a concern relative to the establishment of the .005 ICU increase before a traffic improvement is required. Suggested solutions include increasing the number of decimal places included in the ICU calculation to 4 places. In staffs opinion, this suggestion exacerbates the problem associated with mathematical rounding, since that suggestion could result in a mandated traffic improvement when the project's contribution is 1 /1000Y' of 1 % of an intersection's capacity. 3. Override Vote: In Newport Beach, the vote to override the provisions of the Traffic Phasing Ordinance is 4/5`h', or six of seven members eligible to vote. Some parties have noted that this level of majority is higher than needed to amend the TPO, adopt the General Plan, or increase taxes. However, the community has long considered compliance with the TPO to be a key consideration in the approval of new development, so the TPO Committee continues to support maintenance of the existing override provisions. Prepared and submitted by: PATRICIA L. TEMPLE Planning Director Traffic Phasing ordinance April 8, 1999 Page 6 Attachments: 1. Draft Traffic Phasing Ordinance 2. Traffic Study Procedures 3. Memorandum from City Attorney 4. Memorandum from Transportation and Development Services Manager 5. List of Candidate Exempt Intersections 6. EQAC Minutes 7. EDC Minutes and Motion 8. Correspondence from SPON, CAA and BIA 9. Existing TPO • 0 Traffic Phasing Ordinance April 8, 1999 Page 7 (; ll2 .. 0 Z O IL a d C9 (1) m C CCA A a) E cl O CL W O IL H p) c .N X W a) co co N ca m 0 c c c c c c c N CD.— a) b C O m �a m a m a pia m a 2 *0 a >a) �- FN a) W N N a c a -0 o m r E C E r E � C CL U 0 0 m E Q d (n a U cAFa) � U cA Q U U) a) c0 p a Oyn -0 m m CO y a) CL O C C 0 0 c d g CO °a C m m C F :E cc Co a .-. a) (7 O U d C)mc U) a) mom' Via) m -C C O. O O E Z O E cL tz` C E U'p Q U N.O O CL U L Qc Da) LU tnQ n U)�'3 E d ("D Y >,N O O ca ` > .` a) a) m m m a) .O Q C p .= 0 L\ CO r- m a) C i 0 0 0 w— a) N an'— S L a) N N N > a = c O c a _° d N ao a) r- N ` E w O N F W = �. W �mc a) a d 3 E 0 U 0 o c CIS U m C - 7 > a) _ o) — m 0' O a) a) E0o3�n,aUia Q U) CL 2 U E -0 E 5-o L N L E C U 'U Q m j X 0) 0) c C 0- a) U C U a) 'O c CO O p p «. C m m 7 O 0 0 O N> — CL Z U I E a c a Z U 2 Z m 0 a a N C N c 0 U C 3 U O _a) Co > O p a E N a a a) N O 'N co N .Q a) OL a) > O- -0 7 0 a) CO N 0 _ 0-0 r-C m m n-0 �^ CL m m CO O1 ° Na LO o 0 �0 E g d a) CCL: r U°1'2- �3E0 Q a)� o5E a)> * =>a 0 0 CO U 0 o cc ac U ca n °-0 QE Z Z F��n H> Hm °°) �Emmm6 O) c 0 N i O p C CO E - cts .na C a`) C dL > 4 0 ma) E N C N m m E m a) rn ca m d N O ° C O C m o o CL a0"� m CL Q OL N U_ U E -Fu 2 E - � `p _0 N •- a) C (D a) U X p -p a) d o U m r m C d a) Q C W O N N a) N X_ 7 N b U a) C L.. .2 0 0 O a _N U 0 0 E >-2 0 p` .2 _m a) " o U) j� �. -0 N N U O cn 'D U Cl O 0 O C O a O :.a a) i 0 a) U C 7 U ,� C Q CL is (n 7 CL W C CL cn N 5 (n N LL U D CIS r r N C*) 4 Ln (O G� S z X Q vii I } U) ca CIS \> // / / \ 3 0 0 FA \ \� cn /�_ _ _ \ cn = Ca -- 2k )C U E cE A§ ek 0 2 / \ \/{ kt /§ \ 20 /E2 z§ 3§ �i \ bE _ 22 �® CO } /_® .- & � \ / \\ §k L/ \ \)f( LO ,tee &§ =a )-E Ee{2§ ƒ(m / § ci < :S I (2 { f a) _ ® - ®0 _ /o§ ` LO k k cc \ ƒ7{ _ ® 0 _§ 7ae2f3 ^ i\) \ - - - f}f_0 as \: \ \� \\ Cc \ (D 0" 22 E =o =o.� $ «\ \ C) d% /t\/ G5 & Z22 Mn Q s /�) - \ ±//&} \�& \0Eac \760EL, k .2 /a)() & - r- 22/ \{\ \ IL _ \= ' _� 22 2�t!) /{ \( 2 / \ \� /\ f�§f o /\» , §m§7 §o 6 #§ #/ G« 32\\t CL }m k/ - ) m ZZ 72/ \ / � a) E cc _ t4 \�\E _ _ \/ k/ k) /ƒ\ \ <L) 0 0 FA \ \� cn § � § ) ca £\ ƒi 0 / / ( cn 2 � / \ / / CIS G 7 f c / . j cc - \\)k m- f{ } \ \ -7& 7) 7222} \b 7E5, &E |&(D0) /2 LL ao #[ 2[( ƒ§& ] E e m r- / [ =/ &) 2§ - : c\ _ ms \/ /# rz \ \ }0 -a 0.- §o :/ LL Elo0Et 7CL0 cE z CL z a) (D �= ®�kf) CL e eeeee " -" 0 \ \d {k�k L'r �� CL =0 -0 eo -��2,0 co S2 _ -o �o, 2U)9 �_ : ege /B ;£R CD CIS E { §Q , 2) \; \§± ,{«�§�m: - § =u° o o =a= o= = E cL ® �o:E --c :3 )§\�)!k (00 L) C7 —m o_0 ) -so a) Lu5 0 :e k . _// k{ _ § /. \ / / \/ \ 0 z z c «e= z 2/ E : E - [ƒ/ _ - c: �k 2 )§ �E ca 0 0) -- � °_ {( !» f \3 /{ \ _ �2. \/k F- Ee /) /if cli / \ / / R Z O CL U) m d N (1) (o c . rn = rn d E r) C6 O a w_ O a O) c .0 x w a1 7 N N ca L O E a) >, m a) > L T� NN mmy a) a) tm u 0a3�ca= CO N N > 'O a) U ) w aN ) a) 'O CO CO C a N a) U O i iao� O C v a -O m a tx E E U ) OC ) E a O o o O () O O N ' mory . a a— � � m y CmrC) a ❑C > �CCD a2� W _ 2' E 2' E �� E E -Q E m m tnM -0'a )n � m a) CYl a a) C m a O a). —�L m c9 T (o O a � a 0 ca U) ai d„ O _ c N a o)o)a N da) 0 (DLOa>@ C N C a O CIS > 7 a) y N N E U C (Q a) g o o d 0-0 C C m odd o d OI Y3E > Q — L) C7 J N � O d) O1 m :3 a) O O c a) r 7§ U i1 O m 7 Y N C C � a) N U m y m N O> C N Q N > C d U O l0 O-O O Z v° D m J N -Q L O d (D )Eaoi a) m d d mmCa O d C ci m a a1 N O cc N _ 0 O C U m a) N cn O N a) C) > m N d O oca )n0- o O CL v° � —1 O d U m C m� a U a) O 'O O N �ZCy a) N E c O `oa xm W - 30 'a d 0 > �d a)> a� c-mo -O O C 'O N '` C U> O C C d Z6 R m (1) m O (1) N Q a) N E C) > Q m U 0 a N FLL H C C.�JH IL Q a7 r 1� r 0 1 r 0 c� 2 X �r W N V) I] CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY May 5, 1999 TO: Chairman & Members of the Planning Commission FROM: Robert H. Burnham, City Attorney RE: Traffic Phasing Ordinance (TPO) Revisions Clarification of Legal Issues Discussion of Technical Modifications A. LEGAL ISSUES 1. Introduction The Planning Commission has asked this office for clarification of the legal issues that, in part, prompted the proposed amendments to the TPO. There are two primary legal issues — rough proportionality and inverse condemnation. The BIA/Chamber believes there also is a secondary issue — consistency between the TPO and the Circulation Element. 2. Rough Propotionality There is general agreement that the courts require conditions imposed on projects to be related and "roughly proportional' to the impacts created by the project. We have proposed the addition of Section 15.40.075 as the way to ensure that conditions imposed pursuant to the TPO satisfy this requirement. This provision 'overlays" the TPO to eliminate the potential for a lawsuit that would invalidate the entire ordinance and allows conditions to be adjusted on a project by project basis to maximize mitigation without violating decisional law. 3. Inverse Condemnation The potential for the TPO to create liability for inverse condemnation, or a "taking of property ", is not as clear as the issue of proportionality and there is considerable disagreement on the subject among lawyers who practice in that area. There is agreement that a public agency will be liable in inverse if it adopts regulations that . constitute a physical invasion or deprive the owner of all beneficial use of property. The 01 TPO does not involve any physical invasion and the 300 ADT threshold will permit some economic use of all parcels. However, a public agency may be liable in inverse for regulations that allow some economic use. The California Supreme Court and the United States Supreme Court have ruled that regulations may constitute a taking depending on numerous factors. These factors include the extent of the regulation's impact on the owner's "reasonable investment backed expectations" and the extent to which it singles out one property owner to bear a burden that should be bome by the public as a whole. In a recent case, the California Supreme Court listed ten factors to consider in analyzing a "partial takings" claim but cautioned that the list was "not exhaustive" and that factors should be not be applied "mechanically, but... as appropriate to the facts of the case." In summary, inverse condemnation litigation is fact specific and an arena where courts tend to closely scrutinize regulations or governmental action that appear to result in unfair or inequitable treatment of property owners. The concept of "exempt intersections" was developed to minimize or eliminate the potential for an inverse claim based on the application of the TPO to the owner of a large undeveloped parcel whose project was denied based on impacts at an intersection that would not exist if the City chose to make improvements identified in the Circulation Element. In such a case the reduction in entitlement could be significant (80,000 square feet assuming a 5 acre parcel) and a court could determine the burden of avoiding possible congestion fell unfairly on that owner. Phil Kohn, the City Attorney of Laguna Beach, an inverse condemnation expert, and the principal attorney in the Ambrose case, has reviewed the TPO and agrees that there is potential inverse condemnation liability in the absence of a concept similar to exempt intersections. Mr. Kohn will be available to respond to questions at the May 6'" hearing. 4. General Plan Consistency BIA/Chamber has argued that the service level standard in the TPO (LOS D - .90 ICU) is inconsistent with the Circulation Element which predicts ICU's in excess of .90 at certain intersections (primarily the Airport area) assuming build -out. Ordinances must be consistent with the General Plan and we believe the TPO satisfies this standard because it focuses on the short -term impacts of specific projects rather than the condition of our roadway system assuming maximum permitted development. B. POSSIBLE MODIFICATIONS This office prepared a revised draft of the TPO (05/03/99) in an effort to address technical issues, clarify wording and resolve differences of opinion among interested parties including SPON and the BIA/Chamber. We apologize for the delay in forwarding the revisions to the Planning Commission but we were unable ,to meet with BIA and SPON until early this week. The following is a summary of the proposed modifications that have at least some substance and our understanding of the positions of SPON and the BIA. 2 . 1. Section 15.40.030 A.1.b.(ii) and 15.40.030 A.2.d.(ii) The proposed modifications would give greater weight to improvements that mitigate potentially congested intersections when balancing project impacts and benefits in these two Sections. SPON and BIA believes the modifications improve the TPO but SPON still opposes the concept of allowing projects to be approved by making other improvements when there is no "feasible improvement" at an impacted intersection. 2. Section 15.40.030 B.2. Staff has proposed an exemption for projects that do not increase an ICU at any critical intersection by more than .005. We are proposing to delete a current exemption for projects that don't increase trips by more than 1 % on any leg of an intersection in favor of the threshold based on ICU. SPON and BIA support the use of an ICU increase as the appropriate threshold for the exemption but disagree over the amount of the increase. SPON recommends .0025 ICU and BIA recommends .01. 3. Section 15.40.030 B.3. This section has been revised to clarify the terms and conditions of the so- called annexation exemption. The purpose of the exemption is to give developers of property outside of the City some certainty about the application of the TPO to their project and remove a potential hurdle to annexation if the City Council wanted to incorporate the area. SPON opposes the concept and BIA supports it. 4. Section 15.40.040 A. We are proposing a minor amendment to the definition of Critical Intersection to include intersections that the Traffic Manager has added to the Traffic Study pursuant to 15.40.050 B.1. SPON and BIA agree with the modification. 5. Section 15.40.040 We have added a definition for Peak Hour to provided consistency in terminology (we currently use peak hour, peak traffic period and peak 2 % hour traffic period) and to focus the analysis of impacts on the one hour period when traffic is heaviest. SPON and BIA soport the modification. ROBERT H. BURNHAM . City Attorney V.V Chapter 15.40 TRAFFIC PHASING ORDINANCE SECTIONS: 15.40.010 Findings. 15.40.020 Objectives. 15.40.030 Standards for Approval /Compliance /Exemptions. 15.40.035 o^FPrri� -1P Expiration. 15.40.040 Definitions. 15.40.050 Procedures. 15.40.060 Hearings /Notice. 15.40.070 Appeal /Review. 15.40.075 Proportionality. 15.40.080 Severability. 15.40.010 Findings. A. The phasing of development with circulation system improvements to accommodate Project generated traffic is important to maintaining the high quality of the residential and commercial neighborhoods in Newport Beach; B. While some development may be important to the continued vitality of the local economy, the City should continue to utilize growth management techniques, such as requiring mitigation of traffic impacts by Project proponents, to ensure the circulation system functions as planned; C. Circulation system improvements should not alter the character of neighborhoods or result in the construction of streets and highways which expand the capacity of the roadway system beyond levels proposed in the Circulation Element; D. This Chapter is consistent with the authority of a public entity to ensure Project proponents make or fund improvements that increase the capacity of the circulation system to accommodate Project generated traffic. 15.40.020 Objectives. The City Council has adopted this Chapter to achieve the following objectives: A. To provide a uniform method of analyzing and evaluating the traffic • impacts of Projects that generate a substantial number of average TPOrev05034-899 1 �/4 daily trips and /or trips during the morning or evening peak hour traffic periods; . B. To identify the specific and short-term impacts of Project traffic as well as Circulation System Improvements that will accommodate Project traffic and ensure that development is phased with identified circulation system improvements; 9 C. To ensure Project proponents, as conditions of Approval pursuant to this Chapter, make or fund Circulation System Improvements that mitigate the specific impacts of Project traffic on Critical Intersections at or near the time the Project is ready for occupancy; D. To provide a mechanism for ensuring that a Project proponent's cost of complying with traffic related conditions of Project approval is roughly proportional to Project impacts; and E. To coordinate development - related Circulation System Improvements with other ordinances, plans policies, programs and resolutions of the City of Newport Beach, 15.40.030 Standards for Compliance /Approval /Exemptions. A. Standards for Approval. Unless a Project is exempt as provided in Subsection B, no building, grading or related permit shall be issued for any Project until the Project has been approved pursuant to this Chapter (Approved_ or, in appropriate cases. Date of Approval). A Project shall be Approved only if the Planning Commission, or the City Council on review or appeal, finds that the Traffic Study has been prepared in compliance with Appendix A and that: rl TPOrev05034999 Construction of the Project will be completed within sixty (60) months of project approval; and a. The Project will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection (excluding any Exempt Intersection); OR b. The Project proponent is required to construct or fund Circulation System Improvements such that: (i) The Project will not cause or make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection (excluding any Exempt Intersection) for which there is a Feasible Improvement; and 2 V5- (ii) The benefits to traffic circulation resulting from Circulation System Improvements constructed or funded by the Project proponent outweigh • the adverse impacts of Project traffic on Critical Intersections (excluding any Exempt Intersection). In balancing impacts and benefits, Improvements that either mitigate impacts of Project traffic or improve other Critical Intersections operating. or proiected to operate, at or above 0.80 ICU shall be given greater weight than other Circulation System Improvements tmf is; and (iii) There is an overall improvement in Levels of Service at Critical Intersections (excluding any Exempt Intersection) because of Circulation System Improvements required or funded by the Project proponent; OR C. The Project complies with (1)(a) upon the completion of one or more Circulation System Improvements; and: (i) The time and /or funding - aaeae3f-necessary to complete the Improvement(s) is (are) not roughly proportional to the impacts of Project generated trips; and (ii) There is a strong likelihood the Improvement(s) will be completed within forty-eight (48) months from the date the Project and Traffic Study are considered by the Planning Commission, or City Council on review or appeal. This finding shall not be made unless, on or before the Dilate of Approval a conceptual plan for the4each3 Improvement has been prepared in sufficient detail to permit estimation separation of cost ^tee —and funding sources e #RiataTfor the Improvement(s);; the Improvement(s) is (are) consistent with the Circulation Element or appropriate amendments have been initiatedl and an account has been established to receive all funds and contributions necessary to construct . the Improvement(s); and TPOrev05034-999 3 V4. (iii) The Project proponent pays a fee to fund construction of the Improvement(s). The fee shall be calculated by multiplying the estimated cost of the Improvement(s) by a fraction equal to the number of Project generated trips at the Critical Intersection divided by the increase in capacity at that Critical Intersection attributable to f^^udr the Improvement. OR 2. The Project is a comprehensive phased land use development and circulation system improvement plan with construction of all phases not anticipated to be complete within sixty (60) months of Project approval and; a. The Project is subject to a development agreement which requires the construction of, or contributions to, Circulation System Improvements early in the development phasing program; and b. The Traffic Study contains sufficient data and analysis to determine if that portion of the Project reasonably expected to be constructed and ready for occupancy within sixty (60) months of Project approval satisfies the provisions of Subsections 1 a or 1 b; and C. The Land Use and Circulation Elements of the General Plan are not made inconsistent by the impact of Project generated trips (including Circulation System Improvements designed to mitigate the impacts of Project generated trips) when added to the trips resulting from development anticipated to occur within the City based on the Land Use Element of the General Plan and Zoning Ordinance; and d. The Project is required, during the sixty (60) month period immediately after approval, to construct Circulation System Improvement(s) such that: (i) An Unsatisfactory Level of Service will not be caused or made worse at any Critical Intersection (excluding any Exempt Intersectionl for which there is a Feasible Improvement; and (ii) The benefits to traffic circulation resulting from the Circulation System Improvements outweigh the increased traffic congestion at impacted Critical Intersections that were not improved. In balancing the benefits and the impacts TPOrev05034899 4 Improvements that mitigate either the impacts of Project traffic or improve other Critical Intersections operating or predicted to operate at or above 0.80 ICU shall be given greater weight than other Circulation System Improvements that aFe wAFelated '^ PFejeet tFaffiG; or (iii) There is an overall improvement in Levels of Service at impacted Critical Intersections during peak periods because of the Circulation System Improvements constructed or funded by the Project proponent; OR 3. The Planning Commission or City Council on review or appeal finds, by the affirmative vote of four - fifths of the members Eligible to Vote that this Chapter is inapplicable to the Project because the Project will result in benefits_— as tFip •~'l^^ Fed ^"^ ^^, that outweigh the Project's anticipated negative impact on the circulation system. B. Exemptions. The following Projects are exempt from the provisions of this Chapter: 1. Any Project that generates no more than three hundred (300) daily trips. This exception shall not apply to individual Projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty four (24) month period cumulatively generate more than 300 average daily trips; 2. Any Project that, after analysis of all potentially impacted Critical Intersections in accordance with Appendix A, increases the ICU at all Critical Intersections #+ps-by less than .005. sne- serer.; -t 3. Any Project which meets all of the following criteria: a. The Project would will -be constructed on property that is within the jurisdiction of the County of Orange or an adjacent city as of the effective date of this Ordinance; and . • TPOrev05034-899 5 Y /9 11 ha. The Project is subject to a vesting tentative or parcel map• development agreement, pre- annexation agreement and /or other siA'l;;F legal document ef that subject .n Subsen.•.nn (d) vests the right of the property owner to construct the Proiect in the Countv or adjacent city. GRlY the Goy; and c.4 --The property owner enters into a development agreement, pre- annexation agreement, or similar agreement with betoieeR the pFepeFty ewseF ^ °d the City of Newport Beach that; (i) establishes the average daily trips generated by the Project ( "baseline "), aAA- (ii) requires the property owner to comply with this Chapter prior to the issuance of any permit for development which would, in any twenty -four twelve (244 -2) month period, generate three hundred (300) average daily trips more than the baseline for the Proiect; and NO makes this Chapter applicable to the property immediately upon annexation and the issuance of the final certificate of occupancy for the entitlement vested in the Agreement and any additional entitlement approved pursuant to this Chapter d. The City Council determines prior to annexation, that the environmental document prepared for the Proiect fully complies with CEQA and the CEQA Guidelines. e. ne CIO i FepeFt Gtudy that evaluates the #RfAn shall RGt be ntFued as Fe9wiFiRg a PFejen4 P.nnnnnnt M n my stUdy 9Ferw+r9RFAeatal aRa:TSis —ff' the PFeje^ott TPOrev05034599 6 9/0 15.40.035 Expiration. A. The Planning Commission, or City Council on review or appeal, shall establish a specific date on which the Approval of the Project shall expire (Expiration Date). In no event shall the Expiration Dilate Gfe)EPiratiGR be less than twenty- four (24) months from the date of Approval or the earliest date of expiration of any other discretionary approval required by the Project. The initial Expiration Dilate of -e ifiat}e for Projects other than those described in Section 15.40.030 (A)(2) shall be no more than sixty (60) months from the Dilate of Approval unless subsequent approval is required from another public agency. In the event the Project requires approval from another public agency subsequent to Approval pursuant to this Chapter, the Dilate of Approval shall be the date of the action taken by the last public agency to consider the Project. Approval pursuant to this Chapter shall terminate on the Eexpiration Date a en the date ^^enifie' unless a building permit has been issued for the Project and construction has commenced pursuant to that permit prior to the Eexpiration Dilate or the Eexpiration Dilate has been extended pursuant to Subsection C. B. Any Project approved pursuant to this Chapter shall be considered a "Committed Project" until -the Expiration Date or until the final certificate of occupancy has been issued if construction has commenced on a portion of the Project., be GeRsWere ". All trips generated by each Committed Project shall be included in all subsequent Traffic Studies conducted pursuant to this Chapter as provided in URN GUGh aie Appendix A. C. The Planning Commission or City Council may, subsequent to the Dilate of Approval, extend the Expiration Dilate for any ea - which the AppFeval efa—Project, TPOrev05034-899 7 *If? D. The Planning Director and Traffic Manager shall, at least annually, monitor the progress of each Project to ensure compliance with this Chapter. 15.40.040 Definitions. The following terms used in this Chapter shall have the meaning indicated below: A. .. "Critical Intersection" shall mean those intersections identified in Appendix B Table IV of the QFeulatien €lement c'--Gf Section 15.40.050. B. "Exempt Intersection" shall mean any Critical Intersection that is predicted to function worse than LOS D by 2010 according to NBTAM and the City Council finds, by the affirmative vote of four - fifths of the members Eligible to Vote and at a noticed public hearing, that: 1. The Critical Intersection would function at or better than LOS D upon completion of Circulation System Improvement(s) (to the Critical Intersection and /or roadway link) identified in the Circulation Element; and 2. The Improvement(s) are not included in the then current Five Year Capital Improvement Program; and 3. The Circulation System Improvement(s) that would cause the Critical Intersection to function at or better than LOS D could adversely impact the residents or businesses in the immediate area; and 4. The Exempt Intersection is designated in Appendix B. An Exempt Intersection shall no longer be considered an Exempt Intersection upon Approval of a Traffic Study that concludes the intersection fails to meet any of the criteria in this Subsection. The impact of Project trips on any Exempt Intersection shall be evaluated in the Traffic Study for the Project. C. "Eligible to vote" shall mean all members lawfully holding office except those disqualified from voting due to a conflict of Interest. D. "Feasible Improvement' means a Circulation System Improvement contemplated by, or consistent with, the Circulation Element or any amendment(s) to the Circulation Element initiated and approved in conjunction with approval of the Project; • E. "ICU" means the intersection capacity utilization calculation computed in accordance with standard traffic engineering principles TPOrev05034-999 g y1r and the procedures outlined in Appendix A. F. "Level of Service" shall mean the letter assigned to a range of ICU's in accordance with Appendix A. G. "Circulation System Improvements" or `Improvements" shall mean a physical change to a Critical Intersection and /or a related roadway link that increases the capacity of the Critical Intersection or related roadway link. H. "Circulation Element" shall mean the Circulation Element of the General Plan of the City of Newport Beach as amended from time to time. "Project" shall mean °project" as defined in the California Environmental Quality Act (Public Resources Code 6 21000 et seci.), the CEQA Guidelines, and relevant decisional law without regard to whether any environmental document would be required. The term "Project" shall also mean any application for a building or grading permit for development that would generate more than three hundred (300) average daily trips unless specifically exempt pursuant to Section 15.40.030(B). J. "Traffic Manager" shall mean the person employed by the City and who occupies the position of Traffic and Development Services Manager or similar position. K. "Traffic Engineer" shall mean the traffic engineer retained by the City to prepare the Traffic Study. L. "Traffic Study" shall mean the study prepared by theTraffic Engineer in strict compliance with this Chapter including Appendix A. M. "Unsatisfactory Level of Service" shall mean a Level of Service at a Critical Intersection, which is worse than Level of Service "D" (.90 ICU), during any a.m. or p.m. peak hour period determined in accordance with standard traffic engineering practices. N. 111. — "NBTAM" means the most current City Council approved Ttraffic Maoodel for the City of Newport. O. "Peak Hour" or "Peak Hour Traffic Period" shall mean the one hour period between 7.00 a.m. and 9:00 a m (morning) and the one hour period between 4.00p m and 6.00 P.m. (evening) with the highest traffic volumes as determined by the biennial traffic counts required by Append ixA TPOrev05034899 9 i i 0 A2 14.40.050 Procedures. A. The Planning Commission shall determine compliance with this • Chapter based on the Traffic Study for the Project, information from staff and /or the Traffic Engineer, and the entire record of the proceedings conducted with regard to the Project. The Traffic Study shall be prepared in compliance with Appendix A. B. Subject to review by the Planning Commission, the Traffic Manager, in the exercise of his/her professional discretion, shall; 1. Direct the preparation of each Traffic Study by a Traffic Engineer retained by the City and determine those Critical Intersections (or other intersections if the impact of Project traffic on Critical Intersections may not be representative) that may be impacted by the proposed Project; 2. Ensure that each Traffic Study is prepared in compliance with the methodology described in Appendix A and independently evaluate the conclusions of the Traffic Engineer; 3. Make recommendations to the Planning Commission and /or City Council with respect to the criteria for evaluating trip reduction measures, the appropriate trip generation rates of . land uses and otherwise ensure that the Traffic Studies conducted pursuant to this Chapter reflect modern transportation engineering practice. C. Any finding or decision of the Planning Commission with respect to any Project that also requires discretionary action on the part of the City Council, such as an amendment to the General Plan or Zoning Ordinance, shall be deemed an advisory action. In such cases the City Council shall take any action required by this Chapter at the same date and time that the City Council considers the other discretionary approvals required by the Project. D. The application for any building, grading or other permit for any Project subject to this Chapter shall be approved, conditionally approved or denied within one year from the date on which the application is deemed complete. In the event action is not taken on an application within one year, the Project shall be deemed approved provided it is consistent with the General Plan and Zoning Ordinance of the City of Newport Beach. E. A fee as established by resolution of the City Council to defray the expenses of administering this Chapter shall accompany the application for a Traffic Study. The application for a Traffic Study shall be submitted in compliance with Appendix A. TPOrev05034-999 10 q/?I 15.40.60 Hearings /Notice. A. The Planning Commission, and the City Council on appeal or review, shall hold a public hearing on any Project pursuant to this Chapter. The public hearing on the Traffic Study may be consolidated with other hearings required by the proposed Project. The hearing shall be noticed in the manner provided in Section 20.91.030C of the Newport Beach Municipal Code or any successor provision. B. All findings required or provided for in this Chapter shall be in writing and supported by the weight of the evidence in the entire administrative record for the Project including the Traffic Study. 15.40.070 Appeal /Review. A. With respect to this Chapter, any Planning Commission decision on a Project shall be final unless there is an appeal by the Project proponent or any interested person. The appeal shall be initiated and conducted pursuant to the procedures set forth in Chapter 20.95 of the Newport Beach Municipal Code or any successor provision; B. The City Council shall have a right of review as specified in Chapter 20.95 of the Newport Beach Municipal Code or any successor provision; C. The City Council shall be subject to the same requirements as the Planning Commission relative to decisions and findings required by this Chapter. 15.40.075 Proportionality. A. In no event shall the Planning Commission or City Council on review or appeal: 1. Impose any traffic related condition or conditions on the Approval of a Project which would require the Project proponent to construct one or more Circulation System Improvement(s) if the total cost of traffic related conditions and /or Improvements is not roughly proportional to the impact of trips generated by the Project; or 2. Impose any traffic related condition or conditions on the Approval of a Project which would require the payment of fees or costs that are not roughly proportional to the impact . of trips generated by the Project. B. The provisions of this Chapter are intended to address the specific TPOrev05034-899 11 Vw L� i • and, in most cases, short term impacts of Project generated trips on Critical Intersections rather than the overall impact of Project traffic on the circulation system. Chapter 15.38 of the Newport Beach Municipal Code is intended to address the overall impact of development on the circulation system. Conditions or fees imposed pursuant to this Chapter shall be in addition to fees required pursuant to Chapter 15.38 except as otherwise provided in Chapter 15.38 or a development agreement approved pursuant to Chapter 15.45. C. The provisions of this Section shall not limit or restrict the authority of the Planning Commission, or City Council on review or appeal, to impose on any Project all feasible mitigation measures pursuant to the provisions of applicable law, including CEQA and the CEQA Guidelines. D. The provisions of this Section shall not require Approval of any Project if the Planning Commission, or City Council on review or appeal, is unable to make the findings required for Approval pursuant to this Chapter. E. The provisions of this Section shall not require Approval of any Project which the Planning Commission is authorized to deny or modify pursuant to any State law or City ordinance, resolution or plan. F. The provisions of this Section shall not limit or restrict the authority of the Planning Commission, or City Council on review or appeal, to impose conditions, fees, exaction or dedications on a Project pursuant to: 1. A development agreement; 2. A reimbursement agreement or any other agreement acceptable to the Project proponent; 3. The consent of the Project proponent; or 4. An amendment to the Land Use Element or Zoning Ordinance of the City of Newport Beach that is required for approval of the Project. 15.40.080 Severabililty. If all or a portion of any $section or Subsection eFpe4+9A of this Chapter is declared invalid, the remaining Sections and 9F- Subsections are to be considered valid. I TPOrev05034-999 12 ?lip 050399Draft APPENDIX A ADMINISTRATIVE PROCEDURES FOR IMPLEMENTING THE TRAFFIC PHASING ORDINANCE 1. General. These Administrative Procedures (Procedures) apply to any Project for which a Traffic Study is required by the Traffic Phasing Ordinance (TPO). 2. Application. a. The proponent of any Project subject to the TPO shall (i) file an application for a Traffic Study; (ii) pay the required fees and (iii) sign an agreement to pay all costs related to the Traffic Study. b. The application shall be accompanied by the following information: i. A complete description of the Project including the total I* amount of floor area to be constructed and the amount of floor area allocated to each proposed land use; ii. A Project site plan that depicts the location and intensity of proposed development, the location of points of ingress and egress, and the location of parking lots or structures; ill. Any proposed Project phasing; iv. Any trip reduction measure proposed by the Project proponent; V. Any information, study or report that supports any request by the Project proponent to use trip generation rates that differ from those used in the NBTAM or the most current version of the ITE Manual or the SANDAG Manual, if the Traffic Manager determines those rates are more appropriate for purposes of the Traffic Study; and vi. Any other information that, in the opinion of the Traffic Manager, is necessary to properly evaluate the traffic E M!, 050399Draft impacts of the Project or the Circulation System Improvements that could mitigate those traffic impacts. 3. Traffic Study Assumptions. a. The definitions in Section 15.40.040 of the Newport Beach Municipal Code shall be applicable to these Procedures. b. ICU calculations shall assume a lane capacity value of 1600 vehicles per hour of green (vphg) for both through and turn lanes. No factor for yellow time shall be included in the lane capacity assumptions. ICU calculations shall be made by calculating the volume to capacity ratios for each movement to three decimal places, and then adding the four critical movements to obtain an ICU with three decimal places. The increase in the ICU attributable to Project trios shall be calculated to three decimal places. The ICU shall then be rounded to two decimal places. For example. an ICU of .904 shall be rounded to .90 and an ICU of .905 shall be rounded to .91. A Critical Intersection shall not be considered • impacted by Project trips, and no mitigation shall be identified for or required of fe -a Project unless Project trips cause an increase of at least .005 ICU. the lGW by .095 9F FROM by PFgjeGt tFOPS. C. Circulation System Improvements may be included in the Traffic Study for a Project provided that the Traffic Manager determines: i. The Improvement will be completed no more than one year after completion of the Project or Project phase for which the Traffic Study is being performed; and ii. The Improvement is included in the Circulation Element of the General Plan, and is defined in sufficiently precise terms to allow the Traffic Engineer to conduct an ICU analysis; or iii. The design of the Improvement is consistent with standard Citv design criteria or has been approved by the City Council, or other public entity with jurisdiction over the Improvement, and is defined in sufficiently precise terms to allow the Traffic Engineer to conduct an ICU analysis. • A/ 1 7 050399Draft d. Traffic volumes shall be based on estimates of traffic volumes expected to exist one year after completion of the Project, or that portion of the Project for which the Traffic Study is being performed. The intent of this Subsection is to ensure use of the most accurate information to estimate traffic volumes one year after Project completion and to avoid duplication of trips. Traffic volume estimates shall be based on: Biennial field counts conducted for each Critical Intersection with counts taken on weekdays during the morning and evening peak traffic hems- periods (from 7:00 a.m. to 9:00 a.m. and from 4:00 p.m. to 6:00 a.m.) between February 1 and May 31 of each year; ii. Traffic generated by Committed Projects as determined in accordance with these Procedures iii. Projects reasonably expected to be complete within the one year after Project completion pe4ed -and which are located in the City of Newport Beach or its sphere of influence; iii. Increases in regional traffic anticipated to occur within the one year after Project completion pew as Projected in the NBTAM or other accepted sources of future Orange County traffic growth; and iv. Other information customarily used by Traffic Engineers to accurately estimate future traffic volumes. e. For purposes of the traffic analysis of Circulation System Improvements, 70% of the incremental increase in intersection capacity (based on a capacity of 1600 vphg for each full traffic lane) shall be utilized. Upon completion of any Circulation System Improvement, traffic volume counts shall be updated, and any additional available capacity may then be utilized in future Traffic Studies. Trip generation rates for the land uses contemplated by the Project shall be based on standard trip generation values utilized in NBTAM except as provided in this Subsection. The Traffic Engineer may, with the concurrence of the Traffic Manager, use trip del 050399Draft generation rates other than as specified in the NBTAM when NBTAM trip generation rates are based on limited information or study and there is a valid study of the trip generation rate of a similar land use that supports a different rate. g. The Traffic Engineer may, with the concurrence of the Traffic Manager, reduce trip generation rates for some or all of the land uses contemplated by the Project based on specific trip reduction measures when: L The Project proponent proposes in writing and prior to commencement of the Traffic Study, specific, permanent measures that will reduce Ppeak Hhour traffic generated by the Project; and ii. The Traffic Manager and Traffic Engineer, in the exercise of their best professional judgment, each determine that the proposed measure(s) will reduce Ppeak Hhour trips and the specific reduction that can reasonably be expected; and iii. The Project proponent provides the City with written assurance that the proposed trip generation reduction measure(s) will be permanently implemented. The Project proponent must consent to make permanent implementation of the measure a condition to the approval of the Project, and the measure must be made a condition of the Project by the Planning Commission or City Council. h. In determining the trips generated by the Project, credit shall be given for existing uses on the Project site. Credit shall be given based on the trip generation rates in the NBTAM. The Traffic Manager may, in the exercise of his/her professional judgment, authorize the use of trip generation rates in the ITE Manual, SANDAG Manual, or on the basis of actual site traffic counts.— In the event the property has not been used for any purpose feaseR-,-for a period of one (1) year prior to the filing of an application for a Traffic Study, credit shall be limited to trips generated by the last known land use that could be resumed with no discretionary approval. For any land use that is not active as of the date of the application for Traffic Study, the Project proponent shall have the burden of 0 Mn' 050399Draft !ill establishing that the use was in operation during the previous one (1) year period. i. In calculating traffic volumes, trips generated by Committed Projects shall be included subject to the following: i. All trips generated by each Committed Project or that Portion or phase of the Committed Project whose- Apff9ya} get expiFed aR r which no certificate of occupancy has been issued shall be included in all sabs�Traffic Studies conducted prior to the Expiration Date of that Committed Project; H. In the event a final certificate of occupancy has been issued for one or more phases of a Committed Project, all trips shall be included in subsequent Traffic Studies until completion of the field counts required by Subsection 3(d)(1). Subsequent to completion of the field counts, those trips generated by phases of the Committed Project that have received a final certificate of occupancy shall no longer be included in subsequent Traffic Studies. iii. The Traffic Manager and Planning Director shall maintain a list of Committed Projects and, at least annually, update the list to reflect new Approvals pursuant to the TPO as well as completion of all or phases of Committed Projects. iv. The total trips generated by Committed Projects shall be reduced by twenty percent (20 %) to account for the interaction of Committed Project trips. J. For purposes of Chapter 15.40 and these Procedures, the following Levels of Service ranges shall apply: A .00 - .60 ICU B .61 -.70 ICU C .71 -.80 ICU D .81 -.90 ICU E .91 — 1.00 ICU F Above 1.00 ICU Initial Traffic Study Procedures. a. The Traffic Manager shall retain a qualified Traffic Engineer pursuant to contract with the City to prepare a Traffic Study for the glad 050399Draft • Project in compliance with the TPO and the methodology specified in these Procedures. • b. The Traffic Manager shall advise the Traffic Engineer of the methodology and assumptions required by these Procedures and provide the Traffic Engineer with a copy of the TPO and these Procedures. C. The Traffic Manager, in consultation with the Traffic Engineer and in accordance with accepted traffic engineering standards and principles, shall identify, in general terms, which Critical Intersections may be affected by the proposed Project according to its size and geographic location. This preliminary determination shall be consistent with NBTAM and decisions on trip distribution patterns for previous Projects of similar size and location. The Traffic Engineer shall determine if Project generated trips will increase the ICU en- any -teg of any potentially impacted Critical Intersection by 0.005 W41- durino the morning or evening Peak Hour one year after Project completion, dal 9F e)(G ed one ;,eMeAt (1,04) ^F ho PFejeGted tFa#iG ^mimeo en that leg dwFi ng the morning e. In the event the Traffic Engineer determines that Project generated trips will not increase the ICU tFiPS ea- aRyleg-of any potentially impacted Critical Intersection by 0.005 during the morning or evening Peak Hour will one year after Project completion_ get dal er e)ESeed ene Pereent (1 °04) of the PFejeeted tFaffle Yelumes en that leg `he analysis will be terminated. In such event the Project shall be deemed to have no impact on, and no mitigation shall be identified or required for, that Critical Intersection. In the event no Critical Intersection is impacted by Project generated trips as specified in this Subsection, the Traffic Study and worksheet shall be submitted to the Planning Commission with a recommendation that the Project be determined exempt from the TPO. 5. Traffic Study Methodology. a. The Traffic Engineer, in preparing the Traffic Study, shall evaluate the trips generated from all Project land uses based on the �%D 050399Draft assumptions specified in Section 3 and the methodology specified in this Section. b. In the case of conversion of an existing structure to a more intense land use, the incremental increase differease —in tripg_a€€+e generated by the Project devele�shall be evaluated. In the event the uses within the existing structure changed during the preceding twelve (12) months, the differential shall be calculated on the basis of the rp for use or uses with the lowest iiig#est —trip generation rates according to the NBTAM (or ITE Manual or SANDAG Manual as appropriate). C. The following ICU calculations shall be performed for each Critical Intersection where, one year after Project completion, Project generated trips will increase the ICU of a Critical Intersection by at least 0.005 during the morning or evening Peak Hour. ea- aay-4eg-e€ the intersestien daring the a.m. OF p.m. 2.5 ;Peal ;:mss -per; 0 en that leg. The existing ICU; 0 ii. ii. The ICU, with Circulation System Improvements that will be in place within one year after Project completion, based on all projected traffic including regional traffic increases and trips generated by Committed Projects ; exiacluding Project generated trips, tFip generation MC-11-149-1`1 -XIA-GISUF86; and iii. The ICU in (ii) with Project generated trips: iv. The ICU in (ii) with Proiect generated trips and any trip reduction measures approved by the Traffic Manager V. The ICU in lii) with Proiect generated trips and an mitigation resulting from Improvements vi. The ICU in (v) with trip reduction measures approved by the Traffic Manager. Oil. ??i ,2-) 050399Draft d. The Traffic Study shall, for each Critical Intersection with an Unsatisfactory Level of Service (ICU of .918 or more) that has been caused or made worse by Project generated trips, identify each feasible Improvement that could mitigate some or all of the impacts of Project generated. The Traffic Study shall also determine the extent to which the Improvement provides additional capacity for Critical Movements at the Critical Intersection in excess of the Project generated trips. e. The Traffic Study shall, for each Improvement identified pursuant to Subsection d, estimate the cost of making the Improvement including the cost of property acquisition, design, and construction. The Traffic Engineer may perform the cost estimate or, with the approval of the Traffic Manager, retain a civil engineer or other qualified professional sens,iltant o prepare the cost estimates. f. The Traffic Study shall also provide the Planning Commission with any additional information relevant to the findings required by the TPO. 0 6. Staff Analysis a. The Traffic Engineer shall transmit a draft Traffic Study to the Traffic Manager for review, comment and correction. The Traffic Manager shall review the draft Traffic Study and submit corrections to the Traffic Engineer within 15 days after receipt. The Traffic Engineer shall make the corrections within ten (10) days of receipt and transmit the final Traffic Study to the Traffic Manager. b. The Traffic Manager shall transmit the final Traffic Study to the Planning Department for presentation to the Planning Commission. 7. Issuance of Permits. The City shall not issue building, grading or other permits for a Project until each Improvement that has been assumed to be in place for purposes of Project Approval, or is to be constructed or funded as a condition to Project Approval, satisfies the following criteria: a. The Improvement has been budgeted and committed for construction by or on behalf of the City; or X21 -).2 050399Draft b. The State, County or other governmental agency making the Improvement has accepted bids for the Project; or C. The Improvement is: (i) to be constructed by the Project proponent in conjunction with development of the Project or (ii) the Project proponent has guaranteed construction of the Improvement through the posting of bonds or other form of assurance, and (iii) the Improvement has been approved by the appropriate governmental jurisdictions. F:\cat\shared\Ordinance\TPO\TpoadminprocO3l999.doc u • � /3c L CITY OF NEWPORT BEACH CITY ATTORNEYS OFFICE April 2, 1999 TO: Chair and Members of the Planning Commission FROM: Robert H. Burnham, City Attorney RE: Proposed Amendments to the TPO Legal Issues This memo summarizes the two primary legal issues related to the TPO and briefly touches on two other legal issues that have been raised during the two years or more years that modifications to the TPO have been discussed. ROUGH PROPORTIONALITY In the 1990's, state and federal courts have ruled that development exactions must be "roughly proportional" to the impacts of the proposed project. According to the United States Supreme Court, the public entity seeking to impose a condition is required to make "some sort of individualized determination that the required condition is related both in nature and extent to the impact of the proposed development." (Dolan v. City of Tigard 512 U.S. 374). The existing TPO references the concept of "proportionality" only in one of the four findings for approval (15.40.030(A)(1)(c)), and that reference requires a determination that the cost of the improvement is "so disproportionate" to impacts that it would be "unreasonable" to condition approval on completion. Moreover, that same finding for approval requires a determination that the projects financial contribution "substantially outweighs" the impacts. This finding is inconsistent with the "rough proportionality" standard and the other three findings are equally inconsistent. INVERSE CONDEMNATION The existing TPO has the potential to give rise to an inverse condemnation cause of action, and a recent lawsuit involving Laguna Beach is helpful to understand the problem. The City of Laguna Beach had, for many years, advised the parcel owners in the Diamond Crestview area that their lots were not legal building sites (and refused to accept building permit applications) because the streets were not improved to applicable planning, zoning and subdivision standards. The City claimed the streets were private and they had no improvement obligation. The Court of Appeal decided the streets belonged to the City and that the City had a legal obligation to improve them to applicable standards. The City failed timely to submit improvement plans and the Court then ruled `' , Q.1aS the City had "taken" the parcels. The Court ultimately awarded the plaintiffs approximately $15,000,000 in damages based on the fair market value of the parcels. The Court of Appeal reversed the award but remanded and the case ultimately settled • with the plaintiffs receiving structural floor area concessions and a payment of $1,000,000. The Laguna Beach litigation and the result in other cases suggests that the City of Newport Beach may not be able to deny a project because of impacts that would not exist if the City were to construct a Circulation Element improvement contemplated by the General Plan. The potential for an adverse determination increases if the project proponent is either willing to make the improvement or at least willing to fund a portion of the project cost. Moreover, the Laguna Beach experience suggests that a court may be willing to order the City to either approve the project or make an improvement the City considers undesirable. A situation similar to that in Laguna Beach could develop with the intersections in Mariner's Mile (PCH /Riverside & PCH/Tustin). PCH is shown as a six lane arterial through Mariners Mile (very rough estimates of cost is $5,000,000) and the ICU's at the relevant intersections are better than LOS D if these improvements are made. There is some community opposition to these improvements and they are not contemplated in the current 5 Year Capital Improvement Program (CIP). Without these improvements, projects in a wide area of Newport Beach could "cause or make worse an unsatisfactory level of service." The TPO allows smaller projects to be approved if, among other things the proponent contributes to an improvement that will mitigate project traffic and will be constructed in 48 months. The current status of the CIP prevents project approval under these circumstances. In the event of litigation, the City could be liable for (1) the value of the property on which the project was to be constructed or (2) making the improvement and approving the project; and (3) in either case, an award of attorney fees. The concept of "exempt intersections" was developed to deal with this legal issue. The only intersections that could be declared exempt are those where the improvements are considered undesirable by the City Council and those improvements would cause the intersection to function better than LOS D. This portion of the memo has been reviewed with the City Attorney for Laguna Beach and he concurs with the assessment and conclusions. CONSISTENCY WITH GENERAL PLAN Some who have participated in the TPO amendment process have suggested that the service level standard (LOS D) is inconsistent with the Circulation Element. The Circulation Element does predict that certain intersections (most of which are in the airport area) would function worse than LOS D in 2010 assuming build -out of all General Plan and Zoning Ordinance "entitlement ". The "build -out" scenario has been included in the Circulation Element for consistency analysis and does not represent a likely outcome. 2 alai . While ordinances must be consistent with the General Plan, the TPO focuses on short - term impacts and is not necessarily at odds with the long -range Circulation Element predictions. INTERNAL INCONSISTENCY Many of the proposed changes to the current TPO address internal inconsistency. The most significant problem is the lack of consistency between definitions and the criteria for approvalldenial. The current TPO defines "critical intersection" as an intersection operating at an "unsatisfactory level of traffic service either prior to or as a result of a project ". However, this definition is not found anywhere else in the ordinance. The primary finding for approval actually refers to traffic service on "'major, 'primary modified' or 'primary' street but that definition does not reference intersections at all. Moreover, a literal reading of the major TPO test would preclude analysis of any intersection except those functioning at LOS D prior to or as a result of the project — substantially less analysis than has been conducted in the past 0 Ptobert H. Burnham City Attorney 0 3 MEMORANDUM March 18, 1999 TO: PLANNING DIRECTOR FROM: TRANSPORTATION & DEVELOPMENT SERVICES MANAGER SUBJECT: COMPARISON OF PROJECT APPROVALS UNDER THE EXISTING AND PROPOSED VERSIONS OF THE TRAFFIC PHASING ORDINANCE (TPO) I have completed the review of two projects previously approved by the City to determine if there would have been differences based upon using the currently proposed revisions to the TPO. The two projects that were analyzed were the Corona del Mar Plaza and the Burger King at the corner of Jamboree Boulevard and Birch Street. These were selected because they represent one large and . one small project as well as being located in the two areas of the City where most of the new development is occurring. The intersections that had an Intersection Capacity Utilization (ICU) near or greater than 0.90 were reviewed for the two projects. The Burger King traffic study analyzed 5 intersections of which two met the criterion to be re- evaluated under the proposed version of the TPO. The Corona del Mar Plaza traffic study examined 20 intersections and three of those were analyzed using the proposed criterion. As shown on the attached table, the intersections identified as requiring mitigation under the current TPO would be identical with those identified using the proposed criteria. For the Burger King project, however, a reduction of one or two cars would have reduced the impact at the Jamboree /MacArthur intersection below the new 0.005 threshold. Q4 • Ja § % (� a§ @§ /CL X \\ \\ 7/\ �\\ kb2 \R ) ) ) � ƒ CU C ))o / {\ cu ca C §0coc \- §\ �§\ ƒS} m §)I§ \\ ° #k \ / \g \ § e 7 { $ ƒ _ a § 0 \ ) 7 § 2 o t 5 A E a qlT ca / \ 0 C) ° = f E \ ) 2 m ° § ® (L $ ) a I> o CO C) (L § 2 ! , o @$ a a a 7/\ �\\ kb2 \R ) ) ) � k ) 0 6 / \ A ] ) ) ƒ ))o / {\ e = cis o —\ §0coc ƒ2\\j4 �§\ ƒS} §)I§ \\ k \ / / / 7 k ) 0 6 / \ A ] ) ) ( 7 \ k E E ƒ cu \ tm 0 \ cu \ ƒ e � k \ \ » Cco \ R \ \ / 7 ® ) ] E CL co $ ƒ _ a § 0 & E t 4// « + t§ m o t 5 A E a ( 7 \ k E E ƒ cu \ tm 0 \ cu \ CANDIDATE EXEMPT INTERSECTIONS • UNDER PROPOSED REVISIONS TO THE TRAFFIC PHASING ORDINANCE 0 0 The following intersections are projected to have an ICU of greater than 0.90 in the Long Range and would have a lower ICU except that the identified improvements are not scheduled in the current 5 year Capital Improvement Program: INTERSECTION 1. Newport BI and Hospital Rd 2. Coast Hwy and Riverside Dr 3. Coast Hwy and Tustin Ave 4. Coast Hwy and Dover Dr ICU w/ IMPROV A.M /P.M. 0.77/0.79 0.73/0.86 0.78/0.72 0.68/0.83 5. Jamboree Rd and University Dr 0.64/0.88 6. Jamboree Rd and Bison Ave 0.57/0.85 ICU w/o IMPROV A.M./P.M. 0.95/1.08 1.00/1.30 1.03/1.01 0.70/0.95 0.76/0.98 0.64/0.91 (This table is based upon NBTAM96 projections for the Long Range timeframe.) (Approved 223/99) City of Newport Beach Environmental Quality Affairs Citizens Advisory Committee Minutes Minutes of the Environmental Quality Affairs Citizens Advisory Committee held at the Newport Beach Police Department Auditorium, 870 Santa Barbara Drive on January 18, 1999. Members Present Michael Bigi, Chairman Patrick Bartolic Jack Callahan Gale Demmer Barry Eaton Sandra Glaser Don Gregory Virginia Herberts Carol Hoffman Council Members Present Council Member John Noyes Tom Hyans Brent Jacobsen Earl McDaniel Bonnie O'Neil Marge Pantzar Pete Tarr Judith Ware Jean Watt Council Member Gary Adams Staff Representatives Sharon Wood, Assistant City Manager Patrick Alford, Senior Planner Patricia Temple, Planning Director Niki Kallikounis, Planning Secretary Rich Edmonston, Transportation & Development Services Manager . Members Absent Ray Brandt Jon Robertson Sue Hogan Martin Weinberg Pat Michaels Kelly Sylvester Cj The meeting was called to order at 7:05 p.m. Jack Callahan made a motion to approve the minutes of November 16, 1998 as written. Pete Tarr seconded the motion, and the minutes were approved. 2. Chairperson Bigi reported on EQAC's presentation at the City Council study session on Citizen Advisory Committees. Chairperson Bigi gave the Council an update on what was done during the year. Chairman Big! referred to the EQAC status report in the packet and reiterated the accomplishments in 1998 such as the NOP /EIR reviews of Banning Ranch, Newport Dunes, MCAS El Toro and the Rockwell expansion. Chairperson Bigi also noted the fact that EQAC made a few recommendations to the Council. Chairperson Big! stated that one of the problems that emerged is that there is a lot of work for the committee to do and if is difficult to get it done once a month for two hours. He suggested an idea for the committee to entertain meeting twice a month. One meeting a standard meeting and another on an ad hoc basis. Chairperson Bigi said that this evening, trying to compact the TPO in a 45- minute presentation might be a problem and to look at scheduling another session for a TPO discussion. Council Member Noyes suggested this discussion of having two meetings a month be postponed until the next meeting because all the appointments to EQAC have not been made yet. Page 1 FA ... \EQA0Minu[es \01/18/99 !4� (Approved 2/23/99) Sharon Wood stated it is noteworthy how much the committee did and it is a long list of accomplishments considering this committee did not exist for the entire year of 1998. Ms. Wood commended the committee and stated they did a good job. Carol Hoffman asked regarding slide number 9, under Open Discussion, if that would be an open forum that would include issues other than EIR. Chairman Bigi stated it would include other related issues. 3. Report from subcommittee on Rockwell Notice of Preparation - 4311 Jamboree Road. Jon Robertson resigned from EQAC and Carol Hoffman volunteered to take on the responsibility of Chairperson of the Rockwell subcommittee. Ms. Hoffman gave the committee a handout listing the responses that merit additional detail with consolidated and streamlined comments. Ms. Hoffman stated they welcomed input from the committee. Barry Eaton made a motion that the full committee approve the subcommittee report. Carol Hoffman seconded the motion. The motion was approved and passed. 4. Presentation on Traffic Phasing Ordinance and proposed revisions by Planning Director Patricia Temple. Tom Hyans asked what the Fair Share Fees are. Ms. Temple explained that the City's ordinance is called the Fair Share Traffic Contribution Ordinance. Its purpose is to provide a mechanism where all new construction projects contribute, based on their new traffic generation, to the unfunded portion of the completion of the City's master plan of streets and highways (the arterial roadway systems and intersection improvements). This Ordinance and the fees assessed as a result of it are based on a calculation done by the Public Works Department of the actual cost to complete the roadway system, and what federal, state and local funds are available to offset those costs. The shortfall is calculated and estimated against the future growth and . development in the City and the fee is assessed on a trip basis. Mr. Hyans asked if there is a fund and what it is called. Transportation and Development Services Manager Rich Edmonston responded that the fund is called the Circulation and Transportation Fund. Pete Tarr stated he did not understand the "rough proportionality" concept. Ms. Temple explained the concept of 'rough proportionality' is one of the key terms that had arisen out of recent court decisions. This is one of the reasons why the City Attorney is concerned about the legal defensibility of the ordinance. Ms. Temple clarified the way the ordinance operates. She used the following as an example: Suppose there is an intersection that is 0.75, well below the 0.90 threshold. Many projects could be processed with traffic studies, and add traffic to increase the ICU value. As long as the project does not cause the ICU to cross the 0.90 threshold, that project does not have to pay any of the cost of future mitigation. Eventually, a project causes the threshold to be crossed. Under the current ordinance, that developer is required to make the entire improvement. The courts have now said that a mitigation requirement that is greater than the project's contribution to the problem cannot be imposed. However, the existing ordinance could require a very small development to make a very expensive improvement, even if they were only adding one, two or three peak hour trips to that intersection. With the rough proportionality concept, the actual financial contribution by that developer is be based on the actua project'sl contribution to the problem that mandates an improvement. Pete Tarr asked if his understanding is correct: Under the new TPO proposal, projects still require no contribution to intersection improvements if the ICU is under 0.90, but once the ICU goes over . 0.90, the project will only have to pay a proportional share? Ms. Temple stated the way the current changes are drafted that is correct. She also noted that one of the concepts is that we Page 2 FA...IEQACV,VnutesW1 /19/99 , ;I Itl� (Approved 2/23/99) also have the Fair Share program that is also accumulating dollars from the development that should also be able to be used to fund the improvement. Additionally, there might be other developers coming through in a fairly short period of time that can participate in making the improvements. Mr. Tarr questioned if the Fair Share payment takes care of the necessary increases, why is the Traffic Phasing Ordinance needed. Ms. Temple explained that the Traffic Phasing Ordinance is an important ordinance that the community is comfortable with. She noted that it provides the City with a tool to achieve improvements, particularly ones that may not have been anticipated in the Circulation Element in terms of the specific geometrics of an intersection. It is another tool to identify improvements and to make sure the developers are contributing to the implementation of improvements. Jean Watt asked if this is the only instrument that mandates Level D. Ms. Temple responded that the Traffic Phasing Ordinance does not mandate Level D. She noted that regional growth and the smaller projects of 300 trips or less could continue to add traffic without being charged anything so intersections can go above the 0.90. The Ordinance does not prevent that from happening. Ms. Watt noted that the Ordinance mandates the analysis of the requirement of those projects that need this. Ms. Watt stated she wants the General Plan updated instead of the TPO. Ms. Watt also questioned if the City ever administered the existing ordinance in a way that would violate the rough prpportionality requirement. Ms. Temple stated that in the higher growth time frame such as the early and mid -80; many developments did have a very high burden of improvement costs. Sharon Wood stated that time period of high development activity, when this ordinance was used the most, occurred prior to the court case requiring rough proportionality. Tom Hyans asked, regarding the development when the LOS is over 90 %, if that developer has a draw or are the funds not available from the Fair Share Fees? Rich Edmonston stated the . developer does not have a draw from the Circulation and Transportation Fund. What he does have, to the extent that he constructs something that is the ultimate configuration for an intersection or a portion of highway, is an offset against his Fair Share Fees for doing the TPO improvements. He cannot come to the City and say he needs to fix an intersection and it will cost two million dollars and he can put up a half a million, could the City put up another million and a half dollars from its pot of money. Mr. Hyans asked if the developer pays for the entire improvement, would he receive a credit. Mr. Edmonston responded the developer would get a credit against his Fair Share Fees if that improvement were a final master plan improvement. If it is only an interim improvement or is not addressed specifically in the General Plan, then the developer would not get any credit at all. Patrick Bartolic asked if the Fair Share Fee is something that is currently being used. Mr. Edmonston noted the Fair Share Fees have been in effect since 1984, and it applies for example, if a house is torn down and a two -unit condominium is built, you have added a unit on which an extra fee will be paid. Mr. Edmonston explained that every type of construction pays the fee, except affordable housing that is exempt. Mr. Bartolic asked if the Fair Share Ordinance is a part of the Traffic Phasing Ordinance. Mr. Edmonston explained the TPO and Fair Share Ordinance are not closely related the way they are today. If the changes go through, they will be more closely related. Ms. Temple stated an important distinction is that the Fair Share Fee is assessed for every building permit at the building permit stage regardless of whether it is an administrative approval or one that requires a discretionary approval from the Planning Commission and the City Council. The .TPO only applies to projects of certain size, and actual contributions by way of improvements or contributions to improvements are made based on certain calculations that flow out of the requirements of the ordinance itself. With the Fair Share Fee, if you add one trip, . you pay for one trip and that is the case for every development. Mr. Bartolic asked if the Fair Share money goes into a general circulation fund. Mr. Edmonston explained that the Fair Share Fees go into a separate fund within the budgetary process and the monies can only be used for Page 3 F: \...\EQAOMinutes \01 / 18/99 it /Z (Approved 2/23/99) street improvements. Mr. Bartolic asked for clarification that that could be anywhere in the City, not necessarily where it was impacted by where the Fair Share dollars came from. Mr. Edmonston responded that is true and Fair Share dollars are coming from all over the City. Ms. Temple explained how the City has managed that is the Public Works Department prepares the • capital improvement proposals on a yearly basis, and they also have some five and seven year capital improvement programs. She stated they attempt to prioritize the system -wide improvements on those that will create the greatest amount of benefit at the time that the dollars are being expended. Mr. Bartolic asked what exactly is being eliminated from the Traffic Phasing Ordinance proposal. Ms. Temple stated the most significant change in the TPO is the fact that when this theoretical project causes an intersection's ICU to cross the 0.90 threshold, if it is a relatively small project and the improvement to bring it back down is fairly large, that project will be assessed some fair proportion based on that project's impact. Once that starts occurring, it is the requirement that the City will continue to impose those requirements or develop a funding strategy that will accomplish the improvements that are identified as opposed to requiring the developer to build them himself. Mr. Bartolic stated that he was confused regarding adjusting and working on the Traffic Phasing Ordinance prior to knowing how to mitigate traffic because if is difficult to make decisions on how many trips are enough and when 0.90 is reached how big the City can get according to the General Plan. Chairman Bigi stated that the General Plan has entitlements as to how much traffic should flow through certain intersections. Ms. Wood noted many projects that are analyzed through the TPO are amendments to the General Plan. Ms. Temple explained that it gets complicated. She noted that we have had projects that were fully under their General Plan entitlement incur problems with the ordinance and reduce themselves, thus not being able to utilize their full General Plan entitlements. At the same time, depending where they are timefrome or location wise in the City, there could be a General Plan amendment project that was no problem with the Traffic Phasing Ordinance. In that sense, there is some feeling of inequity there. Mr. Bartolic noted if is difficult to decide how traffic should be mitigated prior to the time the General Plan is updated. Ms. Temple explained that the Traffic Phasing Ordinance looks at discreet projects in discreet time frames. It looks at them based on the very specific and peculiar trip generating characteristics of that project in terms of how many trips if generates in the peak hours, what directions they are anticipated to come to and from, etc. One of the benefits of the ordinance has been that, because the City has precise project related information, many improvements to intersection function can be identified by the Traffic Engineer. Sometimes it is signal phasing, sometimes it is taking a lane and making it a single purpose to a dual purpose lane or vice versa, split phasing signals, just the different ways an intersection can be operated to mitigate impacts. Sometimes mitigation can be accomplished without actually making physical improvements to an intersection. The General Plan, when you refer to overall functionality of the system, is based on long -range traffic modeling and does not have the some level of precision in terms of what some of the more discreet kinds of improvements might be needed as projects come on the ground over time. Sharon Wood noted, regarding the background of the TPO, that there have been previous drafts of the amendments to the TPO and Circulation Element of the General Plan that were more far - reaching than what was discussed this evening. That draft went to public hearing in the Planning Commission and there were a lot of questions and concerns. She stated that those changes to the General Plan included the possibility of changing the level of service standard from D to E in the airport area. This would have accommodated new development in an area that would be less likely to impact residential areas and other parts of the City. Also, there was talk of different ways to do traffic analysis such as averaging a number of intersections that relate together. Because of the concerns of the far - reaching amendment, we have scaled . back with the real goal being to address the legal problem of rough proportionality and rounding. The other legal problem is that the General Plan includes development entitlements Page 4 F:\ ... \EQAC\M1nu[es \01 /18/99 r:��jY J/11121 (Approved 2/23199) that apply mainly to Mariners Mile and some of its vacant properties, as well as improvements to intersections in that area that many people in City do not want to see happen because they would change the character of that area. If we were to deny somebody the ability to develop according to what the General Plan has entitled them because the City does not want to make isimprovements to those intersections, there are now court cases that show the City might be forced to make those improvements. That is why the City is proposing the exempt intersections. At this time, we do not know which intersections they will be. That will be up to the City Council. Ms. Wood stated the intent of the Traffic Phasing Ordinance amendment is to protect the City from something the City does not want to happen to the community. Sandra Glaser stated that the way the old ordinance was written mainly affected big developments. She noted the way it is considered to be written now takes away some of the protection of big developments. Ms. Temple stated it is not unreasonable to hold that opinion to the extent that a developer would decide not to pursue a project due to the cost of improvements. Ms. Temple explained what the City is concerned with is that if we go ahead and impose that requirement, should that developer then challenge the City's decision because it had required too much or far out of proportion to that project's requirement that the courts could eliminate the ordinance altogether as being unconstitutional. Ms. Glaser asked if the new Traffic Phasing Ordinance would help the City rather than big development. Ms. Temple stated they are trying to do everything they can to keep as much of the ordinance in tact within the constitutional framework as laid out by the courts. Council Member Adams stated that an important issue is brought out that addresses the question of why we should do the TPO before we do the General Plan Amendment. He noted the courts have in effect already changed the TPO and that's what people have to recognize. Council Member Adams explained they are trying to preempt drastic changes in the way we assess traffic. Also to do it the way it makes sense and get a stopgap ordinance in place that will take us into what will probably be a relatively long planning process with the Circulation and Land Use Elements. Council Member Adams noted the City needs to do a Traffic Phasing Ordinance before a General Plan because it should be done before the courts do it for the City. Council Member Adams noted that there are not a lot of improvements that can be made in the City. The idea behind the exempt intersections is that the City has pretty much made all the road improvements it wants to make. The City is not ready to turn Coast Highway into an eight - lane arterial through Mariners Mile. Do we want to let that stop someone who owns property and has an entitlement for land use from developing that land use to its potential because the City has decided they do not want to make radical changes to the roadway system? Ms. Wood said the City Attorney believes we cannot deny that development unless we change our General Plan. Jack Callahan asked who is really in control, the General Plan, the TPO, or wait for the courts. Pete Tarr noted there is no question that when push comes to shove the courts will say this is the way it is going to be. Ms. Wood noted that there is a distinction to keep in mind between a project that is consistent with the existing adopted General Plan, such as property that is not developed to its full potential (Mariners Mile), and a project like the Dunes Hotel that is requesting an amendment to the General Plan. The City does not have to approve a project that requires a General Plan amendment. Council Member Adams noted, in that case, the City has complete discretion regardless of the TPO. Council Member Adams stated that because the General Plan and Circulation are not in place the way the City wants them, it does not mean the City cannot make intelligent land use decisions in the interim. Mr. Bartolic asked for clarification of the legal aspect of denying somebody the right to build out what they already had the right to build out under the existing code. Ms. Temple stated the primary difference to a General Plan Amendment project could be that if the developer identifies traffic impact, the . City would still be looking at a proportional contribution. But if, regardless of the project's traffic impact, the City still does not want that project, it is fully within its rights to deny it. It does somewhat alter the mitigation requirements if the City chooses to approve it. The standard Page 5 F:\... \EQAC\M inutes \0 U 18/999 i li /,S (Approved 2/23/99) under the California Environmental Quality Act is that there needs to be a nexus for the condition of approval. In other words it needs to be related to the project impacts and the mitigation needs to be within the level that the project actually creates a problem. Tom Hyans referred to several intersections along Coast Highway in Mariners Mile and Hospital f Road and Newport Boulevard and asked about exempt intersections and if there is precedence. Council Member Adams stated regarding exempt intersections that the choice of language or calling it an exempt intersection was unfortunate. He stated that all that is being exempted is the requirement that certain mitigation at those intersections be constructed. It is not exempting the developer from having to analyze the intersection, to meet the 0.90 maximum ICU in the future with mitigation. All the requirements of TPO apply to that intersection. The only requirement that does not apply is the requirement that they have to have improvement in place before they can proceed. That is the only thing that is exempted. Mr. Hyans asked how the degree of mitigation is determined. Council Member Adams responded the problem is that the Circulation Element plan shows Coast Highway as a six -lane arterial. In Mariners Mile right -of -way has been set aside for an ultimate build -out of a six -lane arterial. The decision has been made not to take away parking and not to widen Coast Highway for a number of reasons such as aesthetics, businesses do not want it, etc. The City has accepted the fact that they will have some congestion on Coast Highway through Mariners Mile so they will not widen it to those widths. Council Member Adams went on to explain that when the impacts a development has on Coast Highway are assessed the developer has to meet the 0.90 ICU requirement under the six -lane arterial scenario. If they ever bumped up against that, the TPO would serve as a limit for that development. Council Member Adams explained the 0.90 means something against a six -lane arterial and the City is not ready to build it yet. Rich Edmonston stated the potential exempt intersections list is a list of intersections for which, in the long range General Plan, there have been mitigations identified: things that could be done to those intersections to make them function at 0.90 or better. Those improvements are not in the current five -year plan for the City. That is all that list is, and those then become candidate locations for the Council to look at when the ordinance goes forward as it is. The Council will, by a super majority vote, adopt a list of exempt intersections. Those definitions might change during the course of these meetings and the public input. Mr. Hyans asked how an intersection becomes exempt. Mr. Edmonston stated it his understanding that it becomes exempt by meeting the criteria of the TPO; it takes a vote of 5 affirmatives by the City Council. Judith Ware referred to Ms. Temple's presentation regarding controlling the growth and asked how the City plans to balance the economic development when areas that are blighted happen to be in areas that have the smallest roads. Ms. Temple noted that one of the reasons why the General Plan update is being considered is to assess the City's goals in various areas of the City and look at it from a host of perspectives including a traffic level of service. Ms. Temple stated that it is through the General Plan process that those balances are discussed and result. Bonnie O'Neil asked if there is anything in place to correct an incorrect decision on a traffic signal. Mr. Edmonston stated that the TPO is one aspect in the broad scheme of things that the Public Works Department deals with. He noted they do look at accident rates at intersections and from that identify changes that could be made. Typically those changes would not be directed towards increasing the size of the intersection. This is a separate safety component of what is done in Public Works as opposed to the TPO or General Plan issue. Ms. Temple responded as an adjunct to Mr. Edmonton's response that through the TPO some improvements have been made that have proven to be ineffective and the City has taken them out. An example is Marguerite Avenue and Coast Highway in Corona del Mar. The City attempted a third eastbound lane but ultimately removed because it was not effective. Chairman Bigi asked if there is any historical reason that both the previous and the proposed TPO deals only with arterial highways as opposed to residential streets. Council Member Adams responded that there is a fundamental reason and that is because they are always the Page b F: \ ... \EQACSMinutes101 /18/9 9 /// (Approved 2/23199) capacity limiter on any roadway system. The theoretical capacity of residential streets is enormous. Council Member Adams addressed a previous question that was brought up by Mr. Hyans is regarding exempt intersections. In effect, under the current TPO, the some thing can be done with a super majority override of the TPO for any development. In this way the City is making a policy decision by utilizing super majority based on the entire City and not based on a single project. Under the status quo the City can do the some thing an exempt intersection does with a super majority and that would be looking at just the particulars of a single project. The argument could be made that the new proposal has more integrity because it is looking at the system as a whole, all the intersections, identifying exempt intersections from a policy standpoint instead of looking at them to try and get one specific development through. Mr. Eaton stated that EQAC wants to get more involved in this and suggested having a special meeting and have the whole package that went to the Council. Jean Watt agreed that there should be a special meeting. Ms. Watt also stated that the General Plan should be done first. She noted when the City Council was looking at a project through the TPO's eyes, it will see it as a one - dimensional thing. She stated that now they understand that incrementally they are getting to the point where not only the exempt intersections are over 0.90 but other intersections (particularly the airport) are also going well over 0.90. Ms. Watt stated that when the Council views any new project, they should be able to see it in a broader context than just the TPO and understand what the cumulative effect will be. The public needs to say, 'okay these intersections are going over 0.90 but we do not want the road system increased.' Ms. Watt noted that conversely the intersections are going above 0.90 and are above 0.90, perhaps we have some ways to increase the road system. Mr. Callahan noted that anything in the airport area that would require 0.90 would require super majority and it would take extraordinary actions to put it through. He feels they are up to facing them between now and when the General Plan gets done and does not feel they are in danger of compromising their land use decisions over the next year with a strengthened TPO from the legal standpoint. Mr. Bartolic stated the City continues to grant exceptions to the General Plan, large variances, because they do not reach the 0.90 and that is what concerns many people. Jack Callahan stated the committee had this discussion last year and were told the General Plan is really a City Council issue and the committee might be able to make recommendations. Chairman Bigi recalled that there was a debate but it was a close vote and when the proposal was made to the City Council, the resolution was well received. Council Member Adams asked what major projects the City Council approved last year that has caused major traffic. Mr. Bartolic referred to the Four Seasons that was a variance in the General Plan's Fashion Island area where the City continues to build out and increase square footage. Council Member Adams stated that in the past year he does not feel that the Council has done anything irresponsible with regard to the General Plan amendments. He stated he felt the Four Seasons was a good project. Council Member Noyes stated that about six or seven months ago, EQAC recommended the Council look at updating the General Plan, and that is, in fact, what the Council is doing. Council Member Noyes explained that a project like that does not happen in thirty days. The goal setting session will decide on how to proceed on updating the General Plan. It could take a couple of years. Council Member Noyes explained that the Council is working on a General Plan up date that is an entire overhaul of the General Plan. Mr. Callahan stated he agrees with that but last year the committee spoke of a lot of exceptions to the General Plan within the last five years. The feeling as a group was that the General Plan, like any good business plan, needed to come first. Don Gregory asked the group if anyone has received a plan from a major developer such as The Irvine Company that can help the committee judge certain improvements. Chairman Bigi stated there is some verbiage in the proposal that went to the Council that developers submit more comprehensive plans for their development. Page 7 F: \...\EQAC\Mi nutes\O1 /18/99 n 0/7 (Approved 2/23/99) Carol Hoffman referred to a comment that Mr. Bartolic made because she feels it is important for the committee to understand. Ms. Hoffman stated there is not a General Plan in this county that stipulates when a hotel is allowed as a use under a General Plan designation, the number of rooms is stipulated. This is a very unique circumstance whereby, for whatever reasons, the number of rooms was limited in a retail office /hotel /kind of area. The only reason a General Plan amendment was necessary rather than just a site plan that would analyze the impacts of the hotel was because Newport Beach's General Plan is so specific, Ms. Hoffman noted this was a very unusual circumstance. She stated also that a traffic analysis was done in very great detail as to what impacts and recommendations were proposed. Ms. Hoffman explained that the term variance in regards to the General Plan was not correct. A variance is an exception to a codified standard such as a variance in height limit, a variance in setback or a variance to some of those kind of standards. A General Plan amendment is not considered a variance. Ms. Hoffman stated the Council has been asking what The Irvine Company's plans are for the ultimate build out of Newport Center. The Irvine Company is in the process of trying to develop this for consideration. Chairman Bigi asked if anyone disagreed with having another meeting dedicated to the TPO. There were no objections to another meeting. February 3, 1999 at 7 p.m. was set to meet for a discussion on the TPO. The next regular EQAC meeting was set for February 23, 1999 at 7 p.m. Chairman Bigi welcomed comments from the public. Phil Arst, Chairman of the Community Associations Alliance, stated that the Community Associations Alliance is concerned about unsatisfactory traffic congestion that will be permitted by the proposed revision to the Traffic Phasing Ordinance. Mr. Arst said that a proper General Plan update along with traffic mitigation measures should first be carefully planned in advance. He stated that the Circulation Element does not match the Land Use Element, and they perceive, without the protection of the TPO, that there will be extreme traffic congestion. Philip Bettencourt stated he has worked as a representative of the Building Industry Association for the past three years on the TPO reform project. He stated the most eloquent proponent for reform of the ordinance is the City Attorney. Mr. Bettencourt stated that this ordinance, in its direct application, brutalizes property owners and is very vulnerable to challenge. The law is clear and our counsel has provided the City staff with that same recommendation that a nexus test is needed in the ordinance. Mr. Bettencourt explained that if the ordinance is gone tomorrow, to regulate land use, the City has: the California Environmental Quality Act; it has absolute discretion to grant General Plan amendments under circumstances that it deems fit into the law; it has the right to grant some changes; it regulates through the Subdivisions Map Act exaction of property; it has the Fair Share Ordinance; it also holds out the carrot of the Development Agreement to exact additional off tract and off site traffic improvements. Since the time the TPO was passed, the County has made available Measure M funds for counties and cities; one hundred million dollars in bond money is coming in for traffic improvements. Mr. Bettencourt stated, as you look through the ordinance, you are talking about a process of reform and refinement. No one is talking about removing the Traffic Phasing Ordinance but making it a 21st Century vehicle, which it is not at the present. 5. Santa Ana River Crossings Cooperative Study Program Notice of Preparation Chairman Bigi asked the committee to fax their comments to Sharon Wood. He also recommended Tom Hyans and Virginia Herberts as a subcommittee in the event that the NOP turns into an EIR. Pete Tarr and Kelly Sylvester will also be on the subcommittee. Mr. Edmonston brought flyers to distribute to the committee that discuss the public meetings for the Santa Ana River Crossing. He encouraged the committee to take extra flyers and distribute them to neighbors and other interested parties including the homeowners association each Page 8 F: \... \EQAC\Minutes \01 /18199 ;K l sl (Approved 2/23199) member is assigned to. Mr. Edmonston noted there is a committee that is called The Technical Advisory Group that includes staff and two resident members from each of the four cities. The attempt is to come back with a EIR. 106. Review of project alternatives to be analyzed in the Environmental Impact Report for Dunes Resort Hotel - 101 N. Bayside /1131 Back Bay Drive. Sharon Wood referred the committee to their packet and the last item that is a memorandum regarding the review of project alternatives. She explained that one of the things we are required to do is to analyze the impacts of the project as it is proposed, then we need to analyze the impacts of alternative projects and alternative locations for a similar project. This is done to be able to compare the impacts. This helps the decision - makers to know what, if anything, they should be approving. The memorandum contains a description of alternative projects that will be analyzed in order to compare impacts of these versus what has been proposed. 7. Future Agenda Items City recycling by the year 2000. Y2K 8. Public Comments None Chairman Bigi adjourned the meeting at 9:15 p.m. 0 u Page 9 F: \... \EQAC \Min utes \Ol / 18/99 Ari / /GI (Approved on 2/23/99 as amended on page 2, 3" paragraph, & page 5, substitute motion.) City of Newport Beach Environmental Quality Affairs Citizens Advisory Committee Minutes Minutes of the Environmental Quality Affairs Citizens Advisory Committee held at the Newport Beach Police Department Auditorium, 870 Santa Barbara Drive on February 3, 1999. Members Present Earl McDaniel, Chairman Jack Callahan Gale Demmer Laura Dietz Barry Eaton Sandra Glaser Don Gregory Council Members Present Council Member John Noyes Staff Representatives Sharon Wood, Assistant City Manager Patricia Temple, Planning Director Members Absent Patrick Bartolic Michael Bigi Ray Brandt Robert Hawkins Sue Hogan The meeting was called to order at 7:05 p.m. Virginia Herberts Carol Hoffman Tom Hyans Brent Jacobsen Pete Tarr Jean Watt Council Member Gary Adams Robert Burnham, City Attorney Rich Edmonston, Transportation & Development Services Manager Marge Pantzar Kelly Sylvester Judith Ware Martin Weinberg Chairman McDaniel complimented former Chairman Bigi on the job he had done during his tenure. Discussion of Traffic Phasing Ordinance and proposed revisions City Attorney, Robert Burnham, summarized two basic legal issues. One is that conditions imposed on projects must be roughly proportional to project impacts. We cannot require projects to make million dollar improvements for minimal impact. The other legal issue is that Mr. Burnham has a concern that the Traffic Phasing Ordinance could result in a situation where the project cannot be approved under the TPO because it is required to make an improvement that the City does not want. An example is a project in the Mariners Mile area that would impact intersections at Riverside and Tustin at Pacific Coast Highway. Those intersections are predicted to function better than LOSD if Coast Highway is widened to six lanes. There is some significant community opposition to those improvements. The City has not put those improvements into their five -year capital improvement program and Mr. Burnham does not anticipate the City will do so. A project proponent that might come forward with some development that might impact that intersection would, under the Traffic Phasing Ordinance, be required to make improvements or contribute to those improvements. Under certain circumstances, the findings to approve the project could not be made since the City is not planning on making the roadway improvements at that intersection. 0 Page r FA... %EQA0Minutes \01/18/99 ,Ilan (Approved on 2/23199 as amended on page 2, 3'^ paragraph, & page 5, substitute motion.) Mr. Burnham stated the reason he is concerned that would involve litigation is because of the case in Laguna Beach, that Mr. Alan Beek has referenced, called Ambrose, where some people own undeveloped properties in a fairly remote area of Laguna Beach. The City consistently told the owners that their lots were not buildable sites and refused to issue building permits. The basis for that was the streets were not improved to General Plan standards. The property owners sought the assistance of the City to improve them to General Plan standards and the City refused. Ultimately the property owners sued, and the court declared the streets were City streets. The court also declared the City had an affirmative obligation to make the improvements required by its General Plan and the City could not withhold building permits on the basis of its own refusal to implement provisions of its General Plan. That litigation resulted in a verdict of fifteen million dollars against the City of Laguna Beach. The verdict was reversed on appeal but the ultimate settlement was one that required a substantial financial commitment on the part of the City. It resulted in development entitlement for the lot owners who had been refused building permits over the years double what their neighbors were authorized to build. These are the circumstances that cause Mr. Burnham concern about the possibility of TPO restricting projects, especially in the Mariners Mile area and why the concept of exempt intersections was created. Tom Hyans asked if Newport Beach could amend the General Plan to show fewer lanes on Pacific Coast Highway. Mr. Burnham explained it would cause more congestion and affect the City's ability to get Measure M dollars because there would be an inconsistency with the County plan. Council Member Adams stated the City has been reserving right -of -way for future widening of Pacific Coast Highway of developers and that will reduce the ultimate cost of project. Barry Eaton referred to page 10 of the proposed TPO revision, section 15.40.075A, regarding proportionality. He asked what fees count against TPO fees. Mr. Burnham noted that should read, "to traffic related fees." Mr. Eaton stated in the existing TPO there is a clause that says, "This fee is in addition to any other fee." He stated this needs to be added into the revision. Mr. This said it has been replaced with language saying, "If contributions are to be made or if developers fund projects in whole or in part," that would then satisfy the ordinance. This suggests the emphasis is being shifted from the TPO to the Fair Share Ordinance. This would allow Fair Share fees to be credited against mitigation. Mr. Eaton asked if that was the intent of the ordinance. Mr. Burnham stated that was not the intent of the ordinance. The reason that language was deleted, was to avoid any conflict in the ordinance with the concept of rough proportionality. Mr. Burnham said it is his intent to, make it clear that payment of Fair Share fees does not satisfy the requirements of the Traffic Phasing Ordinance. Mr. Eaton asked how often is the Fair Share updated and could it be recalculated and updated if the Council directed. Transportation and Development Services Manager Rich Edmonston responded by stating it was last updated in 1994 and tends to be updated periodically in light of such things as General Plan Amendments that may increase the total number of future trips as well as update estimates. It could be expanded to include all the foreseeable intersection improvements that might be identified out of TPO. A project could come in at a certain location and it could cause that intersection to go over 0.90 where in the past it did not go over o.90 thus there still might not be a mitigation in the Fair Share for that. Planning Director Temple explained that because TPO is short-term analysis dealing with specific projects, it leads to very particular improvements and adjustments that cannot be foreseen in long -term General Plan analysis. Mr. Eaton asked why a 5/7 vote for exempt intersections. Mr. Burnham said it was an arbitrary super- majority. 0 Mr. Burnham stated the intention of this public review process is to get as many comments as possible and submit a revised draft to the Planning Commission. Page 2 F: \ ... \EQAC \Minutes \01/18/99 J (Approved on 2/23/99 as amended on page 2, 30 paragraph, & page 5, substitute motion.) Sandra Glaser commented that the revised TPO allows contributions to intersections in a different area than the project and the project can be approved. Mr. Burnham stated that the existing ordinance has that type of provision with findings required for approval. Jean Watt asked if there is a difference in how the new TPO would work for Banning Ranch . versus the Newport Coast. Mr. Burnham noted that new provisions would apply if there is County approval. Any additions beyond that after annexation would be subject to the TPO. Jean Watt commented that there is no definite answer on widening Pacific Coast Highway in Mariners Mile. She agrees with Mr. Tom Hyans that the TPO tries to sweep this under the rug. Ms. Watt feels the General Plan update or revision should be done first. She thinks The Irvine Company and others want to develop more. Council Member Adams stated he needs to ask what is the effect of the existing and revised TPO on specific projects. He suggested testing it when it goes to the Planning Commission. Pete Tarr stated the reason we are here is concern that the court will decide the future for us if we do not fix the TPO. He said someone could force both development approval and widening of the street in Mariners Mile. Mr. Burnham noted the TPO revision started as an Economic Development Committee initiative. It stalled at the Planning Commission and the City Council appointed a working group who focused on legal issues and consistency. Mr. Burnham stated litigation could occur if the City denies a project because it requires street improvements that the City refuses to make. Ms. Watt stated that SPON does not agree with the legal premises of the revision. Don Gregory stated this is more than a legal issue, it begins with land use. There is a need to balance progress with quality of life. Mr. Gregory stated individual projects do not have significant impact, but after a while they all will. He feels EQAC is working in a vacuum without a General Plan update. He wants to know what developers are asking for. Mr. Burnham stated he has a letter from the BIA saying the TPO has legal problems and developers have threatened to sue. Gale Demmer commented that we are considering TPO changes to deal with legal issues, especially on Mariners Mile. She asked why we cannot fix the General Plan instead to eliminate the legal problems. Council Member Adams explained that means downzoning to keep roads at existing widths. We have to think about the role of regional traffic. Much of the traffic on Mariners Mile has nothing to do with Newport Beach land use decisions. Council Member Adams said he thinks the primary result of the TPO has been to get traffic improvements we knew we wanted. He doesn't think it has inhibited or caused downsizing of development. Brent Jacobsen asked what options we have for stopgap until a General Plan update. Council Member Adams said the TPO applies to General Plan amendments with discretionary review and to projects with General Plan entitlement. It is a fairness issue when owners cannot make use of their land shown on the General Plan. Council Member Adams said the City Council voted on Saturday, at their goal setting session, to direct staff to provide a process for a visioning effort. He thinks we need some form of a General Plan update but the Council realized the cost and magnitude of the effort, and the number of other major issues that need to be addressed. He stated that Mrs. Glover suggested visioning and that seemed like a logical first step. Mr. Callahan said he does not think EQAC is anti - business; we all need to make a living. He believes the big issues are keeping Newport Beach as nice as it is and responding to development pressure. Mr. Hyans noted there are seven General Plan Amendments on the Development Case Log. He said we need to consider the impact of LTA base, Banning and deal with the General Plan. Page 3 F: \...1EQAC\Mi nu tesW 1 / 18/99 u • L (Approved on 2/23/99 as amended on page 2, 3'° paragraph, & page 5, substitute motion.) Council Member Noyes stated a General Plan update is among the questions being asked of City Manager candidates. He noted it takes time to get started and the Council is looking at • how to do it. Mr. Eaton stated a visioning and goal- setting process should be the first step. Mr. Gregory asked how we handle projects in the meantime. Council Member Adams responded that there is a review process that includes CEQA and EQAC. Mr. Tarr stated the General Plan update is probably five years away and that is a long time to live with an outside court decision on how we handle traffic. Mr. Tarr explained that is why Mr. Burnham states the revision to the TPO is needed. It sounds like a good idea. Ms. Demmer asked if a project has ever been denied because of the TPO. Council Member Adams noted that an override has been used only once for a recent Burger King application. Ms. Temple noted that a project proponent usually does traffic analysis first. If improvements are possible, they agree. Sometimes it is scaled back but not significantly. Some proponents walk away. Ms. Temple said she knows people believe they could successfully challenge TPO, and wants to keep tool. Chairman McDaniel called for public comments at this time. 2. Public Comments Phil Arst, Chairman of the Community Associations Alliance stated their position is to preserve the TPO, making changes recommended for legal issues and to work on the General Plan at the same time. He stated the proposed revision goes beyond legal requirements. Mr. Arst commented regarding the fairness issue fhat was brought out earlier. He said the residents have the right to a pollution -free environment and lack of traffic congestion. Mr. Arst believes there should be a balance and the TPO has worked to preserve that balance. He said he thinks the • proposed change takes all the restrictions away. The City can deny General Plan amendments for reasons other than the TPO. Mr. Arst said more time is needed for review. Council Member Adams stated because of negotiations between Mr. Arst and Mr. Burnham, we are close to something that satisfies both sides. He noted residential development is the biggest traffic generator and asked if that should be down zoned. Mr. Beek referred to the summary of the Ambrose v. Laguna case and stated that it had nothing to do with Newport Beach's TPO. Mr. Beek said the point he wanted to make concerns the Circulation and Land Use elements. He said these two elements presumably show what the City will ultimately build to. The Land Use and Circulation should be in balance. The circulation system is not built out and more land development is wanted. Mr. Beek stated we should stop showing Pacific Coast Highway on the General Plan the way we do not want it to be. We need to make hard choices on land use and circulation. Chairman McDaniel brought the discussion back to the committee members. Mr. Jacobsen stated we should not forget about beach traffic. He asked if Mr. Beek is an attorney, and Mr. Beek stated he is not. Council Member Adams noted that the Newport Beach circulation system is very mature and there are many residents who do not want to see it get maturer. Ms. Watt agreed. Carol Hoffman, representing The Irvine Company and the Economic Development Committee, . stated the development community does not think the TPO amendment is what they wanted. It is a compromise to deal with legal issues and still give the City tools to control development. It is not irreversible, and could change after the General Plan update. Ms. Hoffman noted that Page 4 F: % ... %EQAC%M inutes \01 / 18/99 Il /r? 3. (Approved on 2123/99 as amended on page 2, 3' paragraph, & page 5, substitute motion.) Pacific Coast Highway widening has to be on the General Plan to be consistent with MPAH and make us eligible For Measure M dollars, which paid for MacArthur widening project. Ms. Hoffman doubts any General Plan update could resolve the question of whether to widen Pacific Coast Highway or stop development. Council Member Noyes asked Ms. Temple to discuss the LCP grant application. Ms. Temple noted that they submitted an application for $400,000 to update the LCP and achieve certification so the City can have coastal permit authority. This work will go far towards the General Plan update because of the amount of Newport Beach in the Coastal Zone. That and visioning will take us far. Council Member Adams stated he sees EQAC as a major force in the LCP and visioning. Ms. Hoffman said Newport Beach should take a strong stand in favor of SARX. It is a regional improvement that will benefit far more people than it will impact and would greatly benefit Newport Beach quality of life. Mr. Callahan stated that the new City Council is responding to pressure and comments from EQAC. Barry Eaton moved that EQAC reiterate its recommendation to the Planning Commission and City Council that a General Plan update should be a high priority for the City; and that as to the proposed TPO revision, at a minimum there should be at least two changes: (1) If exempt intersections are necessary, they should require a 4/5 vote of the Council to be so designated, and (2) That the change Mr. Burnham referred to be made - namely that it be clarified that funding provided under the TPO is in addition to, and separate from required funding under the Fair Share Ordinance. Carol Hoffman suggested a substitute motion that instead of recommending a 4/5 vote for • exempt intersections, the committee expresses its concern about exempt intersections. The substitute motion dies for lack of a second to the motion. Pete Tarr seconded the motion. Jean Watt commented that she could support the motion. The motion passed. 11 Ayes Carol Hoffman 1 No Laura Dietz 1 Abstained Chairman McDaniel adjourned the meeting at 9:00 p.m Page 5 F:{ ... 1EQACM1n utes101 /18/99 • 9 w my CITY OF NEWPORT BEACH ECONOMIC DEVELOPMENT COMMITTEE MINUTES Minutes of the Economic Development Committee held at the City Council Chambers, City of Newport Beach, on Wednesday January 27, 1999. Members present: Edward Selich, Chairperson Tod Ridgeway, Council Member Kim Barone Craig Batley Michael Bigi Seymour Beek Gary DiSano Bob Dunham Roy Freeman Don Glasgow Staff representatives: Sharon Wood, Assistant City Manager Patty Temple, Planning Director Roll Call and Introductions Carol Hoffman Tom Hogan Michael Porter Lisa Reedy John Saunders Gregg Schwenk Lee Sutherland Steve Sutherland Rosalind Williams Christy Teague, Senior Planner Dan Trimble, Associate Planner Chairperson Selich called the meeting to order at 7:35 a.m. CONSENT CALENDAR The Consent Calendar was approved, including the following items: 1. The November 25, 1998 minutes 2. Active Projects Progress Report SUBCOMMITTEE DISCUSSIONS 3. EDC Priorities The EDC /Staff work program was adopted by the Committee. 4. TPO Presentation Planning Director Patty Temple gave a presentation on the Traffic Phasing Ordinance. She explained the TPO is a tool used for managing growth, along with the General Plan, Zoning EDC Minutes 01/27/99 Page I y1 (Uratt) Code, Specific Plans, and Planned Community Texts which limit floor area ratios, height restrictions and parking requirements. She stated we could consider new tools including general plan policies for each area of the City, landscaping requirements and design guidelines. Ms. Temple described the following issues related to the Traffic Phasing Ordinance: • Traffic Management Issues in Newport Beach • Original TPO goals • How the TPO Process works today • What the TPO has achieved • Reasons for considering a change • Updating the TPO • TPO goals now • Proposed changes in the TPO • Implications of the revised TPO • What it will do • What it will NOT do • Expected impacts of revised TPO • Next steps toward a revised TPO A handout more fully describing each of these facets was distributed to the Committee and members of the audience. Patty Temple then introduced three community members to share their perspectives on the TPO: Phil Bettencourt from the TPO Ad -Hoc Committee, Jean Watt from SPON, and Tod Ridgeway from the City Council. Phil Bettencourt stated he believed the concept of exempt intersections is a good one. He noted their committee discussed the 415 override issue, which translates to 6/7. He also noted the 300 trip threshold could be increased to 500. Jean Watt stated LOS "D" is important. She also asked the larger question, How big do we want our road system? Mrs. Watt noted the TPO should be used, not as a guide, but as a tool to reveal items the Council could make decisions on. She felt a General Plan update should be done instead of considering several General Plan Amendments. It should review the circulation throughout the City and project a clear understanding of the effects of anticipated growth. Council Member Ridgeway stated he felt it is not a good idea to exempt intersections. He stated the Council should be making those decisions on a case -by -case basis. Council Member Ridgeway said the TPO should be considered with a General Plan update at the same time. He suggested a Master EIR be considered for the Fashion Island/Newport Center and airport areas, which would become part of an updated General Plan. Gary DiSano asked why is there a 6/7 vote on some things and a 5/9 vote on others? Planning Director Temple stated the committee did not feel there would be support to EDC Minutes 01/27/99 Page 2 �/ LI D wi e� y change the 6/7 to a 5/7. Chairperson Selich stated there was a sentiment to enable it on the • committee but not without going to the committee. John Saunders asked what is the basis for the LOS used in the TPO? Planning Director Temple stated it is an indicator only, not an absolute measure. Steve Sutherland asked what is the connection between TPO and Fair Share fees. Ms. Temple stated there is no direct connection. Chairperson Selich noted that the TPO should be done now, and if adjustments are needed after a General update, they can be made at that time. Craig Batley summarized the issues of concerns to the EDC to be: Is 6/7 better than 5/7, Concept of exempt intersections, Timing of TPO now while working toward General Plan, legality and rounding to I%. Chairperson Selich suggested a motion be made for the TPO move ahead of planning process. Lee Sutherland made the motion. Gary DiSano seconded the motion. Chairperson Selich and Council Member Ridgeway abstained. The motion was approved unanimously. 5. Public Transportation . Kim Barone noted there may be funding available for alternative -fuel vehicles such as an electric shuttle. Ms. Barone noted she would give a full report at the next meeting. SUBCOMMITTEE REPORTS There were no subcommittee reports. ITEMS FOR A FUTURE AGENDA Due to the lengthy TPO discussion, Chairman Selich stated the continuation of Public Transportation, Newport Beach Conference and Visitors Bureau Year End Report, and Subcommittee Reports will be discussed at the February meeting. PUBLIC COMMENTS None ADJOURNMENT Chairperson Selich adjourned the meeting at 9:00 a.m. • EDC Minutes 01/27/99 Page 3 �1 Economic Development Committee Meeting of February 24, 1999 Discussion and Motions on Traffic Phasing Ordinance . The following five specific EDC issues regarding the TPO were discussed: Exceeding LOS D in Airport Area Discussed one third to one half intersections would exceed LOS D with existing entitlements, relationship with City of Irvine and their development impacts to area, and future 55/73 onramp improvements. John Saunders made a motion to support the TPO to exceed LOS D and adopt Irvine standards of LOS E with a 15% margin of error. The motion was seconded by Richard Luehrs and was approved unanimously (with Noyes, Ridgeway and Selich abstaining). Changing Override Vote from 6/7 to 5/7 Discussion included 6/7 being an unprecedented majority within City and SPON support of the 6/7 majority. Richard Luehrs made a motion to support changing the override vote to a 5/7 majority. Craig Batley seconded the motion. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining). • Intersection Averaging Mike Erickson explained intersection averaging and its effective use within limits as a tool giving flexibility to decision makers. Richard Luehrs made a motion to drop the position of intersection averaging, and instead to consider intersection exemption, noting that if exempt intersections are not accepted the Committee is recommending limited use of intersection averaging. The motion was seconded by John Saunders. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining). Exempt Intersections Discussion included this being a political issue, having planned deficiencies, the preclusion of future projects being completed without improvements, the name being misleading, and the concern of its legal defense. Richard Luehrs made a motion to support the concept of exempt intersections with the recommendation the name be changed to "special circumstances on exception intersections." Earl McDaniel made the second to the motion. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining). • 5� Lowering the Thresh hold from 300 to 500 Trips Per Day There was discussion that this would give flexibility and that 300 trips is too restrictive. Richard Luehrs made the motion to lower the thresh hold from 300 to 500 trips per day. The motion was seconded. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining). I* 0 T HE L A W O F F I C E S O F WORDEN, WILLIAMS, RICHMOND, BRECHTEL & GIBBS A PROFESSIONAL CORPORATION Planning Commission City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 Re: Traffic Phasing Ordinance 462 STEVENS AVENUE . SUITE 102 SOLANA BEACH . CALIFORNIA 92075 VOICE [6191755-6604 FAX [6191755-5198 May 4, 1999 RECEIVED BY PLANNING DEPARTWlEN u CI T V O� I _,t,c., o 1�.Z) PrlA 718191101111-121 ` 12131et1516 Dear Members of the Planning Commission: As you may know, this office has worked with SPON during the last two years with respect to proposed changes to the Traffic Phasing Ordinance. SPON asked me to review and comment on the portion of Mr. Burnham's memo dated April 2, 1999 relating to inverse condemnation issues. Mr. Burnham's memo indicates that the existing Traffic Phasing Ordinance has the potential to give rise to an inverse condemnation action under certain circumstances. His concern is that, if the City denies a project because of impacts that would not exist were the City to make traffic improvements contemplated by the General Plan, the City could be held legally liable to the land owner. Mr. Burnham refers to the unpublished Ambrose litigation involving the City of Laguna Beach. The basic test of whether an ordinance or permit denial has caused an "inverse condemnation" or "taking" of property is whether the owner has been deprived of all reasonable economic use of his property. (Lucas v. South Carolina Coastal Council (1992) 112 Sup.Ct. 2886.) The Ambrose litigation concerned City of Laguna Beach actions which were "takings" almost by definition. In Ambrose, the City refused to recognize certain subdivision lots as legal building sites on the ground that the streets had not been improved to the applicable standards. The City therefore refused to process any building permit applications, and the property owners obviously were deprived of all reasonable economic use of their otherwise usable property. The court held that, contrary to the City's position, the City had accepted the dedication of the under improved streets and therefore had a mandatory duty on its own to maintain them in a usable condition. In the case of Newport Beach, it is unlikely that denial of a project based on the TPO would result in denying the property owner all reasonable economic use of his or her property. KACLIENTSISPOMSPON04.273 1�,, /. w Planning Commission City of Newport Beach May 4, 1999 Page 2 First, the TPO is designed to ensure that the public infrastructure necessary to accommodate the impacts of development is phased with the development itself. This is a legitimate and important public purpose, and these types of ordinances have regularly been sustained by the courts as a proper exercise of the City's power to enact ordinances for the public's health, safety and welfare. As such, the TPO would withstand a legal challenge that it is invalid or a "taking" on its face. Second, it seems unlikely that denial of a project under the TPO would deprive the owner of all reasonable economic use of his or her property. Most lots in Newport Beach have already been developed into a reasonable economic use. There is no absolute right to further develop ones property to the maximum possible density or intensity stated in the Land Use Element of the General Plan. The Circulation Element itself states at page 19 that the City should phase development with the construction of circulation system improvements to maintain predicted traffic service levels. In those rare cases where denial of a project under the TPO might also deny the owner all reasonable economic use of his or her property, the TPO provides for an override on 4 /5ths vote if certain administrative findings are made. In short, I would respectfully submit that, while conceivable, project denial under the TPO is unlikely to result in a successful "inverse condemnation" ruling against the City of Newport Beach. The Ambrose litigation was quite different, in that the City of Laguna Beach's posture and refusal to accept building permit applications denied the owners of otherwise usable lots any reasonable economic use of their property. Thank you for the opportunity to submit these comments. Very truly yours, WORDEN, WILLIAMS, RICHMOND, BRECHTEL & GIBBS, APC V.V—� W. SCOTT WILLIAMS WSW:lg cc: SPON Robert Burnham, City Attorney Patty Temple, Planning Director KACLIENTSWOMSPON07.273 0 13i� r z,: SL TRAFFIC PHASING ORDINANCE (TPO) — BONES OF CONTENTION 1. TPO vs. General Plan First, the TPO is forcing our businesses to pay for circulation improvements required to handle regional traffic. Second, it forces revenue - producing develop- ments to cross the border into neighboring cities, where we bear just as much traffic burden as if they were on our side of the border, but our neighbors get the revenue. Third, it is ridiculous: Override requires a 415 majority to approve one office building, which is a bigger majority than it takes to amend the U.S. Constitution. Development is properly regulated by the Land Use element of the General Plan and the Zoning, Building, and Safety Codes under it. The TPO is not needed and should be repealed. (Note: Since this compilation was prepared by Allan Beek, it obviously does not present the BIA position as accurately nor as effectively as the BIA would present it. At times, it may be biased.) 0a We rejected a freeway, and we want to avoid streets and intersections that look like a freeway. But we also want to avoid congestion. These two desires are in conflict, and that conflict has produced City policies which are in a state of denial: The General Plan shows improvements which would handle the traffic, but we call them "undesirable improvements" and refuse to make them. The first thing to do is to revise the General Plan to remove this conflict. This means a very hard decision: Which we want to avoid more? Neither choice will be popular. When this decision has been made, then the TPO should be brought up to date in accordance with the decision. When other cities impose traffic burdens on us by building on the border, we should apply to Orange County for a corresponding transfer of their Measure M funds to us. The TPO does need two immediate changes: Accuracy and Funding. These take 42 words. They are given in the page by page discussion below. The following page by page discussion applies IF it is decided to leave the hard decision until later and amend the TPO first, but not to repeal it. Page and section references are to the March 10 revision, TPOrev031099. 2. Findings and Objectives Pages 1 and 2 The TPO extracts money from builders to make intersection improvements. The Findings and Objectives should reflect this and tell it like it is. The changes to Finding D indicated on the March 10 revision should not be made. Some of the changes to Objective C should be undone, so it reads, "To require Project proponents, as conditions of Approval, pursuant to this Chapter alone, to make or fund Circulation System Improvements necessary to mitigate the impacts of Project traffic;" Objective D should not be deleted. Objective E should read, "To coordinate, in conjunction with other ordinances, policies, programs, and resolutions of the City of Newport Beach, implementation of development - related circulation improvements identified in the Circulation Element of the City of Newport Beach." 3/18/ab99 General Plan amendments which allow growth overwhelm those which increase circulation capacity, so the General Plan gradually becomes inconsistent and intersections become congested. There is no direct way citizens can force the City to make its General Plan consistent, so the TPO was conceived as a moratorium on development in the vicinity of any congested intersection. This will give immediate help, and will get the City to work on consistency. Rather than require a project to wait until the City gets around to improving the intersection, the TPO allows the proponent himself to make the improvements if he chooses, so he can proceed immediately. In this case, it does not require that he eliminate congestion, only that he leave the intersection better than he found it. The Findings and Objectives should keep this Moratorium and Percussion orientation. The March 10 revision does not completely do this, but it is acceptable. 3. Feasible Improvements Page 3, line 2; p. 4, 2.d.i.; p. 8, D It is senseless to say that a project can't be built until it makes improvements, and then say that there are no improvements that can be made. Common sense dictates that the requirement for improvements must be limited to feasible improvements. This is such obvious common sense that it is in the existing TPO, which SPON says it wants to keep. Just what does SPON want? . The March 10 revision is OK. If there are no feasible improvements which w4 ft an intersection, then it is really in trouble and need a moratorium more than ever. But the "Feasible Improvement" language says that we don't care how much more traffic is dumped into the intersection; we have given up hope and abandoned it to gridlock. The words 'for which there is a Feasible Improvement" should be deleted from .030.A.l.b.i. and .030.A.2.d.i., and Definition D should be deleted. 4. Assurance of Completion Page 3, c.ii. It has essentially the same language as the existing TPO, which SPON says it wants to keep. Just what does SPON want? The fording of "a strong likelihood' is not reassuring. Funds may run short, priorities may change, the improvements may never be built. The project will proceed nevertheless, and we will be left with congestion forever. The project timeline runs 60 months (.030.A. L, page 2) and the improvement timeline runs 48 months, so the improvement is meant to be faster than the project. Therefore it is reasonable to add as the second sentence of .030.A.I.c.ii., "No building or grading permit for the project shall be issued until contracts have been let for 80%, by cost, of the improvements." 5. Funding Formula (Numerator) Page 4, line 2 Since only the vehicles making critical movements contribute to ICU, this should read, "... to the number of Project generated trips through critical moves at the Critical Intersection..." The wording in the March 10 revision is OK. As explained in Appendix 3 on ICU calculation, vehicles making non - critical moves are also significant. However, vehicles making free right turns do not enter into ICU calculations, and are excluded from both numerator and denominator in our proposal for an improved formula. (See next item.) 6. Funding. Formula (Denominator) Page 4, lines 3 to 6 "... divided by the total additional trips at that Critical Intersection from development authorized in the Land Use Element." Share of the project's growth compared to the projected growth and its impact on the operation of the intersection seems fair and equitable. 3/18/ab99 The project should pay for the percent of the improvement that it uses. If that improvement is only a quarter of what must ultimately be done at that intersection, then the BIA formula is four times too low. So the wording in the March 10 revision is marginally acceptable, but it does not define "increase in capacity." The ordinance would be clearer, shorter, and more explicit if the terms "impact," "benefits," "intersection capacity," and "traffic volume at an intersection" were defined and used, here and several other places, as detailed in Appendix 1. 2 r , 0 0 7. 300 ADT 300 Average Daily Trips (ADT) is too restrictive. It should be changed to 500. To give the existing TPO fair proportion, write "... with the amount of the fee for each improvement equal to the estimated cost of the improvement as determined by the Traffic Engineer, multiplied by the impact of the project on that intersection, and divided by the benefits of the improvement, this fee to be in addition to any other non - traffic- related fee ..." (31 new words.) Page 5, B.1.; p. 6, d.; p. 9, line 4 The moratorium is not intended to include small projects, such as single- family homes. 300 ADT is a very generous definition of "small." It ranks a 23,000 sq. ft. office building or a 40 -unit apartment complex as "small"! If amended, it should be tightened, not loosened. It has been suggested that a peak hour definition would suit the purpose better than ADT. This is OK. Some number such as 20 to 25 peak hour trips could be worked out, with the help of the Traffic Manager. It would be good to standardize on peak hour, instead of using peak hour some places and peak hour - and -a -half other places. 8. Accuracy and Rounding Page 5, B.2.; p. 9, M It has been fun pointing out that some of the numbers are only accurate to plus or minus 5 %. But no specific wording has been proposed. It is too much chutzpah to ask to have all calcu- lations rounded down to the next lower multiple of 5 %. It is not satisfactory to have all calculations rounded to the nearest percent, because that could produce results like this: Move Lanes Capacity Veh Utilizn Rounded EWthru 3 4800 1613 33.6% 34 %' EW left 1 1600 189 11.8% 12% NS thru 2 3200 1078 33.7% 34% NS left I 1600 170 10.60/, 11% TOTAL 89.7% 91% (Approve) (Deny) So "ICU calculations shall be rounded down to the next lower percent." This can give results like this: Move Lanes Capcty Veh Utilizn Rounded EW thnt 3 4800 1675 34.9% 34% EW left 1 1600 187 11.7% 11% NS that 2 3200 1114 34.8% 34% NS left 1 1600 186 11.6% 11% TOTAL 93.0% 90% (Deny) (Approve) This is quite satisfactory. 3 /1B /ab99 Inaccurate numbers should not be made still worse by adding in the random fluctuations of rounding errors. Errors should be minimized by using several places of accuracy. (Our calculators all give at least seven digits, so this is no trouble.) The March 10 revision moves in the right direction by requiring three digits, but at least one more would be better. Definition M on page 9 should have the added sentence, "ICU calculations shall be carried to four decimal places of accuracy." (1 I new words.) This is the second change that should be made immediately in the TPO. The accuracy can be improved quite a bit. It is agreed that the biggest source of error is in the trip distribution — telling which direction from the project its traffic will come and go. These numbers can be made ten . times as accurate by making a run of the full NBTAM model. A run costs about $600, which is not large in comparison with preparing a traffic study. So in consultation with the Traffic Manager, words should be drafted requiring such a run, with no output data rounded off, for every project requiring a traffic study. 3 r t 9. 1 % Vicinity Test B.2.a. should read, "Increases the number of vehicles making a critical movement by less than one percent at each Critical Intersection ..." This change would make the sensitivity test apply only to traffic movements of importance in the ICU calculations (i.e., the operation of the intersections). 10. Annexations The BIA has not previously seen this SPON proposal, so it has no prepared position. Relative to the paragraph added below e.: Exclude the proposed added language. The proposed addition would seem to eliminate the exemption for annexed areas once a permit is issued, thereby virtually eliminating the reason for including this language. Page 5, B.2.a. and b. There may easily be, in time, dozens of project which will contribute 1% to 2% to the traffic at the congested intersection. If they are not controlled, they can double the traffic at that intersection! So the 1% criterion is necessary to extend the moratorium to a big enough vicinity to actually protect the intersection. Study of trip distribution patterns shows that the 1 % "vicinity" is not very big. It should be left alone. The corresponding criterion of %z% ICU is OK. Page 6, d.ii. and below e. The words "... which would generate three hun- dred (300) average daily trips more than the baseline" should be deleted, so that the developer must bring all impacted intersections up to Level of Service D before getting any Newport Beach permits. (Note: I don't understand the added paragraph, so I don't understand the objection and can not comment now.) 0 11. Extending Project Life Page 6, last thing There does not appear to be a way to extend a By then it has been so long that the project has project's life if its expiration date is approaching. probably been rethought and should apply as a new project. The March 10 version is OK. --- -- -------------------- — ------------------- 12. Purging "Committed" from Database Page 7, first B There does not appear to be a means of eliminating the traffic from currently approved projects from the data base if the project expires or is modified. 3/18/ab99 No problem; probably left out by mistake. Put in these words, largely lifted from earlier versions: Upon approval, each Project shall be considered "Committed" and the trips generated by that project shall be included in all subsequent Traffic Studies conducted pursuant to this Chapter. The Project shall continue in "Committed" status until such time as the final certificate of occupancy or final approval has been issued, or Approval of the Project has expired. More talk is probably needed to get it just right. 0 LJ i 13. Which Intersections The March 10 revision is OK. It refers to a list of intersections in the Circulation Element. Page 7, Definitions, A ICU calculations don't mean much unless there is a signal, and any intersection which has a congestion problem will have a signal, so just refer to signalized intersections. Then "Critical Intersection" shall mean a signalized intersection which has an ICU over 90%, either prior to or as a result of the Project. 14. Exempt Intersection Page 7, last thing The concept is extremely important and the March 10 revision is OK, except that the majority should be 5/7 rather than 4/5. We repeat our remark about it being easier to amend the U.S. Constitution than to approve one Newport Beach office building. The net effect of this provision is to permit still more traffic to be generated right here in Newport Beach where we already have more traffic than we want to build intersections for. This is absurd. This provision is an attempt to guard against a judgment similar to the Ambrose case in Laguna. The Ambrose case is not precedent; it is not published; you can't get a copy at the Law Library. You can go and look it up at the Appellate Court. Read the summary of it in Appendix 2 and see if you can see any similarity to our situation. But even if there were a lawsuit and we lost, the worst thing that would happen is that we would have to rearrange our priority list and make some improvements shown in our Circulation Element. This is not a disaster. It is objected that those would be "undesirable improvements." This is a continuation of the state of denial that can show improvements in the General Plan but regard them as undesirable. It is a manifestation of the inconsistency of the General Plan, but the TPO is being blamed for it. The entire concept of exempt intersections should be deleted. If it is not, then it should apply to an intersection for one prroiect only, rather than release the intersection from all TPO protection whatsoever. (Draft language has been supplied to Commissioner Kranzley, which I am sure he will be happy to share. It probably needs further work to put it in final shape.) 3 /18/ab99 S 2 /11 Appendix 1 Amendments to make the TPO Clearer, Shorter, and More Explicit 15.40.030.A.1.a. any 04tieal Intersection; OR A. I. b. ii. The benefits from Circulation System Improvements constructed or funded by the Project proponent eufweigh- the aaWwse impacts efPrejecF Pwffe en Critical Intersections. 4n 16 ImpmvementN is net to the and A. I. c. iii. The Project proponent pays a fee to construction of the improvement(s). The fee shall by nvulop4,hig the estimated cost of Improvement(s} b ' - °-L' Project gen ed 0!'ps at the Q4N ^ ^' Intersec divided by the ify at that ^1ti a..^..^^ _ ^.. ,.,v r ^_. the improvement, OR 15.40.030.A.I.a. There will be no critical intersection OR A. I. b. ii. The benefits from Circulation System Improvements constructed or funded by the Project proponent are greater than the impacts of the project, totaled over all critical intersections; OR A.Lb.iii. (Deleted.) A.l.c.i. The estimated cost is more than 135% of the fee, and fund A. I. c. iii. The Project proponent pays a fee to fund be construction of the improvement(s). The fee for each the improvement shall be equal to the estimated cost of the of improvement, multiplied by the impact of the Project one lion that intersection, and divided by the benefits of the eal improvement, OR A.2.d.i. be -critical Intersection-folp and A.2.d.ii. The benefits frew the Circulation System improvements- emAVeigh the Critical Intersections whieh wem not improved; or A.2.d.iii. There is an overall improvement in Levels of Service at impacted Critical Intersections during peak periods because of the Circulation System Improvements constructed or funded by the Project proponent; OR New definition: "Traffic volume at an intersection" shall mean the number of vehicles passing through the intersection during the peak hour used in calculating ICU, not counting those which make a movement (such as a free right turn) which does not conflict with any other movement A.2.d.i. There will be no Critical Intersection; and A. 2 d. ii. The benefits of the Circulation System Improvement are greater than the impacts of the project, totaled over all critical intersections; and A.2.d.iii. (Deleted.) New definitions: 'Impact' or "negative impact' shall mean-that part of the traffic volume at an intersection which is generated by the project "Benefits" shall mean the increase in intersection capacity resulting from the improvement. "Intersection capacity" shall mean the traffic volume at an intersection divided by the ICU. Critical Intersection " shall mean a signalized intersection which has an ICU over 90 %, eitherprior to or as a result of the Project. 3/18/ab99 6 ��g Appendix 2. The Ambrose Case AMBROSE v. LAGUNA has been through the superior court and up to the appellate court twice. It arose when some property owners couldn't build homes because the streets that served their lots had not been improved. The city said they could not build until the streets were improved to General Plan standards, 40 feet wide. The owners went to court. There were three questions to be settled: 1) Are the streets public? 2) If they are, does the city have to improve them? 3) If it does, can it use an assessment district to raise the money? I) Both the superior and the appellate court found the streets public. 2) The superior court found the city did not have to improve them. When the property owners appealed, the appellate court reversed this and found that the city did have to improve them, at its own expense. 3) Now that it had to improve the streets, the city decided they only had to be 20 feet wide. It formed an assessment district, but the superior court said it couldn't do that because under the appellate opinion, it must do the work at its own expense. The city stalled so long that the Superior Court ruled that it had decided to buy up the lots rather than improve the streets, and set a price on the lots. The city appealed. The judge (Crosby) who wrote the first appellate opinion agreed with the Superior Court. But the other two appellate judges (Wallin and Sills) disagreed. They said the city didn't have to buy the lots yet; it could still improve the streets. And they pointed out that the first opinion didn't sW an assessment district could not be used, and if it had said that, the decision might have been different. They wrote in the majority opinion, "... the city may use all available public financing mechanisms to improve and maintain these streets. That includes assessment districts." Both courts said that the city had to stick to the same standards it had set for the property owners: The streets must be improved to General Plan standards, 40 feet wide. The decision was unpublished, which means that the case can't be cited or used as a precedent. It was a "for this case only" decision. After the second appellate decision, the case was settled out of court. What has this to do with the TPO? The TPOpponents claim that some Newport Beach project might be turned down because it creates congestion at one of the intersections that the city has refused to build to full General Plan standards. They claim the Ambrose case shows that the court will require the city to build to General Plan standards. They say the "solution" is to allow the Council to exempt selected intersections from being used for TPO prohibitions. That is a "solution" to a nonexistent threat. Ambrose is vastly different from the TPO. It deals with access to property. In Newport Beach, the properties most often mentioned in examples are on a State Highway! There is no question of adequate access. The Ambrose court was not committed to the General Plan standards; it was committed to fair play - -- to making the city conform to the same standards it had set for the property owners. And Ambrose is not precedent. If such a suit were filed, Newport could defend itself by pointing out that we have a five -year improvement plan, setting priorities for how we will spend improvement money as it becomes available, and that to disrupt this plan for the *benefit of a particular developer would be to work hardship on other developers who need other improvements. At the very worst, if there were such a suit and we lost, we would merely have to rearrange our five- year plan and build what the General Plan calls for. This is no disaster. 3/18/ab99 7/� Appendix 3. ICU Calculations Vehicles making free right turns are ignored. They do not interfere with others and in a sense they do not even enter the intersection. Where there is no turn lane, turning vehicles line up with the thru vehicles and are added to the number of thru vehicles. EW movements all interfere with NS movements, so they must each have their own time allocated. Thus we can deal with EW and with NS separately, and then add the ICUs up. The EBT (East Bound Thru) and WBL (West Bound Left) interfere with each other, so the total EW time must be at least the sum of these two. Likewise, the WBT and EBL interfere with each other, so the total EW time must also be at least the sum of these two. But it only needs to be as much as the larger of those two sums. The movements with the smaller sum can always be fitted into the time taken up by the movements with the larger sum. These two movements are called critical movements. Each lane has a capacity of 1600 vehicles per hour. So if 600 cars use it during the peak hour, it has a utilization of 37.5 %. If there are three lanes serving a movement, then they have a combined capacity of 4800 vehicles per hour. If 600 cars use them during the peak hour, they have a utilization of 12.5 %. Intersection Capacity Utilization (ICU) is simply the sum of the utilizations of the four critical movements. The next page, "Story of an Intersection," gives examples of computing ICUs. You always have to compute twice as many utilizations as you use, because half of them have a smaller sum than the critical ones, and get ignored. These non - critical ones may have a sum almost as big as the critical ones. In this case, a slight shift in the pattern of loading could make their sum bigger and make them become the critical ones. That is why SPON does not want to ignore the non - critical movements and consider only the critical ones. If the non - critical ones are making a big contribution to the calculation, then they are in danger of becoming critical, and are quite significant. The free right turns, on the other hand, have no effect and are in no danger of having an effect. It is reasonable to ignore them, as is done in the proposed definition of "Traffic volume at an intersection." ICU is the most meaningful number we have t work with. Capacity and traffic volume are f izzie because they may fit together or may not fit. If the capacity and the traffic are on the same movements, they fit. But with "capacity" or "traffic volume" by itself is not meaningful until you know how it fits the one it has to work with. Of the two, traffic volume is probably the most definite. You can count traffic. You can compute the number of trips a project will put through each movement. So "intersection capacity" is defined in terms of ICU and traffic volume by capacity = traffic / ICU. (This is because for each movement, utilization = traffic / capacity.) The examples which follow show the several formulas for computing the fee a project must pay. They all agree that it should be the cost of the improvement, multiplied by a fraction. They also agree that the numerator should be the traffic volume the project puts into the intersection. The existing TPO formula for the denominator makes no sense. It is the additional traffic anticipated to result from development within the City of Newport Beach from date of project approval to the date on whicl* construction of the improvement(s) is to commence. The BIA formula is the projected total additional trips at the critical intersection from development authorized in the Land Use Element. The March 10 revision formula, and the SPON proposed formula, use the increase in intersection capacity resulting from the improvement. 3/18/ab99 8 Have fun! 0 0 STORY OF AN INTERSECTION An example of proportional cost calculations 6000 cars pass through the hero of this story during the peak hour. This is 1/20 of the total trips generated in Newport Beach during the peak hour. We predict future peak hour traffic volumes as follows: Cars now Annual growth Ultimate size Newport Beach 120,000 2000 180,000 Intersection 6,000 100 9,000 (This is an example. These figures try to be reasonable, but they do not pretend to be accurate.) A proposed project will add 72 cars to one leg of this intersection during the peak hour, which is more than 1% of present traffic volume on this leg. The ICU is .9376 now, and with project traffic added, it will be .9526, so some improvements must be made. A set of improvements is scheduled for construction two years from now, which will bring the ICU (including project traffic) back down to .8632. The cost of these improvements is much larger than the scale of the project, so it would be unreasonable to expect the project to pay the whole cost. Under section A.i.c. of the TPO, it can contribute a fraction of the cost of these improvements and proceed right now. What fraction of the cost should this project pay? The proposed formula looks at what happens to the ICU to determine how much good the improvements do. The number of cars which do not make free right turns is 60 from the project, and 5000 others. So the capacity before improvements is 5060/.9526 = 5312 The capacity with improvements is 5060/.8632 = 5862 The increase of capacity is 5862 — 5312 = 550 So the fraction the project would pay by the proposed formula is 60/550 = 10.9% The fraction using the BIA proposal is 72/(9000 — 6000) = 72/3000 = 2.4% The fraction using the existing TPO is 72/4000 = 1.8% But this formula depends on how long it will be until the improvements are built. Two years was mentioned above. But if it were just three months, then the fraction using the TPO would be 72/500 = 14.4% 3/18/ab99 9 '' !� Present EBL 250 71 EBT 1000 EBR. 250 N With project EBL 262 71 EBT 1048 4 EBR 262 N With project and improvements 71 EBL 262 71 EBT 1048 4 EBR. 262 N (Each lane has a capacity of 1600 cars per hour) 1000/3200 = .3125 SBR. SBT SBL = South Bound Left turns 262/1600 = 250 1000 250 1000/3200 = .3125 EBT V y y N 250/1600 = .1563 WBL K 250 WBR .4688 EW F 1000 WBT = Through •4688 NS E- .9376 F V 250 WBL K TT 71 250 1000 250 NBL N13T NBR = North Bound Right turns SBR. SBT SBL 250 1000 250 V ,l, 4, N K TT 71 250 1000 250 NBL NBT NBR SBR. SBT SBL 250 1000 250 V ,l, 4, N K TT 71 250 1000 250 NBL NBT N13R 3/18/ab99 10 11 LI 0 1000/3200 = .3125 WBT 262/1600 = .1638 EBL 250 WBR .4763 (Smaller) F 1048/3200 = .3125 EBT F 1000 WBT .3275 EBL F 250/1600 = .1563 WBL V 250 WBL .4838 EW V 250 WBL .4688 NS .9526 3/18/ab99 10 11 LI 0 1048/4800 = .2183 EBT 250/1600 = .1563 WBL .3746 (Smaller) 250 WBR 1000/3200 = .3125 WBT F 262/3200 = EBL 1000 WBT .0819 E- .3944 EW V 250 WBL .4688 NS .8632 3/18/ab99 10 11 LI 0 Community Associations Alliance P.O. Box 319 Corona del Mar, CA 92625 -0319 Officers & Potential legal challenges involving proportionality (Dolan vs. Tigard) and the Directors Chairman Edward Selich and Members of the Planning Commission Court BOA City of Newport Beach Chairman P.O. Box 1758 April 8, 1999 Philip Arst Past-President Newport Beach CA 92658 -8915 ew p Broadmoor Hills CA protecting the public such as anti - pollution laws, building density restrictions, President Dear Chairman Selich and Planning Commissioners: Vice Chairman the "taking" claim under Diamond Crestview does not apply as it deprived Paul Gerst Director The Bluffs The Community Association Alliance (CAA) applauds the proposal of the Homeowners Assn Planning Commission to conduct complete reviews of the multiple applications Treasurer for projects in Newport Center and potentially the airport area. Changing from Ernie Hatcbell a reactive mode into examining all of the issues involved in multiple projects President Harbor Ridge Estates MCA; will greatly benefit the City. Harbor Ridge traffic impacts to provide even greater economic benefits are also available. Master Association; We believe that instead of doing a major traffic change on a piecemeal basis, Harbor Ridge Crest MCA traffic should be viewed in the same comprehensive planning context. A more Leland Oliver measured look accompanied by the development of comprehensive plans, as Secretary Ross Miller are proposed for the Newport Center and Airport Areas, could define the road Past President improvements and type of city desired by its citizens. Spyglass Ridge CA economically viable use of his land? No. The nature of the restriction is not a Larry Stinson Potential legal challenges involving proportionality (Dolan vs. Tigard) and the Director Bayview "taking" of property rights (Diamond Crestview) have been cited as Court BOA justification for the Proposed TPO (PTPO.) Melinda Mason President Big Canyon Enclosure 2 cites Supreme Court, California and other "taking" cases. These Villas HOA cases confirm that a city has the right and indeed obligation to pass laws Ed Benson protecting the public such as anti - pollution laws, building density restrictions, President zoning laws, traffic laws etc. The proportionality issue is confirmed. However, Dover Shores CA the "taking" claim under Diamond Crestview does not apply as it deprived Barry Eaton property owners of all economic uses of their property while the traffic President Eastbluff BOA restrictions contained in the Existing TPO (ETPO) do not. For example, a developer could build 22,000 -sq. ft. of office space on a vacant property and Gene O'Rourke Director Harbor pass the ETPO regardless of the level of traffic on impacted intersections View Hills (So.) BOA because this project generates under 300 ADT's. Other methods of calculating Bill Zinn traffic impacts to provide even greater economic benefits are also available. President Plaza Homeowners Assn Therefore the ETPO is not a "taking" because it passes atwo- pronged test Leland Oliver established by the Supreme Court: 1.) Does the law advance legitimate state North Bluffs CA interests? —Yes. The City has a legitimate interest in controlling traffic to Vicki Weiss President protect its citizens. 2.) Does the law deny an owner substantially all Newport North BOA economically viable use of his land? No. The nature of the restriction is not a Ron Jackson Director "total taking" because of the above cited economic uses that are still available Spyglass Hill CA to property owners. (Notian vs. California Coastal Commission (1987) 107SCt i so 3141, 3146. This rule has been confirmed by three cited California decisions. Ross Miller Board Member Friends of Oasis We believe that the proposed PTPO goes considerably beyond "legal • protection" needs and would reduce traffic congestion limiting restrictions to changing Newport Beach into a congested metropolitan high -rise city. Its own PC Letter 4 -5 1 ,e/ —I Attachments 3 & 4 show a city with over one third of its intersections congested to unsatisfactory levels (i.e. LOS `E" or greater.)(Enclosure 1.) Certainly a stopgap proposal, as we have submitted, is preferable to this outcome pending full development of Specific Area and General Plans. A reasonable approach to meeting both the possible legal challenges and need for a General Plan update . without hastily changing the city in ways we will later regret is described below: (see Enclosure 3 "PTPO Decision Flow Chart" 1 Only correct the "Proportionality Problem" as a stopgap and go to work on the General Plan to do the proper job of balancing city growth and traffic. Correcting the proportionality exposure will buy time to do a General Plan Update. This will enable a balance of the many factions to be considered in maintaining Newport Beach as the top place to live, work and enjoy natural recreations in the County. This step involves the adoption of the 32 -word change plus definitions and enabling language the CAA previously proposed. (See enclosure 4) 2. Exclude General Plan Amendments and Annexations from coverage of the PTPO until the General Plan has been updated. Use the ETPO for them instead. All projects seeking a General Plan change should have to satisfy the full requirements of the existing TPO. After all, proportionality and "taking" of property rights does not anoly to them, as they have no standing. Therefore, adding any new projects over and above the already out of balance General Plan should require a full mitigation of the unsatisfactory traffic congestion they create. Annexation is a political decision and should be judged on the merit of the individual cases. Pr =ortionality and "takings nropertv rights is certainly not a legal issue requiring a change to the ETPO to accommodate them. The current wording of the PTPO accepts the building of a substandard road system by the annexed area developer. It then places the financial burden of bringing their streets into LOS `D" on the citizens of Newport Beach. 3. If you decide to proceed on the PTPO an=ay. then only- correct Proportionality Problem and do some general updating while precluding major traffic congestion until the General Plan is Updated If the city chooses to proceed beyond the 32 word suggested change PLUS ACCOMPANYING DEFINITIONS to the ETPO, then the list of necessary changes to the PTPO contained in Enclosure 5 needs to be incorporated. Essential to a rational review of these changes would be the City's agreement to change the titles of its terms to eliminate conflicts and misinterpretations (i.e. "Critical Intersection in the ETPO should be changed to `controlled Intersection" or equivalent to avoid confusion with "Critical Intersection in the ETPO. (See Enclosure 5 for list of confusing terms.) Providing a minimum legal protection and then developing a prover General Plan is a better way to manage the City. The stopgap PTPO is not. To place the stopgap PTPO into perspective, its major problems are summarized as follows: Its most serious flaw is that it does not mandate timely mitigation of the congestion caused by a project in all instances. a • It permits projects to proceed to create unsatisfactory intersections on the vague assumption that they may later be mitigated. In point of fact, a number of intersections will never be mitigated (for • example, The City projects 1.3 andl.27 ICUs in multiple intersections.) 3 PC Letter 4 -5 • If the PTPO is implemented, it predicts that over one third of the intersections in the City will become overly congested (i.e. LOS E or greater) changing the City into a congested high -rise metropolitan area. This congestion in particular impedes emergency traffic on our city's two lifelines (PCH and Bristol.) (See intersection Map Encl. 1) • • It permits all TPO traffic fees to be waived via a Development Agreement which would render the entire law moot. (15.40.075 A.3) • Four votes of the council can do what required a six vote override before, i.e. accept a project involving "non- feasible improvements" based upon its providing "benefits" that subjectively outweigh its traffic impacts. This may be done even though the benefits may be applied in any area of the city and to any level of intersection and can be as simple as restripping.' • It unnecessarily adds a category of "Exempt Intersections" that abandon traffic controls and waive even proportional congestion mitigation fees. • It goes considerably beyond being a fix for "legal " problems by adding permission for annexed areas to exceed LOS `D" at the time of annexation. This will burden the people of Newport Beach with the costs of bringing the streets of these areas up to Newport Beach standards. s One must question the goals of this proposed change as it goes far beyond its initial purpose of protecting the City from potential legal challenges. A final point is that the CAA has provided Enclosure 5 "Definition of Terms for ETPO and PTPO." These terms are a supplement for the "colored" flow charts for these two procedures provided by the City Staff. While the procedures for both TPO's shown on the city's charts are virtually identical, they are actually considerably different in their resulting mitigation because of the complete differences In the definition of mitigation requirements as well as other common terms used . Thank you for your review of these recommendations and your service to the City, Community Association Alliance Enclosures 1. Unsatisfactory Intersection Street Map 2. "Taking Without Compensation" Law Review 3. PTPO Decision Flow Chart (original signed) 4.32 Word Change to PTPO to Provide Proportionality Philip L. Arst 5. List of Major Recommended Changes to PTPO Chairman 6. Definition of Terms for ETPO and PTPO 7. Office Building Economics ' Section 15.40.030 A. Lb does not contain a mechanism for requiring mitigation of Unsatisfactory Levels of Traffic Service created or made worse by a project if there is no Feasible Improvement planned for that intersection. 030 A. Lb. (ii) acknowledges that mitigation measures need not be for Improvements that mitigate project impacts. Similarly, 030 A.c. contains a proportional payment provision but no requirement that the unsatisfactory condition actually be mitigated in a timely manner. Section 040 G. "Circulation system Improvements contains a defmifion of the scale of improvements that can be considerably less than that required for the ETPO i.e. restripping an intersection is given mitigation credit under the PTPO and is specifically excluded under the ETPO. ' Appendices 3 & 4 to the TPO show over one third of the "Critical Intersections" (define critical as all monitored intersections under the PTPO) to be at LOS `E' and above with several intersections projected at ICU's of 1.3 and 1.27 for 2010. 030 A.I.b.(ii) ' 030 B.3. Exempts pre - existing unsatisfactory traffic conditions in areas that are built outside of the City's jurisdiction and are later annexed to the City. The annexed areas must conform to the PTPO for all -later developments or changes. PC Letter 4 -5 i PROPOSED UNSATISFACTORY AND MARGINALLY CONGESTED INTERSECTIONS ® EXEMPT ® UNSATISFACTORY ® LOS 'D' ?? Owl NORTH �inS.SLE AveMge Daily nn d& Tram 00va" ►r Elm ISM Summer: P*Anw 1993 Summer: Number 1MSsN�m4s[ Up 0 • Enclosure 3 PTPO Decision Flow Chart Projects Included in General Plan Use Proposed 32 word change to ETPO Plus Definitions No Yes Comprehen- sive General Plan Update General Plan Amendment / Annexation Use the Existing TPO in the interim while developing a General Plan Update. Use Proposed 32 word change to ETPO Plus Definitions And implement list of changes to PTPO: Require mitigation of impacted intersections Add Impacted Intersection Definition Revise Circulation System Improvement Definition Revise Feasible Improvement Definition Revise definition of Critical Intersection to highlight >LOS D Remove Exempt Category and replace with 6 vote override Require mitigation of A.l.c. before project can proceed • Remove annexation section • Remove dispensation for Development agreements Etc. /9 -b (Attachment 4) Proposed Changes to Existing Traffic Phasing Ordinance To Make it Proportional Change Existing TPO (Newport Beach Ordinance 15.40 as follows: is (1.) Revise section 15.40.030 A.i.c.3 to read as follows: (Changed words are in bold type font.) A.i.c.2 change "account" to Intersection Improvement Account" A.i.c.3. "Approval of the project is conditioned upon payment of a fee to fund construction of the improvement(s) with the amount of the fee for each improvement equal to the estimated cost of the improvement as determined by the Traffic Engineer, multiplied by the impact of the project on that intersection, and divided by the benefits of the improvement, this fee to be in addition to any other non - traffic related fee, contribution or condition required by, or imposed pursuant to, ordinances, plans, policies, or rules of the City of Newport Beach, or provisions of state law, including, but not limited to, the California Environmental Quality Act, or the Subdivision Map Act: and" In order to provide a clear understanding of the changed paragraph, the following definitions of terms used is provided: (Please note that to the extent that the Manual of the Institute of Traffic Engineers defines these terms it will be the governing document.) 14.40.040 Definitions "Impact" or `negative impact' shall mean the part of the traffic at an intersection, which is generated by the project. • "Benefits" shall mean the increase in intersection capacity resulting from the improvement. Intersection capacity" shall mean the traffic at an intersection divided by the ICU. "Traffic at an intersection" shall mean the number of vehicles passing through the intersection during the peak hour used in calculating ICU, not counting those which make a movement (such as a free right turn) which does not conflict with any other movement. "Intersection Improvement Account" shall be the collector of funds obtained under the provisions of proportional payments under section 15.40.030.A.i.c. above. The Improvement Account for each impacted intersection must be sufficient to fund the construction of the major physical improvements required and construction is to start before project construction can commence. PC Letter 4 -5 1y -fie 0 h 61 CA C� .0 a 6l y O O ^L F+Y O v C C� �Uu eC Q � ii q O U a C O U ly'7 'D U 0.l E N y C N CO 'E y N ro w y ^C �w• G O O o �n .O '-r .0 T' Oava�w ? ° °oars 4oc O o ° 0. ¢• N .^O > r"' 00 ^ 7 �^ v '� d v Go •O 00 a3i � aCi � 'L ey .y-. � � ,ry yyO... �p U CC �M w .0 OK N P. ° U W C ~. 00 .� - ,UC. N'D 7 U T•�y++ U -. 0 ° boo W Y 0> a E O N o O T� N ^. L a G C 3 o a. P K-0 c p C w> C a U N N P 3 p O O N E N b G t.U^. Y UO '"" `. Ems. °E>' CD a .N. ° w.od ^N "C o .e 'N ctdo_C o eN o U O^ C 'O CC •C �O o C w O 'E vU C N U wo a '� O CC A Q .0 w •C C 'w .�.. C U .yC '� CO > ° PE U > y C C U p U 'N O^ .. F. y .^ .° G y 33 O 8 a .N. ° O O w��'NaU C a �• 'O C�y.E o�Np NPp [yo CGV 7P.N Q� N N i' v U U v. a• O C0. ey 4+ o' �. C y T U h E ° C � p N C N s r C O 2°'' w o m ^>% y ,`� > .m 3 a� o E N tq E •� 7 v NQ �aXJ .� a c� C g N°UYo p 0 0r Ay0 F.P. ; c_ O a d o pO,i FO3 to �.p ON's R. U .0 7 U G o O �i �v �i C `� �`� a 0 O e�g'°�Z�� °Ji 3 , 0 pp 'O N C N 0. C Y 7° U° '� C C w O .'C. N a'C. o• 0. N ro 7 :� N C7 O a. U .N -.° U o V. J o 7 ouv c o o; E' I � v N w i� c °o z O to p0 „ ° c �; N N v W O °' � W oa a � .o c •� ° a •z N .. CL P. 0 Z 0 N v W a"i � N o � p 'O •y C O O d o c 33 c H 7 0.'O E U C U o N C v .E N U 0❑3« T O Q p T N E N > O E N .7 m E y O to N w A o h 0. � W E v E o b W a° 7 a H w v° p w S to ao 0 ly'7 m- 0 0 u •� O 00 b G� � '� N O N�`� O .y O H y C � N ,� � w >0U0• ^0.L co to CNArA yyCO p�pO� N:dC °U Uwe M �Op w °CEE oy o�N o C O y F k7 F V G Q ••.�.. E O O o �raMocW a °� Oo�' °p ffi >°0' °�." °> Y.Ej a.Ni F O c S o° Par rw oq v o• E• o a •o w W o v❑ o '� N m y '' a " " o" 33 O p RFi aao b °' x "a�civ >o a0G .w .�G� m �c � .o o = N ° N o°g c Co a ° .� 'G ° w> o D c° .^ ^ 0.5 W nGi a AAR a> w Fi ° c K q o¢ ° o v 5 ai m s s ° aoi c e° bn CL OD i.Ga�a avi a o aw' o awU 2 C Y OD y 0> w 00 �y qC •5 E N W O P. w t� p ctl U O 50- O O U 7 'EL qN td U p .^GJ 0 y A v ti p �pn 5 ti a: o x W 2a p a f um aO Z •C 0.9 ° .0 C V] ,jo C is ti v rA i '^' o o '•°' °� 0 0 Aa � o °° Z av�i y. w o 00 4. C �y y 00 ..�. a� ° p .� a� C O 0 C •,� b N 0 tFt'-'+' w 'o �' pQp.., N B a o N 7 `o' .� F wooW °GgoA° C coa cmoo w w tL cz U c e e otn a o e IV C ° e o Fq o e e m- 0 0 u � 0 � ƒ / 2 ) ]) \ )j /) \) zd §/ w � /§) /k)k( wam�aw, \/ a (� 9 -9 `- L y O U b W M, E-4 "O C1 C� W i, W O H yOy 1�1 C1 A L O W U W b a> a ly- to 0 0 0 o _ o�� too 00 G .n C . A u N W . g Z wp v �3 a 0 0 -a a -a _ b a Gw eoa C 43 C 0 ❑ dx o s Mo o o p o^ o o N H 3 3 ° ^ too •N O N N � 0 0 O o �- q rn •� w w >� N c ° o y ..0 c �.�° _ o p o 0_3?° F c� a° c r o 0.- ° a ,^ y� p— o y o 0.0 7 N N w "a,'C .,C.. O = N N O i-i i}Ci i+ lV b iC I+ bo o _ Y C q 'd 'O `° s •a� o o s c >,zGam. , V w C. pOp 0..o U b0 N m .d O '� U O ..0 y •M N r y o c o m c= >, 0=.G ° a 0 O � O p 0..,� N C y y G y- 0 14 14 .- °°' o ;o G... o G a�i .= Z3 a o O o 14. a o °^h. 4°' wj w ly- to 0 0 0 0 L L /9- 11 .O ti b O A O C O C K C A lo O 0 w >. C + .° v e" p 3 a e '$ N a o m 0 oa0 a .1c p a c ca o �ai .0 c o � ? c r ro Qd:: U m .a S:4 Oa G 0 O f: aA o CZ aI E �. o 0 m °.'a•E 3U.Q A 3d A aW yc o fl° o a o ro i� � o O > 0 w -M O C _� C O O pp U p ^' G W O O V O " u. N N O y Eow'3 «woo c�w3> Fo c o 0 0 0 bb 0 .=Z o r o . c G'bo � a o 'o �a ° o a w o UW .. .o'. U . o d. 0., «N+ N O m N N 2 E F' C N .,-., .O+ o U .A.. N •d A E U Ab_0 C P. O .� p y y� O N o O O .m tl O C v U 'G pOp�. N H O w W °c° a> to Eym �0o °o c t° oO bai aoiooi voa m y p o .� a�i p'w, m 4c 'o W w U 0 b .O > •A F C :E c N on A o a 3 y 'Z-' G o C 4) 45 N 0 pO ca A o j ¢O N .y ro 'C O^ w. > . > > w 3 00 C.0 '^ coo a o o cn V m w �o w' o M C14 d +� Cl A N L y u > o yea w� d _ cc lea z 6 a w /9- 11 Philip Arst 2601 Lighthouse Lane Corona del Mar, CA 92625 Mayor Dennis O'Neill and Members of the Newport Beach City Council February 17, 1999 City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Mayor O'Neill and Members of the City Council: This is to report on an investigation of the benefit/cost ratios of office buildings in terms of costs to the City. Summa • Office buildings are revenue neutral at the time of their construction. • As office buildings age, their cost of services is forecast to rise faster than their property tax revenues (limited by Proposition 13.) • Retail and Hotel developments are highly profitable for cities because their sales and TOT taxes provide high excess revenues over the cost of their needed city services. Office buildings generate large amounts of traffic creating congestion, particularly during rush hours. It is recommended that the City of Newport Beach should take note of this information and revise its thinking about growth accordingly. For example, the city should not make General Plan changes to permit high- intensity office building development. The City instead should concentrate on encouraging retail and hotel facilities. In point of fact, the city probably loses retail sales and hotel TOT revenues if it permits excessive traffic congestion generated by high- intensity office buildings on already overcrowded streets. Instead, it should encourage retail and hotel development by keeping Newport Beach a pleasant uncongested place to shop and visit. This data has been obtained from objective sources, principally the City of Irvine General Plan. There is no doubt that a consultant could be hired to make other assumptions and prove almost any case. `Environmental consultants are typically not retained to prepare environmental documentation that results in denial of their client's projects." (Robert Burnham, City of Newport Beach —See attachment 2.) Therefore any subsequent such study must withstand the test of objectivity vs. the conclusions of the City of Irvine. Office Building Economics2.doc 1 04/08/99 /y- /02 0 0 General Discussion A complete source of information on the Benefit/Cost tradeoffs of Office buildings is in the General Plan of the City of Irvine. (See attachment 1. - Table IV -5) It concludes that office buildings are neither revenue positive nor revenue negative for the city. Irvine's tabulation of the net surplus of revenues per acre for both Commercial/Industrial and Residential Land Uses is as follows: Commercial/Industrial Hotel +$62,000 Retail +$29,014 Mfg. / Warehouse +$5,479 Office -$70 Medical Office -$463 R &D -$496 Residential Land Uses High Density - $9,053 MedHigh -5,685 Medium - $2,939 Low - $1,725 Rural/Est. -$374 The Irvine Planner who did the study commented that they conducted a survey of office workers and found that they do their shopping in their home neighborhoods. They therefore considered sales tax revenues from office buildings to be insignificant and did not include them. They made allowances for excessive street wear /maintenance for the high amount of traffic generated by this use (10 -13 ADT's per 1000 -sq. ft.) on the cost side. The net conclusion on office buildings was that without sales taxes there was not enough revenue to show a surplus over the levels of public services required for their support. • The study performed by the City of Irvine is the primary data source used, as no other cities that • have performed this type of analysis have been located. Calls were made to many large Orange County cities and several upstate. Calls were made to the County of Orange and particularly the OC Fire Authority, and the Fire Chief of the City of Newport Beach. • Corroboration of this revenue neutral conclusion was obtained verbally from Al Gobar of Al Gobar & Associates, an economics consultant, who is experienced in this type of study. His exact words were that "all things considered, office buildings are a push." • Due to the objective approach taken by the city of Irvine Planning Department and the corroboration of the other data sources, its conclusions are reasonable to show a trend. Some drawbacks of the Irvine Study are-, • It is approximately ten years old. All data is expressed in 1988 dollars. • Revenues are based upon the higher level of property tax revenues available at that time • Revenues and expenses exclude Fire Safety costs as Irvine uses the OC Fire Authority. Because of the above drawbacks, the Irvine study is considered conservative and understates the true losses of office buildings and other similar industrial developments. This is because: The percentage of property tax revenues that are rebated by the State to Local Cities has been . severely reduced since 1988. Office Building Economics2.doc 2 04/08/99 /y j3 • Property tax revenue increases are limited by prop. 13 to a maximum of 2% per year. This class of property is typically owned for very long periods of time (when was the last time the Irvine Company sold a major office building in Newport Beach ?) . • The costs of city services are primarily personnel costs. These can be conservatively estimated as increasing at the long -term rate of inflation or 4% per year. • Even if the Irvine cost estimates were understated, the same rationale was used for all classes of Land Uses thereby making the relationships between them valid. Even if the Irvine cost estimates were understated, the resultant effects of the cost of services rising more rapidly than property taxes will serve to make office buildings a higher drain on the City General Fund as time goes on. Neither the OC Fire Authority nor the City of Newport Beach has any data comparing the costs of providing fire safety services to office buildings vs. revenues received. Both stated that modern sprinklered buildings have a much lower incidence of fires than older buildings, but that the risks when one occurs are significantly greater. Both stated that providing paramedic services for these buildings has become increasingly costly. For example, in a 500,000 -sq. ft. 10 -12 story building, 4,000 employees must be served. Time to get to the building, use the elevators and to provide emergency paramedic service is critical and increasingly costly. Neither claimed that office buildings were anything but break even at their current level of cost analysis. Conclusions While this is an admittedly small sample, it is from a major city - planning department and is corroborated by an outside source. These results support the common sense conclusion that without sales tax revenues, even with high business license revenues; office buildings do not provide any net income to the city. Over time, they can be shown to be a net cost against the General Fund. Unquestionably, different approaches can be taken for some of the calculations. However, the net conclusion of revenue neutrality is reasonable and will not change. The City of Newport Beach will be better served by not permitting additional office building developments beyond those that can be accommodated by the Circulation Element capacity as authorized by the General Plan. Instead, the city should encourage retail and hotel development by keeping Newport Beach a pleasant uncongested place to shop and visit. In the hope that this is of value to you in your efforts to make Newport Beach a better city, Sincerely, Philip L. Arst Office Building Economicsldoc CC: Newport Beach City Council Newport Beach Planning Commission CAA Members, Jean Watt, Tom Hyans, others Chairmen EQAC and EDC 04/08/99 //.) —I Y 0 A i F f I i •1 I N� W N P4 N I H d �x V r i . qm Q � Imom„lm [7k 1 rl I as d . r .�Oaoea00PyANeaV.�.1 N q Vv•pO .ba i p. EA-tm1 ^ N i•O. w . OemO0OA0. -NPPN Y M A.� . r O NP tlM•atlA a m • 4P . M M P NAM Y A N N R N . Y V• w w Y ' tl O M O O P tl O O N w tl 0 N M. •O P NN MN1-NN � A � Y tl. N •f ^ O r Y N. N N � R N i � ■ N � a � mONOOA NpAMRlpN t0 � q.O N tl ^q rNN•PIA 1 • AN Mr t O o A o Oq P^ a � N N � Y . N N w. V V ' W Nw O. -RO.ON v r ' NMI NN • N ■ R � • 1 • tl P r N tl P O N O o A 0 0 N P. M . PIM+IdA N m IVn V .r- 1a1N• O • . p . x . •p .+ q R q N a 00 . ' -a P�oO�o •O■ P4 WNW K• q M Y r ^ t N. u• w t O o A o Oq P^ a m. M P M v N M I q M V A r 11 r• \ • N a A +• UN. C • a i MolM.fyOO Nq Y. ^QOOApm u ; • tl M V M w N O• O • N N . I N Y • Pb�rM1ntpOOwaOO�oq U C . • • Y Al a : N r 0 a V . N • 11 iW ; a r OAOEn 94M. • MgMMiq 2100 MMtaN e XNr C NNW 1 —= r VO W • Sa KK itUZ PYtn O . CK K. c W ~CI 0 1 W'�1' x W NJU at � W • �L YU01 tMZNJO Wi a.00 .Z.. 1,1 -Ow�f �aw(�N O■vq • 6 6• K =w WOLW�K yy O I? O at r AN ^ ^gMam.0O• wM.N .rgdN ^a1n. MN ti.An.MNM11y.� R1..� REa.MM NEa m r0 O Iftrr All. EON :I••Otl N110 a■ mO . VN u tl Nqw �• NN N N b . M v R R N ON Pd • M/MPO ^PN UN N^ b N V Y N. N M P M Z. w ^^ aM. Nv • K . v MNONMtln a NN O • PqN-AN a.- •ON M. tl N M • ^ 11M NM .v A 1.O ^ tl w M^ O R O g O v V W gAVOwgtl O . 1. . p n N NN vv � • Y K . ✓.I.M1 7N ^-^ AU1A11. p O . a i • w a N a N . Na ■ N P. a wo 00 NIA.. G N O. .AO'OMU4 U% * YM groa1 . M r N r ,nth V _ • N N 1 N Y ; N�OPA�'W ON P.. � . n b . r '44 . n . O.AOOgMtlEDUq. q • M ^A.MP a 1 1fi1 o00 NrO wM•NM1 N N. N u• M ■V v a N . C u m q M tl P. M N N. O M N N N tl r. p N . N IN i W ttu O• y a 6m u Ck w }■a b. a+; w WW yy 4. d1Yew 0} NY uu Z. I.HNIa�O W A. U— z 2 r. iiuuu to '� n J� •�_ .a .a r W w Y O Y Oga m M w M O U y v ,M -vt-oa wcu ic•o, FAX N0. 916 443 1960 P. 1;2/07 c4 "s N v w v 04 za 16, CO d ! bu m 3•��U rz M N N� N�w m AWN O 9 , e O W q 4w.. '�' yC� '° ym o i� N s. ate° O �4' .F m V a y H% yr 8, o'snw�°$= onw°o�racoE°°',o�,�sn$ Z •.> PRi iQ •2 C W y d ��.' N •,�J ''q C, p -L iCi m r•, w ° �,�:d a.$s'O'n,� p'J � y� �•cs� �of �YOS �Ox� , 0 y T-6 ,e aQ. �MN � Ir, G `0 L' O • m Ymm 'q w .b y N "C .Q •'�8 u' C7 C • a�pO M 41 ... V G1_W C ltl o t0 mx wN 0"a a wts [� ed bti'0'OW.�en :y g'm R O .a M rda n' •a°-,, 1" �t.aJ .0 a, S :, ,r'Cra v'� ' `Q •-, v d��6sv�,'`��3.ode.c «�,'iae r g� Cob d �' .�i ...«. N �. C m � w 'W $ w 'adyd+ 'o ° :►3 '" `° A �v? vy cwt o� �.i'3axi ooa3 0 oe`"yy�m• C3 aq r. cc C O G ��" ", m ,3 d�J rn 'y'O'7 tV Gov �iVazsB °e 8..�..a',s"0a`+LSoo t�otioyoc=.o�:; Z o h s .t •*0 O.t' . td s Ora S.s C"1 �� w on Ox`. w tF 9� w � v R 4,. Lis ^" '.Qj IS °a12Z,.0 ~ wmg+i wp�•� w do 03 IV VOO, ° £ o .�u�C� C4° a cx pw-t rC, C F cc to OV ga iL ror OS'O 1"C'.' °m�•/•�V'R7 t.�8�cac�qq m °°5ai`i Q . W Q'�`'�m8.�s BO eS"�aizww dd 118392 a m U cc 6 �Up Qtr t.r.�, Va'.�n °,y°• W ao eaia F m 0.i m ii .o (� iW7 !'�+ R G7 0 �.r3Q R y soil go a 21 1y `Ito N L T C `O .y. li q, w CJ V O F O O C '. bj) poo a[yovo y's �, O O G �' •« A C pb�.4'a�SAa'oU •oaCo�r� ti a g w m m> o p mo°•u��•„ra •G7 C E'°.8F poi j o .qr G Co N o o.R� � orb dO C ly s tm0 h G ^ m � > C u t O n V o H v cc b w C V C O. m G 'trb d a0i •'�' � G d �. G ti z ° °6 • qa, ^aoi —oo,v G.EY"�I � L. � d � 4Q •ia C H 4Sp W 6C1 U 41 > °w EEE- L°' Im 4 d a.E�a°�ao'ntl� $ 0.; .. d V a bb w •�' .du .0 �yyi > God L' C .O^ ••• y Y •0. � R Ev U4oC���m W GI °m�mfg �y? rd+.°. wq U.: .4 A~ cr Q• a C '.�"' i1 C � F a °cam a m m S ao �U ��li OA {y q°Ntp" Car>wU act 6 ed .� p' 'i'i Pi .y�p 3 tb FC• �' 6m �.. qMq�� a F G C N q 9.0 � '° d Mi •.i w W I W Y .6 1 Lv I d r p., . d . 4, ... i. U W � m4° a 6 d •� y•.go °L�tluey$$�..mbaC0'Ie 14 Q6 C N• tiD n as �j Vim$ giwB3R: 33F }• -o¢ mom' °cuROa a'1 d' ej pop+ 4,1a[ aw e w o oy},� o v e° n 2 a g, p;' rm c m 4. Aa�'LCr-aymC•v0.xq 1 k C o IV v °2odi2. o7"A � Tso"�gi aa.« 0 CL •° r ayi r8 A C m L+ n p, ae .t yl v� j`���.I' '�•• ►t di �. V 07 C. �' % eo N .o. T w •C cl ' OC r o-�l7(pp 0 3 .a' .w tl •7 V e bmf u w i L �! •C � � S• � o � � 10^ O � T�F r+E a as EU�xsF� R�? as mbw ae 3 mmr ' O c d WF .�OJ� Wd rtiyA VH.0 e La*400 0.gp � }.yam m F.a Oyu w F ® vi Gg n�'O'C CL, ce Ra oU 9 o a o car CL E .m��-bgOl�'at C ae oz d�mw2+c.l..��'a 949 24 d �� 4A d ti G b Sro �y m (im�Cm�,°r:prm wax K st) I l0 a e e.- 15 clz vi ou 0 o A) $� ... t ow • 2 b p %,s a g d s -U p� 4 a iy~i " CG'.o'tl Opy% �O �•�ts ��s d —,��c "�'Et�33C�vig A a op w T. yam. r , Cm y K w po po I �I a � y a � •n° u a m G w K s aS2 $ c � . �. to vl O a '6 c, 8'ro4m i+ .a G d V /4 -11 _. __ __ .,v sc•oa G b ! A w 'WIN 50 A CL V G M ``7 •pry"' m rp mro c i~ti ggo'R .., ao� b Yap maai 0 y� es r � U px v A m _ •' �ptl� CV w a �.i b w 41 C w �C` �• J .� PLm7•� re to � is m m � e ! h •i� G C Q. w :Q •a .. �.. ... .} V (� m ro r 03 N..,o'xs y 0 . m R- m m acpb7i�pmp77s�ma��:��o+r �V • V's �• d�v G FAX N0. 916 443 1960 P..14/07 v'O �� Xo p 0oy�zxo 0 poyyve we), c] O ci d w yv $mom;; •`�`°°t,� K4 w� Ao.E.o m m ? S �m V � �y 'd .� i Uiym 1u �� u b W ro ° N w .7 o v $ ta W4 W V x C C -64 iv m w:'•St•�n ca ro mry$v 0, C?�a to �a .rt cz c� VV3mt,$rov�3�J� u O4�i? a� CAL^ i, m w ab 005 a 3 � � m 3� � o tp�'$t� � � a•� a a�i 't.^� ml� 4^'�• d f'3 a �' w 6" •�F. ° d Q='V Q m N �m m ° j., Rb C �,-s 'Re, C wp Cst ty m L :� w 3 iG -an ww p°3 °y`aY1�w m A. � LL o� 7d3 "ao°i� Ira y. p C.J2 i� � $ W `� 6i N Y C c S D C Q hb C a mp •tyy A p w m yat c . A� .w.. G P. m cc Q N y G w i C M $p.� Qi p p�p�� �'',•� o m yCp� a•- `'C''� � �r O yy+ ai ii d d d D� r? y W c "a V O M W +' ..w. r•O y W@ tiroa$d�'g IP '� a b p m •° C" �FF+.. 'gypp a° �i c7 m M s� L .�+ G a+'S ax3 .� :B G G a w d .•�% a:5 W •4 w .+ m O dr„ A j, ' y •d O t� .'«�Y. m d }G� � O ev c Is R °., c7 w Ct o00wA ?m,.b`� V, C...fq v •CjmA W C °° 'C Cqg Mc O y ww0 C, EV0 °!ag�`CL y'io°o o W a.'C v C mg mom•}� k . to Y Y ww w 0, � m�Jr+ 1mcQ s C�aAO�"wE'�d •� W.� v Fh �O : wm 'O Ot R � CD mIwwa' c°aV. p t ''� Ow W zz M •� .a �� p W 0 Ll /ti- I � p° •F c Y ++ i7 O °�sca b .i. .� �y� 47 m d m e tlIC V a6 .� •V tWW3 W Vi sw W�pp al Cw 06 &' cd �V4 ro d. go ;° k; 1 w s c a e e 40 C�aAO�"wE'�d •� W.� v Fh �O : wm 'O Ot R � CD mIwwa' c°aV. p t ''� Ow W zz M •� .a �� p W 0 Ll /ti- I � coo ats$ It a 98=1'0y S4 w a 'S w o y d0 a q) -4 .:. C a R ti }I m o w t- ro3�oy ° ,ti WVja�'m v�mC m ." w C3 a VCt o t, � tl 'd � d O Q� O O C9 �'�U .ro dUav"ti G m ai �. m N b t2 to 5: ti C a m .., m• t o, d k. o m a ti O a, o co �A„hw O. W a o N oC> C toaC.. and �Q�t3"m° 6�C? N �O vi b m C' Cyj a CS �x A FU�`g... s. a C"�d derb °vCvCr^� Lt. pvd I Kp pp p� pp ,Iu 441 14ou 1'. J0Iur O,� o �� w v a pn mm y0 - Ol.1 �a'a .0: ;.9 v x r a �dcqq�y•�A� C4 40 m 06 V bb q S: t0 p +, y m o a 5 � x.t9w o+� F >` o �s 4t �•o 11, mA `'�.x! o$ x m s o 9 ad vt a y.. p,�c, �U ygjp.6 °'o ffiwww r°. s» m m .$cv ° °vim F .. Ik y°'p�•e madP'cst 0 -V $wa tg mom• m C nm atto�y eypo El t �aya.w$vNja° pm ON'G a.. m o wm t° N .p. O v t N d ✓� U 15 y n V 3. V .0 ao 'V M •� tL�CiC� a d b� mw� a6 Ot v ti. y t0 V V F`1 p W` W •�+ w r°. w i s m m aw r cr -.roo 0 r3 to IS ell 5 J:i it O 7 O �' C7 ++ a J ; ; N Y d ..+ [" u at ►� C d ..0. 1 7t'O `A.`� ��3 d C! p ya C. •v M s y� .e: Zb.. o•= m o d BS G C. r a m o '� '�'' R. .� .o b W`, It: OA y ro d p m v o �ev.�f �SCdi >r wog cca�0'o- 9'g o c ' G v 'o' O "'�' m V sr ttl- 7 h .�5.. to-, R7o ti N` Y a✓ "T.' tK m .a w y'".�. PC d... �w faa r �S j�v'9 ,� V •,°.. C to ta. C ° d ^g •1 G A 11f t7 '.9 'd t.' tQ Vmr O V off" o��mYvee {mW �de@g`Doti 'aad'�� C ..Gev m �vM= y 5N. a. Ew t {'c .N is '= p r.7 a. w C .n o U� .L' v. ',•. � � {p d � .a �" d :7 ^•� t. .� p� 4G0 tz ' 'o m w �T W . �t1' • V O I-P OU 8ba vb M' v. 3 d d r+ o R C e� C G 'goo t� o ro ggat Tw b v &4 C e � o h d t +r:+o . J ° 5 y ,.s • no' A -���U r oC »'�aa4 y°,^ Jo. '.� '•` R ti ,` v4 i,t�...+'c to G L1 t�'+°P3 C W to O >r +° (� K W to Wdp;S e m pctya tiw't" ° ooa�ro g T,%.�a o! u m o ii.d t� +..• N O. " Lw rw tlV m v•f" Oti d {yw O �'v �� N re° d r ma o•so� w xOd$; to x O ^ �xay °'O�iQs��a tom. ��oUpa�i � � ?U IL 11.1 Wt 4 �+ w Cm yy „Y 'u" .0 'o 'r' O P. yy ��77 ti. ` Oo..i .`�°..2 ¢ tor; y ° O E G 9 �J C .n S: v O .dti h' N ♦3 �,7 h •+ • V d o '� 10 ++ .0 °6 O R •.. ra y .:. 00 N 1r. C C r Oi '.. Ac qs m QasLp� °�°�a,„�a� o wCy vd, Gt C Q Fi K u Q'1 to M O c`�t a, m'' pa o •a4 r: -. O �! y is cV m• p d F ro �.'�bi':C+tiy � of') e.� :o y� a e) °p'� •.o `�i ° a � +g r' g �j ioY Gv Q �G7 a) 0 to CL CD oGss, cQa� cur oAmC� es °c °[dpi o'GatOp'G a 3y oa'0ow' osay�„ elU )q -19 �� rnn IYU dio 490 low p d .F r a Up m r �d �V>. .y • 8.Q . td >ay. •SO Yu 0� ). d �r $'O V 0 w fC r .Cdr ° ae . •» u hm D d � 0 j�1•D o w p m C Q t jL O • , m V b' , � crpp .: ,' :, ro d&R C maoF a .Vxo.L w ` •d m F o d .G .ti + C a r4 I'. ° a 0 'a W va CA d m COO w } a o8c' ••• e . m a �8 v V V-6 d y a co w f. yI tr EU Q d &� 07 o 1 9bo N d Q ( p .R M r G m 2 "v 2 a K N r + A yg j1,0 O •q }, ° e�5 i° c O•.8 C m T•A U () C '?. a ¢,�; p m �' ,d; o g T = C E 8 k A•u w0..�y"rQ c �' �� avl �`d o g, 8 a ° o:J >• d s+• C .3 5'v'` m p ato a :spy' a}i Aasn. �!�i�..�d am.vd U r p L W a w 'r'1' O C. NR �'j O ", G .'.Ar. % 4v w p °C �" +� w •p," H cq� �! 'r v y g .a.F' m a •° �y •�+'r. Zi' a`�, y, o �••� +py4+ °q�' > o o m e9 p5Fyl0°o ai_. X 'a% p C o d .m ' M m ad+ t .g w e O y C a a a6 �, ++ m x q oc`'a.9d NV�.a6iC�uVat61 o. Md�sw atiAAddFa°`� ,L a+ pA m QLp r+ w� m y !yO +"��y W` C C ?Am S O m Ep cc a ^ O1 C,J •°�• lN.. w k ; w c pa q ap .,,,. y } t1 So O w a ,rl R :� V F eb m £; .7 8, ,wri p 3 Y^ C y M' 44;a x F 0 d pp: C y •C v°+p+ p o° paCi iAE ° V d Nte a �'d;m �:y5 YWp C V aC .P.. �•. .r ii OA o OE. rpi ... 'p Op m «Q �y :..w�. try .R ii w C .� w. .`� .'° •Z v 7 t3 47 d w 7 a °o `w i g w 040 n $ d 9 om 3q m mtaOCr dN� E 8 e I m d d ae d m d Fpm., a 'o ► m :p a" $._ w P'I„�• cd v a d N 4ao >; o o �q `6 8 c d m $ o �: F aq v ..t a. A �," goo o �5( {p�1.(( N S•. t+ trJ p G' gym}} AQ ° pp�� ~ a ipi Boil tO ap °1 M im�yy 71 cz A C+ d G b ads X C: q ti m W F V'vl G ^�•/ aii At d ? G C d •D @W C6 EC d N ro tlt O d /. Q1 •r1 "tl m • :r �f S" x }a n V Y '..3 av a"" ,aC, Y' 3 O .k m, •u ..wa R+ W C.1 . i~:, 8 m vcsm 8oad w3v�� Cw -v° ,E$wio �°OmQCn 'O Aopco0a° oi- daboeu� °IYoa.= ;2fQ?� ao m qs u- Rq p..dad�s >, t, mood o 5 C; w C O •a3 • � ce c$ � SE ,S °m r. d .a •a W '4. •°•i � s 1 .� o°3 a o aura p m a y C 3aa a mad to e- drr m ae d k m w w }� d a p o�d os q 8 y�� a�''� b Em�EmCS.5 °mW #'p'y!�C�mBp 10 t„ a x r° sae°O °a� ,i � � oecWm o a° ay; �•.rao + �. ' ffi° "�5,£,a � 'W e�qio ' .a� A , dCR� ee.' .� � z $; � m 'y O 4 �ho $H ao � 8 N'8 a 15 eR ap0 aa c o 8c� ,p VoO{.e�mw ,dad�C aao4ES8° � s. � ro �CdW�oLo�: 8C�"d �-5 m q Fqp 00 ��8ae, e P'6:1 Z c; 4a hw b a" �.a dsd6 o ,w Uw �Ta80 ma A aro a.d to m .9 "%t ; . i d t4 ho to e W.0 i e ZN e 1 ed .a C a q m p °. �; a. S�ro Fv ao.. IX 4 4 gm` p° p�C�St+ �w�joeE "°�c�8q�{'s3wWo�o�� ♦g C Z\ d v ++ •� O as ' +i' 4f a w s .goy ►. a ac .. ,� J^a sot , ^ N : as �. � a� c. IS 3 m =a a a.•a' c4 °a A 3 I a aoa � ,� °v� � � � :N � � � .049 6,10 it /4 ,min Jl oo ncu 1c -4j t� O 1 m w Y � Cy L M ei O. ° m z m °eIs W �b g oro � 5 m k m m O o 7 ° C 4. o W L5 no w t, ro y r+ F `wa > t: �m w � m e w k � V ° w.0 w m Stsw c ii .QO y m �a C 03 C$;: ro$� °mo�m4 'tom C m 7 it d 0@i v Imo• C N y 4 ° 3 0 m�mp omCM'°Gm�i . 6 0 tHx NU. y1tl 443 NbU P. 77/07 w 00 2 O d. .. :,., - w - y C. m° v i -a 'o 9 a y cq �ci m y.eS.�aF°•sa��v v ��� warm Ir- W , va �sy06 ro •roa07ro.5 ,mays° o .0 p� S: C� m p :&g:`' .4 It yp C dVi' m [z >1 C C o m co an m e°i m ei m o ,y• �ro m CF o yy pp C C� w f: N oO 1C e b A g o p o 'LS a N p C } qp oo co m a h E e a s mw c.v v o °C,j r. m.'i"�' v,a V a .. ao �+c"a �Gm [oR7� zo- mp m °u �wmCd�am�EmC�r�a� Egm wm cs 3 .J � L " Gi ° � > �' q � G p, +OS � '� � Sri R • w k„aG,.o � $'donoE m � ��a m ° an d 1J OO yn O. ed 4+ N S �i iii++ °• m k Oyo aFb ° �' 4 .;Q br m ro v C5 V d C C Cm6 $ C N CC k '9_ y p? ' �.r Isna g Eas.5 a s 8 am t a vs .yy v !1 4 {y „4 � � yy �+ y M z 'Q F" _ to � � A, •� y C W .C�. O+ �Q �1 4 R C 'i y r�CTSi Cj F y T 5 'C q 3 m eo cii w m ft.. V tl m +4 ,tl L .gi .a ° Oro C m 0 m k E�Tcia ° aA�a pI .. v.aw o���°:.m..12�'mwSE8roc� sow.;; --4R ° ee m a� g i U �'bA.�wm 0 .0 P N A of .k.1 e, ". m a6 ° u •q � U � w'L3. y� y 7 "S� u t- y tom. pg L' A m Ci ti �1 7 y v aFay^ �"' , o dU as V ,D b.3 q, 14-A I Community Associations Alliance P.O. Box 319 RECEIVED BY Corona del Mar CA 92625 -0319 PLANNING DEPARTMENT ' CITY OF NEWPORT REACH Officers & Mayor Dennis O'Neill and Members of the Newport Beach City Coll 2 1999 Directors City of Newport Beach AM PM Chairman 3300 Newport Ave. Philip Arst Newport Beach, CA 92663 pp Past- President Broadmoor Hills CA Dear Mayor O'Neill and Members of the City Council: Vice Chairman Paul Gerst The CAA's mandate from its membership is to preserve the protections afforded by Director The Bluffs Existing Traffic Phasing Ordinance (ETPO) while working with the city to only Homeowners Ass'n change its funding provisions to provide proportionality. Treasurer Only 32 words in one paragraph need be changed to avert legal challenges in this Ernie t To that end the CAA proposes a change to the ETPO that would meet the City's need Harbor President Har bor also added. This proposed version of the ETPO will be referred to as the PTPO Ridge Estates MCA; to avoid possible legal challenges. As the ETPO ALREADY CONTAINS A Harbor Ridge Crest PROPORTIONALITY CLAUSE, all that is needed is a modification of the MCA Harbor Ridge Master Association; proportionality formula. Secretary Only 32 words in one paragraph need be changed to avert legal challenges in this Ross Miller Past President approach. Some additional definitions and a solution for the "rounding problem" are spyglass Ridge CA also added. This proposed version of the ETPO will be referred to as the PTPO Larry Stinson (Proportional TPO) for sake of clarity. Importantly, the PTPO would also continue Director Bayview protections for the quality of life of residents & maintain easy customer access for Court HOA local small businesses. Darryl Chappell Broadmoor Seaviesv The CAA believes that this easily understood change will satisfy legal concerns. It CA , accomplishes this purpose without lifting the important protections of the ETPO that Melinda Mason has been done b the approach for change that has been taken b the City. y pp y y' President Big Canyon Villas HOA In the way of an explanation, ETPO Section 15.40.030 A.i.b currently requires all Ed Benso President " impacted intersections to be brought to LOS `D" or better before the project can Dover Shores CA proceed. It is the mandatory section. Barry Eaton Section 15 40 030 a i c of the ETPO ALREADY PROVIDES PROPORTIONALITY President EastbluffHOA far all 12roiects where "the time and money necessary to complete the improvements Gene O'Rourke is so clearly disproportionate to the size of... the 1roiect." Director Harbor View Hills (So.) HOA Under new proportionality criteria, the funding contribution of most projects is Bill Zinn disproportionate to the size of the project. Therefore Section "c." becomes the President Plaza governing section of the PTPO. Homeowners Ass'n Leland Oliver This resultant "PTPO" would then work as follows: North Bluffs Comm. • Passes all projects that do not cause or make worse an unsatisfactory level of Assn traffic service on any "major ", "primary- modified" or "primary" street Vicki Weiss President . Passes projects when the developer funds the "feasible identified improvements" Newport North HOA needed to maintain the impacted intersections at a satisfactory level of service. It Ray Brandt Director is recognized that in some cases, in order to move the project along, the developer Spyglass Hill CA may voluntarily pay more than his or her fair share. As long as this is voluntary iason this is acceptable. As Newport Beach fair share fees are considerably less than of Ross Miller those of the City of Irvine, this voluntary action would not be an undue burden. Friends of Oasis TPO Letter 2-19 1 02/20/99 E I�l 1. ,, • Permits the developer to pay a proportional fee into the Traffic Fund if the time and money to improve impacted intersection(s) are not roughly proportional to the size and traffic generated by Project generated traffic. This is conditioned by the requirement that there is a strong likelihood that the project will be completed within 48 months per the terms of the ETPO. • In cases where there is not a strong likelihood of an improvement, then the project cannot proceed until the city's traffic fund can fund the project, as is the procedure at present. This requirement is necessary to preserve the quality of life, protection of property values, the need to provide acceptable levels of pollution for the residents and ready access for local small businesses. If the City claims that legally it must insert the Proportionality text (section 15.40.075) and not under any circumstance (even voluntarily) permit a developer to voluntarily contribute more than his or her fair share, then so be it. However, the project then cannot proceed unless it meets the terms of the PTPO. This would not be a taking of the developers property rights, as most projects now under consideration require a General Plan change anyway. It is reasonable that a city proceed only on the basis of available funds and serving the needs of its residents by protecting their environment. The CAA believes that the city should abandon its current piecemeal approach to planning the city. A better approach for both business and residents would be to pass the CAA's interim TPO change proposal and then proceed apace to revise the city's ten - year -old General Plan. The city can then properly plan for beneficial rowth while preserving residential quality of life and the integrity of our small business shopping centers. The CAA offers to work with the City to clarify elements of its PTPO proposal and to provide residents' inputs for the proposed General Plan revision. • Thank you for your fine service to our City, M , Philip &Arst CC: Robert Burnham Chairman Jean Watt TPO Letter 2-19 2 02/20/99 l:l -cam (Attachment) CAA Proposed Changes to Existing Traffic Phasing Ordinance To Make it Proportional Change Existing TPO (Newport Beach Ordinance 15.40 as follows: (1.) Revise section 15.40.030 A.i.c.3 to read as follows: (Note 32 changed words are in bold type font.) A.i.c.3. "Approval of the project is conditioned upon payment of a fee to fund construction of the improvement(s) with the amount of the fee for each improvement equal to the estimated cost of the improvement as determined by the Traffic Engineer, multiplied by the impact of the project on that intersection, and divided by the benefits of the improvement, this fee to be in addition to any other non - traffic related fee, contribution or condition required by, or imposed pursuant to, ordinances, plans, policies, or rules of the City of Newport Beach, or provisions of state law, including, but not limited to, the California Environmental Quality Act, or the Subdivision Map Act: and" In order to provide a clear understanding of the changed paragraph, the following definitions of terms used is provided: (Please note that to the extent that the Manual of the Institute of Traffic Engineers defines these terms it will be the governing document.) 14.40.040 Definitions "Impact" or "negative impact" shall mean the part of the traffic at an intersection, which is generated by the project. "Benefits" shall mean the increase in intersection capacity resulting from the improvement. Intersection capacity" shall mean the traffic at an intersection divided by the ICU. "Traffic at an intersection" shall mean the number of vehicles passing through the intersection during the peak hour used in calculating ICU, not counting those which make a movement (such as a free right turn) which does not conflict with any other movement. "Improvement Account" shall be the collector of funds obtained under the provisions of proportional payments under section 15.40.030.A.i.c. above. If the Improvement Account is insufficient to complete committed improvements with the 48 month period allocated, then all new authorizations under section 15.40.030 A.i.c. shall cease until committed improvements are completed. A special report is to be made to the city on an annual basis and whenever the Improvement of intersections via this fund fall behind schedule. (2.) Clarification of "Rounding Problem" (this is to help solve a separate problem the City has cited. Change 15.40.040 Definitions to read: "Level of Service "D" shall mean. i. Intersection capacity utilization of 0.9000 (ICU calculations shall be carried to four decimal places of accuracy); Note that the current staff proposal would permit a large number of small projects to be approved if calculations were rounded off to the nearest whole percent. This has permitted the recently processed Holste office building / resident hotel project to be approved because it didn't drive the intersection to 0.91 ICU. This rounding solution prevents small projects from adding up to unsatisfactory traffic conditions. The CAA believes that the staff is competent to handle calculations with or without rounding. 11 TPO Letter 2-19 3 02/20/99 "r�rL Problems with the City's TPO (CTPO) Revisions The CTPO has unfortunately acquired a series of changes of definitions, dropped words and added words as it has passed through various committee hearings. • Unfortunately, these changes permit, among other things, virtually every project to be passed, highly unsatisfactory traffic congestion to be created and a shortfall in Traffic Fund collections (Note that the PTPO also suffers, but less, from a Traffic Fund shortfall) An illustration of how a few changed words impact the CTPO follows: (1) Project proponent can fund "in whole or in part" thereby getting away with paying only a Fair Share fee if qualified under Section "b." (This is because there is no proportional payment calculation formula as there is in the ETPO under section "C. ") (2) Note that in the proposed CTPO (15.40.030. a. Lb. (i)), the term "Feasible" is defined more loosely than in the ETPO and the term "Critical Intersection" is defined differently than in the ETPO making any text carried forward from the ETPO suspect. (7) Under the proposed CTPO, the project proponent may fund in whole or in part "a physical change" to the circulation element. The term "Physical Change" is undefined i.e. it can be almost anything. (4) In contrast, under the ETPO, the developer must fund in whole a "significant physical improvement" that has been "identified" (i.e. it is in the Circulation Element.) Under the proportional payment clause of ETPO (section A.i.c) the in part funding must be for an impacted intersection that has a "high likelihood" of being built within 48 months. • (5) Additionally in the ETPO the funded improvements must be to "Impacted Intersections" i.e. intersections made unsatisfactory or an unsatisfactory condition made worse. In the CTPO any intersection in the City's list may be improved, in part, via an undefined physical change. This could include taking an intersection from LOS C to LOS A in the opposite side of the city from the newly impacted unsatisfactory intersecti0ons. (6) Therefore text, as it is defined, of the proposed CTPO revision would make it considerably easier for the developer to "pass" by kludging a small fix to ANY intersection instead of the major physical improvement in accordance with the circulation element for an Impacted (i.e. "non- satisfactory intersection') as required by the ETPO. • (7) Under the terms of the CTPQ. four votes of the Council can then declare any undefined small physical change to any "Critical Intersection beneficial and pass every project paving its Fair share Fee. (8) There will be no need for the five vote approval of Exempt Intersections or the six vote over- ride of CTPO provisions as four votes can accomplish the same purpose There are numerous other problems with the CTPO A detailed list will be presented if it is ever desired to go through the entire document again Given the existing, proportional capabilities of the ETPO, there should not be a need to do so TPO Letter 2 -19 4 02/20/99 M • u BETTENCOURT & ASSOCIATES Real Estate Development Planning 110 Newport Center Drive, Suite 150 Newport Beach, California 92660 -6907 (949) 720 -0970 FAX (949) 721 -9921 bettencourtplans @msn.com f O UDM April 22, 1999 Mr. Ed Selich, Chairman Planning Commission City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92660 Subject: Traffic Phasing Ordinance. Dear Chairman Selich: Thank you for the opportunity to appear before the Planning Commisison at your Thursday, April 8, 1999 meeting, and to present our views on the Traffic Phasing Ordinance reform project. We appreciate the attentiveness of commissioners in sorting through the needed reforms to this outdated regulation. As you consider the testimony of the various stake holders that appear before you, I thought you might find of interest the attached background paper on the transportation experience of my colleagues on the business stake holders committee. Very truly yours, �r Philip Bettencourt Business Community Representative PFB:mk Attachment(s): 1 cc: Mr. Mike Erickson Mr. Richard Luehrs Mayor Dennis O'Neil Mr. Tony Petros Ms. Patricia Temple C:1Building Industry Aswciation\TPUSelich Letter 99 -06.doc RECEVVED BY PLANNING DEPART MENT CITY OF N lAf -ra- ^EACH APR 'L 6 11999 PM AM 71aI91101111121112,314,516 If_ 1 Newport Beach Traffic Phasing Ordinance Business & Property Owners Stake Holders Committee . Philip Bettencourt, Bettencourt & Associates, 110 Newport Center Drive, Suite 150, Newport Beach, 92660 -6907, (949) 720 -0970, Fax: (949) 721 -9921 Philip Bettencourt is an independent real estate developer and land development consultant and owner of Bettencourt & Associates of Newport Beach. He is also the chairman of the board and president of Cortese Properties, Inc., the Leisure World Retirement Communities Development successor. Philip is the former interim city manager and real property manager of the City of Newport Beach. He was the founding chairman of the Newport Beach city staff Traffic Affairs Committee, and secretary of the "Bridge Action Team 76 ". He is a public administration graduate of California State University at Long Beach and a former member of the City of Irvine Transportation Authority, the Newport Beach city council ad hoc development committee, and the Orange County Charter Commission. Philip is the Civic Affairs chairman of the Newport Harbor Chamber of Commerce. Mike Erickson, Robert Bein, William Frost & Assoc., 14725 Alton Parkway, Irvine, CA 92618-2069,(949) 855 -5744, Fax: (949) 472 -8122 Mr. Erickson has a B.S, in Civil Engineering from Cal Poly Pomona and is a i registered Civil Engineer. His primary emphasis is on development entitlement with 25 years professional service here in Orange County with his primary emphasis being on transportation planning. He has been a member of the City of Irvine Circulation Phasing Task Force, the IBC Task Force in Irvine, the City of Orange Traffic Advisory committee, and the City of Newport Beach Traffic Phasing Ordinance sub - committee. Anthony L. Petros, Principal/Director, Transportation Division, LSA Associates, Inc., One Park Plaza, Suite 500, Irvine, 92714 (949) 553 -0666, Fax: (949) 553 -0876 Mr. Petros is a graduate of the University of California, Irvine and has been affiliated with LSA Associates, Inc., environmental planning and engineering consultants since 1984. He has prepared and supervised a variety of transportation projects including the Hoag Hospital master plan, the waterfront Hilton and Ocean Grand parking analysis for the City of Huntington Beach, and the Jamboree /Campus mixed use development in the City of Irvine. His additional consulting assignments include the Spanish Bay Resort in Del Monte Forest and the California Speedway in the city of Fontana. He is a member of The Institute of Transportation Engineers, and the Orange County Traffic Engineers Council. His civic activities include, past president of the Costa Mesa Chamber of Commerce . and service as a board member of the Girl Scout Council of Orange County. C'Building Indusuy Association \TPO\Business Stake Holders Committee.doc 04 /22199 0 11 • April 5, 1999 Mr. Bob Burnham, City Attorney Ms. Patricia Temple, Planning Director CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92658 RECENF_D BY PLANNING DEPARTMENT CIT{ of 1-,t7:1r.Ion. T Pr__A.C! -I AM riIiZ 0 16 '99 PEA 7181911011111w1� 181�I x1816 Subject: Proposed Reforms for the Traffic Phasing Ordinance (TPO) Dear Mr. Burnham and Ms. Temple: At the March 18, 1999 Planning Commission Study Session regarding potential amendments to the City's Traffic Phasing Ordinance (TPO), a request was made that the "business interests" identify areas of the proposed revised TPO package where concerns remain. This letter is submitted in response to that request and to emphasize the need to make the modifications necessary to allowthis Ordinance to remain enforceable and to provide a fair and equitable means of linking transportation mitigation to development projects. This letter reflects the interests of both the Newport Harbor Area Chamber of Commerce and the BIA. The following represents our position on the open issues relative to the most recent version of the revised TPO (dated 3/10/99): I. POLICY ISSUES 1. Super Majority Vote: The TPO should allow for an override or inclusion of intersections on the "Exempt Intersection List" based on a 5/7 super majority vote rather than the currently proposed 6/7 semi - unanimous vote. This would still require a "super - majority" and, in fact, require a stronger majority vote than would be required for all other land use and General plan actions taken in the City. The 6 /7th, formula to conduct business is unprecedented in this City or any other jurisdiction that we are aware of. Orange County Chapter Building (rdu�tn' .1s<oriullnn III Sou16rrn klAd mnia 9 Executive Circle Suite 100 Irvine. Cali.- mnia ^(l 4 949.5539500 fax 949.5.i;.950; hup: /Amw.biasC.org ESIDENT GREGGRY CURRENS ANIHC CORP. IST VICE PRESIDENT JEFFRE'4 PRCSTCR BRCCB PE-0 HOMES 2ND :'ICE PRESIDENT ERIC :IATiENBERG PR _t_Y OF S.C. SECRETARY DENIS CULLUMSER LENNARJGREVSTON'c. GOMES BEASURER STEVE CAMEPCN .ELDSTCNE COMMUNITIES ASSOCATE YIC''E PRESIDENT AF:N RCMANO ANN RCNIANO ASSOCIATES ME:::EER -AT LARGE CHUCK ROWLEY CHICAGO TITLE MEM_ -R -AT -LARGE GERALD GATES SE. -LEER HOMES MEMeER.AT -LARGE TC >,I STEELE HARDWOOD CREATIONS IMMEDIATE PAST PRESIDENT SC'—,. A. ALLEN CIiAnCN HOMES CWEF'c' /. ?CCTIVE OFFICER ' CHT <IS;'NE M. DIEMER An Affilintr of the. National A. ociafion of Hnnw Bmldre<uml Ihr Cnli6,Tniu Building Imhl >In \?,oriation I T Mr. Bob Burnham, City Attorney Ms. Patricia Temple, Planning Director City of Newport Beach April 5, 1999 • Page 2 2. Inclusion of Proportionality: One of the key revisions to the TPO is inclusion of the "rough proportionality" concept. This issue is clearly mandated by a series of court decisions and, as presented in the March 10 draft of the proposed modifications is acceptable. It is imperative that one project not be forced to fully fund and /or construct an improvement disproportionate to the project's impact in order to implement that project. The most recently proposed means of calculating the fair share is a detail that our organizations are still testing and will provide comments on separately. 3. The Concept of Exempt Intersections: The inclusion of this concept as a means of avoiding a defacto moratorium by not approving implementation of planned improvements is important. Similarly, it is important that the City not be put in a position where it • could be forced to make improvements not deemed in compliance with other priority City policies. Rather than being a means of avoiding tough decisions, as some have said, this approach allows a means of implementing the results of a balanced look at potentially conflicting City policies on a more comprehensive and thorough manner, not on a case by case basis of individual projects. A procedural change that inclusion of Exempt Intersections would produce is elimination of the virtual requirement that currently exists whereby nearly every proposed project requires an override vote due to impacting one of the intersections likely to be designated as "Exempt." 4. Level of Sensitivity: The level of sensitivity for the project's Intersection Capacity Utilization (ICU) calculation should be established at 0.01 (as proposed in the previous drafts of the amended TPO) rather than the 0.005 shown in the most recent redraft. To utilize the latest, more sensitive test . (equal to projecting to within an accuracy of 8 cars/hour per traffic movement) is assuming a much higher level of I ;_u • Mr. Bob Burnham, City Attorney Ms. Patricia Temple, Planning Director City of Newport Beach April 5, 1999 Page 3 accuracy to the forecast then the data and level of detail of the analysis issues can justify. 5. Consistency in Planning Criteria: A critical issue that staff has recommended not addressing at this time is providing consistent capacity criteria (ICU standards) for both long -term (General Plan) and short - term (TPO policy) criteria. The primary area of concern is the airport area where many "build -out" ICU's in the adopted General Plan exceed the 0.90 criteria maintained for TPO analyses. The basic issue is, if a higher ICU has been accepted for build -out, how can the capacity criteria in the interim be more stringent? While reluctantly accepting that this issue may not be resolved in the current process, it is our position that it is imperative to resolve this issue as a second phase of TPO reforms as soon as possible. 6: Criteria for Initial Project Screen Checks: a. The current draft and existing TPO utilize a total of 300 daily trips for an initial screening to determine if a TPO study needs to be done. It is our recommendation that the threshold be raised to 500 trips per day. The City staff has adequate available data to consider smaller projects. b. The one percent test used for the second screening test applies to �ny move through an intersection. It is our position that the test should apply only to critical moves (those that have the potential to affect on ICU calculation). II. CLARIFICATIONS 1. Findines Laneuage Reeardine Mitigation: The proposed changes in 15.40.010 D that replace "require" with "permit" and "mitigate" with "accommodate" are not . appropriate. The initial language in these two cases should be kept. The original language is clearly more in keeping with both CEQA mandates and the reality of the process. 1'�_ Mr. Bob Burnham, City Attorney Ms. Patricia Temple, Planning Director City of Newport Beach April5, 1999 . Page 4 2. Deletion of Me tives "D" and "F ": The deletion of these objectives (Section 15.40.020) dealing with proportionately (D) and the intent of this Ordinance to facilitate implementation of the City's Circulation Element (E) is inappropriate. As explained in staff reports and the TPO presentation, the proportionality mandates under the law was a key reason for this lengthy amendment process. Similarly, it is clear that over the years, the TPO has been a process that helped implement the Circulation , Element, even though in pieces. These important objectives must remain in place. 3. Revised Language Regarding "Weighting" to Potential Improvements As proposed in the revision, only potential improvements that mitigate project traffic can be considered. However, it would seem to the overall City benefit to expand this definition so that improvement of any heavily utilized intersection (over 0.80) within the City would be considered. It seems logical that the mitigation of any intersection of concern is a benefit to all, not just the improvement of intersections that may be located in a certain neighborhood. Avoiding such a mechanism will assist the City in selecting privately funded improvements for community benefit and in seeking outside funding opportunities. 4. Annexation Lamm: The proposed revisions to Section 15.40.030 leave us feeling concerned that once any change to a development program is made, no matter how minor, the project would be subject to TPO requirements. The staff presentation indicated a project would be subject to the TPO only if the change resulted in a trip generation change over the ordinance sensitivity level. The later view is acceptable so long as the record is clear on the intent of this language. Please document this intention. • Mr. Bob Burnham, City Attorney Ms. Patricia Temple, Planning Director City of Newport Beach April Page 5, 1999 Page 5 5. Expiration Language: The revised language seems to have left out the concept of a sunset clause for "existing" approved projects, and eliminates the ability extend the project life of new projects if agreed to by the City. These requirements, available under the current TPO need to be included in the revised TPO. We can follow -up with specific language proposals on these issues and will be available to discuss them with you and at the upcoming Planning Commission hearing. Thank you for the opportunity to provide input on this important issue. Please call with any questions. Sincerely, Phillip Bettencourt Past President/BIA Consultant cc: Christine Diemer, BIA Bill Vardoulis, BIA Richard L.euhrs, NHACC Mike Erickson, RBF Tony Petros, LSA 0 BETTENCOURT & ASSOCIATES Real Estate Development Planning 110 Newport Center Drive, Suite 150 . Newport Beach, California 92660 -6907 (949) 720 -0970 FAX (949) 721 -9921 December 15, 1998 RECEIVED BY PLANNING iDEPARTMENT CITY C� Mayor and City Council AM UC 16 1998 PM City of Newport Beach 718i9110111�1811i8181�15i8 3300 Newport Blvd. Newport Beach, CA 92658 Subject: The Newport Beach Traffic Phasing Ordinance. Dear Mayor O'Neil, City Council Members and Staff: I am writing to memorialize our statement to the City Council on December 14, during the study session review of the Traffic Phasing Ordinance reform project. I am honored to represent the business stake holders in the recently concluded study task force, along with traffic engineering colleagues Mike Erickson, on behalf the Newport Harbor Chamber of Commerce, and Tony Petros for the Building Industry Association (BIA/OC). ♦ We want to thank the members of the city council, the planning commission and the city staff for your patience and resolve these past few months. ♦ We also want to thank SPON representatives, particularly Jean Watt and Terrill Watt for their patience and willingness to see if we could find common ground on one of this city's most complicated regulatory schemes. ♦ There is no rush to judgement here. We have been about the business of attempting to reform the TPO for more than three years. The earliest efforts began with former Mayor Buss Turner and the Economic Development CABuilding Industry AssociationWhe Newpon Beach Traffic Phasing nrdinanm.doc Mayor and City Council December 15,1998 Page 2 of 3 Committee. I know that during my own tenure on the EDC, this was one of our highest legislative priorities. We business people on the committee saw our tax base being eroded, and the cities of Irvine and Costa Mesa gobbling up entitlement on our flanks. ♦ No one every seriously discussed trying to repeal the TPO. We talked instead of reform, refinement, reformatting and protecting the ordinance from inevitable legal challenge on constitutional takings grounds. ♦ The package that the study committee has chosen, with the able help of the city attorney, is far less ambitious than what we business people were pushing last year when the EDC- sponsored ordinance was before the planning commission. Nevertheless, if we can quote Eleanor Roosevelt, "It is better to light one candle than to curse the darkness." The "rough proportionality" standard has at last, been embraced in the new draft. Several sticking points remain. ♦ We have never bought into the reasonableness of the 4/5 (make that 6/7") override provision. We don't buy into it now. We do recognize that a premium vote formula is justified. We continue to believe that five of seven votes is a fair, just, and equitable formula. ♦ We continue to wonder if the 300 trip -end requirement for preparation of a special traffic study is required. Seems pretty darn low to us, except for fast food and drive- through restaurants, which are a special case. Remember, you still have ordinary CEQA requirements to follow, and the massive database in your own existing city traffic models. ♦ We are also disappointed that the current version puts off addressing the inconsistency between the TPO requirement that intersections operate at no worse than a 0.90 ICU, and the General Plan conclusion that a number of intersections in the airport area are projected to ultimately operate at ICU levels well over a 0.90 ICU. CABuilding Industry Association \The Newport Beach Traffic Phasing Ordinance.doc ,ten Mayor and City Council December 15,1998 Page 3 of 3 In any event, we believe this committee process should be wrapped up, and that we should go forward with the further public hearings as soon as possible beginning with the EDC and EQAC next month. We look forward to the next steps, and we wish you all a joyous holiday season! Very truly yours, P-�FA- Philip Bettencourt TPO Business Stake Holders Representative cc: Robert Burnham, City of Newport Beach Nick Cammorata, General Counsel BIA/SC Christine Diemer, BIA/OC Rich Edmonson, City of Newport Beach Mike Erickson, RBF Richard Luehrs, Newport Harbor Chamber Tony Petros, LSA Patricia Temple, City of Newport Beach Jean Watt, SPON Sharon Z. Wood, City of Newport Beach CABuilding Industry AssociationMe Newport Beach Traffic phasing Ordinance.doc J C� • � Review of May 25 changes to TPOrev050399 MAJOR SUGGESTION From Allan Beek You are right; 030.A. 1.a is ambiguous and confusing, and I endorse the idea of making it specific. However, I believe this can be done merely by adding a clause, rather than adding a whole subsection: The Project, including the effects of Circulation system Improvements which the Proiect proponent is required to make or fund, will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection; OR I recommend this approach because unless it is used, A.l.a and A.l.c(i) are treated differently, which implies that there is some difference of meaning between them. Actually, there is no difference of meaning; they should both have the clause added or else they should both be split in two. Also, this approach would eliminate the need to rewrite A. Lb, which is pretty hard to follow as it stands. MINOR SUGGESTIONS 1. If the suggestion above is not taken, then A.l.b should be clarified. For example: The Project will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection because the benefits of Improvements constructed or funded by the Project proponent are greater than the impact of Proiect traffic at each Critical Intersection, OR 2. p 3 030.A.1.c(iii) This paragraph is redundant. The same things have already been said, more explicitly, in A.l.c(ii). 3. p 8 040.C.1 and 2 There are six clauses in these two paragraphs. The six introductory conjunctions are C.1: That - - - - -- C.2: That , that I like the last one best, and would suggest this format: C.1: Which C.2: Which and which and which 1 and and which and which ------- - - - - -- and which -------- ---_ -- 4. p 9 040.N "NBTAM" means the most current City Council approved 0 Traffic Analysis Model for the City of Newport Beach. 5. Appendix A. 4.e This paragraph begins by making a survey of all potentially impacted Critical Intersections. Then it talks about a specific non - impacted intersection. Then it talks about a survey of all intersections again. It would be clearer if specific intersection stuff were placed back in 4.d, like this: d. The Traffic Engineer shall determine if Project generated trips will increase the ICU of ar:iy each potentially impacted Critical Intersection by 0.005 during the morning or evening Peak Hour one year after Project completion. If not. the Proiect shall be deemed to have no impact on, and no mitigation shall be identified or required for. that Critical Intersection. 2 e. In the event the Traffic Engineer determines that Project generated trips will not increase the ICU of any potentially impacted Critical Intersection by 0.005 during the morning or evening Peak Hour one year after Project completion, analysis will be terminated. The Traffic Study and worksheet shall be submitted to the Planning Commission with a recommendation that the Project be determined exempt from the TPO. TRIVIA p 2 030.A.1.a, line 1 It should be "nor." p 2 030.A, 1,b, line 5 The period should be a semicolon.1 p 3 030.A.1.b(i), line 3 The entire parenthesis is being removed, not just the "n)." p 3 030.A.1.b(ii)a Congratulations on saving the "tr" from "traffic" to use it in "trips." p 3 030.A.1.c(ii)c, line 4 The period should be removed as there is a semicolon later. p 3 030.A. l.d, line 1 If A La is split apart, the reference should be to A. Lb, not to A La. p 4 030.A.1.d(ii), line 9 Delete the word "ion." Too chemical for this context. p 4 030.A.1.d(iii), line 8 The period should be a semicolon. p 5 030.A.2.d(ii), line 4 Should be "an," not "and." p 5 030.A.2.d(ii)b, line 4 Delete "shall be given greater weight than other Circulation System Improvements; and." p 5 030.A.2.d(ii)a, b, c I believe each item should end with a period. The word "and" (not "or ") should then appear indented to the same place as a., b., and c. p 6 030.B.2 The "2" is not properly indented. p 6 030.B.3.b One space, not two, should separate a. and b. p 7 035.B, line 4 "Project" should be followed by only one period. 2 E 0 p 8 040.C.1 and 2 If A.l.a is split apart, the reference in C.1 line 5 and C.2 line 4 should be to A. Lb, not to A.l.a. A. La doesn't contemplate any improvements. p 8 040.D.1, line 1 There is no need to strike out "c" and then reinsert it Appendix A, 5.d, line 5 The word "generated" should be followed by "traffic. ALSO NOTED I protest this set of amendments for several reasons: 1. There should be no special treatment for Projects which impact intersections for which there is no feasible improvement. These Projects are doing more harm to Levels of Service than most, and should be dealt with more harshly, not more leniently, than other Projects. 2. The issue above was one of the 19 issues considered by the Planning Commission. But it never had an independent vote -- at the time it was voted on, the plan had been formed to wrap Exempt Intersections in with this concept of Feasible Improvements. This prevented an independent decision on the Feasible Improvements concept. It deserves an independent decision. 3. The term "Exempt Intersection" should not be discarded. It served to put the public on notice that something extraordinary is being done. 4. In the earlier versions, it took a super- majority to make an Exempt Intersection. Now the same result can be achieved by a simple majority. 5. The Planning Commission did not direct that the word "exempt" be removed from the ordinance. It directed that Projects which impact Exempt Intersections be required to fund mitigation, just like Projects which impact Intersections for which there is no Feasible Improvement. This is done much more clearly by deleting the twelve words than by the vast and tortuous amendment now being proposed. TRAFFIC PHASING ORDINANCE ALLAN SEEK January 18, 1999 2007 HIGHLAND NEWPORT BEACH, CA 92660 Environmental Quality Advisory Committee: The City Attorney has done admirable work in attempting to make the TPO legally sound and keep it comprehensible. It is a difficult document. (I envy anyone who understands it.) The problems and dilemmas that arise in trying to cope with it all lead to one result: REWORKING THE GENERAL PLAN SHOULD COME FIRST, THE TPO SECOND. I believe that the harder you work on the TPO, the more you will tend to reach this conclusion. Please recommend it to the City Council. But until you reach that result, you must work on the draft you have before you. I have submitted a set of 31 possible changes to the City Attorney, ranging from 6 major policy matters (listed below) through 5 minor matters, 2 parts which can now be deleted, 2 changes for internal consistency, 6 changes to improve clarity, 3 wording changes and 7 typos. Until I hear from the City Attorney which of the minor through trivial matters he concurs with, there is no point in laying them on you. Here are the six major policy matters: 1) EXEMPT INTERSECTIONS (Last four words on p. 6, and B, p. 7) These four words essentially repeal the TPO, as they permit exempting all the intersections which are causing projects to be denied. 2) OVERRIDE (p. 4, T A.3.) This allows the City Council to .ignore the TPO and approve any project. It was a safety valve when TPOs were new. In 20 years, it has not been used. Clearly unneeded. 3) FEASIBLE (p.2, A.l.b.i. "... for which there is a feasible improvement ..." and Definition D, p. 7) This says that if nothing can be done to improve an intersection, then more congestion doesn't matter. (This absurd provision was probably added with the idea that it is unfair to deny a project that makes a bad intersection worse, if there is nothing the developer can do to help that intersection.) 4) FOUR YEARS OF CONGESTION (p. 3, A.l.c.ii) This part allows a project to go ahead if there is merely a "strong likelihood" that the necessary improvements will be made by someone within the next four years. This leaves four years of congestion and the prospect that funds may run short or priorities change so that the improve- ments are never made and the congestion lasts forever. If this part is deleted, timing will be controlled by the last page of Appendix A, "7. Issuance of Permits." (A 4th section d might be added, that construction of the improvements must have actually started before the project's permits are issued.) 5) TRIP GENERATION RATES Appendix A 4 3.f. should only allow rates to be modified upward, otherwise prostitute "experts" can always be found to "show" that the project has very low rates. 6) TRIP REDUCTIONS (Appendix A 13.g.) This charade should be . deleted. There are no effective trip reduction methods. Still other problems may turn up, but these are neno/�ugh for now. Sincerely, /,�XC� �L2�Y� . This package is keyed to the April 8 staff report on the TPO. "p 75" means handwritten page number 75 in that report. FIRST AND MAJOR DECISION: Do we A. Bite the bullet and make the Hard Choice now? Or do we B. Evade the Hard Choice and rewrite the TPO now? The "Hard Choice" is: Congestion vs. The almost - freeways that prevent congestion Once this choice is made, we can amend the General Plan and ordinances accordingly. Then they will be consistent and we will no longer show "undesirable" improvements in the General Plan. This will solve the City Attorney's problem with the Ambrose case. If we rewrite the TPO now and put off the Hard Choice until later, then after the choice is made we may have to rewrite the TPO again to be consistent with the choice. The "legal and operational problems" with the existing TPO can be solved with five definitions and 25 new words (and 50 old words removed). These amendments are shown on the next page. SPON and its allies urge that you make the Hard Choice now, and rewrite the TPO later. (But first of all, make the amendments on the next page to solve the immediate problems.) If the decision goes the other way, and the Commission undertakes to rewrite the TPO first, then we are concerned about several items in the latest draft from the staff. These items are discussed . on the following pages. (Table of contents on the page after next.) 4/21/ab99 1 If, -; Changes to the existing TPO to resolve legal and operational problems (The existing TPO is found on pages 74 to 78 of the April 8 staff report on the TPO.) i First, strike out 50 old words and insert 25 new words near the upper left of p 75, as follows: 15.40.030.A.i.c.3. Approval of the project is conditioned upon payment of a fee to fund construction of the im- provement(s) with the amount of the fee }o bear- the same prepei4ien for each improvement equal to the estimated cost of the im- provement(s) as determined by the Traffic Engineer that the Fatie of pr-e:eet generated tr f� t the 1 �uuv va Yavwv. ucaixlvZiti -C1IV —Sppµ- tie« of the ent(s) bears the additional treffis apAiei....ted to result ffe.,, deyelowne «t °nt(s) is to eeHuneaee multiplied by the impact of the project on that intersection, and divided by the benefits of the improvement, this fee to be in addition to any other non - traffic- related fee, contribution or condition required by, or imposed pursuant to, ordinances, plans, policies, or rules of the City of Newport Beach, or provisions of state law, including, but not limited to, the California Environmental Quality Act, or the Subdivision Map Act; and Second, add to the definitions as follows: 15.40.040 Definitions "Level of Service "D" i. Intersection capacity utilization (ICU) of 0.9000 (calculations rounded to the nearest .0001, exact halves .00005 rounded down); "Traffic volume at an intersection" shall mean the number of vehicles passing through the intersection during the peak hour used in calculating ICU, not counting those which make a movement (such as a free right turn) which does not conflict with any other movement. "Impact" or "Negative Impact" shall mean that part of the traffic volume at an intersection which is generated by the project. "Intersection capacity" shall mean the traffic volume at an intersection divided by the ICU. "Benefits" shall mean the increase in intersection capacity resulting from the improvement. 4121/ab99 2 114 -4 i 0 Contents Items which do not seem to be controversial: 1. Identify the vicinity of the Project by ICU increase, rather than 1% on a leg. 2. Eliminate the provisions for "trip generation reductions." 3. Standardize on "peak hour" for all criteria, rather than using Peak hour in 15.40.020 A (p 8) and Appendix A, 3.gJi (p 22). Peak ep riod in 15.40.030 A.2.d.iii (p 11), 15.40.040 M (p 15), Appendix A, 3.d.i (p 21), and Appendix A, 4.d (p 23). Peak 2'/2 hours in 15.40.030 B.2.a (p 12) and Appendix A, 5.c (p 24). ADT in 15.40.030 B.1 (p 12), 15.40.030 B.3.d (p 13), and 15.40.040 I (p 15). Items where no opposition is expected, but the reaction of the BIA is unknown: 4. Obtain accurate trip distribution by using the NBTAM on each Project. 5. Clarify the cost -share formula with a definition of "intersection capacity." 6. Limit the definition of "Critical Intersection" to the project vicinity. Items where there is a known difference over what number to use: 7. Criterion for small Project exemption: 10 (SPON) vs. 50 (BIA) peak hour trips. 8. Criterion for vicinity of the Project: .0025 (SPON) vs. .0100 (BIA) increase of ICU. Items where the BIA position is not clear, but is probably opposed to the SPON position: 9. Divisor of the cost -share formula to be benefits of this improvement only. 10. Numbers kept to four digits of precision so no round -off noise is introduced. Items of opposed policies: 11. Have no "exempt intersections." 12. Don't mention "feasible improvements." 13. No cost - sharing for General Plan amendments. 14. No permits can be issued until contracts are let for 80% (by cost) of the improvements. 15. No special treatment for development agreements. 16. No exemption for annexations. 17. For legal strength, have Findings and Purposes show "moratorium and permission" philosophy. (The writer may have inadvertently misrepresented the position of the Building Industry. For an accurate statement of position, consult an industry representative.) 4/21/ab99 3 ii. 4, Items 1, 6, and 8 1. Identify the vicinity of the Project by ICU increase, rather than 1% on a leg. 6. Limit the definition of "Critical Intersection" to the Project vicinity. 8. Criterion for vicinity of the Project: .0025 (SPON) vs. .0100 (BIA) increase of ICU. p14 15.40.040 Definitions The following terms used in this Chapter shall have the meaning indicated below: A. "Critical Intersection" shall mean these inteMeGfiGAS Table 1V ef the GirGulatben Element of the City of NewpeFt BeaGh-. a signalized intersection where the ICU, including Project traffic but not including Project - related improvements, is both larger than .9000 and more than .0025 larger than without project traffic. Notes: Item 8 says that the BIA would prefer the number .0100 rather than .0025. Item 1 says that the test here is .0025 ICU rather than 1% of traffic on any leg. p12 B. Exemptions. The following Projects are exempt from the provisions of this Chapter: 1. Any Project that generates no more than three hundred (300) daily trips. This exception shall not apply to individual Projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty four (24) month period cumulatively generate more than 300 average daily trips; 32. (Continued on the next page.) Any Project which meets all of the following criteria: 4/21/ab99 4 11 9 u • p16 15.40.050 Procedures A. No changes. (items 1, 6, and 8) B. Subject to review by the Planning Commission, the Traffic Manager, in the exercise of his /her professional discretion, shall; 1. Direct the preparation of each Traffic Study by a Traffic Engineer retained by the City and determine these which intersections are Critical Intersections relative to (er etheF Otefseettens if the impart of Prp'eGt trafr'n on GF*tipn latefsestiens may not be entat` e) that may be +mpasted by the proposed Project; p 23 4. Initial Traffic Study Procedures. a. and b. No changes. C. The Traffic Manager, in consultation with the Traffic engineer and in accordance with accepted traffic engineering standards and principles, shall identify, in general terms, which Gr-itisal E Intersections may be affected by the proposed Project according to its size and geographic location. This preliminary determination shall be consistent with NBTAM and decisions on trip distribution patterns for previous Projects of similar size and location. d. and e. Completely delete. p 24 5. Traffic Study Methodology. a. and b. No changes 0. The following ICU calculations shall be performed for each Critical generated tFips 9R any leg of the during the a.m. 9F p.m. 245 hour peak traffiG PeFied equal eF eXGeed One POFGeRt (I Comment: As can be seen, this change simplifies the ordinance and procedures. It also restricts calcu- lations and improvements to the vicinity of the project, because they relate only to Critical intersections. These are now all close to the Project. (ICU rises by .0025 or more.) 4/21/ab99 5 " •7 2. Eliminate the provisions for "trip generation reductions." Item 2. Rationale: These provisions are fossils, laid down in the epoch when the AQMD was pressuring every- one to try to eliminate automobile trips. They are an invitation to cheat and have never been used. p 12, top paragraph 3. The Planning Commission or City Council on review or appeal finds, by the affirmative vote of four - fifths of the members Eligible to Vote that this Chapter is inapplicable to the Project because the Project will result in benefits, SUGh that outweigh the Project's anticipated negative impact on the circulation system. ME 14.40.050 Procedures A. No changes. B. Subject to review by the Planning Commission, the Traffic Manager, in the exercise of his /her professional discretion, shall; . 1. and 2. No changes. 3. Make recommendations to the Planning Commission and /or City Council with respect to the criteria for evaluating top Fedastien measuresT appropriate trip generation rates of land uses and otherwise ensure that the Traffic studies conducted pursuant to this Chapter reflect modern transportation engineering practice. ------------------------ - - - --- p 19 ----------------------------- 2. Application a. No changes. b. The application shall be accompanied by the following information: i. ii. and iii. No changes. W ARv ♦rip Fed otinn measure nrnnesed by the PF9jen4 .. tprcPv �J' ,�� rv�vvc proponent; 0 v. and vi. Renumbered to iv. and v. Continued on the next page. 4121/ab99 6 p21 g. Completely delete. p 24 5. Traffic Study Methodology. a. and b. No changes. (item 2) C. The following ICU calculations shall be performed for each Critical Intersection where, one year after Project completion, Project generated trips on any leg of the intersection during the a.m. or p.m. 2.5 hour peak traffic period equal or exceed one percent (1 %) of the projected traffic volumes on that leg. i. The existing ICU; ii. The ICU, with Circulation System Improvements that will be in place within one year after Project completion, based on all projected traffic, including Project generated trips, witheut ; and Note: Item 1 also changes 5.c. 4/21/ab99 7 l, n 3. Standardize on "peak hour" for all criteria. p 11, bottom of the page Item 3. (iii) There is an overall improvement in Levels of Service at impacted Critical Intersections du4a9 peak per because of the Circulation System Improvements constructed or funded by the Project proponent; OR p12 B. Exemptions. The following Projects are exempt from the provisions of this Chapter: 1. Any Project that generates no more than three — hundred (300) dally 10 peak hour trips. This exception shall not apply to individual Projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty four (24) month period cumulatively generate more than 3A8 avefage daily 10 peak hour trips; 2. Any Project that, after analysis of all potentially impacted Critical Intersections in accordance with Appendix A, a. Increases trips by less than one percent on each leg of each Critical Intersection during any a.m. or p.m. peak hour tFaffis period; or Notes: Item 7 says that the BIA would prefer the number 50 rather than 10. Items 1, b, and 8 also change subsection B. p13 d. The development agreement, pre- annexation agreement, or similar agreement between the property owner and the City of Newport Beach; (i) establishes the aver-age daily peak hour trips generated by the Project ( "baseline ") and (ii) requires the property owner to comply with this Chapter prior to the issuance of any permit for development which would, in any twelve (12) month period, generate thFee hundred (300) aveFage daily 10 peak hour trips more than the baseline; and Note: Item 7 says that the BIA would prefer the number 50 rather than 10. 4 /21 /ab99 R p15 (item 3) I. "Project' shall mean "project' as defined in the California Environmental Quality Act (Public Resources Code S 21000 et se g.), the CEQA Guidelines, and relevant decisional law without regard to whether any environmental document would be required. The term 'Project' shall also mean any application for a building or grading permit for development that would generate more than three hundred (300) aveFage dai4 y 10 peak hour trips unless specifically exempt pursuant to Section 15.40.030(8). Note: Item 7 says that the BIA would prefer the number 50 rather than 10. M. "Unsatisfactory Level of Service" shall mean a Level of Service at a Critical Intersection, which is worse than Level of Service "D" (.90 ICU), during any a.m. or p.m. peak hour period determined in accordance with standard traffic engineering practices. p 21, top paragraph i. Biennial field counts conducted for each Critical Intersection with counts taken on weekdays during the morning and . evening peak hours perieds between February 1 and May 31 of each year; p 23 4. Initial Traffic Study Procedures. a., b., and C. No changes. d. The Traffic Engineer shall determine if Project generated trips on any leg of any potentially impacted Critical Intersection will, one year after Project completion equal or exceed one percent (1 %) of the projected traffic volumes on that leg during the morning or evening peak tFaf#ic period hour. p 24 5. Traffic Study Methodology. a. and b. No changes. Note: Items 1 and 6 also change paragraph c. C. The following ICU calculations shall be performed for each Critical Intersection where, one year after Project completion, Project . generated trips on any leg of the intersection during the a.m. or p.m. 2.6 hour peak tra##+speried hour equal or exceed one percent (I %) of the projected traffic volumes on that leg. 9/21/ab99 9 4. Obtain accurate trip distribution by using the NBTAM on each Project. Items 4, 5 and 6� --------------- -------- - - - - - -- p 23 ----------------- ---- --- - - - - -- 4. Initial Traffic Study Procedures. a., b., and c. No changes. d. The traffic impacts of the Project shall be determined by comparing two runs of the NBTAM, one containing the Project as a land use, and the other not containing it. Both runs shall have the same circulation system and other land uses. The difference between the two shall represent the traffic impact of the Project. Existing d, e, and f renumbered to e, f, and g. 5. Clarify the cost -share formula with a definition of "intersection capacity." p 10, last paragraph (iii) The Project proponent pays a fee to fund construction of the Improvement(s). The fee • shall be calculated by multiplying the estimated cost of the Improvement(s) by a fraction equal to the number of Project generated trips at the Critical Intersection divided by the increase in of Intersection capacity at that Critical Intersection resulting from the Improvement. p 15, additions at the bottom O. "Intersection Capacity" shall mean the traffic volume at an intersection divided by the ICU. P. "Traffic volume at an intersection" shall mean the number of vehicles passing through the intersection during the peak hour used in calculating ICU. Note: The formula would be better and clearer if it used the language proposed for amending the existing TPO, and the accompanying definitions. 6. Limit the definition of "Critical Intersection" to the project vicinity. Item 6 amendments are shown as part of Item 1. 4/21/ab99 10 f, " 0 7. Criterion for small Project exemption. Items 7, 8, and 9 Comment: The TPO was not meant to apply to small' projects, such as homes or duplexes. Originally, it set 130 average daily trips as the criterion of what constituted a small project. This has been raised by the City Council to 300 ADT. The BIA wants to raise it to 500 ADT. SPON wants it back to 100 ADT or less. But there is agreement that peak hour trips are what need to be controlled, so the criterion should be changed to peak hour trip generation, rather than ADT. SPON wants 10 or less peak hour trips; the BIA presumably wants 50 or more. Depending on the disposition of other items, this criterion may appear in the following places: p 12, Exemptions B.1; p 13, Exemptions B.3. d; p 14 Definition A, Critical; p 15 Definition I, Project 8. Criterion for vicinity of the Project. Comment: The TPO is meant to impose a moratorium only on Projects in the vicinity of the congested intersection. "Vicinity" is taken to mean that the Project increases traffic by more the 1% on some leg of the intersection. This is a capricious criterion, because the leg where the Project traffic is added may carry very little other traffic, or may carry a great deal of other traffic. The criterion is too sensitive or too INsensitive, respectively. A more reliable criterion is what the Project traffic does to the intersection's ICU. The dispute is over how to translate 1% per leg to ICU. The SPON position is that since, on the average, the leg in question carries one quarter of the intersection traffic, one percent per leg translates to one quarter percent per total, that is, .0025 ICU. The BIA wants to stay with 1 %; that is, .0100 ICU. The draft in the April 8 staff report uses the figure .0050 (p 12, B.2.b). Depending on the disposition of other items, this criterion may appear in the following places: p 12, Exemptions B.2; p 20, Assumptions 3.b; p 23, Procedures 4.d and e; p 24, Methodology 5.c. 9. Divisor of the cost -share formula to be benefits of this improvement only. Comment: SPON likes the divisor the staff has proposed, "the increase in capacity at that Critical Intersection resulting from the Improvement," (p 10, last thing) although as noted in Item 5, it needs a definition to make clear what it means. But the BIA liked the formula in an earlier revision, where the divisor was "the projected total additional trips at that Critical Intersection from development authorized in the Land Use Element." If it will take several improvements to enlarge the intersection capacity enough to handle all the development authorized in the Land Use Element, then the earlier formula gives a much larger divisor, and hence a much smaller payment from the Project proponent. 4 /21 /ab99 11 10. Numbers kept to four digits of precision so no round -off noise is introduced. p 20 3. Traffic Study Assumptions. a. The definitions in Section 15.40.040 of the Newport Beach Municipal Code shall be applicable to these Procedures. Item 100 b. ICU calculations shall assume a lane capacity value of 1600 vehicles per hour of green (vphg) for both through and turn lanes. No factor for yellow time shall be included in the lane capacity assumptions. ICU calculations shall be made by calculating the volume to capacity ratios for each movement, rounded to the nearest .0001 with exact halves .00005 rounded down. The ratios for the critical movements shall then be added to give intersection ICU. The lGL) shall then be rounded to two deGirnal . A Critical Intersection shall not be considered impacted by project trips, and no mitigation shall be identified or required for a Critical Intersection, unless the ICU is increased by .005 or more by Project trips. Notes; The last sentence is changed by Items I and 7. Presumably the BIA would like to express each ratio as a percent, discarding fractions. 0 0 4/21/ab99 12 1, 11. Have no "exempt intersections." Item 11 ------------------------ - -- - -- p 9 and 10 ------------------------------ .030 A. 1. b. (i) The Project will not cause or make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection (excluding any Exempt lnteFSestiers) for which there is a Feasible Improvement; and 15.40.040 Definitions below: (ii) The benefits to traffic circulation resulting from Circulation System Improvements constructed or funded by the Project proponent outweigh the adverse impacts of Project traffic on Critical Intersections (excluding any Exempt RteFs In balancing impacts and benefits, Improvements that mitigate impacts of Project traffic shall be given greater weight than improvements unrelated to impacts of Project traffic; and (iii) There is an overall improvement in Levels of Service at Critical Intersections ( excluding an Exempt Intersertion) because of Circulation System Improvements required or funded by the Project proponent; OR p14 The following terms used in this Chapter shall have the meaning indicated A. "Critical Intersection" shall mean those intersections identified in Table IV of the Circulation element of the City of Newport Beach. B. "Exempt Intersection" Completely delete. Comment: The BIA regards exempt intersections as necessary to keep us from being forced (by court order) to build undesirable improvements shown in the Circulation Element. SPON does not see this as a threat. If we make the hard choice between congestion and big streets, there is nothing wrong with building the Circulation Element. SPON sees exempt intersections as a device to bypass the TPO and permit traffic generation at the very places where it will do the most damage. 4/21/ab99 13 v, Ir 12. Don't mention "feasible improvements." M. Items 12 and 13 .030 A. 1. b. (i) The Project will not cause or make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection (excluding any Exempt Intersection) fer which therc is a Bible knpi:evement; and p I I 2. d. (i) An Unsatisfactory Level of Service will not be caused or made worse at any Critical Intersection foF wh;s4 '.here —is a Feasible- ;and p 15, top D. "Feasible Improvement" Completely delete. Rationale: An intersection which is congested and has no feasible improvements is in terrible trouble and desperately needs the protection of a moratorium. If the "feasible improvement" language is not removed, there is no restraint on how much traffic is dumped into an already congested intersection. The BIA wants the language kept, because it is senseless to tell a developer he must improve an intersection and then tell him there are no feasible improvements. Item 13. No cost - sharing for General Plan amendments. p 10, bottom C. (iii) The Project proponent pays a fee to fund construction of the Improvement(s). If the Project includes a General Plan amendment, the fee shall be the entire cost of the Improvements. Otherwise, the fee shall be calculated by multiplying the estimated cost of the Improvement(s) by a fraction equal to the number of Project generated trips at the Critical Intersection divided by the increase in capacity at that Critical Intersection resulting from the Improvement, OR Rationale: The courts have held that the charge for using an entitlement must bear some relation to the public cost of having it used. But no one has an entitlement to a General Plan amendment. Anyone requesting such an amendment can be required to bear the full cost. 4/21/ab99 14 Items 14, 15, and 16 • 14. No permits can be issued until contracts are let for 80% (by cost) of the improvements. ------------- --- ------ -- - - -- -- p 25 ------ ----------- ----- -- - - - - -- 7. Issuance of Permits. The City shall not issue building, grading or other permits for a Project until each Improvement that has been assumed to be in place for purposes of Project Approval, such as the Improvements of subsection 15.40.030 A.1.c, or is to be constructed or funded as a condition of Project Approval, satisfies the following criteria: a. The State, County, City, or other governmental agency making the improvement has awarded contracts for construction of 80% (by estimated cost) of the improvements. The ImpFayernent has been budgeted and OFAF fitted f9F b. No changes. Rationale: Without this change, the Project could go right ahead even though there is a fiscal crisis or change in priorities which keep the improvements from being built. We need more certainty than "strong likelihood" that the project won't cause congestion. The Project timeline is 60 months (p 9, La) and the improvement timeline is 48 months (p 10, c.ii) so it is reasonable to tie project permits to improvement contract awards. 15. No special treatment for development agreements. p I I 2. b. The Traffic Study contains sufficient data and analysis to determine if that the portion of the Project reasonably expected to be constructed and ready for occupancy within sixty (60) months of Project approval satisfies the provisions of Subsections 1 a or 1b; and 16. No exemption for annexations. p12 . B. Exemptions 3. Completely delete. 4/21/ab99 15 I ICI Item 17 • 17. For legal strength, have Findings and Purposes show "moratorium and permission" philosophy. Rationale: The law takes a dim view of extorting money from people, even if it is to be used for a worthy public purpose. But the law gives considerable latitude to prohibit activities which are harmful to the public health and safety. The purpose of the TPO is in this second category: It is to stop projects which would cause congestion. But the TPO was generous enough to provide that the proponent doesn't have to wait until the City has raised enough money to improve the intersection; it allows the proponent to improve the inter- section himself, if he wants to, so he can proceed promptly with the Project. This has been used to pervert the TPO from a health- and - safety law into a fund- raising scheme, and has thus rendered it much more vulnerable to legal attack. If its Findings and Purpose openly state that it is intended to raise money, it becomes even more vulnerable. The Findings and Purpose should protect it by honestly stating its true original purpose: To prevent congestion by denying permits. The Finding and Purpose of the existing TPO (p 74) are well suited to this concept: 15.40.010. Finding The City Council of the City of Newport Beach finds that congestion of streets and intersections, traffic accidents, interference with emergency vehi- cles, and general overcrowding of existing neighbor- hoods have resulted, or will soon result, from inade- quate phasing of commercial, industrial and residen- tial growth, in relation to traffic capacity, which is harmful to the public health, safety and general welfare. 4/21/Ah99 15.40.020 Purpose The City Council of the City of Newport Beach declares that aggravation of these conditions can be avoided, eliminated or alleviated by enacting the following, designed to permit major development only in those areas of the City of Newport Beach where adequate transportation facilities exist, are • being implemented, or will be installed in conjunc- tion with the development which will accommodate the traffic generated by such development. 0 Date: March 12, 1999 To: TPO Working Group Members From: Barry Eaton, 949/760 -1691 (Phone and Fax); email: eaton727 0 earthlink. not Subject: Economic Development Committee (EDC) and Building Industry Association (BIA) Comments on Traffic Phasing Ordinance (TPO) Revisions Having seen these comments (attached) for the first time in the last couple of days, I would like to offer a few comments on them. Let me make clear that these are my comments; they do not necessarily represent the views of the Eastbluff HOA, the CAA or EQAC. 1 Changing Override Vote From 6(-7-to-5-IT, The EDC and EQAC appear to be directly at odds on this one. The staff memo to the EDC stated that "No other local jurisdiction has been identified as having any requirement for V7 votes on any local.issue." That is because there are virtually W other local jurisdictions with a 7- member legislative body. 80 % -90% of cities in California are "General Law Cities" that are mandated to have 5- member city councils. A 4 /5ths requirement (which L�a the actual number in the existing TPO) is not unusual at all. As an example, no General Law City can adopt an urgency ordinance unless it is by a 4 /5ths vote. In my mind, the question is whether the Exempt • Intersection Provision is important enough to require a super- majority vote; and if it is, should the super majority be consistent with the super majority requirement in the existing TPO (relating to Project Override) - which is not proposed for amendment - so as to help defend a negative declaration on this TPO revision? Obviously, I would say yes to both questions. 2. Exg@eoing LOS D in Airport Area: I think this should be taken up in connection with the coordinated General Plan Amendments that the City will be doing on the Airport and Newport Center areas. There should be a comprehensive look at both Land Use and Circulation issues in this effort; and I assume there will be an overarching EIR as well. An example of what this might include could be a grade separation at MacArthur & Jamboree (just as there already is in the circulation element at Coast Highway & Jamboree). If circulation upgrades such as this are included, the fair share calculations should be updated to reflect these more realistic projections. If there are still significant inconsis- tencies between the Land Use and Circulation elements in the airport area (which there will be - particularly on Campus Drive), then maybe the City should consider Los E on Campus Drive intersections, which can be pretty clearly demonstrated are more affected by Irvine and the Airport than by Newport Beach. And, K there is such an action, it should be covered in the El R as well. M• From : EATON RESIDENCEiOCESR 714 - 760 -1691 Mar.12.1999 02:15 AN P01 F A X M E M O & PAges (including attachmentO Date: March 12, 1999 To: TPO Working Group Members From: Barry Eaton, 949/760 -1691 (Phone and Fax); email: eaton727 0 earthlink. not Subject: Economic Development Committee (EDC) and Building Industry Association (BIA) Comments on Traffic Phasing Ordinance (TPO) Revisions Having seen these comments (attached) for the first time in the last couple of days, I would like to offer a few comments on them. Let me make clear that these are my comments; they do not necessarily represent the views of the Eastbluff HOA, the CAA or EQAC. 1 Changing Override Vote From 6(-7-to-5-IT, The EDC and EQAC appear to be directly at odds on this one. The staff memo to the EDC stated that "No other local jurisdiction has been identified as having any requirement for V7 votes on any local.issue." That is because there are virtually W other local jurisdictions with a 7- member legislative body. 80 % -90% of cities in California are "General Law Cities" that are mandated to have 5- member city councils. A 4 /5ths requirement (which L�a the actual number in the existing TPO) is not unusual at all. As an example, no General Law City can adopt an urgency ordinance unless it is by a 4 /5ths vote. In my mind, the question is whether the Exempt • Intersection Provision is important enough to require a super- majority vote; and if it is, should the super majority be consistent with the super majority requirement in the existing TPO (relating to Project Override) - which is not proposed for amendment - so as to help defend a negative declaration on this TPO revision? Obviously, I would say yes to both questions. 2. Exg@eoing LOS D in Airport Area: I think this should be taken up in connection with the coordinated General Plan Amendments that the City will be doing on the Airport and Newport Center areas. There should be a comprehensive look at both Land Use and Circulation issues in this effort; and I assume there will be an overarching EIR as well. An example of what this might include could be a grade separation at MacArthur & Jamboree (just as there already is in the circulation element at Coast Highway & Jamboree). If circulation upgrades such as this are included, the fair share calculations should be updated to reflect these more realistic projections. If there are still significant inconsis- tencies between the Land Use and Circulation elements in the airport area (which there will be - particularly on Campus Drive), then maybe the City should consider Los E on Campus Drive intersections, which can be pretty clearly demonstrated are more affected by Irvine and the Airport than by Newport Beach. And, K there is such an action, it should be covered in the El R as well. M• From : EATON RESIDENCE /OCESR 714 -760 -1691 Mar.12.1999 02:15 AM P02 5 EXempt lnjerr�ectlons: See No. 1 above. I also believe that the definition of Exempt Intersections should be revised so that the two Jamboree intersections are dropped from the candidate list. See the attached letter from the Eastbluff HOA. 4. Lowering the.Thrgshold From 300 to 500 Trips Per Day: Both the 300 and 500 are arbitrary, in my opinion. What the TPO is really trying to get at is PM Peak Hour Trips (not trips per day). That is when the most significant congestion occurs. I think the trips - per -day threshold should be changed to a pm peak hour threshold. This would have the effect of keeping a fairly high threshold on those uses generating the highest pm peak hour trips (such as offices), while allowing more flexibility for other uses (such as retail and hotels) that are less focused on peak hour traffic. If this is proposed, it should also be included in the Airport Area/Newport Center EIR. 5. BIA Comments: I tend to agree with the B1A comments on the findings and objectives sections of the TPO Revision Ordinance. I also agree that a project's effect on "Critical Movements" is what is important (Points 1 & 3 on Standards). I disagree with Points 2 & 4 because I think that going to three decimal places will result in more accurate numbers. I think I agree with Point 5, but it is a very esoteric issue_ Finally, I agree with the comments on the Expiration Section of the proposed ordinance. Thank you for your consideration of these thoughts cc: EQAC Members & Eastbluff HOA Board Members V// CAA Board Members L From : EATON RESIDENCEZOCESR 714 -760 -1691 Man-12.1999 02:17 AM P01 MAC l�-�999 15 2� CITY R1lUNNLY•7 Wri4_e) • Economic Development Committee Meeting of February 24, 1999 Discussion and Motions on 'Traffic Phasing Ordinance The following five specific EDC issues regarding the TPO were discussed: xcieclinQ LL. 5 U in its Area Discussed one third to one half intersections would exceed LOS D with existing entitlements, relationship with City of Irvine. and their development impacts to area, and future 53/73 onramp improvements. John Saunders made a motion to support the TPO to exceed LOS D and adopt Irvine standards of LOS E with a 15% margin of error. The motion was seconded by Richard Luehrs and was approved unanimously (with Noyes, Ridgeway and Selich abstaining), Changii Override Vote froin 6/7 to 517 Discussion included 6/7 being an unprecedented majority within City and SPON support of the 617 majority. • Richard Luehrs made a motion to support changing the override vote to a 5/7 majority. Craig Batley seconded the motion. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining), la arse io Ave( in Mike Erickson explained intersection averaging and its effective use within limits as a tool giving flexibility to decision makers. Richard Luehrs made a motion to drop the position of intersection averaging, and instead to consider intersection exemption, noting that if exempt intersections are not accepted the Committee is reconune idlag limited use of Intersection averaging, The motion was seconded by John Saunders. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining), P &WZtpt JntOrsection i Discussion included this being a political issue., having planned deficiencies, the preclusion of future proiects being completed without improvements, the name being mis.icading, and tho concern of its legal defonse. Richard Luehrs Made a motion to support the concept of exempt intersections with the recommendation the name be changed to "special circumstances on exception intersections." Earl McDaniel made) the jotond to the motion. The motion was approved unanimously (with Noyes, Ridgeway and Selich abstaining). VU From : EATON RESIDENCE /OCESR 714 -760 -1691 Pii•iR"10 -1995 1E^�23 CITY RTTORh7( =Y•S OFFICE Mar.12.1999 02:17 AM p02 Lowering the Thresh hold om 300 to S00 Tr4g¢ PeDav • 'T'here was discussion that this would give flexibility and that 300 trips is too restrictive. Richard Luehrs made the motion to lower the thresh hold from 300 to 500 trips per day. The, motion was seconded. The motion was approved unanimously (with Noyes. Ridgeway and Selich abstaining). 0 17 -4 From : EATON RESIDENCE /OCESR 714 -760 -1691 Mar.12.1999 02:17 AM PO4 Eastbluff Homeowners Community Association . 17300 Redhill Avetwe, Suite. 210, lrvinc, CA 92614 March S, 1999 — Cily' Of'NCtcpott Beach planning Commission Mr. hd Selich, Cbainttan 3300 Ncteport Illvd. Nctt'1torl Beach, CA 92659 Re: Exempt bnerscotions In. the Proposed TPO Revision Dear Planning Commission Members: The 13astbluff Homcowncrs Community Association is 1101 Dore of all the issues involved in the proposed Traffic Phasing Ordhlonce (TTK)) revislons that will shortly be heard by the Cotnmissima, We are aware however, that it new Category of "Exempt Intersections" is being proposed, such that once so designated, developers adding to the congestion al those InfeA6COlons would not have to contribute anything towards miligating that congestion under (he. revised TPO. Further, it is our understanding that Bison & Jamboree. and University/Eastbluff at Jamboree arc Mt the "candidate list" to be so designated. 'these two intersections nro directly a4iaccol to the Easlblull'Hornbw'nors Community Association developnlonl, and the latter intersection in 119riicular is a "gateway" intersection to this part of IhC city, providing critical access to luatry nelghborhoods cast of the bay. Further, there is continuing substantial growth cast of the bay that ikill add to the, congestion al these two inlcrsectiats. Developers should 1!111 be excused front contribaling to lnitlgadon measures to help reduce that congestion at these intersections. ht all the discussion to date that we have beard, the justification for "exempt intersections" has related to intersections on Coast Highway, not Jamboree, yet those two intersections Mttialn on the list. We are• aware than gout staff knows of at least two different simple ways that the definition of" Exempt 1 nlCrsecliNts" opuld be anncnded so as to keep the Coast Highway intersections on the list but delete. the Jamboree intersections. Yet, ag of the February 23rd draft, neither have been included in the TPO revisions ordinance. The Board of Dirmors of the D isibluff Homeowners Colnmunily Association would urge the Commission to include one or the other of these simple "fixes" in its recommendation con the TPO revision to the City Council, so that the )anlborcc intetscctiens ale rmnoved front the 11d. Thank you for your consideration. Cordially, ON )WHAM: OIt Tllli BOARD OF DIRECIT)RS ��12ASTBLUFF HOMEOWNERS COMMUNIW ASSOCIATION Barry Paton, Presidcnl cc: City Council City Altnrney City Traffic Engineer Nearby HOA's 7'hc F;nmxms Company Y.O. 13ox 19530 Irvine. Califomia 92623 (714) 752 -2225 Fax (714) 799-0367 THE BLUFFS HOMEOWNERS COMMUNITY ASSOCIATION r' March 17, 1999 Mayor Dennis O'Neill City of Newport Beach P. 0. Box 1768 Newport Beach CA 92658 Dear Mayor O'Neill: P.O. Box 8167 • Newport Beach, California 92658 -8167 99 :`l;' 18 :A9 :17 Telephone (714) 759 -1200 Fax (714) 759 -6620 Our association wishes to express its opposition to what appears to us as mechanisms in the revised TPO by which traffic inpacts on our homes would apparently be de- controlled. The designation of "exempt intersections" we hope was merely an inopportune choice of ,vords. There are over 2000 homes in The Bluffs area served by only three means of access, Jamboree /Eastbluff- University, Jamboree /Bison, and Jamboree /East Bluff - Ford. There are three schools with over 2000 students as well as the local Boys Club. 4' /e are advised that two of these intersections, Jamboree /Bison and Jamboree /Eastbluff University, are to be designated "exempt." From what are these intersections to be exempted? Exempting two thirds of our access from any aspect of the TPO is certainly not in the best interests of the health, safety, and welfare of this community. We are aware that there is a potential for litigation against the TPO's proportionality provisions. Why doesn't the city effect the 31 -word modification we understand has been offered by the community association to which we belong [CAA]. Is there some other agenda which mandates the seemingly catastrophic changes being suggested? `fours truly, s Community Association Paul R. Geptt, Vice President CC: Daily PRO- The Light C: \wp51 \eal \bluffs.doc Date Copies Sent To: ,Ell mayor 'Ey ouncil Member ,dManager ❑ A(jOrney / J 0 ❑ 0 2414 Vista Del Oro • Newport Beach, California t rte. /� Dear Council Member Dennis D. O'Neil: We value the quality of life in Newport Beach. When we exit the 73, we have of sense of relief as we leave the congestion and crowded conditions of the surrounding communities. We paid a premium to live in Newport Beach. As time has passed, congestion has continually increased and projects that have already been approved will have make matters worse. It is hard to believe that it is in the residents' best interest to waive the protection we have from further congestion. The bottom line is that we strongly oppose the proposal to change the City's Traffic Phasing Ordinance (TPO) (Municipal code 15.40). Specifically, • We object to permitting over one third of the intersections in the City to become overly congested by changing the City into a congested high -rise metropolitan area. • We object to removing requirements on developers to correct unsatisfactory traffic congestion created by their project creates before they build. • We object to changing the law to permit the city council to accept projects, even if they fail to correct their excessive congestion, by only four votes (instead of the six votes it currently takes to accept any uncorrected congestion). • We object to creating a group of "Exempt Intersections" that have no traffic controls. • We object to putting the interests of public safety behind those of outside developers by permitting excessive traffic congestion to slow access of paramedics, police, and fire vehicles to cross the city on our only two main roads of Pacific Coast Highway and Bristol. We hope that you can appreciate the benefit of drawing the line and protecting the feel of Newport Beach. We would like very much to hear your view on this matter. We hope you will put residents first and business interests second. s truly, Date _12a 9__ Copies Sent To: n ayor Eu 1rJ1. 'Council Member David and Eleanore Cassi y Manager C3 Att o ney ❑ El t7 -7 7. J City Council Member Dennis D. O'Neil t City of Newport Beach Zl �9 :50 P.O. Box 1768 99 1FR Newport Beach, CA 92658 -8915 RECEIVED BY „ PLANNING DEPARTMENT CITY OR NEIVPORT DEACHO;:�;t_ nl l� 1 r 1 9 �'O April 26, 1999 ISM PSI �igigii0il? I?�I? i�i3iSi616 Dear Council Member Dennis D. O'Neil: We value the quality of life in Newport Beach. When we exit the 73, we have of sense of relief as we leave the congestion and crowded conditions of the surrounding communities. We paid a premium to live in Newport Beach. As time has passed, congestion has continually increased and projects that have already been approved will have make matters worse. It is hard to believe that it is in the residents' best interest to waive the protection we have from further congestion. The bottom line is that we strongly oppose the proposal to change the City's Traffic Phasing Ordinance (TPO) (Municipal code 15.40). Specifically, • We object to permitting over one third of the intersections in the City to become overly congested by changing the City into a congested high -rise metropolitan area. • We object to removing requirements on developers to correct unsatisfactory traffic congestion created by their project creates before they build. • We object to changing the law to permit the city council to accept projects, even if they fail to correct their excessive congestion, by only four votes (instead of the six votes it currently takes to accept any uncorrected congestion). • We object to creating a group of "Exempt Intersections" that have no traffic controls. • We object to putting the interests of public safety behind those of outside developers by permitting excessive traffic congestion to slow access of paramedics, police, and fire vehicles to cross the city on our only two main roads of Pacific Coast Highway and Bristol. We hope that you can appreciate the benefit of drawing the line and protecting the feel of Newport Beach. We would like very much to hear your view on this matter. We hope you will put residents first and business interests second. s truly, Date _12a 9__ Copies Sent To: n ayor Eu 1rJ1. 'Council Member David and Eleanore Cassi y Manager C3 Att o ney ❑ El t7 -7 NORTH BLUFF BAYVIEW COMMUNITY ASSOCIATION Newport Beach, California 92660 April 15, 1999 Mr. Ed Selich, Chairman Planning Commission City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92659 RE: Exempt Intersections in the Proposed TPO Revision Dear Planning Commission Members: RECEIVED BY PLANNING DEPARTMENT CITY 01: APR 2 0 '1999 AM PM 719161110 111112111213141516 t The North Bluff Bayview Community Association is not aware of all the issues involved in the proposed Traffic Phasing Ordinance (TPO) revisions that will shortly be heard by the Commission. We are aware however, that a new category of "Exempt Intersections" is being proposed, such that once so designated developers adding to the congestion at those intersections would not have to contribute anything towards mitigating that congestion under the revised TPO. Further, it is our understanding that Bison and Jamboree and University/Eastbluff at Jamboree are on the "candidate list" to be so designated. These two intersections are directly adjacent to the North Bluff Bayview Community Association development, and the latter intersection in particular is a "gateway" intersection to this part of the city, providing critical access to many neighborhoods east of the bay. Further, there is continuing substantial growth east of the bay that will add to the congestion at these two intersections. Developers should not be excused from contributing to mitigation measures to help reduce that congestion at these intersections. In all the discussion to date that we have heard, the justification for "exempt intersections" has related to intersections on Coast Highway, not Jamboree, yet these two intersections remain on the list. We are aware that your staff knows of at least two different simple ways that the definition of "Exempt Intersections" could be amended so as to keep the Coast Highway intersections on the list but delete the Jamboree intersections. Yet, as of the February 23rd draft, neither have been included in the TPO revisions ordinance. The Board of Directors of North Bluff Bayview Community Association would urge the Commission to include one or the other of these simple "fixes" in its recommendation on the TPO revision to the City Council, so that the Jamboree intersections are removed from the list. Thank you for your consideration. Sincerely, THE BOARD OF DIRECTORS NORTH BLUFF BAYVIEW COMMUNITY ASSOCIATION 0 1-7-9 City Council Member O'Neil City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Council Member O'Neil: G�Q� " 9 / U I value my quality of life here in Newport Beach. One of the reasons I moved here was its relatively low level of traffic congestion. My most valuable asset is my home. I paid a premium to obtain a quality Newport Beach location. A heavily congested city will lower my property values. Rapid access of police, fire, and paramedic services of emergencies is mandatory. I don't want any delays due to congested traffic while being transported to Hoag Hospital. I strongly oppose the proposal to change the City's Traffic Phasing Ordinance (TPO) (Municipal code 15.40.) -- I object to permitting over one third of the intersections in the City to become overly congested by changing the City into a congested high-rise metropolitan area. -- I object to removing requirements for developers to correct unsatisfactory traffic congestion their project creates before they can build. -- I object to changing the law to permit the city council to accept projects, even if they fail to correct their excessive congestion by only four votes instead of the six votes it currently takes to accept any uncorrected congestion. -- I object to creating a group of "Exempt Intersections" that have no traffic controls. -- I object to putting the interests of public safely behind those of outside developers by permitting excessive traffic congestion to slow access of paramedics, police, and fire vehicles to cross the city on our only two main roads of Pacific Coast Highway and Bristol. Yours truly, url� -.� ohn E. Doran II A concerned resident 2800 Lighthouse Lane, Corona del Mar, CA 92625 17-9 0 � -r Date <� Copies Sent To: Mayor uncil Member o '� Manager _� = z fT ❑ Attorney > o +� ❑ "a 17-9 April 22, 1999 City Council City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear City Council Members: '99 APR 26 A 9 :33 C;�v For the following reasons, I strongly oppose the proposal to change the city's Traffic Phasing Ordinance (TPO), Municipal Code 15.40 1. I object to permitting over one third of the intersections in the city becoming overly congested by changing the city into a congested high rise metropolitan area. 2. I object to removing requirements for developers to correct (before they can build) any unsatisfactory traffic congestion their project creates. 3. I object to changing the law to permit the city council to accept projects even if they fail to correct their excessive congestion by only four votes instead of the six votes it currently takes. 4. I object to creating a group of "exempt intersections" that have no traffic controls. 5. I object to putting the interests of public safety behind those of outside developers by permitting excessive traffic congestion that slows access of paramedics, police, and fire vehicles. It is especially a problem on both Pacific Coast Highway and Bristol Street. Rapid access for police, fire, and paramedic service is mandatory in emergencies. certainly do not want any delay while being transported to Hoag Hospital. I value the quality of life in Newport Beach. My home is a valuable asset, and I do not wish to see it devalued by a heavily congested city. Sincerely, Joy E. Albert, Ph.D. 3087 Corte Marin Newport Beach, C A 92660 Date Copies Sent To: _-{3--Mayor IEJ�Council Member Manager ❑ ttorney L nc 0 /7-/0 City Council Member `D t City of Newport Beach P.O. Box 1763 s = -' ` tv r» • Newport Beach, CA 92658 -8915 '99 R °R 15 A9 :22 Dear Council Member ..,•- r'tY CLr.RK I value my quality of life here in Newport Beach. One of the reasot s �4q ed: reny�iw F latively low level of traffic congestion. My most valuable asset is my home. I paid a premium to obtain a quality Newport Beach location. A heavily congested city will lower my property values. Rapid access of police fire and paramedic services for emergencies is mandatory. I don't want any delays due to congested traffic while being transported to Hoag Hospital. I strongly oppose the proposal to change the City's Traffic Phasing Ordinance (TPO) (Municipal code 1 5.40.) • I object to permitting over one third of the intersections in the City to become overly congested by changing the City into a congested high -rise metropolitan area. • I object to removing requirements for developers to correct unsatisfactory traffic congestion their project creates before they can build • • I object to changing the law to permit the city council to accept projects, even if they fail to correct their excessive congestion by only four votes instead of the six votes it currently takes to accept any uncorrected congestion.) • I object to creating a group of "Exempt Intersections" that have no traffic controls. • I object to putting the interests of public safety behind those of outside developers by permitting excessive traffic congestion to slow access of paramedics, police and fire vehicle to cross the city on our only tow main roads of Pacific coast Highway and Bristol. Yours truly, A concerned resident, -aC -7 &W ki': k l Or, C� � d 0 N o A E C ■ ►�■ ■■ Or call the Members of the Newport Beach City Council to state your objections' ` 1 Dennis D. O'Neil 644 -8998 Norma J. Glover 548 -3212 RECEIVED BY PLANNING DEPARTMENT Tom W. Thomson 644 -9060 CITY 07 NEINRORT 1?EACH . John E. Noyes 675 -1508 Gary B. Adams 644 -5506 APR I J 1999 Tod Ridgeway 673 -6019 AM PM Janice A. Debay 645 -0919 718,9110111,1211-121314,516 k n- 11 Stephen R. Sutherland Company, Inc. nrr:rrrrr.'<; rf rRli • 17NiNN1:1rRfNG a C0NS'rRr!( :170N MAN tct-'narnrr • May 5, 1999 Patty Temple Planning Director City of Newport Beach Ref: Modifications to the"I'PO" Dear Patty, VIA. FAX (949) 644 -3 250 As a forty -year resident of Newport Reach I would like to voice my opinion concerning the proposed modifications to the Traffic Phasing Ordinance. ' I Giving a good back ground of this ordinance and knowledge of the proposed modifications, I would like to go on record as one of the many citizen supporters of these revisions. It is my sincere opinion that the modifications as presented will not in any way have a negative cflcot on the quality of live that all Newport residents have coma to enjoy and expect_ With that in mind, I strongly urge the Planning Commission to approve the changes in the "TPO" as written. R. Sutherland 4500 Campus Drive, Suile 500, Newport Beach, CA 92660; Tel: (949) 757.1662; Fax; (949) 660 -1252 • /7 -/ L 5/6/99 4:04P51 Roger M. Farel, M.D. 2201 Arbutus St. . Newport Beach, Ca. 92660 -4139 (949) 644 -0290 ro gerxmnCix.netcom.com Fax By Request Only City of Newport Beach Planning via Fax (949) 644 -3250 Re.: Traffic Phasing Ordinance, Dear Alembers, Commission Tonight's Meeting PLA 1\,N,I1,GElt. ANN ///I u G i;yy V13101 10 i I'M 1 Il��?���ijl =l3�d May 6, 1999 It is hoped that you find a way to finance appropriate street improvements that protects the City of Newport Beach from legal complaints. One proposed solution should NOT be considered! That is the idea of declaring intersections as "exempt" or otherwise "planning for presently unallowable traffic congestion in city planning ". • We pay a premium to live in Newport Beach. For the city to actually plan for increased traffic congestion is no solution at all. It will inferiorize our traffic infrastructure and cheapen the living experience of Newport Beach. Please, if you decide to let developers escape their responsibilities for traffic improvements, as presently required, over legal fears then find the financing to maintain these traffic flow solutions as presently required. There can be no excuse for modern city planners to plan for gridlock or more then one green light to get through an intersection, or any similar deterioration of the experience of road travel in Newport Beach. May common sense, wisdom and the appreciation of the Newport Beach experience prevail at tonight's meeting. Sincerel-. Roger Al. Farel, M.D. Pglofl i,_!21 4-1 SCI % `% (-lam Larry Tucker Newport Beach Planning Commission 3300 Newport Blvd Newport Beach, CA 92626 Dear Mr. Tucker: 300 Canal St. Newport Beach, CA 92663 Sunday, May 09, 1999 RECEIVED BY PLANNING DEPART MINT CITY CF NctN -C . i R� CI Ali HAY -13 woo PPA I attended the Planning Study Session of April 22, 1999. I found your questions to the Taylor Woodrow representative interesting. I am glad that you asked about the wetlands and arroyos. It was encouraging to see a member of the Planning Commission take the public responsibility of stewardship of wetlands as seriously as you seem to do. How can I learn more about the 3 standards that were discussed regarding the wetlands and arroyos? Three organizations were mentioned, Fish & Wildlife, Army Corp of Engineers and Coastal Commission. Can you help me find a contact at each and get more information about the three standards that were discussed in answer to your questions? Mike Schlessenger of Taylor Woodrow mentioned in reply that 118 acres of wetlands were controlled by the Army Corp of Engineers and that these wetlands had a relationship to the Talbert Marshlands. I am confused about the many proposals that Taylor Woodrow is making regarding the wetlands: 1) they claim they will adjust the storm drain flow to the North end of the wetland to create a brackish area 2) they claim they will work with the Port of Long Beach to create a more `vet' wetland using Port of Long Beach credits 3) they claim that the current wetlands are degraded by oil drilling and poor tidal influence from the Santa Ana flood project, yet they don't discuss who will pay to correct this negative influence and 4) they claim that they will make public access to the wetlands for water sports, which may hurt the delicate nature of the wetland. The proposed 40 foot strip of bluff trails are also a concern. Taylor Woodrow has plenty of space for development, but a relief area of one or two thousand feet between the development and the bluffs could help the wetland restoration and protect the bluffs from the tragic collapse now often seen on TV in Laguna and Malibu after rains. Taylor Woodrow should also have a better plan for wetland upgrading and a plan for maintenance. The EPA is also getting more restrictive on run -off and setting standards for coastal waters like those at the mouth of the Santa Ana River. This development will impact the ability of Newport Beach and Huntington Beach to meet these new EPA regulations. How can I learn more about these regulations and how the project will impact them? Many of my neighbors in Newport Shores have actively followed the plans for the Banning Newport Rauch development. Our concerns regard traffic, a potential road along the canal and wetlands, environmental impact, housing density and setback from the cliffs that separate the development from Newport Shores and the wetlands. I also appreciated your questions on traffic. It was disappointing that Taylor Woodrow had no comment on how the traffic will be distributed. Just spend a few minutes at the intersection of PCH and Superior at 8AM and observe how far the traffic is backed up for eastbound traffic, and you can estimate the impact of putting the' 6ont door' of the project (as Mike Schlessinger called it) on PCH. In addition, spend a few minutes driving up Superior and try to get access to Newport Blvd at the same time on any business day or on any beach day and it is scary to think that a proposal for 1750 new homes are being considered for the area. How can I learn more about traffic considerations? You mentioned the TPO and OCTA Model, how can I learn more about these? I am glad that you take into account the quality of life for current Newport Beach residents in addition to investigating the best way for Newport Beach to grow. I also appreciated your honesty regarding your activities in commercial developments. Thank you in advance for the information on the wetland standards and traffic. Sincerely, ✓L Everette Phillips 0 • --�,1d • n U • Chapter 15.40 TRAFFIC PHASING ORDINANCE Sections- 15.40.010 Finding. 15.40.020 Purpose. 15.40.030 Traffic Impact Limitation. 15.40.040 Definitions. 15.40.050 Procedure. 15.40.060 Fees. 15.40.070 Appeal. 15.40.080 Severability. 15.40.010 Finding. The City Council of the City of Newport Beach fords that congestion of streets and intersections, traffic accidents, interference with emergency vehi- cles, and general overcrowding of existing neighbor- hoods have resulted, or will soon result, from inade- quate phasing of commercial, industrial and residen- tial growth, in relation to traffic capacity, which is harmful to the public health, safety and general welfare. (Ord; 86 -20 § 1 (part), 1986: Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 1979: Ord. 1765 § 1 (part), 1978) 15.40.020 Purpose. The City Council of the City of Newport Beach declares that aggravation of these conditions can be avoided, eliminated or alleviated by enacting the following, designed to permit major development only in those areas of the City of Newport Beach where adequate transportation facilities exist, are being implemented, or will be installed in conjunc- tion with the development which will accommodate the traffic generated by such development, or where other trip generation reductions are adopted which will alleviate traffic impacts. (Ord. 86 -20 § 1 (part), 1986: Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 1979: Ord. 1765 § 1 (part), 1978) 569 15.40.010 15.40.030 Traffic Impact Limitation. A. Limitation. No building or grading permit shall be issued, and no construction shall commence, for any project not exempt from this chapter until the Planning Commission, or City Council on appeal or review, makes written findings that: i. Construction of the project will be completed within sixty (60) months of project approval: and a. The project will neither cause nor make worse an unsatisfactory level of traffic service on any "major," "primary- modified" or "primary" street; or b. The project is required to construct major im- provements to the circulation system such that: 1. An unsatisfactory level of traffic service will not be caused, nor made worse, at any intersection for which there.is a feasible identified improvement; and 2. The benefits to traffic circulation resulting from the major improvements substantially outweigh the increased traffic congestion at impacted, but unimproved, intersections; and 3. There is an overall reduction in intersection capacity utilization at impacted intersections, taking into, account peak hour traffic volumes at those intersections, because of improvements required of the project; or c. Complies with (i)(a) above upon completion of a major improvement(s) and: 1. The time and money necessary to complete the improvement(s) is so clearly disproportionate to the size of, and traffic generated by, the project that it would be unreasonable for the City to condition the project on completion of the improvement(s); and 2. Based upon available information at the time of approval, there is a strong likelihood construction of the improvement(s) will commence within forty- eight (48) months from date of project approval. This finding shall not be made unless, on or before the date of project approval, conceptual plans for the improvement have been prepared in sufficient detail to permit preparation of cost and funding estimates, cost and funding estimates for the improvement(s) have been prepared, the improvement(s) is consis- 15.40.030 tent with the provisions of the general plan of the City of Newport Beach or, if inconsistent, appropri- ate amendments to the general plan have been initi- ated, and an account has been established by the City to receive all contributions and funds related to the improvement; and 3. Approval of the project is conditioned upon payment of a fee to fund construction of the im- provements) with the amount of the fee to bear the same proportion to the estimated cost of the im- provement(s) as determined by the Traffic Engineer that the ratio of project generated traffic at the loca- tion of the improvement(s) bears the additional traffic anticipated to result from development within the City of Newport Beach from date of project approval to the date on which construction of the improvement(s) is to commence, this fee to be in addition to any other fee, contribution or condition required by, or imposed pursuant to, ordinances, plans, policies, or rules of the City of Newport Beach, or provisions of state law, including, but not limited to, the California Environmental Quality Act, or the Subdivision Map Act; and 4. The project's financial contribution towards construction of the major improvements substantial- ly outweighs the project's temporary adverse impact on unimproved intersection(s). ii. Is a comprehensive phased land use develop- ment and circulation system improvement plan with construction of all phases not anticipated to be com- plete within sixty (60) months of project approval and: a. The project is subject to a development agree- ment which requires the construction of major im- provements early in a development phasing pro- gram; and b. Prior to approval the Planning Commission, or City Council on review or appeal, reviews and considers a traffic study which contains sufficient data and analysis to determine if: 1. Development anticipated to be complete with- in sixty (60) months or project approval satisfies the provisions of (i)(a) or (i)(b); and 2. The land use and circulation elements of the City's general plan are made inconsistent by the 570 impact of traffic generated by the project (including major improvements designed to mitigate traffic impacts) when added to traffic resulting from devel- opment anticipated to occur within the City based upon general plan and zoning designations; and c. The land use and circulation elements of the City's general plan are not made inconsistent as a result of traffic impacts generated by the project (including major improvements designed to mitigate traffic impacts) within the City based upon general plan and zoning designations; and d. Project is required, during the sixty (60) month period immediately after approval, to con- struct major improvements to the circulation system such that: 1. An unsatisfactory level of traffic service will not be caused, nor made worse, at any intersection for which there is a feasible identified improvement; 2. The benefits to traffic circulation resulting from the major improvement(s) substantially out- weigh the increased traffic congestion at impacted, but unimproved, intersections; and 3. There is an overall reduction in ICU at im- pacted intersections, taking into account peak hour traffic volumes at those intersections, the reduction caused by improvements required of the project. iii. Shall be excepted pursuant to subsection (D) of this section, provided, however, that such finding shall state the exception granted and the facts which justify the exception; or B. Hearing. The Planning Commission shall hold a public hearing, noticed in the manner provided in Section 20.80.050(B) of the Newport Beach Munici- pal Code, and shall make its written findings sup- ported by the weight of the evidence. C. Exemption. Any project which has an average daily trip generation of three hundred (300) daily trips or less shall be exempt from the requirements of this chapter. D. Exceptions. The Planning Commission shall except any project from the requirements of this chapter: i. If it shall find that the City has issued a building, or grading permit for the project prior to the effective date of this chapter and that the person .0 F_ 1 LJ 1-5 • • to whom such permit was issued has in good faith and in reliance upon such permit diligently com- menced construction and performed and incurred substantial liabilities for work and materials neces- sary therefor. No change causing a substantial in- crease in traffic volumes may be made in such project, except in accordance with the provisions of this chapter; ii. If it shall find that traffic during any a.m. or p.m. two - and -a -half -hour peak traffic period on each leg of each critical intersection will be increased by less than one percent by traffic generated from the project during that a.m. or p.m. two -and -a- half -hour period; iii. If, by a vote of four - fifths of the members eligible to vote, it shall make a decision, supported by a written finding setting forth its reasons there- for, that the benefits of the project, including trip generation reductions, outweigh the project's antici- pated negative impact on transportation facilities. The City Council shall not grant the exception under this subsection (iii) on appeal or review until it shall have first made the findings required by this subsec- tion supported by an affirmative vote of four - fifths of its members eligible to vote. E. Action. The application for any building, grading or other permit on a project, which is not exempt from this chapter, shall be approved, condi- tionally approved or denied within one year from the date on which said application has been received and accepted as complete by the City. Any appeal to the City Council from an action by the Planning Commission on an application or a determination by the City Council to review an application, shall be made within the time periods set out in Sections 20.80.070 and 20.80.075 of the Newport Beach Municipal Code. In the event action is not taken on an application within the time limits hereof, such failure shall be deemed approval of the project which otherwise is consistent with the ordinances and general plan of the City of Newport Beach. F. Expiration. i. Any approval granted in accordance with this chapter shall expire within twenty -four (24) months from the date of approval if a building permit has 571 15.40.030 not been issued prior to the expiration date and subsequently construction is diligently pursued until completion, unless, at the time of approval, the Planning Commission or City Council has specified a different period of time. For any approval granted in accordance with this chapter for an anticipated construction scheduled beyond twenty -four (24) months from the date of approval, the Planning Commission or City Council shall establish a specif- ic expiration date which shall be no less than twelve (12) months from the anticipated start of construc- tion. ii. Any approval granted in accordance with this chapter prior to the adoption of this subsection shall expire within twenty-four (24) months from the date of approval of this subsection if a building permit has not been issued prior to the expiration date and subsequently construction is diligently pursued until completion. An approval previously granted with multiple phases which extend beyond twenty-four (24) months from the date of adoption of this sub- section shall expire within twelve (12) months from the anticipated construction date if a building permit has not been issued prior to the expiration date and subsequently construction is diligently pursued until completion. The. Planning Commission or City Council may, upon review and approval of a revised traffic study, using current data, approve a revised phasing program and establish expiration dates for a project previously approved pursuant to this chap- ter. iii. Any approval granted in accordance with this chapter which includes a phase or phases beyond twenty-four (24) months shall be reviewed for proms ress to acquisition of building permits on a yearly basis. (Ord. 94 -2 § 2, 1994; Ord. 86 -20 § 1 (part), 1986; Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 1979: Ord. 1777 § 1, 1978; Ord. 1765 § 1 (part), 1978) 15.40.040 Definitions. The following terms used in this chapter shall have the meanings indicated below: "Critical intersection" shall mean any intersection operating at an unsatisfactory level of traffic service, �) i 15.40.040 either prior to or as a result of a project, on any "major," "primary- modified," or "primary" street. "Eligible to vote" shall mean all members lawful- ly holding office except those disqualified from voting due to a conflict of interest. "Feasible identified improvement" means a major improvement contemplated by, or consistent with, the circulation and land use elements of the City of Newport Beach, the cost of which is not so clearly disproportionate to the size of, and traffic generated by, the project that it would be unreasonable for the City to condition the project on construction of the improvement. "Level of Service "D" " shall mean that level of traffic service set forth as "Level of Service "D" in the Highway Capacity Manual (1965)' or any subse- quent edition thereof, provided, however, that such level of service shall not exceed the most appropri- ate of the following criteria, as applicable: i. Intersection capacity utilization of 0.90; ii. Other criteria selected by the City Traffic Engineer which are consistent with subsection (i), and which have been reviewed and approved by the Planning Commission. "Major improvements" shall mean a substantial physical change to an intersection or roadway or the construction of a new road, but shall not mean resurfacing, restriping or other similar changes. "Major, primary- modified or primary" street shall be defined by the general plan of the City of New- port Beach, circulation element. "Project" shall be determined by reference to the California Environmental Quality Act (California Public Resources Code § 21000 et seq.) and the administrative guidelines established thereunder. "Unsatisfactory level of traffic service" means peak period traffic service which is worse than Level of Service "D" for one hour determined ac- cording to standard traffic engineering practices. (Ord. 86-20 § 1 (part), 1986: Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 1979: Ord. 1777 § 2, 1978: Ord. 1765 § 1 (part), 1978) 15.40.050 Procedure. Subject to review by the Planning Commission, 572 the City Traffic Engineer, exercising professional discretion, shall: A. Determine traffic periods, streets and inter- sections which will be significantly affected by the proposed project, taking into account the type, char- acter and location of the proposed project, as well as the character of the streets which will serve the project; B. Determine if the project, when complete, will cause or make worse an unsatisfactory level of traffic services at any such street or intersection; C. 1. Establish standard trip generation figures of project. Alternate trip generation rates may only be allowed based upon adequate documentation satis- factory to the Traffic Engineer and shall be subject to review by the Planning Commission or City Council; 2. Establish criteria for calculating trip genera- tion reductions which may result from specific mea- sures proposed by the applicant. The Planning Com- mission shall specifically find that any such mea- sures can be adequately quantified and guaranteed to assure the lone term validity of such reductions prior to their inclusion in the traffic analysis; 3. Establish the bases for performing the traffic analysis at project completion; D. Transmit these determinations to the Planning Commission with recommendations. (Ord. 86 -20 § 1 (part), 1986: Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 1979: Ord. 1765 § 1 (part), 1978) 15.40.060 Fees. The application shall be accompanied by a fee as established by resolution of the City Council to defray the expense of administering this chapter. (Ord. 86-20 § 1 (part), 1986: Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 1979: Ord. 1765 § 1 (part), 1978) 15.40.070 Appeal. A. Any determination of the Planning Conmris- sion shall be final unless there shall be an appeal by the applicant or any other person pursuant to the procedure set forth in Section 20.80.070 of the Newport Beach Municipal Code. Such appeal shall • • 15.40.070 be limited to evidence presented before, and the Chapter 15.42 • findings of, the Planning Commission. B. The City Council shall have a right of review MAJOR THOROUGHFARE AND BRIDGE as set forth in Section 20.80.075 of the Newport FEE PROGRAM Beach Municipal Code, as limited above. C. The City Council shall make its written find- Sections: ing in the same manner as set forth in Section 15.42.010 Major Thoroughfare and 15.40.030 of this chapter. (Ord. 86 -20 § 1 (part), Bridge Fee Program. 1986: Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 15.42.020 Definitions. (part), 1979: Ord. 1765 § 1 (part), 1978) 15.42.030 Conditions. 15.42.040 Notice of Hearing. 15.40.080 Severability. 15.42.050 Public Hearing/Area of Benefit. If any section or portion of this chapter is de- 15.42.060 Protests. clared invalid, the remaining sections or portions are 15.42.070 Use of Fees. to be considered valid. (Ord. 86-20 § 1 (part), 1986: 15.42.080 In Lieu Consideration. Ord. 85 -30 § 1 (part), 1985: Ord. 1787 § 1 (part), 15.42.090 Advances From Other Funds. 1979: Ord. 1765 §1 (part), 1978) 15.42.100 Reimbursement. 15.42.010 Major Thoroughfare and Bridge Fee Program. A building permit applicant, as a condition of issuance of a building permit, shall pay a fee in an • amount and manner as provided in this chapter to defray the costs of constructing bridges over water- ways, railways, freeways and canyons, or construct- ing major thoroughfares. (Ord. 85 -29 § 1 (part), 1985) E 573 15.42.020 Definitions. 1. The term "construction" as used in this sec- tion includes preliminary studies, design, acquisition of right -of -way, administration of construction con- tracts, and actual construction. 2. The term "major thoroughfare" means those roads designated as transportation corridors and major, primary, secondary or commuter highways on the Orange County master plan of arterial high- ways, the circulation element of the general plan of the City of Newport Beach. The primary purpose of such roads is to carry through traffic and provide a network connecting to the State highways system. 3. "Bridge facilities" mean those locations iden- tified in the transportation or flood control provi- sions of the circulation element or other element of • 4�F,WPpRT C9<icOPP�t CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD, P.O. Box 1768 NEWPORT BEACH, CA 92658 -8915 (949) 644 -3200; FAX (949) 644 -3250 Hearing Date: June 14, 1999 Agenda Item No.: 30 Staff Person: Patricia L. Temple (949) 644 -3200 SUPPLEMENTAL REPORT REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Traffic Phasing Ordinance SUMMARY: Proposed amendments to Chapter 15.40 of the Newport Beach Municipal Code, Traffic Phasing Ordinance, to provide that circulation system improvements required for a development are roughly proportional to that project's impact, to modify the definition of feasible improvement, to establish a threshold for traffic impacts that require circulation system improvements, and to change the number of affirmative votes needed to override the provisions of the Ordinance to 5nths of the members eligible to vote. ACTION: Conduct public hearing, introduce Ordinance No. 99 -_, and pass to second reading on June 28, 1999. Planning Commission Recommendation At its meeting on June 10, 1999, the Planning Commission reviewed the language of the Traffic Phasing Ordinance and Administrative Procedures as revised by staff, in response to the direction of the Commission on May 18`h. After receiving additional staff comments and a suggestion for an additional language change in the definition of Feasible Improvement, public testimony, and Commission discussion, a Resolution recommending approval of changes to the Traffic Phasing Ordinance was adopted by a unanimous vote. Attached to this report is the Ordinance and Administrative Procedures as recommended, which include the following changes from the drafts previously distributed to the City Council. 1. Written correspondence was received prior to the meeting which pointed out that the alternate language drafted by staff would limit feasible improvements to only those on the 5 year Capital Improvement Program. However, many improvements implemented under the provisions of the TPO do not rise to the level of a capital project, such as lane utilization changes and signal improvements. Staff agreed with the commentator, and drafted additional language for the definition of feasible improvement, to include these types of intersection modifications in the definition of feasible, as follows: "Is an improvement not in the 5 year CIP which increases the capacity of'an intersection, is not considered to be a master plan implementation improvement, and which reduces the ICU. " 0 The Planning Conunission included this addition in its final recommendation. 2. The Planning Commission noted that there was a possible inconsistency between the new language in the Ordinance and Section 7 of the Administrative Procedures. Staff has provided to the City Council amended language in that section to insure consistency between the Ordinance and Administrative Procedures. 3. Both the Planning Commission and members of the public noted some typographical errors in the Ordinance. These corrections have been incorporated into the new draft. Additional Information In response to questions and comments received from City Council members, staff has prepared revised flow charts for the existing and proposed Ordinances, which help clarify the differences between the two. New correspondence received by the Planning Commission is also attached. Prepared by: PATRICIA L. TEMPLE Planning Director Attachments: 1. Revised Draft Traffic Phasing Ordinance 2. Revised Traffic Study Procedures 3. Revised flow charts for existing and proposed TPO 4. Correspondence Traffic Phasing Ordinance June 14, 1999 Page 2 Ll �J Chapter 15.40 TRAFFIC PHASING ORDINANCE SECTIONS: 15.40.010 Findings. 15.40.020 Objectives. 15.40.030 Standards for Approval /Compliance /Exemptions. 15.40.035 Expiration. 15.40.040 Definitions. 15.40.050 Procedures. 15.40.060 Hearings /Notice. 15.40.070 Appeal /Review. 15.40.075 Proportionality. 15.40.080 Severability. 15.40.010 Findings. A. The phasing of development with circulation system improvements to accommodate Project generated traffic is important to maintaining the high quality of the residential and commercial neighborhoods in Newport Beach; B. While some development may be important to the continued vitality of the local economy, the City should continue to utilize growth management techniques, such as requiring mitigation of traffic impacts by Project proponents, to ensure the circulation system functions as planned; C. Circulation system improvements should not alter the character of neighborhoods or result in the construction of streets and highways which expand the capacity of the roadway system beyond levels proposed in the Circulation Element; D. This Chapter is consistent with the authority of a public entity to ensure Project proponents make or fund improvements that increase the capacity of the circulation system to accommodate Project generated traffic. 15.40.020 Objectives. The City Council has adopted this Chapter to achieve the following objectives: TP0rev061199 A. To provide a uniform method of analyzing and evaluating the traffic impacts of Projects that generate a substantial number of average daily trips and /or trips during the morning or evening peak hour traffic periods; B. To identify the specific and short -term impacts of Project traffic as well as Circulation System Improvements that will accommodate Project traffic and ensure that development is phased with identified circulation system improvements; C. To ensure Project proponents, as conditions of Approval pursuant to this Chapter, make or fund Circulation System Improvements that mitigate the specific impacts of Project traffic on Critical Intersections at or near the time the Project is ready for occupancy; D. To provide a mechanism for ensuring that a Project proponent's cost of complying with traffic related conditions of Project approval is roughly proportional to Project impacts; and E. To coordinate development - related Circulation System Improvements with other ordinances, plans policies, programs and resolutions of the City of Newport Beach, 15.40.030 Standards for Compliance /Approval /Exemptions. A. Standards for Approval. ! Unless a Project is exempt as provided in Subsection B, no building, grading or related permit shall be issued for any Project until the Project has been approved pursuant to this Chapter (Approved or, in appropriate cases, Date of Approval). A Project shall be Approved only if the Planning Commission, or the City Council on review or appeal, finds that the Traffic Study has been prepared in compliance with Appendix A and that: 1. Construction of the Project will be completed within sixty (60) months of project approval; and a. The Project trips will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection; or b. The Project trips, when mitigated by Circulation System Improvements that the Project proponent is required to make or fund, will neither cause nor make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection; or TPOrev061199 2 C. The Project trips will cause or make worse an Unsatisfactory . Level of Traffic Service at one or more Critical Intersections but the Project proponent is required to construct and /or fund Circulation System Improvements or other mitigation such that: (i) The Project trips will not cause or make worse an Unsatisfactory Level of Traffic Service at any Critical Intersection for which there is a Feasible Improvement; and (ii) The benefits to traffic circulation resulting from Circulation System Improvements constructed or funded by the Project proponent outweigh the adverse impacts of Project trips on the Level of Traffic Service at any Critical Intersection for which there is no Feasible Improvement. In balancing impacts and benefits, the following Improvements and or contributions and shall be given the greatest weight: a. Improvements that mitigate the impacts of Project trips on any Critical Intersection in the vicinity of the Project; • b. Improvements that improve Critical Intersections operating, or projected to operate, at or above 0.80 ICU; and C. Contributions to a plan that is designed to mitigate the impact of Project trips on any residential area in the vicinity of any impacted but unimproved Critical Intersection; or d. The Project complies with (1)(b) upon the completion of one or more Circulation System Improvements; and: (i) The time and /or funding necessary to complete the Improvement(s) is (are) not roughly proportional to the impacts of Project generated trips; and (ii) There is a strong likelihood the Improvement(s) will be completed within forty -eight (48) months from the date the Project and Traffic Study are considered by the Planning Commission, or City Council on review or appeal. This finding shall not be made unless, on or before the Date of Approval, a conceptual plan for each Improvement has been prepared in sufficient • detail to permit estimation of cost and funding TPOrev061199 3 sources for the Improvement(s); the Improvement(s) is (are) consistent with the Circulation Element or appropriate amendments have been initiated; and an account has been established to receive all funds and contributions necessary to construct the Improvement(s); and (iii) The Project proponent pays a fee to fund construction of the Improvement(s). The fee shall be calculated by multiplying the estimated cost of the Improvement(s) by a fraction equal to the number of Project generated trips at the Critical Intersection divided by the increase in capacity at that Critical Intersection attributable to the Improvement; or 2. The Project is a comprehensive phased land use development and circulation system improvement plan with construction of all phases not anticipated to be complete within sixty (60) months of Project approval; and a. The Project is subject to a development agreement which requires the construction of, or contributions to, Circulation System Improvements early in the development phasing program; and b. The Traffic Study contains sufficient data and analysis to determine if that portion of the Project reasonably expected to be constructed and ready for occupancy within sixty (60) months of Project approval satisfies the provisions of Subsections 1a or 1b; and C. The Land Use and Circulation Elements of the General Plan are not made inconsistent by the impact of Project trips (including Circulation System Improvements designed to mitigate the impacts of Project trips) when added to the trips resulting from development anticipated to occur within the City based on the Land Use Element of the General Plan and Zoning Ordinance; and d. The Project is required, during the sixty (60) month period immediately after approval, to construct Circulation System Improvement(s) such that: (i) Project trips will not cause or make worse an Unsatisfactory Level of Service at any Critical E TPOrev061199 4 Intersection for which there is a Feasible Improvement; and (ii) The benefits to traffic circulation resulting from the Circulation System Improvements constructed or funded by the Project proponent outweigh the adverse impact of Project trips on the Level of Traffic Service at any Critical Intersection for which there is no Feasible Improvement. In balancing impacts and benefits the following Improvements and contributions shall be given the greatest weight: a. Improvements that mitigate the impacts of Project trips at any Critical Intersection in the vicinity of the Project. b. Improvements that improve Critical Intersections operating or predicted to operate at or above 0.80 ICU. C. Contributions to a plan that is designed to mitigate the impact of Project trips on any residential area in the vicinity of any impacted but unimproved Critical Intersection; or 3. The Planning Commission, or City Council on review or appeal finds, by the affirmative vote of five - sevenths of the Members Eligible to Vote, that this Chapter is inapplicable to the Project because the Project will result in benefits that outweigh the Project's anticipated negative impact on the circulation system. B. Exemptions. The following Projects are exempt from the provisions of this Chapter: Any Project that generates no more than three hundred (300) daily trips. This exception shall not apply to individual Projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty four (24) month period cumulatively generate more than 300 average daily trips. 2. Any Project that, after analysis of all potentially impacted Critical Intersections in accordance with Appendix A, increases the ICU at all Critical Intersections by less than .005. 3. Any Project which meets all of the following criteria: TPOrev061199 5 a. The Project would be constructed on property that is within the jurisdiction of the County of Orange or an adjacent city as of the effective date of this Ordinance; and b. The Project is subject to a vesting tentative or parcel map, development agreement, pre- annexation agreement and /or other legal document that vests the right of the property owner to construct the Project in the County or adjacent city; and C. The property owner enters into a development agreement, pre- annexation agreement, or similar agreement with the City of Newport Beach: (i) That establishes the average daily trips generated by the Project ( "baseline "); (ii) That requires the property owner to comply with this Chapter prior to the issuance of any permit for development that would, in any twenty -four (24) month period, generate three hundred (300) average daily trips more than the baseline for the Project; and (iii) That makes this Chapter applicable to the Project immediately upon annexation and the issuance of the final certificate of occupancy for the entitlement vested in the Agreement and any additional entitlement approved pursuant to this Chapter. d. The City Council determines, prior to annexation, that the environmental document prepared for the Project fully complies with CEQA and the CEQA Guidelines. 15.40.035 Expiration. A. The Planning Commission, or City Council on review or appeal, shall establish a specific date on which the Approval of the Project shall expire (Expiration Date). In no event shall the Expiration Date be less than twenty- four (24) months from the date of Approval or the earliest date of expiration of any other discretionary approval required by the Project. The initial Expiration Date for Projects other than those described in Section 15.40.030 (A)(2) shall be no more than sixty (60) months from the Date of Approval unless subsequent approval is required from another public agency. In the event the Project requires approval from another public agency subsequent to Approval pursuant to this Chapter, the Date of Approval shall be the date of the action taken by the last public agency to consider the Project. Approval pursuant to this Chapter shall terminate on the Expiration Date unless a building permit has been issued for the • TPOrev061199 6 Project and construction has commenced pursuant to that permit prior to the Expiration Date or the Expiration Date has been extended pursuant to Subsection C. B. Any Project approved pursuant to this Chapter shall be considered a "Committed Project" until the Expiration Date, if any, or until the final certificate of occupancy has been issued if construction has commenced on a portion of the Project. All trips generated by each Committed Project shall be included in all subsequent Traffic Studies conducted pursuant to this Chapter as provided in Appendix A. C. The Planning Commission or City Council may, subsequent to the Date of Approval, extend the Expiration Date for any Project. D. The Planning Director and Traffic Manager shall, at least annually, monitor the progress of each Project to ensure compliance with this Chapter. 15.40.040 Definitions. The following terms used in this Chapter shall have the meaning indicated below: A. "Critical Intersection" shall mean those intersections identified in Appendix B and, with respect to individual Projects, any additional intersection selected by the Traffic Manager pursuant to Section 15.40.050. B. "Members Eligible to Vote" shall mean all members of the Planning Commission, or the City Council on review or appeal, lawfully holding office except those Members disqualified from voting due to a conflict of interest. C. "Feasible Improvement' means a Circulation System Improvement: 1. That is contemplated by, or consistent with, the Circulation Element at the Date of Approval that, if implemented, would satisfy the provisions of Section 15.40.030 A.1.b., and that is identified as an Improvement to be constructed in the Five Year Capital Improvement Plan (CIP); or 2. That is an improvement not in the Five Year CIP that increases the capacity of a Critical Intersection, that is not considered to be a master plan implementation improvement and that reduces the ICU at the Critical Intersection; or 3. That is consistent with any amendment(s) to the Circulation Element initiated and approved in conjunction with Approval of the . Project, that would satisfy the provisions of Section 15.40.030 TPOrev061199 7 A.i.b., and that the Project Proponent and /or the City has committed to complete within the time frames required by this Chapter. D. "ICU" means the intersection capacity utilization calculation computed in accordance with standard traffic engineering principles and the procedures outlined in Appendix A. E. "Level of Traffic Service" shall mean the letter assigned to a range of ICU's in accordance with Appendix A. F. "Circulation System Improvements" or "Improvements" shall mean a physical change to a Critical Intersection and /or a related roadway link that increases the capacity of the Critical Intersection or related roadway link. G. "Circulation Element" shall mean the Circulation Element of the General Plan of the City of Newport Beach as amended from time to time. H. "Project" shall mean "project" as defined in the California Environmental Quality Act (Public Resources Code 4 21000 et seg.), the CEQA Guidelines, and relevant decisional law without regard to whether any environmental document is required for the Project. The term "Project" shall also mean any application for a building or grading permit for development that would generate more than three hundred (300) average daily trips unless specifically exempt pursuant to Section 15.40.030 B. I. "Traffic Manager" shall mean the person employed by the City and who occupies the position of Traffic and Development Services Manager or similar position. J. "Traffic Engineer" shall mean the traffic engineer retained by the City to prepare the Traffic Study. K. "Traffic Study" shall mean the study prepared by theTraffic Engineer in strict compliance with this Chapter including Appendix A. L. "Unsatisfactory Level of Service" shall mean a Level of Service at a Critical Intersection, which is worse than Level of Service "D" (.90 ICU), during any a.m. or p.m. peak hour period determined in accordance with standard traffic engineering practices. M. "NBTAM" means the most current City Council approved Traffic Analysis Model for the City of Newport Beach. TPOrev061199 8 N. 'Peak Hour" or "Peak Hour Traffic Period" shall mean the one hour period between 7:00 a.m. and 9:00 a. m. (morning) and the one hour period between 4:00 p.m. and 6:00 p.m. (evening) with the highest traffic volumes as determined by the biennial traffic counts required by Appendix A. 14.40.050 Procedures. A. The Planning Commission shall determine compliance with this Chapter based on the Traffic Study for the Project, information from staff and /or the Traffic Engineer, and the entire record of the proceedings conducted with regard to the Project. The Traffic Study shall be prepared in compliance with Appendix A. B. Subject to review by the Planning Commission, the Traffic Manager, in the exercise of his /her professional discretion, shall: 1. Direct the preparation of each Traffic Study by a Traffic Engineer retained by the City and determine those Critical Intersections (or other intersections if the impact of Project traffic on Critical Intersections may not be representative) that may be impacted by the Project. 2. Ensure that each Traffic Study is prepared in compliance with the methodology described in Appendix A and independently evaluate the conclusions of the Traffic Engineer. 3. Make recommendations to the Planning Commission and /or City Council with respect to the criteria for evaluating trip reduction measures, the appropriate trip generation rates of land uses and otherwise ensure that the Traffic Studies conducted pursuant to this Chapter reflect modem transportation engineering practice. C. Any finding or decision of the Planning Commission with respect to any Project that also requires discretionary action on the part of the City Council, such as an amendment to the General Plan or Zoning Ordinance, shall be deemed an advisory action. In such cases the City Council shall take any action required by this Chapter at the same date and time that the City Council considers the other discretionary approvals required by the Project. D. The application for any building, grading or other permit for any Project subject to this Chapter shall be approved, conditionally approved or denied within one year from the date on which the application is deemed complete. In the event action is not taken on an application within one TPOrev061199 9 year, the Project shall be deemed approved provided it is consistent with the General Plan and Zoning Ordinance of the City of Newport Beach. E. A fee as established by resolution of the City Council to defray the expenses of administering this Chapter shall accompany the application for a Traffic Study. The application for a Traffic Study shall be submitted in compliance with Appendix A. 15.40.60 Hearings /Notice. A. The Planning Commission, and the City Council on appeal or review, shall hold a public hearing on any Project pursuant to this Chapter. The public hearing on the Traffic Study may be consolidated with other hearings required by the Project. The hearing shall be noticed in the manner provided in Section 20.91.030C of the Newport Beach Municipal Code or any successor provision. B. All findings required or provided for in this Chapter shall be in writing and supported by the weight of the evidence in the entire administrative record for the Project including the Traffic Study. 15.40.070 Appeal /Review. A. Except as otherwise provided in this Chapter, any Planning Commission . decision to Approve a Project shall be final unless there is an appeal by the Project proponent or any interested person. The appeal shall be initiated and conducted pursuant to the procedures set forth in Chapter 20.95 of the Newport Beach Municipal Code or any successor provision. B. The City Council shall have a right of review as specified in Chapter 20.95 of the Newport Beach Municipal Code or any successor provision. C. The City Council shall be subject to the same requirements as the Planning Commission relative to decisions and findings required by this Chapter. 15.40.075 Proportionality. A. In no event shall the Planning Commission or City Council on review or appeal: 1. Impose any traffic related condition or conditions on the Approval of a Project which would require the Project proponent to construct one or more Circulation System Improvement(s) if the total cost of traffic related conditions and /or Improvements is not roughly proportional to the impact of Project trips; or TPOrev061199 10 0 2. Impose any traffic related condition or conditions on the Approval of a Project which would require the payment of fees or costs that are not roughly proportional to the impact of trips generated by the Project. B. The provisions of this Chapter are intended to address the specific and, in most cases, short term impacts of Project trips on Critical Intersections rather than the overall impact of Project traffic on the circulation system. Chapter 15.38 of the Newport Beach Municipal Code is intended to address the overall impact of development on the circulation system. Conditions or fees imposed pursuant to this Chapter shall be in addition to fees required pursuant to Chapter 15.38 except as otherwise provided in Chapter 15.38 or a development agreement approved pursuant to Chapter 15.45. C. The provisions of this Section shall not limit or restrict the authority of the Planning Commission, or City Council on review or appeal, to impose on any Project all feasible mitigation measures pursuant to the provisions of applicable law, including CEQA and the CEQA Guidelines. D. The provisions of this Section shall not require Approval of any Project if the Planning Commission, or City Council on review or appeal, is unable to make the findings required for Approval pursuant to this Chapter. E. The provisions of this Section shall not require Approval of any Project which the Planning Commission is authorized to deny or modify pursuant to any State law or City ordinance, resolution or plan. F. The provisions of this Section shall not limit or restrict the authority of the Planning Commission, or City Council on review or appeal, to impose conditions, fees, exactions or dedications on a Project pursuant to: 1. A development agreement; 2. A reimbursement agreement or any other agreement acceptable to the Project proponent; 3. The consent of the Project proponent; or 4. An amendment to the Land Use Element or Zoning Ordinance of the City of Newport Beach that is required for approval of the Project. 15.40.080 Severabililty. If all or a portion of any Section or Subsection of this Chapter is declared invalid, all of the provisions of this Chapter that have not been declared invalid shall be considered valid and in full force and effect. TPOrev061199 11 1. General. 2. APPENDIX A These Administrative Procedures (Procedures) apply to any Project for which a Traffic Study is required by the Traffic Phasing Ordinance (TPO). Application. a. The proponent of any Project subject to the TPO shall: (i) file an application for a Traffic Study; (ii) pay the required fees; and (iii) sign an agreement to pay all costs related to the Traffic Study. b. The application shall be accompanied by the following information: i. A complete description of the Project including the total amount of floor area to be constructed and the amount of floor area allocated to each proposed land use; ii. A Project site plan that depicts the location and intensity of proposed development, the location of points of ingress and egress, and the location of parking lots or structures; iii. Any proposed Project phasing; iv. Any trip reduction measure proposed by the Project proponent; V. Any information, study or report that supports any request by the Project proponent to use trip generation rates that differ from those used in the NBTAM or the most current version of the ITE Manual or the SANDAG Manual, if the Traffic Manager determines those rates are more appropriate for purposes of the Traffic Study; and vi. Any other information that, in the opinion of the Traffic Manager, is necessary to properly evaluate the traffic 061199draft 1 • impacts of the Project or the Circulation System Improvements that could mitigate those traffic impacts. 3. Traffic Study Assumptions. a. The definitions in Section 15.40.040 of the Newport Beach Municipal Code shall be applicable to these Procedures. b. ICU calculations shall assume a lane capacity value of 1600 vehicles per hour of green (vphg) for both through and turn lanes. No factor for yellow time shall be included in the lane capacity assumptions. ICU calculations shall be made by calculating the volume to capacity ratios for each movement to three decimal places, and then adding the critical movements to obtain an ICU with three decimal places. The increase in the ICU attributable to Project trips shall be calculated to three decimal places. The ICU shall then be rounded to two decimal places. For example, an ICU of .904 shall be rounded to .90 and an ICU of .905 shall be rounded to .91. A Critical Intersection shall not be considered impacted by Project trips, and no mitigation shall be identified for or required of a Project unless Project trips cause an increase of at least .005 ICU. . C. Circulation System Improvements may be included in the Traffic Study for a Project provided that the Traffic Manager determines: L The Improvement will be completed no more than one year after completion of the Project or Project phase for which the Traffic Study is being performed; and ii. The Improvement is included in the Circulation Element of the General Plan, and is defined in sufficiently precise terms to allow the Traffic Engineer to conduct an ICU analysis; or iii. The design of the Improvement is consistent with standard City design criteria or has been approved by the City Council, or other public entity with jurisdiction over the Improvement, and is defined in sufficiently precise terms to allow the Traffic Engineer to conduct an ICU analysis. d. Traffic volumes shall be based on estimates of traffic volumes expected to exist one year after completion of the Project, or that portion of the Project for which the Traffic Study is being performed. The intent of this Subsection is to ensure use of the most accurate information to estimate traffic volumes one year 061199draft 2 after Project completion and to avoid duplication of trips. Traffic volume estimates shall be based on: • i. Biennial field counts conducted for each Critical Intersection with counts taken on weekdays during the morning and evening peak traffic periods (from 7:00 a.m. to 9:00 a.m. and from 4:00 p.m. to 6:00 a.m.) between February 1 and May 31 of each year; ii. Traffic generated by Committed Projects as determined in accordance with these Procedures iii. Projects reasonably expected to be complete within the one year after Project completion and which are located in the City of Newport Beach or its sphere of influence; iv. Increases in regional traffic anticipated to occur within one year after Project completion as projected in the NBTAM or other accepted sources of future Orange County traffic growth; and iv. Other information customarily used by Traffic Engineers to accurately estimate future traffic volumes. e. For purposes of the traffic analysis of Circulation System Improvements, seventy percent (70 %) of the incremental increase in intersection capacity (based on a capacity of 1600 vphg for each full traffic lane) shall be utilized. Upon completion of any Circulation System Improvement, traffic volume counts shall be updated, and any additional available capacity may then be utilized in future Traffic Studies. f. Trip generation rates for the land uses contemplated by the Project shall be based on standard trip generation values utilized in NBTAM except as provided in this Subsection. The Traffic Engineer may, with the concurrence of the Traffic Manager, use trip generation rates other than as specified in the NBTAM when NBTAM trip generation rates are based on limited information or study and there is a valid study of the trip generation rate of a similar land use that supports a different rate. g. The Traffic Engineer may, with the concurrence of the Traffic Manager, reduce trip generation rates for some or all of the land uses contemplated by the Project based on specific trip reduction measures when: 061199draft 3 I L The Project proponent proposes in writing and prior to commencement of the Traffic Study, specific and permanent measures that will reduce Peak Hour traffic generated by the Project; and ii. The Traffic Manager and Traffic Engineer, in the exercise of their best professional judgment, each determine that the proposed measure(s) will reduce Peak Hour Project trips and the specific reduction in Project Trips that can reasonably be expected; and iii. The Project proponent provides the City with written assurance that the proposed trip generation reduction measure(s) will be permanently implemented. The Project proponent must consent to make permanent implementation of the measure(s) a condition to the approval of the Project, and the measure(s) must be made a condition of the Project by the Planning Commission or City Council. h. In determining Project trips, credit shall be given for existing uses on the Project site. Credit shall be given based on the trip generation rates in the NBTAM. In the alternative, the Traffic Manager may, in the exercise of his /her professional judgment, authorize the use of trip generation rates in the ITE Manual, SANDAG Manual, or on the basis of actual site traffic counts. In the event the property has not been used for any purpose for a period of one (1) year prior to the filing of an application for a Traffic Study, credit shall be limited to trips generated by the last known land use, if any, that could be resumed with no discretionary approval. For any land use that is not active as of the date of the application for Traffic Study, the Project proponent shall have the burden of establishing that the use was in operation during the previous one (1) year period. i. In calculating traffic volumes, trips generated by Committed Projects shall be included subject to the following: i. All trips generated by each Committed Project or that portion or phase of the Committed Project for which no certificate of occupancy has been issued shall be included in all Traffic Studies conducted prior to the Expiration Date of that Committed Project; ii. In the event a final certificate of occupancy has been issued for one or more phases of a Committed • Project, all trips shall be included in subsequent 061199draft 4 El Traffic Studies until completion of the field counts required by Subsection 3(d)(1). Subsequent to . completion of the field counts, those trips generated by phases of the Committed Project that have received a final certificate of occupancy shall no longer be included in subsequent Traffic Studies. iii. The Traffic Manager and Planning Director shall maintain a list of Committed Projects and, at least annually, update the list to reflect new Approvals pursuant to the TPO as well as completion of all or phases of Committed Projects. iv. The total trips generated by Committed Projects shall be reduced by twenty percent (20 %) to account for the interaction of Committed Project trips. j. For purposes of Chapter 15.40 and these Procedures, the following Levels of Traffic Service ranges shall apply: A .00 -.60 ICU B .61 -.70 ICU C .71 -.80 ICU D .81 - .90 ICU . E .91 — 1.00 ICU F Above 1.00 ICU Initial Traffic Study Procedures. a. The Traffic Manager shall retain a qualified Traffic Engineer pursuant to contract with the City to prepare a Traffic Study for the Project in compliance with the TPO and the methodology specified in these Procedures. b. The Traffic Manager shall advise the Traffic Engineer of the methodology and assumptions required by these Procedures and provide the Traffic Engineer with a copy of the TPO and these Procedures. C. The Traffic Manager, in consultation with the Traffic Engineer and in accordance with accepted traffic engineering standards and principles, shall identify, in general terms, which Critical Intersections may be affected by the proposed Project according to its size and geographic location. This preliminary determination shall be consistent with NBTAM and decisions on trip distribution patterns for previous Projects of similar size and location. 061199draft 5 d. The Traffic Engineer shall determine if Project generated trips will increase the ICU of any potentially impacted Critical Intersection by 0.005 during the morning or evening Peak Hour one year after Project completion. e. In the event the Traffic Engineer determines that Project generated trips will not increase the ICU of any potentially impacted Critical Intersection by 0.005 during the morning or evening Peak Hour one year after Project completion analysis will be terminated. In such event the Project shall be deemed to have no impact on, and no mitigation shall be identified or required for, that Critical Intersection. In the event no Critical Intersection is impacted by Project generated trips as specified in this Subsection, the Traffic Study and worksheet shall be submitted to the Planning Commission with a recommendation that the Project be determined exempt from the TPO. 5. Traffic Study Methodoloqy. a. The Traffic Engineer, in preparing the Traffic Study, shall evaluate the trips generated from all Project land uses based on the assumptions specified in Section 3 and the methodology specified in this Section. . b. In the case of conversion of an existing structure to a more intense land use, the incremental increase in trips generated by the Project shall be evaluated. In the event the uses within the existing structure changed during the preceding twelve (12) months, the differential shall be calculated on the basis of the prior use or uses with the lowest trip generation rates according to the NBTAM (or ITE Manual or SANDAG Manual as appropriate). C. The following ICU calculations shall be performed for each Critical Intersection where, one year after Project completion, Project generated trips will increase the ICU of a Critical Intersection by at least 0.005 during the morning or evening Peak Hour. The existing ICU; ii. The ICU, with Circulation System Improvements that will be in place within one year after Project completion, based on all projected traffic including regional traffic increases and trips generated by Committed Projects excluding Project generated trips; and . iii. The ICU in (ii) with Project trips; 061199draft 6 iv. The ICU in (ii) with Project trips and any trip reduction measures approved by the Traffic Manager • V. The ICU in (ii) with Project trips and any mitigation resulting from Improvements vi. The ICU in (v) with trip reduction measures approved by the Traffic Manager. d. The Traffic Study shall, for each Critical Intersection with an Unsatisfactory Level of Service (ICU of .905 or more) that has been caused or made worse by Project generated trips, identify each Feasible Improvement that could mitigate some or all of the impacts of Project trips. The Traffic Study shall also determine the extent to which the Improvement provides additional capacity for critical movements at the Critical Intersection in excess of the Project trips. e. The Traffic Study shall, for each Improvement identified pursuant to Subsection d., estimate the cost of making the Improvement including the cost of property acquisition, design, and construction. The Traffic Engineer may perform the cost estimate or, with the approval of the Traffic Manager, retain a civil engineer or other qualified professional to prepare the cost estimates. f. The Traffic Study shall also provide the Planning Commission with any additional information relevant to the findings required by the TPO. 6. Staff Analysis a. The Traffic Engineer shall transmit a draft Traffic Study to the Traffic Manager for review, comment and correction. The Traffic Manager shall review the draft Traffic Study and submit corrections to the Traffic Engineer within 15 days after receipt. The Traffic Engineer shall make the corrections within ten (10) days of receipt and transmit the final Traffic Study to the Traffic Manager. b. The Traffic Manager shall transmit the final Traffic Study to the Planning Department for presentation to the Planning Commission. 7. Issuance of Permits. The City shall not issue building, grading or other permits for a Project Approved pursuant to Section 15.40.030 A.i.b., 15.40.030 A.1.c., or 15.40.030 A.2. until each Improvement that has been assumed to be in 061199draft 7 0 0 place for purposes of Project Approval, or is to be constructed or funded as a condition to Project Approval, satisfies the following criteria: a. The Improvement has been budgeted and committed for construction by or on behalf of the City; or b. The State, County or other governmental agency making the Improvement has accepted bids for the Project; or C. The Improvement has been approved by the appropriate governmental jurisdictions and is to be constructed by the Project proponent in conjunction with development of the Project or the Project proponent has guaranteed construction of the Improvement through the posting of bonds or other form of assurance. F:\cat\shared\Ordinance\TPO\TpoadminprocO6ll99.doc 061199draft 8 Proposed Project )mpleted In five yea(M) Yes X300 average daily trips or less Yes Yes Proceed with Project Contributes \ less than 1% trips to any leg during 2112 hr. \7 Ex sting TPo Intersection Capacity Utilization (ICU) Calculations ise or make worse an sfeotory, level service ru�u�ny� Approval No A...�rrirlG Proposed TPO Proposed Project ompleted in five years) c" Yes - Yes X300 average daily trips or less Yes Yes Proceed with Project Intersection Capacity �NO-0 Utilization (ICU) Calculations Increase ICU I By <.005 Yes Yes Cause or make worse an atisfactory level of service Mitigation I, Yes Findings for Approval _ No Awarridn OgACy m O�� y 4 O c P 4 �C.1117 Ys Q wmm m o. E co CL CL O 0 Z 2 2 m O N Q Edo LL 6— d d L d S ci3`m =n = Ca O EEO v e LL N d y Y d d aEC� y � U •� z W m N N E ° 1 1� e 2 2 Z 0 Z ogncy ��C t c _ v �� A117 O ` N } c c bC CL 0 0 0 1 a Ov a rn - ° c R�0 N 'V A N O �mE m d � u N ° E n i y d > 6 d E m N v q d d� E as O E U MO E E 2 N o 8 d y E� Y �Ea _ 9 z } a i O n Q E Z� 0 EnuZ ti d N yyyy 3`2d O C d C > LL / O ` N } c c bC CL 0 0 0 1 a Ov a rn - ° c R�0 N 'V A N O �mE m d � u N ° E n i y d > 6 d E m N v q d d� E as O E U MO E E 2 N o 8 d y E� Y �Ea _ 9 z } a i 0 L] 0 From : EATON RESIDENCE /OCESR June 3, 1999 SENT BY FAX 714- 7E0-1e91 Jun. 03. 1999 04:22 PH POI Barry D. Eaton 727 Bellis Street Newport Beach, CA 92660 (949) 760 -1691 (Phone and FAX) Chairman Ed Selich and Members City Planning Commission City of Newport Beach City Hall, Newport Beach, CA Dear Planning Commission Members: RECEIVES BY PLANNING DEPARTMIENT CITY 0;: N=I. JUN D J 1999 AM PM 71819110111112, ?,213141516 • As you know, I have followed and commented upon the proposed TPO Revision regularly, as It has gone through the process. Unfortunately, I will be unable to attend the Commission's meeting of June 10`", where you will consider the alternative language to "exempt intersections." I certainty agree with the Commission's intent to provide for developer contributions wherever a significant traffic impact is created by the project. However, there were a couple of significant safeguards in the "exempt intersections" concept that have been lost in the latest draft. It appears that, under the latest draft, ANY project at ANY intersection that is not in the current Capital Improvement Program (CIP) automatically becomes a "non- feasible improvement." This would not only include the six intersections in Appendix B (Including the two adjacent to Eastbluff), but potentially dozens of other projects at numerous other intersections In the City that do not happen to be on the Five -Year CIP. In my opinion, this would not only "politicize" the CIP process each year, but would be directly contrary to the intent of the TPO, which is to find creative, short -range improvement solutions at particular intersections that can be conceived and funded by developers whose project would significantly impact that intersection. I would urge the Commission to restore the safeguards back into the new process. This could be done by providing that Potential l non- feasible improvement projects become actual non - feasible improvement projects only when individually so declared by the City Council by (at least) a 577's vote after a public hearing thereon. Thank you for your consideration of these comments. Respectfully submitted. ri .y Typographical and drafting errors in the proposed Traffic Phasing Ordinance (TPOrev052534-999) p.2-- 030.A.1.b, line 5 "intersection" should be followed by a semicolon and "OR" p.3-- 030.A. 1.c(ii)c, line 4 There should be no period after "intersection" - -- there is a semicolon later. p.3-- 030.A.1.d, line 1 The reference should be toj(1)(b), not to (])(a). p.4--030.A.Ld(ii), line 9 Delete the word "ion." Tob chemical for this context. p.4-- 030.A.1.d(iii), last line The period before "OR" should be a semicolon. p.5-- 030.A.2.d(ii)b, line 4 "shall be given greater weight than other Circulation System Improvements; and." should be deleted. Greater weight is already mentioned ahead of paragraph a. p.5-- 030.A.d(ii)a, b, c Each paragraph should end with a period. Then "and" should appear, indented the same distance as a, b, and c. p.6-- 030.B.2 "2" should be indented the same distance as "1" and "3." p.6-- 030.B.3.b One space, not two, should separate a. and b. p.7-- 035.B, line 4 "Project" should be followed by only one period. p.8-- 040.C.1 and 2 The reference should be to 15.40.030 A.l.b, not to A.1.a. A.1.a doesn't contem- plate any improvements. p.8-- 040.C.1 and 2 There are six clauses here, introduced by four different conjunctions: "that ", "and ", nothing, "and which ". The best of these is "and which." It should be used consistently. p.12 - -080 With the proposed wording, if a portion of a section is declared invalid, the entire section is lost. This should be reworded so that only the invalid part is lost. For example, "If any part of this Chapter is declared invalid, remaining parts which can stand independent of the invalid part are to be considered valid and effective." Appendix A, 5.d, line 5 The word "generated" should be followed by "traffic." Although the City Attorney ignored the typos, I wish to thank him for accepting many substantive suggestions. • Major policy errors in the proposed Traffic Phasing Ordinance Appendix A 3.b, line 9 "The ICU shall then be rounded to two decimal places." This has the effect of letting LOS "D" go up to 90%1 percent. It should stop at 90 percent. Appendix A 3.b, last line "an increase of at least .005 ICU." This is more than twice as much traffic as was formerly required to find an impact on theintersection (1% per leg). Appendix A 4.c, lines 6 -7 Trip distribution is left entirely to guesswork and judgment. Some other cities are using their traffic models to calculate distribution. The results are consistent, more accurate, and meet with approval from the developers. p.6-- 030.A.3, line 2 The 5/7 vote is inconsistent. It takes a 4/5 vote to deny projects which would otherwise be approved (moratorium); it should similarly take a 4/5 vote to approve projects which would otherwise be denied (override). p.12-- 075.B, last line "or a development agreement approved pursuant to Chapter 15.45" allows the City Council to let the proponent of a development agreement double -dip; the same money can be counted against both the TPO fees and the fair -share fees. p.3-- 030.A.1.c(i), p.5-- 030.A.2.d(ii), p.8-- 040.C. The concept of "feasible improvement" is a disaster. It OKs projects which pour traffic into a congested or gridlocked intersection, provided there are no feasible improvements for that intersection. So the intersections which have the worst problems get treated as if they had no problems. This is like Y2K - -- after 99% comes 00 %. If a project that the City Council likes is blocked by the TPO because it impacts a. congested intersection, the City Council can by simple majority vote declare all improvements at that intersection infeasible, and thereby let the project go ahead. This effectively repeals the TPO. FHUM':WURUEN WILLINMS RICMMUND 8S8 755 S198 1599,06 -14 13:27 p24S P.01/09 W RDEN,. WILLIAMS, RICHMOND, BRECHTEL & GIBBS A PROFESSIONAL CORPORATION "RECEIVED AFTER AGENDA 462 STEVENS AVENUE, SUITE 102 PRINTED:" It* V14 -99 SOLANA BEACH, CA 92075 PHONE: (858) 755.6604 FAX: (858) 755-5198 E -MAIL: wwrbg @solanalaw.com FACSIMILE TRANSMISSION Date: June 14, 1999 Total Sheets: 9 (Including Cover Sheet) TO: Mayor and City Council, City of Newport Beach Patricia L. Temple, City of Newport Beach Robert Burnham, City Attorney, City of Newport Beach Fax No.: (949) 644 -3250 Phone No.: (949) 644 -3200 FROM: W. Scott Williams Re: Proposed Amendments to Traffic Phasing Ordinace Hearing Date: June 14, 1999 Agenda Item No.: 30 Comments: Original Mailed: Yes x No, FOR OFFICE USE ONLY CLIENT cone spneee.o i CLIENT NAME MAT MA NAME: CONFIDENTIALITY NOTICE Ths dmlmrm accorrperryim &i6 FACSMLE hanmuaion nw aarmir wrrdwdW &*amnion slid is ia, -1 prk% d. The &*armNOW 6 mmndad aiy fa ft err dit V,&WW erN* woad ahusw_ Y you we nadra beaded recipient"ft base raq=Wbla for da&w6o It m s,e &fended Mdpiest You me hereby natlaee dW wwalsaimm capWgL d ebudon ar ruse of any dtlra ir* mwsan cwrWw4d in M6 ranmisd n is atriay PRONE= . M you have NceN Ws rausaiaelon N error, P60y kw"&daMy nWk us by 660%001e 0041 mr1 d» aW"W raranks" 10 us. Than &you. FROM :WURDEN WILLIPMS RICHMUND ass 755 5198 T H E L A W O F F I C E S O F WORDEN, WILLIAMS, RICH.4fOND, BRLCI-fI'EL & GMBS A PROFESSIONAL CORPORATION June 14, 1999 Via Facsimile & U.S. Mail Mayor and City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 199,3106 -14 17:27 a24S P.172/09 462 STEVENS AVENUE . SUITE 102 S OLANA REACH . CALIFORNIA 82070 ^- VOICE 16101 766 -6904 PAX 16191 766 -6196 Re: Proposed Amendments to Traffic Phasing Ordinance/Hearing Date June 14, 1999 /Agenda Item No. 30 Dear Mayor and Members of the City Council: This office is worldng with SPON with regard to the above matter. These comments are submitted in addition to those submitted in writing and orally at your hearing, and please make them part of the record of your proceedings. STAFF'S RECOMMENDATION TO EXEMPT THE PROJECT FROM ENVIRONMENTAL, REVIEW IS CONTRARY TO CEQA. Staffs report includes at page 7 its recommendation that the proposed changes to the TPO be exempted from CEQA environmental review under the "Class 5 Categorical Exclusion," notwithstanding public testimony that at least an initial study is required because of the potential for environmental degradation which could occur if intersections were designated as exempt. We would respectfully submit that the use of a categorical exemption from CEQA is wholly inappropriate and contrary to the requirements of CEQA and that the law requires the City to either prepare an EIR or, at the very least, prepare an initial study to determine whether a negative declaration or E13L should be prepared.` 1SPON and many other organizations and members of the Community believe an eaviroamcvtel impact report, rather than a negative declaration, is required, and the law permits the City to aldp preparation of an initial study to save Ome. It is in tho City's discretion, however, to prepare an initial study fnsr, if the City so desires. See, CEQA Guidelines, Sections 15060(c), 15063. IC7Lt1 NT9IAP0NWP01o63S3 PROM :WORDEN WILLIRMS RICHMOND 858 7SS 5198 1995•Ub -1-! 13:28 #245 P.613,OS Mayor and City Council Y ry City of Newport Beach June 14, 1999 Page 2 PRELRMINARY REVIEW OF A PROJECT UNDER CEQA REQUIRES A CAREFUL AND "STRICT CONSTRUCT- IONIST" ANALYSIS OF WHETHER THE PROJECT IS EXEMP '. The recently revised CEQA Guidelines provide a road map for the preliminary review of projects under CEQA. Section 15061 applies to review for exemptions. Section 15061 states: .. (b) Possible exemptions from CEQA include: (1) The activity is not a project as defined in Section 15378. (2) The project has been granted an exemption by statute (see Article 18, commencing with Section 15260) or by categorical exemption (see Article 19, commencing with Section 15300). (3) The activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA...." For good reasons, staff does DQt claim that the proposed amendment to the TPO is not a "project" within the meaning of CEQA2, or that the proposed TPO amendment qualifies for a statutory exemption', or that "it can be seen with certainty that there is no possibility that the proposed amendment of the TPO will not have a significant effect on the environment` 2Section 15378 of the CEQA Guiddiocs defines project as -(a) Project mcans the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably fotesecable indirect physical change in the atviroomcn% and that is any of the following: (1) An activity directly undertaken by any public agency including but not limited to ... enactment and amendnrortt of zming ordinances, and the adoption and ameadmeat of local general pleas or elements thereof pursuant to Government Code sections 65100.65700... " 'The current statutory ore+nptions are described in Sections 15260 through 15282 of the Guidelines. None are applicable in the present matter. 4The discussion in Guidelines section 15063 refers to this exemption as "a short way for agencies to deal with discretionary activities which could arguably be subject to the CEQA pmc= but which common sense provides should not be subject to the Act" In the present case, it would be contrary to common setae to contend that the amendment of KILL EtdMPONUUONnt3S3 FROM :WORUFH WILL[RMS RICHMOHU 9S9 7SS S199 1999.06 -1.1 12:28 #249 8.04/09 Mayor and City Council City of Newport Beach June 14, 1999 Page 3 This leaves the proposed "categorical" exemption under Guidelines section 15305. First, it is important to remember what the word "categorical" means in this context. "Categorical" does NOT mean that "categorically" exempt projects are absolutely and unqualifiedly exempt from CEQA review. Instead, the word "categorical" refers to different classes or types (i.e., "categories ") of projects which normally would not be considered to have potential significant effects within the meaning of CEQA. In fact, the use of a categorical exemption is expressly qualified by both the CEQA Guidelines and relevant case law. Section 15300.2 of the Guidelines states: "15300?. Exceptions. ... (b) Cumulative Impact. All exemptions for these classes are in applicable when the cumulative impact of successive projects of the same type in the same place, over time is significant - for example, annual additions to an existing budding under Class 1. (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." As noted in the discussion accompanying the administrative guidelines, the court in McQueen v. Mid- PeninsulA Re 'ogi nal Open SpAcg (1988) 202 Cal.App.3d 1136 "reiterated that categorical exemptions are construed strictly, shall not be unreasonably expanded beyond their terms, and may not he used where there is substantial evidence that there are unusual circumstances (including future activities) resulting in (or which might reasonably result in) significant impacts which threaten the environment ' THE CEQA EXEDIPTION TINDER SECTION 15305 ON ITS FACE DOES NOT APPLY TO THE PROPOSED AMENDED TPO. The categorical exemption under Section 15305 reads as follows: an ordinance which is designed to cnsawe that new development in the City not create unacceptable traffic congcation can be "aces with certainty' not to have any possible significant environmental impacts. K�L7- DiNi9�9PONt41'bNa6.]!7 F�RCJN WUPLEN W1LL1RNS RICHMONr� 858 ss S1138 15913.0e -1a 15:28 x24S P.OS /09 Mayor and Ci ty Council City of Newport Beach June 14, 1999 Page 4 "15305. Minor Alterations in Land Use Limitations_ Class 5 consists of minor alterations in land use limitations in areas with an average slope of less than 20° /a, which do not result in any changes in land use or density, including but not limited to: (a) Minor lot line adjustments, side yard, and set back variances not resulting in the creation of any new parcels; (b) Issuance of minor encroachment permits; (c) Reversion to acreage in accordance with the Subdivision Map Act-­ In accordance with the court cases, this exemption must be "construed strictly" and "shall not be unreasonably expanded beyond [its] terms.- The clear intent of this categorical exemption parcel or area The language of the exemption refers expressly to "minor alterations in land use limitations in areas with an average slope of less than 201 /a, which do not result in any changes in land use or density-" The language of the exemption refers expressly to common minor deviations from applicable land use regulations, such as lot line adjustments, variances, minor encroachment permits, and consolidation of subdivided parcels. It is more than a stretch to try to make this exemption cover major city-wide changes in the primary ordinance which has been relied on by the City and the public for more than a decade to ensure that new development in all areas of the City be phased with the circulation system improvements required to accommodate the new traffic generated by the new developments AN EXEMPTION FROM CEQA CANNOT BE USED BECAUSE OF THE PROJECT'S POTENTIAL SIGNIFICANT ENVIRONMENTAL EFFECTS. Even if the language in Section 15305 could be stretched to include the present ordinance, Section 15300.2 and relevant case law prohibit its use under the circumstances of the present case. As your Council is or will undoubtedly be made aware, there are a number of ways in which stf the exemption applies to the present matter, the absurd result is that revisious to the TPO would be exempt (even if they have the practical and legal effect of deleting congested mterswoons Stan tbose required to be improved in phase with development), but a set baclxvariaoce would mt be exempt if the parcel has a slope greater than 20% or a la lice adjustment would not be exempt if it created just one new parcel! (See, Section 15305(a). J0JZL2MS%SFQW BPOWa 53 FPUM : WiiPOErJ W I LL I qMS R 1 CHMUHO 959 7ss S199 1.399. CBS- 14 17:29 g245 P. 0E: 09 Mayor and City Council City of Newport Beach June 14, 1999 Page 5 the proposed amendments to the TPO will or may result in significant traffic congestion, air quality, and other public health, safety and welfare impacts. Among others, the proposed amendments would relax the "super- majority" vote required for an override from 5 /7ths to 4 /5ths. It does not take a crystal ball to appreciate that more projects will be excepted from the TPO if the super - majority vote requirement is relaxed. Also, as staff notes, the amendment establishes a new and more liberal "significance threshold" for triggering the requirement to improve an intersection to accommodate a project's traffic impacts. Under the new administrative procedures, intersection capacity utilization rates can also be artificially reduced by decimal point rounding to meet "LOS D" standards_ Perhaps the most obvious way in which the proposed amended TPO would not qualify for any "categorical" exemption is that the amended ordinance has the immediate practical effect of creating at least six exempt intersections, without any fiuther environmental review. This results from the subtle but important proposed change in the definition of "feasible improvement" to exclude improvements not in the City's Five Year Capital Improvement Plan. The current TPO provides as follows: "Feasible identified improvement" means a major improvement contemplated by, or consistent with, the circulation and land use elements of the City of Newport Beach, the cost of which is not so clearly disproportionate to the size of, and traffic generated by, the project that it would be unreasonable for the City to condition the project on construction of the improvement." The definition is important under the current TPO because the City may not approve a project in certain circumstances unless "the project is required to construct major improvements to the circulation system such that: I. An unsatisfactory level of traffic service will not be caused, nor made worse, at any intersection for which there is a feasible identified improvement; and other findings are made. Under the proposed amended TPO, the definition of "feasible improvement" is likewise critical in determining whether certain projects can be approved. However, the new definition of "feasible improvement" in the proposed amended TPO will immediately make circulation elemen improvements at at least six intersections fall outside the definition of "feasible improvement." This is because the new definition adds the requirement that a circulation element improvement actually be "identified as an Improvement to be constructed in the Five Year Capital Improvement Plan (CIP)" in order to be considered a "feasible improvement" under the proposed amended xaci�•rrawrol+�poaosass FRUrt <WURnfitl WILLMMS RICMHOH l ass "SS 519e 1999.06 -14 13:29 p24S P.07/09 Mayor and City Council City of Newport Beach June 14, 1999 Page 6 TPO. This changed definition of "feasible improvement" would immediately exclude intersection improvements that were not previously excluded.6 The proposed amended TPO thus has the obvious potential of unleashing a significant amount of new development from any requirement that it be phased with completion of the intersection improvements required to accommodate the increased traffic at an acceptable level of service, with the concomitant environmental impacts of traffic congestion, pollution, and noise. Further, the City's Five Year Capital Improvement Plan is considered, reviewed, adopted, and amended from time to time by the City Council without a super majority vote requirement and typically without further environmental review. These proceedings are also typically not the subject of as much public scrutiny as actual development plans, general plan or zoning amendments, or other similar projects. It is reasonably foreseeable that intersection improvements currently included in the Five Year CIP will be deleted from time to time without public scrutiny or environmental review and without full consideration of the consequences of exempting additional projects from the TPO's requirement that development be phased with needed intersection improvements. Your Council should also keep in mind the two year plus administrative record and context of the proposed amended TPO. As originally proposed some time ago, the amendments would have excised the TPO's primary requirement that development projects be phased with the improvements required to mitigate the traffic impacts. Other proposed changes included utilization of "intersection group averaging" and downgrading the level of service standard for the airport area from LOS A to LOS E. As in the present case, staff proposed use of a categorical exemption from CEQA review, and, as noted in your staff report, the Planning Commission concluded that the changes were unacceptable to the community and required more detailed environmental analysis. The concept of "exempt intersections- then surfaced to accomplish in a more limited form what was originally proposed — the relaxation of the primary requirement that development be phased with the improvements necessary to mitigate the traffic impacts. Though controversial and contentious, the concept of "exempt intersections" is still included in the proposed ordinance in the form of a modified definition of "feasible improvement." 6As noted in the staff report at page 3, there are six inwwrtions which cawld be improved to handle traffic at an acceptable level of service but which are gi included in the Five Year Capital Improvement Plan. (See Attachment 10, list of candidate exempt mtcrxctioas.) without further environmental review or action by the Planning Commiasioa or City Council, these additional intersections would now be identified as ones for which there is no feasible unprovement within the [Weaning of the proposed amended TPO. KX2ZM3ISP0NSPONa6351 FI.UM : bJLA LJEN W I LL I NMS R I LHMUNU w ass 7s- s1s6 17 .ut -14 L -�:Zu #245 R.178i'0y Mayor and City Council City of Newport Beach June 14, 1999 Page 7 The reality, which the administrative record documents, is that the City is well aware of the intersections which either now or in the future would be or are likely to be exempt. The City must address the potential environmental impacts of doing so at this critical juncture, not avoid environmental review by use of an exemption which: on its face does not apply and which cannot be used in any event because of the certainty of potential significant effects. AN EIR IS REQUIRED UNDER CEQA PRIOR TO PROCEEDING WITH THE PROPOSED AMENDED TPO. CEQA, the CEQA Guidelines, and case law make abundantly clear that, unless a project is exempt, an adequate "initial study" must be prepared to determine if the project may have a significant effect on the environment. (See Guidelines section 15063). If the City determines that there is substantial evidence in light of the whole record that any aspect of the project, individually or cumulatively, may cause a significant effect on the environment, regardless of whether the overall effect is adverse or beneficial, the City must prepare, consider, and certify an adequate environmental impact report before any approval. (See Guidelines section 15063). This is a procedural requirement strictly enforced by the courts. In determining whether a project may have a significant environmental impact, the City must use its careful judgment and consider views held by the public as expressed in the record. The City must consider direct environmental impacts, caused by and immediately related to the project, and reasonably foreseeable indirect environmental impacts caused by the project. (See Guidelines section 15064). Some examples of potentially significant effects are included in Appendix G to the Guidelines and are also included in the standard form CEQA Checklist. These include whether the project would have any conflict with any applicable land use plan, policy, or regulation, including a general plan, specific plan, local coastal program, or zoning ordinance, adopted for the purpose of avoiding or mitigating an environmental e@'ect (Appendix G, Item (a); Checklist, Item DC(b)), and whether the project will cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system resulting in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections (Appendix G, Item p); CEQA Checklist, Item XV(a)). The overall legal standard is that an EIR must be prepared if a fair argument could be made that a project may have a significant effect on the environment. The City must prepare an EIR even though there may be other substantial evidence that the project will not have a significant effect. (See Guidelines, section 15064(g)(1).) FRUM • : WOROEM W 1 LL I nMS RICHMOND 55a 755 5195 19'y9 i lJG- l n 13:30 324S P. O9. J9 Mayor and City Council City of Newport Beach June 14, 1999 Page 8 In the present case, relaxation of the controls which the City has employed over the years to phase development with the traffic improvements necessary to accommodate the traffic impacts will most certainly result in potential significant environmental effects in the areas of traffic congestion, noise, and pollution. The relaxation of the rules also conflicts with achieving and maintaining the circulation element's LOS "D" goal, and is thus in conflict with the goals and policies of the City's adopted general plan. Relaxation of the rules is also likely to unleash a new round of general plan amendment and zone change requests to permit higher density and intensity of use, leading to an additional broad range of environmental impacts. In preparing the initial study, the City should thus not only consider the potential impacts from currently proposed projects, general plan amendments, and zone changes, but also those from reasonably foreseeable requests that would be permitted under the relaxed rules. CONCLUSTON In sum, and aside from what your Council believes is the appropriate policy in this particular matter, I would respectfully submit that, as has been pointed out previously by other participants in the process, the City is not legally permitted to take action to approve the proposed amended TPO pending full compliance with CEQA. The use of the proposed categorical exemption would be contrary to CEQA and would expose any approval to legal challenge. While it may be understandable that the process went so far without preparation of an initial study or EIR because the actual proposed amendments continued to be in a state of flux until the present time, that does not excuse compliance with CEQA now that the matter is before your Council. Respectfully submitted, WORDEN, WILLIAMS, RICHMOND, BRECHTEL & GIIIB /BS, APC W. SCOTT WILLIAMS WSW :lg cc: City Attorney Robert Burnham Patricia L. Temple SPON KNMIENTSWOMRONOU53 d Honorable Mayor and Members of the City Council June 14, 1999 From Allan Beek TRAFFIC PHASING ORDINANCE "RECEIVED. AFTER AGENDA PRINTED." EL W'lT The ordinance the Planning Commission has sent to you fails to achieve its objective of proportionality. It is long and complex, but has failed in its main purpose. An example is the best way to make this clear. Suppose there is an intersection which is at 89% ICU - -- just barely OK. Suppose there are four projects in that vicinity, all ready to go. Each would increase the ICU at the intersection by 2 %. There is an improve- ment which would reduce the ICU by 8% and would cost $400,000. At present, one of the proponents must put in his project, be a hero, and pay the $400,000. Then the other three proponents get to ride in free on his coattails. This, admittedly, is not proportional. To be proportional, each proponent should put up $100,000 to help pay for the improvement. The ordinance you have before you has achieved only half of this. It has reduced the payment of the 1 st proponent from $400,000 to $100,000 - -- but the other three still get to ride in free on his coattails! Who picks up the tab for the other $300,000? The City! With Ist project 1 91 %1 Nowt I With 4th 89% 1 1 89% 1 With 3rd1 1 1 87% 1 With 2nd1project 1 1 85% 1-1 83% With 1st project and improvement The ordinance the Planning Commission has sent you is also vague in the formula telling how much the 1st proponent has to pay. It is defined in terms of "the increase in capacity," which is itself not defined. Each lane has a capacity of 1600 cars per hour, but it does no good to add useless right turn lanes. Capacity is only useful if it matches the traffic trying to get through the intersection. So the concept of "effective capacity," which depends on the ICU, is the meaningful way to define increase in capacity. A fairly simple set of amendments to the existing Traffic Phasing Ordinance will give a well- defined proportionality formula and require all four proponents to pay their proper share. A copy of these amendments is attached. The new definitions make it possible to clarify and shorten the ordinance, but I have held back my itchy fingers and refrained from making other changes, no matter how badly needed. For clarity, the existing and proposed versions are in parallel columns. Words to be removed are printed in s4rikethreugh type in the left (existing) column. Words to be added are printed in boldface type in the right (proposed) column. Thus each column may be read straight through without the need to ignore groups of words. As compared with the ordinance the Planning Commission has sent you, these amendments have three advantages: 1) Much shorter and simpler. 2) Actually achieve proportionality. 3) Terms used in the payment formula are all defined. I agree with the City Attorney that the ordinance needs to be corrected to meet the proportionality test. I suggest that you consider the attached amendments, which achieve that objective - -- whereas the ordinance from the Planning Commission does not. Sincerely, Z& &OQ 15.40.030 Traffic Impact Limitation. A. Limitation. No building or grading permit shall be issued, and no construction shall commence, for any project not exempt from this chapter until the Planning Commission, or City Council on appeal or review, makes written findings that: i. Construction of the project will be completed within sixty (60) months of project approval: and a. (No change.) b. (No change.) c. ent(s) and: Lt(s) is se eleafly disprepenienate te the would be unFeasenable fer the City to eenditie pFejeet en I. pleben a f-the :.. ent(s); and 2. (Renumbered to 1. Cost estimates, conceptual plans, will be done in 48 months. No change.) 3. Approval of the project is conditioned upon payment of a fee to fund construction of the improvement(s) with the amount a fth. f te bear the same pf:epe-lien to the estimated eest of 4(s) as deter-Fained by the Traffle Enginee the City ef Nevepert Beach from date of prejea this fee to be in addition to any other fee, contribution or condition required by, or imposed pursuant to, ordinances, plans, policies, or rules of the City of Newport Beach, or provisions of state law, including, but not limited to, the California Environmental Quality Act, or the subdivision Map Act; and 4. unimpreved 15.40.030 Traffic Impact Limitation. A. Limitation. No building or grading permit shall be issued, and no construction shall commence, for any project not exempt from this chapter until the proponent has agreed to pay all deficit intersec- tion fees pursuant to subsection C.ii, and the Planning Commission, or City Council on appeal or review, makes written findings that: i. Construction of the project will be completed within sixty (60) months of project approval: and a. (No change.) b. (No change.) c. Upon completion of one or more circulation system improvements, project traffic will not result in an ICU greater than 0.90 at any impacted intersection and: (The substance of 1. is moved to 3) 1. (Former 2. Cost estimates, conceptual plans, will be done in 48 months. No change.) 2. Approval of the project is conditioned upon payment of a fee to fund construction of the improve - ment(s). The fee for each improvement shall be equal to the estimated cost of the improvement, multiplied by the impact of the project on that intersection, and divided by the benefits of the improvement. This fee shall be in addition to any other fee, contribution or condition required by, or imposed pursuant to, ordinances, plans, policies, or rules of the City of Newport Beach, or provisions of state law, including, but not limited to, the California Environmental Quality Act, or the subdivision Map Act; and 3. The estimated cost is more than 135% of the fee; and 4. The benefits of the improvement(s) are greater than the total impact of the project on all impacted intersections. (No change in the rest of section A or section B. New section C is added, pushing all the others down.) C. Deficits i. When improvements are made to an intersection, with only part of the cost being borne by project proponents, pursuant to subsection A.i.c.2, then the intersection shall be designated a "deficit intersection," with the amount of the deficit equal to that part of the cost of the improvements which is not borne by project proponents. ii. If an impacted intersection is a deficit intersection, then the project proponent shall pay a fee to fund construction of the improvements which have been made to that intersection. The fee shall be calculated as in Subsection A.i.c.2. Upon receipt of the fee, the City shall reduce the deficit by the amount paid. If the deficit is reduced to zero, then the intersection shall cease to be a deficit intersection. (No change to the rest of 15.40.030, except to change the names of sections C, D, E, F to D, E, F, G.) 15.40.040 Definitions "Impacted intersection" shall mean a signalized intersection where project traffic will equal 1% or more of the peak hour traffic on any leg. "Traffic volume at an intersection" shall mean the number of vehicles passing through the intersection during the peak hour used in calculating ICU, not counting those which make a movement (such as a free right turn) which does not conflict with any other movement. "Effective capacity" shall mean the traffic volume at an intersection divided by the ICU. "Benefits" shall mean the increase in effective capacity resulting from the improvement. "Impact" or "negative impact" shall mean that part of the traffic volume at an intersection which is generated by the project. r' From: eAATON RESICeNCE /OCESR 714- 760 -1691 Jum.13.1999 12:50 PM F01 _V R A FT "RECEIVED AFTER AGENDA _ PRINTED:" 3 C i s E'C C.1 V r= tk 141C1<I PRIMARY ISSUES FOR BARRY EATON ON TPO REVISION -99 JUN 14 A MUMMY of Presentation - June 14, 1999] IC= cF •'EQA6'feels -that Vdffid'is such an important issue in Newport Beach that the existing 4/5s vote to override the TPO should be retained, as also recommended by the TPO Working Group. This issue is comoletely unrelated to the legal concerns that generated this revision, and further weakens the City's proposed CEQA finding that this is a "minor alteration in land use limitations," not even requiring an initial study. • The city attorney promised EQAC that the TPO and "fair share" moneys would be kept separate, as is the case in the existing TPO. But the section that does that (Section 15.40.075B. - top of page 12), undermines that by providing for an exception In the case of development agreements. Development agreements should 0!2 be used to reduce developer traffic fees. We would request that the reference to development agreements be deleted from this section. B. ON OF OF THE EASTBLUFF HOMEOWNERS' ASSOCIATION (EHOAli: • We appreciate the addition the Planning Commission made to the definition of "Feasible Improvement" in response to the attached letter. However, the revision fiat does not address part of the problem: projects which the city does intend to implement eventually, but that are not yet on the 5 -year CIP. Example: Eastbluff North /University /Jamboree. This intersection will go to LOS E without an improvement, the city hM a project in mind, but it is = yet in the 5 -year CIP. Should developer contributions to this intersection be diverted to other intersections in the meantime? We would say, "rp." This intersection is = important. We would request a further safeguard (such as that suggested in the attached letter) to prevent this from happening. C. AS AN INDIVIDUAL I LOA1_1y feel that you are rendering this whole revision vulnerable to a legal challenge by your proposed CEQA finding that it is only a "Mnjnor alteration in land use limitations," not even requiring an initial study. When I raised this issue at the Planning Commission with particular reference to exempt intersections, staff responded that an initial study could be done at the time of the individual hearing to declare a particular intersection exempt; but that process has been deleted from the proposed revision. Although the ordinance is only procedural (as noted by staff), CEQA states that this finding gannot be used " ... where there is a reasonable possibility that the activity will have a ignificant effect on the environment due to unusual circumstances." (Sec. 15300. (c) of the state CEQA Guidelines.) This ordinance initiates the scenario that Virtually guarantees such an effect at Pacific Coast Highway and Riverside, and PCH and Tu:,tin, with n4 intervening individual determination. I would grgg you to do an initial study and a negative declaration to protect this ordinance. JUN -13 -1999 13:04 93/. P.01 From : EATON RESIDENCEiOCESR 714- 760 -1691 Jun.13.1999 12:50 PM P02 Barry D. Eaton 727 Bellis Street Newport Beach, CA 92660 (949) 760 -1691 (Phone and FAX) June 3, 1999 SENT BY FAX Chairman Ed Selich and Members City Planning Commission City of Newport Beach City Hall, Newport Beach, CA Dear Planning Commission Members: As you know, I have followed and commented upon the proposed TPO Revision regularly. as It has gone through the process. Unfortunately, I will be unable to attend the Commission's meeting of June 10'", where you will consider the alternative language to "exempt intersections." I certainly agree with the Commission's intent to provide for developer contributions wherever a significant traffic impact is created by the project. However, there were a couple of significant safeguards in the "exempt intersections" concept that have been lost in the latest draft. It appears that, under the latest draft, A(JY project at ANY intersection that is not in the current Capital Improvement Program (CIP) automatically becomes a "non - feasible improvement." This would not only include the six intersections 'in Appendix B (Including the two adjacent to Eastbluff). but potentially dozens of other projects at numerous other intersections in the City that do not happen to be on the Five -Year CIP. In my opinion, this would not only "politicize" the CIP process each year, but would be directly contrary to the intent of the TPO, which is to find creative, short-range improvement solutions at particular intersections that can be conceived and funded by developers whose project would significantly impact that intersection. I would urge the Commission to restore the safeguards back into the new process. This could be done by providing that potenlia l non - feasible Improvement projects become actual non - feasible improvement projects only when individually so, declared by the City Council by (at least) a SfTs vote after a public hearing thereon. Thank you for your consideration of these comments Respectfully submitted. n Barry D. Ea JUN -13 -1999 13:05 932 P.02 Proposed Traffic Phasing Ordinance Points objectionable to residents of Newport Beach In order of increasing severity Appendix A 3.b, line 9 "The ICU shall then be rounded to two decimal places." This has the effect of letting LOS "D" go up to 90'/2 percent. It should stop at 90 percent. Appendix A 3.b, last line "an increase of at least .005 ICU." This is more than twice as much traffic as was f rmedy rega .ed to find an ^:pact on the intersection (1°/ per !eg). Nowhere in the ordinance is there any provision to raise the fees for developers who are now paying too little. There is a provision to reduce the fees for those who are paying too much, but the City picks up the difference, not the ones who are paying too little. p.12--075.13, last line "or a development agreement approved pursuant to Chapter 15.45" lets the City Council allow the proponent of a development agreement to double -dip; the same money can be counted against both the TPO fees and the fair -share fees. Appendix A 4.c, lines 6 -7 Trip distribution is left entirely to guesswork and judgment. Some other cities are getting more accurate distributions by using their traffic models. The results are consistent and meet with approval from the developers. p.1- 010 and 020 The existing Findings and Purposes correctly identify the TPO as existing to deny projects when necessary to protect public health, safety, and welfare. The new language identifies it as a mere money- raising scheme to extort funds from developers. This makes it much more legally vulnerable. Perhaps its critics want it to be found invalid by a court. p, 5 03 ^.A.�, pine2 The 5/7 vote is ..-onsistent. It t »kes 4/5 vote to deny projects v+! ch +:ou!d otherwise be approved (moratorium); it should similarly take a 4/5 vote to approve projects which would otherwise be denied (override). p.3-- 030.A.1.c(i), p.5--030.A.2.d(i), p.7-- 040.C. The concept of "feasible improvement" is a disaster. It OKs projects which pour traffic into a congested or gridlocked intersection, provided there are no feasible improvements for that intersection. So the intersections which have the worst problems get treated as if they had no problems. This is like Y2K - -- after 99% comes 00 %. If a project that the City Council likes is blocked by the TPO because it impacts a congested intersection, the City Council can by simple majority vote declare all improvements at that intersection infeasible, and thereby let the project go ahead. This effectively disables the TPO. } w W F- 0 W aZ (/)0 o F- < } Z < Z Q H 0.- ' :Dz a p w0O W z p J QQ((o _W OOW. a- <z s�ti a�0 z i, 0) a) O Um c 2 CL U a a) z