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HomeMy WebLinkAboutSS3 - Measure S GuidelinesFebruary 13, 2001 Study Session Item #SS3 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines Straw Vote Topics DATE: February 13, 2001 BACKGROUND The City Council has held two public meetings to discuss, and receive testimony on, proposed guidelines to implement Measure S. This memo identifies the topics that the Council has identified as matters to "straw vote ", and explains the reasoning for our recommendations to adopt "OPTION A" in each case. We believe these recommendations are consistent with the Council's direction that the guidelines be consistent with Measure S and as uncomplicated as possible. 1. TRIP GENERATION RATE OPTION A. USE THE AVERAGE PEAK HOUR RATE OF THE LAND USE OPTION B. USE THE AVERAGE PEAK HOUR RATE OF ADJACENT STREET Staff is recommending OPTION A because it is more consistent with Measure S which defines a "major amendment" as "one that significantly increases the maximum amount of traffic that allowed uses could generate." 2. TRIP RATES AND TABLES OPTION A. COUNCIL APPROVE TRIP RATE TABLE FOR EACH LAND USE IN ITE MANUAL AFTER PUBLIC HEARING OPTION B. CITY COUNCIL DETERMINES TRIP RATES BASED ON PLANNING DIRECTOR REPORT AFTER APPROVAL Staff is recommending OPTION A with Staff preparing a trip rate table for Council review and approval at a public hearing. The trip rate table would determine whether to use the average trip rate or "best fit curve" as well as the most appropriate "independent variable" (floor area, employees etc.) for each land use in the ITE Manual. The recommendations would be submitted to the City Council at a public hearing and would become part of the guidelines after approval. 3. LAND USE FOR TRIP RATE CALCULATION OPTION A. HIGHEST RATE FOR ANY USE PERMITTED BY THE AMENDMENT CALCULATED ON BASIS OF ALL ENTITLEMENT OPTION B. HIGHEST RATE FOR ANY PERMITTED USE BASED ON THE GENERAL LAND USE ELEMENT DESIGNATIONS Staff is recommending OPTION A because peak hour trips will be calculated on the basis of highest trip rate of any land use to the maximum extent of the entitlement. The Guidelines will require use of the highest rate of any use that the City would not have the power to prevent or enjoin. Staff will prepare a draft Council Policy — separate from the Measure S guidelines — that addresses the need for specificity in applications for, and decisions to approve, a General Plan amendment. 4. MORNING OR EVENING RATES OPTION A. THE HIGHER OF THE MORNING OR EVENING WEEKDAY RATE OPTION B. ADD MORNING AND EVENING WEEKDAY RATE OPTION C. USE HIGHER OF MORNING OR EVENING ON WEEKDAY OR WEEKEND Staff is recommending OPTION A because Measure S does not provide any guidance and OPTION A will fully reflect the impact of an amendment on the circulation system. 5. DEFINITION OF FLOOR AREA OPTION A. USE ITE DEFINITIONS OF FLOOR AREA WHEN APPROPRIATE OR CODE DEFINITION OF GROSS FLOOR AREA IF NOT. OPTION B. USE CODE DEFINITION OF GROSS FLOOR AREA Staff is recommending OPTION A because Measure S requires use of the ITE Manual to determine trip rates which are expressed in terms of four different definitions of floor area depending on use. The use of ITE Manual definitions of "floor area" will ensure the most accurate calculation of peak hour trips. OPTION B would be easier to administer since staff is familiar with terms in the Code. The wording of Measure S does not support one definition of floor area for determining peak hour trips and another for calculating "intensity." 6. RESIDENTIAL USES OPTION A. FLOOR AREA NOT CONSIDERED FOR RESIDENTIAL USES OPTION B. FLOOR AREA CONSIDERED FOR RESIDENTIAL USES. Staff is recommending OPTION A because there is no correlation between the "Floor area" of a residential use and peak hour trips generated by that use. The obvious intent of Measure S is to use "dwelling units" or "peak hour trips" as the criteria to determine if voter approval is required of an amendment. 7. PARKING STRUCTURES OPTION A. DO NOT COUNT PARKING STRUCTURES AS FLOOR AREA OPTION B. COUNT PARKING STRUCTURES AS FLOOR AREA Staff is recommending OPTION A for many reasons. First, parking structures do not add trips and the stated purpose of Measure S is to require voter approval of any amendment "that may significantly increase allowed traffic." Second, Measure S does not express the intent to regulate building bulk and any attempt to do so may give rise to an argument that it violates the "single subject rule." Third, the definitions of floor area in the ITE Manual and the Code do not include parking structures. Finally, planners and architects do not use "Floor area" as a way of describing the size of parking structures. 8. "LOOK BACK" PROVISION OPTION A. STARTS ON THE EFFECTIVE DATE (12115100) OPTION B. STARTS WHEN NOTICE OF INTENT PUBLISHED (7130199) OPTION C. GO BACK TEN YEARS PRIOR TO DATE OF APPROVAL Staff is recommending OPTION A. The obvious intent of the "look back" provision is to prevent "piecemeal" amendments designed to avoid the voter approval thresholds in Measure S — requirements that operate prospectively. The wording of Measure S does not satisfy the test for retroactive application — that the language evidence a "clear intent" to have retroactive application. The only "retroactive" language in Measure S is a provision that seeks to apply — to the maximum extent permitted by law - the voter approval thresholds to any amendment approved after July 30, 1999. 9. CREDIT FOR TRIP REDUCTIONS OPTION A. NO CREDIT FOR TRIP REDUCTIONS OPTION B. CREDIT FOR TRIP REDUCTIONS Staff is recommending OPTION A because the voter approval "thresholds" in Measure S are determined by the trips, density and /or intensity of the amendment .plus ... eighty percent of the increases resulting from other amendments." 10. GENERAL PLAN DATA OPTION A. INCORPORATE A GENERAL PLAN ENTITLEMENT TABLE OPTION B. COMPARE TO THEN CURRENT GENERAL PLAN Staff is recommending OPTION A because it would be difficult to determine if voter approval was required without information about the nature and amount of entitlement prior to approval of the amendment. 11. AMENDMENTS PENDING A VOTE OPTION A. DON'T COUNT AMENDMENTS PENDING VOTER APPROVAL OPTION B. COUNT AMENDMENTS PENDING VOTER APPROVAL Staff is recommending OPTION A - to disregard amendments pending voter approval for purposes of the "look back" provisions. Voter approval of a pending amendment would mean it is not considered a "prior amendment" and voter rejection makes the amendment moot. 12. APPLICANT INFORMATION OPTION A. PROVIDE APPLICANT WITH GUIDELINES AND OPINION OPTION B. PROVIDE APPLICANT WITH GUIDELINES Staff is recommending OPTION A so longs as the "opinion" is accompanied by a disclaimer that minimizes the potential for litigation based on the applicant's reliance on staffs preliminary assessment. The City Council always has the right to amend or add to the guidelines as well as the right to depart from the guidelines if their application in any specific case would be contrary to the intent of Measure S. Burnham • 0 0 MUM January 23, 2001 9- 13 -0) Study Session Item No. SS3 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines Matrix/Straw Votes DATE: January 23, 2001 BACKGROUND /RECOMMENDATION On January 9, 2001, the City Council directed this office to prepare a "matrix" of the key issues raised during the discussion of proposed guidelines to implement Section 423 of the City Charter as authorized by Measure S. The matrix is attached to this memo Attachment A). This memo discusses each of the issues identified in the matrix and makes recommendations when appropriate (recommendations shown by designating the "option "). Staff recommends the City Council straw vote the issues identified in the matrix and direct staff to prepare guidelines for Council review /approval on February 13, 2001. PEAK HOUR TRIPS I. Trip-Rate of Land Use or Adiacent Street Traffic. The draft guidelines used the average trip rate for the peak hour of the adjacent street traffic as a factor in determining the peak hour trips of an amendment. Mayor Adams suggested that the guidelines use the peak hour of the land use — which may or may not be the same as the adjacent street. As Mayor Adams indicated, we should be using a rate that reflects the maximum amount of traffic generated by the land use and one that most accurately reflects the impact of an amendment on the capacity of the system. The use of the peak hour rate of the land use also ensures consistent treatment of similar amendments. Staff is recommending use of the peak hour rate of the land use(s) not the adjacent street. (Option A) 2. "Average" Trip Rate. The ITE Manual identifies two peak hour trip rates — the mathematical average of the data from studies and the "best fit curve" which incorporates the data trend (higher or lower) as the size of the project increases. Staff has no recommendation. 3. "Maximum Traffic Allowed Uses Could Generate." Section 423 uses the term "maximum amount of traffic that allowed uses could generate" in describing a "major amendment" that would require voter approval. The Land Use Element uses three very broad categories in specifying allowed floor area for commercial land uses. For example, the peak hour trip rates for commercial land uses in the "Administrative, Professional and Financial Commercial" category range from 4.36/1000 square feet for medical office to 1.56/1000 square feet for regular office and 1.24/1000 square feet for research and development. As a general rule, an amendment is only one of the approvals required of a project and the applicant has submitted detailed information about the proposed use(s) and structure(s). In those cases the City has typically prepared environmental and /or zoning documents that, when approved, clearly identify permitted uses. Staff is recommending that peak hour trips be calculated on the basis of the highest rate for any use allowed by the Land Use Element or, if the City has the approved only specific uses, the highest rate of any permitted use. (Option B) 4. Morning and /or Evening Rate. Staff is recommends that peak hour trips be calculated using the higher of the morning or evening weekday rate. (Option A) 5. Table of Trip Rates. Mayor Adams suggested that the guidelines include a table that establishes the peak hour rates for most land uses based on information in the ITE Manual. The table would be prepared by staff and submitted to the Council for approval. In the alternative, the peak hour rates could be determined by the City Council after approval of the amendment when the specific uses have been identified and the Planning Director's report has been submitted to the City Council. Staff has no recommendation. FLOOR AREA 1. Measurement The draft guidelines proposed defining "floor area" in terms of the definition (there are four different ones) used in the ITE Manual as the "independent variable for the land use(s) under consideration. Use of the ITE Manual definition would ensure an accurate calculation of trips by applying the floor area definition used to calculate the ITE trip rate. Another option — and one that may be easier to administer since staff is familiar with it - is to use the definition of "gross floor area" from the Municipal Code (Section 20.63.030(% Staff recommends use of the ITE Manual definitions. (Option A) 2. Residential Uses. The draft guidelines do not use the "floor area" of any residential use as a basis for determining if Section 423 requires voter approval of a residential use amendment Staff recommends this approach. (Option A) 3. Parking Structures. Staff is recommending against including parking structures in the calculation of "floor area." Parking structures do not add trips and the stated purpose of Measure S is to require voter approval of any amendment "that may significantly increase allowed traffic." The ITE Manual and Municipal Code definitions of "floor area" do not include parking structures. Planners and architects do not use "floor area" as a way of describing the size of parking structures. Staff is recommending that parking structures not be included in the calculation of floor area. (Option A) N ADMINISTRATION • 1. "Look Back" Provision. The City Council has at least three options with respect to the "look back" provision. The City Council can apply the provision to (a) amendments approved after 12115/00; (b) to amendments approved after July 30, 1999 (publication of Notice of Intent to Circulate); or (c) to amendments approved (by the Council but not the voters) during the ten -year period prior to approval. Staff has recommended using 12/15/00 as the "start date" but the other options are also consistent with Measure S (copy of memo analyzing options is Attachment B). (Option A) 2. Trip Reductions. There has been a suggestion that the City Council adopt a guideline that gives a statistical area "credit' for amendments that reduce peak hour trips. However, Section 423 specifically states that the "look back" provision requires the consideration of increases in traffic, density and /or intensity. Staff recommends against giving credit for reductions because there is no wording in Measure S that supports that interpretation. (Option A) 3. General Plan Data. Some Measure S supporters have suggested the City Council adopt a policy that requires "the retention of the specificity of the current General Plan." Staff understands the rationale for the request but such a policy would be a de facto amendment of the General Plan — without the required hearings and notice. Mayor Adams suggested that the Guidelines include a table that describes Land Use Element entitlement in each statistical area as of the earliest date on which the "look • back" provision could be applied. The City Council would determine if an amendment requires voter approval based on the information in the then current table. (Option A) El 4. Amendments Pendina a Vote. Amendments may be approved by the City Council while other amendments are awaiting voter approval or rejection. Measure S proponents have suggested that amendments awaiting a vote not be considered for purposes of the "look back" provision and staff agrees. Voter approval of a pending amendment would mean it is not considered as a prior amendment and voter rejection makes the amendment moot. (Option A) 5. Applicant Information. The draft guidelines proposed that the process to determine if voter approval is required of an amendment be initiated after approval. Staff does not believe that Section 423 considerations should be a factor in the decision to approve or reject an amendment. However, after hearing the testimony, staff acknowledges that an applicant should be provided with a copy of the guidelines and relevant information upon filing. The guidelines could direct staff to provide the applicant (at filing) with an "opinion" on possible voter approval. (Option B) Robert Burnham 3 Attachment A Measure S Guidelines Matrix 1. Peak Hour Trivs Issue Ovtion A Option B Other Trip Rate of Land Use or Average Peak Hour Average Rate of Starts 7/30/99 Adjacent Street Traffic Rate of Land Use Adjacent Street "Average" Trip Rate Numerical Average Best Fit Curve "Maximum Traffic Highest Rate of any Option A Unless Allowed Uses Could Permitted Use in Only Specific Generate Category Uses Authorized Morning or Evening Higher of Morning or Add Morning and Weekday Rate Evening Weekday Evening Pending Vote Rate Weekday Rate Table of Trip Rates Guidelines Include City Council Applicant Trip Rate Table for Decides Trip Rate Information Most Land Uses After Approval 2. Floor Area issue Option A Qption B Other Measurement Use one of 4 ITE NBMC Definition Starts 7/30/99 Manual Definitions of Gross Floor Area Residential Use Floor Area Not Floor Area Relevant Relevant in Peak Hour Trips Parking Structure Don't Include as Include as Floor Floor Area Area 3. Administration Issue Qption A Option B Other Look Back Starts 12/15/00 Go Back 10 Years Starts 7/30/99 From Amendment Trip Decreases No Credit for Trip Credit for Reduction Reductions in Peak Hour Trips General Plan Data Guidelines Include Compare to Then Measure S General Current General Plan Entitlement Plan Provisions Table Pending Vote Don't Count When Count Amendment Vote Pending Until Vote Applicant Opinion & Policy to Provide Policy Only Information Applicant at Filing 1 at Filing L; T • ATTACHMENT B CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines "Look Back" Provision DATE: January 23, 2001 ✓�L/ FO Fib,„® The purpose of this memo is to explain, in greater detail, my reasons for drafting proposed guidelines that apply the "look back" provision of Section 423 only to • amendments approved by the City Council after the effective date (December 15, 2000). The "look back" provision requires the traffic, density, and /or intensity of the amendment to be added to "eighty percent of the increases resulting from other amendments affecting the same neighborhood and adopted within the preceding ten years." I acknowledge that the "look back" provision can be interpreted so that all amendments within ten years prior to the date of adoption — whenever that may be — are considered for purposes of deciding if voter approval is required. In fact, that interpretation is probably more consistent with the actual wording of Measure S than the interpretation that I have proposed. However, I believe that the interpretation in the draft guidelines is also consistent with the wording and the stated purpose of Measure S. The guidelines must be consistent with the purpose and intent of Measure S. According to Measure S, the purpose is: "to give the voters the power to preven t Newport Beach from becoming a traffic congested city, by requiring their approval for any change to the City's General Plan that may significantly increase allowed traffic; and also to make sure that maior changes do not escape scrutiny by being presented piecemeal as a succession of small changes." Measure S recognizes, and accepts, that the current General Plan allows for some l • "additional growth" and is intended only to give the voters the "power to disapprove any proposed General Plan amendment that may significantly increase traffic congestion beyond that which could alreadv occur...." This provision suggests that amendments approved before the effective date (or at least before the Notice of Intent to Circulate the Petition) were not a concern of voters. This conclusion is supported by the findings in the Planning Center Report - that amendments approved by the City Council during the 1990's actually reduced peak hour traffic. 0 Measure S establishes the threshold for determining if an amendment will "significantly increase" traffic. The determination of "significance" does require inclusion of 80% of the amendments adopted within the preceding ten years. However, the clear intent of the "look back" provision is to ensure "that major changes do not escape scrutiny by being presented piecemeal as a succession of small changes." The provisions of Measure S that follow the "look back provision also suggest that the intent is to apply to amendments approved after the effecti ve date. According to Measure S, the "look -back" provision does not apply to "other amendments" that were "approved by the voters." The voter approval requirements of Measure S clearly apply prospectively and this language suggests that the "other amendments" to be considered pursuant to the "look back" provision are those approved after the effective date. The City Council would clearly not be acting contrary to Measure S by adopting guidelines that require consideration of all amendments in the same statistical area approved within ten years before adoption of the amendment by the City Council. That interpretation is probably more consistent with the actual language of Measure S. However, I also believe the City Council would not be acting contrary to Measure S by adopting guidelines that apply the "look back" provision only to amendments after the effective date (or after July 30, 1999 — the date on which the Notice of Intent to Circulate was published). /19-, 7 Robert Burnham \J 11 COCQll'dClt GE �D4anuary 9, 2001 N C r Df tudy Session Item No. SS3 0 CITY OF NEWPORT BEACH TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines DATE: January 9, 2001 Introduction Measure S "encourages" the City Council to adopt guidelines to "implement" the provisions of the newly enacted Section 423 of the City Charter (Section 423). In general terms, Section 423 requires voter approval of certain amendments of the Newport Beach General Plan (amendments). The guidelines must be consistent with the purpose and intent of Measure S and may be adopted only after public notice and hearing. Implementing guidelines must be approved by "not less than six affirmative votes of • members of the City Council." Staff has prepared, for Council review and consideration, the proposed guidelines that accompany this memo. This memo describes the general principles staff followed in drafting the guidelines and the rationale for various provisions. General Principles Staff drafted the proposed guidelines with certain general principles in mind. We believe that guidelines are generally appropriate only to provide clarity and implementing procedures. The guidelines must be consistent with the stated purpose and intent of Measure S and respect the plain meaning of the words in Section 423. Finally, guidelines are not an appropriate vehicle for making Section 423 more or less effective or more or less restrictive. Discussion of Proposed Guidelines The guidelines consist of two sections — definitions and administration. The following is an explanation of the rationale for certain provisions in each section 1. Definitions The proposed guidelines rely heavily on a multi - volume publication of the Institute of Transportation Engineers entitled "Trip Generation" (ITE Manual). Measure S • requires use of the ITE Manual to calculate "peak hour trip generation rates" and the proposed guidelines use the ITE Manual definitions of key terms in the measure such as "peak hour trips" and "Floor area." The use of ITE Manual definitions and terminology will ensure a consistent and fact -based determination of the "peak hour trips" and "Moor area" of each amendment of the General Plan (amendment). The term "peak hour trips" is defined as the "average trip rate for the peak hour of the adjacent street traffic" multiplied by the quantity of the relevant "unit of measurement" for land use(s) proposed in the amendment. Rich Edmonston has suggested this definition because it is the most relevant measurement of traffic impact and is consistent with our current methodology of analyzing traffic impacts. The Council could define "peak hour trips" by reference to the "average trip rate of the generator" — a rate that tends to be somewhat higher than the rate staff is proposing. In most cases, a non - residential project is likely to reach the "floor area" threshold in Section 423 before exceeding the peak hour trip threshold. The relevant "unit of measurement" for a residential project is a "dwelling unit" and the relevant unit of measurement for most non - residential uses is "gross floor area." The calculation of peak hour trips for land uses that don't use dwelling units or floor area as "units of measurement" (such as hotels, golf courses and marinas) will be based on the "unit of measurement" specified in the ITE Manual. The ITE Manual has four (4) "floor area" definitions and uses a different definition for "shopping centers" (gross leasable area) than office buildings (gross floor area). The proposed guidelines define floor area in the same manner as the ITE Manual and clarify that "floor area" is not a factor in deciding if a residential use amendment requires voter approval. The definition of "prior amendment" relates to language in Section 423 that has been termed the "look back" provision. The "look back" provision requires that "eighty percent' of the "increases from other amendments affecting the same neighborhood" that were approved by the City Council in the preceding ten years be added to the amendment for purposes of determining if voter approval is required. Staff is proposing to define "prior amendment" as one approved by the City Council after the effective date of the measure (December 15, 2000) and this would mean that amendments approved before December 15, 2000 would not be considered in deciding if an amendment requires voter approval. Staff is proposing this definition of "prior amendment" for three reasons. First, the "look back" provision is intended to "make sure that major changes do not escape scrutiny by being presented piecemeal as. a succession of small changes" and " this protection against "piecemealing" became. necessary only after the effective date. Second, laws typically apply prospectively. Finally, this interpretation is consistent with another Measure S mandate in that it reduces the potential for a successful legal challenge. Some Measure S supporters have suggested that the "look back" provision should "begin" on the date that the notice of intent to circulate the measure was published (July 30, 1999). There is support for this interpretation in Measure S. Measure S says that it is intended, "to the maximum extent permitted by law", to "apply to all amendments" approved after the 'filing of the Notice of Intent To Circulate Petition." However, the one amendment (Extended Stay America — GPA 99 -2) • approved by the City Council after July 30, 1999 was initiated before that date, is presently under construction (vested) and resulted in a substantial reduction in peak hour trips. Staff is recommending use of the effective date of Section 423 for purposes of the "look back" provisions to eliminate any legal issues that could arise from the application of Measure S to GPA 99 -2 or subsequent amendments approved in that statistical area. 2. Administration The Guidelines propose a procedure for determining if voter approval is required of an amendment approved by the City Council. The procedure is intended to provide the City Council with all of the information necessary to determine if voter approval is required of a particular amendment. The process of deciding if voter approval of an amendment is required by Section 423 should begin after City Council approval — rather than as part of the approval process — because the City Council retains discretion relative to the density or intensity of any amendment until final approval. Other Possible Guidelines Staff considered, but did not prepare, guidelines that would address issues that came to • light during the preparation and discussion of the Planning Center Report (aka Douglas Report). Staff is not proposing a guideline that would give a credit for amendments that reduce peak hour trips for purposes of the "look back" provision. Measure S specifically states that eighty percent of the "increases" resulting from prior amendments is to be added to the trips and density or intensity of the current amendment. A guideline giving credit for prior amendments that reduce trips would be consistent with the intent of Measure S because it might encourage such amendments. However, Staff chose not to prepare or recommend a guideline giving credit for trip reductions because Measure S specifically refers to "increases" rather than "changes" or "adjustments." Staff considered, but did not prepare, a guideline that would eliminate the need for voter approval of amendments that — like the amendment processed for the "One Ford Road " project - reduce peak hour trips but technically constitute a "major amendment" because they exceed the density or intensity threshold. The "One Ford Road" amendment substituted 500 dwelling units for more than 1,330,000 square feet of industrial entitlement and reduced peak hour traffic by 1145 trips. However, a conservative interpretation of Section 423 would require voter approval of the amendment because of the "additional" dwelling units. /Robert Bum Burnham DRAFT COUNCIL POLICY A -18 • On November 7, 2000, the Newport Beach electorate approved Measure S (Copy of Measure S accompanies this Policy). Measure S amended the Newport Beach City Charter by adding 423 to the Newport Beach City Charter. In general terms, Section 423 requires voter approval of certain amendments of the Newport Beach General Plan (amendment). Measure S "encourages" the City Council to adopt implementing guidelines that are consistent with its purpose and intent. This Policy constitutes the guidelines adopted by the City Council pursuant to the authority and procedures specified in Measure S. Definitions The definitions and terms in this Section, when surrounded by quotation marks, are intended to conform to the definitions in, and terminology of, "Trip Generation" a multi - volume publication of the Institute of Transportation Engineers (ITE Manual). The ITE Manual provides an "average trip rate" for hundreds of land uses and is the primary reference used by transportation professional seeking information on trip generation rates and related data. 1. The term "peak hour trips" shall mean a number equal to the "average trip rate for the peak hour of the adjacent street traffic" multiplied by the quantity of the relevant "unit of measurement" for the land use(s) for the amendment as approved by the City Council. In Newport Beach, the peak hour of the adjacent street traffic is traditionally between 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m. 2. The term "floor area" shall mean whichever of the following four definitions — "gross floor area", "gross leasable area", "gross rentable area" or net "rentable area" — is specified by the ITE Manual as the "unit of measurement" in expressing the trip generation rates of the land use(s) proposed by the amendment. In the event the ITE Manual does not utilize any of the four definitions as a unit of measurement, the term "floor area" shall mean "gross floor area" as defined in the ITE Manual. 3. The term "dwelling unit' is defined as specified in the Newport Beach Municipal Code (Code) and applies only to a residential use. 4. The term "residential use" shall mean any single - family residential use, and two-family use, any multifamily residential use, any group residential use and any limited residential care use but does not include a day care facility or a convalescent facility. 5. The term "non - residential use" shall mean any land use other than a residential use that generates any peak hour trips and includes the uses specified in Sections 20.05.040 (public and semi - public), 20.05.050 (commercial), 20.05.060 (industrial) and 20.05.070 (agriculture) of the Code. 6. The term "prior amendment" shall mean any amendment affecting property within the same statistical area as the amendment that was approved by the City Council after December 15, 2000 and was approved within ten years prior to the date the City Council approved the amendment. The term prior amendment excludes any amendment approved by the voters after City Council approval. 7. The term "the amendment' shall mean an amendment that: (a) was approved by the City Council subsequent to December 15, 2000; (b) modifies the number of dwelling units, floor area or type of land use (including any amendment that increases peak hour trips) when compared to the general plan prior to City Council approval of the amendment; and (c) is being evaluated pursuant to this Policy to determine if the provisions of Section 423 require voter approval. Administration The following procedure shall be utilized for purposes of determining if the amendment will require voter approval pursuant to Section 423. • 1. The Planning Director shall, within five (5) working days after City Council approval of the amendment prepare a report that contains the following information: (a) If the amendment authorizes, or ;elates to, a residential use, the maximum number of dwelling units authorized by the general plan for all of the property that is the subject of the amendment before and after City Council approval of the amendment. (b) If the amendment authorizes, or relates to, a non - residential use, the maximum amount of floor area authorized by the general plan for all of the property that is the subject of the amendment before and after City Council approval of the amendment. (c) If the amendment authorizes, or relates to any non - residential use or a residential use, the number of peak hour trips that would be generated by all of the entitlement authorized by the general plan for all the property that is the subject of the amendment before and after City Council approval of the amendment. The number of peak hour trips shall be calculated in accordance with this Policy and the ITE Manual. The Planning Director shall, after consulting with the Director of Transportation and Development Services, determine the ITE Manual land use(s) most similar to the land • use(s) authorized by the amendment if the ITE Manual does not provide peak hour trip generation information specific to one or more of the land use(s) authorized by the amendment. The number of peak hour trips generated by the amendment shall be determined on the basis of, but shall not be less than ninety -five percent of, the most similar land use in the ITE Manual. (d) A table that identifies the increases in floor area (for non - residential uses), dwelling units (for residential uses) and peak hour trips (any land use) resulting from, and the dates of, prior amendments. (e) A table that calculates eighty percent (80 %) of the increase, if any, in floor area (non - residential uses), dwelling units (residential uses) and peak hour trips (all land uses) resulting from all prior amendments. 2. The Planning Director shall submit the report to the City Council within thirty (30) days after City Council approval of the amendment. 3. The City Council shall review the report and determine if, based on the report and any other relevant evidence presented, the amendment requires voter approval pursuant to Section. The City Council shall submit the amendment to the voters if: (a) the amendment relates to a non - residential use and authorizes an increase in floor area for the property that is the subject of the amendment that exceeds forty thousand (40,000) square feet when compared to general plan before approval of the amendment; or (b) the amendment relates to a residential use and authorizes an increase • in the number of dwelling units for the property that is the subject of the amendment that exceeds one hundred (100) dwelling units when compared to the general plan before approval of the amendment; or (c) the amendment modifies the type or amount of residential or non- residential use specified for the property that is the subject of the amendment such that the land use(s) authorized by the general plan after the amendment generates more than one hundred peak hours trips than the land use(s) authorized before the amendment. 4. In the event the City Council determines that the amendment requires voter approval, the City Council shall, within sixty days after the determination that an election is required, schedule a date for the adoption of a resolution calling an election on the amendment. The City Council shall, on the date set for adoption of the resolution, schedule an election on the amendment at the next regular municipal election (as defined by the Newport Beach Charter) or at a special election if the applicant for the amendment has entered into a written agreement with the City to share the costs of the special election. 11 0 Section 423. Protection from Traffic and Density. Voter approval is required for any major amendment to the Newport Beach General Plan. A "major amendment" is one that significantly increases the maximum amount of traffic that allowed uses could generate, or significantly increases allowed density or intensity. "Significantly increases" means over 100 peak hour trips (traffic), or over 100 dwelling units (density), or over 40,000 square feet of floor area (intensity); these thresholds shall apply to the total of 1) Increases resulting from the amendment itself, plus 2) Eighty percent of the increases resulting from other amendments affecting the same neighborhood and adopted within the preceding ten years. "Other amendments" does not include those approved by the voters. "Neighborhood" shall mean a Statistical Area as shown in the Land Use Element of the General Plan, page 89, in effect from 1988 to 1998, and new Statistical Areas created from time to time for land subsequently annexed to the City. "Voter approval is required" means that the amendment shall not take effect unless it has been submitted to the voters and approved by a majority of those voting on it. Any such amendment shall be submitted to a public vote as a separate and distinct ballot measure notwithstanding its approval by the city council at the same time as one or more other amendments to the City's General Plan. The city council shall set any election required by this Section for the municipal election next following city council approval of the amendment, or, by mutual agreement with • the applicant for the amendment, may call a special election for this purpose with the cost of the special election shared by the applicant and the City as they may agree. In any election required by this Section, the ballot measure shall be worded such that a YES vote approves the amendment and a NO vote rejects the amendment; any such election in which the ballot measure is not so worded shall be void and shall have no effect. This section shall not apply if state or federal law precludes a vote of the voters on the amendment. (End of amendment. But the proposed ballot measure also includes the following "Second" through "Seventh ":) Second. Purpose. It is the purpose of the amendment to give the voters the power to prevent Newport Beach from becoming a traffic - congested city, by requiring their approval for any change to the City's General Plan that may significantly increase allowed traffic; and also to make sure that major changes do not escape scrutiny by being presented piecemeal as a succession of small changes. Third. Findings. 1. In planning the growth of their city and protecting its quality of life, a prime concern of the people of Newport Beach is to avoid congestion and gridlock from too much traffic. • 2. The General Plan guides growth in the City of Newport Beach by designating land use • categories for all lands in the City, and providing limits on the allowed density and intensity of use for each land use category. 3. The General Plan already provides for additional growth in the City; if all development allowed by the General Plan were to be built, the traffic generated in the City would increase by about 20 %. 4. The people, whose quality of life is at stake, should have the power to disapprove any proposed General Plan amendment that may significantly increase traffic congestion beyond that which could already occur from development under the General Plan. Fourth. Implementation. 1. It is the intent of the foregoing amendment to the City Charter of the City of Newport Beach that, to the maximum extent permitted by law, it apply to all amendments to the General Plan approved by the Newport Beach city council after the time of filing of the Notice Of Intent To Circulate Petition, provided that it shall not apply to any amendment for a development project which has obtained a "vested right' as of the effective date of the foregoing amendment to the City Charter. A "vested right' shall have been obtained if (a) The project has received final approval of a vesting tentative map. As to such vesting tentative maps, however, they shall be exempt only to the extent that development is expressly authorized in the vesting tentative map itself; or (b) The project has obtained final approval of a Development Agreement as authorized by • the California Government Code; or (c) The following criteria are met with respect to the project: (i) The project has received a building permit, or where no building permit is required, its final discretionary approval, and (ii) Substantial expenditures have been incurred in good faith reliance on the building permit, or where no building permit is required, the final discretionary approval for the project; and (iii) Substantial construction has been performed in good faith reliance on the building permit, or where no building permit is required, on the final discretionary approval. Phased projects shall qualify for vested rights exemptions only on a phase by phase basis consistent with California law. 2. The city council is encouraged to adopt guidelines to implement the foregoing amendment to the City Charter of the City of Newport Beach following public notice and public hearing, provided that any such guidelines shall be consistent with the amendment and its purposes and findings. Any such guidelines shall be adopted by not less than six affirmative votes, and may be amended from time to time by not less than six affirmative votes. • 3. The City shall take all steps necessary to defend vigorously any challenge to the validity of the foregoing amendment to the City Charter of the City of Newport Beach. 4. Peak hour trip generation rates shall be calculated using the most recent version of the Trip Generation Manual of the Institute of Transportation Engineers. The city may fine -tune these rates, but not to less than 95% of the rates in the Manual. Fifth. Attachment. Attached to this petition is a copy of page 89 of the Land Use Element of the General Plan, showing the "Statistical Areas" of the City of Newport Beach. Sixth. Construction. Nothing herein shall be construed to make illegal any lawful use presently being made of any land or to prohibit the development of any land in accordance with the provisions of the City's General Plan in force at the time of filing of the Notice of Intent to Circulate Petition. Seventh. Severability. If any part of this initiative is declared invalid on its face or as applied to a particular case, such decision shall not affect the validity of the remaining parts, or their application to other cases. It is hereby declared that each part of this initiative would have been adopted irrespective of the fact that any one or more other parts be declared invalid. "Part" is generic, including but not limited to: Word, clause, phrase, sentence, paragraph, subsection, section, and provision. C� • "RECEIVED AFTER GENDA an Beek, 2007 Highland PRINTED' -553 t3 1 RECEIVbrt Beach CA 92660 -4407 February 7 2001 '01 FM -7 P4 A3 Honorable Mayor and Members of the City Council Charter Se@rRI@e0 #2* C€Pv6ft1Swo questions which it does not answer 1) Is crediQlTifdNF LEWfORTESUC1t negative increases° Section 423 does not say Yes and does not say No it is silent 2) Are amendments adopted before Section 423 to be included in the accumulation') Section 423 does not say Yes and does not say No it is silent Since Section 423 is silent the answers must be those which make most sense with the other portions of 423 - - -- Section 423 like any legal document is to be read as a consistent whole On credit for negatives the rest of the document is of no help The answer can only be an attempt to be fair and reasonable On pre -423 amendments, it is clear that they are not to be included To include them would make Section 423 inconsistent in three ways 1) Years different The first ten years of Section 423 would become inconsistent with normal years (after the ten year phase -in period) During the first ten years the accumulation of prior amendments would be loaded up with mayor amendments from before adoption of Section 423 During normal years, the accumulation is not loaded up with mayor amendments because mayor amendments have gone to the voters and other amendments does not include those approved by the voters ' 2) Minor votes Inclusion would force minor amendments to go to the voters inconsistent with the intent of Section 423 that minor amend- ments shall not go to the voters as shown by two provisions of 423 An amendment which comes near or reaches the limit, but does not exceed it and so does not go to the voters is kept from loading up the accumulation by being counted at only 80 of its full value This leaves a margin of at least 201 of the limit for the use of any subsequent minor amendment Major amendments are kept from loading up the accumulation because they go to the voters and are specifically excluded 3) Inappropriate use The accumulation of prior amendments is the device used to meet the second stated purpose of Section 423 To make sure that mayor changes do not escape scrutiny by being presen- ted piecemeal as a succession of small changes It is inconsistent with this purpose to apply the device to amendments that were written and approved before there was any Section 423 scrutiny to escape Therefore Section 423 is to be regarded as reading Other amendments does not include those approved by the voters nor those approved before the effective date of this section This letter is my own I do not speak for any other pperson or group �/J Respectfully CL1'� r L - _ SYPYI Allan Beek 'RECEIVED AFTER AGENDA RECEIVED 2007 Highland PRINTED �W S3 k1-3 dwi Newport Beach CA 92660 '01 F® —9 A9 51 February 9 2001 Honorl W%at *y"atp� he City Council CITY OF hE1VPORT BEACIi There are still some of kinks to be ironed out of the straw votes and draft Guidelines for Measure S This would be done most efficiently at informal working group sessions The City Attorney has been too busy to arrange any such sessions and I certainly would NOT suggest that he neglect JWA to give his attention to Measure S But the result is that you are faced with documents which are confusing miss the point and violate Measure S In five weeks we have made no progress I hope that some informal working sessions can be arranged before you begin serious work on Policy A 18 As the City Attorney is overloaded maybe a Councilman with legal expertise could chair these sessions Attendance could be open to everyone there would probably be less than half a dozen takers I am reluctant to distract you with what is basically preparatory work so please do not waste your time reading the rest of this letter unless you are forced to take up the straw votes and draft as they stand with no working sessions ahead of time to iron out the kinks The kinks I refer to are discussed below I believe that none are controversial (except perhaps between the City Attorney and me) and none rise to the level of being worthy of public debate STRAW VOTES 3 LAND USE FOR TRIP RATE CALCULATION The two options given sound so much alike that it is not clear what the difference is or what either one means Option A refers to entitlement entitlement depends on the zoning and some land use designations allow for several different zones so the entitlement could be changed with no change in the general plan Policy A 18 should be written to require that the calculated trip generation shall be the maximum that could be achieved on the land without any further general plan amendments Neither Option A nor B nor the draft policy requires this All three are so mushy that there is no point in straw voting between A and B There does not seem to be any question or controversy to resolve so there is no need to vote 4 MORNING OR EVENfNG RATES Option A is obviously correct so there is no need to vote 5 DEFiNIT1ON OF FLOOR AREA This is two separate questions one for intensity and one for trip generation The staff report is mistaken is saying that Measure S does not support one definition of Floor area for determining peak hour trips and another for calculating intensity Measure S mentions Floor area ONLY in connection with intensity For trip generation it refers to the ITE Manual which uses hotel rooms net Floor area theater seats and a variety of other independent variables These stand on their own and are quite independent of the intensity measure which is specified as gross square feet by the last sentence of the first paragraph under Commercial in the Major Land Use Plan Designations part of the Land Use Flement The ITE Manual for trip generation and gross square feet for intensity are both so obvious that there is no controversy to resolve so there is no need to vote 6 RESIDENTIAL USES Option A is obviously correct so there is no need to vote 9 CREDIT FOR TRIP REDUCTIONS If straw vote 9 is B then credit for negatives should apply not only to peak hour trips but also to dwelling units and Floor area 10 GENERAL PLAN DATA It is not clear what staff intends Option A seems laudable but appears to require a heroic amount of work from the Planning staff to make the dwelling unit Floor area and maximum possible trips calculations for every parcel throughout the city It would be more reasonable to make the calculations case by case as general plan amendments are proposed (A proposed amendment may deal with an arbitrary unpredictable area ) Maybe I Just don t understand and need to have item 10 explained to me As I understand it it would have no effect on whether or not amendments go to the voters it would simply burden the staff Option A is incredible There is no controversy to resolve so there is no need to vote I 1 AMENDMENTS PENDING A VOTE Option A is obviously correct so there is no need to vote 12 APPLICANT INFORMATION There must be some misunderstanding there is no choice here As 1 set forth in my January 22 letter to you the Planning Commission and City Council should have full knowledge of what they are voting on The applicant can then obtain the information from the staff report (A working session is badly needed to clear up this misunderstanding ) DRAFT POLICY A 18 From the January 9 staff report (it has not been updated ) Definitions The trip rate table of straw vote 2 A should be referenced in the introduction Definition 2 floor area The draft incorporates the confusion of straw vote 5 and the mistaken idea that intensity and trip generation must use the same definition of Floor area Here is a suggestion for more satisfactory wording In measuring nteusuly for comparison with the 40 000 square fool threshold the term floor area shall mean gross square feet as used in the Land Use l lement of the general plan In computing maximum amount of traffic that allowed uses could generate for comparison with the 100 peak hour trips threshold the term floor area when used by the IIFManual shall be as defined in the Manual If the IIf Manual uses floor area without V)eeufynug which definition it means then it shall mean gross square feet as above Definition 6 prior amendment As noted Jan 22 this needs to be clearer Here is a suggestion Definition 6 1 he term prior amendment shall mean any amendment which (a) Affects property, within the same statistical area as the amendment under consideration (b) 1s or was approved by the ( ity council before or at the same time as the amendment under consideration and of at the same time has an earlier GPA number (c) 1s or was approved by the City Council less than ten years before the amendment under consideration (d) Neither us nor was placed on the ballot for a vote of the people (e) Was approved by the ( uty Council after December 15 2000 [If straw vote 8 is A ] Administration This section is infected by the same misunderstanding as applicant information noted above It also neglects to use the accumulation of 80% of prior amendments calculated in I(e) Much of it should be rewritten Here is a suggestion (bold indicates proposed new words) I The staff report accompanying any proposal presented to the Plammnk Commission for a general plan amendment shall show (a) If the amendment authorizes or relates no a residential use the maximum number of dwelling ants authorized by the general plat for all of the property that is the siibjec t of the amendment both before and after approval of the proposed amendment (h) If the amendmctt authorizes or relates to a non residential me the maximum amount of floor area annhortzed by the general plan for all of the property that is the subject of the amendment both before and after appros al of the proposed amendment (e) The maximum number of peak hour trips" generated by any use permitted by the general plan for all of the property that is nci. subject of the amendment, both before and after approval of the proposed amendment The number of peak hoar irtp% shall be calculated ut accordance with this Policy and nci. III' Manual If the I I L mannal doer not provide peak hoar trip generation information specific to one or more of the land tse(s) authorized by the general plan the Planning Director shall after cotsthtn,� with the Director of I rarnporranorr and Development Services deurmtic the ITC Manual land u%e(s) most similar no the land uses) authorized by the general plan The number of peak hoar trip% generated by any land use shall be determined on the bast of but shall not fie less than ninety five percent of the trips generated by the most similar Icurd use to the ITI Manual (d) A table that idetinfres the inereaws in floor loor area (for lion residential rises) dwelling ntits (for rendctnnal uses) and peak hoar trips (any land use) restilting from and the dates of prior amendment% (e) A table that calculates eighty percat of the tncrease [ rf arty if straw vote 9 is A posnn e or negative if straw vote 9 is B] mfloor area (non resulcunal uses) cbselhiiS nuns (rwtdenna! uses) and peak hoar trip % (all land uses) result% from all prior amendments 2 The City C ottnetl shall %tbmt the amendmctt to the voters if (a) The amendment relates no a %ion rewdettal use and the floor area authorized by the amendment plus the 80% accumulation from I (e) is more than 40 000 square feet greater than the floor area authorized by the general plan without the amendment or (h) The amendmctt relates no a rewdettal use and the dwelling units authorized by the amendment plus the 80% accumulation from 1(e) is more than 100 dwelling units greater than the dwelling units authorized by the general plan without the amendment or (c) 17te amendmctt mcWtcs permitted land uses so that the maximum number of peak hour tnps generated by any use permitted after the amendment plus the 80% accumulation from 1(e) is more than 100 trips greater than the maximum number of peak hour trips generated by any use permitted by the b eneral plan without the amendment 3 In the event that the amendment requires voter approval, the City Council shall, at the same meeting that goes final approval to the amendment schedule an electron on the amendment at the next regular municipal electron (as defined by the Newport Beach Charier) or at a special election if nci. applicatn for the amendment has entered into a wrtiten agreement with the City to share the costs of the special election Please note that this letter is my own 1 do not speak for any other person or broup Sincerely 0& &W fROr" �'- ascgi_ iP:/-nx PH:NV '40 ]r 23C 17 2 °p^1 =1 RECEIVED AFTER AGENDA PRINTED #2S3 2 -13 -01 February 12, 2001 Dear Mayor Adams and Members of the City Council This is yet another letter advocating including the inclusion of parking garages under the Measure S guidelines Please note that this letter, and previous letters, represent my own opinion The Council has indicated a reluctance to include parking garages under Measure S guidelines, indicating that they feel that Measure S dealt primarily with traffic and parking garages do not generally generate traffic independent of the structure they are attached to However, lack of inclusion of parking garages will allow more square footage for the adjaLent building, thus indirectly allowing more traffic to occur To illustrate, image a 39,000 sq ft building and a 10,000 sq ft parking garage This building will occupy the maximum entitlement without a vote of the people and generate a set amount of traffic If the parking garage is included under the guidelines, it will displace some of the allowable, building area, in our example creating a situation where only 29,000 sq R of building would be permitted without a vote of the people It is therefore affecting traffic generation, as less traffic would occur under the second example than the first Therefore, it is appropriate and necessary to include parking garages under the Measure S guidelines Please consider including parking garages within the square footage limitations of Measure S \ ; 2! � < a M J °� m _0 m AThyou. i ner au in m� m 949 -722 -6699 i; _ � o