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HomeMy WebLinkAbout28 - Measure S GuidelinesLl CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 28 March 23, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 -3131, rburnhamC ilcity.newport- beach.ca.us SUBJECT: Measure S Guidelines Proposed Amendments ISSUE: Should the City Council amend the existing Measure S Guidelines to streamline and clarify the procedures for evaluating General Plan amendments (amendments)? RECOMMENDATION: If desired, adopt some or all of the proposed modifications to the Measure S Guidelines that accompany this memo (Exhibits A through F). INTRODUCTION: Measure S added Section 423 (Section 423) to the City Charter. According to Section 423, certain amendments are not effective unless approved by the voters. Voter approval is required for amendments that "significantly" increase the "maximum amount of traffic that allowed uses could generate or ... allowed density or intensity." The Measure S thresholds for voter approval are 101 peak hour trips (traffic), 101 dwelling units (density) and 40,001 square feet "of floor area" (intensity). These thresholds are reduced by 80% of the trips, density and intensity resulting from amendments in the same statistical area that were approved by the City Council within the ten years preceding approval of the amendment under consideration. Measure S "encouraged" the City Council to adopt guidelines to implement Section 423. The Measure S Guidelines (Guidelines) were adopted in March 2001. On February 24, 2004, this office presented the City Council with a report outlining various aspects of the Guidelines that, based on practical experience, could be appropriate subjects for modification. This memo discusses the majority of those topics and proposes modifications for Council consideration and possible adoption (Exhibits A through F). DISCUSSION: • "Deviation from Strict Application" The Guidelines currently allow the City Council to deviate from a strict application of the Guidelines upon a determination (approved by six affirmative votes) that a strict application would be contrary to the express purpose of Measure S. In our earlier report we suggested that this language might be considered unnecessary because the City Council can amend the Guidelines (by six affirmative votes) if necessary to avoid a decision that would be inconsistent with Measure S. However, upon further review and after consulting with special counsel, we believe that this language could, in the event of a legal challenge, be considered a "savings clause." In other words, a court might uphold the guidelines against a legal challenge because the City Council may depart from a strict application if necessary to ensure consistency with Measure S. We have prepared modifications that would delete the "deviation" provision (Exhibit A and modifications to the current provision that, in staff's opinion, more carefully describes the objective — consistency with Measure S (Exhibit A -1). Staff is recommending adoption of the text of both Exhibits. • "Allowed Uses" This definition contains language that is accurate but unnecessary because it simply reflects the manner in which land is generally entitled under the current General Plan. We have prepared Guideline modifications (Exhibit B) removing excess language if the City Council wishes to streamline this provision. • "Approval" City Council "approval" of an amendment subject to the voter approval requirements of Section 423 does nothing more than give the voters the opportunity to approve or disapprove the amendment. We have prepared proposed Guideline provisions (Exhibit C) that explain the effect of City Council "approval" and clarify that any related land use action (such as a zoning amendment or use permit) does not become effective unless the amendment is approved by the voters. • "Non- Residential Use Category" We have prepared modifications (Exhibit D) to this section that eliminate excess verbiage and delete the exclusion for group residential use and limited care residential use. • "Floor Area Calculation" The City has, since the inception of the General Plan, entitled large hotels in terms of rooms and large theaters in terms of seats. This longstanding practice is based on the fact that "rooms" are the primary "units of measurement" used by traffic engineers in calculating traffic generated by hotels. In this respect the Guidelines are consistent with the express purpose of Measure S (traffic congestion) and nothing in Measure S requires the City to alter its long- standing practice of entitling hotels and other uses in a manner that most closely reflects their trip generating characteristics. However, without requiring future hotel and theatre entitlement to be specified in terms of rooms or seats and floor area, certain amendments that exceed the "intensity" threshold but generate 0 • very little peak hour traffic — such as the Marinapark Resort — would not require voter approval pursuant to Section 423. The public discourse regarding Measure S has also revealed that some believe the City uses a procedure for evaluating and considering amendments that require voter approval that differs from procedures for amendments that do not require voter approval. While the City has never used a different procedure, staff believes the City Council may want to consider Guideline provisions that confirm our practice of using the same procedures and providing the public with the same or more information in the case of amendments that require voter approval. Accordingly, we have prepared modifications to the Guidelines (Exhibit E) that: (a) delete existing language that requires amendments designated in terms other than floor area (such as hotels and boat slips) to be evaluated solely on the "differential in Peak Hour Trips "; (b) confirm that amendments that require voter approval will be processed — and the public provided with the same or more information - as amendments that do not require voter approval; and (c) require all "Non- Residential" amendments initiated after March 27, 2001 to be stated in terms of floor area and, if different than floor area, the most appropriate "unit of measurement" specified in the Manual prepared by the Institute of Traffic Engineers (ITE Manual that the City is required to use pursuant to Measure S). . • "Procedures" The procedures in the Guidelines are much more detailed than necessary. Staff has found that applicants for even very small amendments are fully aware of Section 423 and that the "initial report' is unnecessary. We also believe that extensive "post - approval' procedures are unnecessary and confusing. These provisions — including the deferral of the determination as to whether an Amendment would require voter approval - were the product of legal concerns that, on further review, are not substantive. Accordingly, we have prepared amended Guidelines that eliminate unnecessary paperwork, delay and confusion (Exhibit F). Staff has not had sufficient time to determine if, and under what circumstances, transfers of entitlement require amendments and how those amendments should be evaluated in terms of Section 423 requirements so we are not proposing any proposed Guidelines on this particular topic. Guideline amendments require the affirmative vote of six members of the City Council and we suggest the City Council consider each of the proposed amendments as the subject of individual motions and votes. �obert Burnham • ` City Attorney EXHIBIT A • On November 7, 2000, the Newport Beach electorate approved Measure S (Exhibit A). Measure S amended the Newport Beach City Charter by adding Section 423. In general terms, Section 423 requires voter approval of certain amendments of the Newport Beach General Plan (General Plan). Measure S "encourages" the City Council to adopt implementing guidelines that are consistent with its purpose and intent. The City Council has, consistent with Measure S, conducted a series of public meetings to receive input from the public on Measure S and these Guidelines. The City Council has determined, based on staff analysis and public input, that these Guidelines are consistent with the express purpose of Measure S. The Cit�, Ceuneil may, deviate ffam a strict application of these Guidelines to a amendment,apon a determination, approved by, the affirniative vote of at least six ('.,,,REil members, that a ..tr-iet application would con--ary to the express EXHIBIT A -1 0 On November 7, 2000, the Newport Beach electorate approved Measure S (Exlubit A). Measure S amended the Newport Beach City Charter by adding Section 423. In general terms, Section 423 requires voter approval of certain amendments of the Newport Beach General Plan (General Plan). Measure S "encourages" the City Council to adopt implementing guidelines that are consistent with its purpose and intent. The City Council has, consistent with Measure S, conducted a series of public meetings to receive input from the public on Measure S and these Guidelines. The City Council has determined, based on staff analysis and public input, that these Guidelines are consistent with the express purpose of Measure S. The City Council may dart deviate-from a strict application of these Guidelines to an «eRrupon a determination, approved by the affirmative vote of at least six Council members, that such departure a stT-iet applieatien -is necessary to ensure that the City Council's decision or determination is consistent with wow he eefltnaly the express purpose of Measure S. • 0 • • EXHIBIT B A. Allowed Use(s). The term "Allowed Use(s)" means the land use(s) permitted on property or in a geographical area by the General Plan prior to approval of an Amendment pertaining to that property or geographical area. in ,.ertai n eases }w, n ll _ ed Use(s) e these defined and . n i. a uses that ha-ve beeR applied by a resolution speeifie to that pralgerty er geegraphkal area. in khe majority of eases, the Allowed Use(s) are Elefined epily in ter-fias of a Residential Use linn`u T T—C .- -- . ....areas tiffOO&ORt the `_4J'' ' EXHIBIT C 9 C. Approval. "Approve' or any conjugation or variation of that word (such as approved or approval) means, in the context of a decision on an amendment, that at least four members of the City Council voted in favor of a motion approving an amendment. The practical effect of a vote to approve an amendment that requires voter approval pursuant to Section 423 is nothing more than the referral of that amendment to the voters for their approval or disapproval. Accordingly, City Council "approval" of any land use amendment, agreement or permit (such as a zoning amendment, use permit or development agreement) that is processed concurrently with an amendment that requires voter approval shall not be effective unless and until the voters have approved that amendment. • 0 0 EXHIBIT D F. Non - residential Use (Categgry). The term Non - residential Use means any land use (other than a Residential Use) authorized by a Non - residential Use Category that generates any Peak Hour Trips and includes the land 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. The term "Non- residential Use Category" means one of the six (6) non- residential land use categories applicable to property or a geographical area pursuant to the General Plan. The Non - Residential Use Categories are "Retail Service Commercial ", "Adininistrative Professional and Financial Commercial", "Recreational and Marine Coininercial ", "General Industry ", "Governmental, Educational and Institutional Facilities ", and "Recreational and Environmental Open Space." The Non residential Use a' ..- =tzz'zcc� ter.— "s°''r'Ci6.P ic�i tcr�t'inru�c" a' rr– i-im- itcd tlre- %- gid-ecntial use" as t4iese ter-ins are def4ned in the Code. EXHIBIT E B. Floor Area. The Floor Area authorized in the General Plan for property or a geographical area before and after the Amendment shall be determined on the basis of the maximum amount of Floor Area authorized by the General Plan for all Non - residential Uses before and after the Amendment. in the 4 th E 4'41 4 n 4..mns 14er ..': 2: ^ ^�. �: a :« :�:c.:,c :.� er�c`! Ne}Z residarttial- L�seis EleSi�ata� :.. ,..rr:urr. -;cr than Plear Area -(sueh as hotel reams or- beat slips) ffie aetefm.. - -n—as ;s whether- 'he Amendment requires voter approval shall be based selely e the Eliff,.ept al in Peal, 14eu T+ip. If the General Plan authorizes varying amounts of Floor Area depending on the type of Non - residential Use (variable floor area limits), the Entitlement for Allowed Use(s) shall be based on the maximum amount of Floor Area allowed by the General Plan for the Proposed Use(s). For example, the General Plan allows Floor Area ranging from 12,000 sq. ft. (restaurant) to 30,000 sq. ft. (warehouse) on a 40,000 sq. ft. parcel designated "Retail Service Commercial' with a variable floor area limit. If the Proposed Use is a 22,000 sq. ft, restaurant, the increase in Floor Area would be 10,000 sq. ft. (the difference between the 22,000 sq. ft. Proposed Use and the 12,000 sq. ft. Allowed Use). C. Amendment Procedures /Public Information. The procedure for initiating, evaluating, considering and deciding an amendment that requires voter approval pursuant to Section 423 shall be the same as, and provide as much, or more, information to the public about the amendment, as an amendment that does not require voter approval. In the case of amendments initiated after March 27 2001 that have not been approved by the City Council prior to March 23, 2004, the entitlement for any Non - Residential Use Amendment shall be stated in terns of floor area and the primary "unit of measurement" specified in the ITE Manual for any specific use (such as rooms in the case of hotels or resorts and seats in the case of theatres) if the unit of measurement is different than floor area. 0 �J eighty ereen, 0°i f the inn ease i n Peak Hour T..1..... :e..ul♦ing Le inerease in Peak Hour Trips resulting fFom the Amendment a eighty percent (89%) of the inerease ip Peak 14sur Trips Fesulting from Prior Afnendf-tepts. }g tJ'� �-{� - ,off- a..... .., ...r ...b xAi -r"a r"r�shall not be ei tided to ell an the h-Iti..1 D..,-.ort for- ayyy r-epresentetien of the City or the Pam,,ing Pirector as to whethef the .AHHAWSA-M-ent-, if appreved by the City Council, will r-eqt6re voter approval. The initial Report shall be available to the publier A�. Staff Reports. The Planning Department prepares Planning Commission and City Council staff reports for each Amendment. All Planning Commission and City Council staff reports on an amendment shall contain tire- information relevant to whether the Amendment, if approved, would require voter approval pursuant to Section 423 unless the scope and nature of the amendment is such that voter approval is clearly not required_ to-1 e inserted above the mater a! f efn the initial Report (...,.7..x,.,71 hat the data is provided ior "Werffiatien u and is not relevant to any finjing or decisien related to the Afnendpient. !• ■ _ • Y ■ 139. City Council Review. The City Council shall review the Final Repeft and determine at the a- noticed public hearing at which an}, Amendment is approved if, based on the Final Reper-t-,-the administrative record for the Amendment including the affd- testimony presented, the Amendment requires voter approval pursuant to Section 423. The City Council shall submit the Amendment to the voters pursuant to Section 423 if: 1. the Amendment relates to a Non - residential Use and authorizes an increase in Floor Area for the entire property or geographical area that is the subject of the Amendment that exceeds forty thousand (40,000) square feet when compared to the General Plan before approval of the Amendment, or 2. the Amendment relates to a Residential Use and authorizes an increase in the number of Dwelling Units for the entire property or geographical area 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 3. the Amendment modifies the type or amount of Residential Use or Non - residential Use specified for the property or geographical area that is the subject of the Amendment such that the Proposed Use(s) as approved by the Amendment generate(s) at least one hundred and one (101) more morning or evening Peak Hour Trips than the Allowed Use(s) before the Amendment, or 4. the increase in moving or evening Peak Hour Trips, Dwelling Units or Floor Area resulting from the Amendment when added to eighty percent (80 %) of the increases in morning or evening Peak Hour Trips, Dwelling Units or Floor Area resulting from Prior Amendments exceeds one or more of the voter approval thresholds in Measure S as specified in subsections 1, 2 or 3. E. Calling an Election. In the event the City Council determines that the Amendment requires voter approval, the City Council shall, at the hearinK at which the Amendment was approved or a subsequent hearing held no more than tlirty sixt�--(360) days after the date of approyal niak4ng4he adopt a resolution calling an election on the Amendment. The City Council shall schedule the election on the Amendment at the next regular municipal election (as specified by the City Charter) or at a special election if the proponent of the Amendment has entered into a written agreement with the City to share the costs of the special election. S +' 1 3 -a3 -�y • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Study Session Agenda Item No. 3 February 24, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 -3131, rburnham(d-)city.newport- beach.ca.us SUBJECT: Measure S Guidelines ISSUE: Should staff prepare amendments to the Measure S Guidelines for consideration by the City Council. RECOMMENDATION: If desired, provide direction to staff regarding those amendments to the Measure S Guidelines that the City Council would like to consider. INTRODUCTION: The City Council adopted the Measure S Guidelines (Guidelines) in • March 2001 without the benefit of the knowledge that comes from applying any set of rules or regulations to actual facts. Staff believes that the Guidelines fully comply with Measure S and disagree with those who contend that the Guidelines are inconsistent with Measure S or contain any "loopholes." However, staff has had an opportunity, during the past three years, to consider how the Guidelines function when applied to proposed amendments and we believe that the City Council may want to consider amending certain provisions. DISCUSSION: • Measure S Summary Measure S added Section 423 (Section 423) to the City Charter. According to Section 423, certain General Plan amendments (Amendments) are not effective unless approved by the voters. Voter approval is required for Amendments that "significantly" increase the "maximum amount of traffic that allowed uses could generate or ... allowed density or intensity." The Measure S thresholds for voter approval are 100 peak hour trips, 100 dwelling units and 40,000 square feet "of floor area ". Measure S "encouraged" the City Council to adopt guidelines to implement the Section 423. • Measure S Misconceptions • Measure S did not, as some have suggested, modify the manner in which the City has historically processed Amendments except to require voter approval of those that exceed the thresholds in Section 423. Measure S does address the timing of an election and the manner in which the ballot measure is drafted but it does not require • the City to prepare more information about an Amendment than was the case before its adoption (the City may be required to conduct some minor additional analysis for small Amendments if the "look. back" provisions could come into play). Finally, while Measure S does require voter approval of Amendments that exceed the "intensity" and "density" thresholds, the express purpose of Measure S was to "prevent Newport Beach from becoming a traffic- congested city." • Possible Guideline Modifications Staff has identified the following. topics or provisions as possible candidates for amendment or modification: o "Deviation from Strict Application" The Guidelines currently allow the City Council to deviate from a strict application of the Guidelines upon a determination (approved by six affirmative votes) that a strict application would be contrary to the express purpose of Measure S. This language is unnecessary because the City Council can amend the Guidelines (by six affirmative votes) if necessary to avoid a decision that would be inconsistent with Measure S. C "Allowed Uses" The definition contains language that is accurate but unnecessary because it simply reflects the manner in which land is generally entitled under the current General Plan. • C "Approval" For the purposes of Section 423, City Council "approval' of an Amendment is relevant only to the date of the election and its submittal to the voters as a "separate and distinct" ballot measure. City Council "approval' of an Amendment does nothing more than give the voters the opportunity to approve or disapprove it. Staff believes the Guidelines could be modified to define the term "approval' to include a decision to approve an Amendment for purposes of submitting it to the voters and /or a decision to simply place the Amendment on the ballot as was done in the case of the agreement with Sutherland Talla Hospitality relative to the Marinapark Resort project. o "Non- Residential Use Category" This definition could be shortened and modified to delete the exclusion for group residential use and limited care residential use. o "Floor Area Calculation" The City has, since the inception of the General Plan, entitled large hotels in terms of rooms and large theaters in terms of seats. Staff believes this practice derives from the fact that "rooms' or "occupied rooms" are the primarily "units of measurement" utilized in the ITE Manual for purposes of the calculating traffic generated by hotels and seats are utilized for calculating traffic generated by theaters. The Guidelines currently provide that the determination as to whether a hotel or theater Amendment • requires voter approval is based solely on the "differential in Peak Hour Trips." In • this respect the Guidelines are consistent with the express purpose of Measure S and nothing in Measure S requires the City to alter its long- standing practice of entitling hotels and theaters in a manner that most closely reflects ,their trip generating characteristics. However, the failure to specify hotel and theatre entitlement in terms of rooms or seats and floor area does mean that certain Amendments — such as the Marinapark Resort — that exceed the "intensity" threshold but generate very little peak hour traffic would not be require voter approval pursuant to Section 423. Staff believes that minor amendments to the Guidelines that require Amendments for hotels and theaters to be stated in terms of rooms or seats and floor area would focus the voters' attention on the merits or demerits of the proposed Amendment rather than the rationale for calling the election. o "Procedures" The procedures in the Guidelines are so detailed that one might suspect the City Attorney was being paid by the word. Staff has found that applicants for even very small Amendments are fully aware of Section 423 and that the "initial report' is unnecessary. The deferral of the determination as to whether an Amendment would require voter approval was the product of legal concerns that, on further review, are not substantive. Staff believes the procedures can be shortened and streamlined. o "Transfers of Entitlement" The Guidelines do not address transfers of • entitlement. The Land Use Element contains provisions generally authorizing transfers of entitlement in accordance with procedures established in the Municipal Code and specifically authorizing transfers in certain planning areas. Staff's preliminary opinion is that voter approval would not be required of any Amendment that seeks to transfer density or intensity from one parcel or area to another since the transfer would not Increase(s) the maximum amount of traffic that allowed uses could generate." Staff will conduct additional analysis assuming direction to do so from the City Council. Staff will prepare proposed amendments consistent with direction from the City Council. Robert Burnham City Attorney C1 CITY OF NEWPORT BEACH SUPPLEMENTAL CITY COUNCIL STAFF REPORT Agenda Item No. 28 March 23, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 -3131, rburnham(o)city.newport-beach ca us SUBJECT: Measure S Guidelines Proposed Amendments ISSUE: Consideration of Council Member Rosansky's comments regarding proposed amendments of the existing Measure S Guidelines (Guidelines). RECOMMENDATION: Staff recommends that the modifications (Revised Exhibits D, E and F are attached) be substituted for the original amendments proposed by Staff. INTRODUCTION: Council Member Rosansky is proposing modifications to some of the Guideline amendments submitted to the City Council as part of the original staff report. Council Member Rosanksy suggests that Exhibit D (Non - Residential Use Category) be modified to delete reference to the specific "Non Residential Use categories since they may change some time in the future. Council Member Rosanksy also suggests that Exhibit E (Floor Area and Procedures) be modified to more clearly state that, with the exception of the proposed change to the manner in which hotels and theatres would be entitled, Measure S did not modify our general plan amendment procedures. Finally, Council Member Rosanksy suggests that Exhibit F be modified to more clearly state the information that must be included in Planning Commission and City Council staff reports and to delete proposed language that would have excused compliance when the Amendment would clearly not require voter approval. /__rtBurnham, City Attorney City Attorney EXHIBIT D - ROSANSKY F. Non - residential Use (Category). The term Non - residential Use means any land use (other than a Residential Use) authorized by a Non - residential Use Category that generates any Peak Hour Trips and includes the land 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. The term "Non - residential Use Category' means gDy en o of �rnon- residential land use categorvies applicable to property or a geographical area pursuant to the General Plan The Nen Residential Use s and e mental �p n� tee " Tl�e m—P�e e de T alse includes a "gretip residential use" and "limited cafe residential use" a-s these terms e def4necl in the (;;ede, EXHIBIT I (ROSANSKY) B. Floor Area. The Floor Area authorized in the General Plan for property or a geographical area before and after the Amendment shall be determined on the basis of the maximum amount of Floor Area authorized by the General Plan for all Non - residential Uses before and after the Amendment. In the case of amendments initiated after March 27 2001 that have not been approved by the City Council prior to March 23, 2004 the entitlement for any Non - Residential Use Amendment shall be stated in terms of floor area and the primary "unit of measurement" specified in the ITE Manual for any specific use (such as rooms in the case of hotels or resorts and seats in the case of theatres) if the unit of measurement is different than floor area. in ' Entitlement f a N Trips. If the General Plan authorizes varying amounts of Floor Area depending on the type of Non - residential Use (variable floor area limits), the Entitlement for Allowed Use(s) shall be based on the maximum amount of Floor Area allowed by the General Plan for the Proposed Use(s). For example, the General Plan allows Floor Area ranging from 12,000 sq. ft. (restaurant) to 30,000 sq. ft. (warehouse) on a 40,000 sq. ft. parcel designated "Retail Service Commercial' with a variable floor area limit. If the Proposed Use is a 22,000 sq. ft. restaurant, the increase in Floor Area would be 10,000 sq. R. (the difference between the 22,000 sq. ft. Proposed Use and the 12,000 sq. ft. Allowed Use). C. Amendment Procedures. The Citv Council has determined that Measure S does not, except for the information necessary to determine if an Amendment requires voter approval contemplate any change to the manner in which Amendments are initiated, analyzed or considered Accordingly, except to the extent necessary to comply with these Guidelines, the process for initiating analvzing or considering Amendments will continue to be a function of State law and the ordinances resolutions and policies adopted by the City Council EXHIBIT F (ROSANSKY) PROCEDURES ■ ._ - 1. Residential Use A.,.,..,.7.. e, t. TAri'.le -1,A lllHr-e Pwelling Urrit. the repart ,.hall ..,-7:,...t„ the number --o . Dwelling Units permitted by the existing General RI.... R A the nuiTO33-T -E±C Dwelling Unit-, requested e eR11431ent The report L L all also indicate the number .,F 1-,.,.,111.,,. Units equal to eight), Y"« '�riiie -H�", Tl...,,l l:.,,. Units t.. .,iti.,,t F« „fill- -Prior Amendments. The report shall late the total of the incre -e-iii il,. „ 11:.,,. Unit, resulting F«,,.,”, the Amendment -an -- E'Ig'1-ity r ercen (Ell%) .fth,. Tl....,ll:.. �lii - �-tH•rrr�R�"-iol Lz4131°'°T� ♦ 3. All Amendments. t. t., all eases, the report shall indicate the ir'ci ber-a R....1. i7,,..« T«:.,s permitted by the existing f'.,.,,. «..1 Plan „7 the .".h,.« ..0 D,...1. Eli.,« T«i.,.. lt:.,,, F «.,.,, th A.�.....,1......,t Tl,,. repeft sh..11 ..1«,. :...7:,.at, the ., .,".1,.,« �f4ea �- iiis- -eti lal is eighty p'.l'C-eat (80'%) of - t1-7(?--+ierease -in Peak rtc'u yips- ?* gi frew1 Prior -Amen.dr;qients. The report shall calculate the total of the 1 Ag. Staff Reports. The Planning Department prepares Planning Commission and City Council staff reports for each Amendment. All Planning Commission and City Council staff reports on an Aamendment shall contain the- information relevant to whether the Amencment, if approved, would require voter approval pursuant to Section 423. The reports shall include the following information: (i) in the case of a Residential Use Amendment, the number of dwelling units allowed by the General Plan before and after the Amendment; (ii) in the case of a Non - Residential Use Amendment the amount of floor area allowed by the General Plan before and after the Amendment; (iii) in all cases, the number of peak hour trips allowed by the General Plan before and after the Amendment; (iv) requ-i a table that identifies each Prior Amendment including an), increase in Floor Area Dwelling Units and Peak Hour Trips, the (late on which each Prior Amendment was approved; iv a table adds eighty percent (80 %) of the peak hour trips, dwelling, units and floor area increases resulting from Prior Amendments to the peak hour trips, dwelling units and /or floor area (as appropriate) to the Amendment under consideration _ te,-be provided ke-]nkial-Repo t awn �a iex ska pilateEi as eharqq��ep,,;,,,a mienr ent�lie taf€-reper -sha' ,a statement - r e..ted above the material f-}_ein the r.zrixcini-i iepart (updated) that tht- d4 k provided fer"in€emiatiOH[ 61 y= BQ. City Council Review. The City Council shall rvview a - e Brt and determine at the a-- noticed public hearing at which any Amendment is approved if, based on the Anal Tyr the administrative record for the Amendment including the an4--testimony presented, the Amendment requires voter approval pursuant to Section 423. The City Council shall submit the Amendment to the voters pursuant to Section 423 if: 1. the Amendment relates to a Non - residential Use and authorizes an increase in Floor Area for the entire property or geographical area that is the subject of the Amendment that exceeds forty thousand (40,000) square feet when compared to the General Plan Before approval of the Amendment; or 2. the Amendment relates to a Residential Use and authorizes an increase in the number of Dwelling Units for the entire property or geographical area 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 3. the Amendment modifies the type or amount of Residential Use or Non - residential Use specified for the property or geographical area that is the subject of the Amendment such that the Proposed Use(s) as approved by the Amendment generate(s) at least one hundred and one (101) more morning or evening Peale Hour Trips than the Allowed Use(s) before the Amendment; or 4. the increase in morning or evening Peak Hour Trips, Dwelling Units or Floor Area resulting from the Amendment when added to eighty percent (80 %) of the increases in morning or evening Peak Hour Trips, Dwelling Units or Floor Area resulting from Prior Amendments exceeds one or more of the voter approval thresholds in Measure S as specified in subsections 1, 2 or 3. CE. Calling an Election. In the event the City Council determines that the Amendment requires voter approval, the City Council shall, at the hearing at which the Amendment was approved or a subsequent hearing held no more than tlur si x(360) days after the date of approval, naaR4ng the deterfninatiee�,—adopt a resolution calling an election on the Amendment. The City Council shall schedule the election on the Amendment at the next regular municipal election (as specified by the City Charter) or at a special election if the proponent of the Amendment has entered into a written agreement with the City to share the costs of the special election. "RECEIVED AR AGENDA PRINTED!, d 3a-, �- JOHN E, B U70 LPH 5020 CAMPUS DR., NEWPORT BEACH, CA 92660 ATTORNEY AT LAW TEL: (949) 955 -2033 FAX: (949) 9552036 EMAIL: buffolph2 @attbl.com March 22, 2004 Mayor and Members of the City Council City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 Re: Measure S Guidelines Proposed Amendments Agenda Item #28, March 23, 2004 Gentlemen: Having reviewed the staff report I submit the following comments for your consideration: Approval: The proposed revision does not accurately describe the effect of the council's approval pursuant to section 423. "Approval" involves substantially more than mere referral for voter approval. It marks completion of a thorough and painstaking review process and represents the Council's informed determination that the General Plan should be amended in accordance with the Applicant's request. The Guidelines must clearly state that if the Council rejects the application for an amendment, their decision is final and the amendment is not submitted to the voters. Section 423 is clear: the Council sets an election only if the Council approves an amendment. AND, the election is set after the Council approves the amendment. I have seen the comments of the Greenlight Steering Committee objecting to the staff's recommendation concerning "approval ". I urge you to adopt Greenlight's first draft alternative, or as modified herein: that is, "..is a full approval of the amendment by the Council following the Council's review and acceptance of all environmental reports and planning documents, subject only to ratification of its approval by the voters in accordance with section 423. If the Council rejects the amendment, section 423 neither requires nor authorizes its submission to the voters. An amendment shall be submitted to the voters only following the Council's full approval of the amendment." I also concur with Greenlight's comments regarding the definition of "Entitlement ". One final word. I am perplexed and dismayed by the personal attacks made from the Council dais against the Greenlight organization and members of its steering committee. Citizen JOHN E. BUTTOLPH ATTORNEY AT LAW activists may be a thorn in the Council's side, but it appears to me that they are motivated by service to the citizens of Newport Beach to present their positions on traffic and quality of life issues. There is no cause for members of the Council to vilify them for that. ery trull yours, N EARL BUTTOLi Bms " 4+ JS 3 -d3 -cH Greenlight 2601 Lighthouse Lane Corona del filar, CA 92625 949 - 721 -1272 /philiparst @cor.net March 23, 2004 Mayor Tod Ridgeway and Members of the Newport Beach City Council City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 Re:(l .) Staff Report "Measure S Guidelines Proposed Amendments" dated March 23, 2004 Agenda Item 28 (2.) Staff Report "Measure S Guidelines Proposed Amendments (Second Release) dated March 23, 2004 Agenda Item 28 (3.) Letter from John Buttolph "Measure S Guidelines Proposed Amendments" dated March 22. 2004 (4.) Letter from Greenlight "Measure S Guidelines Proposed Changes" dated March 22, 2004 " Dear Mayor Ridgeway and Members of the City Council: This is to document the official Greenlight position on the referenced Staff Reports, the letter from Mr. Buttolph and to add some additional recommendations on needed changes that were omitted in the Staff Report. This letter supersedes our enclosed letter dated March 22, 2004. This letter is based upon the assumption that we have received a true copy of Item (2.) above and that a reported missing section has been furnished to us. Our listing of needed changes and the rationale for their need is contained in the enclosed table of recommended changes. Overall, great progress has been made through the efforts of Councilman Rosansky and we thank him. His rewording of staff recommendations has cleared up confusions and taken out contradictions that were in them. We support all of his suggested changes with the exception of a few points that are documented in the enclosed comment sheet and a needed review by our attorney over the next few days. We also thank Mr. John Buttolph for his proposed wording on the Approval Process and accept it in place of our suggestions for rewording that section. In either approach, we believe that this clarification is needed. We have retained our recommendation for the needed rewording of the definition of "Entitlement' in order to prevent future conflicts in the interpretation of the "Floor Area" criteria of Charter Section 423. We will be pleased to answer any questions. Thank you in advance for your services to the community, Greenlight (Original Signed) Philip L. Arst Enclosure: Recommended Changes to Staff Report Recommendations as Modified by Councilman Rosansky and John But tol h Rosan Ex Changes recommended to Staff Report dated March Rationale sky hi 23, 2004 for Agenda Item No. 28 Adden hit dum s JB C Approval — Strongly disagree with staff This eliminates ambiguities in Adden recommendation. the definition of city council dum - Insert after second sentence "formal approval can only approval. take place after the City Council has approved the Agree with hetter wording of completed environmental review pursuant to CEQA and John Buttolph. all other relevant documents via the public hearing process. JB C. Approval - Strongly disagree with staff This section does not state Adden recommendation whether the approval takes dum 1.) Change phrase "is nothing more than the referral of place before or after the voter that amendment to the voters for their approval or election. disapproval' to "is a full approval of the amendment by Agree with hetter wording of the Council, subject only to a vote of approval or John Buttolph disapproval by the voters in accordance with Section 423 before it can take effect. If the city council disapproves the amendment, even though it is subject to voter approval if passed, the amendment will be considered disapproved and not submitted to the voters. R E Floor Area Accept Rosansky test that clarifies and adds effective date. Needs our recommend- ation on "Definitions D Entitlements" to eliminate all ossihle amhi uities. R F A -Staff Reports - Recommend — In "second" (iv) " replace "to" with "for its statistical area." in Rosansky test Additional Comments on needed changes hevond those recommended by staff: A- DEFINITIONS D - Change first sentence to read "The Needed to prevent 1 word "Entitlement" means the maximum amount of floor misinterpretation of Floor Area area or dwelling units authorized by the General Plan for definition allowed use on any property or geographical area. ".., The entitlement may also include descriptors such as hotel rooms or theater seats where needed to calculate peak hour traffic trips. A- Effective date of these changes to Measure S 3 Guidelines— Please state as March 27, 2001 Enclosure Greenlight Letter "Measure S Guidelines Proposed Changes" dated March 22, 2002 Greenlight 2601 Lighthouse Lane Corona del Mar, CA 92625 949 - 721 -1272 /philiparstCcox.net March 22, 2004 Mayor Tod Ridgeway and Members of the Newport Beach City Council City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 Reference Staff Report "Measure S Guidelines Proposed Amendments" dated March 23, 2004 Agenda Item 28 Dear Mayor Ridgeway and Members of the City Council: This is to document the official Greenlight position on the referenced Staff Report and to add some additional recommendations on needed changes that were omitted in the Staff Report. Our listing of needed changes and the rationale for their need is contained in the enclosed table of recommended changes. Overall we believe that there are inconsistencies in the key areas of floor area requirements, time of Council approval and determination of applicability to the Marina Park Hotel. As the wording of these changes confuses us, they will confuse others trying to interpret these Guidelines in the future and need to be clarified. For example, while staff has recommended adding floor area considerations in one section, the definition of entitlement still could be interpreted to exempt hotels from floor area considerations. We have recommended wording changes to correct what we believe are deficiencies and to clarify matters to prevent future misinterpretations. These are believed to be the minimum set needed to bring the Measure S Guidelines into compliance with City Charter Section 423. We have also recommended wording to clear up a problem that has come to light of dwelling units replacing commercial or other non- residential land uses. We will be pleased to answer any questions. Thank you in advance for your services to the community, Greenlight (Original Signed) Philip L. Arst CC: John Buttolph Douglas Carstens Greenlight Steering Committee Robert Burnham Enclosure: Recommended Changes to Staff Report Recommenrintinnc Exhi Changes recommended to Staff Report dated March Rationale bits 23, 2004 for Agenda Item No. 28 A Deviation from Strict Application - no recommendation C Approval - Strongly disagree with staff This eliminates ambiguities in the recommendation. definition of city council approval. - Insert after second sentence "formal approval can only take place after the City Council has approved the completed environmental review pursuant to CEQA and all other relevant documents via the public hearing process. C. Approval — Strongly disagree with staff This section does not state whether the recommendation approval takes place before or after 1.) Change phrase "is nothing more than the referral of the voter election. Two ways to clarify that amendment to the voters for their approval or the ambiguous phrasing of the Staff disapproval' to "is a full approval of the amendment by Recommendations are provided. The the Council, subject only to a vote of approval or first provides clear detail of the disapproval by the voters in accordance with Section 423 process and adds the important before it can take effect. If the city council disapproves proviso of what happens when the the amendment, even though it is subject to voter Council disapproves an Amendment. approval if passed, the amendment will he considered The second removes the ambiguous disapproved and not submitted to the voters. sentence. C 2.) Approval — alternate approach to 1.) above. Remove previous second sentence that contains the phrase_ "is nothing more than the referral of that amendment to the voters for their approval or disapproval." D Non - Residential Use Category — No recommendation. E. Amendment Procedures /Public Information — This clarifies the approval process. Change the "deciding" to "approving in first sentence " There is no definition of "deciding" Clarifies that voter approval takes F Procedures B. City Council Review — Insert the word "subsequent" before "voter approval." place after Council approval. F Procedure - Post Approval Report- Insert the words "it More clarification has approved" after "the Amendment' in the first sentence. Additional Comments on needed changes bevond those recommended by staff: A -1 DEFINITIONS D - Change first sentence to read "The word "Entitlement" means the maximum amount of floor area or dwelling units authorized by the General Plan for allowed use on any property or geographical area. "... The entitlement may also include descriptors such as hotel rooms or theater seats where needed to calculate Allot sente Reco If the the c than Resit perm Cbns: andol used vote) Secti peak hour traffic trips. B Allowed Uses - Add additional sentence at end of Staff B Recommendation If the amendment requests a change in the category of Allowed Uses i.e. changes a Commercial Land Use to a Residential land Use, the allowed uses permitted on the property shall be considered as zero and the entire amount of the amendment is to be used to determine the requirement for voter approval /disapproval under Section 433 A -2 Effective date of these changes to Measure S Guidelines— Please state as March 27, 2001 Allot sente Reco If the the c than Resit perm Cbns: andol used vote) Secti Monday, Miiarch 22, 2004 248 PM ■ Philip .first 949 -721 -5272 Greenlight 2601 Lighthouse Lane Corona deDfor, CA 92625 949- 721 -1272 /philiparst(aicox, net Mayor Tod Ridges ay and Members of the Nesspo t Beach Cite Council City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 P.01 "RECEIV D AMR AGENDA PRINTED:" 3 - a i March 22, 2004 Reference Staff Report --Measure S (nudelines Proposed Atnendnrents ' dated March 23, 2004 Agenda Item 28 Dear Mayor Ridgaway wid Mambars of the City Council: This is to document the official Ceenlight position on the referenced Staff Report and to acid some additional reeonunandations on needed changee that were omitted in the Staff Report. Our listing of needed changes and the rationale for their need is contained in the enclosed table of reeonunended changes. Overall we believe that there are inconsistencies in the kay areas of floor area requirements. time of Council approval and determination of applicability to the Marina Park Hotel. As the wording of these changes confuses us, they will confuse others trying to interpret these (nsidelines in the fitture and need to be clarified. For example, while staffhas reconuuended adding floor area considerations in one section. the definition of entitlement still could be interpreted to exempt hotels from floor area considerations. R%e have reconunended wording changes to correct what we believe are deficiencies and to clarify matters to Prevent firtare nusinterpretations. These are believed to be the minnmun set needed to bring the Measure S Guidelines into compliance with City Charter Section 423, We have also mconmrended wording to char up a problem that has come to light of dwelling units replacing conunereial or other nun - residential land uses. We will be pleased to answer any questions. Thank you in advance for your services to the community, Greenlight (Original Signed) Philip L. Arst CC: John Buttolph Douglas Carstens Cireenlig t Steering Committee Robert Burnham EXHIBIT C WEBS C. Approval. The City Council finds that the overriding objective of Section 423 is to ensure that the electorate has the right to approve or disapprove an Amendment that exceeds the "traffic ", "density' or "intensity" thresholds. To maximize the opportunities for voter consideration of amendments, the term "aApprove" or any conjugation or variation of that word (such as approved or approval) means, in the Eent,.xt of a deeision „ n that at least four members of the City Council voted in favor of; (i) a motion approving an Ammendment; or (ii) a motion to submit the Amendment to the voters pursuant to Section 423. A motion to approve an Amendment or submit an Amendment to the voters shall be made at the same time, or after, a motion to certify the adequacy of the enviroiunental document for the Amendment pursuant to the California Environmental Qualitv Act (CEQA) and the CEQA Guidelines The City Council retains the authority not to "approve" an Amendment and, in such event, the Amendment is disapproved and no further action shall be taken. In the event that an Amendment is submitted to, and approved by the voters pursuant to subsection (ii), the Citv Council shall approve the Amendment at the time the vote is certified. City Council "approval" of any land use amendment, agreement or permit (such E a zoning amendment, use permit or development agreement) that is processed concurrently with an Aarnendment that requires voter approval shall not be effective unless and until the voters have approved that aAmendment. iv1cn6ay, lAarch 22, 2004 2.48 PIA Philip Arst 949- 721 -1272 p,02 Enclosure: Recommended Changes to Staff Report Recommendations Eahi C'hangev recommended t[i Staff Report dated .March Rationale bits 23, 2004 for Agenda Item No, 28 A Deviation from Strict Application - no recollunenclatloll C Approval - Strongly disauee with staff This elinliilates ambiguities ill the recd nlllendation, definition of city coiui,cil approval. - Insert after second sentence "formal approval can onl }' take place after the City Council leas approved the coulPleted enviromuental review pllrsilaut to CEQA and all other relevant documents via the public nearing process. C. Approval — Strongly disagree with staff This section does not State whether the recolluilelld.'atloll approval trines Place before or after 1.) Change phrase "is nothing more than the retell al of the voter election. Two ways to claii6- that alllellchllellt to the vipers for their approval ill• the alllbignous phrasing of the Staff disapproval" to "is a full approval of the anlendrnent by Reeonuneudations are provided. The the Collucil. sllhject only to a vote of approval of first Provides clear detail of the disapproval by the voters in accordance with Section 423 process and acids the important before it can tape effea Jf the city coullcll d]SRPProve.: Proviso of what llappe115 when the the :nllelldlllellt, evell though It is Subject to voter Council disapproves :nl Alllelldillellt, approval if passed, the wrielnhllent will be considered The second removes the alllblgaious disc ) proved and not subulitted to the voters. senteuee. C 2,) Approval - alternate approach to 14) above. Remove previous second sentence that contanls the Please- "is nothilg more than the referral of that anlenchnetlt to the voters for their approval or disapproval." D Non - Residential Use Category - No recoumleudatiou. E. Amendment Procedures /Public Information - This clarifies the approval process. Change the "decicline" to "ayuroving in first seuteuee " There is no definition of" deeiding-4 4 F Procedures - B. City Council Review - Insert the word Clarifies that voter approval takes '•subsequelit" before "voter approval.- place after Council approval. F Procedure - Post Approval Report- Insert the Nvorcis "it Nioee clarification has approved" after "the Alneuchuent" in the first sellence. Additional Comments on needed chap es beyond those recommended by staff; DEFINITIONS D - Change first sentence to read "The A -1 word "Entitlenlent ' nlealls the nla%nrauu alnoillit of floor area or dwelling units authorized by the General Plan for allowed use oil any property or geographical area."... The entitlement may also inchide descriptors such as hotel roouls or theater ;sents where needed to calculate Monday, March 22, 2004 2.48 PM Philip Arst 949- 721 -1272 p,03 Allot sente Reco If the the C� Chan: Rasic perltt corm 1111101 used voter Sects peal: hoar h a$ic trips, B Allowed Pses - Add additional sentence at end of Staff B Recommendation If the amtenchment requests a change at the category of Allowed Uws i.e. cltattgcs a Cormtctcial Laud Usc to a Residential laud Use. the allowed uses permitted oil the Property shall be considered as zero and the entire :uttount of the antenchment is to be used to determine the requirement for voter 41171ri'OV4il:'dt54,ipprOVa1 under Section 423 A -2 Effective dote of these changes, to Measure S Guidelines — Please state as 1\ -larch 27, 2001 Allot sente Reco If the the C� Chan: Rasic perltt corm 1111101 used voter Sects