HomeMy WebLinkAbout27 - Measure S GuidelinesCITY OF NEWPORT BEACH
SUPPLEMENTAL CITY COUNCIL STAFF REPORT
Agenda Item No. /ZT-
June 8, 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:
Should the City Council approve amendments of the Measure S Guidelines proposed
by the Greenlight Steering Committee.
RECOMMENDATION:
If desired, adopt the amendments to the Measure S Guidelines that accompany this
memo (Exhibits A and B).
INTRODUCTION:
The Greenlight Steering Committee has asked the City Council to consider two
additional amendments of the Measure S Guidelines. One of the proposed
amendments would modify the "mandatory procedure" language proposed by staff to
require, as a precondition to submittal of an amendment to the voters, the City Council
to "complete all actions necessary for the applicant to proceed with the project." The
other proposed amendment would obligate the City Council to authorize rebuttal
arguments whenever an amendment is submitted to the voters pursuant to Section 423
of the City Charter.
Staff has concerns about the proposal to require the City Council to complete all actions
necessary for the applicant to proceed with the project. First, the proposed language
does not have a clear link to Measure S — which requires voter approval of amendments
not other land use approvals. Third, the concern that the voters will not have adequate
information to make an intelligent decision is unfounded the project proponent will is
required to provide us with the project information necessary to conduct an
environmental analysis and the Guideline amendments proposed by staff require that
information to be included in both the staff report and the impartial analysis. Fourth, we
can envision situations — such as the Marinapark Resort and Community Plan proposal
— where all of the actions necessary to proceed with the project — such as closure of the
mobilehome park - should not be completed before the amendment is submitted to the
voters. Finally, the proposed language could require an even greater financial
commitment from the proponent before knowing if the voters approve the project. If the
City Council believes that the proposal has merit, we have prepared language that
addresses some of staffs concerns and those of the Greenlight Steering Committee.
Staff has no opinion relative to the merits of the proposal to add a requirement for
rebuttal arguments to Guidelines although we fail to see the link between Section 423
and rebuttal arguments. However, the Elections Code specifies the procedure for filing
arguments and rebuttals in the absence of an ordinance or charter provision. In our
opinion, the City Council should proceed to address this issue through an ordinance and
not the Measure S Guidelines. We have prepared language authorizing rebuttal
arguments if the City Council determines that it is appropriate to incorporate such a
provision in the Guidelines.
Robert Burnham
City Attorney
EXHIBIT A
The City Council shall not approve an Amendment unless and until the
Planning Cormnission and City Council have first conducted noticed
public hearings as required by law and prepared and certified any
environmental document that is required by the California Environmental
Quality Act (CEQA) and the CEQA Guidelines. The City Council shall, a
the same time the Amendment is considered and decided, consider and
decide any discretionary land use approval or permit that is related to the
Amendment and for which an application has been submitted.
EXHIBIT B
In the absence of an ordinance or Charter provision that establishes a procedure
for submittal of arguments or rebuttals relative to City measures, the City
Council shall, at the time a decision is made to submit an Amendment to the
voters, adopt a resolution that authorizes the filing of arguments and rebuttals in
accordance with the general procedures specified in the Elections Code.
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 27
June 8, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Burnham, City Attorney
644 -3131, rburnham(a)city.newport- beach.ca.us
SUBJECT: Measure S Guidelines
Proposed Amendments
ISSUE:
Should the City Council amend current Measure S Guidelines to streamline and clarify
the procedures for evaluating and processing Land Use Element amendments that have
the potential to increase "allowed" intensity, density or peak hour trips.
RECOMMENDATION:
Adopt the proposed amendments to the Measure S Guidelines that accompany this
memo (Exhibit A).
INTRODUCTION:
The voters approved Measure S in November 2000. 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 any Amendment that "significantly" increases the maximum
amount of traffic that "allowed uses" could generate or significantly increases allowed
density (dwelling units) or intensity (floor area). An Amendment "significantly increases"
traffic, intensity, density if, individually or when added to 80% of the traffic, intensity or
density added by other Amendments within the same statistical area adopted by the
City Council within the previous 10 years, the Amendment increases intensity by more
than 40,000 square feet "of floor area ", density by more than 100 dwelling units or traffic
by more than 100 peak hour trips. 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. On March 23, 2004, the City Council considered six possible
modifications and directed staff to revise the language and resubmit proposed
amendments at the April 27, 2004 meeting. On April 27, 2004, the City Council again
considered possible modifications and again directed staff to revise various provisions
and resubmit the proposed amendments for consideration by the City Council.
DISCUSSION:
The following is a summary of the proposed amendments in Exhibit A:
1. Deletes language that allowed 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.
2. Clarifies the definition of "allowed uses" and adds a definition of "proposed
uses.
3. Adds a definition of the term "approval." City Council approval requires
four affirmative votes to adopt a resolution that contains the text of the Amendment and
can not occur until the City has complied with "mandatory procedures" that include
public hearings and certification of an environmental document if appropriate. Voter
approval means that a majority of those voting in an election voted to approve the
Amendment. The term approval also includes submission of an Amendment to the
voters pursuant to an agreement approved prior to July 1, 2003 that requires
consideration of the Amendment and other relevant documents.
4. The definitions of residential use and non - residential use have been
clarified.
5. The definition of entitlement has been modified to require non - residential
uses to be stated in terms of floor area and the relevant unit of measurement from the
Trip Rate Table if different than floor area.
6. The methodology for calculating increases in intensity has been rewritten
to address the three ways — specific allocation, fixed floor area allocations and variable
floor area allocations - that non - residential uses are entitled. The intensity of "allowed
uses" entitled in terms of rooms (hotels) and seats (theatres) is assumed to be 1000
square feet per room and 15 square feet per seat. The intensity of "allowed uses"
entitled in terms other than floor area, rooms or seats is assumed to the floor area
specified in the "Estimated Growth Table" or the existing floor area of allowed uses
whichever is greater. In the case of an Amendment that proposes a change in land use
from residential to non - residential or vice versa, the allowed intensity is assumed to be
zero density or intensity but peak hour trip credit would be given for existing entitlement.
7. The procedures have been modified so that City Council consideration
and possible approval of an Amendment must be preceded by noticed public hearings
and certification of any required environmental document. The staff reports on
Amendments would be required to include information about the Amendment, any
related project or land use approval and the environmental analysis that would be
helpful to the recommendation or decision of the Planning Commission and City Council
and helpful to the public in deciding how to vote on the Amendment. The procedures
also require the City Council to direct the City Attorney to prepare an impartial analysis if
an Amendment submitted to the voters to provide the same type of information that
required in staff reports.
8. The Guidelines have been amended to specify that — except in the case of
an initiative petition or other "mandatory legal obligation - the provisions of Section 423
and the Guidelines "represent the exclusive method for considering, approving and
submitting to the voters an Amendment that is subject to Section 423.
This office believes the proposed Guideline amendments, which reflect input from staff
and interested parties, establish clear procedures for evaluating and processing
Amendments and recommends City Council approval. Guideline amendments require
the affirmative vote of six members of the City Council.
Robert Burnham
City Attorney
EXHIBIT A
MEASURE S GUIDELINES
(1) INTRODUCTION
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 Qt (;;ouneil may deviate from a `` iet application ^F
„F
(2) DEFINITIONS
The definitions and terms in this section are intended to be consistent with the purpose
and intent of Measure S. Certain definitions and terms are intended to generally conform
to the definitions in, and terminology of, the most current edition of "Trip Generation," a
multi- volume publication of the Institute of Transportation Engineers (1TE Manual). The
1TE Manual is the primary reference used by transportation professionals seeking trip
generation information. Measure S requires use of the 1TE Manual as a basis for
calculating the Peak Hour Trips generated by a use permitted by an-v Amendment.
A. Allowed and Proposed Use(s). The term "allowed use)" means any gland use(s)
permitted by the General Plan on property or in an o�area. An
allowed use may be' " -- i,., n ii,,,.- zl T r- sure defined pl., in
terms of a residential use Comer;- and /or a non - residential -I I use Gtegary
generally applicable to an area or property or a particular land use applicable to
specific parcel A "proposed use' is a lend use that would be permitted after an
Amendment is approved.
to appi�eval 4 an AR,,endFnL�nt pertaining, to
a ave,4. Certain - ,g
pfe.'
p i�. ..
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B. Amendment. The word "Amendment" means any proposed amendment of the
General Plan that is first considered and /or approved by the City Council after
subsequent to December 15, 2000 and, that increases the number of peak hour
trips, dwelling units or floor area when compared to the General Plan prior to
approval.
C. Approval. Subject only to the exception specified in the third sentence of this
Section, s u',°� ), the word "'approve" (and any variations such as approved
or approval) means, in the context of the City Council's decision on an
Amendment, that four members of the City Council have, after the Citv has
complied with the "mandatory procedures" described in Section (4)(A) voted
affirmatively to adopt a resolution that contains the text of a proposed
Amendment. that would, assup4ing „ter apppeval, be inserted *" +w , r , al
plan. In the context of the voter's decision on an Amendment, the word
'approve" (and any variations such as approved or approval) means that a
majority of those voting in the election have voted in favor of the Amendment.
The City Council shall be deemed to have "approved" an Amendment if, prior to
July 1, 2003, the Council and the applicant for an Amendment concerning public
property currently designated as Recreation and Open Space have entered into a
written agreement providing for submission of the Amendment directly to the
voters after consideration of the Amendment and a fiscal impact report by the City
Council and Planning Commission at noticed public hearings as well as the
certification of an Environmental Impact Report prepared pursuant to CEQA and
the CEQA Guidelines. The approval of any agreement described in this
Ssul,section shall not be construed as a precedent for City Council approval of any
other agreement except to the extent of those agreements between the City and a
project proponent that are expressly authorized by Section 423.
D. Dwelling Unit. The term "dwelling unit" means "dwelling unit" as defined in
Section 20.03.030 of the Newport Beach Municipal Code (Code).
E. Entitlement. The word "entitlement" means the maximum amount of floor area or
dwelling units oiz ofa er 12Reas444:e of gensity or intensity —(suc' as I-etel ,..
marina slips) authorized by the General Plan for each allowed use on any property
and /or in any -Y^l area. The term entitlement when preceded by the
word "proposed" shall mean the entitlement requested by an Amendment. T4ie
Ent.tl� `.,t d r r a— , l,pll b
., . �.,, „ for w ^v Alli�a�� �::e�- �,rtpert�• er�e:�graF,}�� ::ea �,..�:a�
b; ;, .e the ,,., f �h . G ..,t Plan and the Entitlement TaLL . — Propose,
Ameldmernts for parcels or areas entitled for special uses that have not been
2
A -18
approved prior to July 1 2003 shall, when considered by the Planning Commission
and City Council and when submitted to the voters, describe the proposed
entitlement in both floor area and the appropriate unit of measurement utilized in
the Trip Rate Table.
F. Floor Area. The term "floor area" shall be defined as follows (taken from Section
20.03.030 of the Code - "Floor area, gross "):
"The total enclosed area of all floors of a building measured to the outside face of
the structural members in exterior walls, and including halls, stairways, elevator
shafts at each floor level, service and mechanical equipment rooms, and basement
or attic areas having a height of more than seven feet."
G. Non - residential Use jqaj � . The term non - residential use means any land use
other than a residential use that is authorized by the General Plan a —Pdeti
r t>,and that generates any peak hour trips. The term non-
residential use - 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 Zoning Code. For the purposes of these Guidelines, and
specifically the Trip Rate Table, the non - residential use categories are
"Commercial" (includes the General Plan designations of "Retail Service
Commercial ", "Administrative Professional Financial" and 'Recreational and
Marine Commercial) "Industrial" and "Public, Semi Public & Institutional." The
use categeries applicable to propeit=fer a geeffaphic l aie= piirsua„t_t.,_th
C�E I Plan. The Non Residential Use C tcrc geries are "Retail Sercice
F Rfnental
Open Space" The ter'rrr "een FeSj_jential Use rlse 'i el aes a "gFe p resides
49-41" and "limited cai-e residential use" as these term-.,, Hro de-"k-,d in the Code.
H. Peak Hour Trips. The term "peak hour trips" means the number of vehicle trips
equal to the applicable peak hour trip rate specified in the Trip Rate Table (Exhibit
B) for an\, thc— allowed use or and the proposed use as multiplied by the
entitlement-(using the appropriate quantity of the relevant "unit" of measurement
specified , °rte#R�Jin the Trip Rate Table). When these Guidelines require a
statement or calculation of peak hour trips, the morning and evening peak hour
trips shall each be provided and listed separately.
3
W.
Peak Hour Trip Rate. The term "peak hour trip rate" means the morning and
evening average weekday rate during the peak hour of the adjacent street traffic
for an allowed use and proposed use _( -as specified in the Trip Rate Table and as
derived from the ITE Manual. The peak hour trip rate for any non - residential uses
is are as specified in the Trip Rate Table. In the event the Trip Rate Table does not
contain a peak hour trip rate for an allowed use or a proposed use, the peak hour
trip rate shall be based on the morning and evening weekday average peak hour
trip rate for the most comparable land use in the Trip Rate Table. The most
comparable land use in the Trip Rate Table shall be determined by the City
Council based on recommendation of the Planning Director and the
Transportation and Development Services Manager (Traffic Engineer). The
morning and evening peak hour trip rates shall be listed separately.
J. Prior Amendment. The term "Prior Amendment" means an Amendment that:
1. ' f,,y" Affects property or an area within the same statistical area as an
Amendment that is being considered by the Planning Conunission and /or
City Council,,....],,..,, a t„ ,t„_,. ine if vet,,,. approN,al is reqiaired , „t
t„ c..?; and
2. wasWas approved by the City Council after December 15, 2000; and
3. wWas approved within ten years prior to the date the City Council
approved the Amendment being evaluated pursuant to Section 423 and
these Guidelines; and
4. wWas determined by the City Council, or by a final judgment of a court of
competent jurisdiction, not to require voter approval pursuant to Section
423 and these Guidelines.
K. Residential Us T. The term "residential use" Cmeans olq of foil
"tia' ategorie s in t'' General Plan entitlement that is stated in
terms of dwelling units. ; ?e 1 e _ �_ al L_Jse Qtegorie: ai-e
o, a ti i
irr U r t- t „i„ a„
r .prat: term k� ,4-
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. ;
L. Statistical Area. The term "statistical area" shall mean one of the statistical areas
identified (on page 89) in the Land Use Element of the General Plan approved by
the City Council on October 24, 1988 (Exhibit C). The term statistical area also
means any new statistical areas established for property annexed to the City
subsequent to October 24, 1988 and in such event Exhibit C shall be modified to
depict any new statistical area.
(3) METHODOLOGY
This Section describes the methodology and assumptions to be used for purposes of
calculating the peak hour trips, intensity (floor area) and density (dwelling units) of the
allowed uses and proposes{ uses. hefo4:p ..,a ..F,,,....., n..., 4_;_dI44en,
A. Peak Hour Trips. Section 423 requires "voter approval" of any "major amendment
to the Newport Beach General Plan." According to Section 423, a "'major
amendment' is one that significantly increases the maximum amount of traffic that
allowed uses could generate." The term "significantly increases" means "over 100
peak hour trips (traffic)." Measure S and Section 423 do not define the terms
"allowed uses" and "maximum amount of traffic" and they do not specify a
method of calculating any increase in traffic resulting from an Amendment. The
General Plan contains non - residential use categories that authorize a wide range of
land uses with variations in trip generation rates that make infeasible the use of the
highest peak hour trip rate of any allowed use. Accordingly, for property or
geographical areas for which entitlement is specified in terms of one or more with
non - residential use categonjes, the peak hour trip rate specified in the Trip Rate
Table represents a blend of the ITE trip rates for the most prevalent uses within
each category. The City Council has determined that the methodology and
assumptions in these Guidelines represent the most reasonable method of
determining the amount of traffic that is "authorized" under the existing General
Plan and the increase in peak hour trips resulting from an Amendment. The
following methodology shall be used for calculating the peak hour trips of an
allowed use and the increase, if any, in the peak hour trips resulting from a
proposed use if an Amendment is approved:
1. Allowed Use. The peak hour trips that an allowed use could generate
T�-e -44-4- *he shall be calculated by multiplying the
e €ntitlement . F " ' 11 d I i_° (, ;) for the propertv or a ^ -"' area
5
ME
by the morning and evening peak hour trip rate for theat allowed use as
specified in the Trip Rate Table. if the allowed use is designated in terms of
one or more non - residential use category, the peak hour trip rate from the
Trip Rate Table for the applicable non - residential use category shall be used.
If the allowed use or uses are designated in terms of one or more specific
land uses, the peak hour trip rate from the Trip Rate Table for each specific
use the Al-1,910.,e d- Us-, with the highest Peak u4e r Trip R ,t„ shall be used in
proportion to the amount of entitlement for each specific use.
2. Proposed Use. The peak hour trips that a proposed use could generate shall
be calculated using the methodoloJv specified in Subsection 1. 43,v
3. The increase, if any, in peak hour trips resulting from an Amendment shall
be calculated by subtracting the morning and evening peak hour trips,
determined pursuant to Section 1 4 th^ X11 a from the morning
and evening peak hour trips, respectively, determined pursuant to Section
2 ,r the nr 7 r l.. ,(s) a ,l -t:. . the la nr b
_ 'i, rn"
B. Intensity. The purpose of this Section is to assist the City Council, Planning
Commission, staff, the public and property owners in understanding and
calculating the "intensity of allowed uses" ( "allowed intensio, ") permitted by the
General Plan for any parcel or area that is designated, or proposed to be
designated for Non - Residential uses and the extent of any increase in allowed
intensity resulting from approval of an Amendment (proposed intensity). The
Land Use Element, with the exception of those special land uses described in
subsection 2, employs the following methods of specifyinag allo%ved intensity: (a)
allocatinZ a specific amount of Moor area (specific floor area allocation); (b)
assigning a tixed fluor area ratio (fixed floor area ratio) with the allowed intensity
calculated by multiplying the floor area ratio ( "FAR ") by the gross land area of the
parcel; (c) assiLming a variable floor area ratio from the "base FAR" of 0.5 to a
maximum FAR of 0.65, 0.75, 1.00. or 125 ( "maximum permitted FAR "), with the
6
that Proposed
b
Use
Table
It tnr
Proposed
Tin.,(..)
aFe
designated
as specifi Tip
in terms of
TSI .;idei,t;Rl
T *n
Categories
the
Peak i,Ie .r T, -ip P,t -, for
the .,r,
'V__L4.
. ; - 1eRt :..1 1-Ise
Cat,-.ery
from
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if
the Propeset?cse(s)
_—
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are
ll.,we
7
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with the 14ighest Peal-, Hour
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be
shall use
L4.
3. The increase, if any, in peak hour trips resulting from an Amendment shall
be calculated by subtracting the morning and evening peak hour trips,
determined pursuant to Section 1 4 th^ X11 a from the morning
and evening peak hour trips, respectively, determined pursuant to Section
2 ,r the nr 7 r l.. ,(s) a ,l -t:. . the la nr b
_ 'i, rn"
B. Intensity. The purpose of this Section is to assist the City Council, Planning
Commission, staff, the public and property owners in understanding and
calculating the "intensity of allowed uses" ( "allowed intensio, ") permitted by the
General Plan for any parcel or area that is designated, or proposed to be
designated for Non - Residential uses and the extent of any increase in allowed
intensity resulting from approval of an Amendment (proposed intensity). The
Land Use Element, with the exception of those special land uses described in
subsection 2, employs the following methods of specifyinag allo%ved intensity: (a)
allocatinZ a specific amount of Moor area (specific floor area allocation); (b)
assigning a tixed fluor area ratio (fixed floor area ratio) with the allowed intensity
calculated by multiplying the floor area ratio ( "FAR ") by the gross land area of the
parcel; (c) assiLming a variable floor area ratio from the "base FAR" of 0.5 to a
maximum FAR of 0.65, 0.75, 1.00. or 125 ( "maximum permitted FAR "), with the
6
I:6E:l
allowed intensity calculated by multiplving the applicable FAR by the gross land
area of the parcel.
1 Methodology The increase in intensity resulting from approval of an
Amendment shall be calculated by subtracting the allowed intensity from
the proposed intensity. Both existing and proposed intensity shall be
calculated in accordance with the methodology specified in this section.
(a) For a parcel or area that is not entitled or proposed to be entitled in
terms of a variable FAR the allowed intensity and proposed intensity shall
be� (i) the specific floor area allocation or (ii) the fixed FAR multiplied by
the gross land area.
(b) For an parcel or area that is entitled or is proposed to be entitled in terms
of a variable FAR the allowed intensity and proposed intensity shall be the
greater of (i) the "base FAR" (0.5) multiplied by the gross land area;
FAR of the existing land use if, and only if, that land use is an allowed use
pursuant to the General Plan or (iii) a floor area not greater than the
maximum permitted FAR if, and to the extent that all the conditions in
subsection (c) are satisfied.
(c) For a parcel or area for which some or all of the existing and /or
proposed entitlement is stated in terms of a variable FAR the allowed
intensity and the proposed intensity shall be the maximum permitted FAR
only if, and only to the extent that (i) the Amendment is conditioned on the
recordation of a covenant that restricts that portion of the property or area
for which the maximum permitted fluor area is applicable to those uses
which qualifv as "maximum FAR" land uses as that term is generally
described in the Land Use Element of the General Plan (lower traffic
generating uses) and as specified in the Zoning Code; (ii) that portion of the
properly that is subject to the covenant is developed and used exclusively
for maximum FAR uses (iii) the covenant includes an obligation on the part
of the owner to remove all floor area and otherwise fully comply with the
provisions of Zoning Cone it that portion of the property covered by the
covenant ceases to be used for maximum permitted FAR uses; and (iv) the
covenant requires the Cih to enforce the restrictions and specifies that the
cost of enforcement shall constitute a lien on the property unless paid
within thirty (30) days after owner receives a request for payment.
A -18
2. Special Uses. The Land Use Element has historically entitled land uses
on the basis of the most common "unit of measurement" utilized in the ITE
Manual for calculating the peak hour traffic generated by that land use. The
use of the appropriate "unit of measurement" ensures that the Land Use and
Circulation Elements are, as required by State law, properly correlated.
Floor area is the most common unit of measurement in the ITE Manual but
a different metric is used to measure eak hour trips in the case of certain
land uses such as hotels (rooms) and theatres (seats) because of those
metrics better reflect the traffic generation characteristics of those uses.
Consistent with the ITE Manual, the Citv has historicallv entitled some large
hotels in terms of rooms and two large theatres in terms of seats. The Cite
has, in the "Estimated Growth Tables" for those statistical areas in which
special uses are located, assignled approximately 1000 square feet of boor
area for each hotel room and 15 square feet for each theater seat.
3. Special Uses /Methodoloa. The "allowed intensity" of a parcel or area that
is entitled using hotel rooms or theatre seats as a unit of measurement shall
be calculated on the basis of 1.000 square feet per hotel room or 15 square
feet per theater seat. The "allowed intensity" of a parcel or area that is
entitled in a unit of measurement other than floor area, hotel rooms or
theater seats shall be calculated on the basis of the greater of the floor area
specified in the Estimated Growth Table for the Statistical Area in which the
parcel or area is located or the amount of floor area of the allowed uses
existing on the parcel at the time the application for the Amendment is filed.
C. Dwelling Units. The dwelling units authorized in the General Plan for property or
an area before and after an 44--Amendment shall be determined on the basis of the
maximum number of Dwelling Units allowed on °^ the property or
^area before and after the Amendment.
D. Trip Rate Table. The Trip Rate Table contains the morning and evening average
weekday peak hour trip rate for each land use specified in the ITE Manual. The
information in the Trip Rate Table is based on the vehicle trip rates and related
data in the ITE Manual. The term "unit" in the Trip Rate Table refers to the "unit
of measurement" or "independent variable" that was used in the trip generation
studies that form the basis of the trip rates reflected in the ITE Manual.
E. Entitlement Table.
a pte a the 4 r. ,"; i,., , ," H1a , The Entitlement Table shall ai�
8
describe, by Statistical Area, the peak hour trip, dwelling unit and floor area
increases, if any, of each Amendment approved by the City Council subsequent to
December 15, 2000. The Entitlement Table shall not include any Amendment
approved by i
submtted to the voters r ^* to S @Gtien42-q and an Amendment
shall be removed from the Entitlement Table ten (10) years after approval by the
City Council. dk�ption'
F. Multiple Amendments. The City Council may have occasion to approve more
than one Amendment affecting the same Statistical Area at the same meeting. In
such event, the Amendments shall be deemed approved in the following order:
1. The Amendment(s) with the earliest date(s) of initiation or application (for
example GPA 2001 -001) shall be deemed approved before an Amendment
with a later date of initiation or application (for example 2002 -002).
2. In the event that more than one Amendment was initiated or applied for at
the same time, the Amendments shall be deemed approved in alphabetiEal
numerical order (for example GPA 2001 -001 would be deemed approved
before GPA 2001 -002).
G. Change in Land Use Category. In the case of an Amendment that proposes a
change in land use from non - residential to residential or vice versa no floor area
credit shall be given for allowed density (dwelling units) and no density credit
shall be given for allowed intensity (floor area). For example, in the case of a
Residential parcel with an allowed density of 20 dwelling units the allowed
intensity is zero square feet of floor area and in the case of a Non - residential parcel
with an allowed intensity of 100,000 square feet, the allowed densitv is zero
dwelling units However, peak hour trip credit shall be in accordance with the
entitlement multiplied by the appropriate peak hour trip rate.
4. PROCEDURES
This Section describes procedures to be followed prior to City Council approval of an
Amendment and the submittal of that Amendment to the voters. <h,- 4+404'4._a*iO4, tE) be
9
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9
A. Mandatory Procedures
The City Council shall not approve an Amendment unless and until the Planning
Commission and City Council have first conducted noticed public hearings as
required by law and prepared and certified any environmental document that is
required by the California Environmental Quality Act (CEQA) and the CEQA
Guidelines.
B. 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 the- information relevant to whether the
Amendment, if approved, would require voter approval pursuant to Section 423.
The reports shall include the following information:
1. In the case of an Amendment where the existing and /or proposed use is a
rResidential uJUse, 4i:nendment, the number of dwelling units allowed by the
General Plan before and or after the Amendment,
2. In the case of an Amendment where the existing and /or proposed use is a non-
residential ubsez ^:n gendme t, the amount of floor area (and relevant unit of
measurement from the Trip Rate Table if different than floor area) - allowed by the
General Plan before ands after the Amendment;
3. In all cases, the number of peak hour trips allowed by the General Plan before
and after the Amendment;
4. A table that identifies each Pprior Amendment including any increase in Floor
Area, Dwelling Units and or Peak Hour Trips, the date on which each Prior
Amendment was approved;
5. A table that adds eighty percent (80 %) of the peak hour trips, dwelling units and
floor area increases resulting from Prior Amendments to the peak hour trips
and /or increases in - dwelling units and /or floor area (as appropriate) resulting
from tithe Amendment under consideration.
6. Information about the Amendment, anv associated project or land use approval
and the environmental analysis that would help the Planninj�_YCommission and
10
FM
Cite Council make informed recommendations or decisions on the Amendment
and help the public develop informed opinions about the Amendment.
C. City Council Review. The City Council SLAII th-R Filial n,,ff,-t ,r,
determine at the a- noticed public hearing at which anv Amendment is approved
if,, based on the Final T' port, the administrative record for the Amendment
including an_v,d testimony presented at that hearing, the Amendment requires
voter approval pursuant to Section 423. The City Council shall submit an the
Amendment to the voters if:
The Amendment t to a N j i T T authorizes an increase
in floor a -Area for the ent4e property or mical 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 R si+,..t, l r se and authorizes an increase in
the number of clDwelling tAinits for the ei4tire- property or -^ '
area that is the subject of the Amendment that exceeds one hundred (100)
clDwelling uF3nits when compared to the General Plan before approval of
the Amendment; or
the Amendment modifies the allowed use(s) of t.-pe t of
R";idl-4414a —Use T T '^rt'al Use Two the property or
geographical area that is the subject of the Amendment such that the
pProposed u14se(s) as approved 1? - 44e Am „, a nent- generate(s) more than
At one hundred and one (40' ` more morning or evening peak hour
trips than generated by 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 Pprior Aamendments (see definition in Section (2)1)
exceeds one or more of the voter approval thresholds in Section 423 as
specified in subsection 1, 2 or 3.
€D. Calling an Election. In the event the City Council determines that the Amendment
requires voter approval, the Citv Council shall, at the noticed public hearing at
which the Amendment was approved or a subsequent noticed public hearing heft
no more than sixty (60) days after making the determination, adopt a resolution
calling an election on the Amendment. The City Council shall schedule the election
II
on the Amendment at the next regular municipal election (as specified by the City
Charter) or at a special election if the City and the proponent of the Amendment
have -- entered into a written agreement with the Qt� to share the costs of the
special election. The City Council shall at the time the election is called, direct the
City Attorney to prepare an impartial analvsis of the Amendment. The impartial
analysis shall contain information about the Amendment, any related project or
land use approval, and the environmental analysis conducted of the Amendment
that will help the electorate make an informed decision on the Amendment.
E. Exclusive i4tethod
The City Council has determined that, except for anv agreement referenced in
subsection and in the absence of a mandatory duty arising from an initiative
petition, referendum petition, court order or other mandatory legal obligation,
Section 123 and the procedures outlined in these Guidelines represent the sole and
exclusive method by which the Cit-y Council considers, approves and submits for
voter approval an Amendment that is subject to Section 423. The City Council has
also determined that nothing in Section 123 prevents the Citv Council from
submitting any matter other than an Amendment to the voters as an advisory
measure. T
Adopted - March 27, 2001
12
RIMP
14
MEASURE S GUIDELINES
1 (1) INTRODUCTION
".111Z
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 City Council ni 1 oviRte from a sti -i t application
I .. the atfirmatiVe
n
ya at least, ('' eil niembers, that a .t..; -4 ,-.I: .. x'.. wRuid 4,• to t4i,
(2) DEFINITIONS
The definitions and terms in this section are intended to be consistent with the purpose
and intent of Measure S. Certain definitions and terms are intended to generally conform
to the definitions in, and terminology of, the most current edition of "Trip Generation," a
multi- volume publication of the Institute of Transportation Engineers (ITE Manual). The
ITE Manual is the primary reference used by transportation professionals seeking trip
generation information. Measure S requires use of the ITE Manual as a basis for
calculating the Peak Hour Trips generated by a use permitted by anv Amendment.
A. Allowed and Proposed Use . The term "allowed use" means any the-land use(s)
permitted by the General Plan on property or in an -dal area_ An
allowed use may be l:; he - ;4.• ,a ti , n n a r r i
.R�,r- defined iank =in
terms of a residential use Gategort- and /or a non - residential t,}fuse C—a er•�,-
generally applicable to an area or property or a particular land use applicable to
specific parcel. A "proposed use" iti a land use that would be permitted after an
Amendment is ap? lrot ed. n
'i."�c i;:�raFlh3Ecl( i}rt'a. ire cL. tii,�e c__.
"_e cTSi�e'1 Use(.-') are 4-efined -and
precise and . I U-1 }' m oeific to that prepertv or
h oy°
h ,l
1
W.
B. Amendment. The word "Amendment" means any proposed amendment of the
General Plan that is first considered and /or approved by the City Council after
subsequent to December 15, 2000 and; that increases the number of peak hour
trips, dwelling units or floor area when compared to the General Plan prior to
approval. In all cases an Amendment shall state the proposed entitlement in
donsity and /or intensity and, in the case of intensity, the category of non-
residential use.
C. AA2proval. Subject only to the exception specified in the third sentence of this
Section, e••" the word "'approve" (and any variations such as approved
or approval) means, in the context of the City Council's decision on an
Amendment, that four members of the City Council have, after the City has
complied with the "mandatory procedures" described in Section (4)(A) voted
affirmatively to adopt a resolution that contains the text of a proposed
Amendment. that would, assuming voter approval, i„ : Fte a into the G l
Plan. -- In the context of the voter's decision on an Amendment, the word
'approve" (and any variations such as approved or approval) means that a
majority of those voting in the election have voted in favor of the Amendment.
The City Council shall be deemed to have "approved" an Amendment if, prior to
July 1, 2003, the Council and the applicant for an Amendment concerning public
property currently designated as Recreation and Open Space have entered into a
written agreement providing for submission of the Amendment directly to the
voters after consideration of the Amendment and a fiscal impact report by the City
Council and Planning Commission at noticed public hearings as well as the
certification of an Em ironmental Impact Report prepared pursuant to CEOA and
the CEQA Guidelines. The approval of any agreement described in this
Ss�section shall not be construed as a precedent for City Council approval of any
other agreement except to the extent of those agreements between the City and a
project proLionent that are expressly authorized by Section 423.
D. Dwelling Unit. The term "dwelling unit" means "dwelling unit" as defined in
Section 20.03.030 of the Newport Beach Municipal Code (Code).
E. Entitlement. The word "entitlement" means the maximum amount of floor area or
dwelling units oi— ineasure of den5itv or I.
authorized by the General Plan for each allowed use on any property
and /or in any geci -- –area. The term entitlement when preceded by the
word "proposed" shall mean the entitlement requested by an Amendment. 41e
F tjt1eRr , r n n, affi, 'shall i
" >
I„, , a an the 4 .,.4 of 4i, . nl , { 4i,, al _ Proposed
Amendments for parcels or areas entitled for special uses that have not been
aLipruved prior to July 1, 2003 shall, when considered by the Planning Conunission
and Cite Council and when submitted to the voters, describe the proposed
entitlement in both fluor area and the ap�iropriate unit of measurement utilized in
the Trip Rate Table.
F. Floor Area. The term "floor area" shall be defined as follows (taken from Section
20.03.030 of the Code - "Floor area, gross "):
"The total enclosed area of all floors of a building measured to the outside face of
the structural members in exterior walls, and including halls, stairways, elevator
shafts at each floor level, service and mechanical equipment rooms, and basement
or attic areas having a height of more than seven feet."
G. Non - residential Use . The term non - residential use means any land use
other than a residential use that is authorized by the General Plan a—Nell
C-at-e,= and that generates any peak hour trips. The term non-
residential use - H c 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 Zoning Code. For the purposes of these Guidelines, and
specifically the Trip Rate Tablc, the non - residential use categories are
" Commercial" (includes the General Plan designations of "Retail Service
Coaunercial ", "Administrative Professional Financial' and "Recreational and
Marine Commercial), "Industrial" and "Public, Semi Public & Institutional." TIhe
og he ...
use catego rie,;- F'F'l <zrbl� -tfr.... ?rte} rH -, _ ph ,1 pursua"t N�
Gel, i -I he ni,. CatL goi -ie are "Ret.,;l z.
'Atlit� Profe: ioi+r'a irinti -" -t iiicirrc rri- Cam^"" ciaP,
- ntcc' -: ciin<,r'ral - -and Tn, o r ,l"
r a. a4;
n- vesidential 6!;e also ineludes "group i „4;.,1
„ ,• rricc�rcai- ,-, r: .,� .rt"�i -�r,� 41, 4,. -.,,n ., 7 .C;.,,..] ., 41, , c-,.7 ,
H. Peak Hour Trips. The term "peak hour trips" means the number of vehicle trips
equal to the applicable peak hour trip rate specified in the Trip Rate Table (Exhibit
B) for aunt- the allowed use or a i4-t4eproposed use as- multiplied by the
entitlement_ (using the appropriate quantity of the relevant "unit" of measurement
specified aar d in the Trip Rate Table). When these Guidelines require a
3
M
statement or calculation of peak hour trips, the morning and evening peak hour
trips shall each be provided and listed separately.
I. Peak Hour Trip Rate. The term "peak hour trip rate" means the morning and
evening average weekday rate during the peak hour of the adjacent street traffic
for an allowed use and proposed use_( -as specified in the Trip Rate Table and as
derived from the ITE Manual. The peak hour trip rate for any non - residential uses
is ai-e as specified in the Trip Rate Table. In the event the Trip Rate Table does not
contain a peak hour trip rate for an allowed use or a proposed use, the peak hour
trip rate shall be based on the morning and evening weekday average peak hour
trip rate for the most comparable land use in the Trip Rate Table. The most
comparable land use in the Trip Rate Table shall be determined by the City
Council based on recommendation of the Planning Director and the
Transportation and Development Services Manager (Traffic Engineer). The
morning and evening peak hour trip rates shall be listed separately.
J. Prior Amendment. The term "Prior Amendment" means an Amendment that:
1. atfettsAffects property or an area within the same statistical area as an
Amendment that is being considered by the Planning Commission and /or
City Councilevaluated to deterffiiiie if ,
to S e ;• and
2. wx:Was approved by the City Council after December 15, 2000; and
3. wWas approved within ten years prior to the date the City Council
approved the Amendment being evaluated pursuant to Section 423 and
these Guidelines; and
4. wWas determined by the City Council, or by a final judgment of a court of
competent jurisdiction, not to require voter approval pursuant to Section
423 and these Guidelines.
K. Residential Use . The term "residential use” Cmeans
one of iaui-
i-e,,i�wt East °f a c ^' �General Plan entitlement that is stated in
4
Tlie
�e..,, ,.,,,s .
] 7'4 ..;hill
"'��..
1�
/.i a i,..
Hie
;3
„AFT.
K. Residential Use . The term "residential use” Cmeans
one of iaui-
i-e,,i�wt East °f a c ^' �General Plan entitlement that is stated in
4
A -18
terms of dwelling units. Ti„ R ..; d,., +;,i Use ..
Detaehed„ , Attached", tw Familv Resit4ential", "Matti i, :i.
R- -' TI t,, n 7 ntial Use ,t ,,. -1 .t mil, 1, group
h„
as these teFins aFe defined in th
��
L. Statistical Area. The term "statistical area" shall mean one of the statistical areas
identified (on page 89) in the Land Use Element of the General Plan approved by
the City Council on October 24, 1988 (Exhibit C). The term statistical area also
means any new statistical area(s) established for property annexed to the City
subsequent to October 24, 1988 and in such event Exhibit C shall be modified to
depict any new statistical area(s).
(3) METHODOLOGY
This Section describes the methodology and assumptions to be used for purposes of
calculating the maximum peak hour trips, intensity (floor area) and density (dwelling
units) of tle-allowed uses and proposed uses. 1,4(44-e , ^' aft-1-1-4- ^. ,. '. .,,t
A. Peak Hour Trips. Section 423 requires "voter approval" of any "major amendment
to the Newport Beach General Plan." According to Section 423, a "'major
amendment' is one that significantly increases the maximum amount of traffic that
allowed uses could generate." The term "significantly increases" means "over 100
peak hour trips (traffic)." Measure S and Section 423 do not define the terms
"allowed uses" and "maximum amount of traffic" and they do not specify a
method of calculating any increase in the maximum traffic resulting from an
Amendment. The General Plan contains non - residential use categories that
authorize a wide range of land uses with variations in trip generation rates that
make infeasible the use of the highest peak hour trip rate of any allowed use.
Accordingly, for property or geographical areas for which entitlement is specified
in terms of one or more with -non- residential use categor\ ies, the peak hour trip
rate specified in the Trip Rate: `I able represents a blend of the ITE trip rates for the
most prevalent uses within each category. The City Council has determined that
the methodology and assumptions in these Guidelines represent the most
reasonable method of determining the amount of traffic that is allowed
llauthor-ized" under the existing General Plan and the increase in peak hour trips
resulting from an Amendment. The following methodology shall be used for
calculating the peak hour trips of an allowed use and the increase, if any, in the
peak hour trips resulting from a proposed use if an Amendment is approved:
61
M
1. Allowed Use. The peak hour trips that an allowed use could generate
^^'' ,f •« �h ^ shall be calculated by multiplying the
e €ntitlement of eaeh Alloweei Use(s) for the property or ,gal area
by the morning and evening peak hour trip rate for theat allowed use as
specified in the Trip Rate Table. If the allowed use is designated in terms of
one or more non - residential use category, the peak hour trip rate from the
Trip Rate Table for the applicable non - residential use category shall be used.
If the allowed use or uses are designated in terms of one or more specific
land uses, the peak hour trip rate from the Trip Rate Table for each specific
use shall be used in
proportion to the amount of entitlement for each specific use.
2. Proposed Use. The peak hour trips that a proposed use could generate shall
be calculated usinLy the metbodoloL -v specified in Subsection 1. bN-
3. The increase, if any, in peak hour trips resulting from an Amendment shall
be calculated by subtracting the morning and evening peak hour trips,
determined pursuant to Section 1 kif the allowed a from the morning
and evening peak hour trips, respectively, determined pursuant to Section
.,,•.... J I Js) -„ J -elect:., the I,,. t,« number,
B. lntonsity. Purpose. -Ihe purpose of this Section is to assist the City Council,
Planning Commission, staff, the public and property owners in understanding; and
calculating the "intensitt of allmved uses" (allowed intensity) permitted bt the
General Plan for any parcel or area that is designated, or proposed to be
designated for Noon- Residential Cases and the allowed intensity resulting from
approval of an Amendment (proposed intensity). The Land Use Element, with the
exception of those special land uses described in subsection 2, employs the
hollowing methods of specifying allowed intensity: (a) allocating a specific amount
of floor area specific fluor area allocation); (b) assigning a fixed floor area ratio
(fixed floor area ratio) with the allowed intensity calculated bt nniltiplving the
floor area ratio ( "FAR ") bt the <_,ross land area of the oarccL (c) assiLminu a tariable
s
that n,. r ;
t
a
r.. r
o f _,
,-
the Peak
Hour Trip
R#e
414- Hie Non
Use C-_I�tegory
.
fFem the Trip R#,
Tahle
slqifl be
roside]#W
if the Proposed
1��se(s)
in terms
speeifie
land
used.
the Peak Hour
are
Trip Rate for the
t4esignated
Allowed Use ., thµ„
of
highest
Peaku,
uses,
3. The increase, if any, in peak hour trips resulting from an Amendment shall
be calculated by subtracting the morning and evening peak hour trips,
determined pursuant to Section 1 kif the allowed a from the morning
and evening peak hour trips, respectively, determined pursuant to Section
.,,•.... J I Js) -„ J -elect:., the I,,. t,« number,
B. lntonsity. Purpose. -Ihe purpose of this Section is to assist the City Council,
Planning Commission, staff, the public and property owners in understanding; and
calculating the "intensitt of allmved uses" (allowed intensity) permitted bt the
General Plan for any parcel or area that is designated, or proposed to be
designated for Noon- Residential Cases and the allowed intensity resulting from
approval of an Amendment (proposed intensity). The Land Use Element, with the
exception of those special land uses described in subsection 2, employs the
hollowing methods of specifying allowed intensity: (a) allocating a specific amount
of floor area specific fluor area allocation); (b) assigning a fixed floor area ratio
(fixed floor area ratio) with the allowed intensity calculated bt nniltiplving the
floor area ratio ( "FAR ") bt the <_,ross land area of the oarccL (c) assiLminu a tariable
s
ml
floor area ratio from the "base FAR" of 0.5 to a maximum FAR of 0.05, 0.75, 1.00, or
1.35 („maximum permitted FAR "), with the allowed intensity- calculated by
multiplying the applicable FAR by the gross land area of the parcel.
I. Nlethodologv. The increase in intensity resulting from approval of an
Amendment shall be calculated b% subtracting the allowed intensity from
the proposed intensity. Both existing and proposed intensity shall be
calculated in accordance with the methodology specified in this section.
(a) For a parcel or area that is not entitled or proposed to be entitled in
terms of a variable FAR, the allowed intensity and proposed intensity shall
be; (i) the specific floor area allocation; or (ii) the fixed FAR multiplied by
the gross land area.
(b) For an parcel or area that is entitled or is proposed to be entitled in terms
of a variable FAR, the allowed intensity and proposed intensity' shall be the
greater of; (i) the "lease FAR" (0.5) multiplied by the gross land area; (ii) the
FAR of the existing land use if, and onh' if, that land use is an allowed use
pursuant to the General Plan; or (iii) a floor area not greater than the
maximum permitted FAR if, and to the extent that, all the conditions in
subsection (_e) are satisfied.
(c ) For a parcel or area for which some or all of the existing and /or
proposed entitlement is stated in terms of a Variable FAR the allowed
intensity and the proposed intensity shall be the maximum permitted FAR
only if, and only to the extent, that; U the Amendment is conditioned on the
recordation of a covenant that restricts that portion of the property or area
for which the maxinumi permitted floor area is applicable to those uses
which qualify as "maximum FAR" land uses as that term is generally
described in the Land Use Flement of the General Plan (lower traffic
generating uses) and as specified in the Zoning Code; (ii) that portion of the
property that is subject to the covenant is developed and used exclusivek,
for maximum FAR uses; (iii) the covenant includes an obligation on the part
of the owner to remove all floor area and otherwise full' comply with the
provisions of Zoning Code if that portion of the property covered lip' the
covenant ceases to be used for maximum permitted FAR uses; and (iv) the
Covenant reQUires the City to enforce the restrictions and specifies that the
cost of enforcement shall constitute a lien on the property unless paid
within thirty (30) days after ova` or rccci\ 'cs a roguest for payment.
W]
2. Special Gses. The Land Use Element has historically entitled land uses
on the basis of the most common "unit of measurement" utilized in the ITE
Manual for calculating the peak hour traffic generated by that lased use. The
use of the alipropriate "unit of measurement" ensures that the Land Use and
Circulation Elements are, as required by State lanai, �iroperly correlated.
Fluor area is the most conunon unit of measurement in the 1TF Manual but
a different metric is used to measure peak hour trips in the case of certain
land uses such as hotels (rooms) and theatres (seats) Because of those
metrics better reflect the traffic generation characteristics of those uses.
Consistent with the ITE Manual, the Cite has historically entitled some large
hotels in terns of rooms and t�vo large theatres in terms of seats. The City
has in the "Estimated Growth fables" for those statistical areas in v\,hich
special uses are located, assigned approximately 1000 square feet of floor
area for each hotel room and 15 square feet for each theater seat.
3. Special Cases / Methodolcig� . 'The "allo\,\!ed intensity` of a parcel or area that
is entitled using hotel rooms or theater seats as a unit of measurement shall
Lie calculated on the basis of 1000 square feet per hotel rocun or 13 square
feet per theater seat. Tine "allowed intensity" of a parcel or area that is
entitled in a Unit of measurement other than floor area, hotel rooms or
theater seats shall Lie calculated on the basis of the greater of the floor area
specified in the Estimated Growth fable for the Statistical Area in which the
parcel or area is located or the amount of floor area of the allm\'ed uses
existin6�on the parcel at the time the application for the Amendment is filed.
C. Dwelling Units. The dwelling units authorized in the General Plan for property or
an area before and after an the- Amendment shall be determined on the basis of the
maximum number of Dwelling Units allorced on spetified the property or
geogEaphieal area before and after the Amendment.
D. Trip Rate Table. The Trip Rate Table contains the morning and evening average
weekday peak hour trip rate for each land use specified in the ITE Manual. The
information in the Trip Rate Table is based on the vehicle trip rates and related
data in the ITE Manual. The term "unit" in the Trip Rate Table refers to the "unit
of measurement" or "independent variable" that was used in the trip generation
studies that form the basis of the trip rates reflected in the ITE Manual.
E. Entitlement Table. The eatitlernent L . rt at-ea to an
4 44�'-�R J 44') Skall be laaSet,4 OF) tlq'-' ti-I"t Of Hqll? Guffent Geneyal Plan and, when
ept , a the ` F -f aksle —The Entitlement Table shall
8
A -18
describe, by Statistical Area, the peak hour trip, dwelling unit and floor area
increases, if any, of each Amendment approved by the City Council subsequent to
December 15, 2000. The Entitlement Table shall not include any Amendment
approved by _ an to the voters puFf uant t o S cti oz 12; and an Amendment
shall be removed from the Entitlement Table ten (10) years after app rov I by the
Citv Council. dopb(ln
F. Multiple Amendments. The City Council may have occasion to approve more
than one Amendment affecting the same Statistical Area at the same meeting. In
such event, the Amendments shall be deemed approved in the following order:
1. The Amendment(s) with the earliest date(s) of initiation or application (for
example GPA 2001 -001) shall be deemed approved before an Amendment
with a later date of initiation or application (for example 2002 -002).
2. In the event that more than one Amendment was initiated or applied for at
the same time, the Amendments shall be deemed approved in alphabetieal
numerical order (for example GPA 2001 -001 would be deemed approved
before GPA 2001 -002).
G. Change in Land Use Category. In the case of an Amendment that proposes a
change in land use from non - residential to residential or vice versa no floor area
credit shall be given for allowed density (dwelling units) and no density credit
shall be given for allowed intensity floor area). For example, in the case of a
Residential parcel with an allowed densitt of 20 dwelling units the allowed
intensity' is zero square feet of floor area and in the case of a Non - residential parcel
kvith an allowed intensity' of 100,000 square feet, the allowed density is zero
dwelling units. However, peak hour trip credit shall be in accordance with the
entitlement multiplied by the appropriate peak hour trip rate.
-I. PROCEDURES
This Section describes procedures to be followed prior to City Council approval of an
Amendment and the submittal of that Amendment to the � uters. the information t^ ..
- . r fne a . Tl C--' 1 a th" be provided
fter- an Ameneiment is appfaveJ to determine if N,
l ; by S ction 122-
0
EA O]
A. Mandatory Procedures
The City Council shall not approve an Amendment unless and until the Planning
Commission and City Council have first conducted noticed public hearings as
required by law and prepared and certified any environmental document that is
required by the California Environmental Quality Act (CEQA) and the CEQA
Guidelines.
B. 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 tl e- information relevant to whether the
Amendment, if approved, would require voter approval pursuant to Section 423.
The reports shall include the following information:
1. In the case of an Amendment where the existing and /or proposed use is a
rResidential uUse, —Ana the number of dwelling units allowed by the
General Plan before and or after the Amendment;
2. In the case of an Amendment cvllere the existing; and /or proposed use is a non-
residential uUse, ' neat -the amount of floor area (and relevant unit of
measurement from this Trip Rate Table if different than floor area) - allowed by the
General Plan before and or after the Amendment;
3. In all cases, the number of peak hour trips allowed by the General Plan before
and after the Amendment;
4. A table that identifies each Pprior Amendment (see definition in Section (2)1)
including any increase in Floor Area, Dwelling Units and/or Peak Hour Trips, the
date on which each Prior Amendment was approved;
5. A table that adds eighty percent (80 %) of the increases in peak hour trips,
dwelling units and floor area iT resulting from Prior Amendments jsee
definition in Section (2)1) to the increases in peak hour trips,— dwelling units
and /or floor area (as appropriate) resulting from to —the Amendment under
consideration.
h. The Entitlement fable referenced in Section (,)E.
10
ME
7. Information about the Amendment Inv associated project or land use approval
and the environmental analysis that would help the Planning Commission and
Citv Council make informed recommendations or decisions on the Amendment
and hel) the public develop informed ol2inioii.s about the Amendment
C. Citv Council Review. The City Council shall re nv " , r.;. „'
I .. Report and
determine at the a- noticed public hearing at %vilich any Anaenclment is approved
if,, based on the tfthe administrative record for the Amendment
including any °4 testimony presented at that hearing, the Amendment requires
voter approval pursuant to Section 423. The City Council shall submit an the
Amendment to the voters if:
1. The Amendment Pc'r � l Use authorizes an increase
in t €loor aArea for the me property or geogra�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 Pesid —H ,l ' qe �r i authorizes an increase in
the number of dDwelling u9nits for the entire property or ageographieal
area that is the subject of the Amendment that exceeds one hundred (100)
LiPwelling uUnits when compared to the General Plan before approval of
the Amendment; or
3. The Amendment modifies the allowed use(s) of tvpe or amount ()
p•_:',tc�zc.c-ntial U- e—or Dien:e.:;idential Use - -s ter the property or
geographical area that is the subject of the Amendment such that the
pProposed ut=lse(s) as .,r:r. Amendment generates) morn than
at- lea':t-one hundred and )ii ' (401) +iiore-morning or evening peak hour
trips than are generated b%- 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 Eprior Aamendments (see definition in Section (2)1)
exceeds one or more of the voter approval thresholds in Section 423 as
specified in subsection 1, 2 or 3.
11
W.
ER Calling an Election. In the event the City Council determines that the Amendment
requires voter approval, the City Council shall, at the noticed public hearing at
which the Amendment was approved or a subsequent noticed public hearing held
no more than sixty (60) days after making the determination, 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 City and the proponent of the Amendment
have s- entered into a written agreement with 'to share the costs of the
special election._ The City Council shall, at the time the election is called, direct the
City Attornev to prepare an impartial analysis of the Amendment. The impartial
analysis shall contain information about the Amendment, any related project or
land use approval, and the environmental anak'sis conducted of the Amendment
that will help the electorate make an informed decision on the Amendment.
E. Exclusive :Method
The City Council has determined that, except for any agreement referenced in
subsection E and in the absence of a mandatory duh, arising from an initiative
petition, referendum petition, court order or other mandatory legal obligation
Section 123 and the procedures outlined in these Guidelines represent the sole and
U�xclusiye method by which the Cih� Council considers, approves and submits for
voter approval an Amendment that is subject to Section 423. The Citv Council has
also determined that nothing in Section 423 prevents the City Council from
submitting any matter other than an Anurndmelt to the voters as an advisory
measure.
Adopted - March 27, 2001
12
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14
1]
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
COUNCIL A 8 ENOA
a� 6 04-
Agenda Item No. 20
April 27, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Bumham, City Attorney
644 -3131, rburnham(cDcity.newport- beach.ca.us
SUBJECT: Measure S Guidelines
Proposed Amendments
ISSUE:
Should the City Council amend current Measure S Guidelines to streamline and clarify
the procedures for evaluating Land Use Element amendments that have the potential to
increase "allowed intensity."
RECOMMENDATION:
If desired, adopt some or all of the proposed amendments to the Measure S Guidelines
that accompany this memo (Exhibit A through F) or direct staff to revise some or all of
the proposed amendments and re- submit them for City Council consideration.
INTRODUCTION:
The voters approved Measure S in November 2000. 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 any Amendment that "significantly" increases the "maximum
amount of traffic that allowed uses could generate or ... allowed density or intensity."
(underlining added) An amendment "significantly increases" intensity if, individually or
when added to 80% of the intensity added by other amendments within the same
statistical area adopted by the City Council within the previous 10 years, it adds more
than 40,000 square feet "of floor area ". 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 and comments from the public, could be •
appropriate subjects for modification. On March 23, 2004, the City Council considered
six possible modifications and directed staff to revise the language and resubmit
proposed amendments at the April 27, 2004 meeting. This memo attempts to
summarize the direction given by the City Council, highlight additional issues that have
come to light during the drafting process and transmit proposed amendments.
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. This language could, in the event of a legal
challenge, be considered a "savings clause" and we are recommending minor
modifications that, in our opinion, more accurately explain the concept (Exhibit A).
• "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 modifications (Exhibit B) that
remove excess language should the City Council wish to streamline this provision.
• "Approval' City Council "approval' of an Amendment that is subject to the
voter approval requirements of Section 423 does not adopt the Amendment — rather
the action means the electorate has the opportunity to vote on the Amendment. We
have prepared proposed Guideline provisions (Exhibit C) that explain the
significance of City Council approval, confirm that the Amendment will be processed
according to our long- standing practice and clarify that any related land use action
such as a zoning amendment does not become effective unless the Amendment is
approved by the voters. The Guidelines do not currently address the approval issue
and Exhibit C would, if adopted, be inconsistent with the agreement between the
City and Sutherland/Talla that provides the City Council will submit the Marinapark
Resort project to the voters without first voting to approve it.
• "Non- Residential Use Category" We have prepared amendments (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" Previous reports had focused on issues related
to how the City should deal with non - residential land uses — such as large hotels
(rooms) and theaters (seats) — that were entitled in terms other than floor area.
Section 423 requires voter approval of Amendments that significantly increase the
"intensity (floor area) of allowed uses" so the determination of allowed intensity is
critical to calculation of any increase proposed by an Amendment. In drafting
proposed revisions, staff began to realize that the calculation of allowed intensity
was somewhat complicated when Amendments involved variable floor area ratios. •
The proposed amendments (Exhibit E) address both issues.
A
The Land Use Element, with the exception of land uses like hotels and theatres,
employs the three methods of specifying allowed intensity. Some parcels or
geographic areas are allocated a specific amount of floor area (specific floor area
allocation), some are assigning a fixed floor area ratio (fixed floor area ratio) and
some are assigned a variable floor area ration. The allowed intensity for parcels or
geographic areas with variable or fixed floor area rations are calculated by
multiplying the floor area ratio by the gross land area of the parcel.
The calculation of allowed and proposed intensity is easy with specific floor area
allocations and fixed floor area ratios but can be more complicated with variable floor
area ratios. The Land Use Element embraces the concept of a variable floor area
ratio — with lower floor area ratios for high traffic generating uses and higher floor
area ratios for lower traffic generating uses. In most cases, staff will use the "base
FAR" as the basis for calculating allowed and proposed intensity of Amendments
involving variable floor area ratios. However, we have drafted provisions in Exhibit E
that allow for the use of a "maximum FAR" if the Amendment contains assurances
that the property will be limited to maximum FAR uses.
Staff has also drafted two alternatives for addressing the problem inherent in
determining existing intensity for those uses — such as large hotels and one large
theater - that are entitled in terms rooms or seats. Alternative A in Exhibit D
proposes that existing intensity would be the greater of the floor area specified in the
. Estimated Growth Table or the floor area on the ground. Alternative B proposes
only use of the floor area in the Estimated Growth Table. As you know, the City has
assigned approximately 1000 square feet of floor area for each hotel room and 15
square feet for each theater seat in the Estimated Growth Table. Both Alternatives
require Amendments not yet approved to be stated in terms of floor area and the unit
of measurement specified in the ITE Manual.
• "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. 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. Accordingly, we have prepared amended Guidelines that eliminate
unnecessary paperwork and delay (Exhibit F).
Guideline amendments require the affirmative vote of six members of the City Council
and a would encourage the City Council to consider each of the proposed
ame dments as the subject of individual motions and votes. Staff doesn't believe that
C A or the CEQA Guidelines require an environmental document for this action.
%Robert Burnham
• City Attorney
LJ
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 City Council may depart ,'-, `#rfrom a strict application of these Guidelines
upon a determination, approved by the affirmative vote of at
least six Council members, that sack deoa rture a ;:cam catiio -iS necessary to
r .r
t'21SL ?re tt1t}'e' the l..i!:V COi111C ?l''.i dZ65i0% or dctf'i2Tiliii1i1 {i11. 1S COI-Ls-is-ten'[ FVltil
the express purpose of Measure S.
n
11
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.
11
0
0
EXHIBIT C
C. Approval.
In the context of an Amendment that requires voter approval pursuant to Section
423, City Council "approval" does not adopt the Amendment - rather - the
action means the Amendment is submitted to the voters for approval or
disapproval. City Council approval of any land use permit or approval that is
processed concurrently with an Amendment that requires voter approval shall
not be effective unless and until the voters have approved the Amendment. An
Amendment shall not be approved until the Planning Commission and City
Council have conducted noticed public hearings as required by law and an
environmental document has been certified pursuant to the California
Environmental Quality Act (CEQA) and the CEQA Guidelines.
•
n
LI
EXHIBIT D
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 any non - residential land
use category applicable to property or a geographical area pursuant to the
General Plan
•
•
0
EXHIBIT E
B. Intensi
(i) Purpose. The purpose of this Section is to assist the City Council,
Planning Commission, staff, the public and property owners in
understanding and calculating the "intensity ... of allowed uses' for any
parcel or geographic area (allowed intensity) and the extent of any
increase in allowed intensity resulting from approval of an Amendment.
This Section is relevant only to Non - Residential Uses.
(ii) Introduction. The Land Use Element, with the exception of those
special land uses described in subsection (iv), employs the following
methods of specifying the allowed intensity: (a) allocating a specific
amount of floor area (specific floor area allocation); (b) assigning a fixed
floor area ratio (fixed floor area ratio) with the allowed intensity
calculated by multiplying the floor area ratio by the gross land area of the
parcel; (c) assigning a variable floor area ratio (most commonly 0.5/ 0.75)
with the allowed intensity calculated by multiplying the applicable floor
• area ratio by the gross land area of the parcel
(iii) Methodology. The increase in allowed intensity resulting from a
proposed amendment (proposed intensity) shall be calculated by
subtracting the allowed intensity from the proposed intensity. The
allowed intensity and proposed intensity shall be calculated in accordance
with the methodology specified in this section.
(a) For an Amendment that does not involve a variable floor area ratio,
the allowed and proposed intensity are the specific floor area
allocation or the fixed floor area ratio multiplied by the gross land
area.
(b) For an Amendment where the allowed and /or proposed intensity
are based on a variable floor area ratio, the allowed intensity and /or
proposed intensity shall be the "base FAR" ( 0.5) multiplied by the
gross land area unless the conditions in subsection (c) are satisfied.
(c) For an Amendment where the proposed intensity is based on a
variable floor area ratio and assurances that some or all of the parcel or
• geographic area shall be limited to "maximum FAR" ( 0.75) land uses
as specified in the Zoning Code, the allowed intensity and proposed
intensity shall be the gross land area multiplied by the weighting •
factors in Section 20.63.040 of the Zoning Code.
(iv) Special Uses/ Introduction. The Land Use Element has historically
entitled land uses on the basis of the most common "unit of
measurement" utilized in the ITE Manual for calculating the peak hour
traffic generated that land use. The use of the appropriate "unit of
measurement" ensures that the Land Use and Circulation Elements are, as
required by State law, properly correlated. Floor area is the most common
unit of measurement in the ITE Manual but some in the case of some land
uses - such as hotels and theatres (seats) a different metric is used.
Consistent with the ITE Manual, the City has historically entitled some
large hotels in terms of rooms and one theatre in terms of seats. The City
has, in the "Estimated Growth Tables" for those statistical areas in which
special uses are located, assigned approximately 1000 square feet of floor
area for each hotel room and 15 square feet for each theater seat.
(Alternative A)
(vi) Special Uses/ Methodology. The "allowed intensity" of a
parcel that is entitled using a unit of measurement other than floor area •
shall be determined on the basis of the floor area assigned to that special
use in the Estimated Growth Table for the Statistical Area in which the
relevant parcel or geographic area is located or the amount of floor area
existing on the parcel at the time the application for the Amendment is
filed, whichever is greater. Amendments for special uses that have not
been approved prior to the effective date of this section shall be stated in
both floor area and the appropriate unit of measurement utilized in the
Trip Rate Table.
(Alternative B)
(vi) Special Uses/ Methodology. The "allowed intensity' of a
parcel that is entitled using a unit of measurement other than floor area
shall be determined on the basis of the floor area assigned to in the
Estimated Growth Table that references the relevant parcel or geographic
area. Amendments for special uses that have not been approved prior to
the effective date of this section shall be stated in both floor area and the
appropriate unit of measurement utilized in the Trip Rate Table.
•
0
EXHIBIT F
PROCEDURES
aR
a. :..._ ;
� ^.L
r..
F- -I
L J
�T
::_a:.- rr..:[:�r- h= 1- -'-'.' � tt- --�-^- rr :i- •�-' =% �r-r= 1 it? Nriit.. t::t� �'.c
i t
_a Staff Report s. The Planning Department prepares Planning Cona ssion
and City Council staff reports for each Amendment. All Planning
Commission and City Council staff reports on an kkamendment shall contain
k'_ information relevaa",t to whetlnei the Arnendr.nera, if a2proved, svt uld
req,,airs voter apizrova.l pursuant to Section 423. The reports Shall include ,
the fol oTy;r.g infourri :tion: (i) in the case of a Residential Use A mendnnent,
_-, tre General Plan before ar.d after
e n. ,be. of dwell..,- i ,.,s flowed b
the Amendment; (ii' in the case of a Non - Residential Use Amendment, the
amount of flour a�a aiio.ied by the General l' tan before and alt.: t;,>
Amendment: (iii) i n . i the number of peak lour dips all
Eourec .
General Plan bei;:i 7-�u .iEter the Amendment; (ivy ? a tan i'
identit_e, _ch i rh:4' :�,iacnulment incluc::n:? uEn'. :ncryase in Floor
•
�+.•. (-II L".'' i.'.i_< Hour 'lriz- ;.'.c ,.:,!te ',R ',vluch each Phor
Amendr'nen; %, a. ; iivj a t.a [' .a:.!- ei;:ht% percent {'4U`,'o, of tl-.e
weak hour w;!74 : -i1 s aa ti t.[<r .::. il,�e:1 scs resulting from Prior
, nt *'t' hour tr1I)S, floor area. (as
• ';]�( 1 '� :at. 'lent uncle- i'.)nH; � - :Izi -w
�ay.-
b`. pfd' t]C..[ 'r "[1; ' - p , 1t an�.�.,�CrnCl'
c'c ? T. –F - ['_ .ttS�SzCrY�— ^T�1-• ---� Z'L r'1..�
-.0 _.
�f-.
•
• r -' City Council Review. The City Council shall � — -- — mss:
determine at t~PP a noticed public hearing at w rr .en s
if, based on the administrative record for the
Amendment -h- a testimony presented, the Amendment
requires voter approval pursuant to Section 423. The City Council shall
submit the Amendment to the voters pursuaia to Sect`or. 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 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.
Calling an Election. In the event the City Council determines that the
Amendment requires voter approval, the Ciri Council shall,
no
more than _ -.- .( . -0) days arter
- - -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 Citv to share the costs of the special election.
0
TO
FdRo Rork
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
coati! 4._A (GENDA
Agenda Item No. 28
March 23, 2004
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Robert Burnham, City Attorney
644 -3131, rburnham(oDcity.newport- beach.ca.us
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 •
• 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.
�� r
_Iobert Burnhai
. 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 detenmined, based on staff analysis and public
input, that these Guidelines are consistent with the express purpose of Measure S.
EXHIBIT A -1 •
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 depart dev t from a strict application of these Guidelines
te a" amendment-upon a determination, approved by the affirmative vote of at
least six Council members, that such departure a strict applieatie ris necessary to
ensure that the City Council's decision or deternunation is consistent with Nva rikl
be een" to th express purpose of Measure S.
n
u
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. l^ ,.,...,-ai ,..1., Alle,,ved Use(s) e these ,7„r:. ed alid p e !and
uses that have been applied by a reselutien speEifie te giat preperty ef —a
..1 deal in sl....,.. ..:F., of cases, the A 11,...,,.,7 T 1..e(s) „ ,7.. fine.?
b�
enly i +...FAS ,.L „ - Resi,7....tial Use ('..t,.,«....., and lee „ 1�Te residential Land
vi b a
ITS r'.,a,.,...... generally pp4 ..1.1e�.,� �.
-o--�� o- --�----�� err-
to
•
EXHIBIT C .
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 Ci!y 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 ep rmit (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.
E
•
EXHIBIT D
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 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", "Administrative Professional and Financial
Conunercial ", "Recreational and Marine Cornmercial", "General Industry ",
"Goveriunental, Educational and Institutional Facilities ", and "Recreational
and Envirorunental Open Space." The term No resideRt4a! Use a' ^
igel ,des a "e eap f siden' al rise" and "Iiffuted eere fes dential ase""" as
4�ese terh--is are defined iR 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. 1R the
4�,an Fleer AF-ea (s nl, as hotel beat slips) tl,e Eletn nt:n as to reams
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 urocedure fol
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 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.
•
•
Cl
EXHIBIT F
PROCEDURES
- `
mz NZ
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'�•
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NOW
Ag. Staff Reports. The Plaruung Department prepares Plaiuling Corrunission
and City Council staff reports for each Amendment. All Planning
Corrunission and City Council staff reports on an amendment shall contain
4+einformation relevant to whether the Amendment, if approved, would
reouire voter aDDroval vursuant to Section 423 unless the scone and nature
of the amendment is such that voter approval is clearly not required_ te-be
pfevided in the ial Repart a
the a n
_ JCS
�. WON ON
Y
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B�. City Council Review. The City Council shall `1 e >;knal Repe'` av,
determine at the a— noticed public hearing at which any Amendment is
approved if, based on the administrative record for the
Amendment including the arm-- 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 46
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
geograplcal 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 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.
E. Calling an Election. In the event the City Council determines that the
Amendment requires voter approval, the City Council shall, at the hearin
at which the Amendment was approved or a subsequent l
hearing g held no
more than tlurtv sixty —(3E0) days after the date of approval, mat
aEleterffiiratien,, 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.
0
1]
CITY OF NEWPORT BEACH
SUPPLEMENTAL CITY COUNCIL STAFF REPORT
Agenda Item No. ?s
March 23, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Burnham, City Attorney
644 -3131, rburnham (n?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:
CJ
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.
Robert Burnham, 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 any e-'o of _%'t (6 non-
residential land use categorvies applicable to property or a geographical
area pursuant to the General Plane Nen ReskleFAial Use Gatege -4 -- a=e
"Retag — cS(eneic_ r-___.._.e?E l", "iil4stara$ t}i�L Prefessiane4 a- iEl Finaiie-`
E8231i3Z2ie ��, ""Ree.eatiang and - MaFiRe 93i�TzeFE i", "%1r- -- en w b-413stry",
n " "
t fin. sra e «3 9pe€,Spaee." he teFva Nen r-esideF Use alse
i..e =woes a "b.sup side �ti l se Beare resideFti_v: lare,, as
, ase ter -ms a:e weed 4:t the to'e=
0
EXHIBIT E (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 im
the case of hotels or resorts and seats in the case of theatres) if the unit of
measurement is different than floor area. in the event the Entitleieeat f a N&1
Use C t a i + ,e_ t,, ., Pla _ e w tel r
i2 t �CJQiJ Sib & @max ..,r: 59t............ rr,..,: rsC��Svc.a a;rs� cz z omrnz
or beat slips) the de?emiinatienas to the A . na...,..,+ requiTes vote
appr-eval shall be base4 solely an a,a difF +:.a in Peal__ Raug� T-14p.. 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 1 0,000 sq. ft. (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 chancre to the
manner in which Amendments are initiated, analvzed, or considered.
Accordingly, except to the extent necessary to comply with these
Guidelines, the process for initiating,, analyzing or considering
Amendments will continue to be a function of State law and the
ordinances, resolutions and policies adopted by the City Council.
r'1
U
..
An applicant T any
purp9se. The initial Report dies nn+ ee stit+.} .'+, +
er-
repfesent-14- 4 }l- r; f, the nl., Pireeter- as + v,,hether the-
b
A.B. Staff Reports. The Planning Department prepares Plarming Commission
and City Council staff reports for each Amendment. All Planning
Commission and City Council staff reports on an Ammendment shall contain
tl�,—information relevant to whether the Amendment, if akproved 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
General Plan before and after the Amendment- (iv) required a table that
identifies each Prior Amendment including any increase in Floor Area
Dwelling Units and Peak Hour Trips the date 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
to be nrcNi l vl +1,iT I n a +> r + 1 11 1 a+ a
r r �P
rka bes are prepese-4 to the endrr>ertt The staff reige-t shall centain
stalement mserted a-beve the material fT-efn iffie 1-Rial Report (updated) that,
the data '.id°dfer —=�°° m atien enlyand is net relevant to any
£;iidmg or d r i ien related to the Amendment
BI3. City Council Review. The City Council shall revieiv a e -- ---k rI and
determine at the a— noticed public hearing at which any Amendment is
approved if, based on the Final Reper' the administrative record for the
Amendment including, the aFg— 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 morning or evenuig 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 anuroved or a subsequent hearinE held no
more than tsi (360) days after the date of approval, m#4ne
atien, -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.
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, rburnhamCa)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:
n
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 ah
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:
c "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.
o "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.
o "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 to
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.
FZobert Burnham
City Attorney
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� 9
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Cit•eentight
2601 Lighthouse Lane
Corona del Blur, CA 92625
949- 721 -1272 /philipar.YK �coe.net
Mayor Tod Ridgeway and Members of the Ne,�iport Beach City Council
City ofNevjiort Beae11
3300 Newport Blvd
Newport Beac11, C_192663
r�
"RECEIVED AFTER AGENDA
PRINTED:" .t 21 3 - 22
!0
March 22. 2004
Reference Staff Report " Dleasure S Ouidefirmi Proposed Atnendment9 dated March 23, 2004 Agenda Item
28
Dear Mayor Ridgeway mid Members of the City Council:
This is to document the official Green4it position on the referenced Staff Repott aid to add some
additional rtaonlmt idations on netdtd changes that kart cnllitted i1 the Staff Rtpolt.
Our listing of needed changes mid the rationale for their need is contained u1 the enclosed table of
reconunended clunlges.
Overall we believe that there are inconsistencies in the key a•eaa of floor area requirements, tine of Council
•approval and detemliintirnl of applicability to t11e Alarila Park Hotel. As the wording of these changer
confuses us, they will Ornlf ise others trying to interpret these Cmidelmes in the Riture and heed to be
clarified. For elallple, while staff has reconunended adding floor area couslderatious in and section. the
def Iition of entitlement still could be interpreted to exempt hotels from floor area considerations.
We have reconunended wording cl aiges to correct what we believe are deficiencies aid to clarify matters to
prevent future misilterpretaticuls. These are believed to be the mmimmi set needed to bring the Measure 8
CnlidelineH into crnllplimice «'ith City Charter Section 423. We have also reconunended hording to clear up n
problem that has come to light of dwelling hints replacing conunercial or other non - residential land uses.
We will be pleased to answer any questions.
Thank you in advance for your services to the co11ummity,
Greenlight
(Original Signed)
Philip L. Arst
CC; Jolui Butloiph
Douglas Carstens
Greenlight Steering Conullittee
Robert Bum11an1
0
Enclosure: Recommended Changes to Staff Report Recommendations
Eshi
Changer recommended to Staff Repikrf dated March
Rationale
bits
23, 2004 for Agenda Item No. 28
A
Deviation from Strict Application - no
reconmlendation
C
Approval —Strongly dlsag•ee «Yth staff
This eliminates ambiguities lll the
reconuilelldatioll.
definition of city Council approval.
- I1vselt after second sentence "formal approval can only
talce place titer the City Council has approved the
completed environmental reNlew pursuant to CEQA and
all other relevant documents via the public hearing
Process.
C.
Approval — Stron-gly disagree with staff
This section does not state whether the
reconmiendation
approval takes place before or after
1.) Change p111'.l1ie "is nothing 111ore tli.ui the refelial of
the voter election. Two ways to clu'ify
that amendment to the voters for their approval or
the ainbiguoU5 phrasing of the Staff
disapproval- to "is a full approval of the aniendhnent by
Reconmlendations -we provided, The
the Cowicil, suljtct oi-Ay to a vote of apprm-al or
first provides clear detail of the
disapproval by the voters in accordance vvitli Section 423
process and adds the important
before it can take effect, .If the city council disapproves
proviso of what happens when the
the aniand111ent, even though it is subject to voter
Council disapproves dm Aillendlnent.
appmv:11 if passed, the aniendiiient will be collsideredi
The second removes the ambiguous
disapproved and not submitted to the voters.
sentence.
C
2•) Approval — alternate approach to 1.1 above.
Remove previous second sentence that contains the
phrase- "is nothing more than the referral of that
anlendnient to the voters for their approval or
disapproval...
D
Non - Residential LT, a Category — No reconmlendation.
E.
Amendment Procedures/Public Information—
This clarifies the approval process.
Change the "clecidm " to -ai)proving in first Hentence.
There is no definition of "deciding"
F
Procedures — B. City Council Review — Insert the word
Clarifies that voter approval takes
"subsequent" before "voter appmval•"
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 beyond
those recommended by staff,
A -1
DEFINITIONS D - Change first sentence to read "The
word "Entitlement" me.-ay., the maximum amount of floor
area or dwelling units authorized by the Cieneral Plan for
allowed use on any property or geographical area."...
The entitlement nia), also include descriptors such as
hotel roonvs or theater seats where needed to calculate
P.°Illa Oro.
•
Alloi
sente
Reco
If the
the c
than;
Resit
perm
co11S1
1111101
used
voter
Secti
i►
C�
ealc hour traffic trips.
B
Allowed Uses - Add additional sentence at end of Staff'
B
Reconunendation
If the amendment requests a cllwge in dhe category of
Allowed Uscs i.e. cbangcs a Co11u11e1cial Lm1d Usu to a
Residential lu1d Use. the allowed uses panlrittcd 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
423
A -2
Effective date of these changes to 1lieasm-e S
Guidelines— Please state as March 27, 2001
•
Alloi
sente
Reco
If the
the c
than;
Resit
perm
co11S1
1111101
used
voter
Secti
i►
C�
JOHNE, B U TTO LP H 5020 CAMPUS DR., NEWPORT BEACH, CA 92660
ATTORNEY AT LAIN TEL: (949) 955 -2033
,.. „ Z FAX: (949) 955 -2036
EMAIL buttolph2 @aftbi.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 trul yours,
N EARL your
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9
MEASURE S GUIDELINES
INTRODUCTION
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 City Council may deviate from a strict application of
these Guidelines to an amendment upon a determination, approved by the affirmative
vote of at least six Council members, that a strict application would be contrary to the
express purpose of Measure S.
DEFINITIONS
The definitions and terms in this section are intended to be consistent with the purpose
and intent of Measure S. Certain definitions and terms are intended to generally conform
to the definitions in, and terminology of, the most current edition of "Trip Generation," a
multi- volume publication of the Institute of Transportation Engineers (ITE Manual). The
ITE Manual is the primary reference used by transportation professionals seeking trip
generation information. Measure S requires use of the ITE Manual as a basis for
calculating the Peak Hour Trips generated by any Amendment.
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 certain cases the
Allowed Use(s) are those defined and precise land uses that have been applied by
a resolution specific to that property or a geographical area. In the majority of
cases, the Allowed Use(s) are defined only in terms of a Residential Use Category
and /or a Non - residential Land Use Category generally applicable to various
property or geographical areas throughout the City.
B. Amendment. The word "Amendment" means any amendment of the General
Plan approved by the City Council after December 15, 2000, that, when compared
to the General Plan prior to approval, increases the number of Peak Hour Trips,
Dwelling Units or Floor Area.
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C. Dwelling Unit. The term "Dwelling Unit" means "dwelling unit" as defined in
Section 20.03.030 of the Newport Beach Municipal Code (Code).
D. Entitlement. The word "Entitlement" means the maximum amount of Floor Area
Dwelling Units or other measure of density or intensity (such as hotel rooms or
marina slips) authorized by the General Plan for each Allowed Use on any
property and /or in any geographical area. The term Entitlement when preceded
by the word "proposed" shall mean the Entitlement requested by an Amendment.
The Entitlement for any Allowed Use on any property or geographical area shall
be based on the text of the General Plan and the Entitlement Table.
E. Floor Area. The term "Floor Area' shall be defined as follows (taken from Section
20.03.030 of the Code - "Floor area, gross "):
"The total enclosed area of all floors of a building measured to the outside face of
the structural members in exterior walls, and including halls, stairways, elevator
shafts at each floor level, service and mechanical equipment rooms, and basement
or attic areas having a height of more than seven feet " •
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 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', "Administrative Professional and
Financial Commercial', "Recreational and Marine Commercial', "General
Industry", "Governmental, Educational and Institutional Facilities ", and
"Recreational and Environmental Open Space." The term Non - residential Use also
includes a "group residential use" and "limited care residential use" as those terms
are defined in the Code.
G. Peak Hour Trips. The term "Peak Hour Trips" means the number of vehicle trips
equal to the applicable Peak Hour Trip Rate for the Allowed Use(s) and the
Proposed Use(s) as specified in the Trip Rate Table (Exhibit B) multiplied by the
Entitlement (the appropriate quantity of the relevant "unit" of measurement as
stated in the Trip Table). When these Guidelines require a statement or calculation
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of Peak Hour Trips, the morning and evening Peak Hour Trips shall each be
provided and listed separately.
H. Peak Hour Trip Rate. The term "Peak Hour Trip Rate' means the morning and
evening average weekday rate during the peak hour of the adjacent street traffic
for the Allowed Use(s) and Proposed Use(s) as specified in the Trip Rate Table and
as derived from the ITE Manual. The Peak Hour Trip Rate for the Non - residential
Use Categories are as specified in the Trip Rate Table. In the event the Trip Table
does not contain a Peak Hour Trip Rate for an Allowed Use or a Proposed Use, the
Peak Hour Trip Rate shall be based on the morning and evening weekday average
Peak Hour Trip Rate for the most comparable land use in the Trip Table. The most
comparable land use in the Trip Table shall be determined by the City Council
based on recommendation of the Planning Director and the Transportation and
Development Services Manager (Traffic Engineer). The morning and evening Peak-
Hour Trip Rates shall be listed separately.
I. Prior Amendment. The term "Prior Amendment" means an Amendment that
• 1. affects property or a geographical area within the same Statistical Area as
an Amendment that is being evaluated to determine if voter approval is
required pursuant to Section 423;
2. was approved by the City Council after December 15, 2000;
3. was approved within ten years prior to the date the City Council approved
the Amendment being evaluated pursuant to Section 423 and these
Guidelines; and
4. was determined by the City Council, or by a final judgment of a court of
competent jurisdiction, not to require voter approval pursuant to Section
423 and these Guidelines.
J. Proposed Use(s). The term Proposed Use shall mean the land use(s) proposed for
property or a geographical area by an Amendment. Proposed Use(s) may be
defined and precise land uses and /or a Residential Use Category or Non-
residential Use Category.
K. Residential Use Categ . The term "Residential Use Category" means one of four
residential use categories described in the General Plan. The Residential Use
Categories are "Single Family Detached ", "Single Family Attached ", "Two Family
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Residential ", or "Multi- family Residential." The term Residential Use Category
does not include a group residential use or a limited residential care use as those
terms are defined in the Code.
L. Statistical Area. The term "Statistical Area" shall mean one of the Statistical Areas
identified (on page 89) in the Land Use Element of the General Plan approved by
the City Council on October 24, 1988 (Exhibit C). The term Statistical Area also
means any new Statistical Area established for property annexed to the City
subsequent to October 24,1988 and Exhibit C shall be modified to depict any new
Statistical Area.
METHODOLOGY
This Section describes the methodology and assumptions to be used for purposes of
calculating the Peak Hour Trips, Floor Area and Dwelling Units of the Allowed Uses
before and after an Amendment.
A. Peak Hour Trips. Section 423 requires "voter approval" of any "major amendment
to the Newport Beach General Plan." According to Section 423, a "'major •
amendment' is one that significantly increases the maximum amount of traffic that
allowed uses could generate." The term "significantly increases" means "over 100
peak hour trips (traffic)." Measure S and Section 423 do not define the terms
"allowed uses" and "maximum amount of traffic" and they do not specify a
method of calculating any increase in traffic resulting from an Amendment. The
General Plan contains Non - residential Use Categories that authorize a wide range
of land uses with variations in trip generation rates that make infeasible the use of
the highest Peak Hour Trip Rate of any allowed use. Accordingly, for property or
geographical areas with Non - residential Use Categories, the Peak Hour Trip Rate
represents a blend of the ITE trip rates for the most prevalent uses within each
category. The City Council has determined that the methodology and
assumptions in these Guidelines represent the most reasonable method of
determining the amount of traffic that is "authorized" under the existing General
Plan and the increase in Peak Hour Trips resulting from an Amendment. The
following methodology shall be used for calculating the Peak Hour Trips of
Allowed Use(s) and the increase, if any, in the Peak Hour Trips resulting from
Proposed Use(s) if an Amendment is approved:
1. The Peak Hour Trips that Allowed Use(s) could generate before and after
the Amendment shall be calculated by multiplying the Entitlement of each
Allowed Use(s) for the property or geographical area by the morning and
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evening Peak Hour Trip Rate for that Allowed Use as specified in the Trip
Table. If the Allowed Use(s) are designated in terms of one or more Non-
residential Use Categories the Peak Hour Trip Rate for the Non - residential
Use Category from the Trip Rate Table shall be used. If the Allowed Use(s)
are designated in terns of specific land uses, the Peak Hour Trip Pate for
the Allowed Use with the highest Peak Hour Trip Rate shall be used.
2. The Peak Hour Trips that Proposed Use(s) could generate shall be
calculated by multiplying the proposed Entitlement of each Proposed Use
for the property or geographical area by the morning and evening Peak
Hour Trip Rate for that Proposed Use as specified in the Trip Table. If the
Proposed Use(s) are designated in terms of one or more Non - residential Use
Categories the Peak Hour Trip Rate for the Non - residential Use Category
from the Trip Rate Table shall be used. If the Proposed Use(s) are
designated in terms of specific land uses, the Peak Hour Trip Rate for the
Allowed Use with the highest Peak Hour Trip Rate shall be used.
3. The increase, if any, in Peak Hour Trips resulting from an Amendment shall
be calculated by subtracting the morning and evening Peak Hour Trips of
• the Allowed Use(s) from the morning and everting Peak Hour Trips,
respectively, of the Proposed Use(s) and selecting the larger number.
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 event the
Entitlement for a Non - residential Use is designated in terms other than Floor Area
(such as hotel rooms or boat slips) the determination as to whether the
Amendment requires voter approval shall be based solely on the differential in
Peak Hour 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. ft. (the difference between the 72,000
sq. ft. Proposed Use and the 12,000 sq. ft. Allowed Use).
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C. Dwelling Units. The Dwelling Units 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 number of Dwelling Units .specified for the property or
geographical area before and after the Amendment.
D, Trip Rate Table. The Trip Rate Table contains the morning and evening average
weekday Peak Hour Trip Rate for each land use specified in the PTE Manual. The
information in the Trip Table is based on the vehicle trip rates and related data in
the ITE Manual. The term "unit" in the Trip Rate Table refers to the "unit of
measurement" or "independent variable" that was used in the trip generation
studies that form the basis of the trip rates reflected in the TTE Manual.
E. Entitlement Table. The Entitlement for any property or geographical area prior
to an Amendment shall be based on the text of the then current General Plan and,
when adopted, the provisions of an Entitlement Table. The Entitlement Table shall
describe, by Statistical Area, the Peak Hour Trip, Dwelling Unit and Floor Area
increases, if any, of each Amendment approved by the City Council subsequent to
December 15, 2000. The Entitlement Table shall not include any Amendment
submitted to the voters pursuant to Section 423 and an Amendment shall be •
removed from the Entitlement Table ten (10) years after adoption.
F. Multiple Amendments. The City Council may have occasion to approve more
than one Amendment affecting the same Statistical Area at the same meeting. In
such event, the Amendments shall be deemed approved in the following order:
The Amendment(s) with the earliest date(s) of initiation (for example GPA
2001 -1 A) shall be deemed approved before an Amendment with a later date
of initiation (for example 2001 -213).
2. In the event that more than one Amendment was initiated at the same time,
the Amendments shall be deemed approved in alphabetical order (for
example GPA 2001 -1A would be deemed approved before GPA 2001 -113).
PROCEDURES
This Section describes the information to be provided to the applicant, the Planning
Commission and the City Council during the processing of an Amendment. This Section
also describes the information to be provided and the process to be followed after an
Amendment is approved to determine if voter approval is required by Section 423.
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A. Initial Report. The Planning Director shall provide an applicant for an
Amendment with a copy of these Guidelines at the time the application is filed.
The Planning Director shall, within thirty (30) days after filing, provide the
applicant with an Initial Report that contains the information described in this
subsection.
1. Residential Use Amendment. If an Amendment requests one or more
Dwelling Units, the report shall indicate the number of Dwelling Units
permitted by the existing General Plan and the number of Dwelling Units
requested by the Amendment. The report shall also indicate the number of
Dwelling Units equal to eighty percent (80 %) of the increase in Dwelling
Units resulting from Prior Amendments. The report shall calculate the total
of the increase in Dwelling Units resulting from the Amendment and eighty
percent (80 %) of the increase in Dwelling Units resulting from Prior
Amendments.
2. Non - residential Use Amendment. If an Amendment requests one or more
square feet of Floor Area, the report shall indicate the amount of Floor Area
• permitted by the existing General Plan and the amount of Floor Area
requested by the Amendment. The report shall also indicate the amount of
Floor Area equal to eighty percent (80 %) of the increase in Floor Area
resulting from Prior Amendments. The report shall calculate the total of the
increase in Floor Area resulting from Amendment and eighty percent (80 %)
of the increase in Floor Area resulting from Prior Amendments.
0
3. All Amendments. In all cases, the report shall indicate the number of Peak
Hour Trips permitted by the existing General Plan and the number of Peak
Hour Trips resulting from the Amendment. The report shall also indicate
the number of Peak Hour Trips equal to eighty percent (80 %) of the increase
in Peak Hour Trips resulting from Prior Amendments. The report shall
calculate the total of the increase in Peak Hour Trips resulting from the
Amendment and eighty percent (80 %) of the increase in Peak Hour Trips
resulting from Prior Amendments.
An applicant shall not be entitled to rely on the Initial Report for any purpose. The
Initial Report does not constitute any commitment or representation of the City or
the Planning Director as to whether the Amendment, if approved by the City
Council, will require voter approval. The Initial Report shall be available to the
public.
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B. 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 the information required to
be provided in the Initial Report and that information shall be updated as changes
are proposed to the Amendment. The staff report shall contain a statement
inserted above the material from the Initial Report (updated) that the data is
provided for "information only' and is not relevant to any finding or decision
related to the Amendment.
C. Post Approval Report. The Planning Director shall within thirty (30) days after
approval of an Amendment, prepare and submit to the City Council a report that
provides the information required in the Initial Report that has been updated to
reflect the final City Council action (Final Report). The Final Report shall also
include a table that identifies each Prior Amendment including any increase in
Floor Area, Dwelling Units and Peak Hour Trips and the date on which each Prior
Amendment was approved. The Final Report shall also contain any other
information that is relevant to the City Council review specified in subsection D.
D. City Council Review. The City Council shall review the Final Report and •
determine at a noticed public hearing if, based on the Final Report, the
administrative record for the Amendment and testimony presented, the
Amendment requires voter approval pursuant to Section 423. The City Council
shall submit the Amendment to the voters 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
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morning or evening Peak 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,
2or3.
E. Calling an Election. In the event the City Council determines that the Amendment
requires voter approval, the City Council shall, no more than sixty (60) days after
making the determination, 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.
• . Adopted - March 27, 2001
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Section 423. Protection from Traffic and Densitv.
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.
• Exhibit A 1
A -18 •
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 'bested right" as of the effective date of the foregoing amendment to the City Charter.
A 'bested 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
Exhibit A 2
•
A -18
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.
• Exhibit A 3
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• EXHIBIT A
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.
Tbis 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, Implementatiou. 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.
Cl
•