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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.
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 an Amendment.
A. Allowed and Proposed Use. The term "allowed use" means any land use(s)
permitted by the General Plan on property or in an area. An allowed use may be
defined in terms of a residential use and /or a non - residential use generally
applicable to an area or property or a particular land use applicable to specific
parcel. A "proposed use" is a land use that would be permitted after an
Amendment is approved.
B. Amendment. The word "Amendment" means any proposed amendment of the
General Plan that is first considered and /or approved by the City Council
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 density and /or
intensity and, in the case of intensity, the category of non - residential use.
C. Approval. Subject only to the exception specified in the third sentence of this
Section, the word "approve" (and any variations such as approved or approval)
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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. In the context of the
vote'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 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 authorized by the General Plan for each allowed use on any
property and /or in any area. The term entitlement when preceded by the word
proposed" shall mean the entitlement requested by an Amendment. Proposed
Amendments for parcels or areas entitled for special uses that have not been
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."
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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 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."
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 any allowed use or proposed use multiplied by the entitlement (using the
appropriate quantity of the relevant "unit' of measurement specified in 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.
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 1TE Manual. The peak hour trip rate for any non - residential use
is 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. Affects property or an area within the same statistical area as an
Amendment that is being considered by the Planning Commission and /or
City Council; and
2. Was approved by the City Council after December 15,2000; and
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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.
K. Residential Use. The term "residential use' means General Plan entitlement that is
stated in terms of dwelling units.
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 allowed uses and proposed uses.
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 non - residential use category, 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 allowed under the existing
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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 shall
be calculated by multiplying the entitlement for the property or area by the
morning and evening peak hour trip rate for the 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 tenns 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 using the methodology specified in Subsection 1.
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 from the morning and evening peak hour
trips, respectively, determined pursuant to Section 2.
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 intensity) permitted by the
General Plan for any parcel or area that is designated, or proposed to be
designated for Non - Residential Uses 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
following methods of specifying 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 ( "FAR ") by the gross land area of the parcel; (c) assigning a variable
floor area ratio from the "base FAR" of 0.5 to a maximum FAR of 0.65,0.75, 1.00, or
1.25 ( "maximum permitted FAR "), with the allowed intensity calculated by
multiplying the applicable FAR by the gross land area of the parcel.
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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; (ii) the 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 floor area is applicable to those uses which qualify 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 property
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 Code if that portion of the
property covered by 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 owner receives a request for payment.
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 1TE
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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 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 City has historically entitled some large
hotels in terms of rooms and two large theatres 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.
3. Special Uses /MethodologX. The "allowed intensity" of a parcel or area that
is entitled using hotel rooms or theater seats as a unit of measurement shall
be calculated on the basis of 1000 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 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. 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 approved by the voters and an
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Amendment shall be removed from the Entitlement Table ten (10) years after
approval by the City Council.
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 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 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.
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.
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. The City Council shall, at 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.
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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 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
residential use, 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 use, 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 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 Prior Amendment (see definition in Section (2)J)
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 resulting from Prior Amendments (see
definition in Section (2)J to the increases in peak hour trips, dwelling units
and /or floor area (as appropriate) resulting from the Amendment under
consideration.
6. The Entitlement Table referenced in Section (3)E.
7. Information about the Amendment, any associated project or land use
approval and the environmental analysis that would help the Planning
Commission and City 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 shall determine at the noticed public
hearing at which any Amendment is approved if, based on the administrative
record for the Amendment including any testimony presented at that hearing, the
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Amendment requires voter approval pursuant to Section 423. The City Council
shall submit an Amendment to the voters if:
1. The Amendment authorizes an increase in floor area for the property or
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 authorizes an increase in the number of dwelling units for
the property or 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 allowed use(s) of the property or area that is
the subject of the Amendment such that the proposed use(s) generate(s)
more than one hundred morning or evening peak hour trips than are
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 Prior Amendments (see definition in Section (2)J
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 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 entered into a written agreement 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 analysis 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. 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 •
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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.
E. Exclusive Method. The City Council has determined that, except for any
agreement referenced in subsection E and in the absence of a mandatory duty
arising from an initiative petition, referendum petition, court order or other
mandatory legal obligation, Section 423 and the procedures outlined in these
Guidelines represent the sole and exclusive method by which the City 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 423
prevents the City Council from submitting any matter other than an Amendment
to the voters as an advisory measure.
Adopted - March 27, 2001
Amended - June 8, 2004
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