HomeMy WebLinkAbout2013-3 - Notifiy Intention to Find Uptown Newport Project Consistent with Purposes of State Aeronautices Act and Overrule OC Airport Land Use Commission's DeterminationRESOLUTION NO. 2013 -3
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH NOTIFYING THE ORANGE COUNTY
AIRPORT LAND USE COMMISSION AND THE STATE
DIVISION OF AERONAUTICS OF THE CITY'S INTENTION TO
FIND THAT THE UPTOWN NEWPORT PROJECT IS
CONSISTENT WITH THE PURPOSES OF THE STATE
AERONAUTICS ACT AND TO OVERRULE THE ORANGE
COUNTY AIRPORT LAND USE COMMISSION'S
DETERMINATION THAT THE UPTOWN NEWPORT PROJECT
IS INCONSISTENT WITH THE AIRPORT ENVIRONS LAND
USE PLAN FOR THE JOHN WAYNE AIRPORT (PA2011 -134)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Uptown Newport LP ( "Uptown Newport" or
"Applicant ") with respect to a 25.05 -acre properly generally located on the west
side of Jamboree Road between Birch Street and the intersection of Von
Karman Avenue and MacArthur Boulevard, legally described on Exhibit A,
which is attached hereto and incorporated herein by reference, (the
"Property ") requesting approval for the development of up to 1,244 residential
dwelling units, 11,500 square feet of retail commercial uses and two acres of
parklands (the "Project "). The following approvals are requested or required in
order to implement the project as proposed:
a. Planned Community Development Plan Amendment No. PD2011 -003.
An amendment to Planned Community Development Plan #15 (Koll
Center Planned Community) to remove the subject property from the Koil
Center Planned Community, pursuant to Chapter 20.66 (Amendments)
of the Newport Beach Municipal Code.
b. Planned Community Development Plan Adoption No. PC2012 -001. A
Planned Community Development Plan adoption to establish the
allowable land uses, general development regulations, and
implementation and administrative procedures, which would serve as the
zoning document for the construction of up to 1,244 residential units,
11,500 square feet of retail commercial, and 2.05 acres of park space to
be built in two separate phases on a 25.05 -acre site, pursuant to Chapter
20.56 of the Newport Beach Municipal Code.
c. Tentative Tract Map No. NT2012 -002. A tentative tract map to establish
lots for residential development purposes pursuant to Title 19 of the
Newport Beach Municipal Code.
Council Resolution No. 2013 -3
Page 2
d. Traffic Study No. TS2012 -005. A traffic study pursuant to Chapter 15140
(Traffic Phasing Ordinance) of the Newport Beach Municipal Code.
e. Affordable Housing Implementation Plan No. AH2012 -001. A program
specifying how the proposed project would meet the City's affordable
housing requirements, pursuant to Chapter 19.53 (Inclusionary Housing)
and Chapter 20.32 (Density Bonus) of the Newport Beach Municipal
Code.
f. Development Agreement No, DA2012 -003. A Development Agreement
between the applicant and the City of Newport Beach describing
development rights and public benefits, pursuant to Section
15,45.020.A.2.a of the Newport Beach Municipal Code and Newport
Beach General Plan Land Use Policy LU6.15,12.
g. Environmental Impact Report No. ER2012 -001 (SCH #2010051094). An
environmental impact report (EIR) to evaluate the environmental impacts
resulting from the proposed project, in accordance with the California
Environmental Quality Act of 1970 (CEQA), as amended (Public
Resources Code Section 21000 et seq.), and the State CEQA
Guidelines for Implementation of CEQA (California Code of Regulations,
Title 14, Section 15000 et seq.).
2. The Property's General Plan designation is Mixed -Use District Horizontal 2
(MU -H2), and the Property is located within the Airport Business Area, for
which the Airport Business Area Integrated Conceptual Development Plan
( "ICDP ") has been implemented. The ICDP allocates a maximum of 1,244
residential units and up to 11,500 square feet of retail to be developed on the
Property.
3. The Property is currently located within the Koll Center Newport Planned
Community (PC -15) and is designated as Industrial Site 1. The applicant is
proposing to remove the subject property from the PC -15 zoning designation
by adopting a separate Planned Community Development Plan (PCDP) to
accommodate the proposed mixed -use residential development. The
proposed Uptown Newport PCDP would be the zoning document for the
project where land use and development standards would be specified.
4. Due to the proposed amendments to the Property's zoning regulations, Public
Utilities Code Section 21676(b) requires the City of Newport Beach to refer
the Project to the Orange County Airport Land Use Commission (ALUC) for a
determination of the Project's consistency with the Airport Environs Land Use
Plan (AELUP) for the John Wayne Airport.
Council Resolution No. 2013 -3
Page 3
5. On October 18, 2012, ALUC voted four (4) to one (1) in favor of finding the
Project inconsistent with the AELUP. One ALUC Commissioner recused himself
and did not vote.
6. Pursuant to Public Utilities Code Sections 21670 and 21676, the City of
Newport Beach may, after a public hearing, propose to overrule ALUC by a two -
thirds vote of the City Council, if it makes specific findings that the Project is
consistent with the purposes of Public Utilities Code Section 21670, which are
stated to be to protect public health, safety, and welfare by ensuring the orderly
expansion of airports and the adoption of land use measures that minimize the
public's exposure to excessive noise and safety hazards within areas around
public airports to the extent that these areas are not already devoted to
incompatible uses.
7. Pursuant to Public Utilities Code Section 21676(b), the City provided notice of a
public hearing to be held on December 11, 2012, which was continued to
January 8, 2013, in the City Hall Council Chambers, 100 Civic Center Drive,
Newport Beach, California. A notice of time, place, and purpose of the meeting
was given in accordance with the Newport Beach Municipal Code. Evidence,
both written and oral, was presented to, and considered by, the City Council
at the public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
The City Council finds that this Resolution is not subject to CEQA pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the
activity is not a project as defined in Section 15378) of the CEQA Guidelines
because it has no potential for resulting in physical change to the
environment, directly or indirectly.
2. Specifically, the resolution does not have the potential for resulting in either a
direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment because it is limited to the
notification of the City's intent to overrule the ALUC determination; and it does
not authorize the development of the Property or commit the City to approve
the Project. In fact, the Project has been independently reviewed and
evaluated pursuant to CEQA in the Environmental Impact Report for the
Project (SCH No. 2010051094).
Council Resolution No. 2013 -3
Page 4
SECTION 3. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The City Council of the City of Newport Beach does hereby resolve as follows:
The City Council directs staff to provide notice to the Airport Land Use
Commission and California Department of Transportation, Division of
Aeronautics of the City of Newport Beach's intent to find the Project consistent
with the purposes of Public Utilities Code Section 21670 and overrule the
Airport Land Use Commission's determination on October 18, 2012, that the
Project is inconsistent with the Airport Environs Land Use Plan for John Wayne
Airport. This notice shall include the proposed findings in support of the City's
intended action attached hereto as Exhibit "A" and incorporated herein by this
reference.
2. This resolution was approved, passed and adopted at a regular meeting of
the City Council of the City of Newport Beach, held on the 8t' day of January,
2013.
i'
4k
Leilani Brown, City Clerk
u
Keith D. Curry, Mayor
Council Resolution No. 2013 -3
Page 5
EXHIBIT "A"
PROPOSED FINDINGS OF THE CITY OF NEWPORT BEACH THAT THE
UPTOWN NEWPORT PROJECT IS CONSISTENT WITH THE AIRPORT
ENVIRONS LAND USE PLAN FOR THE JOHN WAYNE AIRPORT IN
SUPPORT OF THE CITY'S DECISION TO OVERRULE THE AIRPORT LAND
USE COMMISSION DETERMINATION OF INCONSISTENCY
Public Utilities Code Section 21676(b) provides that the City of Newport Beach may
overrule the determination by the Airport Land Use Commission that the Project is
inconsistent with the Airport Environs Land Use Plan for the John Wayne Airport, by a
two- thirds vote of the City Council, if it makes specific findings that the Project is
consistent with the purposes of in Public Utilities Code Section 21670.
The purposes of Public Utilities Code Section 21670 are included is subsection (a)(2),
which reads as follows:
It is the purpose of this article to protect public health, safety, and
welfare by ensuring the orderly expansion of airports and the
adoption of land use measures that minimize the public's exposure
to excessive noise and safety hazards within areas around public
airports to the extent that these areas are not already devoted to
incompatible uses.
Finding A
The Project is consistent with the legislative purpose set forth in California
Public Utilities Code Section 21670(a)(2) to protect public health, safety, and
welfare by ensuring the orderly expansion of airports.
Facts in Support
To provide for the orderly development of John Wayne Airport (JWA) and
the area surrounding the airport, the Airport Land Use Commission
(ALUC) adopted the Airport Environs Land Use Plan (AELUP) for the
John Wayne Airport, which was most recently amended on April 17,
2008. The AELUP guides development proposals to provide for orderly
development of the airport and the area surrounding the airport through
implementation of the standards for aircraft noise, safety compatibility
zones, and building height restrictions in AELUP Section 2, 1.
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2. The ALUC staff report dated October 18, 2012, reflects that ALUC's staff
reviewed the Project with respect to compliance with the AELUP,
including review of appropriate noise standards, height restrictions,
imaginary surfaces, safety zones, and environmental compliance, and
recommended that ALUC find the Project consistent with the AELUP.
3. The Project is consistent with the noise, height and safety standards set
forth in the AELUP, and therefore provides for the orderly development
of the airport and the area surrounding the airport, based on the
following:
a, The residential and commercial land uses for the Project are
consistent with the noise standards of the AELUP.
AELUP Section 2.1.1 sets forth the Community Noise Equivalent
Level (CNEL) standards. A small portion of the Project on the
eastern boundary fronting Jamboree Road is located within the 60
dB CNEL noise contour for JWA, with the remainder failing within
the 55 dB CNEL contour. AELUP Section 3.2.4 defines the noise
exposure to be "Moderate Noise Impact" in the 60 -65 dBA CNEL
noise contour, which is Noise Impact Zone 2. Per the AELUP,
noise impact in this area is sufficient to require sound attenuation.
As outlined in the AELUP, the residential use interior sound
attenuation requirement in this noise impact zone is required to be
a CNEL value not exceeding an interior level of 45 dBA. The small
portion of the Project area that falls within the 60 dBA CNEL
triggering an interior level of 45 dBA would not include residential
units. This area would be developed with a landscaped parkway
and sidewalk. Future Project- related residential units that would
fall within Noise Impact Zone 2 would be conditioned to achieve
compliance with the 45 dBA CNEL interior noise standard. In
addition, the Newport Beach General Plan Noise Element
requires that residential development in the Airport Business Area
be located outside of the 65 dBA CNEL noise contour (Policies LU
6.15.3 and N 3.2), and requires residential developers to notify
prospective purchasers or tenants of aircraft overflight and noise
(Policy N 3.2). The Project would be developed in accordance
with these General Plan policies. The AELUP also identifies land
uses that are "normally consistent" and "conditionally consistent"
in each noise impact zone delineated by the CNEL noise contour.
AELUP Section 3 Table 1 (Limitations on Land Use Due to Noise)
identities the 60 dB CNEL contour for residential and commercial
uses as "normally consistent" requiring "no special noise reduction
requirements."
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b. The residential and commercial land uses for the Project are
consistent with the safety standards of the AELUP.
AELUP Section 2.1.2 sets forth Safety Compatibility Zones to
support the continued use and operation of an airport by
establishing compatibility and safety standards to promote air
safety and reduce potential safety hazards for persons living,
working, or recreating near JWA. The Property is within Safety
Zone 6: Traffic Pattern Zone of JWA. Risk factors associated with
Safety Zone 6 generally include a low likelihood of accident
occurrence. Allowed uses in this safety zone include residential
and most nonresidential uses, with the exception of outdoor
stadiums and similar uses with very high intensities. Uses that
should be avoided include children's schools, large day -care
centers, hospitals, and nursing homes. The residential and
commercial land uses of the Project would be consistent with
those outlined in Safety Zone 6 and its applicable land use
restrictions.
C. The residential and commercial land uses for the Project are
consistent with the height standards of the AELUP.
AELUP Section 2.1.3 sets forth building height restrictions. This
Section provides that ALUC consider only one standard, Title 14
CFR Part 77. AELUP Section 2.1.3 provides that these
regulations "are the only definitive standard available and the
standard most generally used." AELUP Section 2.1.3 indicates
that ALUC recognizes the Federal Aviation Administration (FAA)
as the single "Authority" for analyzing project impact on airport or
aeronautical operations, or navigational -aid siting, including
interference with navigational -aids or published flight paths and
procedures. The AELUP also indicates that the Commission
considers the FAA as the "Authority" for reporting results of such
studies and project analyses.
The FAA conducted an aeronautical study for the Project
consistent with FAA Part 77 Regulations. The FAA issued a "No
Hazard Determination" and found that the structures would have
no substantial adverse effect on the safe and efficient utilization of
the navigable airspace. The FAA reviewed the following heights:
59 feet site elevation (SE); 150 feet above ground level (AGL);
and 206 feet above mean sea level (AMSL). Three of the eleven
points that represent the building heights were identified as
obstacles under the obstruction standards of Title 14 CFR Part
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77, Section 77.19(a) (which is 206 feet AMSL) by between 1 to 3
feet.
The FAA stated that the adverse effect of these three building
points are known, and that similarly situated structures of equal or
greater height exist in the area between the Property and the
John Wayne Airport runways. The FAA concluded that three
building points do not result in any significant adverse effect on
the aeronautical operations or on the utility of the navigable
approach and departure Terminal Procedures for John Wayne
Airport. The FAA further concluded that existing obstacles and
terrain control the development of future instrument approach and
departure procedures for John Wayne Airport.
Subsequent to the FAA's aeronautical study and No Hazard
Determination, and to ensure that the Project's building heights
would be within the limits established by the Orange County
Board of Supervisors for John Wayne Airport, the applicant
amended the Project's proposed zoning regulations. The
amendment limited heights for buildings and any appurtenances
to no greater than the 206 feet AMSL established for John Wayne
Airport, by the Orange County Board of Supervisors. Therefore,
the heights of the Project's residential towers will not penetrate
John Wayne Airport's Horizontal Surface. Additionally, the
Project's proposed Planned Community Development Plan
specifies that all development must be constructed in
conformance with FAA Part 77 height restrictions, the Division of
Aeronautics, and height restrictions in the AELUP. Therefore, the
Project is consistent with the height standards contained in the
AELUP.
The Project is consistent with the legislative purpose set forth in California
Public Utilities Code Section 21670(a )(2) to ensure the adoption of land use
measures that minimize the public's exposure to excessive noise and safety
hazards within areas around public airports to the extent that these areas are
not already devoted to incompatible uses.
Facts in Support
1. To protect the public health, safety and welfare by ensuring orderly
expansion of airports, the ALUC adopted the AELUP, which serves as a
land use compatibility plan to "safeguard the general welfare of the
inhabitants within the vicinity of the airport and to ensure the continued
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operations of the airport" (AELUP, Section 1.2, p. 2.). The AELUP
standards guide development proposals to provide for the orderly
development of the airport and the area surrounding the airport through
implementation of the standards in AELUP Sections 2 (Planning
Guidelines) and 3 (Land Use Policies). Implementation of these
standards "seeks to protect the public from the adverse effects of aircraft
noise, to ensure that people and facilities are not concentrated in areas
susceptible to aircraft accidents, and to ensure that no structures or
activities adversely affect navigable airspace." As set forth above in the
Facts in Support of Finding A, the proposed project is consistent with the
AELUP noise, safety standards, and building heights. Because, the land
use measures proposed as part of the Project are consistent with the
AELUP, the Project serves the purpose of Public Utilities Section
21670(a)(2) to minimize the public's exposure to excessive noise and
safety hazards to the extent the area is not already devoted to
incompatible uses.
2. To protect the public health, safety and welfare the ALUC adopted the
AELUP to outline land use measures that minimize the public's exposure
to excessive noise and safety hazards within areas around public airports
to the extent these are not already devoted to incompatible use. The
AELUP provides land use policies in AELUP Section 3 (Land Use
Policies) that govern noise, safety, and building height. As set forth
above, the Project is consistent with AELUP noise, safety standards, and
building heights.
3. The land use measures proposed by the Project were included in the
City of Newport Beach 2006 General Plan, which ALUC found to be
consistent with the AELUP on July 20, 2006. The 2006 General Plan
provided the following goal: "re -use of underperforming industrial and
office properties and development of cohesive residential neighborhoods
in proximity to jobs and services in the John Wayne Airport Area" (LU
Policy 3.3), The General Plan also designated properties located in the
Airport Business Area as Mixed -Use Horizontal -2 (MU -112), which
allows for the intermixing of uses that include regional commercial office,
multi - family residential, vertical mixed -use buildings, industrial, hotel
rooms, and ancillary commercial uses. A maximum of 2,200 residential
units were allocated for the MU -H2 properties. The Project is consistent
with this General Plan Land Use designation as it would provide a mix
of residential and neighborhood - serving uses and park and open
space to the City's Airport Business Area.
4. The Newport Beach General Plan Noise Element additionally specifies
that residential development in the Airport Business Area be outside of
the 65 dBA CNEL noise contour and requires residential developers to
Council Resolution No, 2013 -3
Page 10
notify purchasers or tenants of aircraft overflight and noise. The
proposed project is outside the 65 dBA and prospective purchasers and
tenants will be notified. The proposed project is consistent with these
policies, which are the same policies that ALUC deemed consistent with
the AELUP on July 20, 2006.
5. On August 19, 2010, ALUC found the City of Newport Beach 2010
Zoning Code Update consistent with the AELUP, which included Map H-
1 High Rise and Shoreline Height Limit Areas (Exhibit 1). The Project is
located in the Newport Beach Zoning Code 300 -foot High Rise Height
Area. Furthermore the Project is subject to review by ALUC and the
Federal Aviation Administration (FAA) as specified in Section
20.30.060.E of the Newport Beach Zoning Code. The Project is in
compliance with the Newport Beach Zoning Code's permitted building
height as the residential buildings would range from 30 feet to 75 feet
in height, with several residential towers up to 150 feet high. The
Project received a determination of "No Hazard to Air Navigation" from
the FAA on August 6, 2012.
Finding C
The City Council finds the ALUC's determination that the proposed project was
inconsistent is not based on substantial evidence that was introduced,
commented on, or identified in support of the inconsistency finding.
Facts in Support
1. The ALUC meeting minutes for October 18, 2012, reflect that a motion to
find the Project inconsistent with AELUP was based upon AELUP
Section 2.1.3 (Planning Guidelines, Building Height Restrictions). The
AELUP Section 2.1.3 does state that a FAA Determination of No Hazard
to Air Navigation does not automatically equate to a project consistency
determination by ALUC. Section 2.1.3 further states that the ALUC may
find a project inconsistent based on an obstruction determination by the
FAA. However this criterion is not applicable to this Project, since the
FAA concluded that the three obstacles, as defined under the Title 14
obstruction standards, do not result in any significant adverse effect on
the aeronautical operations or on the utility of the navigable approach
and departure Terminal Procedures for John Wayne Airport. Additionally,
subsequent to the FAA's No Hazard Determination, the applicant
reduced the Project's building and appurtenances height limit to no
greater than the 206 feet AMSL consistent with the horizontal surface
established for John Wayne Airport, by the Orange County Board of
Supervisors.
Council Resolution No. 2013 -3
Page 11
2. AELUP Section 2.1.3 allows the ALUC to utilize criteria for protecting
aircraft traffic patterns which is different than FAA Part 77 should
evidence of health, welfare, or air safety surface sufficient to justify such
an action. The ALUC's statement of evidence contained in the meeting
minutes of October 18, 2012, is limited to "this area directly under the
general aviation flight path is not a good place for residential and noted
that if buildings this tall were built, there would eventually be a wall of
building that a pilot would need to navigate through ".
This statement is contrary to the ALUC's two previous determinations of
AELUP consistency that allows residential uses in the Airport Business
Area with a maximum building height of 300 feet above grade.
3. The City Council has considered the FAA No Hazard Determination, the
proposed relevant Project conditions, the AELUP standards, and the
ALUC Inconsistency determination and finds the Project is consistent
with the stated purposes of Public Utilities Code Section 21670 because
(1) the Project is consistent with the AELUP and therefore ensures the
orderly expansion of airports; and (2) the Project's proposed land use
measures are intended to minimize the public's exposure to excessive
noise and safety hazards.
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
1, Leilani L Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing resolution, being Resolution
No. 2093 -3 was duly and regularly introduced before and adopted by the City Council of said City at a
regular meeting of said Council, duly and regularly held on the eh day of January, 2093, and that the same
was so passed and adopted by the following vote, to wit:
Ayes: Gardner, Hill, Selich, Henn, Daigle, Mayor Curry
Noes: None
Recuse: Pettus
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this gxh day of January 2013.
k.
City Clerk
Newport Beach, California
(Seal)