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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. Council Resolution No. 2013 -3 Page 6 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." Council Resolution No. 2013 -3 Page 7 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 Council Resolution No. 2013 -3 Page 8 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 Council Resolution No. 2013 -3 Page 9 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)