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HomeMy WebLinkAbout02/24/2004 - Study SessionCITY OF NEWPORT BEACH City Council Minutes Study Session February 24, 2004 - 4:00 p.m. ROLL CALL Present: Heffernan, Rosansky, Bromberg, Webb, Nichols, Mayor Ridgeway Absent: Adams (excused) CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR — None 2. CONTINUED DISCUSSION OF GROUP HOME ISSUES. Mayor Ridgeway reported that this item was continued from the February 10th Study Session at which time the Council finished a partial analysis of state law, however federal law issues had not been addressed. City Attorney Burnham noted that the primary reason for the second study session was to allow the Council to hear as much testimony as possible from members of the community who are interested in this topic. After reviewing the minutes from the previous study session, he indicated that he and Mr. Goldfarb believe that the Council is generally interested in considering amendments to the code that would preserve the residential character of the various neighborhoods in the city in a manner that would be consistent with the federal and state laws that regulate the City's ability to in turn regulate group homes. In response to concerns raised by Council Member Nichols about the City not following their own laws on use permits, Mr. Burnham explained that the use permit requirement for "residential care, general" was first adopted during the zoning code re -write in 1997. The City is currently conducting an analysis of those facilities presently in the city to determine which, if any, of them were initiated after the use permit requirement was implemented. If the City determines that there is a use that falls under that category that was initiated after 1997, it would be the City's intention to ask them to apply for a use permit. Mr. Goldfarb reported that the specific legislation in California relating to licensed California treatment facilities was adopted in 1984. Mr. Burnham confirmed for Council Member Webb that if a facility was lawfully in existence prior to the date on which the City adopted the use permit requirement, then the facilities would be grandfathered in. He also noted that there are generally no non - conforming rights relative to compliance with building or fire codes. Mr. Goldfarb reported that generally speaking federal law prohibits treating group homes that serve handicapped people differently than similarly situated residential units. If challenged, the City would be tested on whether the regulations treat handicapped residents differently than non - handicapped residents. Mr. Goldfarb reviewed the description of handicapped, which is Volume 56 - Page 690 INDEX (100 -2004) City of Newport Beach Study Session Minutes February 24, 2004 defined by federal law as any individual whose major life functions are limited in a particular way or is perceived by the public as being limited in a particular way. As a result, case law has established that individuals who are abstinent but recovering alcoholics or persons who have been addicted to drugs are handicapped under the federal definition and under the FHAA, as well as the ADA. He noted that if a person is currently using alcohol or drugs they are not considered handicapped under the FHAA. He explained that the recommendations in the report provide minor revisions to the zoning ordinance in order to make sure that a challenge to the way the City regulates group housing would be upheld. With regard to the single family zone the recommendation is that all group homes, whether for handicapped or non- handicapped, be prohibited from the R1 unless they are serving six or fewer. Under state law alcohol treatment facilities and other residential facilities that are serving six or fewer are exempt provided they have a state license. He noted that the state has the ability to impose regulations on state licenses; however that is handled as the licenses come forward and there are also regulations that have been adopted by the department that regulates alcohol treatment facilities. In response to imposing regulations such as limiting driving, etc. on a treatment facility that are not imposed on other types of group living environments, the treatment facility could make an initial case that they have been discriminated against. The City would then have to put forward evidence to demonstrate either that it is basically necessary, given the type of facility, to preserve the public safety and that there is no other less restrictive means of achieving that interest. The City would also have to demonstrate that it was not adopted for discriminatory purposes, but for absolute legitimate governmental purposes. If it is a 24 -hour residential facility that provides rehabilitative services than they are required to have a state license. He also noted that there are group living arrangements where no services are provided and the system functions where all the individuals living in the facility facilitate each others recovery by providing mutual support — it is not a services facility as much as it is a group living environment. Those types of facilities don't have state licenses and can't get licenses because there is no mechanism under state law to license them; however they are protected by the FHAA and case law. The FHAA says they have to be treated in the same way as any other group living environment. If the City required them to have a service provider or head of household at the facility, at least an initial claim of discrimination could be made and supported. Mr. Goldfarb noted that the City would have the same mechanism for these homes as they would for any other group living environment, such as regular code enforcement rules, state laws, etc. and they would be subject to punishment under the law. Based on the zoning code that is created the City would have the right to verify the number of residents living in the facility. He said that what they have proposed with regard to the single family zone is if there is a requirement that allows six people living in a home and by definition living together as a single housekeeping unit, and they have more people than that then they would be in violation of that requirement and that could be enforceable. There is a question on a case by case basis of whether you would have to allow additional people into the house as a reasonable accommodation. In response to questions raised by Council Member Rosansky, Mr. Goldfarb said he does not believe the City can impose any type of testing requirements because it could be viewed as being discriminatory. Mr. Burnham also indicated that this may cause 4th Amendment problems. Mr. Burnham explained that it would be helpful to focus on the land use issues that relate to group homes rather than Volume 56 - Page 691 City of Newport Beach Study Session Minutes February 24, 2004 INDEX the regulatory or licensing issues. The focus should be on the zoning code and what factors would go into a decision by the Council to permit group homes with seven or more in specific residential areas or other areas and what is the character of those residential areas that the City Council would want to take into consideration in making those zoning decisions. As far as nuisance lawsuits, Mr. Goldfarb explained that any group environment would be subject to the same nuisance laws that apply to any other group living environment and if there are health and safety issues the City is not pre - empted from taking actions to remedy that. Robert Hanley reported that he recently acquired a half -way house next door and related an incident that occurred to him and stated that he takes issue with the fact that they are referred to as handicapped. He noted concern with the definition since these people are doing this to themselves voluntarily and he questioned how handicapped people are to be identified. He said his concerns are that the house is a business and he would like to know how the funding is arranged and whether they are denying funds for the true handicapped. He said there are elements that are taking advantage of and making use of the laws and the laws can be addressed by the 5t'' amendment. He read an article from Assemblyman Kirkendall who was trying to pass a bill (AB756) in 1997. The presence of multiple group homes, especially those dealing with disruptive youth and recovering drug addicts, has a distinctive psychological impact on residents. Based on the number of speakers, the Council set the time limit for each speaker to three minutes. Mayor Ridgeway reported that today's edition of The Los Angeles Times had an article about Malibu and recovery homes which indicated that Malibu's hands were tied. They formed an organization to try to lobby the state government to change the law, however noted that at this time the City's hands are pretty well tied by pre - emption as well. Nancy Clark stated that she's been working in drug and alcohol recovery for 30 years and operates residential recovery living homes and sober living homes in Costa Mesa and an outpatient education center in Newport Beach. She voiced concern with the tone of most Council meetings in regard to rehab programs and said she's heard a lot of negativity and people trying to find ways to get rid of them. In reality she said if there wasn't such a need for these places they wouldn't be proliferating all over the place. She explained that the people that populate these facilities come from the community. She stated that she feels the City should take a different approach and suggested that the homes be visited to find out the differences between them and meet the operators in order to get a better understanding of them. She reported on her facilities and explained that hundreds of people showed up when she got her use permit to protest it, however they knew nothing about them and they had been there for years without them even knowing it. Research on everyone's part to find out more about the face of recovery would make everyone better human beings. She explained that her 40 bed facility is a 19 -unit apartment complex and the 60 bed facility is 12 town homes with 3 bedrooms in each one (36 bedrooms total). The 19 -unit apartment has between 30 -38 bedrooms with 40 people in the facility. Denise Oberman inquired about whether a conflict check was run before the City sought legal opinions. All of the FHAA legislation is to address permanent or long -term housing and not special facilities. She said she spoke to a Volume 56 - Page 692 City of Newport Beach Study Session Minutes February 24, 2004 INDEX representative of the FHA and the intent is to prevent discrimination for people on an individual basis and it doesn't have to do with entities engaged in the commercial enterprise of a temporary or a special use hospital or facility. She said it was his opinion that local government is properly responsible and should manage and regulate business activity in the community as well as the land uses within its jurisdiction. She said they also spoke with a land use attorney concerning local government rights and responsibilities. He confirmed that the City has the right and the responsibility to regulate commercial activity both for profit and not - for -profit which deals with the issue of business licenses. He emphasized that it is the City's right and responsibility to regulate its land uses so that the uses are compatible with one another and the integrity of the various areas is protected. She said she doesn't think anyone is saying there shouldn't be any facilities; however they're saying there shouldn't be a proliferation of facilities that create an adverse impact to others in the community. She said those adverse impacts have been demonstrated and a material portion of the people in drug rehab facilities are there as a condition of parole. Mr. Burnham stated that the City would be happy to consider any kind of legal analysis that have been performed by the speakers attorney, whether it was performed on a voluntary basis or not. Mayor Ridgeway said the City is trying to understand these recovery facilities and how they interplay in the community. He noted that the facilities are locating in the higher -rent districts and pointed out that there is one recovery home per capita for every 58,000 people in Los Angeles County, however in Malibu there is one recovery home for every 810 people. He noted that the facilities are clearly operating within the FHAA and the state regulations. Barbara Roy referred to a letter she wrote to the Council about the impact in her neighborhood. She addressed concerns about the parking situation, the alley and the congestion. She noted that the building at 1810 has 12 bedrooms and there is a three -car carport for the building, however it is used for staff and visitor parking. She noted that all the activity is funneled through one walkway and one alley which is a fire lane. She noted that the scope of this operation cannot be supported on a 30 x 100 foot lot with a 30 foot setback. Allan Beek noted that the federal law says that we can't discriminate against these people and he doesn't want to, however the problem is the same whether it's a landlord packing the house full of teenagers or whether it's a business enterprise trying to pack the house full of addicts. In either case it's a matter of packing too many people in too small a space. The two court cases which struck down the attempts to limit a so- called "family" by the number of people in it made it very clear that you can limit the number of occupants in a place if that is how you want to control the zoning just so you don't pretend you're limiting the size of a family. He suggested that the City should look at restricting the number of occupants plus employees at the same time in the property, such as one per every 225 square feet in the building (not counting the garage) and place an additional limit of not more than 1 -1/2 licensed drivers in the facility at any one time for each parking space that is available on -site. These types of limits would prevent the overcrowding of buildings, would meet legitimate public purposes and would not be discriminating against anyone. Mayor Ridgeway responded and said he felt that if this could be done, the City would do it, Volume 56 - Page 693 City of Newport Beach Study Session Minutes February 24, 2004 INDEX however based on the Malibu experience they are protected by the law when they have 6 -9 people come to the home. Mr. Goldfarb explained that in California the Court of Appeal determined that the City is pre - empted by establishing residency limits that are different than the Uniform Housing Code (UHC). Section 503 of the UHC states that for a house that houses two people you have to have at least one room that is equal to or larger than 120 square feet and every other habitable room must be at least 50 square feet, but then you only need to add 50 additional square feet for each additional person. The City can't adopt a law that is different than that. Santa Ana attempted to do that and it was struck down. Mayor Ridgeway noted that this issue is probably better addressed at the state level and to the extent that it can be done there, he suggested that the City try that approach. Dolores Otting presented a copy of the initial licensing booklet from the California Human Health Agencies, Department of Alcohol and Drug Programs, and reported on the occupancy requirements for fire clearance purposes as approved by the fire inspector. She noted that it includes the residents receiving recovery, treatment or detoxification services, children of the residents and staff. She noted that staff includes individuals who work for the applicant in exchange for either monetary or in -kind compensation (room & board). She further read from the booklet and noted that in addition to complying with the Health and Safety Code and regulations in the alcohol and/or other drug certifications standards concerning licensing certification and fire safety, there is an understanding that there is also an obligation to meet other state, federal and /or local codes and regulations such as zoning. She noted that they also have to comply with building, sanitation, labor, non - discrimination, confidentiality, and the Americans with Disabilities Act. She indicated that based on her research online she found that in Newport Beach there are six facilities and Malibu only listed four. She pointed out that Prop 36 now allows non - violent drug offenders to seek treatment instead of jail, so these are sentence alternative facilities. She suggested that the City utilize the organizations they are involved in to help the residents with this issue. Stephen Sutherland said it's his opinion that the Council and staff will do everything they can to properly and legally resolve this issue. He said he has nothing but compassion and best hopes for the residents of these facilities to complete successful recovery; however he pointed out that the choice is given by the judge to some of the residents to either go to prison or go live next door to a family in Newport Beach. He noted that he has a two -year old daughter and if a facility opened next door to him, he would sell his home and relocate. He suggested that one way to work towards the future in Central Balboa would be for residents to get together and start making strides working with the City to convert Central and West Newport into an owner - occupied area. Gil Ferguson reported that he represented this district for ten years in the legislature and served as a vice chairman of the Housing and Community Development Committee. As such, he said he held three hearings on care facilities with cities who wanted to know what the facts were. He said that when he heard from Council Member Nichols that these residents have been complaining for years without any response at all, he told Mr. Nichols that he'd be happy to advise the Council on how to proceed. He explained that the way to proceed is to ask Congressman Cox, Assemblyman Campbell and Senator Volume 56 - Page 694 City of Newport Beach Study Session Minutes February 24, 2004 INDEX Johnson to bring in the experts to work with the City on this issue. He noted that since he held his hearings the laws changed and they primarily dealt with six or fewer because they were "ghettoizing" Aliso Viejo and Mission Viejo. He noted that there are many things that can be done to control and allow these houses at the same time without being discriminatory. He stated that there have been all kinds of attempts to change the law. In response to Council Member Nichols, he reported that the law is or was clear that there should be so many feet in between the property lines of community care facilities. Mr. Goldfarb reported that the 300 foot limitation that applies to residential facilities does not apply to drug abuse and treatment facilities as specified in an Attorney General opinion. He noted that there are also a number of cases that interpret the FHAA to prohibit distance limitations between facilities and only one case out of St. Paul supports that. Gerry Marshall, President of Narcanon Southern California, reported that he has listened to the citizens opinions and feels the Council has done a good job dealing with the regulation of group homes. He said he felt they were discriminated against and the tactics used to incite people make it hard to get to the truth. He said their program really believes in people solving their problems and they try to teach their residents to come up with solutions to a problem that just doesn't create another problem. He suggested holding a meeting with the parties to come up with solutions that not only helps the neighbors but helps the group home. Council Member Bromberg suggested that Narcanon isn't being "neighborly" when they have a facility that is designed to house a 6.12 member family, and they have 27 people housed there. He further suggested that when Mr. Marshall meets with the neighbors perhaps the solution should be to cut the number of residents housed in half. Mr. Marshall indicated that one of the solutions they are looking at is finding a facility that they can move to in order to alleviate that problem. He indicated that they've had approximately 27 people in residence for several years. Larry Trayhem, Executive Director for 1810 and Narcanon San Diego, said he believes they are doing everything in their power to not only abide by the laws that have been set but also to do everything possible to work out problems with the current neighbors. He explained that letters were sent to the neighbors. In regard to the petitions signed and sent to the Council, he said there were people more than a block away that signed duplicate petitions, which proves beyond a reasonable doubt that there is discrimination in this situation, as well as a NIMBY (not in my back yard) situation. He said he can prove that there is a lot more of this type of reaction than there is truthful data. Referring to comments from the audience he indicated that he feels that prejudice echoes in the room. Council Member Nichols noted that Narcanon has asked that the Council only consider formal evidence that contains the name, date, place, pictures, who's involved, and then the people that are taking these pictures are being threatened with lawsuits. Mayor Ridgeway explained that there is a letter from an attorney from Narcanon that threatened a citizen with slander and libel for their activities in and around their building. Mr. Trayhem stated that this person was violating their rights as U.S. citizens and explained that this person was shooting pictures of a 2 -year old five feet from the car in their driveway and was digging through the garbage. He reiterated that they are trying to be good neighbors to work out this situation and they will continue to work towards that end. Volume 56 - Page 695 City of Newport Beach Study Session Minutes February 24, 2004 INDEX Al Irwin reported that he and his wife had a good meeting with this group and the neighbors and some of the problems were solved. He noted that the problem the peninsula has and will continue to have is the fact that the homes are six feet apart. Melody Seas said that they had the same issue in the Warner Springs area when Narcanon San Diego was moving into the area. She said the residents were fighting against the facility because of the fear of what people would do and having drug addicts and alcoholics in the neighborhood. Since the facility has opened, Narcanon has done nothing but contribute to the resource center to help with the schools, volunteer fire department, etc. She referred to comments made earlier about putting these facilities in the rural area, and noted that most of the problems come from the cities, and the cities want to send the problems to the rural areas. Bill Covely stated that he has Narcanon beside and behind them. He distributed photos and explained what it is like to be a neighbor of Narcanon from a personal level. The pictures showed the proximity of the two residences and the entrances to the properties. He said from time to time there have been 40 -50 people using the common sidewalk for the office, classes or meals or to go to their rooms. He noted that the office, kitchen and primary entrance are adjacent to their tenant's bedroom windows and front door. The staircase is one of their sitting and smoking areas. He explained that the previous tenant had to put up six -inch insulation over the windows for privacy and to partially stop the noise. Another picture depicted how the previous and current tenant had to exit and enter the property through a dining room window since using the front door requires a constant confrontation with the parade of people. He asked the Council whether they believe his property values have increased or decreased since Narcanon has moved in and he indicated that he believes it has decreased. In response to Council Member Heffernan, Mr. Burnham indicated that his personal opinion is that under the residential sale rules, the seller of a property would have to disclose that there is such a facility next door. Jane Hamlin said that for 20 years she has lived next door to the facility at 1810 W. Oceanfront and that two drug facilities occupied the premise prior to Narcanon. She reported that she tried the good neighbor approach with the residents and the manager. She explained her relationship and how her concerns would be addressed after making the concerns known to the manager. She voiced concerns with the early morning gatherings, loud conversations, smoke and profanity. Council Member Rosansky said that he doesn't believe the problem is with the facilities per se and he perceives a need for recovery and rehabilitation facilities in communities, but he believes the problems as pointed out are neighborly things. He noted that in life there are things that are legal, moral and ethical and just because you're legal doesn't mean you're being moral and ethical or being a good neighbor. He said for the most part many of the facilities in the city fly under the radar because they are doing a good job, not abusing their privilege to be in the community and are being neighborly. He thanked those facilities that are doing a good job and for those that are not, he suggested that they clean up their act. He said he feels Council should authorize staff to come Volume 56 - Page 696 City of Newport Beach Study Session Minutes February 24, 2004 back at a later meeting with a resolution that would encourage the state and federal representatives to re- examine the problem in light of the history to see what else can be done to tighten up the regulations. Council Member Bromberg suggested to Narcanon that if they really want to get along with their neighbors that they listen to the last speakers testimony. He also encouraged staff to look at this to see if there is anything that can be done within the law without discriminating. Council Member Nichols said he feels the approach of looking at multi - family as a place where these may occur is totally wrong. Multi - family in Newport Beach would be large apartments and if the facilities have the density that they have of three of these in a row they would totally wipe out the community. He said he thinks the facilities that are licensed, the bigger facilities, should be in commercial areas. He said when there is too high of a density and there are places with a high turnover, you have to sort of limit the amount per area, which is what is done with fraternities and sororities. He said the City should do something like that and has the right to do so. Council Member Nichols indicated that he gets the opinion that these facilities should be treated the same as day schools and he doesn't think that is correct. He believes they should be treated the same as sororities and fraternities. Mayor Ridgeway said that to the extent that the City can regulate and not discriminate, he said he would encourage that. He spoke in support of Council Member Rosansky's suggestion to bring back a resolution or a letter to Senator Johnson, Assemblyman Campbell, and Representatives Cox and Rohrabacher, requesting that they address the issues through legislation. He indicated that he received a note from someone who did not speak asking if the City can regulate property owners from renting their dwellings, however he said he suspected it would be a restraint on alienation. 3. DISCUSSION OF MODIFICATIONS TO MEASURE S GUIDELINES. City Attorney Burnham explained that Measure S requires voter approval of certain amendments to the General Plan (GP) — amendments that increase peak hour trips by 100, amendments that increase the floor area by more than 40,000 square feet, or amendments that increase dwelling units by more than 100. Measure S also encouraged the Council to adopt guidelines to interpret its various provisions, which the Council did approximately three years ago. Since then staff has had the opportunity to work with Measure S in some limited respect and thought this may be the time to address some possible modifications. He noted that there are seven topics outlined in the staff report; however some of the topics really involve just reducing the number of words and reducing the complexity of the procedures because experience indicates that many of the procedures are unnecessary. He indicated that the property owners that have submitted requests for amendments are very well aware of the requirements of Measure S, therefore the initial report is unnecessary. There is also a relatively complex procedure in the guidelines that occurs after the Council takes action on an amendment that staff thinks is unnecessary. He indicated that those two items are really procedural and technical in nature. The guidelines have a prefatory statement that allows the City Council to deviate from a strict application of the guidelines if necessary to avoid a result that is inconsistent with Measure S. He said he feels that gives people the Volume 56 - Page 697 INDEX (100/2004) City of Newport Beach Study Session Minutes February 24, 2004 INDEX wrong impression and it is really unnecessary since the Council can amend the guidelines with six votes. He indicated that staff is looking for direction relative to the provision in the guidelines that was raised by the Greenlight Steering Committee having to do with the manner in which the City would evaluate a General Plan Amendment (GPA) that would entitle a hotel. The guidelines currently specify that a GPA that would entitle a hotel would be evaluated solely in terms of the rooms that the hotel might encompass. The reason for that is the City has for 30 years entitled hotels in terms of rooms since that is the measurement used in the ITE Manual to calculate the traffic impacts of a hotel. However, he said there is an argument that can be made that Measure S changed the equation to some extent. Even though Measure S did not require the City to change the way it entitles hotels, an argument could be made that it might be information the public may want to consider in evaluating whether an amendment is appropriate or not. Responding to Mayor Ridgeway, Mr. Burnham explained that based on the way the City has entitled hotels in the past, the evaluation as to whether a hotel amendment would require voter approval would be based solely upon whether the amendment generated more than 100 peak hour trips. He further indicated that by changing the way the City entitles hotels and including floor area in addition to the rooms a hotel is entitled to build, the public would be provided with additional information that will let them know what the size of the structure will be. It will also avoid possible arguments over whether something should or should not go on the ballot as opposed to focusing the voters attention on whether it is a good land use or not. Council Member Nichols noted that Measure S has four criteria — 100 dwelling units, 40,000 square feet, and two others. He questioned whether the City was in violation if each of those is not independently looked at. Mr. Burnham responded that he does not believe the City is in violation of Measure S based on the way the guidelines are currently written. He said that the City currently does not look at dwelling units in terms of both the number of units and floor area. Historically the uses have been entitled in the GP by reference to rooms and seats since that is what is used in the ITE Manual and by traffic engineers to evaluate the traffic impacts of the land use. One of the key purposes of specifying density and intensity in a land use element is so the land use element can be correlated with the circulation element. Council Member Nichols said he thought Measure S provided the four criteria that had to be met and if any one of the four criteria were met it went to a vote. Mr. Burnham explained the three criteria which are over and above allowed uses: 1) intensity, which is 40,000 sf of floor area; 2) 100 peak hour trips; and 3) more than 100 dwelling units. Measure S says that GPAs that change allowed uses in one of those categories requires voter approval, however it doesn't tell you to phrase the GPA in terms of floor area. Without Measure S the City would continue to entitle hotels in terms of rooms since that is how traffic is measured and is the key reason why you put a density /intensity limit on property. He said he doesn't believe the guidelines are inconsistent with Measure S since it did not require the City to change the way it entitles property. He explained that the ITE manual is the reference that the City is required to use to evaluate peak hour trips and the ITE manual contains three different ways of evaluating the traffic generated by hotels. The primary unit of measurement is rooms, however they also use occupied rooms and employees, however using the rooms for hotels in the most commonly accepted way of determining how much traffic a hotel will generate. Volume 56 - Page 698 City of Newport Beach Study Session Minutes February 24, 2004 INDEX Council Member Bromberg said his recollection of the guideline adoption process was that it went very smooth and wasn't contentious at all, however it is now developing and he believes it is because there is a potential hotel on the horizon. Mr. Burnham stated that the traffic engineers have determined that the actual floor area of a hotel is not a very good indicator of the traffic that the hotel will generate, however the number of rooms or occupied rooms is the right way to assess traffic. He further explained that two letters were received from Greenlight saying that they believe the guidelines violate Measure S, and while he disagrees with the committee in terms of their conclusions about the violation, the Measure does have three criteria and it seems appropriate that the Council may want to consider changing prospectively the way hotels are entitled partly to eliminate an argument. By entitling hotels and rooms in terms of floor area and rooms, an argument would be eliminated that could confuse the voters and it would also provide the voters or the reader of a land use element with additional information that may be helpful. Mr. Burnham indicated that when the guidelines were being discussed this topic did come up and Mr. Arst suggested that hotel rooms should be treated as dwelling units rather than floor area or rooms. Council Member Webb indicated that he understood that Measure S was passed as a method to make sure that the various different GPAs didn't increase the traffic above and beyond what the circulation system could handle and that the criteria and guidelines were related to the trips generated during peak hours. He said he's having a hard time understanding why a hotel's square footage has any connection at all to the generation of trips during peak hours. Mr. Burnham explained that Measure S uses the term "approval' in two respects, however it doesn't define it. When staff looked at what the impact of a Council approval of an amendment that would require voter approval under Measure S would be, it was determined that Council approval is really nothing more than placing the matter in front of the voters. Measure S indicates that the amendments are not effective unless and until approved by the voters, so the act of the Council approving an amendment does nothing more than take it from the Council dais to the electorate. The project is really not approved by Council and the only thing their action does is submit it to the electorate. In March of 2003 the City Council approved an agreement with Sutherland Talla Hospitality (STH) that specified that the Marinapark Resort project was going to be submitted to the electorate in November of 2004. When he started looking at the guidelines in the context of that agreement, he felt it might be appropriate to clarify the guidelines so that the term "approval" meant or included approval for purposes of putting the measure on the ballot or any action the City Council took which took the amendment from the Council and presented it to the voters. In response to Council Member Heffernan, Mr. Burnham explained that the only thing the voters approve and the only thing the Council is submitting to them is the GPA. The approval of a GPA doesn't necessarily allow the individual to pull building permits, etc. He explained that the discretion that is left for the Planning Commission or Council depends on what other land use approvals have accompanied the GPA. He pointed out that the Koll project had zoning, a site plan review and a development agreement attached to it. It was clear in the development agreement that if the voters rejected the GPA than the agreement was null and void and the same would be true of a zoning action since zoning has to be consistent with the GP. The Volume 56 - Page 699 City of Newport Beach Study Session Minutes February 24, 2004 INDEX Council can approve other discretionary actions at the time the action is taken on the GPA, but the action to approve a GPA that requires voter approval pursuant to Measure S, does nothing more than submit it to the electorate. In terms of what the electorate sees, that will be decided by the Council when the election is called and the Council selects the ballot language. He further indicated that it is the obligation of his office to prepare an impartial analysis to try to explain what a "yes" or "no" vote means in practical terms. To clarify Mr. Burnham indicated that he is not suggesting that by interpreting and defining approval that the process be changed. He said that in order to avoid any legal issue associated with the action that the Council takes on a GPA, the term approval should be given broad meaning to mean anything which gets the particular amendment from the Council to the voters. Council Member Heffernan questioned whether this is a way for the City Council members to avoid having to put their necks on the line for approving the project during an election year. Council Member Webb indicated that it is his understanding that the GPA sets the parameters for something to be built within the GP. He questioned whether the applicant then needs to come back to the City Council to get specific approval and can conditions be placed on the project at that time. Mr. Burnham indicated that in the normal case when the City is not the owner of the property, the City typically concurrently processes GPAs and any zoning approvals that are required, as well as any environmental documents. If the City isn't the owner of the property however wants a particular type of development, an envelope has been established within which and below which a property owner can construct. The property owner cannot build more than is authorized and the conditions of approval would be attached to the zoning ordinance or to the GPA. Using the Marinapark Resort as an example, Mr. Burnham stated that the City Council is going to be presented with a Planned Community Development text, which would be expected to be approved. In terms of whether the voters understand the position of each individual Council Member if the GPA and the zoning approvals are concurrently processed, then it is being approved still recognizing that it is never going to be effective unless the electorate approves the GPA. John Battal said he would be addressing two issues — the entitlement by square footage and the timing of the election. He said he believes the guidelines and Section 423 are inconsistent in those regards. Section 423 doesn't require the City to adopt any guidelines, however if you do the guidelines "shall be consistent with the amendment and its purposes and findings ". He said he believes the Council needs to be faithful to the express language and express requirements of that section. On its face, Section 423 applies to every GPA that purposes to increase allowable commercial floor area or intensity by more than 40,000 sf. He provided an equation as an example and asked why the City wouldn't convert it up front from hotel rooms to floor area. The intensity criteria are separate and distinct from an increase in peak hour trips. Any project which adds more than 40,000 sf to what is allowed under the GP requires voter approval, regardless of whether the ITE manual says it doesn't add 100 peak hour trips. With respect to the timing of the election Section 423 makes it clear that the election required by this section is to be held after the Council approves the amendment, not before the Council votes and not concurrent with the Council vote, not an advisory vote, and not to substitute for Volume 56 - Page 700 City of Newport Beach Study Session Minutes February 24, 2004 INDEX the Council's responsibility to approve or reject an amendment. The language is mandatory, so if there is no approval then there is no election. Mr. Battal indicated that he's met with the Greenlight representatives and Mr. Burnham and received a copy of Mr. Burnham's letter to Greenlight's attorney, Doug Carstens, in which he stated that he intended to submit to the City Council modifications to the guidelines that would require all CPAs for commercial property to be stated in terms of floor area. He submitted a letter for Council and Mr. Burnham's review. Phillip Arst thanked Mr. Battal for his pro bono work to protect the right of the voters to have a final say on CPAs. He said the committee supports all of the recommendations contained in his letter. He said that Mr. Burnham's proposal is for the clean -up of small issues and procedures except for a few key items. He stated that some key portions of the guidelines are illegal in the opinion of their attorney because they are not in conformance with the law as expressed in Section 423 of the City Charter. He said they strongly oppose the staffs recommendation on the approval section that suggests bypassing the legally required GPA approval vote by the City Council before submitting it to the voters. He noted that 63% of the voters said that after Council approves a GPA, they want a chance to vote to approve or disapprove the Council's action. He stated that three criteria were used — dwelling units, peak hour traffic and intensity. He said that by law the Council needs to add an intensity factor to hotels and theaters. Using the proposed Dunes Hotel project as an example, just room numbers would not have caused it to go to a vote. He said they also oppose the staff recommendation to permit the transfer of entitlements from one area of the city to another since it is against one of the main purposes of Measure S. Measure S specifically used the City's division of statistical areas and tried to balance traffic in all those areas by saying there could be no increases beyond using it as a criteria for increases that were less than 40,000 sf or 100 peak hour trips to accumulate those within a statistical area. He said that is a clear indication that they were concerned about that. Transferring of entitlements will permit a multi -story office building to be built on the bay shore if entitlement were transferred from a part of the city that hadn't been fully developed. He said their attorney will further research this, however they feel it goes against the intent of Measure S. As for effective dates of the action, they oppose grandfathering the Marinapark Hotel, since it would be favored treatment. In response to Council Member Webb's question about whether objections were raised to the hotel issue, Mr. Arst stated that he was troubled by it but as a compromise they said it should maybe be counted as dwelling units. He said he was told that Council said they must follow the letter of the law, so they shut up and trusted Council's opinion, however subsequently they now realize that they missed something. Mr. Webb read from the guidelines which states "in the event the entitlement of a non - residential use is designated in terms other than floor area (such as hotel rooms and boat slips) the determination as to whether the amendment requires voter approval shall be based solely on the differential in peak hours ". He said that his understanding was that Measure S was all about additional trips and making sure that you could drive down the street. He said at the time the signs posted all over town said "stop traffic & growth" and all the election brochures said that this was a traffic control measure. He said he doesn't recall any significant discussions that related to the intensity of parcels on any of the various different sites. Mr. Arst stated that while traffic is a universal measure of intensity, it was used to Volume 56 - Page 701 City of Newport Beach Study Session Minutes February 24, 2004 INDEX help control intensity, but it can't control it in all cases. Tom Billings spoke in support of the clarification of what the law states and what is mandated. He noted that he is still a member of the Greenlight Steering Committee. Allan Beek stated that traffic is one of the criteria but if traffic is all they were after that is all they would have put in Section 423. He said they also put in density and intensity in order to hit the main things that go to determine the character of a community. He said they would have probably settled for square feet and dwelling units, however they put in the trip generation as a catch -all for fear of something sneaking by. If they had been diligent they would have realized that hotel rooms are also another measure that should have been used. He said they were thinking in terms of the size of the project and hotels are always accompanied by convention centers, ballrooms, and often by offices, so when you speak of the size of a building you think in terms of the square feet. He said they neglected to realize that the GP at present doesn't put any limit on the number of square feet in a hotel development. Therefore you might say that the present is infinite so no matter what you grant in the future you haven't granted any increase, which would not be a reasonable interpretation of the intent of Section 423. He asked the Council to interpret it by requiring those developments to have either a limitation by square feet or two separate limitations — one by number of rooms and one by square feet of other facilities besides the number of rooms. Carol Hoffman stated that her firm represents a variety of development interests in Newport Beach and at the time Measure S was approved her firm did not support the measure. Since then, however, her firm has spent a great deal of time making sure that their clients comply with the provisions as articulated in the guidelines. She said they felt that the three triggers were very clear and the voters demonstrated a concern about peak hour trips as the most important measure of the way to control traffic. One of the keys to both hotels and theaters is they are not peak hour impacts and that has been shown many times throughout the nation. She noted that one of the benefits of a hotel is that they are not peak hour traffic generators. With the focus on traffic issues and the focus on peak hour trips, there is considerable reason to leave the regulations as they are currently written. Her clients wanted their views articulated today so the Council heard from both sides of the issue. She noted that as an industry they participated in the dialogue that occurred when the guidelines were approved. In addition to the Council hearings that were held on this issue, there were hours and hours of meetings where the language of the guidelines was discussed at great length. She emphasized the clarity that has been suggested by the City Attorney, except with regard to the issue of square footage and rooms. She said there is a very direct relationship between all rooms and rooms — you can't have a big ballroom unless you have rooms because they support one another and are part of the overall project. You can't fill the rooms without having some facilities there to bring the users of the hotel rooms to the site and they really do not separately impact traffic during the peak hours. She suggested that typically her clients, if they have to have a GPA, prefer to have concurrent processing. She indicated that the citizens also want concurrent processing so they know more about the specific project itself. She noted that concurrent processing is what is typically done in this city and in Volume 56 - Page 702 City of Newport Beach Study Session Minutes February 24, 2004 If�9 N most cities so everyone has a full picture of the application and then the Council would make it all subject to the finalization by the voters. In response to Council Member Nichols, Ms. Hoffman explained that her point is that there is a symbiotic relationship between ballrooms and convention facilities, however a sports facility may have different characteristics and may be called out differently both as far as zoning and the way it would be interpreted by Greenlight. Wynn Fuller said the problem is in applying the normal peak hour traffic measurement to hotels. He asked what constitutes "normal" peak traffic hours. Mr. Burnham reported that the definition of peak hour trips is found in the guidelines. Full service successful hotels generate high levels of traffic at many different times of the day and night. He provided examples of times when guests and staff would arrive and depart the hotels, and especially the proposed Marinapark Hotel and the traffic on the peninsula. Measure S as it applies to hotels should be changed to reflect a peak hour traffic measure that is consistent with the hotel uses as he mentioned. Dr. Jennifer Frutig, former Greenlight Steering Committee member, pointed out that one of the primary purposes of Measure S was to give the residents an oversight function over large development projects that were in the pipeline to potentially be approved. She said that with the present process the Planning Commission approves a large project and then the City Council approves it. If a project is submitted to the voters before Council approves it that would be eliminating the final oversight function of Measure S. Council Member Bromberg noted that Council is revisiting issues that were dealt with when the guidelines were approved and stated that the reason is because of the hotel that is on the horizon. He noted that there were a number of references to the fact that 63% of the voters approved this, which isn't true — it was approved by 63% of the people who voted at a special election that had a small turn -out, which is corroborated by the fact that the Greenlight candidates weren't successful at the last election. Most significantly though, is that the real issue is what this is all about and contrary to what the representatives of the Greenlight organization want to say, this issue initially was solely about traffic. He reminded everybody that under the initiative law in California, initiatives are limited to one issue. Intensity and density were topics, however they all focused around traffic and everything referenced traffic. If you look at simple logic a hotel room of 300 -500 sf will not create the type of traffic that you would have in a similar size office because of the number of people. When you have a theater you have someone in a seat which is not one car per person. He said it is flat out anti - growtb and it shouldn't be because Greenlight has always said it is not anti - growth, but slow - growth and reasonable - growth. He questioned what would be unreasonable about having a hotel where you measure by rooms because there are fewer people and much less traffic and why would you go after a theater with the same issue. He said he believes some of the modifications regarding procedural issues need to be cleaned up, however he said he is comfortable with the guidelines since the City is following the law. Council Member Heffernan said he believes Greenlight was passed during a general election and he was "swept" into office at the same time the measure was passed. He said that it did deal with intensity, which is why there is the Volume 56 - Page 703 City of Newport Beach Study Session Minutes February 24, 2004 40,000 sf threshold. He said the reason he thinks Sutherland's project will come before the voters is because there is a lot of focus on the project because of it's size, which is what Greenlight is all about. He stated that Greenlight is not well -liked on the dais and the rest of the Council wants to do away with it. Measure S takes away from the Council the final say on a project and gives it back to the voters when it deals with certain thresholds which are very specific (100 dwelling units, 100 trips and 40,0000 sfj. If the residents don't like it and think the Council is doing the wrong job, they will have a chance to vote against it. He noted that he voted against the Marinapark project going to the voters because he doesn't think the voters will get what they would have gotten under a Greenlight vote. The purpose of Greenlight was to make people accountable. He stated that the changes proposed by the City Attorney regarding theaters and hotels are appropriate if they deal with a certain square footage. He stated that Corona del Mar and the peninsula will be different when the Port Theater is re- opened and if the hotel project moves forward and the voters have the right to vote on it. He noted that it takes six Council Members to approve changes to the guidelines. Council Member Bromberg corrected his previous statements and noted that he was actually referring to the vote on the Kell project. Mayor Ridgeway noted that the report from the City Attorney is not directive, but suggestive, and it presents what he thinks is an even - handed presentation on what the policymakers should do. He stated that he has made it clear that zoning and general plan changes are inappropriate ballot box issues, however he respects that this is a backstop for the final approval. He said he understood that Greenlight was passed as a traffic initiative and noted that this is the first time he's heard that there was something else other than traffic being looked at. He said he tends to agree with Mr. Buttolph's letter and said he would like to have this brought back to a regular meeting for debate. He said he feels the guidelines are good and they were all agreed to at the time. He said he is worried that ultimately a good project will get approved but because of some fear or precedence or trying to get an interpretation of what Greenlight said. there will be a lawsuit, which won't do anyone any good. He said if there is a way to stop the lawsuit and do something which he thinks is minimal in the overall scheme of things that is what he'll do. PUBLIC COMMENTS Louise Fundenburg, President of the Central Newport Beach Community Association, said she's had calls from neighbors in the area questioning why the Study Sessions aren't televised live. She also noted that the presentations are difficult to see on television because of the camera angles. ADJOURNMENT — at 6:47 p.m. Volume 56 - Page 704 INDEX City of Newport Beach Study Session Minutes February 24, 2004 rx�x, ts, rrrxt, e, r� ,rt,r:�,t,t,r,r,t,rt :,te,r,trt The agenda for the Study Session was posted on February 18, 2004, at 3:15 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk FORP 1 P11 m 'rc... L _ ri i Mayor Volume 56 - Page 705 INDEX