HomeMy WebLinkAbout2022-13 - Finding the Newport Beach General Plan 6th Cycle Housing Element Update for the 2021-2029 Period Consistent with the Purposes of the State Aeronautics Act and Overriding the Orange County Land Use Commission’s Determination that it is InconsisteRESOLUTION NO. 2022-13
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, FINDING THE
NEWPORT BEACH GENERAL PLAN 6T" CYCLE
HOUSING ELEMENT FOR THE 2021-2029 PERIOD
CONSISTENT WITH THE PURPOSES OF THE STATE
AERONAUTICS ACT AND OVERRIDING THE ORANGE
COUNTY LAND USE COMMISSION'S DETERMINATION
THAT IT IS INCONSISTENT WITH THE 2008 JOHN
WAYNE AIRPORT ENVIRONS LAND USE PLAN
(PA2017-141)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, City staff has been working alongside its consultants, the Housing
Element Update Advisory Committee ("HEUAC"), the Planning Commission, City Council,
and the community over the past two years to draft the 6th Cycle Housing Element
covering the 2021-2029 planning period ("Housing Element") thereby amending the City
of Newport Beach General Plan ("General Plan") as required by California Government
Code Section 65588;
WHEREAS, the unprecedently high 6th Cycle Regional Housing Needs
Assessment ("RHNA") allocation for the City required the HEUAC to identify all available
sites Citywide as potential housing opportunities, including some in proximity to John
Wane Airport, which is subject to the Airport Environs Land Use Plan ("AELUP");
WHEREAS, due to the proposed amendments to the General Plan, California
Public Utilities Code Section 21676(b) requires the City to refer the Housing Element to
the Orange County Airport Land Use Commission ("ALUC") for a determination of
consistency with the AELUP for the John Wayne Airport;
WHEREAS, on September 16, 2021, the ALUC voted unanimously (6 ayes, 0
nays) finding the Housing Element inconsistent with the AELUP;
Resolution No. 2022-13
Page 2 of 7
WHEREAS, pursuant to California Public Utilities Code ("CPUC") Sections 21670
and 21676, the City Council may, after a public hearing, propose to overrule the ALUC
by a two-thirds vote, if it makes specific findings that the Housing Element is consistent
with CPUC Section 21670's purpose of protecting 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;
WHEREAS, on October 12, 2021, a public hearing was held by the City Council in
the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California.
A notice of time, place, and purpose of the hearing was given in accordance with CPUC
Section 21676(b) and Government Code Section 54950 et seq. ("Ralph M. Brown Act").
Evidence both written and oral, was presented to, and considered by, the City Council at
this hearing. The City Council adopted Resolution No. 2021-98 by a unanimous vote (7
ayes, 0 nays), to notify the ALUC and the State Division of Aeronautics of the City's intent
to override ALUC's inconsistency finding. A Notice of Intent ("NOI"), along with Resolution
No. 2021-98 was sent via certified mail and emailed to the ALUC and the State Division
of Aeronautics on November 2, 2021;
WHEREAS, the City received comments in response to the NOI from the State
Division of Aeronautics on November 24, 2021, and from the ALUC on December 1, 2021,
in accordance with CPUC Section 21676. The comments are hereby incorporated by
reference and the facts in support of the findings provided in Section 1 of this resolution
adequately address both comment letters; and
WHEREAS, on February 8, 2022, a public hearing was held by the City Council in
the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California.
A notice of time, place, and purpose of the hearing was given in accordance with CPUC
Section 21676(b) and the Ralph M. Brown Act. Evidence both written and oral, was
presented to, and considered by, the City Council at this hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council finds the Housing Element is consistent with the
legislative purpose set forth in CPUC Section 21670(a)(2) of protecting the 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.
Resolution No. 2022-13
Page 3 of 7
Facts in Support
1. The Project is consistent with the noise standards of the AELUP.
The AELUP guides development proposals to provide for the orderly development
of John Wayne Airport and the surrounding area through implementation of the
standards in AELUP Section 2 (Planning Guidelines) and Section 3 (Land Use
Policies). Implementation of these standards are intended to protect the public
from the adverse effects of aircraft noise, ensure that people and facilities are not
concentrated in areas susceptible to aircraft accidents, and ensure that no
structures or activities adversely affect navigable airspace.
AELUP Section 2.1.1 sets forth the Community Noise Equivalent Level ("CNEL")
standards. The Project includes 23 new housing opportunity sites within the 60-65
dBA CNEL contour and 28 new housing opportunity sites within the 65-70 dBA
CNEL contour.
The AELUP defines the noise exposure in the 60-65 dBA CNEL noise contour
(Noise Impact Zone 2) as "Moderate Noise Impact" and in the 65-70 dBA CNEL
noise contour (Noise Impact Zone 1) as "High Impact." (AELUP Sections 3.2.3,
3.2.4.) Residential use is identified as "conditionally consistent" for the 60-65 dBA
CNEL noise contour and "normally inconsistent" for the 65-70 dBA CNEL noise
contour. (AELUP Section 3, Table 1 (Limitations on Land Use Due to Noise).)
However, residential uses are not outright prohibited. Instead, AELUP Section
3.2.3 requires the residential uses be developed with advanced insulation systems
to bring the sound attenuation to no more than 45 dB inside. In addition, residential
uses within the 65-70 dBA CNEL noise contour are required to be "indoor -oriented"
to preclude noise impingement on outdoor living areas.
The City's General Plan Land Use and Noise Elements, as well as Newport Beach
Municipal Code ("NBMC") Section 20.30.080 (Noise) currently require that
residential development in the Airport Area be located outside of the 65 dBA CNEL
noise contour (Policies LU 6.15.3 and N 3.2). However, as part of the City's
comprehensive update to the General Plan and rezoning requirements, these
policies and regulations will be updated to reflect and allow the additional housing
opportunity sites in the higher impact noise zones. The City will also consider
additional noise mitigation measures to ensure the design of residential
development is compatible with the Airport Area in accordance with all AELUP
requirements. These could include policies or design standards to specifically
encourage noise -sensitive designs that include minimal private outdoor living
areas, minimal outdoor recreational areas, and ample indoor amenities (e.g., game
rooms, indoor pool or spa, and fitness facilities).
Resolution No. 2022-13
Page 4 of 7
The Newport Beach General Plan Noise Element requires residential developers
to notify purchasers or tenants of aircraft overflight and noise. The Project, which
is an update to the Housing Element, does not remove this requirement and future
developments will be remain subject to review, which will include consideration of
compliance with the applicable Noise Element policies of the General Plan. Section
20.30.080 (Noise) of the NBMC also includes safeguards to ensure proper
notification is provided to residents and prospective residents. Furthermore, the
City routinely requires notification of future purchasers or tenants of aircraft
overflight and noise as conditions of development approval.
Compliance with these policies and regulations will ensure that future development
within the JWA Airport Planning Area will follow the noise standards of the AELUP.
2. The proposed Project is consistent with the safety standards of the AELUP.
AELUP Section 2.1.2 (Safety Compatibility Zones) sets forth zones depicting which
land uses are acceptable in various portions of JWA environs. Most of the housing
opportunity sites, with exception of portions of three properties, are all within Safety
Zone 6. Allowed uses in Safety Zone 6 include residential and most nonresidential
uses, excepting 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. Risk factors associated with Safety Zone 6
generally include a low likelihood of accident occurrence.
Property owners of the Newport Beach Golf Course and the Young Men's Christian
Association properties requested to have their properties considered as housing
opportunity sites in the Housing Element. Portions of those properties are within
Safety Zone 4 with the remaining portions lying in Safety Zone 6. Safety Zone 4
limits residential uses to very low density (if not deemed unacceptable because of
noise) and advises to avoid nonresidential uses having moderate or higher usage
intensities.
The City's General Plan Safety Element Policy S8.6 demonstrates that the City
acknowledges the importance of the JWA Safety Zones:
"S 8.6 John Wayne Airport Traffic Pattern Zone
Use the most currently available John Wayne Airport (JWA) Airport Environs Land
Use Plan (AELUP) as a planning resource for evaluation of land use compatibility
and land use intensity in areas affected by JWA operations. In particular, future
land use decisions within the existing JWA Clear Zone/Runway Protection Zone
(Figure S5) should be evaluated to minimize the risk to life and property associated
with aircraft operations."
Resolution No. 2022-13
Page 5 of 7
In accordance with Policy S8.6, the Project does not include any housing
opportunity sites in the JWA Clear Zone/Runway Protection Zone.
Compliance with these policies and regulations will ensure that future development
within the JWA Airport Planning Area will follow the safety standards of the AELUP.
Furthermore, as discussed under the previous finding, the City will amend the
Noise Element to reflect an allowance for residential development in the 65-70 dBA
CNEL and can consider additional ambient noise studies when reviewing projects
in the future.
3. The proposed Project is consistent with the purpose and intent of the
AELUP and will not result in incompatible land uses adjacent to JWA
The standards and policies set forth in AELUP Sections 2 and 3 were adopted to
prevent the creation of new noise and safety problems. As set forth above, any
development on the proposed housing opportunity sites will comply with the noise
criteria and safety standards established in Sections 2 and 3. Additional
considerations may be made by the City through the comprehensive General Plan
update and rezoning requirements. These could include, but are not limited to,
noise -sensitive design standards and policies for properly attenuated residential
development. Compliance with the AELUP standards will be also evaluated and
demonstrated at the time development projects are proposed in the future.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Resolution No. 2022-13
Page 6 of 7
Section 4: The City Council finds the adoption of this resolution is not subject to
the California Environmental Quality Act ("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 California Code of Regulations, Title 14, Division 6, Chapter 3 ("CEQA Guidelines")
because it has no potential for resulting in physical change to the environment, directly or
indirectly. Additionally, approval of the Housing Element, for which adoption of this
resolution is based, is exempt from CEQA. The adoption of Housing Element is not a
project under Section 15061(b)(3) of the CEQA Guidelines, the common-sense
exemption because it involves policies, programs, and actions to meet the City's RHNA
allocation that would not cause a significant effect on the environment. Moreover, the
Housing Element is statutorily exempt under Section 15262 of the CEQA Guidelines,
which exempts projects involving feasibility or planning studies for future actions which
the City has not approved or funded. Section 423 of the Charter and Council Policy A-18
require any amendment to the General Plan be reviewed to determine if a vote of the
electorate would be required. If a project includes a general plan amendment, and,
separately or cumulatively with other projects over a 10 -year span, exceeds more than
100 additional peak hour trips (a.m. or p.m.), adds 40,000 square feet or more of non-
residential floor area or adds more than 100 dwelling units in a statistical area, a vote of
the electorate is required. The Housing Element proposes to add at least 100 dwelling
units in several statistical areas; therefore, voter approval of amendments to the Land
Use and other elements of the General Plan along with the Zoning Code will be required
to implement the Housing Element. As a result, the Housing Element is a policy document
and does not provide development entitlements to any specific land use projects, nor
does it make any changes to the General Plan land use map or modify land use
designations, densities, or land use intensities. Other similarly situated cities with voter -
adopted growth initiatives have not been alleviated, either through State Legislation or
judicial determination, of their obligations to comply with the voter initiative process.
Given the nature and scope, this resolution and the resolution adopting the Housing
Element programs and policies would not result in physical environmental impacts. Future
housing development pursuant to the Housing Element would be subject to compliance
with the established regulatory framework, including Federal, State, regional, and local
regulations. To this end, the City Council adopted Resolution No. 2022-2 creating the
General Plan Update Steering Committee to effectuate the updates to the General Plan
required by adoption of the Housing Element.
Resolution No. 2022-13
Page 7 of 7
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 8th day of February, 202?
ATTEST:
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
C' 9'0m' ^
Aaron C. Harp
City Attorney
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. 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; the foregoing resolution, being Resolution
No. 2022-13 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 8th day of February, 2022; and the same was so passed and adopted by the
following vote, to wit:
AYES: Mayor Kevin Muldoon, Mayor Pro Tem Noah Blom, Council Member Brad Avery,
Council Member Joy Brenner, Council Member Diane Dixon, Council Member
Duffy Duffield, Council Member Will O'Neill
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 9th day of February, 2022.
Aj"
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Lei ani I. Brown
City Clerk
Newport Beach, California