HomeMy WebLinkAboutPA2021-096_20210708_PC_ Additional Materials ReceivedJuly 8, 2021, Planning Commission Item 3 Comments
These comments on a Newport Beach Planning Commission agenda item are submitted by:
Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229).
Item No. 3. APPEAL OF INTERPRETATION ALLOWING ACCESSORY
RESIDENTIAL WITHIN RESORT HOTELS (PA2021-096)
Key Points
Like SPON, I urge the Planning Commission to reverse the April 30 Director’s Determination
and suggest the City Council instead consider hotel room conversion as a potential strategy to
be pursued as part of the broader effort to update the General Plan Housing Element, Land Use
Element and Coastal Land Use Plan in response to the City’s state-mandated Regional Housing
Needs Assessment allocation.
The Director’s Determination, and the Council Policy K-4 from which it flows, may be well-
intentioned, but they are based on flawed assumptions:
To the extent the Determination is needed expand the economic horizons of certain
hotel owners so as to open an avenue for relief from COVID-19 impacts:
o Three of the four hotel sites to which it applies are already designated Mixed Use
in the General Plan and could be accommodated by minor adjustments to the
General Plan.
o The fourth hotel is designated CV in the General and Coastal Land Use Plans.
CV is a subcategory of ““Commercial Districts” in those plan’s fundamental
distinction between “Residential Neighborhoods,” “Commercial Districts and
Corridors,” “Mixed-Use Districts,” and others. The claim that it has always been
the intent of these land use plans to allow certain kinds of mixed use on
properties with a commercial district designation is not an interpretation of
ambiguities; it is a fundamental change to the plan, which, as the Director himself
has acknowledged requires amendments to them.
To the extent the Determination is needed to help the City in meeting its Regional
Housing Needs Assessment allocation for the 6th RHNA Cycle, we have been told the
menu of potential policies for achieving the 4,845 dwelling unit goal don’t need to be
adopted until February 2021, and the implementation of specific policies sufficient to
meet the RHNA does not have to be completed for three years after that. No reason has
been offered for why this particular strategy should be pushed ahead of all others
without the public debate and vetting the others will receive. Common sense indicates
better and more cohesive policy will result if all the options for meeting RHNA are
considered together, not in isolation.
As SPON points out in their appeal document, staff is misunderstanding the fundamental
limits a city charter places on a city’s authority to govern. Newport Beach’s Charter
reasonably assumes that development will be limited by the Council-adopted General
Plan, and it explicitly limits the authority of the Council (and by extension, any entity
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under the council) to add dwelling units to that plan without voter approval. In the case of
the two hotels in Newport Center, in 2019 the Council added enough housing to the
General Plan for that statistical area as to already essentially exhaust its authority to add
the possibility of more units to that area before 2029 without voter approval. Yet, this
Determination immediately adds 247 dwelling units that, by its own terms, would not
have been recognized in the General Plan without the Determination. Adding that
number of units to the previously-approved General Plan without voter approval is in
clear conflict with the City Charter. Neither the Council nor City staff have any authority
to do this.
For the two hotels in the Airport Area, I believe there are still voter approved residential
unit allocations unclaimed in the mixed-use areas were the hotels lie, which could be
used for residential construction on those sites. However, from the present staff report, it
appears staff’s interpretation of its Determination is that it adds a new entitlement for 245
dwelling units above and beyond that. This again, is in clear conflict with the limits
Newport Beach voters have, through their Charter, placed on their local government’s
authority to govern.
Even if the numbers were not excessive, the Determination also conflicts with long-
existing City policy and the explicit understanding at the time the General Plan
development limits were last submitted for voter approval in 2006 that voter-approved
hotel room allocations were not interchangeable with dwelling unit allocations. The
dwelling units added by staff need to be counted toward the Greenlight tracking. Staff’s
assertion that only units added by General Plan amendment need to be counted, and
that a “Determination” that the General Plan means something different than it formerly
did is not an “amendment” only points out the inconsistency of their approach.
Even without the City Charter conflict, the Director’s authority to interpret the codes is
limited by those codes, particularly in adding an unlisted use, as is being done here. It is
unclear the findings that must be made in support of an interpretation can be made as
glibly as they are in this interpretation. Particularly in the case of the CV-designated
hotel, that the unlisted use (permanent residences) is not a listed use in other districts.
Should the Planning Commission not be inclined to reject the Determination in whole, its
authority to modify it on appeal is unclear. But the Determination is much in need of
modification:
The Determination describes the eligible hotel properties as having to be “a self-
contained destination that provides for all travel accommodation needs in one location,
including but not limited to restaurants, bars, shopping, and recreational facilities.” It is
not clear if it means all this has to be provided on the hotel property itself, or in the
vicinity of the hotel. If it means on the hotel property, it is not clear how many of the four
hotels would actually provide all of a permanent resident’s shopping needs.
By arbitrarily excluding from eligibility all hotels that happen to lie within the Coastal
Commission’s appeal area, the Determination excludes, without explanation, a number
of properties where one would think resort living would be most desirable.
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o Beyond that, I am not sure how staff made its determination about the status of
hotel properties in Newport Coast with regard to the appeal area. The
Determination refers to the “Post-LCP Certification Permit and Appeal
Jurisdiction Map,” but the Post LCP Certification Permit and Appeal Jurisdiction
map posted on the City’s LCP website shows Newport Coast as “NOT A PART.”
The Determination uses the term “approved hotel rooms” without explaining what it
means.
o Does this mean currently existing rooms for which the City has issued a
“certificate of occupancy” (or the equivalent for a hotel room)?
o Or does it mean the maximum number of rooms “approved” in the land use plan?
In saying those rooms “may be converted to residential units,” the Determination is
unclear as whether this is predicated on the General Plan already having sufficient
allocation for those units (as may exist in the Airport Area), or this is creating an
allocation for new residential units not previously recognized in the land use plans.
SPON is assuming the latter, but the Determination is not entirely clear.
The last condition, that “Potential impacts to public access, affordable housing, and the
loss of transient occupancy tax must be mitigated by entering into a Development
Agreement with the City or by some other means deemed appropriate” does not
establish a clear and enforceable public policy.
o The directive from Council, in its own questionably valid Policy K-4, was to
“Require property owners converting permitted hotel and motel rooms into
residential units to mitigate impacts as a result of the conversion including, but
not limited to, creating affordable housing units either in the project itself or
through a contribution of in-lieu fees.”
o The Determination creates no requirement to create affordable housing units
either in the project itself or through a contribution of in-lieu fees. On the contrary,
a hotel owner reading the Determination can easily argue that by converting hotel
rooms to luxury housing to their hotel they are helping solve California’s housing
crisis, but since hotel rooms are not housing, they are not causing any reduction
in (that is, any potential impact to) the City’s affordable housing stock. Therefore,
there is nothing to mitigate and no need to pay an in-lieu fee.
Supporting Information
Determination Not Needed for Three Hotels
As indicated in the Hotel List in Attachment A to the April 30, 2021, Director’s Determination,
three of the eligible hotels are outside the Coastal Zone and already on property with a Mixed
Use General Plan land use designation.
Not only is housing already an allowed use on these properties, but the Renaissance Newport
Beach and Hyatt Regency John Wayne Airport are in the MU-H2 which is eligible for a 2,200
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unit General Plan residential unit overlay, which includes the potential for replacement of
existing commercial square footage with housing. However, as approved by voters in 2006, the
overlay applies only to “replacement of existing office, retail, and/or industrial uses.”
I believe (but am not sure) that enough of the 2,200 units remain unclaimed to accommodate
the up to 245 units contemplated by the Determination. Since it adds no new units, and does not
require voter approval, it is within the City Council’s power to modify the General Plan overlay
description to include existing “hotel room” as well as “office, retail, and/or industrial uses.”
That would seem the better and clearer policy direction.
For the Fashion Island Hotel, with its MU-H3 General Plan designation, housing was originally
possible on the site since the voters in 2006 approved a floating 450 units (and 65 hotel rooms)
over the MU-H3 area. However, those residential units, and more, have been built, so
accomplishing the objective of the Determination would require the Council adding (according to
Table 1 of the current staff report) 88 new units, which exceeds its current authority.
Formally adding the new dwelling unit allocation to the General Plan would, again, be the better
and clearer policy direction, but it would require voter approval.
Newport Beach Marriott Especially Problematic
The applicability of the April 30 Director’s Determination to the Newport Beach Marriott is
especially problematic because of the property’s Visitor Serving Commercial (CV) designation in
both the General and Coastal Land Use Plans.
The Determination does not state in full the description of the CV designation in Table 2.1.1-1 of
the CLUP, which, if it did, would make clear the findings in the Determination cannot be made.
Permanent residential use is not “equivalent” to any of the listed uses for that designation, but it
is an allowed us on land with other designations – both of which disqualify the interpretation.
Moreover, Subsection 21.48.025.D of the LCP Implementation Plan explicitly prohibits the
conversion of existing hotel rooms even to limited use overnight visitor accommodations, let
alone permanent residences.
As a result, extensive changes to the LCP would be required. This is far beyond the scope of a
Director’s interpretation.
City Cannot Ignore Its Charter
The right of the residents of a California city to limit what their city government can do is a power
granted to the voters by Sections 3 and 5 of Article XI of our California Constitution.
A charter, if adopted, is recognized as the supreme law of the city, with which all city actions
must be consistent.
Newport Beach voters exercised their prerogative to adopt a Charter in 1954, and in 2000 they
voted to add Section 423 to it (adopted by Measure S, also known as Greenlight). Section 423
assumes that develop in the City will be limited by its Council-adopted General Plan, and it limits
the number of dwelling units and the amount of non-residential square footage the Council can
add to that Plan over a rolling 10-year period without voter approval.
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Hotel Rooms Are Not Interchangeable with Residential Allocations Under
Greenlight
Voter adoption of Charter Section 423 was followed by mutually-agreed to rules of
interpretation, enshrined in City Council Policy A-18.
Under those rules hotel rooms are regarded as non-residential development and assigned a
value of 1,000 square feet each unless specified otherwise in the General Plan. General Plan
allocations for hotel rooms are not, and never have been, considered interchangeable with
allocations for dwelling units.
Newport Beach voters last approved General Plan land use allocations in what went on the
ballot as Measure V in 2006. In that vote, the four hotel sites that are the subject of the April 30
Determination were identified as planning “anomalies” with a specific maximum number of hotel
rooms assigned to each. Those were approved as hotel rooms, not permanent residences.
The non-interchangeability of the two was explicitly discussed and understood before Measure
V was presented to voters in view of a last minute proposal from The Irvine Company to add to
the General Plan a policy extremely similar to the present Determination. In that proposal, the
policy would have allowed the voter-approved hotel rooms assigned to the Fashion Island Hotel
property to be used, alternatively, as an allocation for residential units (see page 3 of the June
27, 2006, City Council Item 33 staff report for the policy proposal and the video starting at
3:59:00 for its discussion).
The Council concluded that under Greenlight, and recognizing that hotel rooms and dwelling
units are in different Greenlight land use categories, if it were to add the requested policy it
would have to ask voters to approve the potential for hotel rooms and dwelling units.
Wanting to limit the number of dwelling units it was seeking approval for, the Council chose to
reject The Irvine Company’s proffered policy and seek voter approval only for the hotel rooms
(see July 11, 2006, meeting video at 1:46:50).
Now, 15 years later, we are being told by staff that 30% of what voters approved as, and the
Council understood to be, hotel rooms at the Fashion Island Hotel site were actually approved
by voters to be built as permanent dwellings, should the landowner so choose.
That does wash.
Number of New Dwelling Units Added to Those Currently in General Plan
Exceeds City’s Authority to Add
City Charter Section 423 limits the City’s authority to add dwelling units to the General Plan
without voter approval to 100 units per statistical area per 10 years.
Newport Center, in which two of the hotels affected by the Determination are located, is
Statistical Area L1. The Council recently amended the General Plan to make possible the
Vivante Senior Living project in that same statistical area, which according to staff’s own
Greenlight Tracking Table for area L1 has lowered the City’s authority to add additional units,
without voter approval, to 28 (currently being sought by the “car wash” project recently reviewed
by the Commission).
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The 247 dwelling units the April 30 Determination adds to Statistical Area L1 far exceed this
staff-acknowledged limit. City staff argues this limit is inapplicable because they have not
“amended” the General Plan. Yet they have “found” new units in the Plan that voters never
approved.
Similarly, the two hotels affected by the Determination in the Airport Area are in Statistical Area
L4, to which the Council has added no dwelling units in the last ten years. But assuming staff
believes its Determination is creating new units rather than reallocating a part of the 2,200
voters approved in 2006, the number of new units involved – 245 new dwellings – again
exceeds the City’s authority to add to the General Plan.
The pretense that the General Plan can be changed by staff or Council without amending it is
clearly purposeful misdirection intended to evade the City Charter, the supreme law of the City.
This is particularly disturbing because at the February 9, 2021, City Council study session, the
Director himself said he wanted to ask if they were interested in considering hotel room
conversion to residential as an option for meeting RHNA. And he said he needed to ask
because if they did want to pursue hotel conversion, it would take time because it would require
amendments to the General Plan and Local Coastal Program (see video and his Slide 9).
Lack of Clarity as to What Planning Commission Can Do
As best I can tell, neither Title 20 or Title 21 of the Municipal Code empower the Planning
Commission to issue its own interpretation of those codes.
Sections 20.64.030 and the parallel provisions in 21.64.030 do allow the Commission to hear
appeals, such as the present one, of determinations made by the Director.
On appeal, the Commission’s authority over the determination appears to be limited to its ability
to “Affirm, affirm in part, or reverse in whole or in part” the staff action, or, in light of new
evidence, to refer it back for further consideration.
While on earlier pages I suggested some possible modifications to the Determination, of the
options available to the Commission, “reverse in whole” seems the most appropriate.
Since the City Charter more generally empowers the Commission to make recommendations to
the Council regarding amendments to the General Plan, after a public hearing thereon, it would
seem appropriate to accompany with reversal with a recommendation to the Council that they
ask the Commission to pursue hotel room conversion as part of the Housing Element Update
process.
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
From:Cynthia Kellman
To:Murillo, Jaime; Jurjis, Seimone; Planning Commissioners
Cc:Michelle Black
Subject:July 8, 2021 Agenda Item #VIII, Public Hearing Item #3 Appeal of Project No. PA2021-096 and Activity No.DD2021-01 Director"s Determination Interpreting Accessory Residential as Allowed Use within Resort Hotels
Date:Wednesday, July 7, 2021 4:23:56 PM
Attachments:SPON 7-7-21 Final.pdf
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.Dear Commissioners,
Attached please find a comment letter from Michelle Black regarding the above-captioned subject.
Please feel free to contact us with any questions or concerns.
Cynthia KellmanCHATTEN-BROWN, CARSTENS & MINTEER2200 Pacific Coast Highway, Ste. 318Hermosa Beach, CA 90254Direct Tel: 323-296-9026Fax: 310-798-2402cpk@cbcearthlaw.comwww.cbcearthlaw.com
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Hermosa Beach Office
Phone: (310) 798-2400
San Diego Office
Phone: (858) 999-0070
Phone: (619) 940-4522
Chatten-Brown, Carstens & Minteer LLP
2200 Pacific Coast Highway, Suite 318
Hermosa Beach, CA 90254 www.cbcearthlaw.com
Michelle Black
Email Address:
mnb@cbcearthlaw.com
Direct Dial:
310-798-2400 Ext. 5
July 7, 2021
By U.S. Mail and Email: jmurillo@newportbeachca.gov
sjurjis@newportbeachca.gov
planningcommissioners@newportbeachca.gov Planning Commission City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660
Re: July 8, 2021 Agenda Item #VIII, Public Hearing Item #3
Appeal of Project No. PA2021-096 and Activity No. DD2021-01
Director’s Determination Interpreting Accessory Residential as
Allowed Use within Resort Hotels
Honorable Commissioners,
These comments are submitted on behalf of Stop Polluting Our Newport (SPON) in connection with its May 14, 2021 appeal of the Community Development Director’s April 30, 2021 issuance of a determination that residential uses are allowable as an accessory use to resort hotels (“Director’s Determination” or “Interpretation”). The Director’s Interpretation allows approximately 250 new dwelling units in both the Airport and Newport Center Areas without first holding a vote of the people as required by City Charter section 423. Although SPON takes no position on the propriety of converting hotel rooms to dwelling units, it does take issue with the City’s failure to comply with its own charter. The City’s local coastal program prohibits the conversion of much-needed hotel rooms in the entire coastal zone, not just the appealable area, so the Interpretation’s proposed exclusion of hotels in the Coastal Zone’s appealable area does not save it from
violating the Coastal Act. Finally, the City has already begun a General Plan update
process designed to meet the Regional Housing Needs Allocation (RHNA). City actions
to incentivize the creation of housing can and should occur as part of this ongoing
process.
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I. Conversion of Hotel Rooms Into Dwelling Units Requires a General Plan
Amendment.
The Director’s Determination claims to implement City Council Policy K-4
(Reducing the Barriers to the Creation of Housing), which the City Council adopted on
March 9, 2021 to address the 6th Cycle Regional Housing Needs Allocation (RHNA).
The Policy calls for “interpreting ambiguities in the City’s General Plan, Coastal Land
Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program
Implementation Plan) of the Newport Beach Municipal Code (“NBMC”) to allow hotels and motels, located outside of the Coastal Commission Appeal Jurisdiction, to convert up to 30 percent of their approved hotel rooms into residential units on a one-for-one basis.” (Staff Report, p. 3.) Under this interpretation, “residential units [could] be deemed an accessory use to the principal use of a hotel and find that such residential uses are consistent with the hotel’s and motel’s underlying General Plan, Zoning Code, and Local Coastal Plan Program land use and zoning designations.” (Ibid.) The Planning Department claims that this is permissible because:
Title 20 and Title 21 include a definition of hotel that is out of date and does not
reflect current industry practice. Specifically, the definition of ‘hotel’ has not been
updated to designate residential uses as an accessory use, which has become
common practice for destination resort hotels (mixed-use hotels). While the
definition of a hotel does not prohibit residential uses, a Director’s Determination
is necessary to fill the gap between contemporary practice and the exact wording
of Title 20 and Title 21.
(Staff Report, p. 4.) In reality, the definitions of hotel in Titles 20 and 21 do prohibit residential use. As the Staff Report reprints for convenience, “hotel” is defined as: [A]n establishment that provides guest rooms or suites for a fee to transient guests for sleeping purposes. Access to units is primarily from interior lobbies, courts, or halls. Related accessory uses may include conference rooms and meeting rooms, restaurants, bars, and recreational facilities. Guest rooms may or may not contain
kitchen facilities for food preparation. Hotels with kitchen facilities are commonly
known as extended stay hotels. A hotel operates subject to taxation under
California Revenue and Taxation Code Section 7280.
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(Staff Report, p. 3, emphasis added.) Permanent residents are not “transient guests.”
They are the exact opposite of transient. Thus, the Director’s action is more than a mere
reinterpretation; it changes the definition of “hotel” as used in the City’s General Plan,
Coastal Land Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code (“NBMC”). By
allowing permanent residents where only transient guests have been permitted in the past,
the Director’s Determination essentially rewrites all of the land use plans and allowable uses for areas that contain hotels and motels. If, in fact, standard hotel practice has changed such that there is a “gap between contemporary practice and the exact wording” of the Code, this gap should be filled by amending the code, through the City’s standard planning, administrative, and review processes. While the proposed Interpretation applies only to resort hotels outside of the Coastal Commission’s appeal jurisdiction, it sets a precedent that redefines hotels and motels as residential throughout the City without the review, analysis, or election required by the City Charter, California Environmental Quality Act, and Coastal Act. Given that the General Plan limit for Newport Center hotel rooms is 827 rooms
and that the limit for the Airport Area is 820 rooms, the conversion of 30 percent of these
rooms to residential uses could add close to 250 residences to each area.
Recognizing the gravity of this redefinition, the Planning Department has declined
this interpretation in the past. Specifically, in 2011, the now Deputy Director determined
that allowing conversions of other uses in hotels and motels would require a General Plan
Amendment as well as a Local Coastal Program Amendment. (Attachment 1). While
entitlements could be moved within the City, they could not be redefined. On February 9, 2021, Community Development Department Director Jurjis stated that repurposing underutilized hotel space as residences would require amendment of the City’s General Plan and Local Coastal Program. (Attachment 2.) The Department believed this type of action required a General Plan Amendment in 2011 and again in February of this year. The same action requires a General Plan Amendment now. Moreover, in 2006, a similar interpretation was requested by the Irvine Company. The City explicitly rejected the transfer or conversion of hotel uses to residential uses at that time. (Attachments 3 and Link 4.)
The City must respect the integrity of its planning documents. Newport Beach’s
General Plan is the constitution for future developments. (DeVita v. County of Napa
(1995) 9 Cal.4th 763, 773.) The Director’s Determination sets a dangerous precedent for
redefining long-established land uses on a whim, thereby eviscerating the primacy of the
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City’s Charter, Code, and General Plan elements. If the City permits this Interpretation
to “fill a gap” between what it wishes to do and what the Code allows, it will be much
more difficult for the City to justify later requests for “interpretations” that the City does
not wish to grant. This erodes the predictability of land use decisions on which orderly
development and investment in the City are based. Moreover, if the Director may
“interpret” a word in the Code to mean its exact opposite, there is no end to this
authority. The City’s well-thought-out plans, created with extensive public participation and comprehensive planning, are essentially meaningless. Further, by ostensibly applying this redefinition to only four sites in the City, the Interpretation smacks of spot-zoning, the “very antithesis” of organized land use planning. (Citizens of Goleta Valley
v. Board of Supervisors (1990) 52 Cal.3d 553, 572 -573.) Conveniently, the City is already in the process of updating its General Plan and Housing Element to meet the 6th Cycle RHNA. If the City wishes to add residential uses to its hotel land uses, there is no reason it cannot do so as part of that ongoing, comprehensive process. Consideration of this redefinition as part of the Housing Element and General Plan updates and the upcoming Land Use Element revision would ensure that the policy is stronger, clearer, and focused on the provision of affordable housing.
II. The Director’s Determination Adds More Than 100 Dwelling Units and
Triggers the Greenlight Provisions of City Charter Section 423.
The City’s Greenlight Initiative, Section 423 of the City Charter, requires a public
vote whenever new development would add 100 dwelling units when the change would
require a General Plan amendment. As discussed above, until recently, the City Planning
Director has maintained that conversions of hotel rooms to other uses require an amendment to the General Plan. The General Plan currently limits Newport Center to 827 hotel rooms. The Airport Area is currently limited to 820 hotel rooms. The Director’s Interpretation would permit the conversion of approximately 250 rooms into previously unplanned residences in each area. In Newport Center, 248 new rooms would trigger the Greenlight Initiative’s requirement of a public vote, as Greenlight Tracking shows the Council has authority to add only 28 new residential units without a vote. In the Airport Area, the conversion would be subject to Greenlight tracking, and potentially to a public vote.
The July 8 Planning Commission Staff Report attempts to ignore the applicability
of the Greenlight Initiative and City Charter completely. (Staff Report, pp. 4-5.) The
Staff Report claims that the City Council vested the Director with the authority to make
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the interpretation permitting residential uses accessory to hotel uses. However, the City
Charter specifically limits the City Council and the City’s officers to actions permitted by
that Charter. (Section 200.) Nothing in the Charter permits the City to ignore Charter
Section 423.
On the contrary, the City Charter of Newport Beach has provided residents the
ability to limit the authority of the City Council. Residents have limited how much the City Council can increase development within certain areas, and the Council is bound to honor those limits. In 2006, City voters approved defined numbers of hotel rooms at each of the anomaly sites that would be affected by the Director’s Determination. While the Greenlight Initiative grants the Council some latitude to add to those rooms, it does not provide authority to convert those rooms to other uses. The Staff Report fails to point to anything in the Charter that permits the City to reinterpret a word to mean its opposite in the name of ambiguity. There is no ambiguity in the City’s existing definitions of hotel. Nor is there any ambiguity that allows a “Transient guest” to become a “permanent resident” through interpretation alone. Basic tenets of statutory interpretation require starting “with the language of each statute,
giving the words their usual and ordinary meaning, and construe the statutory language in
the context of the statute as a whole and the overall statutory scheme, giving significance
to every word, phrase, sentence, and part of an act.” (Lincoln Place Tenants Assn. v. City
of Los Angeles (2007) 155 Cal.App.4th 425, 440–441.) The Staff Report opines, “The
General Plan and City Charter do not provide limits on the scope of an interpretation nor
do they provide any specific provisions contrary to Council Policy K-4 or the Director’s
Determination.” (Staff Report, p. 8.) Case law provides that interpretations should
“endeavor to promote rather than defeat the statute's general purpose, and avoid a construction that would lead to absurd consequences.” (Ibid.) The Interpretation leads to an absurd result and cannot be upheld. It is clear that the City seeks a change in the definition of “hotel” in its land use planning to allow residential uses in certain circumstances. SPON has no position on the propriety of this goal. But, if the City desires to make this change, it should do so through its normal planning channels. The Staff Report also relies on the fact that because the Director’s Determination was intended to implement Council Policy K-4, which is not a General Plan amendment,
the Greenlight Initiative does not apply. (Staff Report, p. 6.) It is true that Council
Policy K-4 and the Director’s Determination are not General Plan Amendments, but
SPON’s central argument is that the changes made by these enactments required General
Plan Amendments. The Planning Director previously agreed. Instead, it appears that the
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enactments may have occurred outside of the General Plan Amendment context precisely
to avoid the requirements of the Greenlight Initiative. The fire station example is not 100
units of residential use and is irrelevant here.
Accordingly, the City’s acceptance of the Director’s Determination, without full
consideration of the implications of the Greenlight Initiative and the initiation of a vote of
the people regarding the authorization of new Newport Center residential units beyond the current allowance, violates the City Charter which the City’s departments and officers are bound to uphold. Charter Section 200 provides, “The City shall have the power to make and enforce all laws, rules and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter or in the Constitution of the State of California.” The Director’s Determination exceeds the City’s Charter authority. III. The City’s Local Coastal Program Does Not Permit the Conversion of Hotel Rooms into Dwelling Units.
As enshrined in Article X, Section 4 of the California Constitution and Coastal Act
section 30210, the City must provide the public “maximum access” to coastal resources.
Coastal Act sections 30222, 30213 and others protect the City’s stock of coastal zone
hotel rooms. Section 30222 explicitly prioritizes hotel uses over residential uses in the
coastal zone, stating, “The use of private lands suitable for visitor-serving commercial
recreational facilities designed to enhance public opportunities for coastal recreation shall
have priority over private residential…” Specifically, the City’s Local Coastal Program
Implementation Plan outright prohibits the conversion of hotel rooms existing on or before July 14, 2009 to other uses. (See 21.48.025D.) The Director’s Determination attempts to avoid the Coastal Act by limiting the affected properties to resorts outside of the Coastal Commission’s appellate jurisdiction. Although outside of the reach of an appeal, the Newport Beach Marriot remains located within the coastal zone, and its rooms remain subject to the protection provided by the LCP Implementation Plan. Yet, the Director’s Determination permits conversion of these hotel rooms to residential uses in violation of the Implementation Plan. The City is not even permitted to make this Determination without first applying for a Local Coastal Program Amendment and obtaining subsequent certification by the California Coastal
Commission. As proposed, the Director’s Determination with respect to the Newport
Beach Marriot violates the Coastal Act in addition to the City’s LCP and Title 21.
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IV. The City Cannot Make the Findings for the Director’s Determination
Required By Title 20 and Title 21 of the City’s Municipal Code.
Even if the Director’s Interpretation is lawful, which SPON disputes, the City
cannot make the findings required for approval. NBMC 20.12.020E requires several
findings to be made and supported by substantial evidence before the Director may allow
a land use that is not explicitly listed in the Code. The City lacks substantial evidence in support of several findings required to add residential uses as an accessory to hotel uses. For example, the Director must find that “the characteristics of, and activities associated with, the proposed use are equivalent to those of one or more of the [allowed uses], and will not involve a greater level of … parking…than the uses listed in the zoning district.” (Finding A.) Without support, the Staff Report claims that hotel accessory uses such as conference rooms generate parking demand “substantially higher” than residential parking rates. Yet, most families that are traveling share a single rental car – if they rent one at all. A family that lives in a condominium unit is likely to have several vehicles – likely two or three. Claiming that a future CUP amendment process will ensure enough parking through “surplus parking, shared parking, or the adoption of a
parking management plan,” without any specific requirements, does not provide
substantial evidence that parking will not be impacted. This finding cannot be made.
By redefining “hotel” to include permanent residents, the Interpretation also does
not support the goals, objectives, and policies of the General Plan and existing Local
Coastal Program. (Finding C.) Residential uses are listed as allowable in other zoning
districts, and therefore the City cannot support the finding that “The proposed use is not
listed as allowable in another zoning district.” (Finding D.) Finding E, that the proposed use is not prohibited, cannot be made because “hotel” is defined as permitting “transient” residents only. Permanent residents are not transient. They are the opposite of transient. Regarding the Local Coastal Program, Coastal Act sections 30222 and 30123 require the protection of visitor-serving accommodations. More explicitly, the LCP prohibits the conversion of hotel rooms to other uses. The conversion of over a hundred hotel rooms, as the Commission addresses an overall loss of hotel rooms in the Coastal Zone, counters this purpose of the LCP and the Act and violates the Coastal Act. Conclusion
Thank you for your consideration of these comments. By effectively allowing a
staff member to amend the City’s General Plan without a vote of the people, or any
environmental review of the addition of 247 dwelling units to statistical area L1, the
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Director’s Determination violates the Greenlight provisions of the City Charter, CEQA,
and the California Coastal Act. Perhaps more importantly, the Director’s Determination
is improperly siloed from an already-ongoing General Plan update process already
focused on increasing housing availability in the City. For example, there is no reason to
expect that residences provided in resort hotels will serve people in need of affordable
housing. Segmentation of these processes is both inefficient and jeopardizes the
coherence of the City’s housing strategy going forward. The City cannot endorse reinterpretations of words such that they mean their opposites. SPON urges the City to accept its appeal, reject the Director’s Determination, and pursue any necessary changes to the City’s governing documents and policies through established planning processes. Sincerely, Michelle Black, on behalf of SPON Attachments:
1. November 9, 2011 Staff Report from Deputy Director Campbell, available at
https://ecms.newportbeachca.gov/Web/0/doc/76363/Page480.aspx
2. Slide 9, February 9, 2021 City Council Study Session, available at
https://ecms.newportbeachca.gov/Web/0/doc/2662725/Page9.aspx; accompanying
video of Director Jurjis available at https://www.youtube.com/watch?v=g-
ME_4aGOa0&t=1700s
3. June 27, 2006 Staff Report, Item 33, p. 3, available at
https://ecms.newportbeachca.gov/Web/DocView.aspx?dbid=0&id=71656&page=
3&cr=1
4. Link to June 27, 2006 City Council Meeting. Relevant discussion begins around minute 3:59:00, available at http://newportbeach.granicus.com/MediaPlayer.php?publish_id=904a2417-7379-11e5-8170-f04da2064c47
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Attachment 1
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
City of Newport Beach
Community Development Department
Planning Division
Memorandum
To: Planning Commission
From: James Campbell, Principal Planner w b
Date: November 9, 2011
Re: Newport Beach Country Club — Golf Realty Fund Application
Conversion of Tennis Courts to Hotel Rooms
General Plan Consistency Determination
During the October 20, 2011, hearing on the project, the owner of the Marriott Hotel
property, Host Hotels and Resorts ( "Host "), proposed a "use conversion solution' as an
alternative to the applicant's request for a transfer of development intensity. The alternative
approach is based upon the assumption that the eliminated tennis courts' have a
development intensity that can be converted to hotel rooms or building floor area. Host
asserts that sufficient traffic capacity exists, that there is no limit to the number of hotel
rooms in Statistical Area L1 (Newport Center), the conversion would not set a precedent, and
there is no apparent constraint on conversion to a building (floor area). Although traffic is not
an issue, staff does not believe the conversion of tennis courts to building floor area is
consistent with the General Plan, the basis of staff's conclusion is described below.
Traffic
The applicant's proposed 27 -room hotel generates fewer average daily trips and peak hour
trips than the traffic trips attributable to the 17 tennis courts that would be eliminated'. The
net effect is an overall reduction of trips and the avoidance of any significant traffic impact2.
Staff concurs that the conversion of tennis courts to hotel rooms would not create a traffic
impact and no mitigation would be necessary.
1 Traffic and Parking Analysis for Newport Beach County Club, Clubhouse Improvement and Tennis
Improvement project, Kimly -Horn and Associates, August 2009.
z Initial Study /Mitigated Negative Declaration for the Newport Beach County Club (PA2005 -140), Keeton
Kreitzer Consulting, September 2010.
1
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Hotel Limit within Statistical Area L1 (Newport Center)
Host states that there is no overall General Plan limit to hotel rooms within Newport Center;
however, staff believes that this assertion is only partially correct, because the construction of
any new hotel rooms must be consistent with the overall non - residential development
intensity established for Newport Center. There are two sites within Newport Center that
have a specific allocation for hotel rooms; the Marriot Hotel property and the Island Hotel
property. The MU -H3 land use category also provides an additional 65 rooms. Despite these
specific allocations, other commercial sites within Newport Center are allowed to construct
hotels provided the zoning or planned community development regulations permit hotels and
the property has building floor area that is sufficient to accommodate the proposed hotel.
Precedent
The project site is within Anomaly Location #46, which specifically calls out a limit of 24 tennis
courts and 3,725 square feet of building area. Staff believes the proposed conversion would
set a precedent for other property since the conversion would create building floor area that
is not provided in this Anomaly Location by the Land Use Element, as discussed further below.
No Constraint to Conversion of Tennis Courts to Floor Area
Staff disagrees with Host's assertion that there is no constraint to converting tennis courts to
hotel rooms or building floor area. General Plan Land Use Element Policy LU4.1 establishes
maximum development intensities3 through the Land Use Maps (Figures LU1 through LUIS),
specific land use categories (Table LU1), and the Anomaly Table (LU2). Development of the
project must be consistent with the site's land use classification and may not exceed
applicable development intensity limits.° However, Policies LU4.3 and 6.14.3 allow for
transfers of development intensity from one site to another within a Statistical Area provided
the intent of the General Plan is maintained and there are no traffic impacts as a result. In the
simplest terms, a recipient site may exceed its specified development intensity limit to the
extent that the donor site is reduced to ensure that the total development intensity of the
3 Development intensity identified by Policy LU4.1 are maximum limits for development and cannot be
considered an "entitlement" until a vested right is conveyed either through a Development Agreement or
entitlement approval and construction. Development is subject to other applicable policies of the General
Plan and Municipal Code as well as other applicable government regulations.
LU4.1 establishes maximum non - residential development intensities in five (5) ways; 1) floor area, 2)
floor area ratios, 3) hotel rooms, 4) theater seats, and 5) tennis courts.
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larger Statistical Area is not exceeded. Statistical Area Li represents Newport Center and
includes the project site.
The Tennis Club portion of the project site is classified "MU- 1-13 /1311" by the Land Use Maps.
The dual classification allows uses and development limits specified by both the MU -H3 and
PR classifications. The MU -H3 classification allows for the horizontal intermixing of regional
commercial office, hotel, multi - family residential and ancillary commercial uses. Within the
project site, residential uses may be developed as single family units, but must be allocated to
the Anomaly Location through the approval of a Site Development Plan or Development
Agreement. A maximum of 65 hotel rooms and 450 residential units are allocated to the
various properties designated MU -H3 within Newport Center in addition to those
development intensities specified in Table LU2 5. The PR designation applies to land used or
proposed for active public or private recreational use. Permitted uses include parks (both
active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and
courts, private recreation, and similar facilities. There is no applicable maximum density or
intensity limit of for public uses. Private uses in this category may include incidental buildings,
such as maintenance equipment sheds, supply storage, and restrooms, not included in
determining intensity limits. For golf courses, these uses may also include support facilities for
grounds maintenance employees. "Other types of buildings and developments are limited as
specified in Table LU2."
Table LU2 establishes two maximum development limits for the project site (Anomaly
Location #46):
1) 3,725 gross floor area (GFA) and
2) 24 tennis courts.
These development limits reflect the existing "built" condition of the Newport Beach Tennis
Club.
Conclusion
In summary, staff believes the proposal to convert eliminated tennis courts to hotel rooms or
building floor area does not create a traffic impact; however the proposed conversion does
5 The 65 hotel rooms and 430 residential units were entitled to the Irvine Company with the adoption of
Development Agreement No. DA2007 -002 and allocated within the North Newport Planned Community,
and therefore, zero hotel rooms and 20 residential units remain for entitlement to any property classified
MU-1-13.
Cl
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increase development intensity above the limit established by the General Plan for Anomaly
Location #46. The proposed 3,725 GFA tennis clubhouse is expressly allowed in Table LU2 and
the proposed 5- single family homes are expressly allowed by the MU -H3 land use category
provided in Table LU -1 of the General Plan. The General Plan allows the proposed transfer of
27 hotel rooms through approval of a transfer of development intensity, and the applicant
has duly filed such an application
Staff believes that the only other appropriate alternative to allow the 27 hotel rooms to be
constructed in Anomaly Location #46 is through the review and approval of a General Plan
1uM.u-
4
IM-11
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Attachment 2
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Land Uses - COVID & RHNA
Some owners have reached out to staff discussing
repositioning their properties.
2. Underperforming uses such as Office & Hotel
3. Recovery time for some uses is long -
When will once vacancy return to preCOVID?
When will international tourism fully recover?
4. The City has an immediate need for housing
opportunity sites
Initiate a General Plan Amendment ? 1•A
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Attachment 3
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
General Plan Update
June 27, 2006
Page 3
This approach raises the question of whether a maximum of four residential villages is
appropriate. Ideas that were considered included deleting the maximum number of
villages, but adding a minimum village size of 10 acres, adding a fifth village that would
encompass the Koll residential opportunity sites, maintaining the current maximum of
four, or reducing the maximum number of villages. Staff will be working with the
property owners and the consultant team on both of these issues.
Newport Center Hotel Room Conversion Policy
The Planning Commission, during their discussion on the proposed policy relating to
conversion of future hotel rooms to residential entitlement in Newport Center,
recommended that Development Agreements be required for such conversions. The
purpose would be to consider the potential loss of Transient Occupancy Tax (TOT) that
would result from such a conversion, and to require some form of revenue replacement,
if appropriate. The new language is shown underlined below.
LU Conversion of Hotel Rooms
Consider the conversion of hotel entitlement to residential entitlement when it is
demonstrated that no additional vehicle trips will result from the conversion.
Hotel rooms existing at the time of adoption of this plan may not be converted
to residential use. Require the execution of Development Agreements for the
conversion of hotel rooms to residential entitlement to define the public benefits
to be provided by the developer in exchange for any loss of revenue resulting
from the conversion.
West Newport Residential (Seashore /Oceanfront)
Staff has been contacted by some property owners who oppose changing the
designation of existing R -2 properties to R -1. Additionally, the Planning Commission
had two persons testify at the June 22nd meeting expressing strong opposition to this
possibility.
Harbor Day School
The Planning Commission reviewed the request to increase the permitted floor area
ratio for this property, concluding that the increase was appropriate so long as adequate
parking and on -site circulation was provided. These issues can be addressed in
subsequent Use Permit amendments which would be required for additional
development at the school.
Land Use Categories Table and Map
The Planning Commission reviewed the proposed land use category system and map
presented to Council in the main report prepared for this meeting. The Commission paid
Planning Commission - July 8, 2021 Item No. 3a - Additional Materials Received Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels