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Home My WebLink About03 - Local Coastal Program Amendment to Allow the Transfer of Development Rights in the Coastal Zone (PA2019-154)Q SEW Pp�T CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report December 13, 2022 Agenda Item No. 3 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Jaime Murillo, AICP, Principal Planner, jmurillo@newportbeachca.gov PHONE: 949-644-3209 TITLE: Ordinance No. 2022-28: Local Coastal Program Amendment to Allow the Transfer of Development Rights in the Coastal Zone (PA2019- 154) ABSTRACT: For the City Council's consideration is adoption of Ordinance No. 2022-28 which amends Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code (NBMC) to include regulations allowing the transfer of development rights in the coastal zone. The ordinance was introduced and considered at the November 29, 2022, City Council meeting. RECOMMENDATION: a) Find this amendment exempt from the California Environmental Quality Act (CEQA) pursuant to Section 21065 of CEQA and State CEQA Guidelines Sections 15060 (c)(2), 15060 (c)(3), and 15378. The proposed action is also exempt pursuant to State CEQA Guidelines Section 15061(b)(3) because it has no potential to have a significant effect on the environment; and b) Conduct second reading and adopt Ordinance No. 2022-28, An Ordinance of the City Council of the City of Newport Beach, California, Adopting Local Coastal Program Amendment No. LC2019-003 as Modified by the California Coastal Commission Amending Title 21 (Local Coastal Program Implementation Plan) of the City of Newport Beach Municipal Code Related to Transfer of Development Rights (PA2019- 154). DISCUSSION: The Newport Beach General Plan (Land Use Element Policies LU4.3 and LU6.14.3) and Newport Beach Municipal Code Section 20.46 (Transfer of Development Rights) provide for the transfer of development rights from one site to another, subject to certain parameters and City Council review. However, the 2017 certified Local Coastal Program (LCP) does not contain any provisions for a potential transfer in the coastal zone and as a result, General Plan policy allowing transfers in the coastal zone cannot be implemented without the proposed amendment. 3-1 Ordinance No. 2022-28: Local Coastal Program Amendment to Allow the Transfer of Development Rights in the Coastal Zone (PA2019-154) December 13, 2022 Page 2 At the October 8, 2019, City Council meeting, the City Council adopted Resolution No. 2019-90, authorizing submittal of LCP Amendment No. LC2019-003 to the California Coastal Commission (CCC) for review and approval. The resolution specified LCP Amendment No. LC2019-003 shall not become effective until approval by the CCC and adoption, including any modifications suggested by the CCC, by resolution(s) and/or ordinance(s) of the City Council. On October 12, 2022, the CCC approved the LCP Amendment with suggested modifications. At the November 29, 2022, City Council meeting, the City Council introduced Ordinance No. 2022-28 and held a public hearing. No further amendments were requested and the item is attached for the City Council's adoption, incorporating the CCC's suggested modifications and establishing regulations allowing the transfer of development rights within the coastal zone. If the ordinance is adopted the item will be sent back to the CCC for final acceptance. FISCAL IMPACT: There is no fiscal impact related to this item. ENVIRONMENTAL REVIEW: The action proposed herein is not a project subject to the California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA Guidelines Sections 15060 (c)(2), 15060 (c)(3), and 15378. The proposed action is also exempt from the CEQA pursuant to State CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Lastly, pursuant to CEQA Guidelines Section 15265(a)(1), local governments are exempt from the requirements of CEQA in connection with the adoption of a Local Coastal Program. The Amendment itself does not authorize development that would directly result in physical change to the environment. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Ordinance No. 2022-28 3-2 Attachment A Ordinance No. 2022-28 (LCP Implementation Plan Amendment) 3-3 ORDINANCE NO. 2022-28 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADOPTING LOCAL COASTAL PROGRAM AMENDMENT NO. LC2019-003 AS MODIFIED BY THE CALIFORNIA COASTAL COMMISSION AMENDING TITLE 21 (LOCAL COASTAL PROGRAM IMPLEMENTATION PLAN) OF THE CITY OF NEWPORT BEACH MUNICIPAL CODE RELATED TO THE TRANSFER OF DEVELOPMENT RIGHTS (PA2019-154) 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, Section 30500 of the California Public Resources Code requires each county and city to prepare a local coastal program ("LCP") for that portion of the coastal zone within its jurisdiction; WHEREAS, in 2005, the City adopted the City of Newport Beach Local Coastal Program Coastal Land Use Plan ("Coastal Land Use Plan"), which has been amended from time to time; WHEREAS, the California Coastal Commission ("Coastal Commission") effectively certified the City's Local Coastal Program Implementation Plan on January 13, 2017, and the City assumed coastal development permit -issuing authority on January 30, 2017; WHEREAS, amendments to Title 21 (Local Coastal Program Implementation Plan) ("Title 21 ") and the Coastal Land Use Plan are necessary to allow for the transfer of development rights consistent with General Plan Land Use Element Policies Nos. LU 4.3 and 6.14.3 and Chapter 20.46 (Transfer of Development Rights) of the Newport Beach Municipal Code ("NBMC"); 3-4 Ordinance No. 2022- Page 2 of 8 WHEREAS, the Planning Commission held a public hearing on August 22, 2019, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the California Government Code Section 54950 et seq. the ("Ralph M. Brown Act") and Chapter 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, at the conclusion of the hearing , the Planning Commission adopted Resolution No. PC2019-026 by a unanimous vote (7 ayes, 0 nays), recommending approval of Local Coastal Program Amendment No. LC2019-003 to the City Council; WHEREAS, pursuant to Title 14 of the California Code of Regulations Section 13515 ("Section 13515"), drafts of Local Coastal Program Amendment No. LC2019-003 were made available and distributed at least six weeks prior to final action; WHEREAS, the City Council held a public hearing on October 8, 2019, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act, Section 13515, and Chapter 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution No. 2019-090 authorizing submittal of Local Coastal Program Amendment No. LC2019-003 to the Coastal Commission by a unanimous vote (7 ayes, 0 nays); WHEREAS, at its October 12, 2022, hearing, the Coastal Commission approved and certified Local Coastal Program Amendment No. LC2019-003 with modifications (LCP-5-NPB-21-0036-1 Part D) as being consistent with the California Coastal Act; and WHEREAS, the City Council held a public hearing on November 29, 2022, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows.. 3-5 Ordinance No. 2022- Page 3 of 8 Section 1: The City Council hereby adopts Local Coastal Program Amendment No. LC2019-003 and accepts the suggested modifications approved by the Coastal Commission. Section 2: Chapter 21.46 (Transfer of Development Rights) is added to Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code to read as follows: Chapter 21.46 TRANSFER OF DEVELOPMENT RIGHTS Sections: 21.46.010 Purpose. 21.46.020 Applicability. 21.46.030 General Requirements. 21.46.040 Procedures. 21.46.050 Findings. 21.46.010 Purpose. This chapter provides procedures for the transfer of development rights from a property to one or more other properties within the same Statistical Area. 21.46.020 Applicability. The provisions of this chapter shall apply within all coastal zoning districts. 21.46.030 General Requirements. A. Floor Area for a Donor Site. The maximum gross floor area allowed on a donor site shall be reduced by the amount of the transfer of development intensity to the receiving site. B. Residential Uses. When the transfer of development rights involve residential units, the transfer shall be on a unit -for -unit basis. 3-6 Ordinance No. 2022- Page 4 of 8 C. Prohibited Areas. Except for Statistical Area L1-Newport Center, the transfer of development rights from a donor site outside the coastal zone to a receiver site within the coastal zone is prohibited. The transfer of development rights from a site with a Visitor Serving Commercial (CV) coastal zoning district designation to a non -CV coastal zoning district shall be prohibited. The transfer of development rights from a site with a CV coastal zoning district designation to any area outside of the coastal zone is prohibited. 21.46.040 Procedures. The following procedure shall be used for the transfer of development rights: A. Application. The applicant shall submit a Coastal Development Permit application to the Department that identifies the quantity of development (e.g., residential units, floor area, hotel rooms, theater seats, etc.) to be relocated and the donor and receiving site(s). If the requested transfer includes the conversion of nonresidential uses, the application shall also identify the quantity of entitlement, by use category, before and after the transfer. The Coastal Development Permit shall be processed in accordance with Chapters 21.50 and 21.52. B. Traffic Analysis. The City Traffic Engineer shall perform a traffic analysis to determine the total number of p.m. peak hour trips that would be generated by development allowed with and without the transfer. Trip generation rates shall be based on standard trip generation values in the current version of the Institute of Traffic Engineers "Trip Generation," unless the City Traffic Engineer determines that other rates are more valid for the uses involved in the transfer. C. Detailed Traffic Analysis. Depending on the location of the donor and receiving site(s), the City Traffic Engineer may determine that a more detailed traffic analysis is required to determine whether adverse traffic impacts will result from the transfer. This analysis shall demonstrate whether allowed development, with and without the transfer, would either cause or make worse an unsatisfactory level of service at any primary intersections for which there is no feasible mitigation. D. Land Use Intensity Analysis. If the transfer request involves the conversion of uses, the Director shall perform a land use intensity analysis to determine the floor area that could be developed with and without the transfer. 3-7 Ordinance No. 2022- Page 5 of 8 E. Council to Consider. Applications for transfer of development rights shall be considered by the Commission with a recommendation to the Council. The Council may approve a transfer of development rights only if it makes all of the findings in Section 21.46.050. F. Legal Assurances. A covenant or other legally binding agreement approved by the City Attorney shall be recorded against the donor site assuring that all of the requirements of the transfer of development rights will be met by the current and future property owners. 21.46.050 Findings. When approving a coastal development permit authorizing a transfer of development rights within Newport Center (Map A-15), the Council shall only make findings set forth in (B) and (E) below. In all other areas, the Council shall make all of the following findings: A. The reduced density/intensity on the donor site provides benefits to the public, in furtherance of the provisions of the LCP, in one of the following ways.- 1 . The provision of extraordinary open space, area(s) for new or expanded habitat restoration, public view corridor(s), public coastal access, increase parking, or other visitor -serving amenities, in addition to what is already required by the LCP; 2. Preservation of natural resources, a historic building, or a property with special character -defining features that contribute to the visual qualities and special community character of areas such as Balboa Village or McFadden Square, that, because of their unique characteristics are popular visitor -serving areas; 3. Improvement of the area's scale and development character; 4. Reduction of local vehicle trips and traffic congestion; 5. More efficient use of land, such as consolidation of lots to achieve a greater visitor -serving use, or a better architectural design than could be achieved without lot consolidation; wil Ordinance No. 2022- Page 6 of 8 6. Dedication or use of existing or proposed private parking lots for public use/access to the coast; 7. Preservation of marine -dependent uses and industries such as shipyards and boat storage facilities; and 8. Incentivization of planned retreat and dedication of open space as an adaptive strategy for coastal hazard risks, such as sea level rise. B. The transfer of development rights will not result in any adverse traffic impacts and would not result in greater intensity than development allowed without the transfer, and the proposed uses and physical improvements would not lend themselves to conversion to higher traffic generating uses; C. The increased development potential transferred to the receiving site will be compatible and in scale with surrounding development and will not create abrupt changes in scale or character; D. The receiving site is physically suitable for the development proposed taking into consideration adjacent circulation patterns, protection of significant public views and open space, and site characteristics, including coastal hazard risks, any slopes, submerged areas, and sensitive resources; and E. The transfer of development rights decision is consistent with the Coastal Land Use Plan and does not result in any significant adverse impacts to public access, public views, sensitive coastal resources, or "Sensitive Coastal Resource Areas." Section 3: Area Map A-15 - Newport Center is added to Section 21.80.010 (Area Maps) of Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code, which is attached hereto and incorporated herein by reference as Exhibit "A." Section 4: The LCP, including Local Coastal Program Amendment No. LC2019-003, will be carried out fully in conformity with the California Coastal Act. Section 5: The recitals provided in this ordinance are true and correct and are incorporated into the substantive part of this ordinance. 3-9 Ordinance No. 2022- Page 7 of 8 Section 6: The City Council hereby authorizes City staff to submit this ordinance for a determination by the Executive Director of the Coastal Commission that this action is legally adequate to satisfy the specific requirements of the Coastal Commission's October 12, 2022, action on LCP Amendment Request No. LCP-5-NPB- 21-0036-1 Part D (Transfer of Development Rights). Section 7: This ordinance shall not become effective for thirty days after adoption and until the Executive Director of the Coastal Commission certifies that this ordinance complies with the Coastal Commission's October 12, 2022, action on LCP Amendment Request No. LCP-5-NPB-21-0036-1 Part D (Transfer of Development Rights). Section 8: If any section, subsection, sentence, clause or phrase of this ordinance 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 ordinance. The City Council hereby declares that it would have passed this ordinance 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. Section 9: The City Council finds this action is exempt from environmental review under the California Environmental Quality Act ("CEQA") pursuant to Section 21065 of the California Public Resources Code and Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). This action is also exempt under CEQA Guidelines Section 15061(b)(3), which states that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Lastly, pursuant to CEQA Guidelines Section 15265(a)(1), local governments are exempt from the requirements of CEQA in connection with the adoption of a Local Coastal Program. Local Coastal Program Amendment No. LC2019-003 itself does not authorize development that would directly result in physical change to the environment. Section 10: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged and shall be in full force and effect. 3-10 Ordinance No. 2022- Page 8 of 8 Section 11: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414 and the same shall become final and effective as provided in Section 7 of this ordinance. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 29th day of November, 2022, and adopted on the 13th day of December, 2022, by the following vote, to -wit: AYES: NAYS: ABSENT: KEVIN MULDOON, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE RON C. HARP, CITY ATTORNEY Exhibit A: Area Map A-15 — Newport Center 3-11 N 4e' WX % Ne 44 It P. Csy Nly IN. Ar f -IL A-15 Newport Center A-I5 NewaM Centrw a 21-10 500 m x 27 cr a- 3-12