HomeMy WebLinkAbout05 - Adopting Housing Element Implementation Noise-Related Amendments (PA2022-0201)Q �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
November 28, 2023
Agenda Item No. 5
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Assistant City Manager/Community Development
Director - 949-644-3232, sjurjis@newportbeachca.gov
PREPARED BY: Seimone Jurjis, Assistant City Manager/Community Development
Director
TITLE: Ordinance Nos. 2023-20 and 2023-21: Adopting Housing Element
Implementation Noise -Related Amendments (PA2022-0201)
/_1 163I zf_Tel 6
For the City Council's consideration is the second reading and adoption of two ordinances
to amend Title 20 (Planning and Zoning) of the Newport Beach Municipal Code, Newport
Place Planned Community Development Plan (PC-11) and Newport Airport Village
Planned Community Development Plan (PC-60) related to noise -related amendments in
the Airport Area necessary to implement the 6t" Cycle Housing Element.
RECOMMENDATIONS:
a) Find the adoption of ordinances is exempt from CEQA pursuant to CEQA Guidelines
Section 15183, and within the scope of analysis contained within EIR No. 617,
prepared, and certified by the County for the 2014 JWA Settlement Agreement
Amendment, and the 2006 General Plan, as amended;
b) Conduct second reading and adopt Ordinance No. 2023-20, An Ordinance of the City
Council of the City of Newport Beach, California, Approving an Amendment to Title 20
(Planning and Zoning) of the Newport Beach Municipal Code Related to Noise in the
Airport Area Necessary to Implement the 6t" Cycle Housing Element (PA2022-0201),
and
c) Conduct second reading and adopt Ordinance No. 2023-21, An Ordinance of the City
Council of the City of Newport Beach, California, Approving Amendments to Newport
Place Planned Community Development Plan (PC-11) and Newport Airport Village
Planned Community Development Plan (PC-60) Related to Noise in the Airport Area
Necessary to Implement the 6t" Cycle Housing Element (PA2022-0201).
DISCUSSION:
On November 14, 2023, the City Council conducted a noticed public hearing on the
proposed ordinances. After taking public testimony, the City Council adopted Resolution
Nos. 2023-72 and 2023-73, and introduced Ordinance Nos. 2023-20 and 2023-21.
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Ordinance Nos. 2023-20 and 2023-21: Adopting Housing Element Implementation
Noise -Related Amendments (PA2022-0201)
November 28, 2023
Page 2
Ordinance Nos. 2023-20 and 2023-21 amend Title 20 of the Newport Beach Municipal
Code, the Newport Place Planned Community Plan (PC-11), and Newport Airport Village
Planned Community Development Plan (PC-60) to allow parcels or sites wholly or
partially outside the John Wayne Airport 65 dBA CNEL noise contour to be developed for
residential or mixed -use.
The ordinances require a second reading and final adoption. If the ordinances are
adopted, they will take effect 30 days after adoption.
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL REVIEW:
The City Council determined the Amendments are exempt from CEQA pursuant to CEQA
Guidelines section 15183, and within the scope of analysis contained within EIR No. 617,
prepared, and certified by the County for the 2014 JWA Settlement Agreement
Amendment, and the 2006 General Plan, as amended.
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).
ATTACHMENTS:
Attachment A — Ordinance No. 2023-20: Amendment to Title 20
Attachment B — Ordinance No. 2023-21: Amendments to PC-11 & PC 60
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ATTACHMENT A
ORDINANCE NO. 2023-20
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING AN
AMENDMENT TO TITLE 20 (PLANNING AND ZONING) OF
THE NEWPORT BEACH MUNICIPAL CODE RELATED TO
NOISE IN THE AIRPORT AREA NECESSARY TO
IMPLEMENT THE 6th CYCLE HOUSING ELEMENT
(PA2022-0201)
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, in January 2019, the City Council initiated a comprehensive update
of the Newport Beach General Plan, however, due to the Regional Housing Needs
Assessment ("RHNA") allocation of 4,845 new housing units to plan for the 2021-2029
housing period, the City Council directed City staff to focus on the Housing Element, Land
Use Element, and Circulation Element;
WHEREAS, the City Council adopted the 6th Cycle Housing Element covering the
period 2021-2029 planning period ("6th Cycle Housing Element") on September 13, 2022,
and it was certified by the State Department of Housing and Community Development on
October 5, 2022;
WHEREAS, the 6th Cycle Housing Element, including Appendix B, has been
subject to extensive public participation in accordance with Government Code Section
65351 including thirteen community workshops, fourteen Housing Element Update
Advisory Committee ("HEUAC") meetings, review of the Housing Element by the
Planning Commission, and six duly noticed City Council study sessions;
WHEREAS, additionally, the HEUAC formed five different subcommittees to
thoroughly review and identify all feasible sites for potential redevelopment as residential
in the future and those sites are captured in Appendix B (Adequate Sites Analysis), which
demonstrates the City's capacity to meet the RHNA allocation;
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Ordinance No. 2023-
Page 2 of 8
WHEREAS, the 6th Cycle Housing Element identifies five focus areas where
future housing opportunities will be created through the adoption of housing opportunity
overlays or other rezone strategies to establish the ability to develop additional housing
to meet the RHNA;
WHEREAS, the increase in units above the minimum RHNA allocation is in
response to the unusually high percentage of below market rate units the RHNA
mandates coupled with the significant challenges to planning, financing, and constructing
workforce housing with higher -than -average land costs;
WHEREAS, the entire Airport Area Environs is proximate to John Wayne Airport
and subject to the John Wayne Airport Environs Land Use Plan ("AELUP");
WHEREAS, forty-eight housing sites identified in the focus area are within or
bisected by the 65 weighted decibel ("dBA") community noise equivalent level ("CNEL")
noise contour identified in the AELUP;
WHEREAS, the following amendments to the Noise Element and Land Use
Element of the General Plan, Title 20 (Planning and Zoning) of the Newport Beach
Municipal Code ("NBMC"), Newport Place Planned Community Development Plan (PC-
11), and Newport Airport Village Planned Community Development Plan (PC-60) are
necessary to allow residential use, including mixed -use residential, on housing
opportunity sites that are wholly or partially located outside the 65 dBA:
Land Use Element:
• Policy LU6.15.3 (Airport Compatibility),
• Figure LU11 — Statistical Areas J6, L4,
• Figure LU22 —Airport, and
• Figure LU23 - Airport Area Residential Villages Illustrative Concept
Diagram (removal of 65 CNEL noise contour line);
Noise Element:
• Policy N 1.2 (Noise Exposure Verification for New Development),
• Policy N1.5.A (Airport Area Infill Amendments (new policy),
• Policy N 2.2 (Design of Sensitive Land Uses),
• Policy N 3.2 (Residential Development),
• Figure N4 - Future Noise Contours, and
• Figure N5 — Future Noise Contours;
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Ordinance No. 2023-
Page 3 of 8
Title 20 (Planning and Zoning) of the NBMC:
• Section 20.30.080(F) (Noise -Airport Environs Land Use Plan);
Planned Communities:
• Newport Place Planned Community Development Plan (PC-11) — Part
III. Residential Overlay Zone, Section V.D.1 (Airport Noise
Compatibility), and
• Newport Airport Village Planned Community Development Plan (PC-60)
— Section I.D (Purpose and Objective) & Section II.B.2 (Prohibited
Uses);
WHEREAS, the Amendments change noise compatibility policies and regulations
and do not change the existing underlying land use categories or zoning designations of
any property;
WHEREAS, the Amendments do not add residential unit capacity to the Land Use
Element, and therefore, the General Plan amendments included in the Amendments do
not require a vote of the electorate pursuant to Charter Section 423;
WHEREAS, a public hearing was held by the Planning Commission on August 3,
2023, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach. A
notice of time, place and purpose of the public hearing was given in accordance with
Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62
(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. PC2022-015, unanimously (4 ayes and 3 recusals), recommending the
City Council approve the Amendments;
WHEREAS, Section 21676(b) of the California Public Utilities Code ("CPUC")
required the City to refer the Amendments to the Orange County Airport Land Use
Commission ("ALUC") for a determination that the Amendments are consistent with the
AELUP;
WHEREAS, on August 17, 2023, ALUC determined the Amendments were
inconsistent with the AELUP;
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Ordinance No. 2023-
Page 4 of 8
WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council
may, after a public hearing, propose to overrule ALUC with a two-thirds vote, if it makes
specific findings that the Amendments are consistent with the purpose of Section 21670
of the CPUC to protect 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;
WHEREAS, a public hearing was held by the City Council on September 12,
2023, in the City Council Chambers, 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;
WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution
No. 2023-52 by a unanimous vote (5 ayes, 1 recused, 1 absent), to notify ALUC and the
State Department of Transportation, Aeronautics Program ("Aeronautics Program") of the
City's intent to override ALUC's inconsistency finding;
WHEREAS, notice of the City's intent to override the ALUC inconsistency
determination, along with Resolution No. 2023-52 was sent via certified mail and emailed
to ALUC and Aeronautics Program on September 13, 2023;
WHEREAS, the City received timely comments in response to the notice of the
City's intent to override the ALUC inconsistency determination from John Wayne Airport,
ALUC, and the Aeronautics Program in accordance with CPUC Section 21676; and
WHEREAS, a public hearing was held by the City Council on November 14, 2023,
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 the Ralph M. Brown Act, Chapter 20.62 (Public Hearings) of the NBMC, and CPUC
Section 21676(b). 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 ordains as
follows:
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Ordinance No. 2023-
Page 5 of 8
Section 1: The City Council hereby approves an amendment to Title 20
(Planning and Zoning) of the NBMC amendment, as set forth in Exhibit "A", which is
attached hereto and incorporated herein by reference and finds that an amendment to
Title 20 is legislative act. Neither Chapter 20.66 (Planning and Zoning, Amendments) of
Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter
4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land
Use) of the California Government Code set forth any required findings for either approval
or denial of such amendments. Notwithstanding the foregoing, the amendment to Title 20
(Planning and Zoning) of the NBMC is consistent with the following City of Newport Beach
Housing Element Policies and Policy Actions:
Findings:
1. Housing Element Policy 4.2.
Enable construction of new housing units sufficient to meet City qualified goals
by identifying adequate sites for their construction.
2. Policy Action 4J (Airport Environs Sub Area Environmental Constraints).
Policy Action 4J requires the City to take the following actions to address potential
environmental constraints in the Airport Environs Sub Area and ensure continued
feasibility of sites, particularly for lower -income RHNA:
a. Require new residential development projects in the Airport Environs Sub
Area provide noise studies and acoustical analyses to ensure designs
include proper sound attenuation;
b. Require new residential development projects in the Airport Environs Sub
Area to explore advanced air filtration systems for buildings to promote
cleaner air;
C. Encourage on -site indoor amenities, such as fitness facilities or recreation
and entertainment facilities; and
d. Continue to implement park dedication requirements consistent with the
City's Park Dedication ordinance and Land Use Element Policy LU 6.15.13
(Neighborhood Parks —Standards) and Policy LU 6.15.16 (On -Site
Recreation and Open Space) to ensure adequate recreational space to
ensure at least 8- percent of a project's gross land area (exclusive of
existing rights -of -way) of the first phase for any development in each
neighborhood or '/2 acre, whichever is greater, is developed as a
neighborhood park, unless waived through Density Bonus Law.
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Ordinance No. 2023-
Page 6 of 8
Facts in Support of Findings:
The City has taken actions to address potential environmental constraints in the Airport
Area and ensure continued feasibility of sites, particularly for lower -income RHNA by
providing the following uniform and concise criteria:
a. Prior to the issuance of any building permits for such development, a noise
study shall be prepared by a City -approved qualified acoustical consultant
and submitted to the Community Development Director for approval;
b. All new residential structures or the residential units within a mixed -use
development shall be attenuated to provide an interior noise level of 45 dBA
CNEL or less;
C. The design of the residential portions of mixed -use projects and residential
developments shall have adequate noise attenuation between adjacent
uses and units (common floor/ceilings) in accordance with the California
Building Code;
d. New mixed -use developments shall incorporate designs with loading areas,
parking lots, driveways, trash enclosures, mechanical equipment, and other
noise sources away from the residential portion of the development;
e. Use of walls, berms, interior noise insulation, double paned windows,
advance insulation systems, or other noise mitigation measures, as deemed
appropriate shall be incorporated in the design of new residential to bring
interior sound attenuation to 45 dBA CNEL or less;
f. Residential uses shall be indoor -oriented to reduce noise impingement on
outdoor living areas;
g. On -site indoor amenities, such as fitness facilities or recreation and
entertainment facilities shall be encouraged; and
h. Advanced air filtration systems for buildings shall be considered to promote
cleaner air.
Lastly, all new housing opportunity sites are located wholly or partially outside the updated
65 dBA noise contour area. By requiring conditions of approval identified in amendment to
Title 20 (Planning and Zoning) of NBMC, the City has taken actions to address potential
environmental constraints in the Airport Area and ensure continued feasibility of sites,
particularly for lower -income RHNA.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Ordinance No. 2023-
Page 7 of 8
Section 3: 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 4: The City Council finds the action to override the ALUC's August
17, 2023, determination and the approval of the Amendments are exempt from the
California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Section
15183 because they do not change the underlying land use or zoning designations of
any specific parcels, including parcels within the Airport Area or within the updated noise
contours based upon the findings set forth in Exhibit "B," which is attached hereto and
incorporated herein by reference.
Section 5: 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. This ordinance shall be effective thirty
(30) calendar days after its adoption.
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Ordinance No. 2023-
Page 8 of 8
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 14th day of November, 2023, and adopted on the 28th day
of November, 2023, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
NOAH BLOM, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AARON 0/*KARP, CIT? ATTORNEY
Attachment(s): Exhibit A - Amendment to Title 20 (Planning and Zoning)
Exhibit B - CEQA Findings of Consistency
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EXHIBIT "A"
Amendment to Title 20 (Planning and Zoning) of the Newport Beach Municipal
Code
Amend Section 20.30.080.E (Neise-AirpQTE,^RiFORS L,and Use RaR Residential Use
Proximate to John Wayne Airport) of Title 20 (Planning and Zoning) of the Newport
Beach Municipal Code to read as follows:
F. Residential Use Proximate to John Wayne Airport F=RRs- Land Use Tlan.
Residential uses, including mixed -use residential, shall be
allowed on parcels or sites
wholly or partially outside the John Wayne Airport 65 dBA CNEL noise contour as
shown in Figure N5 of the Noise Element of the General Plan, as identified in the
2014 John Wayne Airport Settlement Agreement Amendment Environmental
Impact Report (EIR No. 617) and consistent with Title 21 of the California Code of
Regulations, subject to the following conditions that apply to all residential
projects within the John Wayne Airport 60 dBA CNEL or higher CNEL noise as
shown in Figures N4 and N5 of the Noise Element of the General Plan:
1) Prior to the issuance of any building permits for such development, a noise
study shall be prepared by a City -approved qualified acoustical consultant
and submitted to the Community Development Director for approval;
2) All new residential structures or the residential units within a mixed -use
development shall be attenuated to provide an interior noise level of 45 dBA
CNEL or less;
3) The design of the residential portions of mixed -use projects and residential
developments shall have adequate noise attenuation between adjacent uses
and units (common floor/ceilings) in accordance with the California Building
Code;
4) New mixed -use developments shall incorporate designs with loading areas,
parking lots, driveways, trash enclosures, mechanical equipment, and other
noise sources away from the residential portion of the development;
5) Use of walls, berms, interior noise insulation, double paned windows,
advance insulation systems, or other noise mitigation measures, as deemed
appropriate shall be incorporated in the design of new residential to bring
interior sound attenuation to 45 dBA CNEL or less;
6) Residential uses shall be indoor -oriented to reduce noise impingement on
outdoor living areas;
7) On -site indoor amenities, such as fitness facilities or recreation and
entertainment facilities shall be encouraged; and
8) Advanced air filtration systems for buildings shall be considered to promote
cleaner air.
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9) Residential development shall be limited to parcels or sites wholly or
partially outside the 65 dBA CNEL noise contour, unless and until the City
determines, based on substantial evidence, that the parcels or sites wholly
within such contour area are needed for the City to satisfy its Wh Cycle RHNA
mandate. Non-residential uses are encouraged on parcels or sites located
wholly within the 65 dBA CNEL contour area.
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EXHIBIT "B"
CEQA Findings of Consistency
The California Environmental Quality Act ("CEQA") (California Public Resources Code
§§21000 et seq.); the State CEQA Guidelines (Title 14, California Code of Regulations
§§15000 et seq.); and the rules, regulations, and procedures for implementing CEQA as set
forth by the City of Newport Beach ("City") provide guidance regarding when additional
environmental review is required. Pursuant to the provisions of CEQA and the State CEQA
Guidelines, Newport Beach is the Lead Agency charged with the responsibility of deciding
whether to approve the Amendments to Newport Beach General Plan Land Use and Noise
Elements, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC"),
Newport Place Planned Community (PC-11), and Newport Airport Village Planned
Community (PC-60) (Amendments) to accommodate housing units identified by the certified
2021-2029 Sixth Cycle General Plan Housing Element ("6th Cycle Housing Element").
The provisions of State CEQA Guidelines Section 15183 are applicable to the Amendments.
The Amendments are not subject to further environmental review pursuant to CEQA
Guidelines Section 15183 because the Amendments do not change the underlying land use
or zoning designations of any specific parcels, including parcels within the Airport Area or
within the updated noise contours; and would not result in new significant impacts or a
substantial more adverse impact than addressed in John Wayne Airport Settlement
Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No.
2001111135) (EIR No. 617). The Amendments are also exempt because they fall within the
scope of analysis contained within the previously certified EIR No. 617, prepared for the
2014 John Wayne Airport Settlement Agreement, to which the City is a party.
CEQA Guidelines Section 15183 provides, in relevant part:
(a) CEQA mandates that projects which are consistent with the development density
established by existing zoning, community plan, or general plan policies for which
an EIR was certified shall not require additional environmental review, except as
might be necessary to examine whether there are project -specific significant effects
which are peculiar to the project or its site. This streamlines the review of such
projects and reduces the need to prepare repetitive environmental studies.
(b) In approving a project meeting the requirements of this section, a public agency
shall limit its examination of environmental effects to those which the agency
determines, in an initial study or other analysis:
(1) Are peculiar to the projector the parcel on which the project would be located,
(2) Were not analyzed as significant effects in a prior EIR on the zoning action,
general plan, or community plan, with which the project is consistent,
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(3) Are potentially significant off -site impacts and cumulative impacts which were
not discussed in the prior EIR prepared for the general plan, community plan or
zoning action, or
(4) Are previously identified significant effects which, as a result of substantial new
information which was not known at the time the EIR was certified, are
determined to have a more severe adverse impact than discussed in the prior
EIR.
(c) If an impact is not peculiar to the parcel or to the project, has been addressed as a
significant effect in the prior EIR, or can be substantially mitigated by the imposition
of uniformly applied development policies or standards, as contemplated by
subdivision (e) below, then an additional EIR need not be prepared for the project
solely on the basis of that impact.
(d) This section shall apply only to projects which meet the following conditions:
(1) The project is consistent with:
(A) A community plan adopted as part of a general plan,
(B) A zoning action which zoned or designated the parcel on which the
project would be located to accommodate a particular density of
development, or
(C) A general plan of a local agency, and
(2) An EIR was certified by the lead agency for the zoning action, the community
plan, or the general plan.
As part of its decision -making process, the City is required to review and consider whether
the Amendments would create new significant impacts or significant impacts that would be
substantially more severe than those disclosed in the John Wayne Airport Settlement
Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No.
2001111135) (EIR No. 617). Additional CEQA review is only triggered if the Amendments
create new significant impacts or impacts that are more severe than those disclosed in EIR
No. 617 such that major revisions to the EIR would be required.
The Amendments provide for updated noise contours as established in EIR No. 617 and
revisions to General Plan policies, Title 20 of NBMC, Newport Place Planned Community
(PC-11), and Newport Airport Village Planned Community (PC-60) to allow for consistency
between the certified 6th Cycle Housing Element and the Newport Beach General Plan and
NBMC as it applies to future housing uses near John Wayne Airport. The Amendments are
proposed to ensure consistency pursuant to the State Planning and Zoning Law and the
City's compliance with its RHNA allocation.
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As explained below, none of the Amendments revise the land use designation, density or
development standards applicable to residential or non-residential development in the
Airport Area. The Amendments do not grant any development entitlements or authorize
development. Rather, the purpose of the Housing Element Noise Update is to advance
the policies and goals of the 6th Cycle Housing Element by removing the barrier in
multiple General Plan and zoning policies that prohibit residential development within the
1985 65 dBA CNEL. The Amendments, therefore, will not result in development of
greater intensity than is allowed under the 2006 General Plan and Newport Airport
Village Planned Community, as amended.
Although the City's 2006 General Plan approved a maximum of 2,200 residential units in
the Airport Area at a maximum density of 50 dwelling units per net acre (du/net acre), the
General Plan Program EIR evaluated 4,300 residential units in the Airport Area. California
courts have upheld reliance on this exemption for programmatic planning decisions. See,
e.g., Lucas v. City of Pomona, 92 Cal.App.5th 508 (2023) (city properly relied on CEQA
Guidelines section 15183 when approving a zoning overlay district allowing commercial
cannabis activities on specific parcels located in certain areas within the City; court noting
that "the Project merely imposes an overlay use on existing zoning; it does not guarantee
anyone the automatic right to establish a cannabis -related business, but rather, provides
the option to apply for a cannabis business permit. In that sense, the Amendments does
not cause project -specific effects 'peculiar' to it.") Because no additional CEQA review is
required, the City is not required to analyze additional mitigation measures for the
Housing Element Noise Update at this time. Furthermore, as noted above, the Housing
Element Noise Update requires (as a local regulatory requirement, not CEQA mitigation
measure) residential projects located within the 65 dBA CNEL contour line to include
appropriate in -door sound attenuation methods.
The Noise Chapter of EIR No. 617 explained how the dBA CNEL noise contours have
reduced in size compared to the 1985 Airport Environs Land Use Plan ("AELUP") Master
Plan CNEL noise contours, in which the City's General Plan policies and maps are based
on. The 1985 Master Plan noise contours are considerably larger than the existing noise
contours presented previously. This is largely due to a quieter fleet of existing commercial
aircraft and a dramatic reduction in the number of generation aviation operations. The noise
contours in EIR No. 617 are based on more contemporary noise modeling programs, as the
EIR explained that "one of the most important factors in generating accurate noise contours
is the collection of accurate operational data". Airport noise contours generated in this noise
study using the INM Version 7.Od which was released for use in May 2013, and is the state -
of -art in airport noise modeling.
As such, the City proposes to update the Noise Element to include these noise contours,
which in part, modify where residential uses could occur outside of the 65 CNEL contour in
the Airport Area. Based on these updated noise contours, certain Housing Opportunity Sites
will now be outside of the 65 CNEL contour while others will be within the 65 CNEL contour.
However, the Amendments will not result in development of greater intensity than is allowed
under the 2006 General Plan and Newport Airport Village Planned Community, as
amended. Residential uses can be allowed in the Airport Area on parcels that are wholly or
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partially outside the 65dBA CNEL contour as denoted in Figure N5 of the Noise Element.
The JWA noise contours depicted in Figure N5 as proposed are the noise contours from
EIR No. 617. Residential uses may be approved in these areas provided interior living areas
are protected from excessive noise by appropriate construction techniques that reduce the
interior noise to 45 dBA CNEL, consistent with state law. Parcels that are wholly within the
65 dB CNEL contour shown in Figure N5 (e.g., those identified as experiencing noise levels
above 65 dB CNEL) are unsuitable for residential development unless and until the City
determines, based on substantial evidence, that the site(s) wholly within the 65-70 dB CNEL
contours are needed for the City to satisfy its 6th Cycle RHNA mandate. The changes would
not allow for more development than assumed in the growth assumptions in the General
Plan nor would it impact the City's RHNA obligations.
To the extent new parcels are able to be developed in the future for residential uses, by
nature of no longer being located within areas identified as experiencing 65 dB CNEL or
greater, those parcels must be part of a specific proposed project for consideration and
processing by the City for approval. Future housing development would be subject to
compliance with the established regulatory framework, namely federal, State, regional, and
local (including General Plan policies, NBMC standards, and Standard Conditions of
Approval). While by -right housing projects may be exempt from CEQA, all future residential
uses affected by the Amendments would continue to be subject to further development
review, which can include technical supporting reports.
The Amendments are also exempt because they fall within the scope of analysis
contained within EIR No. 617, prepared and certified by the County for the 2014 John
Wayne Airport Settlement Agreement Amendment, to which the City is a party. EIR No.
617, fully analyzed impacts on sensitive receptors (including residential uses) in
adopting the Settlement Agreement Amendment, including the updated CNEL
contour boundaries associated therewith, using both the County and City's thresholds
of significance. The City was a responsible agency for EIR No. 617, and co -signatory to
the Settlement Agreement Amendment. EIR No. 617 concluded that the Settlement
Agreement Amendment (and associated updated CNEL contours) would result in less -
than -significant impacts related to noise increases at sensitive receptors, but a
significant and unavoidable impact from increasing noise levels at exterior use areas
of residences. A Statement of Overriding Considerations was adopted. No lawsuits
were filed challenging the adequacy of EIR No. 617.
EIR No. 617 fully analyzed impacts on sensitive receptors (including residential uses) in
adopting the Settlement Agreement Amendment, including the updated CNEL contour
boundaries associated therewith. In April 2014, the County of Orange prepared a EIR in
connection with the Airport Settlement Amendment (SHC No. 2001111135). The County
Board of Supervisors certified the EIR on September 30, 2014. The County's approval of
the Project would be contingent upon the City Council of Newport Beach and the
governing boards of Stop Polluting Our Newport ("SPON") and Airport Working Group
("AWG") approving and executing the agreed upon amendment to the Settlement
Agreement. The City was a responsible agency and the City Council relied on EIR No.
617 for CEQA purposes in approving the Settlement Agreement Amendment. A
5-16
Statement of Overriding Considerations was adopted. No lawsuits were filed challenging
EIR No. 617.
EIR No. 617 analyzed potentially significant environmental effects of residential land uses
in the 65 dB CNEL. Specifically, the noise and land use and planning chapters of EIR No.
617 quantified and analyzed noise and land use incompatibility impacts associated with
existing residential uses (and noise receptors) in the 65 dBA CNEL. The cumulative
impacts analyses in the 65 dB CNEL expressly reflected future planning trends, growth
projections and specific projects located in the Airport Area in proximity to JWA.
Noise
EIR No. 617 provides an explanation as to why the 2014 dBA CNEL contours are smaller
than the 1985 Master Plan CNEL contours. The EIR observed that "the Mater Plan noise
contours are considerably larger than existing noise contours ... due to a quieter fleet of
existing commercial aircraft and a dramatic reduction in the number of generation aviation
operations ...."' The 2014 CNEL contours were also based on a newly adopted, "state-
of-the-art" noise modeling program.2 Overall, the EIR found that the 65 dBA CNEL
contour area was 114% smaller than the analog from the 1985 Master Plan.
• 60 and 65 CNEL contour: Master Plan contours are 114 percent larger than the Existing
Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to noise levels in the 60 to 65 dB CNEL range is
125 percent larger than the currently exposed area.
• 65 and 70 CNEL contour: Master Plan contours are almost 50 percent larger than the
Existing Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to the 65 to 70 dB CNEL noise levels is 80 percent
larger than the currently exposed area.
70* CNEL contour: Master Plan contours are 80 percent larger than the Existing
Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to noise levels that exceed 70 dB CNEL is
311 percent larger than the currently exposed area.
EIR No. 617 then quantified the number of sensitive receptors (including residential uses)
within the updated 65 dba CNEL contour area, compared those to those covered under
the now -outdated 1985 CNEL contours. In doing so, the EIR noted that the area
surrounding the Airport is generally urban in character. Surrounding uses include
industrial, commercial, and residential uses. The residential area is predominately south
and southwest of the Airport. (Id. at 2-12). Specifically, EIR No. 617's Noise Technical
Report, prepared by Landrum and Brown,3 quantified the number of sensitive receptors
(including residential units) that would be impacted by the Project and its utilization of the
2014 EIR at 4.6-34.
2 Id. at 4.6-31. Airport noise contours were generated using the INM Version 7.0d. The latest version, 1NM
Version 7.0d, was released for use in May 2013 and is the state-of-the-art in airport noise modeling.
3https://www.newportbeaclica,govipiri/CEoA REVIE W/John%2DWavne%20Airoort%o2ODE IR/CC%205A%20Appendices%20to%20
FEI R%206171Appendix%20C%20-%20Noise%20Anafysis%20Technica1%20Report. pdf
5-17
updated CNEL contours, Table 22 of the Noise Technical Report compared the number
of residential units within both the 1985 and 2014 65 dBA CNEL contours.
a 70 CNEL contour: 379 acres/0.59 square mile, including 1 place of worship (the Orange
Coast Free Methodist Church), but no other noise -sensitive land uses.
• 65 to 70 CNEL contour: 561 acres/0.88 square mile, including 96 residences (of which
49 are sound insulated) and 2 places of worship (Islamic Educational Center of Orange
County and Berean Community Church), but no other noise -sensitive land uses.
• 60 to 65 CNEL contour: 1,313 acres/2.05 square miles, including 932 residences (of
which 348 are sound insulated], 5 places of worship, and 4 schools, as listed below:
Using the City's thresholds of significance, EIR No. 617 ultimately concluded that the
Project would not result in noise increases at sensitive receptors where existing exposure
is 65 CNEL or above, between 60 and 65 CNEL, or 45 and 60 CNEL. However, the EIR
determined that the Project would generate aircraft noise that would increase noise levels
at exterior use areas of residences or schools to noise levels of 65 CNEL or above or
interior areas of residences or schools to noise levels of 45 CNEL. Specifically, the Project
would have a significant exterior noise impact on 31 residences in Phase 1, 62 residences
in Phase 2, and 77 residences in Phase 3. The Proposed Project would have a potentially
significant interior noise impact on 21 residences in Phase 1, 39 residences in Phase 2,
and 43 residences and one place of worship in Phase 3. A Statement of Overriding
Considerations was adopted to cover this significant and unavoidable impact, which was
not subject to legal challenge (nor was EIR No. 617).
Land Use and Plannin
EIR No. 617's land use and planning chapter acknowledged that JWA is located in an
urbanized area. The surrounding land uses for areas in the City that are adjacent to JWA
included the same land uses that exist today, including but not limited to, AO (Office
Airport), CO-G (General Commercial Office), CG General Commercial, MU-H2 (Mixed
Use Horizontal). (EIR at 4.5-17). As noted above, the Noise Analysis Technical Report
analyzed land uses within the 2014 CNEL_ contours, to determine "the amount of area
and sensitive receptors" in such contours. (See directly above.) EIR No. 617 observed
that, "as the 65 CNEL contour expands beyond the existing contour and includes
additional residences this would be a significant impact." (EIR at 4.5-32). The EIR
ultimately concluded that, with all phases of the Proposed Project, there would be a
significant, unavoidable land use and land use impact due to an increase in the number
of noise -sensitive uses exposed to noise levels in excess of the 65 CNEL exterior noise
standard. There are no feasible mitigation measures for exterior noise levels.
Implementation of Mitigation Measure LU-1 would potentially reduce impacts associated
with excess interior noise levels to less than significant levels. However, until interior noise
measurements are taken, it cannot be determined if all the noise sensitive uses with
interior noise levels in excess of 45 CNEL would qualify for sound attenuation based on
FAA criteria. Given the uncertainty that this measure is feasible to adequately reduce
interior noise levels at all potentially impacted residences, the impact was determined to
° See, e.g., 2014 ER Table 4.6-18 (at p. 4.6-69);
5-18
be significant and unavoidable. A Statement of Overriding Considerations was adopted
to cover this significant and unavoidable impact, which was not subject to legal challenge
(nor was EIR No. 617).
Cumulative Impacts
Chapter 5.0 (Cumulative Impacts) of EIR No. 617 considered existing and future
residential uses when analyzing impacts of the Settlement Agreement Amendment and
2014 CNEL lines. For example, the cumulative impacts analysis considered countywide
growth and development forecasts based on input from the County of Orange and the
cities located in the County. These projections reflect adopted land uses and future
growth scenarios based on local land use policies. (EIR at 5-3). The EIR explained:
"The OCP-2010 Modified projections provide forecasts to the year 2035 and take
into account the projected growth Orange County in its entirety. OCP-2010
Modified projections are particularly useful in evaluating the cumulative impacts
associated with traffic, air quality, greenhouse gas ("GHG") emissions, and noise
because they provide growth assumptions consistent with the local general plans
that have been developed with a long-range horizon year. This allows the
cumulative analysis to go beyond just a listing of projects, which would not
adequately reflect conditions at Project buildout." (Id.)
Further, Section 5.2.2 of the EIR contains a list of reasonably foreseeable probable future
projects, some of which are located in the Airport Area of the City. See, e.g., Table 5-2
(including, among others, Koll Mixed Use Development, MacArthur at Dolphin -Striker
Way, Newport Business Uptown Newport Mixed Use Development, and the previously
considered Land Use Element Update). The cumulative impacts analysis expressly found
that "[w]hen compared to existing conditions, the 0 Project and all the alternatives would
extend the 65 CNEL contour into areas designed for mixed -use development in the City
of Newport Beach's Airport Area. The City of Newport Beach General Plan's Noise
Element noise/land use compatibility matrix (see Table N2 in the Noise Element, page
12-23) lists mixed use land uses within the 65 CNEL contour as "normally
incompatible,'... If new construction or development does proceed, a detailed analysis of
noise reduction requirements must be made and noise insulation features must be
included in the design." (EIR at 5-37). "Though design plans for the development projects
identified as part of the Newport Beach LUE have not been prepared, it is reasonable to
assume that the City of Newport Beach would evaluate each of the cumulative projects
for policy consistency through the entitlement process. Therefore, the Project would not
contribute to any cumulative impacts associated with plan or policy inconsistency." (EIR
at 5-39).
No new information that was not known at the time the General Plan and EIR No. 617 were
prepared is now available that demonstrates that the Amendments will result in a new or
increased significant impact. The Amendments would not cause growth beyond that
accommodated by the General Plan. The Amendments do not introduce new land use
designations or otherwise alter general land use patterns or development standards.
5-19
Therefore, the findings of previously certified EIR No. 617 are applicable to the
Amendments. Implementation of the Amendments would not substantially increase the
severity of previously identified impacts, including but not limited to air emissions and
greenhouse gas emissions. Although the noise contours would be updated, the
requirements for compliance with noise standards would not change.
Finally, overriding ALUC and adoption of the Amendments does not constitute
piecemealing. Additional environmental review for the Housing Element Noise Update is
not needed for two independent reasons: (i) the update is exempt under CEQA Guidelines
section 15183, and (ii) it is fully within the scope of the 2014 Settlement Agreement
Amendment No. 617 and the 2014 CNEL contours analyzed therein. For this first
determination, a lead agency's finding that a particular proposed project comes within
one of the exempt classes necessarily includes an implied finding that the project has no
significant effect on the environment." (Davidon Homes v. City of San Jose (1997) 54
Cal.App.4th 106.) If an exemption applies, the project is excused from CEQA's
environmental review, which occurs only if an agency determines the project is not
exempt from CEQA. (Union of Medical Marijuana Patients, Inc. v. City of San Diego
(2019) 7 Cal.5th 1171, 1186, ["Environmental review is required under CEQA only if a
public agency concludes that a proposed activity is a project and does not qualify for an
exemption."].)
California courts have held that improper piecemealing does not occur when "projects
have different proponents, serve different purposes, or can be implemented
independently." Different projects may properly undergo separate environmental review
(i.e., no piecemealing) when the projects can be implemented independently. A project
may also be reviewed without reference to potential future projects when it has "significant
independent or local utility" and would be implemented with or without approval of the
future project, even if the two are related in some other respects. See, e.g., Aptos Council
v. Cnty. of Santa Cruz, 10 Cal.App.5th 266, 282 (2017). Here, the Housing Element Noise
Update functions independently and does not rely on any future planning decisions or
project -level approvals. The Housing Element Noise Update involves removing an
inherent barrier based on General Plan policies and zoning regulations that prohibit
residential development within the 1985 65 dBA CNEL. The Housing Element Noise
Update is a necessary, isolated planning action to allow the City to implement the Housing
Element.
Conclusion
Thus, because EIR No. 617 analyzed impacts associated with the updated CNEL noise
contours, the City's adoption of the updated CNEL noise contours within its own internal
policies is fully within the scope of EIR No. 617, and the 2006 General Plan, as amended.
The Amendments would not result in any new significant environmental effects that are
substantially different from those identified in EIR No. 617 nor would it substantially increase
the severity of significant effects previously identified in EIR No. 617. Therefore, based on
the provisions of State CEQA Guidelines Section 15183, no additional CEQA
documentation is required.
5-20
ATTACHMENT B
ORDINANCE NO. 2023-21
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING
AMENDMENTS TO NEWPORT PLACE PLANNED
COMMUNITY DEVELOPMENT PLAN (PC-11) AND
NEWPORT AIRPORT VILLAGE PLANNED COMMUNITY
DEVELOPMENT PLAN (PC-60) RELATED TO NOISE IN
THE AIRPORT AREA NECESSARY TO IMPLEMENT THE
6th CYCLE HOUSING ELEMENT (PA2022-0201)
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, in January 2019, the City Council initiated a comprehensive update
of the Newport Beach General Plan; however, due to the Regional Housing Needs
Assessment ("RHNA") allocation of 4,845 new housing units to plan for the 2021-2029
housing period, the City Council directed City staff to focus on the Housing Element, Land
Use Element, and Circulation Element;
WHEREAS, the City Council adopted the 6tn Cycle Housing Element covering the
period 2021-2029 planning period ("6th Cycle Housing Element") on September 13, 2022,
and it was certified by the State Department of Housing and Community Development on
October 5, 2022;
WHEREAS, the 6th Cycle Housing Element, including Appendix B, has been
subject to extensive public participation in accordance with Government Code Section
65351 including thirteen community workshops, fourteen Housing Element Update
Advisory Committee ("HEUAC") meetings, review of the Housing Element by the Planning
Commission, and six duly noticed City Council study sessions;
WHEREAS, additionally, the HEUAC formed five different subcommittees to
thoroughly review and identify all feasible sites for potential redevelopment as residential
in the future and those sites are captured in Appendix B (Adequate Sites Analysis), which
demonstrates the City's capacity to meet the RHNA allocation;
5-21
Ordinance No. 2023-
Page 2 of 8
WHEREAS, the 6th Cycle Housing Element identifies five focus areas where
future housing opportunities will be created through the adoption of housing opportunity
overlays or other rezone strategies to establish the ability to develop additional housing
to meet the RHNA allocation;
WHEREAS, the increase in units above the minimum RHNA is in response to the
unusually high percentage of below market rate units the RHNA mandates coupled with
the significant challenges to planning, financing, and constructing workforce housing with
higher -than -average land costs;
WHEREAS, the entire Airport Area Environs is proximate to John Wayne Airport
and subject to the John Wayne Airport Environs Land Use Plan ("AELUP");
WHEREAS, forty-eight housing sites identified in the focus area are within or
bisected by the 65 weighted decibel ("dBA") community noise equivalent level ("CNEL")
noise contour identified in the AELUP;
WHEREAS, the following amendments to the Noise Element and Land Use
Element of the General Plan, Title 20 (Planning and Zoning) of the Newport Beach
Municipal Code ("NBMC"), Newport Place Planned Community Development Plan (PC-
11), and Newport Airport Village Planned Community Development Plan (PC-60) are
necessary to allow residential use, including mixed -use residential, on housing
opportunity sites that are wholly or partially located outside the 65 dBA:
Land Use Element:
• Policy LU6.15.3 (Airport Compatibility),
• Figure LU11 — Statistical Areas J6, L4,
• Figure LU22 — Airport, and
• Figure LU23 - Airport Area Residential Villages Illustrative Concept
Diagram (removal of 65 CNEL noise contour line);
Noise Element:
• Policy N 1.2 (Noise Exposure Verification for New Development),
• Policy N1.5.A (Airport Area Infill Amendments (new policy),
• Policy N 2.2 (Design of Sensitive Land Uses),
• Policy N 3.2 (Residential Development),
• Figure N4 - Future Noise Contours, and
• Figure N5 — Future Noise Contours;
5-22
Ordinance No. 2023-
Page 3 of 8
Title 20 (Planning and Zoning) of the NBMC:
• Section 20.30.080(F) (Noise -Airport Environs Land Use Plan);
Planned Communities:
• Newport Place Planned Community Development Plan (PC-11) — Part
III. Residential Overlay Zone, Section V.D.1 (Airport Noise
Compatibility), and
• Newport Airport Village Planned Community Development Plan (PC-60)
— Section I.D (Purpose and Objective) & Section II.B.2 (Prohibited
Uses),
WHEREAS, the Amendments change noise compatibility policies and regulations
and do not change the existing underlying land use categories or zoning designations of
any property;
WHEREAS, the Amendments do not add residential unit capacity to the Land Use
Element, and therefore, the General Plan amendments included in the Amendments do
not require a vote of the electorate pursuant to Charter Section 423;
WHEREAS, a public hearing was held by the Planning Commission on August 3,
2023, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach. A
notice of time, place and purpose of the public hearing was given in accordance with
Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62
(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. PC2022-015, unanimously (4 ayes and 3 recusals), recommending the
City Council approve the Amendments;
WHEREAS, Section 21676(b) of the California Public Utilities Code ("CPUC")
required the City to refer the Amendments to the Orange County Airport Land Use
Commission ("ALUC") for a determination that the Amendments are consistent with the
AELUP;
WHEREAS, on August 17, 2023, ALUC determined the Amendments were
inconsistent with the AELUP;
5-23
Ordinance No. 2023-
Page 4 of 8
WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council
may, after a public hearing, propose to overrule ALUC with a two-thirds vote, if it makes
specific findings that the Amendments are consistent with the purpose of Section 21670
of the CPUC to protect 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;
WHEREAS, a public hearing was held by the City Council on September 12,
2023, in the City Council Chambers, 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;
WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution
No. 2023-52 by a unanimous vote (5 ayes, 1 recused, 1 absent), to notify ALUC and the
State Department of Transportation, Aeronautics Program ("Aeronautics Program") of the
City's intent to consider overriding ALUC's inconsistency finding;
WHEREAS, notice of the City's intent to consider overriding the ALUC
inconsistency determination, along with Resolution No. 2023-52 was sent via certified
mail and emailed to ALUC and Aeronautics Program on September 13, 2023;
WHEREAS, the City received timely comments in response to the notice of the
City's intent to consider overriding the ALUC inconsistency determination from John
Wayne Airport, ALUC, and the Aeronautics Program in accordance with CPUC Section
21676; and
WHEREAS, a public hearing was held by the City Council on November 14, 2023,
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 Government Code Section 54950 et seq. ("Ralph M. Brown Act"), Chapters 20.56
(Planned Community District Procedures) and 20.62 (Public Hearings) of the NBMC, and
CPUC Section 21676(b). 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 ordains as
follows:
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Ordinance No. 2023-
Page 5 of 8
Section 1: The City Council hereby approves amendments to the Newport
Placed Planned Community (PC-1 1), as set forth in Exhibit "A" and Newport Airport
Village Planned Community (PC-60), as set forth in Exhibit "B" which are attached hereto
and incorporated by reference. Neither PC-11 and PC-60, Chapter 20.56 (Planning and
Zoning, Planned Community District Procedures) or Chapter20.66 (Planning and Zoning,
Amendments) of Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of
Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of
Title 7 (Planning and Land Use) of the California Government Code set forth any required
findings for either approval or denial of the amendments. Notwithstanding the foregoing,
the amendments to PC-11 and PC-60 are consistent with the following General Plan
policies:
Findings:
1. Housing Element Policy 4.2.
Enable construction of new housing units sufficient to meet City qualified goals
by identifying adequate sites for their construction.
2. Policy Action 4J (Airport Environs Sub Area Environmental Constraints).
Policy Action 4J requires the City to take the following actions to address potential
environmental constraints in the Airport Environs Sub Area and ensure continued
feasibility of sites, particularly for lower -income RHNA:
a. Require new residential development projects in the Airport Environs Sub
Area provide noise studies and acoustical analyses to ensure designs
include proper sound attenuation;
b. Require new residential development projects in the Airport Environs Sub
Area to explore advanced air filtration systems for buildings to promote
cleaner air;
C. Encourage on -site indoor amenities, such as fitness facilities or recreation
and entertainment facilities; and
5-25
Ordinance No. 2023-
Page 6 of 8
d. Continue to implement park dedication requirements consistent with the
City's Park Dedication ordinance and Land Use Element Policy LU 6.15.13
(Neighborhood Parks —Standards) and Policy LU 6.15.16 (On -Site
Recreation and Open Space) to ensure adequate recreational space to
ensure at least 8- percent of a project's gross land area (exclusive of
existing rights -of -way) of the first phase for any development in each
neighborhood or '/2 acre, whichever is greater, is developed as a
neighborhood park, unless waived through Density Bonus Law.
Facts in Support of Findings:
The City has taken actions to address potential environmental constraints in the Airport
Area and ensure continued feasibility of sites, particularly for lower -income RHNA by
providing the following uniform and concise criteria:
a. Prior to the issuance of any building permits for such development, a noise
study shall be prepared by a City -approved qualified acoustical consultant
and submitted to the Community Development Director for approval;
b. All new residential structures or the residential units within a mixed -use
development shall be attenuated to provide an interior noise level of 45 dBA
CNEL or less;
C. The design of the residential portions of mixed -use projects and residential
developments shall have adequate noise attenuation between adjacent
uses and units (common floor/ceilings) in accordance with the California
Building Code;
d. New mixed -use developments shall incorporate designs with loading areas,
parking lots, driveways, trash enclosures, mechanical equipment, and other
noise sources away from the residential portion of the development;
e. Use of walls, berms, interior noise insulation, double paned windows,
advance insulation systems, or other noise mitigation measures, as deemed
appropriate shall be incorporated in the design of new residential to bring
interior sound attenuation to 45 dBA CNEL or less;
f. Residential uses shall be indoor -oriented to reduce noise impingement on
outdoor living areas;
5-26
Ordinance No. 2023-
Page 7 of 8
g. On -site indoor amenities, such as fitness facilities or recreation and
entertainment facilities shall be encouraged; and
h. Advanced air filtration systems for buildings shall be considered to promote
cleaner air.
Lastly, all new housing opportunity sites located in Newport Place and Newport Airport
Village planned communities are located wholly or partially outside the updated 65 dBA
noise contour area. By requiring conditions of approval identified in amendment to Title 20
(Planning and Zoning) of NBMC, the City has taken actions to address potential
environmental constraints in the Airport Area and ensure continued feasibility of sites,
particularly for lower -income RHNA.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 3: 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 4: The City Council finds the action to override the ALUC's August
17, 2023, determination and the approval of the Amendments are exempt from the
California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Section
15183 because they do not change the underlying land use or zoning designations of
any specific parcels, including parcels within the Airport Area or within the updated noise
contours based upon the findings set forth in Exhibit "C," which is attached hereto and
incorporated herein by reference.
Section 5: 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. This ordinance shall be effective thirty
(30) calendar days after its adoption.
5-27
Ordinance No. 2023-
Page 8 of 8
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 14th day of November, 2023, and adopted on the 28th day
of November, 2023, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
NOAH BLOM, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AARON . HARP, UTY ATTORNEY
Attachment(s): Exhibit A - Amendment to Newport Place Planned Community (PC-11)
Exhibit B - Amendment to Newport Airport Village Planned Community
(PC-60)
Exhibit C - CEQA Findings of Consistency
5-28
EXHIBIT "A"
Amendment to Newport Place Planned Community (PC-11)
Amend Part III. Residential Overlay, Section V.D.1 (Airport Noise Compatibility) to read
as follows:
1. Residential development shall be located outside up to the !+,nre 65 d8 GNE ,,,,;g-o
the John Wayne Airport 65 dBA
CNEL noise contour as shown in Figure N5 of the Noise Element of the General
Plan, and subject to compliance with Section 20.30.080.F (Residential Use
Proximate to John Wayne Airport) of the Newport Beach Municipal Code.
Residential development shall be limited to parcels wholly or partially outside
the 65 dBA CNEL noise contour, unless and until the City determines, based on
substantial evidence, that the sites wholly within such contour area are needed
for the City to satisfy its 6rh Cycle RHNA mandate. Non-residential uses are
encouraged on parcels located wholly within the 65 dBA CNEL contour area.
5-29
EXHIBIT "B"
Amendment to Newport Airport Village Planned Community (PC-60)
Amend Section I.D. (Purpose and Objective) to read as follows:
"D. Purpose and Objective
The purpose of the PCDP is to establish appropriate zoning regulations that govern the
land use and development of the PC in a manner that is consistent with the City of
Newport Beach General Plan. Implementation of the PCDP will:
- Provide a quality mixed -use development that includes residential and supporting
commercial uses; as well as, commercial uses that support or benefit from the proximity
to the airport.
- Create two planning areas to guide the development of the PC District (see Figure 4).
Planning Area 1 will include the residential and, potentially, a complimentary retail or
service commercial component of the PC District. Planning Area 2 will consist exclusively
of non-residential uses.
- Provide new housing opportunities in response to increased demand for housing,
reduction of vehicle trips, and an encouragement of an active lifestyle by increasing the
opportunity for residents to live in proximity to jobs, services, and entertainment. Such
housing will be proximate to, and interconnected with, commercial development through
pedestrian walkways provided by future development within the PCDP.
-Ensure that all residential units are IGGated ,,, itside the Inhn WayneAirpeFt65 dB A GNE
ne.se ,.enteur and Safety Zenand noise -sensitive uses (e.g., schools, churches,
hospitals, public libraries) regardless of location, shall be designed to maintain the
interior noise standard of 45 dBA CNEL or less and in compliance with Section
20.30.080.F (Residential Use Proximate to John Wayne Airport) of the Municipal
Code.
" - Protect future residents and other sensitive uses by prohibiting these uses from
being developed on parcels that are wholly within the John Wayne Airport 65 dBA
CNEL noise contour area shown in Figure N5 of the Noise Element of the General
Plan. Residential development shall be limited to parcels wholly or partially outside
the John Wayne Airport 65 dBA CNEL noise contour, unless and until the City
determines, based on substantial evidence, that the sites wholly within such
contour area are needed for the City to satisfy its 6t' Cycle RHNA mandate. Non-
residential uses are encouraged on parcels located wholly within the John Wayne
Airport 65 dBA CNEL contour area as shown in Figures N5 of the Noise Element of
the General Plan and outside of Safety Zone 3 of the AELUP."
Amend Section II.A. (Permitted Uses) to read as follows:
5-30
Table 1 lists the permitted uses for each planning area of the Planned Community. The
uses identified within the table are not intended to be a comprehensive list, but rather
major use categories. All residential units and noise -sensitive uses, regardless of
location, shall maintain the interior noise standard of 45 dBA CNEL or less, and
shall be located on parcels wholly or partially outside the John Wayne Airport 65
dBA noise contour as shown in Figures N5 of the Noise Element of the General
Plan -area and Safety Zone 3 of the AELUP. Residential development shall be limited
to parcels wholly or partially outside the John Wayne Airport 65 dBA CNEL noise
contour, unless and until the City determines, based on substantial evidence, that
the sites wholly within such contour area are needed for the City to satisfy its 6th
Cycle RHNA mandate. Non-residential uses are encouraged on parcels located
wholly within the John Wayne Airport 65 dBA CNEL contour area.
The Community Development Director may determine other uses not specifically listed
herein are allowed or allowed pursuant to an MUP or a CUP, provided they are consistent
with the purpose of the planning areas, are compatible with surrounding uses, and are
not listed as a prohibited use.
Amend Section II.B. (Prohibited Uses) to read as follows:
The following uses shall be expressly prohibited from the PCDP:
B. Prohibited Uses
The following uses shall be expressly prohibited from the PCDP:
1. Any use not authorized by this PCDP unless the Community Development Director
determines a particular use consistent with the purpose and intent of the PCDP,
2. Residential dwelling units within John Wayne Airport Safety Zone 3 (residential
accessory uses, and amenities are allowed),
3. The following uses, if said structure within 250 feet of any residential dwelling unit:
a. Handicraft Industry
b. Industry, Small (less than 5,000 sq. ft.)
c. Emergency Health Facilities/Urgent Care
d. Ambulance Services
e. Funeral Homes and Mortuaries
f. Maintenance and Repair Services.
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EXHIBIT "C"
CEQA Findings of Consistency
The California Environmental Quality Act ("CEQA") (California Public Resources Code
§§21000 et seq.); the State CEQA Guidelines (Title 14, California Code of Regulations
§§15000 et seq.); and the rules, regulations, and procedures for implementing CEQA as set
forth by the City of Newport Beach ("City") provide guidance regarding when additional
environmental review is required. Pursuant to the provisions of CEQA and the State CEQA
Guidelines, Newport Beach is the Lead Agency charged with the responsibility of deciding
whether to approve the Amendments to Newport Beach General Plan Land Use and Noise
Elements, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC"),
Newport Place Planned Community (PC-11), and Newport Airport Village Planned
Community (PC-60) (Amendments) to accommodate housing units identified by the certified
2021-2029 Sixth Cycle General Plan Housing Element ("6th Cycle Housing Element').
The provisions of State CEQA Guidelines Section 15183 are applicable to the Amendments.
The Amendments are not subject to further environmental review pursuant to CEQA
Guidelines Section 15183 because the Amendments do not change the underlying land use
or zoning designations of any specific parcels, including parcels within the Airport Area or
within the updated noise contours; and would not result in new significant impacts or a
substantial more adverse impact than addressed in John Wayne Airport Settlement
Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No.
2001111135) (EIR No. 617). The Amendments are also exempt because they fall within the
scope of analysis contained within the previously certified EIR No. 617, prepared for the
2014 John Wayne Airport Settlement Agreement, to which the City is a party.
CEQA Guidelines Section 15183 provides, in relevant part:
(a) CEQA mandates that projects which are consistent with the development density
established by existing zoning, community plan, or general plan policies for which
an EIR was certified shall not require additional environmental review, except as
might be necessary to examine whether there are project -specific significant effects
which are peculiar to the project or its site. This streamlines the review of such
projects and reduces the need to prepare repetitive environmental studies.
(b) In approving a project meeting the requirements of this section, a public agency
shall limit its examination of environmental effects to those which the agency
determines, in an initial study or other analysis:
(1) Are peculiar to the projector the parcel on which the project would be located,
(2) Were not analyzed as significant effects in a prior EIR on the zoning action,
general plan, or community plan, with which the project is consistent,
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(3) Are potentially significant off -site impacts and cumulative impacts which were
not discussed in the prior EIR prepared for the general plan, community plan or
zoning action, or
(4) Are previously identified significant effects which, as a result of substantial new
information which was not known at the time the EIR was certified, are
determined to have a more severe adverse impact than discussed in the prior
EIR.
(c) If an impact is not peculiar to the parcel or to the project, has been addressed as a
significant effect in the prior EIR, or can be substantially mitigated by the imposition
of uniformly applied development policies or standards, as contemplated by
subdivision (e) below, then an additional EIR need not be prepared for the project
solely on the basis of that impact.
(d) This section shall apply only to projects which meet the following conditions:
(1) The project is consistent with:
(A) A community plan adopted as part of a general plan,
(B) A zoning action which zoned or designated the parcel on which the
project would be located to accommodate a particular density of
development, or
(C) A general plan of a local agency, and
(2) An EIR was certified by the lead agency for the zoning action, the community
plan, or the general plan.
As part of its decision -making process, the City is required to review and consider whether
the Amendments would create new significant impacts or significant impacts that would be
substantially more severe than those disclosed in the John Wayne Airport Settlement
Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No.
2001111135) (EIR No. 617). Additional CEQA review is only triggered if the Amendments
create new significant impacts or impacts that are more severe than those disclosed in EIR
No. 617 such that major revisions to the EIR would be required.
The Amendments provide for updated noise contours as established in EIR No. 617 and
revisions to General Plan policies, Title 20 of NBMC, Newport Place Planned Community
(PC-11), and Newport Airport Village Planned Community (PC-60) to allow for consistency
between the certified 6th Cycle Housing Element and the Newport Beach General Plan and
NBMC as it applies to future housing uses near John Wayne Airport. The Amendments are
proposed to ensure consistency pursuant to the State Planning and Zoning Law and the
City's compliance with its RHNA allocation.
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As explained below, none of the Amendments revise the land use designation, density or
development standards applicable to residential or non-residential development in the
Airport Area. The Amendments do not grant any development entitlements or authorize
development. Rather, the purpose of the Housing Element Noise Update is to advance
the policies and goals of the 6th Cycle Housing Element by removing the barrier in
multiple General Plan and zoning policies that prohibit residential development within the
1985 65 dBA CNEL. The Amendments, therefore, will not result in development of
greater intensity than is allowed under the 2006 General Plan and Newport Airport
Village Planned Community, as amended.
Although the City's 2006 General Plan approved a maximum of 2,200 residential units in
the Airport Area at a maximum density of 50 dwelling units per net acre (du/net acre), the
General Plan Program EIR evaluated 4,300 residential units in the Airport Area. California
courts have upheld reliance on this exemption for programmatic planning decisions. See,
e.g., Lucas v. City of Pomona, 92 Cal.App.5th 508 (2023) (city properly relied on CEQA
Guidelines section 15183 when approving a zoning overlay district allowing commercial
cannabis activities on specific parcels located in certain areas within the City; court noting
that "the Project merely imposes an overlay use on existing zoning; it does not guarantee
anyone the automatic right to establish a cannabis -related business, but rather, provides
the option to apply for a cannabis business permit. In that sense, the Amendments does
not cause project -specific effects 'peculiar' to it.") Because no additional CEQA review is
required, the City is not required to analyze additional mitigation measures for the
Housing Element Noise Update at this time. Furthermore, as noted above, the Housing
Element Noise Update requires (as a local regulatory requirement, not CEQA mitigation
measure) residential projects located within the 65 dBA CNEL contour line to include
appropriate in -door sound attenuation methods.
The Noise Chapter of EIR No. 617 explained how the dBA CNEL noise contours have
reduced in size compared to the 1985 Airport Environs Land Use Plan ("AELUP") Master
Plan CNEL noise contours, in which the City's General Plan policies and maps are based
on. The 1985 Master Plan noise contours are considerably larger than the existing noise
contours presented previously. This is largely due to a quieter fleet of existing commercial
aircraft and a dramatic reduction in the number of generation aviation operations. The noise
contours in EIR No. 617 are based on more contemporary noise modeling programs, as the
EIR explained that "one of the most important factors in generating accurate noise contours
is the collection of accurate operational data". Airport noise contours generated in this noise
study using the INM Version 7.Od which was released for use in May 2013, and is the state -
of -art in airport noise modeling.
As such, the City proposes to update the Noise Element to include these noise contours,
which in part, modify where residential uses could occur outside of the 65 CNEL contour in
the Airport Area. Based on these updated noise contours, certain Housing Opportunity Sites
will now be outside of the 65 CNEL contour while others will be within the 65 CNEL contour.
However, the Amendments will not result in development of greater intensity than is allowed
under the 2006 General Plan and Newport Airport Village Planned Community, as
amended. Residential uses can be allowed in the Airport Area on parcels that are wholly or
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partially outside the 65dBA CNEL contour as denoted in Figure N5 of the Noise Element.
The JWA noise contours depicted in Figure N5 as proposed are the noise contours from
EIR No. 617. Residential uses may be approved in these areas provided interior living areas
are protected from excessive noise by appropriate construction techniques that reduce the
interior noise to 45 dBA CNEL, consistent with state law. Parcels that are wholly within the
65 dB CNEL contour shown in Figure N5 (e.g., those identified as experiencing noise levels
above 65 dB CNEL) are unsuitable for residential development unless and until the City
determines, based on substantial evidence, that the site(s) wholly within the 65-70 dB CNEL
contours are needed for the City to satisfy its 6th Cycle RHNA mandate. The changes would
not allow for more development than assumed in the growth assumptions in the General
Plan nor would it impact the City's RHNA obligations.
To the extent new parcels are able to be developed in the future for residential uses, by
nature of no longer being located within areas identified as experiencing 65 dB CNEL or
greater, those parcels must be part of a specific proposed project for consideration and
processing by the City for approval. Future housing development would be subject to
compliance with the established regulatory framework, namely federal, State, regional, and
local (including General Plan policies, NBMC standards, and Standard Conditions of
Approval). While by -right housing projects may be exempt from CEQA, all future residential
uses affected by the Amendments would continue to be subject to further development
review, which can include technical supporting reports.
The Amendments are also exempt because they fall within the scope of analysis
contained within EIR No. 617, prepared and certified by the County for the 2014 John
Wayne Airport Settlement Agreement Amendment, to which the City is a party. EIR No.
617, fully analyzed impacts on sensitive receptors (including residential uses) in
adopting the Settlement Agreement Amendment, including the updated CNEL
contour boundaries associated therewith, using both the County and City's thresholds
of significance. The City was a responsible agency for EIR No. 617, and co -signatory to
the Settlement Agreement Amendment. EIR No. 617 concluded that the Settlement
Agreement Amendment (and associated updated CNEL contours) would result in less -
than -significant impacts related to noise increases at sensitive receptors, but a
significant and unavoidable impact from increasing noise levels at exterior use areas
of residences. A Statement of Overriding Considerations was adopted. No lawsuits
were filed challenging the adequacy of EIR No. 617.
EIR No. 617 fully analyzed impacts on sensitive receptors (including residential uses) in
adopting the Settlement Agreement Amendment, including the updated CNEL contour
boundaries associated therewith. In April 2014, the County of Orange prepared a EIR in
connection with the Airport Settlement Amendment (SHC No. 2001111135). The County
Board of Supervisors certified the EIR on September 30, 2014. The County's approval of
the Project would be contingent upon the City Council of Newport Beach and the
governing boards of Stop Polluting Our Newport ("SPON") and Airport Working Group
("AWG") approving and executing the agreed upon amendment to the Settlement
Agreement. The City was a responsible agency and the City Council relied on EIR No.
617 for CEQA purposes in approving the Settlement Agreement Amendment. A
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Statement of Overriding Considerations was adopted. No lawsuits were filed challenging
EIR No. 617.
EIR No. 617 analyzed potentially significant environmental effects of residential land uses
in the 65 dB CNEL. Specifically, the noise and land use and planning chapters of EIR No.
617 quantified and analyzed noise and land use incompatibility impacts associated with
existing residential uses (and noise receptors) in the 65 dBA CNEL. The cumulative
impacts analyses in the 65 dB CNEL expressly reflected future planning trends, growth
projections and specific projects located in the Airport Area in proximity to JWA.
Noise
EIR No. 617 provides an explanation as to why the 2014 dBA CNEL contours are smaller
than the 1985 Master Plan CNEL contours. The EIR observed that "the Mater Plan noise
contours are considerably larger than existing noise contours ... due to a quieter fleet of
existing commercial aircraft and a dramatic reduction in the number of generation aviation
operations ...."1 The 2014 CNEL contours were also based on a newly adopted, "state-
of-the-art" noise modeling program.2 Overall, the EIR found that the 65 dBA CNEL
contour area was 114% smaller than the analog from the 1985 Master Plan.
• 60 and 65 CNEL contour: Master Plan contours are 114 percent larger than the Existing
Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to noise levels in the 60 to 65 dB CNEL range is
125 percent larger than the currently exposed area.
• 65 and 70 CNEL contour: Master Plan contours are almost 50 percent larger than the
Existing Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to the 65 to 70 d6 CNEL noise levels is 80 percent
larger than the currently exposed area.
70+ CNEL contour: Master Plan contours are 80 percent larger than the Existing
Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to noise levels that exceed 70 dB CNEL is
311 percent larger than the currently exposed area.
EIR No. 617 then quantified the number of sensitive receptors (including residential uses)
within the updated 65 dba CNEL contour area, compared those to those covered under
the now -outdated 1985 CNEL contours. In doing so, the EIR noted that the area
surrounding the Airport is generally urban in character. Surrounding uses include
industrial, commercial, and residential uses. The residential area is predominately south
and southwest of the Airport. (Id. at 2-12). Specifically, EIR No. 617's Noise Technical
Report, prepared by Landrum and Brown,3 quantified the number of sensitive receptors
(including residential units) that would be impacted by the Project and its utilization of the
' 2014 EIR at 4.6-34.
2 Id. at 4.6-31. Airport noise contours were generated using the INM Version 7.0d. The latest version, INM
Version 7.0d, was released for use in May 2013 and is the state-of-the-art in airport noise modeling.
3https://www.newportbeachca.gov/pin/CEQA REVIEW/John%20Wayne%20Airport%20DEIR/CC%205A%20Appendices%20to%20
FEIR%20617/Appendix%20C%20-%20Noise%20Analvsis°/a20Technical%20Reportpdf
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updated CNEL contours.4 Table 22 of the Noise Technical Report compared the number
of residential units within both the 1985 and 2014 65 dBA CNEL contours:
• 70 CNEL contour: 379 acres/0.59 square mile, including 1 place of worship (the Orange
Coast Free Methodist Church), but no other noise -sensitive land uses.
• 65 to 70 CNEL contour: 561 acres/0.88 square mile, including 96 residences (of which
49 are sound insulated) and 2 places of worship (Islamic Educational Center of Orange
County and Berean Community Church), but no other noise -sensitive land uses.
60 to 65 CNEL contour: 1,313 acres/2.05 square miles, including 932 residences (of
which 348 are sound insulated), 5 places of worship, and 4 schools, as listed below:
Using the City's thresholds of significance, EIR No. 617 ultimately concluded that the
Project would not result in noise increases at sensitive receptors where existing exposure
is 65 CNEL or above, between 60 and 65 CNEL, or 45 and 60 CNEL. However, the EIR
determined that the Project would generate aircraft noise that would increase noise levels
at exterior use areas of residences or schools to noise levels of 65 CNEL or above or
interior areas of residences or schools to noise levels of 45 CNEL. Specifically, the Project
would have a significant exterior noise impact on 31 residences in Phase 1, 62 residences
in Phase 2, and 77 residences in Phase 3. The Proposed Project would have a potentially
significant interior noise impact on 21 residences in Phase 1, 39 residences in Phase 2,
and 43 residences and one place of worship in Phase 3. A Statement of Overriding
Considerations was adopted to cover this significant and unavoidable impact, which was
not subject to legal challenge (nor was EIR No. 617).
Land Use and Planning
EIR No. 617's land use and planning chapter acknowledged that JWA is located in an
urbanized area. The surrounding land uses for areas in the City that are adjacent to JWA
included the same land uses that exist today, including but not limited to, AO (Office
Airport), CO-G (General Commercial Office), CG General Commercial, MU-H2 (Mixed
Use Horizontal). (EIR at 4.5-17). As noted above, the Noise Analysis Technical Report
analyzed land uses within the 2014 CNEL contours, to determine "the amount of area
and sensitive receptors" in such contours. (See directly above.) EIR No. 617 observed
that, "as the 65 CNEL contour expands beyond the existing contour and includes
additional residences this would be a significant impact." (EIR at 4.5-32). The EIR
ultimately concluded that, with all phases of the Proposed Project, there would be a
significant, unavoidable land use and land use impact due to an increase in the number
of noise -sensitive uses exposed to noise levels in excess of the 65 CNEL exterior noise
standard. There are no feasible mitigation measures for exterior noise levels.
Implementation of Mitigation Measure LU-1 would potentially reduce impacts associated
with excess interior noise levels to less than significant levels. However, until interior noise
measurements are taken, it cannot be determined if all the noise sensitive uses with
interior noise levels in excess of 45 CNEL would qualify for sound attenuation based on
FAA criteria. Given the uncertainty that this measure is feasible to adequately reduce
interior noise levels at all potentially impacted residences, the impact was determined to
° See, e.g., 2014 EIR Table 4.6-18 (at p. 4.6-69);
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be significant and unavoidable. A Statement of Overriding Considerations was adopted
to cover this significant and unavoidable impact, which was not subject to legal challenge
(nor was EIR No. 617).
Cumulative Impacts
Chapter 5.0 (Cumulative Impacts) of EIR No. 617 considered existing and future
residential uses when analyzing impacts of the Settlement Agreement Amendment and
2014 CNEL lines. For example, the cumulative impacts analysis considered countywide
growth and development forecasts based on input from the County of Orange and the
cities located in the County. These projections reflect adopted land uses and future
growth scenarios based on local land use policies. (EIR at 5-3). The EIR explained:
"The OCP-2010 Modified projections provide forecasts to the year 2035 and take
into account the projected growth Orange County in its entirety. OCP-2010
Modified projections are particularly useful in evaluating the cumulative impacts
associated with traffic, air quality, greenhouse gas ("GHG") emissions, and noise
because they provide growth assumptions consistent with the local general plans
that have been developed with a long-range horizon year. This allows the
cumulative analysis to go beyond just a listing of projects, which would not
adequately reflect conditions at Project buildout." (Id.)
Further, Section 5.2.2 of the EIR contains a list of reasonably foreseeable probable future
projects, some of which are located in the Airport Area of the City. See, e.g., Table 5-2
(including, among others, Koll Mixed Use Development, MacArthur at Dolphin -Striker
Way, Newport Business Uptown Newport Mixed Use Development, and the previously
considered Land Use Element Update). The cumulative impacts analysis expressly found
that "[wjhen compared to existing conditions, the 0 Project and all the alternatives would
extend the 65 CNEL contour into areas designed for mixed -use development in the City
of Newport Beach's Airport Area. The City of Newport Beach General Plan's Noise
Element noise/land use compatibility matrix (see Table N2 in the Noise Element, page
12-23) lists mixed use land uses within the 65 CNEL contour as "normally
incompatible; "...If new construction or development does proceed, a detailed analysis of
noise reduction requirements must be made and noise insulation features must be
included in the design." (EIR at 5-37). "Though design plans for the development projects
identified as part of the Newport Beach LUE have not been prepared, it is reasonable to
assume that the City of Newport Beach would evaluate each of the cumulative projects
for policy consistency through the entitlement process. Therefore, the Project would not
contribute to any cumulative impacts associated with plan or policy inconsistency." (EiR
at 5-39).
No new information that was not known at the time the General Plan and EIR No. 617 were
prepared is now available that demonstrates that the Amendments will result in a new or
increased significant impact. The Amendments would not cause growth beyond that
accommodated by the General Plan. The Amendments do not introduce new land use
designations or otherwise alter general land use patterns or development standards.
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Therefore, the findings of previously certified EIR No. 617 are applicable to the
Amendments. Implementation of the Amendments would not substantially increase the
severity of previously identified impacts, including but not limited to air emissions and
greenhouse gas emissions. Although the noise contours would be updated, the
requirements for compliance with noise standards would not change.
Finally, overriding ALUC and adoption of the Amendments does not constitute
piecemealing. Additional environmental review for the Housing Element Noise Update is
not needed fortwo independent reasons: (i) the update is exempt under CEQA Guidelines
section 15183, and (ii) it is fully within the scope of the 2014 Settlement Agreement
Amendment No. 617 and the 2014 CNEL contours analyzed therein. For this first
determination, a lead agency's finding that a particular proposed project comes within
one of the exempt classes necessarily includes an implied finding that the project has no
significant effect on the environment." (Davidon Homes v. City of San Jose (1997) 54
Cal.App.4th 106.) If an exemption applies, the project is excused from CEQA's
environmental review, which occurs only if an agency determines the project is not
exempt from CEQA. (Union of Medical Marijuana Patients, Inc. v. City of San Diego
(2019) 7 Cal.5th 1171, 1186, ["Environmental review is required under CEQA only if a
public agency concludes that a proposed activity is a project and does not qualify for an
exemption."].)
California courts have held that improper piecemealing does not occur when "projects
have different proponents, serve different purposes, or can be implemented
independently." Different projects may properly undergo separate environmental review
(i.e., no piecemealing) when the projects can be implemented independently. A project
may also be reviewed without reference to potential future projects when it has "significant
independent or local utility" and would be implemented with or without approval of the
future project, even if the two are related in some other respects. See, e.g., Aptos Council
v. Cnty. of Santa Cruz, 10 Cal.App.5th 266, 282 (2017). Here, the Housing Element Noise
Update functions independently and does not rely on any future planning decisions or
project -level approvals. The Housing Element Noise Update involves removing an
inherent barrier based on General Plan policies and zoning regulations that prohibit
residential development within the 1985 65 dBA CNEL. The Housing Element Noise
Update is a necessary, isolated planning action to allow the City to implement the Housing
Element.
Conclusion
Thus, because EIR No. 617 analyzed impacts associated with the updated CNEL noise
contours, the City's adoption of the updated CNEL noise contours within its own internal
policies is fully within the scope of EIR No. 617, and the 2006 General Plan, as amended.
The Amendments would not result in any new significant environmental effects that are
substantially different from those identified in EIR No. 617 nor would it substantially increase
the severity of significant effects previously identified in EIR No. 617. Therefore, based on
the provisions of State CEQA Guidelines Section 15183, no additional CEQA
documentation is required.
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