HomeMy WebLinkAbout2024-73 - Approving and Adopting a Narrowly Focused Amendment to the Adopted and Certified 6th Cycle Housing Element for the 2021-2029 Planning Period (PA2022-0245)RESOLUTION NO. 2024-73
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING AND
ADOPTING A NARROWLY FOCUSED AMENDMENT TO
THE ADOPTED AND CERTIFIED 6T" CYCLE HOUSING
ELEMENT FOR THE 2021-2029 PLANNING PERIOD
(PA2022-0245)
WHEREAS, City Council Policy K-1 (General Plan and Local Coastal Program)
requires amendments to the City of Newport Beach ("City") General Plan to be initiated
by the City Council;
WHEREAS, Section 65580 et seq. of the Government Code requires each city
and county adopt a housing element that identifies and analyzes existing and projected
housing needs within their jurisdiction and prepare goals, policies, and programs, and
quantified objectives to further the development, improvement, and preservation of
housing;
WHEREAS, the City of Newport Beach ("City") 6th Cycle Housing Element for the
2021-2029 period ("Housing Element") presents a framework for meeting the housing
needs of existing and future resident populations within Newport Beach based on the
Regional Housing Needs Assessment ("RHNA") allocation of 4,845 new housing units;
WHEREAS, the Housing Element was adopted by the City Council on September
13, 2022, and certified as statutorily compliant with State Housing Element Law on
October 5, 2022, by the State Department of Housing and Community Development
("HCD");
WHEREAS, Charter Section 423 is described as a possible constraint in Section
3 (Housing Constraints, Resources, and Affirmatively Furthering Fair Housing), and
further discussed as an implementation action in Section 4 (Housing Plan) of the 6th Cycle
Housing Element;
Resolution No. 2024-73
Page 2 of 5
WHEREAS, the 6th Cycle Housing Element Implementation must take effect by
February 2025 to avoid significant penalties and loss of local control dictated by state law,
which may include, but are not limited to:
• Increased exposure to public and private litigation;
• Loss of permitting authority;
• Financial penalties, including monthly fines of up to $600,000;
• Loss of eligibility for state and regional funding sources;
• Court receivership;
• Allowing housing developers to bypass the City's zoning requirements; and
• Increased exposure to monitoring by the newly formed Housing Accountability
Unit of HCD;
WHEREAS, a public hearing was held on July 23, 2024, by the City Council to
consider the Housing Element Implementation, including consideration of certifying the
Program Environmental Impact Report ("PEIR"), adoption of CEQA Findings, Mitigation
Monitoring and Reporting Program and a Statement of Overriding Considerations. A
notice of time, place, and purpose of the hearing was given in accordance with CPUC
Section 21676(b), California Sections 54950 et seq. ("Ralph M. Brown Act"), Chapters
20.62 (Public Hearings), 20.66 (Amendments), and 21.62 (Public Hearings) of the
Newport Beach Municipal Code ("NBMC"), and City Council Policy K-1 (General Plan and
Local Coastal Program) and City Council Policy K-3 (Implementation Procedures for the
California Environmental Quality 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. 2024-58 to initiate a narrowly focused amendment to the Housing Element to remove
the reference to Charter Section 423 from Sections 3 and 4 of the 6th Cycle Housing
Element based on evidence presented at the hearing that voter approval is precluded by
state law;
WHEREAS, City staff published and circulated draft revisions to Section 3
(Housing Constraints, Resources, and Affirmatively Furthering Fair Housing) and Section
4 (Housing Plan) of the Housing Element ("Amendment") on July 26, 2024, that
incorporates the legal basis for the removal of Charter Section 423 voter approval
requirement to previously interested parties for a seven-day public review period,
including The Kennedy Commission, People for Housing Orange County, Still Protecting
Our Newport, The Public Law Center, and YIMBY Law;
Resolution No. 2024-73
Page 3 of 5
WHEREAS, at the conclusion of the seven-day public review period, City staff
transmitted the draft Amendment to HCD on August 2, 2024, for a formal review along
with one piece of written correspondence received from Jim Mosher. No other
correspondence was received in response to the published and circulated Amendment;
WHEREAS, the City received a letter from HCD, attached hereto and
incorporated by reference as Exhibit "A," on August 20, 2024, confirming the Amendment
maintains the City's compliant status and, with its adoption, the Housing Element will
remain certified as statutorily compliant;
WHEREAS, a public hearing was held on September 5, 2024, in the Council
Chambers 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 and
65353 of the Government Code and consistent with City Council Policy K-1 (General Plan
and Local Coastal Program). Evidence, both written and oral, was presented to, and
considered by, the Planning Commission at this hearing;
WHEREAS, at the conclusion of the public hearing, the Planning Commission
adopted Resolution No. PC2024-019 by a majority vote (5 ayes, 1 nay) recommending
the City Council approve the Amendment to the Housing Element; and
WHEREAS, a public hearing was held on September 24, 2024, by the City
Council in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California to consider amendment to the Housing Element. A notice of time, place, and
purpose of the hearing was given in accordance with the Ralph M. Brown Act and City
Council Policy K-1. Evidence both written and oral, was presented to, and considered by,
the City Council at this hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows..
Section 1: The City Council hereby finds the Amendment is necessary and that
the voter approval requirement set forth in Charter Section 423 is precluded by state law
based on the Growth Management Measures set forth in the Amendment which is
attached hereto as Exhibit "B," and incorporated herein by reference. The City Council
does hereby approve the Amendment adopting the revised Housing Element, of which
the affected portions are set forth in Exhibit "B." The City Council directs staff to transmit
the Amendment to HCD for certification review.
Resolution No. 2024-73
Page 4 of 5
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 4: The City Council finds the Amendment is not subject to the California
Environmental Quality Act ("CEQA") as set forth in the Public Resources Code Section
21000 et seq., Title 14, Division 6, Chapter 3 of the California Code of Regulations
("CEQA Guidelines"), and City Council Policy K-3 (Implementation Procedures for the
California Environmental Quality Act) pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines because it has no potential for resulting in physical change to the
environment, directly or indirectly. The City Council finds the Amendment is exempt from
CEQA environmental review pursuant to Class 21 as set forth in Section 15321 of the
CEQA Guidelines which exempts actions that involve enforcement of a law, general rule,
standard, or objective, administered or adopted by a regulatory agency.
The Housing Element was adopted by the City Council on September 13, 2022,
and certified as statutorily compliant with State Housing Element Law on October 5, 2022,
by HCD as a framework for meeting the housing needs of existing and future resident
populations within Newport Beach based on the RHNA allocation of 4,845 new housing
units. The environmental impacts associated with the Housing Element were analyzed
by way of the Housing Element Implementation Program Amendments Final PEIR (SCH
No. 2023060699) discussed below. The Amendment does not result in any direct or
indirect physical change to the environment. It simply removes the Charter Section 423
voter approval requirement of the Housing Element Implementation since it is precluded
by state law. Additionally, the Amendment is categorically exempt under Section 15321.
Charter Section 423 was described in Section 3 (Housing Constraints, Resources, and
Affirmatively Furthering Fair Housing) of the Housing Element as a constraint on
implementation of the Housing Element and possibly violative of the City's obligation to
affirmatively further fair housing as set forth in California Government Code Section
8899.50 et seq. The 6t" Cycle Housing Element Implementation must take effect by
Resolution No. 2024-73
Page 5 of 5
February 2025 to avoid significant penalties and loss of local control dictated by state law
and described above. Since the Amendment involves the enforcement of a law, general
rule, standard, or objective, administered or adopted by a regulatory agency, it is
categorically exempt under Section 15321.
Finally, the City Council hereby finds the adoption of this Amendment is covered
under the Housing Element Implementation Program Amendments Final Program
Environmental Impact Report. The Housing Element Implementation Program
Amendments Final PEIR (SCH No. 2023060699) was prepared for the 6th Cycle Housing
Element Implementation (also referred to as the "Project") in compliance with the
California Environmental Quality Act ("CEQA"). On July 23, 2024, the City Council
adopted Resolution No. 2024-50, to certify the PEIR as complete and adequate, inclusive
of all required findings, a statement of overriding considerations, and a mitigation
monitoring reporting program. The City Council hereby finds that the action to adopt this
Resolution approving the Amendment was considered within the PEIR. Resolution No.
2024-50 is hereby incorporated by reference.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 24th day of September, 2024.
1
1 Will O'Neill - ww
Mayor
ATTEST:
o&,-
4. -N�
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
Aarbn C. Harp
City Attorney
Attachments: Exhibit A - HCD Letter
Exhibit B - Housing Element Amendment
EXHIBIT A
HCD Letter
S IAIF QV CALIFORNIA 8 1SIN SS ' N 1N1 -R SERV1CLS AND 1•IOLISIN ' AGENCY
GAVIN NEWSOM GDyern' r
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
651 Bannon Street
Sacramento. CA 95611
(916) 263-2911 i FAX (916) 263-?453
www.hcd.ra.onv
August 20, 2024
Seimone Jurjis, Community Development Director
Community Development Department
City of Newport Beach
100 Civic Center Drive,
Newport Beach, CA 92660
Dear Seimone Jurjis:
RE: City of Newport Beach 6rh Cycle (2021-2029) Draft Housing Element
Amendment
Thank you for submitting the City of Newport Beach (City) draft amendment to the
adopted housing element that was received for review on August 2, 2024, Pursuant to
Government Code section 65585, subdivision (b), the California Department of Housing
and Community Development (HCD) is reporting the results of its review.
The City's housing element was found in compliance on October 5, 2022. The draft
amendment incorporates modifications to Section 3: Housing Constraints, Resources,
and Affirmatively Furthering Fair Housing and Section 4; Housing Plan, Housing Policy
1.1 Implementation Action - Adequate Sites to Accommodate 2021-2029 RHNA and will
not negatively impact demonstrating adequate sites to accommodate the regional
housing need allocation (RHNA) or the current compliance status of the housing
element. Therefore, the element will remain in compliance with State Housing Element
Law (Gov. Code, § 65580 et seq) when the draft amendment is adopted, submitted to
and approved by HCD, in accordance with Government Code section 65585.
Public participation in the development, adoption and implementation of the housing
element is essential to effective housing planning. Throughout the housing element
process, the City must continue to engage the community, including organizations that
represent lower -income and special needs households, by making information regularly
available while considering and incorporating comments where appropriate.
Seimone Jurjis, Director
Page 2
HCD appreciates the hard work and dedication provided in the preparation of the City's
housing element and looks forward to receiving the County's adopted housing element.
If you have any questions or need additional technical assistance, please contact me at
Melinda.Coy )hcd.ca.aov.
Sincerely,
Melinda Coy
Proactive Housing Accountability Chief
EXHIBIT B
Housing Element Amendment
Section 1: Amend the Subsection entitled "Growth Management Measures" beginning
on Page 3-28 within Section 3: Housing Constraints, Resources, and Affirmatively
Furthering Fair Housing as follows:
Growth Management Measures
Growth management measures are techniques used by a government to regulate the rate,
amount, and type of development. Growth management measures allow cities to grow
responsibly and orderly, however, if overly restricted can produce constraints to the
development of housing, including accessible and affordable housing.
On November 7, 2000, the Newport Beach electorate approved Measure S, which amended the
Newport Beach City Charter by adding Section 423. Charter Section 423 requires voter approval
of certain major amendments of the Newport Beach General Plan, unless state or federal law
precludes a vote of the electorate on the amendment. In the case of Charter Section 423, in
general, a major amendment to the General Plan is defined as one that significantly increases
allowed density or intensity by increasing over 100 peak hour trips (traffic), or over 40,000 square
feet of floor area (intensity), or over 100 dwelling units (density) when compared to the General
Plan prior to approval. These thresholds are calculated as the sum of the amendment itself and
eighty percent (80%) of the increases resulting from other amendments affecting the same
neighborhood that were adopted within the preceding ten (10) years.
When the electorate approved Measure S, the electorate encouraged the City Council to adopt
implementing guidelines that are consistent with the purpose and intent of Measure S; however,
the Guidelines for Implementing Charter Section 423 do not provide guidance as to when a state
or federal law precludes a vote on a major amendment of the General Plan.
The City Council determines if a proposed amendment requires voter approval pursuant to
Charter Section 423, based on the following conditions:
• The Amendment modifies the allowed use(s) of the property or area that is the subject
of the Amendment such that the proposed use(s) generate(s) more than one hundred
(100) morning or evening peak hour trips than are generated by the allowed use(s)
before the Amendment; or
• The Amendment authorizes an increase in floor area for the property or area that is
the subject of the Amendment that exceeds forty thousand (40,000) square feet when
compared to the General Plan before approval of the Amendment; or
• The Amendment authorizes an increase in the number of dwelling units for the
property or area that is the subject of the Amendment that exceeds one hundred
(100) dwelling units when compared to the General Plan before approval of the
Amendment; or
• The increase in morning or evening peak hour trips, floor area or dwelling units
resulting from the Amendment when added to eighty percent (80%) of the increases
in morning or evening peak hour trips, floor area or dwelling units resulting from Prior
Amendments, within the preceding ten (10) years (see definition in Section 2J)
exceeds one or more of the voter approval thresholds in Section 423 as specified in
Subsection 1, 2 or 3.
If the City Council determines a General Plan Land Use Element Amendment requires voter
approval, after approving the Amendment, the City Council then adopts a resolution calling an
election on the Amendment. The City Council schedules the election at the next regular municipal
election, as specified by the City Charter. The City Attorney then prepares an impartial analysis
of the Amendment, which contains information about the Amendment, any related project or
land use approval, and the environmental analysis conducted that will help the electorate make
an informed decision. In the absence of an ordinance or Charter provision that establishes a
procedure for submittal of arguments or rebuttals relative to City measures, the City Council will
adopt a resolution that authorizes the filing of arguments and rebuttals in accordance with the
general procedures specified in the Elections Code.
It is important to understand that Charter Section 423 only applies to General Plan amendments.
Individual housing development projects that do not require a General Plan amendment are
already accommodated within the General Plan and zoning framework. They would not be
subject to Charter Section 423 and would never require a vote of the electorate.
If a housing development project requires a General Plan amendment, any unit and peak hour
traffic increases added to the project through bonus units awarded by the Density Bonus process
are not counted toward Charter Section 423 thresholds and a determination whether a vote is
required. Ultimately projects that require a vote of the electorate pursuant to Charter Section
423 may require additional costs and be subject to delays due to the election process that may
yield uncertain election results.
To implement the Housing Element, the City must move forward with adding housing units that
would qualify as a major amendment for purposes of Charter Section 423, which raises the
question whether a vote under Charter Section 423 is precluded by state or federal law. In recent
legislation, such as Senate Bill 1333, the legislature has specifically found that the lack of
affordable housing is a matter of statewide concern and that state housing laws related to land
use, planning and zoning apply to charter cities. Similarly, the court in Anderson v. City of Son
Jose (2019) 42 Cal.App.Sth 683, found that that the lack of affordable housing is a matter of
statewide concern.
To comply with state laws, the City must have a general plan, which serves as the long-range plan
for future physical development in the community. (Government Code § 65000, et seq.) One of
the mandatory elements of a general plan is a housing element, which must be updated by the
City every eight (8) years and identify sites sufficient to meet the City's share of the Regional
Housing Needs Assessment (RHNA) allocation. (Government Code §§ 65302, 65588, 65863.) In
determining the RHNA allocation, the council of governments does not take into consideration
any zoning or other local land use restrictions, such as Charter Section 423, but is directed by
state law to "consider the potential for increased residential development under alternative
zoning ordinances and land use restrictions." (Government Code § 65584.04(e)(2)(B).)
Furthermore, the City has a continuing obligation to always ensure that adequate sites exist to
accommodate lower -income housing development, not just at the beginning of the eight (8)-year
Regional Housing Needs Allocation cycle. (Government Code § 65863.)
In this RHNA cycle, the City has been allocated 4,845 new housing units. To comply with state
law, the City must not only plan for these units, but the City must also take action to establish
the appropriate zoning designations and development standards to allow the private market to
develop these units. After developing a plan for these units, the City must submit the Housing
Element to the Department of Housing and Community Development for them to find that the
Housing Element is in compliance with state law.
But having the California Department of Housing and Community Development find the City's
Housing Element is compliant with state law is only one step of many. The City is then required
to implement the Housing Element. Under Government Code Section 65585 (i)(1)(A),
implementation is not optional, and the California Department of Housing and Community
Development is charged with ensuring the City is implementing the Housing Element and taking
action to revoke its finding that the Housing Element complies with state law if the City fails to
implement the Housing Element. In addition to the loss of local zoning control, permitting
authority, and fines of up to $600,000 per month for not having a compliant Housing Element,
state law provides that the Attorney General may appoint an agent to take all necessary actions
to bring the City into compliance with state law. (Government Code § 65585(I).)
Because providing residential housing opportunity sites to accommodate the City's RHNA
allocation is mandated by state law and the City is required to implement the Housing Element,
a Charter Section 423 vote is precluded, and the City will move forward with implementing the
Housing Element without a Charter Section 423 vote.
Section 2: Amend the Subsection entitled "Implementation Actions" beginning on Page
4-2 within Section 4: Housing Plan as follows:
Implementation Actions
The City of Newport Beach has a total Regional Housing Needs Assessment (RHNA) allocation of
4,845 units. State law requires the City of Newport Beach to identify adequate sites to
accommodate its fair share allocation for the 6th Cycle Housing Element. This City has identified
a variety of candidate sites through extensive analysis in collaboration with the community and
stakeholders through Newport Together's "Listen and Learn" process, multiple meetings of the
City's Housing Element Update Advisory Committee (Committee), participation by interested
residents at a variety of public meetings, workshops, and consultation with property owners. The
City of Newport Beach has identified an adequate amount of land that was determined by the
Committee as "Feasible" or "Potentially Feasible" for future development. Only a portion of these
candidate sites will be necessary to accommodate the City's RHNA planning obligation. These
sites have undergone a rigorous process to evaluate site features, development potential,
developer/owner interest and other factors to deem them appropriate for housing during the
2021-2029 Planning Period.
As part of the analysis of adequate sites, the City has comprehensively reviewed opportunity sites
citywide and has identified eight primary areas of opportunity:
• Airport Area Environs • Dover/Westcliff
• West Newport Mesa • Newport Center
• Banning Ranch • 5th Cycle Housing Element Sites
• Coyote Canyon • Accessory Dwelling Units
Since the City has identified several opportunity sites in the 51h Cycle Housing Element that will
be utilized in the 6th Cycle Housing Element, additional policy considerations are stated in this
Policy Program.
These opportunities sites are described in map and tabular format in Appendix B of this Housing
Element.
Each of the opportunity areas described in this Housing Element have been assigned a targeted
acreage, and a targeted number of new housing units (see following implementing Policy Action
statements). Collectively, these targets must meet the unmet RHNA need as required by state
law. It is expected there may be deviations from the targets with future implementing zoning
actions. New opportunity sites may be identified, and other sites may be deemed unsuitable, or
densities may be modified, all based on new information received over time. The City may adopt
future zoning strategies that are more or less than the identified targets in this Housing Element
provided the total unmet RHNA need by income category is accommodated within state -defined
deadlines. If future zoning strategies deviate from the targets expressed in this Housing Element
but still meet the requirement to identify adequate sites to accommodate unmet RHNA need, no
amendment to the Housing Element would be required and deviations of any magnitude may be
considered subject to the City Council's review and approval in consultation with the Community.
For all Rezone Policy Actions 1A to 1F, Pursuant to Government Code 65583.2, subdivisions
(h) & (i), which rezone sites to accommodate the City's shortfall in satisfying the RHNA, the
City commits to the following:
• permit owner -occupied and rental multifamily uses by -right for developments in
which 20 percent or more of the units are affordable to lower -income
households. By -right means local government review must not require a CUP,
planned unit development permit, or other discretionary review or approval.
• accommodate a minimum of 16 units per site;
• require a minimum density of 20 units per acre; and
• at least 50 percent of the lower -income need must be accommodated on
sitesdesignated
• for residential use only or on sites zoned for mixed uses that accommodate
all of the very low and low-income housing need, if those sites:
o allow 100 percent residential use, and
o require residential use occupy 50 percent of the total floor area of a
mixed -use project.
5788168.1
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2024-73 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 2411 day of September, 2024; and the same was so passed and adopted by the
following vote, to wit:
AYES: Mayor Pro Tern Joe Stapleton, Councilmember Noah Blom, Councilmember
Robyn Grant, Councilmember Lauren Kleiman, Councilmember Erik Weigand
NAYS None
ABSTAIN: Mayor Will O'Neill
ABSENT: Councilmember Brad Avery
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said
City this 25th day of September, 2024.
C ill -47- ..-1.1 leo"V-
Leilani I. Brown
City Clerk
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