HomeMy WebLinkAbout2017-07-31 Nossaman Memo56102271.v2
TO:Kim Brandt, Community Development Director
cc:Michael Torres, Assistant City Attorney
FROM:John P. Erskine
Steven H. Kaufmann
DATE:July 31, 2017
RE:Newport Dunes Settlement Agreement and Processing of Family Inn
Applications Within PC-48
400244-0001
Background
This memorandum provides our final legal analysis of the City of Newport Beach (“City”)
Title 20, Chapter 20.56 Planned Community District Procedures, as applied to the processing of
pending entitlement applications for the Newport Dunes Resort (“Newport Dunes” or “Dunes”)
Family Inn site, and replaces our prior memorandum on the subject dated July 5, 2017..
As discussed with you and your staff, Newport Dunes is essentially built out. Except for the
Family Inn site and an additional restaurant parcel (Parcel B-2), both the Company1 and the City
concur that the allowable land use parameters and development standards or limitations for the
Dunes must be consistent with the Settlement Agreement, as amended, particularly including
the Second Amendment to the Amended Newport Dunes Settlement Agreement (“Settlement
Agreement”).
The California Coastal Commission certified the City’s Local Coastal Program (“LCP”) effective
January 30, 2017, following approval in 2016 of the City’s submitted Coastal Zoning or
Implementation Plan (“IP”; Zoning Code section 21.65.065). The IP included a Planned
Community Development Plan for PC-48 that incorporates the land uses and development limits
established pursuant to the Settlement Agreement. The IP is consistent with the land use
designations set forth in the City’s General Plan.
We have previously discussed the fact that Title 20, the City’s Planning and Zoning Code, in
Chapter 20.56 Planned Community District Procedures (“PC Procedures”) requires that new
uses be “in compliance with a valid PC Development Plan” (Zoning Code section
20.56.030.B.1.).
1 In 1983 the City and the predecessors to the current long-term County lessees of the Dunes tidelands
area entered into a Settlement Agreement to resolve litigation challenging the validity of a prior EIR for
redevelopment of the area prepared by the County. The City formally approved the initial 1983
Agreement, an amended version of same, and two subsequent amendments of the Amended Agreement.
The current lessees are Waterfront Resort Properties, L.P. and Newport Dunes Marina, LLC (the
“Company”).
Memorandum
July 31, 2017
Page 2
56102271.v2
However, an alternative approach sanctioned by the PC Procedures allows other approved
uses established pursuant to a conditional use permit (“CUP”) to constitute the required PC
Development Plan (Zoning Code section 20.56.050.B.2.). This alternative approach,
recognized by the PC Procedures and the PC Procedures as a whole set forth in Title 20, was
adopted prior to the City receiving Coastal Commission’s approval of the City’s Coastal Zoning
in the IP component certified by the Commission in January 2017.
The Certified IP Now Prevails Over Conflicting Provisions In Any Other City Code or
Regulation
Title 21, Local Coastal Program Implementation Plan, was added to the City’s Municipal (Zoning)
Code through the City Council’s adoption of Ordinance 2016-19 on November 22, 2016.
Chapter 21.12 “Interpretation of Implementation Plan Provisions” within Title 21, sets forth rules
for resolving questions regarding the applicability of any part of the IP (Section 21.12.010). The
paramount authority of the LCP and the IP over any contrary zoning or municipal code provision
is set forth in Section 21.12.020 Rules of Interpretation, subsection D. Conflicting Requirements:
Where conflict occurs between the provisions of this Implementation Plan
and any other City Code, title, chapter, resolution, guideline or regulation,
the Coastal Land Use Plan and this Implementation Plan shall control.
The IP adopted by the Coastal Commission in January of 2017 specifies land uses and
development limits for the Newport Dunes (PC-48) in Section 21.26.065.B. (Planned Communities
Without Development Plans). Furthermore, the land uses and development limits are consistent
with the Newport Dunes Settlement Agreement. This “coastal zoning” includes both the broader
Dunes area and the Family Inn site. Therefore, Section 21.26.065.B. serves as the “functional
equivalent” of the CUP-established existing uses described in the Title 20 PC Procedures.
It is well established that where policies set forth in any element of the (City’s) Plan, Zoning, or
any other ordinance conflict with those of a certified LCP, including the certified Implementation
Plan, the LCP’s policies provisions and Coastal Act (to the extent its policies are incorporated in
the LCP), take precedence. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253; see
also Hagopian v. State (2014) 223 Cal.App.4th 349, 369 [an ordinance adopted pursuant to the
authority set forth in Coastal Act section 30600.5(i) is to have no effect once a local
government’s LCP has been certified and taken effect].) Moreover, the City’s provision
governing interpretation when conflicts arise (Section 21.12.020) is consistent with other similar
precedence provisions which the Coastal Commission has incorporated in other LCPs to ensure
that the LCP controls. (E.g., City of Malibu Implementation Plan section 1.3.1.) While the
Coastal Act does provide that a local government may adopt and enforce additional regulations
not in conflict with the Coastal Act, it may not authorize a use not designated in the LCP. (Pub.
Resources Code section 30005(a);Conway v. City of Imperial Beach (1997) 52 Cal.App.3d 78.)
Here, the alternative approach in PC Procedures allowing other uses that those expressly set
forth in the certified Implementation Plan and associated procedures would conflict with the
Coastal Act, and therefore would consequently not be permitted. Accordingly, the City’s coastal
zoning reflected in the adopted IP obviates the need for a PCDP either for the Family Inn site or
for the Dunes as a whole.
JPE:dlf