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HomeMy WebLinkAbout2014-66 - Overruling the Orange County Airport Land Use Commission's Determination that the General Plan Land Use Element Amendment Project is Inconsistant with the Airport Environs Land Use Plan for the John Wayne Airport and Finding the General Plan LanRESOLUTION NO. 2014 -66 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH OVERRULING THE ORANGE COUNTY AIRPORT LAND USE COMMISSION'S DETERMINATION THAT THE GENERAL PLAN LAND USE ELEMENT AMENDMENT PROJECT IS INCONSISTENT WITH THE AIRPORT ENVIRONS LAND USE PLAN FOR THE JOHN WAYNE AIRPORT AND FINDING THE GENERAL PLAN LAND USE ELEMENT AMENDMENT PROJECT IS CONSISTENT.WITH THE PURPOSES OF PUBLIC UTILITIES CODE SECTION 21670 (PA2011 -134) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On May 28, 2013, the Newport Beach City Council initiated an amendment to the 2006 General Plan Land Use Element to review its effectiveness in achieving the community's vision, and to update it to reflect legislative changes, emerging best practices, and changing economic markets. 2. The Land Use Element Amendment Advisory Committee (Committee), comprised of two council members, two planning commissioners, and five at -large members, was appointed by the Newport Beach City Council to receive public input, consider options, and develop the amendment to be evaluated in a Supplemental Environmental Impact Report (SEIR) prepared pursuant to the California Environmental Quality Act (CEQA). 3. The Land Use Element Amendment (Project) considered by the Committee and evaluated in the draft SEIR includes land use changes and policy revisions. 4. The State Aeronautics Act (SAA) and, specifically, Public Utilities Code Section 21676, subdivision b, requires the City of Newport Beach to refer the proposed amendment to the Orange County Airport Land Use Commission (ALUC) for consistency with the 2008 John Wayne Airport Environs Land Use Plan (AELUP). Public Utilities Code section 21674.7 also provides that an ALUC that formulates, adopts or amends a comprehensive airport land use plan shall be guided by information prepared and updated pursuant to Section 21674.5 and referred to as the California Airport Land Use Planning Handbook ( "Handbook ") published by the Division of Aeronautics of the Department of Transportation. 5. At a duly- noticed public hearing on April 17, 2014, the ALUC found the proposed Project, as evaluated in the draft SEIR, to be inconsistent with the AELUP. The ALUC determined that the residential uses proposed in the Airport Area (Area 4), and specifically the Saunders property (Area 4d) located at the southwest corner of the intersection of Campus Drive and MacArthur Boulevard, were not appropriate in the Airport Area based on the following: a. Airport noise impacts; b. Significant overflight of General Aviation aircraft — the area is under the General Aviation flight path; and C. The location of one property (Saunders), a portion of which is within two safety zones, including Safety Zone 3 which, in the AELUP and California Airport Land Use Planning Handbook (Handbook) (2011), limits residential uses to very low density and, in the 2011 Handbook, to allow infill in urban areas at up to the average of the surrounding residential area. (See 2011 Handbook, p. 4 -22, Note B) 6. Pursuant to Public Utilities Code Sections 21670 and 21676, the City of Newport Beach may, after a public hearing, propose to overrule the ALUC's incompatibility determination with a two- thirds vote of the City Council, if the Council makes specific findings that the proposed Project is consistent with the purposes of Public Utilities Code Section 21670, which are to protect 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.. 7. A public hearing was .held on May 13, 2014 in the City Hall Council Chambers, 100 Civic Center Drive; Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 8. On May 13, 2014, following a duly- noticed public hearing, the -City Council of the City of Newport Beach adopted Resolution No. 2014 -40 and notified the ALUC and the State Division of Aeronautics of the City Council's intent to overrule the ALUC's determination of inconsistency for the General Plan Land Use Element Amendment. 9. Pursuant to Public Utilities Code Section 21676(b), the City provided notice of a public hearing on the City Council's intent to overrule the ALUC determination to be held on July 8, 2014, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing. 10. In correspondence dated June 11, 2014, ALUC Chairman Gerald Bresnahan submitted comments in response to receiving notice of the City Council's intent to overrule ALUC's inconsistency determination. 11. Correspondence from the Department of Transportation, Division of Aeronautics (Division), in response to the City Council's intent to overrule was not received. 12. The City Council conducted a public hearing on July 8, 2014 and received public testimony. Following deliberation the City Council voted to direct staff to return to the July 22, 2014 meeting with revised resolutions reflecting a modified Project which would not increase the maximum number of residential units presently allowed in the airport area, but does re- designate the Saunders property to "Mixed -Use" with the existing maximum General Plan development intensity for non - residential uses. Furthermore, future residential development on the Saunders property must be located outside the 65dbCNEL contour of John Wayne Airport. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION, 1. The General Plan Land Use Element Amendment Final Supplemental Environmental Impact Report No. ER2014 -002 (SCH No. 2013101064) was prepared for the Project in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. By Resolution No. 2014 -67, the City Council, having final approval authority over the Project, adopted and certified as complete and adequate the General Plan Land Use Element Amendment Final Supplemental Environmental Impact Report (SCH No. 2013101064), and adopted a Mitigation Monitoring Program. Resolution No. 2014 -67 is hereby incorporated by reference. SECTION 3. DECISION. NOW, THEREFORE, BE IT RESOLVED: The City Council of the City of Newport Beach does hereby resolve as follows: 1. The City Council has considered the comments received from the Airport Land Use Commission in their entirety prior to rendering a final decision to overrule the ALUC determination. 2. The City Council does hereby overrule the ALUC determination that the proposed Project is inconsistent with the Airport Environs Land Use Plan for John Wayne Airport, finds the Project is consistent with the purposes of Public Utilities Code 21670, and adopts the required findings in support of the City's overrule of the ALUC determination, as shown in Exhibit "A ", and incorporated herein by this reference. 3. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 22nd day of July, 2014. ATTEST: OkuVyVt - hv�'� Leilani I. Brown, City Clerk G � Rush N. Hill, II, Mayor EXHIBIT "A" FINDINGS OF THE CITY OF NEWPORT BEACH IN SUPPORT OF THE CITY'S DECISION TO OVERRULE THE AIRPORT LAND USE COMMISSION DETERMINATION' THAT THE GENERAL PLAN. LAND USE ELEMENT AMENDMENT IS INCONSISTENT WITH THE AIRPORT ENVIRONS LAND USE PLAN FOR THE JOHN WAYNE AIRPORT Public Utilities Code Section 21676(b) provides that the City of Newport Beach may overrule the determination by the Airport Land Use Commission that the Project is inconsistent with the Airport Environs Land Use Plan for the John Wayne Airport, by a two - thirds vote of the City Council, if it .makes specific findings that the Project is consistent with the purposes of in Public Utilities Code Section 21670. The purposes of Public Utilities Code Section 21670 are included is subsection (a)(2), which reads as follows: It is the purpose of this article to protect 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. The Project, and the modified Project adopted by the City Council, is consistent with the legislative purpose set forth in California Public Utilities Code Section 2'1670(x)(2) to protect public health, safety, and welfare by ensuring the orderly expansion of airports. Facts in Support 1. To provide for the orderly development of John Wayne Airport (JWA) and the area surrounding the airport, the Airport Land Use Commission (ALUC) adopted the Airport Environs Land Use Plan (AELUP) for the John Wayne Airport, which was most recently amended on April 17, 2008. The AELUP guides. development proposals to provide `for orderly development of the airport and the area surrounding the airport:hrough implementation of the standards for aircraft noise, safety compatibility zones, and building height restrictions in AELUP Section 2.1. The AELUP relies on a 2002 version of the Airport Land Use Planning Handbook which has since been updated (Oct. 2011). The purpose of the Handbook is to provide guidance for conducting airport land use compatibility planning as required by Public Utilities Code Sections 21670 - 21679.5. 2. The ALUC staff report dated October 18, 2012, reflects that ALUC's staff reviewed the Project with respect to compliance with the AELUP, including review of appropriate noise standards, height restrictions, imaginary surfaces, safety zones, - ' and environmental compliance, and recommended that ALUC find the Project consistent with the AELUP. 3. The Project is consistent with the noise, height and safety `standards set forth in the AELUP, and therefore provides for the orderly development of the airport and the area surrounding the airport, based on the following: a. The residential and commercial land uses for the Project are consistent with. the noise standards of the AELUP. The Project modified by the City Council maintains the residential development intensity in the airport area, therefore, it is also consistent with the noise standards of the AELUP. AELUP Section 2.1.1 sets forth the Community Noise Equivalent Level (CNEL) standards. The Project includes land use changes, two of which are located in the 65 CNEL and /or 60 CNEL contours for JWA. AELUP Section 3.2.4 defines the noise exposure to be "Moderate Noise Impact" in the 60 -65 dBA CNEL noise contour, which is Noise Impact Zone 2. The City's General Plan Land Use and Noise Elements require that residential development in the Airport Area be located outside of the 65 dBA CNEL noise contour (Policies LU 6.15.3 and N 12). A portion of the Saunders property is located within the 65 CNEL, therefore future specific development projects would be limited to office or other non - residential uses on the affected portion of the property. The AELUP also identifies land uses that are "normally consistent" and "conditionally consistent" in each noise impact zone delineated by the CNEL noise contour. AELUP Section 3 Table 1 (Limitations on Land Use Due to Noise) identifies the 60 CNEL contour for residential and commercial uses as "normally consistent" requiring "no special noise reduction requirements." . .. . The Newport Beach General Plan Noise Element additionally requires ' residential developers to notify purchasers or tenants of aircraft overflight and noise. The Project does not amend the City's Noise Element. Future developments will be subject to further review which will include consideration of compliance with the applicable Noise Element policies. Compliance with these policies and regulations will ensure that future development within the JWA Airport Planning Area will follow the noise standards of the AELUP. The anticipated continuation of the JWA curfew pursuant to the proposed Settlement Agreement amendment would also continue to prevent sleep disturbance and noise levels to any future residents that may reside within the Airport Area. The ALUC comment letter dated June 10, 2014, indicates that ALUC "...has historically not looked favorably on residential uses so close to JWA and where properties are partially within the 65 CNEL...." The Saunders property is actually made of multiple properties. The portion of the area outside both Safety Zone 3.and the 65 CNEL contour is approximately 8.25 acres. As stated above, future projects will be reviewed for compliance with all applicable City, FAA and AELUP noise, height and safety standards. The ALUC comment letter dated June 11, 2014, does not change City Council's conclusion that the Project, and the modified Project, is consistent. b. The residential and commercial land. uses for the Project and the modified Project are consistent with the safety standards of the AELUP. AELUP Section 2.1.2 sets forth Safety Compatibility Zones to support the continued use and operation of an airport by establishing compatibility and safety standards to promote air safety and reduce potential safety hazards for persons living, working, or recreating near JWA. The land use changes proposed in the Airport Area (Area 4) fall within the Safety Zones for JWA. The Airport Area land use changes, with the exception of a portion of the Saunders property, are all within Safety Zone 6. Risk factors associated with Safety Zone 6 generally include a low likelihood of accident occurrence, Allowed uses in Safety Zone 6 include residential and most nonresidential uses, with the exception of outdoor stadiums and similar uses with very high intensities. (See also.Handbook, p. 4 -25.) Uses that should be limited include children's schools, large day -care centers, hospitals, and nursing homes. A portion of the Saunders property is in Safety Zone 3. Safety Zone 3 limits residential uses to very low density (if not deemed unacceptable because of noise), and advises to avoid nonresidential uses having moderate or higher usage intensities. The 2011 Handbook Compatibility Policies also contemplate infill projects in urban areas at up to the average number dwelling units in surrounding residential areas. (Handbook, p. 4 -22, Note B.) General Plan Safety Element Policy S 8.6 demonstrates that the City acknowledges the importance of the JWA Safety Zones which reads as follows: "S 8.6 John Wayne Airport Traffic Pattern Zone Use the most currently available John Wayne Airport (JWA) Airport Environs Land Use Plan (AELUP) as a planning resource for evaluation of land use compatibility and land use intensity in areas affected by JWA operations. In particular, future land use decisions within the existing JWA Clear Zone /Runway Protection Zone (Figure S5) should be evaluated to minimize the risk to life and property associated with aircraft operations." Compliance with these policies and regulations will ensure that future development within the JWA Airport Planning Area will follow the safety standards of the AELUP. The ALUC comment letter dated June 10, 2014, suggests that the entire Saunders property is located within Safety Zone 3 or within the 65 CNEL contour. As stated above under Finding 3, the portion of the Saunders property located outside of Safety Zone 3 and the 65 CNEL Contour is approximately 8.25 acres. Additionally, all future specific development projects will be reviewed for compliance with all applicable City, FAA and AELUP, noise, safety and land use policies regulations and standards. The ALUC comment letter dated June 11, 2014, does not change City Council's conclusion that the Project, and the modified Project, is consistent with the AELUP. C. The residential and commercial land uses for the Project, and the modified Project, are consistent with the height standards of the AELUP. Some of the proposed land use changes fall within the Federal Aviation Administration (FAA) Notification Area and the Federal Aviation Regulation (FAR) Part 77 Obstruction Imaginary Surfaces for JWA. The Newport Beach General Plan does not specify height limits. Height limits would be established in zoning code and planned community amendments. However, General Plan Policy LU 6.15.3 states that all development shall be required to conform with the height restrictions set forth by the FAA and FAR. Therefore through the project review process, compliance with Policy LU 6.15.3 would be demonstrated. The ALUC comment letter dated June 11, 2014 expresses concern that residential development on the Saunders property may result in residential structures where height is a concern. Since the General Plan land use designations do not guarantee development rights, all proposed projects are subject to future review during zoning code amendments and other discretionary reviews. As indicated, all proposed development will be reviewed for compliance with applicable City, FAA and AELUP height standards, regulations and restrictions. Moreover, a state permit would be required for construction of buildings or objects that would affect the navigable airspace. These objects include: (1) any structure taller than 500 feet above ground level, unless the height of the structure is required to be approved by the Federal Communications Commission or the Federal Aviation Administration (Pub. Util. Code'section 21656); and (2) any structure or object of natural growth which would exceed the height limits specified in FAR Part 77, Subpart C, unless the FAA has determined that the object's construction, alteration, or growth would not constitute a hazard to air navigation or otherwise create conditions unsafe for air navigation (Pub. Util Code sections 21658- 21659). (Handbook, p. 5 -12.) The ALUC comment letter dated June 11, 2014, does not change City Council's conclusion that the Project and the modified Project are consistent with the AELUP. The Project and the modified Project are consistent with the legislative purpose set forth in California Public Utilities Code Section 21670(a)(2) to ensure 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. Faets in Support 1. To protect the public health, safety and welfare by ensuring orderly expansion of airports, the ALUC adopted the AELUP. The AELUP standards guide development proposals to provide for the orderly development of the airport and the area surrounding the airport through implementation of the standards and policies in AELUP Sections 2 and 3. As set forth above, the proposed land use changes are consistent with the AELUP noise, safety, and building height standards. 2. To protect the public health, safety and welfare the ALUC adopted the AELUP to outline land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent these are not already devoted to incompatible uses. The AELUP provides land use policies in Section 3 that govern noise, safety and height. As set forth above, the proposed land use changes are consistent with AELUP noise, safety, and building heights standards. 3. The modified Project maintains the residential development intensity in the airport area, as defined in the 2006 General Plan. The Newport Beach General Plan Noise Element additionally specifies that residential development in the Airport Area must be outside of the 65 dBA CNEL noise contour and requires residential developers to notify purchasers or tenants of aircraft overflight and noise. Prospective purchasers and tenants will also be notified. The Project, as well as the modified Project, are consistent with these policies, which are the same policies that ALUC deemed consistent with the AELUP on July 20, 2006. 4. The ALUC comment letter dated June 11, 2014 suggests that placing residential uses (Saunders property) in close proximity to JWA and in an area where general aviation traffic is operating in very close proximity as "poor land use planning." The General Plan allocates a potential development capacity and does not on its own, grant land use entitlements. Any future proposed development projects require submittal of detailed development plans and are reviewed for compliance with all applicable City, FAA and AELUP standards, regulations and restrictions. Additionally, proposed projects will be individually evaluated in accordance with CEQA requirements. The ALUC comment letter dated June 11, 2014, does not change City Council's conclusion that the Project, and the modified Project, are consistent with the AELUP. Finding C The City Council finds the ALUC's determination that the Project is inconsistent with the AELUP � is not based on substantial evidence that was introduced, commented on, or identified in support of the inconsistency finding. Facts in Support 1. The 2006 General Plan includes the goal of establishing the Airport Area as a mixed -use community that provides jobs, residential, and supporting services in close proximity, with pedestrian- oriented amenities that facilitate walking and enhance livability. The proposed land use changes serve to further implement the goals of the 2006 General Plan. Furthermore, the General Plan includes policies requiring consistency with AELUP safety, height and noise: standards. The ALUC comment letter dated June 11, 2014 suggests that the proposed amendment to allow residential /mixed -use development on the Saunders property .does not meet the goals and objectives of the General Plan. Since a portion of the Saunders property (approximately 8.25 acres) is outside both Safety Zone 3 and the 65 CNEL contour, the amendment would condition development of the site subject to future detailed review and approval by the City for compliance with ail applicable development standards and with General Plan goals and policies, including the 65 CNEL limit. 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; that the foregoing resolution, being Resolution No. 2014 -66 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 22nd day of July, 2014, and that the same was so passed and adopted by the following vote, to wit: Ayes: Council Member Gardner, Council Member Petros, Council Member Curry, Mayor Pro Tern Selich, Mayor Hill Nays: None Absent: Council Member Henn, Council Member Daigle IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 23`d day of July, 2014. 1/ggli T - ' // ft / City Clerk Newport Beach, California (Seal)