HomeMy WebLinkAboutPA2019-248_2020March_CommentsMATTHEW GELFAND, COUNSEL
MATT@CAFORHOMES.ORG
TEL: (213) 739-8206
March 10, 2020
VIA EMAIL
City Council
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Email: citycouncil@newportbeachca.gov
RE: March 10, 2020 City Council Meeting, Agenda Item 10
To the City Council:
Californians for Homeownership is a 501(c)(3) non-profit organization devoted to using
legal tools to address California’s housing crisis. I am writing as part of our work monitoring local
compliance with California’s laws regarding accessory dwelling units (ADUs).
At your March 10 meeting, you will consider an ordinance intended to address recent
changes to state ADU law. If the City adopts a compliant ADU ordinance, it will be able to
maintain certain local controls on ADU development. The City’s ordinance is generally good, but
we have a few concerns about it:
The draft ordinance purports to apply all of the City’s normal zoning standards,
including overlay district standards, to ADUs. Unless these are objective standards that can be
applied through a totally ministerial process, with no hearing or discretionary review, within 60
days, this is not allowed. Gov. Code § 65852.2(a)(3). The draft language should be clarified, if
necessary, to exempt ADUs from any standards that do not fall within these limits.
The draft ordinance requires attached ADUs to conform to generally applicable setback
rules. This is unlawful. For any ADU that is not a conversion or rebuild, the maximum side and
rear setbacks are four feet. Gov. Code § 65852.2(a)(1)(D)(vii).
The draft ordinance sets a maximum of two bedrooms per ADU. We understand that
the state Department of Housing and Community Development (HCD)’s interpretation is that the
law does not allow bedroom count limitations.
The draft ordinance prohibits providing the required parking for the ADU in a rear
setback abutting an alley. Attachment G to the City’s staff report suggests that this is designed to
March 10, 2020
Page 2
mitigate traffic safety concerns. But state law generally requires that cities allow homeowners to
accommodate required parking for the ADU in any setback area, not just the front setback. Gov.
Code § 65852.2(a)(1)(D)(x)(II). Because the City’s proposed restriction applies regardless of
whether there is adequate space to park a vehicle, it is overbroad and unlawful. The City can, of
course, create a reasonable definition for an adequate parking stall and require that parking spaces
that include a portion of the rear setback comply with that definition.
The draft ordinance does not provide the required special treatment for the categories
of ADUs listed in Government Code Section 65852.2(e)(1). These ADUs must be ministerially
permitted “notwithstanding” the provisions allowing cities to pass local ADU ordinances, meaning
that these ADUs must be approved without applying any local development standards, such as
front-yard setbacks. According to guidance from HCD regarding the prior version of Section
65852.2(e), these ADUs “do[] not necessitate a zoning clearance and must not be limited to certain
zones or areas or subject to height, lot size, lot coverage, unit size, architectural review, landscape
or parking requirements,” and the Department has issued non-compliance letters to cities that have
improperly applied local development standards to these ADUs. To assist the City in crafting
appropriate language, we are providing (below) example language based on ordinances adopted
by other cities.
To avoid having its ordinance deemed non-compliant by HCD, we suggest that the City
make changes to the draft ordinance to address these concerns.
Sincerely,
Matthew Gelfand
cc: Seimone Jurjis, Comm. Dev. Director (by email to sjurjis@newportbeachca.gov)
David Blumenthal, Planning Consultant (by email to dblumenthal@newportbeachca.gov)
March 10, 2020
Page 3
Example Language For Government Code Section 65852.2(e)(1) ADUs
Units Subject to Limited Standards.
Notwithstanding [the other sections of the local ADU ordinance], accessory dwelling unit and
junior accessory dwelling unit permits shall be issued based solely on the standards set forth in
this section and all applicable Building Code standards, as follows:
(a) Internal ADUs. One accessory dwelling unit or junior accessory dwelling unit per lot
with a proposed or existing single-family dwelling if all of the following apply:
(1) The ADU or JADU unit is within the proposed space of a single-family dwelling
or existing space of a single-family dwelling or accessory structure and may include an
expansion of not more than 150 square feet beyond the same physical dimensions as the
existing accessory structure. An expansion beyond the physical dimensions of the
existing accessory structure shall be limited to accommodating ingress and egress.
(2) The space has exterior access from the proposed or existing single-family
dwelling.
(3) The side and rear setbacks are sufficient for fire and safety.
(4) The JADU complies with the requirements of Section 65852.22.
(b) Detached ADUs. One detached, new construction, ADU that does not exceed four-foot
side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The
ADU may be combined with a JADU described in subsection (a)(1) of this section. A local
agency may impose the following conditions on the accessory dwelling unit:
(1) A total floor area limitation of not more than 800 square feet.
(2) A height limitation of 16 feet.
(c) Multifamily Dwelling ADUs
(1) Multiple ADUs within the portions of existing multifamily dwelling structures
that are not used as livable space, including, but not limited to, storage rooms, boiler
rooms, passageways, attics, basements, or garages, if each unit complies with state
building standards for dwellings.
(2) A local agency shall allow at least one ADU within an existing multifamily
dwelling and shall allow up to 25 percent of the existing multifamily dwelling units.
(d) Not more than two ADUs that are located on a lot that has an existing multifamily
dwelling but are detached from that multifamily dwelling and are subject to a height limit of 16
feet and four-foot rear yard and side setbacks.
(e) Rentals of ADU and JADU permitted pursuant to this section shall be for a term longer
than 30 days.
(f) Installation of fire sprinklers are not required in an ADU or JADU if sprinklers are not
required for the primary residence.
(g) ADUs and JADUs permitted under this section shall not be required to install a new or
separate utility connection directly between the ADU and the utility nor shall a related
connection fee or capacity be charged unless the ADU or JADU is proposed to be constructed
with a new single-family home.
March 10, 2020, City Council Item 10 Comments
The following comments on an item on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 10. Ordinance No. 2020-9: Introduction of an Accessory and
Junior Accessory Dwelling Unit Ordinance (PA2019-248)
Additional Suggested Changes to Item 10
Page 10-6: “In addition, notice of the proposed amendments was published in the Daily Pilot as
an eight-page eighth-page advertisement, consistent with the provisions of the NBMC.”
Page 10-9: “WHEREAS, the California Legislature adopted and Governor Newsom signed
Senate Bill 13 and Assembly Bills 68 and 881 in 2019 amending California Government Code
Sections 65852.2 and 65852.22, which took effect January 1, 2020, imposing new limitations on
local agencies’, including charter cities’, ability to regulate accessory dwelling units and junior
accessory dwelling units;”
Page 10-9: “WHEREAS, Section 20.48.200 (Accessory Dwelling Units) of the Newport Beach
Municipal Code ("NBMC") regulating accessory dwelling units, most recently amended in 2018
2019 pursuant to Ordinance No. 2018-14, is partially inconsistent with Government Code
Sections 65852.2 and 65852.22;”
Page 10-10: “WHEREAS, Government Code Section 65852.2(a)(1 )(D)(xi) provides that
offstreet parking shall not be required to be replaced when a garage, carport, or other covered
parking is converted to an accessory dwelling unit and or junior accessory dwelling unit,
however, the California Coastal Act of 1976 is neither superseded nor in any way altered or
lessened as provided in Government Code Section 65852.2(1) by this recent legislation;”
Page 10-14: “D. Maximum Number of Units Allowed. The following is the maximum number of
accessory dwelling units and/or junior accessory dwelling units allowed on any residential lot.
Unless specified below, only one (1) category may be used per lot.” [Are we sure? This
interpretation is not obvious from the state code. It could equally well be read to say a multi-
family lot can have non-livable interior space converted to at least one ADU and up to 25% of
the existing number of units plus two detached ADU’s elsewhere on the lot.]
Page 10-14: “3. Conversion of Multi-Unit Dwelling. Multiple accessory dwelling units may be
permitted by conversion of existing space on lots with existing multi-unit dwellings subject to
the following:” [Captions in our code aren’t legally significant. Operative provisions need to be
stated in the text.]
Page 10-16: “a. The accessory dwelling unit meets the minimum setbacks required by the
underlying zoning district; and”
Page 10-17: “8. Parking. Parking shall comply with the requirements of Chapter 20.40 (Off-
Street Parking) except as modified below:
a. No additional parking shall be required for junior accessory dwelling units.
March 10, 2020, City Council Item 10 Additional Comments - Jim Mosher Page 2 of 2
b. A maximum of Except as provided below, one (1) parking space shall be required for each
accessory dwelling unit with a bedroom.”
[The reference, above, to Chapter 20.40 is a circular one. For ADU’s, Table 3-10 (in Chapter
20.40) simply refers reads to the present section on ADU’s (20.48.200).
In any event, saying what the maximum the City may require does not provide an objective
standard as to how many the City does require. And I believe the state parking requirement
is misstated. The maximum that can be required is 1 per ADU or bedroom, whichever is
less (see near top of page 10-41). I take this to mean the state sees the possibility of a
“studio” ADU with full living facilities (hence not a JADU), but no bedroom. For such a no-
bedroom ADU, it appears there is no parking requirement.]
Page 10-17: “iii. Accessory dwelling units located within an architecturally and
historically significant historic district;” [Since the state code does not appear to define “an
architecturally and historically significant historic district” (see page 10-45), applying this
exemption from the parking standard requires a distinctly non-ministerial judgment on the part of
City staff, and can only lead to debate and confusion. It needs to be clarified or omitted.]
Similar corrections to the LCP resolution are undoubtedly needed.
Clarifications to Attachment G (page 10-81)
Zone: In addition to the zoning districts listed, the state code presumably requires ADU’s in the
residential portions of PC (Planned Community) districts, which constitute a large part of
Newport Beach dwellings.
Number of Units Allowed: My understanding is that in single-family areas it is “One ADU, one
JADU or one detached ADU and one JADU.” On multi-family lots, I believe it is “25% of the
existing units” (but at least one) when converting existing non-livable space to ADU’s or two
detached ADU’s or possibly both.
Maximum Unit Size: I believe the 850 sf is for zero or one bedroom.
Side and Rear Setback: The proposed page 10-14 confusingly says they only have to comply
with Titles 9 and 15, not Title 20.
Parking: I believe the standard for ADU’s is mis-stated. It is one space per ADU or bedroom,
whichever is less (see above).
March 10, 2020, City Council Item 10 Comments
The following comments on an item on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 10. Ordinance No. 2020-9: Introduction of an Accessory and
Junior Accessory Dwelling Unit Ordinance (PA2019-248)
General Comments
Although the concept is not without its problems, for most of the hundred years or so in which
the United States has recognized the right of government to limit the use of private land, most of
the details of land use planning have been regarded as a local matter. Indeed, when the
California legislature felt the need to adopt some broad planning principles to guide general law
cities, it was with an apology in Government Code Section 65800 that “the Legislature declares
that in enacting this chapter it is its intention to provide only a minimum of limitation in order that
counties and cities may exercise the maximum degree of control over local zoning matters.”
Particularly in view of the separate state mandate for cities, including charter ones, to revise
their general plan housing elements to accommodate state specific state housing goals, the
recent raft of state ADU regulations, claiming to be applicable to charter cities without their
consent, intrude uncomfortably into the local domain.
Even if one accepts a need for cities to facilitate the achievement of state housing goals,
Newport Beach has not even begun its housing element update, and ADU’s may or may not be
the preferred way, in our particular local context, of assisting the state in meeting its goals. Yet
the state laws give us no latitude to adjust the planning of ADU’s to our local conditions.
In view of all these concerns, I feel some of the opening “Whereas” clauses of the proposed
ordinance and resolution (staff report page 10-9 and 10-23) make premature announcements of
the City’s (as yet undetermined) conclusions regarding local housing solutions and ADU’s role in
them. In effect, if adopted as written, the Council seems to be embracing the state’s reasoning
without our own Housing Element Update Committee having had a chance to weigh in. I would
delete the paragraphs 3 through 5 on page 10-9 and the same three paragraphs on page 10-24
(5 though 7, there). They do not seem necessary.
Two additional concerns are:
1. The resolutions rely on a 1983 statute exempting the adoption of ordinances allowing
the construction of second units from CEQA review (Public Resources Code Section
21080.17). But what the new state rules allow in the way of ADU’s is far for expansive
than it was in 1983, and the potential impact of ADU’s, if they were all constructed as
allowed, is clearly large. Yet there is no review or attempt to mitigate the impacts now.
Nor will there be any review when individual projects are approved, since the approval
will be ministerial.
2. The opening paragraphs of the revised statewide ADU code, specifically Gov. Code
Sec. 65852.2(a)(1)(A), give cities latitude to designate the areas in which ADU’s should
be allowed “based on the adequacy of water and sewer services and the impact of
March 10, 2020, City Council Item 10 Comments - Jim Mosher Page 2 of 3
accessory dwelling units on traffic flow and public safety,” and where other agencies
provide water or sewer services, requires them to consult with those agencies as to the
adequacy of those services. Since the present proposal designates the residential areas
of the whole city as suitable for development of ADU’s, the implication is that in adopting
the ordinance the City is affirming the services are adequate throughout the city,
including traffic and safety, and that the consultation has taken place. Yet the public has
not seen such studies or consultations.
Regarding the Staff Report
As to what is being proposed, the staff report includes a very useful Appendix G (pages 10-81
and 10-82), which was requested, but not seen by, the Planning Commission. It details how the
proposal deviates from the default state ADU approval requirements that have been in effect
since January 1. It looks like the proposed regulations are stricter than the do-nothing option,
and the strictest allowed by the new state law in all respects except for ADU’s build over
detached garages. In that case, we allow them to go to the maximum non-discretionary height
permitted in the district, where the state law would allow them to be limited to a maximum of 16
feet.1
The present staff report includes other helpful material not seen by the Planning Commission,
such as the HCD memo showing the text of the current state laws, as well as the minutes of the
PC meeting, but it does not include written comments received and reviewed by them
(mentioned at the bottom on page 10-2) and on the basis of which some changes were made.
Another thing not provided is the California Coastal Commission Guidance Memorandums
referenced on page 10-77. Those seem particularly important since although the Legislature
has in Gov. Code Sec. 65852.22 allowed, and indeed required, any local ADU ordinance to
override any contrary provisions of a city’s general plan or zoning code, it does not give coastal
cities the authority to override their LCP’s.3
Regarding the Proposal
This is at least the fourth time in recent years that the City has attempted to revise its
ordinances in response to changing state rules.4
1 This emphasizes the difficulty of the Legislature trying to impose uniform statewide regulations: heights
are measured differently in different jurisdictions, so “16 feet” means something different in different
places, preserving a tiny modicum of local control.
2 Interestingly, the revised JADU statute codified in Gov. Code Sec. 65852.22 requires cities to adopt an
ordinance or accept its standards, but it says nothing I can find about those standards being automatically
deemed consistent with contrary standards in a city’s general plan or zoning code.
3 Two CCC guidance memoranda dating from 2017 are linked to from the HCD ADU page and from the
CCC’s Resources for Local Governments page. They recommend maximum compliance consistent with
the Coastal Act and do not appear to have been updated since.
4 See July 25, 2017, Item 19; September 11, 2018, Item 12; January 22, 2019, Item 13.
March 10, 2020, City Council Item 10 Comments - Jim Mosher Page 3 of 3
Throughout the process, staff has struggled with integrating the ADU regulations into the pre-
existing allowable land use tables for the various zoning districts and largely ignoring the
possible different physical development standards they have from other structures in those
districts. At one time ADU’s were added to the definitions of the R-1 and R-A districts (see page
54 of Item 17 from July 25, 2017), then removed (see page 64 of Item 12 from September 11,
2018).
The present proposal continues this effort, which I think is more difficult than staff seems to
realize and ultimately unnecessary since the new Sections 20.48.200.C (page 10-13) and
Sections 21.48.200.C (page 10-27) say that ADU’s that conform to the standards of those
sections are deemed consistent with the remainder of the title, regardless of what the remainder
says.
Rather than attempting to amend the tables, I would leave ADU’s out of all the tables, and
simply add a note to Subsection 20.16.020.A (and 21.16.020.A) saying that ADU’s and JADU’s
are an allowed use in the residential portions of all districts per Section 20.48.200 (and
21.48.200).
Similarly, I would add to Subsection 20.16.020.C (and 21.16.020.C) a note that the development
standards for AUD’s and JAUD’s may override other standards for the district per Section
20.48.200 (and 21.48.200).
As it is, while ADU’s have been added to some of the tables by the proposal, staff has forgotten
Planned Community Districts,5 including the enumeration of allowed uses in them in Section
21.26.045, and the development standards in the section that follows.
In addition, we have inconsistencies such as a statement about the effect of ADU’s (but not
JADU’s) on “Density/Intensity” in Title 20 Table 2-2, but not in Table 2-3 (and others where they
are now allowed).
Trivial Comment
The preamble to the ordinance contains clear grammatical errors in paragraph 4 on page 10-11:
“WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2020-006
by a majority vote (5 ayes, 1 no) recommending to the City Council review Zoning Code
Amendment No. CA 2019-009 and approve it if the terms of the code amendment retained
greater local control over accessory dwelling units and junior accessory dwelling units than
what is provided by Government Code Sections 65852.2 and 65852.22;”
The same comment applies to the very similar paragraph 5 on page 10-25.
5 The allowed uses in Planned Communities fall into a kind of black hole in the Zoning Code as revised in
2016. They are defined as a "Special Use District" in Sec. 20.26,010.B, for which Sec. 20.16.020.A
assures readers the allowable uses are found in Chapter 20.26. But they are not. Any former explanation
of what is allowed in PC Districts was moved, instead, to Chapter 20.56. In that former code, the
allowable uses and standards in PC Districts were enumerated in the same format as the other districts
(see pages 25 and 44 of Ordinance No. 97-9).
March 24, 2020, Council Consent Calendar Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 1. Minutes for the March 10, 2020 City Council Meeting
The passages shown in italics below are from the draft minutes with suggested corrections
indicated in strikeout underline format. The page numbers refer to Volume 64.
Page 331:
Herdman, bullet 1: “…; a Water Quality/ Coastal Tidelands Committee walking field trip at
the Muth Center; …” [The Committee met at the Muth Center. The walking tour was from the
Center to view the OC Public Works Santa Ana-Delhi Channel trash diversion project.]
Bullet 3: “Announced the quarterly Balboa Island Improvement Association meeting on
March 14” [?]
Dixon, bullet 1: “Attended the Spirit Run and started the 5K run; and the Southern California
Association of Governments (SCAG) Transportation Committee meeting, which focused on
OC Connect” [This is what was said, but I think the reference was to SCAG’s Connect
SoCal plan – see the March 5 Transportation Committee agenda.]
Brenner, bullet 1: “Attended the first class of the Citizen Citizens’ Police Academy, the
Corona del Mar Residents Association Historical Resource Resources Committee meeting
about Newport Beach sites designated as historical sites, …” [?]
Page 336, paragraph 1:
“Arlene Greer, Chair of the City Arts Commission, indicated the Sculpture Exhibition is nationally
recognized as a “museum without walls,” the installation inauguration of Phase 5 V is planned
for June 6, 2020 from 1:00 p.m. to 4:00 p.m., …”
[Or, better, “opening day ceremony for”. I didn’t attempt to verify precisely what was said,
but the “installation” of Phase V will take place over a period of days or weeks. What was
being announced as the “opening day” festivities. As an added comment, I cringe whenever I
hear the Civic Center Park described as a “museum without walls.” While I appreciate its
present use, it was designed by Peter Walker Partners (at considerable expense) as a nature
park with incidental sculptural accents, in harmony with and subordinate to the natural
setting. Peter Walker himself said that if it were intended as an outdoor art gallery he would
have designed it quite differently. Some of the sculptural accents were, incidentally, expected
to be placed around the Civic Green and City Hall – something that has never been
implemented.]
Received After Agenda Printed
March 24, 2020
Consent Calendar Comments
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 2 of 12
Item 3. Ordinance No. 2020-9: Accessory and Junior Accessory
Dwelling Units (PA2019-248)
General Comments
Writing clear laws is always extremely difficult. It is doubly difficult to achieve clear compliance
with unclear laws. And through no fault of City staff, the amended state ADU codes –
Government Code Sections 65852.2 and 65852.22 – which they are trying to guide the City into
a new law in compliance with are not models of clarity.
In this connection, the Council may wish to be aware that in dealing with the same issue, the
staff at our neighboring city of Costa Mesa urged the adoption of a December 17, 2019,
emergency ordinance1 (most likely without planning commission review) in anticipation of the
January 1, 2020, effective date of the new state ADU laws (see their Council Item NB-2). Their
staff report concisely describes what they saw as the key requirements of those new laws, and I
believe the resulting ordinance, although not perfect, is easier to read and aligns much more
cleanly with the state requirements than the one proposed by our own staff.
In particular, shortly prior to the introduction of this ordinance, the City received a letter from
Californians for Homeownership, an organization monitoring the City’s text and likely to send
comments regarding areas of suspected non-compliance with state law to the State Department
of Housing and Community Development.2 Although the attorney for Californians for
Homeownership says “The City’s ordinance is generally good,” he especially questions our
compliance with the amended Gov. Code Subdivision 65852.2(e).
By way of background, former Gov. Code Subdivisions 65852.2(a)-(d), as they continue to do
now, set the limited scope within which cities could adopt local ordinances regulating ADU’s
differently from statewide standards. But whether or not a city adopted a local ordinance, former
Subdivision 65852.2(e) required ministerial approval of an application to create one ADU on
each single family zoned lot through conversion of existing space within the existing single-
family residence or an accessory structure to it. It allowed cities to “require owner occupancy for
either the primary or the accessory dwelling unit,” but the implication was no other local
standards – such as parking – could be applied beyond those specifically mentioned in
1 Given the lack of clarity as to what the state default standards allow, a number of other California cities
adopted “urgency ordinances” in advance of their January 1 effective date, but Costa Mesa’s seems
particularly easy to understand. Urgency ordinances receive a single reading and go into effect
immediately. They are normally accompanied by a promise to follow-up with a more normally-adopted
ordinance at a future date.
2 Gov. Code Sec. 65852.2(g) formerly required submission of adopted city ADU ordinances to HCD, but
merely empowered HCD to comment on them. As amended effective January 1, HCD can now, at any
time, notify the city of non-compliance, in which case the city has 30 days to amend the ordinance as
directed or to adopt a resolution addressing HCD’s concerns and explaining how the questioned
ordinance complies.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 3 of 12
Subdivision 65852.2(e): namely, that the ADU have “independent exterior access” and “side and
rear setbacks are sufficient for fire safety.”3
As amended, Subdivision 65852.2(e) contains an expanded list of ADU applications that must
be approved independent of the local ordinance that Subdivisions 65852.2(a)-(d) allow cities to
adopt. It now includes units within proposed new single family homes,4 detached units on single
family lots5 and both conversions and detached units on multi-family lots.6
Costa Mesa staff dealt with the approval of applications conforming to these special criteria with
Subsection E of its ordinance.
By contrast, Subsection D of the proposed NBMC Sec. 20.48.200 uses Gov. Code Subdivision
65852.2(e) as a basis for specifying the “Maximum Number of Units Allowed” in four categories
– leaving it quite unclear that all applications in the four similar Subdivision 65852.2(e)
categories qualify for expedited approval, free from the other standards stated in the local
ordinance.
It takes a close analysis of all the other subsections of the proposed NBMC Sec. 20.48.200 to
decide if City staff would have to, without imposing anything other than the Gov. Code
Subdivision 65852.2(e) standards,7 approve every application that meets just those standards
and nothing more. But by my reading, like that of the Californians for Homeownership attorney,
other requirements – such as parking or style standards – would likely come into play in
evaluating such an application according to the proposed code. And hence, a letter of non-
compliance from HCD seems likely.
Specific Concerns
I have previously expressed concern about the City being forced to adopt an ADU ordinance
before deciding how it may want ADU’s to factor into meeting its state-mandated Housing
Element quotas.
3 Hence, the former understanding that there could be no parking requirement for conversions. The
existing NBMC Section 20.48.200 (“Accessory Dwelling Units”) generally complied with this through
Subsection C.6 (“Conversion of Space within Existing Structure”), although Newport Beach added an
additional condition which may have not been noticed by HCD: namely, requiring that the existing
structure had been legally permitted and existed for a minimum of three years prior to the conversion.
4 And up to 150 sf of expansion to existing homes if necessary to provide ingress or egress.
5 Provided it is no more than 800 sf in total floor area and 16 feet tall, and is set back at least 4 feet from
side and rear property lines (curiously, it does not seem to be possible to require a setback from a front
property line).
6 Further provided that none of these Subsection 65852.2(e) ADU’s are offered for rental for a term of 30
days or less.
7 As the Costa Mesa staff report notes, the only conditions Gov. Code Subsection 65852.2(e) places on
the two allowed detached ADU’s on a lot with an existing multi-family structure is that they be at least 4
feet from the side and rear property lines, and less than 16 feet tall. There does not appear to be any
restriction on their size or anything else about them. Costa Mesa staff proposes a 800 sf floor area limit
on them, but the permissibility of this is not obvious from the state code.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 4 of 12
Comparison with the Costa Mesa ordinance, and further reflection, suggests a number of other
concerns which may need to be addressed in future revisions:
1. Coastal Act Issues: Since the newly amended Gov. Code Section 65852.2 continues, in
Subdivision (l), to say it doesn’t “supersede or in any way alter or lessen the effect or
application of the California Coastal Act,” it is unclear to me to what extent its nulling and
voiding of local ordinances alters the standards in the existing Coastal Commission certified
Local Coastal Program. If those are now out the window and we defaulted to the state
standards as of January 1, as staff suggests in its discussion of “Status in the Coastal Zone”
on staff report page 3-2, this is worrisome.8 For example, the new Gov. Code Subdivision
65852.2(e) requirement to approve any detached ADU of 800 square feet or less that is 16
feet or less in height and stays 4 feet or more back from the rear property line runs counter
to the sound policies that have required greater setbacks in many parts of the City, mostly in
the coastal zone. The state standards would appear to require approval of an 800 sf ADU
placed on the very edge of a bluff, or even on the bluff face or over the state’s navigable
waters – all areas in which development would not currently be allowed.
2. Uncertainty of state standards: The other subdivisions of Gov. Code Section 65852.2 are
fraught with similar uncertainties as to what it was meant to say. In several places it requires
local jurisdictions to place various restrictions on ADU’s, but after requiring those restrictions
(such as preventing separate sale or setting a maximum floor area of 1,200 sf for detached
ADU’s), Subdivision (g) appears to contravene these mandatory limitations by saying: “This
section does not limit the authority of local agencies to adopt less restrictive requirements
for the creation of an accessory dwelling unit.” Conversely, Subdivision (a), in clause
(1)(D)(viii), appears to give cities latitude to require compliance with “Local building code
requirements that apply to detached dwellings, as appropriate” (whatever “as appropriate”
means), but then in (6)(A) ominously warns “No additional standards, other than those
provided in this subdivision, shall be used or imposed.” Go figure…
The state standards complete silence on certain matters is equally unsettling. For example,
Subdivision 65852.2(e) specifies side and rear setbacks that must be ministerially approved,
but it says nothing about front setbacks. Does this mean a city can require all ADU’s to
comply with its normal front setbacks (as Costa Mesa seems to believe), or does it mean an
ADU application in the Subdivision 65852.2(e) categories cannot be denied for non-
compliance with local front setback requirements?
8 I do not agree with staff’s interpretation that until the Coastal Commission certifies (and the City adopts)
a new LCP, only the new state standards, whatever they are, apply in the Coastal Zone. It would seem to
me applications everywhere in the City need to comply with the Zoning Code which is being modified by
this ordinance. I don’t see how the absence of a valid LCP compels the citywide Zoning Code to be
ignored – after all, Newport Beach went many years without any complete LCP at all, and that did not
suspend enforcement of the Zoning Code in the Coastal Zone. In my view, once a revised LCP goes into
effect, applications in the Coastal Zone will have to comply with that, in addition to the Zoning Code, as
they did prior to January 1. Difficulties will arise if one says an application must be approved while the
other says it must be denied.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 5 of 12
3. Other new state laws: The preamble to the ordinance fails to mention AB 587 and AB 670
(see pages 10-58 and 10-59) of the March 10 council agenda packet. While AB 670 (voiding
private CC&R’s that prohibit ADU’s) does not directly impact the proposed City code, AB
587 (creating new rules to encourage non-profits to participate in the development and
ownership of ADU’s for persons of low and moderate income) could, depending on its
intentions. Should the Council be so inclined, AB 587 allows it to modify the proposed “No
Separate Conveyance” clause of Subsection G.1 (staff report page 3-12) to allow sale of
ADU’s built by qualified non-profits to qualified buyers.
4. Short term lodgings: Gov. Code Subdivision 65852.2(e) requires that ADU’s approved
pursuant to it (which includes JADU’s), if rented, be rented for more than 30 days.
Subdivision 65852.2(a) allows cities to impose a similar condition on the additional ADU’s9
that can be approved pursuant to it.10 The City has chosen to exercise the short term rental
prohibition option on all ADU’s, but it could potentially be difficult to enforce non-rental of the
ADU if the primary residence is eligible as a short term lodging (particularly if the ADU or
JADU is internal to it). A typical solution is to disqualify from STL eligibility the entire property
on which the ADU is located.
5. Awkward drafting: In addition to typos (some of which have been previously pointed out)
and a logical structure that does not clearly map the state requirements, the ordinance the
Council is being asked to adopt contains some ineptly phrased provisions:
a. Page 3-10: “c. Newly constructed accessory dwelling units may provide a minimum
setback of four (4) feet from all side property lines and rear property lines not
abutting an alley.”
i. Since the approval is required to be ministerial, the significance of “may” is
uncertain: does applicant have to do this? Or not?
ii. If “may” means this is optional, is a proposal with no setback OK?
iii. At least to me, it would be clearer to say: “c. Newly constructed accessory
dwelling units must be set back four feet or more from all side property
lines and rear property lines not abutting an alley.”
b. Page 3-11: “b. A maximum of one (1) parking space shall be required for each
accessory dwelling unit.”
i. Like “may” in the previous example, this use of “maximum” leaves the reader
uncertain whether the staff person will require one space, or not.
9 ADU’s that are not required to be approved under Subdivision 65852.2(e), but which may be required or
allowed under Subdivision 65852.2(a) seem to include: (1) attached ADU’s; (2) detached ADU’s over 800
sf or more than 16 feet tall; (3) ADU’s in excess of the numbers required to be approved by Subdivision
65852.2(e).
10 Or at least, according to Clause 65852.2(a)(6), properties with a single family dwelling. Oddly, it is silent
about lots with multi-family structures (a possible typo in the statute?).
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 6 of 12
ii. At least to me, it would be clearer to say: “8. b. Except as provided
otherwise below, one new parking space shall be required for each
accessory dwelling unit.”
iii. Those “provisions below” should include an exception for ADU’s with no
bedrooms, but don’t seem to at present.
c. Page 3-11: “c. When additional parking is required, the parking may be provided as
tandem parking and/or located on an existing driveway; however, in no case shall
parking be allowed in a rear setback abutting an alley or within the front setback,
unless the driveway in the front setback has a minimum depth of twenty (20)
feet.”
i. The highlighted phrase is extremely confusing since it appears to qualify a
rule about parking in front setbacks when none has been stated. It seems to
be saying it is OK to park anywhere in a front setback (such as on a lawn) if
there’s enough driveway in the front setback; and that it’s not OK to park in a
driveway, however long it might be, unless at least 20 feet of it are in the front
setback. I doubt either of those readings was intended. I would guess it is
trying to say parking in driveways is not allowed beyond the front property line
(that is, protruding into the public right of way).
d. Pages 3-6 to 3-7: As previously pointed out, the effort to amend various land use
and development standard tables elsewhere in the Municipal Code or Planned
Community texts or Specific Plans to point out the many deviations now allowed for
ADU’s seems foolhardy, since all the tables and references are unlikely to be
found.11 I think the statements in proposed Subsection 20.48.200.B (to the effect that
Section 20.48.200 overrides all contrary code provisions) are sufficient.
Typos
I previously suggested some typographic errors in the ordinance as introduced, which staff, in
its wisdom, has chosen not to correct:
Page 3-5, paragraph 4: “WHEREAS, at the hearing, the Planning Commission adopted
Resolution No. PC2020-006 by a majority vote (5 ayes, 1 no) recommending to the City Council
review Zoning Code Amendment No. CA 2019-009 and approve it if the terms of the code
amendment retained greater local control over accessory dwelling units and junior accessory
dwelling units than what is provided by Government Code Sections 65852.2 and 65852.22;”
11 For example, on page 3-6, Section 2 makes a correction to the "Density/Intensity" row for R-A and R-1
zones in Table 2-2 of Title 20. While that may be helpful for readers, no comparable correction has been
proposed to the "Site Area per Dwelling Unit" row for duplex-zoned lots in Table 2-3, which says "No
more than 2 units per lot" - something that is no longer true since ADU's and JADU's are now allowed on
them. Similarly, nothing notes an exception for ADU's to the "Site Area per Dwelling Unit" row for RM
zones in Table 2-3. Nor that ADU's and JADU's don't count toward the "Density Range" limits in Tables 2-
10 and 2-11 for mixed use zones. Nor whether the floor area and setback regulations in all these tables
apply to ADU's.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 7 of 12
Page 3-3, paragraph 2: “WHEREAS, the California Legislature adopted and Governor Newsom
signed Senate Bill 13 and Assembly Bills 68 and 881 in 2019 amending California Government
Code Sections 65852.2 and 65852.22, which took effect January 1, 2020, imposing new
limitations on local agencies’, including charter cities’, ability to regulate accessory dwelling
units and junior accessory dwelling units;”
Page 3-3, paragraph 3: “WHEREAS, Section 20.48.200 (Accessory Dwelling Units) of the
Newport Beach Municipal Code ("NBMC") regulating accessory dwelling units, most recently
amended in 2018 2019 pursuant to Ordinance No. 2018-14, is partially inconsistent with
Government Code Sections 65852.2 and 65852.22;”
[Ordinance No. 2018-14, as its number indicates, was presented to the Council in 2018, but it
was not adopted, and, therefore, the NBMC was not amended until 2019. It seems important
to state the correct date]
Page 3-4, paragraph 1:: “WHEREAS, Government Code Section 65852.2(a)(1 )(D)(xi) provides
that offstreet parking shall not be required to be replaced when a garage, carport, or other
covered parking is converted to an accessory dwelling unit and or junior accessory dwelling12
unit, however, the California Coastal Act of 1976 is neither superseded nor in any way altered or
lessened as provided in Government Code Section 65852.2(1) by this recent legislation;”
Page 3-10, under clause 3.: “a. The accessory dwelling unit meets the minimum setbacks
required by the underlying zoning district; and …”
Page 3-11: “8. Parking. Parking shall comply with the requirements of Chapter 20.40 (Off-
Street Parking) except as modified below:”
Item 5. Resolution of Intent to Conduct a Public Hearing to Grant New
Non-Exclusive Solid Waste Franchises
This item is quite confusing to me.
With the exception of one study session (or has it been two?), I have the impression staff has
been sharing its thoughts about the City’s solid waste programs, and improvements needed to
them, with a shadowy Council committee not mentioned in the staff report.
As the staff report indicates, of the actions that have been revealed in public, on October 22,
2019, the Council was asked to approve (on the consent calendar) a new model franchise
agreement with an end date of November 8, 2026,13 that haulers were encouraged to sign. It is
provided as Attachment B.
But the resolution the Council is being asked to adopt (Attachment A) announces the Council’s
intent to enter into some other, vaguely defined agreement with eight existing and four new
12 It is not obvious the City has to allow conversion of garages, or certainly carports, into JADU’s.
According to the state’s definition of JADU on page 10-56 of the March 10 City Council agenda packet, a
JADU must be “contained entirely within a single-family residence” (Gov. Code Sec. 65852.22(h)(1)).
13 The next to last Whereas of the proposed resolution (on page 5-4 of the staff report) refers to this as
the “2020 Franchise” and says it “expires in the year 2027.” But this is incorrect. Both page 5-2 and 5-22
give the termination date as November 8, 2026.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 8 of 12
haulers. It will, purportedly, have an end date of June 11, 2027. Since there is no explanation of
why the end date has changed, I am unable to tell if it will be the attached (and previously
approved) agreement with simply a new end date substituted, or something completely new.
Item 7. Newport Bay Trash Wheel - Approval of Professional Services
Agreement with Burns & McDonnell Engineering Company, Inc.
Understanding it is wiser economically and environmentally to reduce the amount of trash
generated and entering the environment than to try to retrieve it after it has been dispersed, this
seems a reasonable approach to a part of the unfortunately still necessary task of retrieval.
The staff report underscores the reality that governmental decisions are frequently made without
full understanding of the problem being attacked or the likelihood of the proposed solution’s
success.
The estimate (on staff report page 7-5) that the wheel will retrieve 50 tons per year seems
optimistic in view of what page 7-2 says is the 20 to 80 tons per year collected by the trash
boom at North Star Beach, of which 80% is not trash but “debris,” some unknown amount of
which may be generated within the estuary itself rather than emanating from San Diego Creek.
That said, the estimate of $50,000 to $60,000 per ton ($25 to $30 per pound) to retrieve trash
before it enters through the Santa Ana-Delhi Channel is stunning – and although the present
proposal is guessed to cost only one-tenth of that, the high cost of both should stimulate efforts
to refocus on source reduction!
One slightly unexpected aspect of the proposal is the 20 year expected useful lifetime of the
trash wheel mentioned at the bottom of page 7-4, and on which the relatively low dollar per ton
cost estimate seems to be based (apparently assuming 1,000 tons of trash collected at 50 tons
per year over 20 years). From the Water Quality/Coastal Tidelands Committee meetings, I had
the impression the trash wheel was viewed as a kind of temporary stop-gap measure, expected
to operate for about 10 years as solutions farther upstream were developed.
As a trivial comment, the “Environmental Review” at the bottom of page 7-5 refers to the
Council’s Resolution No. 2018-67, which it implies is included in the agenda packet as
Attachment D. As indicated at the end of the “Funding Requirements” discussion on page 7-2,
Attachment D is actually a highlighted copy of California Senate Bill 573 from 1997, which it
says established the Upper Bay Reserve Fund14 to which some of the expenses will be
charged.
As a slightly less trivial comment, in the Scope of Services on page 7-23, one hopes the
contractor is conversant enough with marine engineering to know that MHHW and MLLW stand
for Mean Higher High Water and Mean Lower Low Water, not Median Higher High Water and
Median Lower Low Water.
14 See Subdivision (c) on staff report page 7-38.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 9 of 12
Item 10. Award of On-Call Fencing Maintenance and Repair Services
Agreements with Quality Fence Co., Inc. & Red Hawk Services, Inc.
This is an example of a situation in which the Council is being asked to approve contracts with
more than one vendor providing the same service.
As I have pointed out to the Finance Committee, it is not clear the City has a consistent policy
guiding staff as to which of the possible on-call vendors to call on for a particular job.
From the table on page 10-2 of the staff report, it appears staff expects Quality Fence to offer to
do at least some work at around 3/4ths the cost of Red Hawk. But it would be very difficult to
guess this from the totally different looking Schedules of Billing Rates provided by the two
companies, on pages 10-21 through 10-24 compared to page 10-53.
One hopes that, when time permits, staff will ask for a proposal from each and go with the lower
bid.
Item 11. Final Tract Map No. 18135 for a Residential Condominium
Development Located at 1244 Irvine Avenue
The staff report (top of page 11-2) refers to the Planning Commission’s June 21, 2018, approval
of this development, which was known at that time15 as “Mariner Square.” Oddly, the name is
not mentioned in the staff report, and the current report also fails to mention that the 2018
approval allowed the replacement of an existing 114-unit apartment complex abutting the
Westcliff Shopping Center with 92 condominiums – a loss of 22 units and likely a decrease in
affordability, as well.
The Environmental Information Form on handwritten page 73 of the Planning Commission staff
report says “The current City of Newport Beach General Plan Housing Element states that the
City has sufficient sites to accommodate its Regional Needs Housing Assessment allocation.
The project will not be required to provide affordable or replacement housing.”
That assessment seems a bit naïve, now, in view of the City’s currently large anticipated 6th
Cycle RHNA allocation and the affordability quotas that go with it. In addition, the reduction in
density this approval permits would not be allowed for the duration of the Housing Crisis Act (SB
330).
As to the task at hand, the Municipal Code requires the Council to review and approve three
highly technical documents, including Final Tract Map No. 18315, the latter requiring a finding
“that the map conforms to all requirements of the Subdivision Map Act and the City subdivision
regulations applicable at the time of approval or conditional approval of the tentative map.”
As always, I would submit that the Council, like me, lacks the technical expertise needed to
make such a finding, and relies entirely on staff. In that respect, the staff report is rather terse is
in explaining how staff arrived at its own findings of consistency.
15 When presented to the Planning Commission in 2018, the owner was listed as “Mariner Square
Apartments, LLC” and the developer as Melia Homes. It is not clear from anything presented here how
Shea Homes Limited Partnership, the entity seeking approval of the tract map, came into the act.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 10 of 12
One aspect of the Council’s task not touched on at all is the NBMC Sec. 19.60.020 requirement
that “At the time of approval of a final map, the City Council shall accept, accept subject to
improvement or reject any offers of dedication at the time of final map approval.”
Are there any dedications being offered in association with this project? (the map on page 11-6
shows portions of Irvine Avenue and Mariners Drive as being within Tract No. 18135 but
“dedicated hereon” – the significance of which is unclear to me)
Item 14. 2019 General Plan Progress Report and Housing Element
Progress Report (PA2007-195)
Considering the supposed importance of the City’s now-stalled promise to revisit and update its
General Plan, and the state’s ongoing mandates to pack ever more units into our Housing
Element, one might think staff’s annual report on the status of our current plans would be of
enough interest to not pass unnoticed on the consent calendar, as it usually does.
As I commented to the Planning Commission, the public once understood general plans to
represent a community’s vision of its state at “ultimate buildout.” But in recent years the state
government seems to have rejected the concept of ultimate buildout, and embraced instead a
“growth is good” (and necessary) philosophy, in which the cure for the problems created by past
development is to develop more, in which there is always room to add more density and in
which to actively encourage new residents, housing surpluses should be created and all areas
made equally affordable.
In light of that, it is curious that the annual reports, which until two years ago provided a
straightforward report of the number of new housing units created, demolished (which is a big
factor in “built out” cities like Newport Beach) and the resulting number of net new units, now
report a bewildering array of information about applications, permits and certificates of
occupancy, but nowhere (that I can find) show that bottom line about the net change.
Indeed, under the new reporting protocols, it looks like the project whose subdivision the
Council is being asked to approve in agenda Item 11 might be reported as “92 new units” when
it is actually a net loss of 22. That may be good for fulfilling unrealistic RHNA quotas, but it
seems bad for transparency.
As to the part of the report (Appendix A starting on page 14-26) that is not about the Housing
Element, but rather about the status of our efforts to implement the 2016 General Plan as a
whole through its various Implementation Programs, I could start with my perennial comment
that it is not possible to understand the status without looking at the full Implementation Program
adopted in 2016, which is Chapter 13 of the existing General Plan. The very opening
paragraphs of that say the City “should review the continuing applicability of the programs and
update this list as necessary.” It seems telling that in the past 13-1/2 years no updates to the list
have been proposed or made, so we are reporting the status of likely outdated goals.
Even then, it is important to read beyond the little policy blurbs quoted in the “Programs” column
of the report, and study the paragraphs following the blurbs that explain what they were
intended to accomplish.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 11 of 12
For example, regarding Implementation Program 1.1, the staff report (page 14-26) correctly
notes that in November 2012, with Measure EE, Newport Beach voters were told that if they
wanted to be sure they wouldn’t have redlight traffic cameras in their city they would need to
amend the City Charter to prevent future City Councils from introducing them. And that to do
that, they would have to approve, in a single yes-no vote, a charter update package including 37
other, unrelated changes. Among those, was one to remove the Planning Commission’s duty to
review public works projects – something a former city manager had found cumbersomely
pointless.
However, as I pointed out at the Council’s March 10 study session on the City’s Capital
Improvement Program, this did not remove the Implementation Program 1.1 requirement for the
Planning Commission to review the City’s CIP. So, although the report may say we are
implementing the program as prescribed, we are not.
Moreover, the report does not mention the expectation in the explanation of the Program 1.1
policy blurb that implementing it will require the Planning Commission to review not just the
City’s yearly list of public works and five-year CIP, but those of other agencies doing work in
Newport Beach, as well (citing Government Code Sec. 65401).
Implementation Program 2.1 (“Amend the Zoning Code for Consistency with the General Plan”),
as another example, is listed as “Complete,” but the report fails to mention that the words under
the policy blurb included a promise to amend not just the Zoning Code, but also existing special
plans and planned community texts. The specific plans were, in fact, repealed rather than
amended (with the exception of that for Santa Ana Heights), and it seems unlikely most of the
City’s many planned community texts were reviewed for consistency with the General Plan.
Many of the other implementation programs, if read in full, contain similar promises that, instead
of being fulfilled or revised, have simply been ignored.
Program 24.1, for example, promises the City’s Strategic Plan for Economic Sustainability will
be reviewed and updated annually as part of the budget approval process. One would not guess
this from the report on page 14-51. Nor might one agree this effort is truly “ongoing.”
The second part of the annual progress report dealing with the Housing Element (Appendix B
starting on page 14-57) should obviously be of interest to the new Housing Element Update
Advisory Committee when they meet.
The Dyett & Bhatia memorandum starting on page 14-77 contains some minor errors which I
pointed out to the Planning Commission.
March 24, 2020, City Council Consent Calendar Comments - Jim Mosher Page 12 of 12
Item S19. Amendment No. Three to Professional Services Agreement
with Harris Miller Miller & Hanson, Inc. for Aircraft Noise Consulting
Services
It is probably best to hope for the best, but not all the previous services provided to the City by
HMMH have been of great value.
Although I don’t know how much was paid for them, one example is the report16 dated
December 13, 2017, on the calibration of the JWA noise monitors, which as best I can tell made
no independent effort toward calibration but simply confirmed the JWA contractors were
following an accepted protocols. Another example is the June 2, 2018, report in which HMMH
was tasked with making independent measurements, with their own microphones, close to the
JWA noise monitors, and then at various remote locations not monitored by JWA. The results
were never publicly discussed, but as I recall for the measurements made close to the JWA
noise monitors, HMMH concluded the results were acceptably close on average. However,
HMMH’s measurements for individual flights differed wildly from those of JWA (up to 9 or 10 dB
higher or lower) with no explanation of what could account for these astounding inconsistencies.
It is also not encouraging that, according to the reports presented in public at the City’s Aviation
Committee meetings, none of the variant flight procedures recommended and studied by HMMH
to date have, when tested, resulted in a change in noise on the ground perceptible to a human
observer.
One hopes the subconsultant being recommended here will, for his $95,000, be able to provide
a more tangible and lasting result.
Since it does not seem to be mentioned in the staff report, it may be useful to know the contract
in question is numbered C-7297-2 in the Clerk’s archive. It was originally entered into without
Council involvement since the initial dollar amount ($110,000) was under the City Manager’s
(rather generous) signing limit.
It was also not at that time an on-call contract, but rather one for a quite specific job (“Aircraft
Noise Abatement Departure Procedure (NADP) Analysis”) expected to result in a deliverable
report, expected by June 30, 2019, at the latest. The first amendment, approved by the Council,
added $30,000 to the analysis task (which was the first of four tasks culminating in the report).
The second amendment, as indicated in the present staff report, extended the term to June 30,
2020.
To date only one report – dated September 26, 2018, and dealing only with Task 1 -- has been
made public. And at some point the former agreement seems to have devolved into a sort of on-
call contract rather than a commitment to a set of pre-determined tasks leading to a definite
result.
This is reflected in the Scope of Services shown on page S19-8, which is entirely new.
16 Review of the Annual Preventative Maintenance and Calibration Report Conducted by BridgeNet
International for John Wayne Airport (SNA) - HMMH Project Number 309550
David J. Tanner Page 1 of 6 3‐9‐2020
dave@earsi.com
Mayor O’Neil
Member of the City Council
Subject: Ordinance No. 2020-9: Introduction of an Accessory and Junior Accessory Dwelling
Unit Ordinance (PA2019-248).
Thank you for the efforts you are making to combat the onslaught of housing and
affordability regulations imposed on the City by the State legislature. I appreciate the
opportunity to comment and provide input to help the Council find acceptable solutions.
I ask the Council not take action on Ordinance No. 2020-9 (the Ordinance) at this time. The
benefits of approving the Ordinance at this time will be far outweighed by negative
consequences.
While approving the Ordinance at this time may appear to be a routine action the City can take to
comply with State housing law, the implications of this action would be far reaching.
The Broader Picture
To construct new housing in built-out communities such as Newport Beach, builders face higher
development costs and infrastructure constraints, making new housing development less
profitable or even infeasible, resulting in pressure on the City to re-classify lands for higher
densities. Given free reigns, it is clear what the BIA wants to do, without any apparent
consideration for the adverse impacts to the City. Build, build, build, there is no end and no
building too tall!
CEQA is one of the key laws relied upon by the State and local governments to protect the
environment and provide for a sustainable future. CEQA compliance is an obstacle the State
seeks to remove because it impedes the State from achieving a competing goal, the production of
housing in urban in-fill areas such as Newport Beach. CEQA requires projects to mitigate for
their adverse impacts and requires public notification providing the opportunity for community
input. Community input reflects the community’s vision and involvement in self-governance.
This vision is the core of the General Plan.
Removal of CEQA housing protections means the City will subsidize housing whether through
increased density bonuses, reduction of parking standards, exceedance of building height limits,
or reductions to minimum building setback requirements. These subsidies have a negative
impact on the community, just as the State’s over-reaching housing laws will, if unchecked,
require the City to re-classify land for higher density development. Combine new higher density
development with relaxed CEQA protections and/or CEQA housing exemptions and housing
subsidies will overburden the City’s infrastructure and jeopardize the health, safety and welfare
of the community.
David J. Tanner Page 2 of 6 3‐9‐2020
dave@earsi.com
I and many other residents do not support the City’s effort to circumvent the CEQA process or
alter the required General Plan update process by piecemealing approval of an updated Housing
Element which would be inconsistent with other General Plan Elements, ahead of the updated
General Plan.
Given the number of housing units the City has produced in recent years, State housing laws are
unfairly burdening the City. The State is clearly not looking out for the interests of built-out
cities in urban infill areas, such as Newport Beach.
Rather than loosen environmental protections, I and many other residents urge the City to
strengthen its environmental protections, thereby ensuring a sustainable future and protection of
the public’s health, safety and welfare.
The Proposed Ordinance
No Action: If the Ordinance is not adopted at this time, ADUs will be constructed in accordance
with State law.
Penalty for no action at this time: None.
Consider the Coastal Commission denied the Banning Ranch Coastal Permit which proposed to
add a significant number of households/populations within the coastal zone. The Coastal
Commission may not accept a partial LCP Amendment as complete; approve a significant
increase in household density within the coastal zone; or determine the proposed LCP
Amendment is not subject to CEQA.
Benefit to the City by taking action now: The only benefit to the City from adopting this
Ordinance at this time is a requirement in the Ordinance to provide one additional on-site
parking space under certain conditions for ADUs within the coastal zone (“Accordingly, the
proposed amendment to Title 21 requires replacement parking for any garage, carport, or other
covered parking that is converted to an ADU”).
Discussion
Using Staff’s assessment of the low number of ADUs expected to be built prior to the General
Plan update, the benefit to the City from the additional parking spaces is minimal (less than 20
on-street parking spaces would be lost if no action is taken). Staff’s opinion does not take into
account the effects of the October 2019 housing laws which invalidated the City’s ordinance
regulating ADUs. The October 2019 ADU laws allow ADUs and JADUs to be built on any
residential or multifamily zoned lot within the City. The (invalidated) City ADU ordinance
effectively limited ADUs from the coastal zone by establishing a minimum lot size. JADUs did
not exist prior to October 2019.
David J. Tanner Page 3 of 6 3‐9‐2020
dave@earsi.com
The facts are:
The City does not know how many ADUs and JADUs will be built;
The laws allow ADUs and JADUs to be constructed on any residential zoned lot; and
The City has no control over the number of ADUs and JADUs constructed.
Just like health emergencies that you have no to little control over, government needs to develop
a plan for the worst-case and take all reasonable steps to insure the worst-case does not occur,
not rely on an optimistic opinion of the probable effect.
CEQA Compliance
I believe the action to approve the Ordinance at this time is subject to CEQA because the
Ordinance (amendment of the LCP Implementation component) is part of a larger plan, the LCP,
which is an integral component of the General Plan. Both LCP and General Plan amendments
are subject to CEQA.
The Ordinance has the potential to result in one or more potentially significant adverse impacts
on the environment. Pursuant to California Public Resources Code 21080 – (d) & (e), the
Ordinance is subject to CEQA.1
Furthermore, the City Council has not acted to adopt the weakened 2018 Updated State CEQA
Guidelines and therefore, cannot rely upon the exemptions contained in the 2018 Updated State
CEQA Guidelines2.
City Policy K-03 should not be relied upon even though under Section D-1. a. “Exceptions” the
Ordinance is not exempt. The expectation of the public in approval of Measure S was to ensure
the then City Council or any future City Council not take any actions which have the potential to
result in one or more significant adverse environmental effects without first analyzing and
disclosing those effects to the public for their review and comment. City Policy K-03 did not
contemplate routine adoption of CEQA Guidelines amendments which would remove or exempt
critical topics of paramount importance to the health and safety and welfare of the public, such
as Traffic, certain Airport activities, and matters effecting the ability of our emergency providers
to protect public health, safety and welfare in the event of a large-scale emergency evacuation on
short notice from a natural or man-made disaster.
1 California Public Resources Code 21080 – (d) “If there is substantial evidence, in light of the whole record before
the lead agency, that the project may have a significant effect on the environment, an environmental impact report
shall be prepared.”
(e) (1) “For the purposes of this section and this division, substantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact.
2 CEQA Guidelines Section 15022(c) PUBLIC AGENCY IMPLEMENTING PROCEDURES “Public agencies
should revise their implementing procedures to conform to amendments to these Guidelines within 120 days after
the effective date of the amendments.” CEQA Guidelines Section 1505(b) "Public agencies are advised to follow
this guidance in the absence of compelling, countervailing considerations."
David J. Tanner Page 4 of 6 3‐9‐2020
dave@earsi.com
The Ordinance, if adopted will permit a significant increase in households/population, resulting
in the potential for a significant increase in traffic congestion, vehicle miles traveled, vehicular
emissions, greenhouse gas emissions, vehicular noise, demands on water and wastewater
facilities, schools, parks, utility purveyors, emergency responders, and public health, safety and
welfare, particularly in times of natural or man-made disasters within the coastal zone. A
significant increase in households/population will impact jobs housing balances and
transportation infrastructure throughout the City. If the Ordinance is approved, these adverse
effects will not be mitigated and negatively impact the quality of life, public health, safety and
welfare Newport Beach residents have sacrificed to achieve.
Please note that:
No environmental review has been conducted.
No General Plan consistency analysis has been conducted.
No consideration of environmental justice has been considered. Should this ordinance be
adopted, what is the potential for already burdened coastal communities to experience a
significant increased risk in the event of a large-scale emergency evacuation on short
notice from a natural or man-made disaster? 3
Negative Effects, Relationship to the General Plan and Municipal Affairs
If the Ordinance is adopted at this time, the benefit from preventing the loss of less than 20
parking spaces will be far outweighed by its negative effects. Negative effects include:
Significant adverse environmental effects;
The implications this action will have on the City’s police powers/municipal affairs;
The predetermination of ADU/JADU policy ahead of the General Plan update process;
and
The precedent set by approving one component of the General Plan independently from
the other Elements which will result in significant inconsistencies between the Elements,
and doing so in a manner which circumvents CEQA.
The City General Plan and its LCP are in non-conformance with State Housing and affordability
laws (SB 13 (Chapter 653, Statutes of 2019), AB 68 (Chapter 655, Statutes of 2019), and AB
881 (Chapter 659, Statutes of 2019)). The City has initiated a General Plan update to remedy
these and other non-conformities.
While the State Legislature determined that housing is a matter of statewide concern, rather than
a municipal affair, these new laws challenge the police authority of the City to protect the
public's health, safety and welfare and contradict the intent of the Greenlight Initiative (Measure
S). Measure S amended the Newport Beach City Charter by adding Section 423. In general
terms, Section 423 requires voter approval of certain amendments of the Newport Beach General
Plan. Measure S “encourages” the City Council to adopt implementing guidelines that are
consistent with its purpose and intent. The protection of public health, safety and welfare from a
3 Consider existing resident population + new ADU & JADU population + business + tourism/visitors
David J. Tanner Page 5 of 6 3‐9‐2020
dave@earsi.com
significant increase in households/population and the secondary adverse environmental impacts
resulting therefrom is the core intent of Measure S.
Approval of this Ordinance at this time will create an internal inconsistency within the adopted
LCP, causing the LCP to be inconsistent the with the General Plan. Specifically, the proposed
Ordinance updates only the LCP “Implementation” component (zoning component) permitting
an increase in household/population that exceeds the households/population in the LCP “Land
Use” component. It is intended that all provisions of the LCP “Implementation Plan be
consistent with the Coastal Land Use Plan and that any development, land use, or subdivision
approved in compliance with these regulations will also be consistent with the Coastal Land Use
Plan”.4
The LCP is an integral component of the General Plan.5 General Plan components must be
internally consistent. Approval of the proposed Ordinance at this time would create an
inconsistency between the LCP and General Plan by permitting a roughly doubling of the
households/population within the coastal zone far exceeding that anticipated in either the LCP
Land Use component or the General Plan. General Plan amendments and LCP amendments are
subject to CEQA. CEQA requires the scope of its compliance documents (in this case an EIR) to
address the whole of the action. CEQA prohibits piecemealing, which would occur if the
Ordinance is approved at this time.
Approval of the Ordinance at this time would concede the City’s police/municipal authority to
protect the public health, safety and welfare, to the State over all matters of statewide concern.
Furthermore, this action would be inconsistent with Council policy to proceed with the General
Plan update on a three-path approach.
Lastly please take into consideration the public’s concerns regarding the Councils intent to
protect the public’s health, safety and welfare when taking action on this item.
Conclusion and Recommendation
I recommend this Ordinance be tabled until the Local Coastal Plan (LCP) Land Use component
is updated, following the approval of the comprehensive General Plan update. The EIR for the
General Plan update will address the environmental effects permitted by an increase in
households/population and allow public involvement and input. Given the magnitude of the
changes required to comply with housing and environmental laws, the updated General Plan will
be subject to an affirmative vote of the public.
If the Ordinance were considered following the General Plan update, the Ordinance would
quality for a CEQA statutory exemption or could rely upon the General Plan update FEIR.
4 Municipal Code: LCP Implementation Plan § 21.10.030 B. Authority—Relationship to Coastal Land Use Plan.
5 21.10.030 C. Should a conflict exist between the policies set forth in any element of the City’s General Plan,
Zoning, or any other ordinance and those of the Coastal Land Use Plan, policies of the Coastal Land Use Plan shall
take precedence. However, in no case shall the policies of the Coastal Land Use Plan be interpreted to allow a
development to exceed a development limit established by the General Plan or its implementing ordinances. (Ord.
2016-19 § 9 (Exh. A)(part), 2016)
David J. Tanner Page 6 of 6 3‐9‐2020
dave@earsi.com
By waiting, the City will have received input identifying the Coastal Commission’s positions on
new housing laws.
In light of the unanticipated changes in the 2018 Updated State CEQA Guidelines, Policy K-03
should be revised to require Council oversight when CEQA Guideline amendments occur.
I know the Council is aggressively challenging the problems faced by new housing stimulus and
affordability laws. I will be the first to admit, I don’t know all the information presented to the
Council or steps taken or contemplated by the Council to confront these issues. I hope these
comments help rather than hinder the Councils efforts to find a path forward.