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HomeMy WebLinkAbout(2009, 08/11) - A-18 - Amended- GUIDELINES FOR IMPLEMENTING CHARTER SECTION 423 Introduction On November 7, 2000, the Newport Beach electorate approved Measure S (Exhibit A). 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 (General Plan). Measure S "encourages' the City Council to adopt implementing guidelines that are consistent with its purpose and intent. The City Council has, consistent with Measure S, conducted a series of public meetings to receive input from the public on Measure S and these Guidelines. The City Council has determined, based on staff analysis and public input, that these Guidelines are consistent with the express purpose of Measure S. On November 6, 2006, the Newport Beach electorate approved Measure V, a comprehensive update and amendment of the General Plan Land Use Element. The Land Use Element approved by Measure V presents land use entitlement information in new tables and maps, and regulates non-residential entitlement by floor area ratio (FAR) differently than the Land Use Element that was in effect when Measure S was approved. The City Council has determined, based on staff analysis and public input, that these Guidelines, as amended for consistency with the 2006 Land Use Element, are consistent with the purpose of Measure S. Definitions The definitions and terms in this section are intended to be consistent with the purpose and intent of Measure S. Certain definitions and terms are intended to generally conform to the definitions in, and terminology of, the most current edition of "Trip Generation," a multi -volume publication of the Institute of Transportation Engineers (ITE Manual). The ITE Manual is the primary reference used by transportation professionals seeking trip generation information. Measure S requires use of the ITE Manual as a basis for calculating the Peak Hour Trips generated by a use permitted by an Amendment. A. Allowed and Proposed Use. The term "allowed use" means any land use(s) permitted by the General Plan on property or in an area. An allowed use may be defined in terms of a residential use and/or a non-residential use generally applicable to an area or property or a particular land use applicable to specific parcel. A "proposed use" is a land use that would be permitted after an Amendment is approved. B. Amendment. The word "Amendment" means any proposed amendment of the General Plan that is first considered and/or approved by the City Council subsequent to December 15, 2000 and that increases the number of peak hour trips, 1 - (traffic,) floor area (intensity) or dwelling units (density) when compared to the General Plan prior to approval. In all cases an Amendment shall state the proposed entitlement in density and/or intensity and, in the case of intensity, the category of non-residential use. C. Approval. The word "approve" (and any variations such as approved or approval) means, in the context of the City Council's decision on an Amendment, that four members of the City Council have, after the City has complied with the "mandatory procedures" described in Section A under Procedures, voted affirmatively to adopt a resolution that contains the text of a proposed Amendment. In the context of the voters' decision on an Amendment, the word "approve" (and any variations such as approved or approval) means that a majority of those voting in the election have voted in favor of the Amendment. D. Dwelling Unit. The term "dwelling unit" means "dwelling unit" as defined in Section 20.03.030 of the Newport Beach Municipal Code (Code). E. Entitlement. The word "entitlement" means the maximum amount of floor area or dwelling units authorized by the General Plan for each allowed use on any property and/or in any area. The term entitlement when preceded by the word "proposed" shall mean the entitlement requested by an Amendment. Proposed Amendments for parcels or areas entitled for special uses shall, when considered by the Planning Commission and City Council and when submitted to the voters, describe the proposed entitlement in both floor area and the appropriate unit of measurement for that special use as utilized in the Trip Rate Table. F. Floor Area. The term "floor area" shall be defined as follows (taken from Section 20.03.030 of the Code - "Floor area, gross"): "The total enclosed area of all floors of a building measured to the outside face of the structural members in exterior walls, and including halls, stairways, elevator shafts at each floor level, service and mechanical equipment rooms, and basement or attic areas having a height of more than seven feet." G. Non-residential Use. The term non-residential use means any land use other than a residential use that is authorized by the General Plan and that generates any peak hour trips. The term non-residential use includes the land uses specified in Sections 20.05.040 (public and semi-public), 20.05.050 (commercial), 20.05.060 (industrial) and 20.05.070 (agriculture) of the Zoning Code. For the purposes of these Guidelines, and specifically the Trip Rate Table, the non-residential use categories are: (1) "Commercial" (which includes the General Plan designations of "Neighborhood Commercial", "Corridor Commercial", "General Commercial", "Visitor Serving Commercial""Recreational and Marine Commercial" and 2 - "Regional Commercial"); (2) "Commercial Office" (which includes the General Plan designations of "General Commercial Office", "Medical Commercial Office" and "Regional Commercial Office"); (3) "General Industrial";(4) "Airport Office and Supporting" (5) the non-residential portions of "Mixed Use" categories; and (6) "Public, Semi Public & Institutional" (which includes the General Plan designations of "Public Facilities", "Private Institutions", "Open Space", "Parks and Recreation" and "Tidelands and Submerged Lands"). H. Peak Hour Trips. The term "peak hour trips" means the number of vehicle trips equal to the applicable peak hour trip rate specified in the Trip Rate Table (Exhibit B) for any allowed use or proposed use multiplied by the entitlement (using the appropriate quantity of the relevant "unit" of measurement specified in the Trip Rate Table). When these Guidelines require a statement or calculation of peak hour trips, the morning and evening peak hour trips shall each be provided and listed separately. Exhibit B shall be updated annually or as often as ITE revises the Trip Rate Table, and this update shall not be considered an amendment to this policy. I. Peak Hour Trip Rate. The term "peak hour trip rate" means the morning and evening average weekday rate during the peak hour of the adjacent street traffic for an allowed use and proposed use (as specified in the Trip Rate Table and as derived from the ITE Manual). In the event the Trip Rate Table does not contain a peak hour trip rate for an allowed use or a proposed use, the peak hour trip rate shall be based on the morning and evening weekday average peak hour trip rate for the most comparable land use in the Trip Rate Table. The most comparable land use in the Trip Rate Table shall be determined by the City Council based on recommendation of the Planning Director and the Transportation and Development Services Manager (Traffic Engineer). The morning and evening peak hour trip rates shall be listed separately. J. Prior Amendment. The term "Prior Amendment" means an Amendment that: 1. Affects property or an area within the same statistical area as an Amendment that is being considered by the Planning Commission and/or City Council; and 2. Was approved by the City Council after December 15, 2000; and 3. Was approved within ten years prior to the date the City Council approved the Amendment being evaluated pursuant to Section 423 and these Guidelines; and 3 - 4. Was determined by the City Council, or by a final judgment of a court of competent jurisdiction, not to require voter approval pursuant to Section 423 and these Guidelines. K. Residential Use. The term "residential use' means General Plan entitlement that is stated in terms of dwelling units. L. Statistical Area. The term "statistical area' shall mean one of the statistical areas identified (on Figure LU3)) in the Land Use Element of the General Plan approved by the City Council on July 25, 2006 (Exhibit C). The term statistical area also means any new statistical area(s) established for property annexed to the City subsequent to July 25, 2006 and in such event Exhibit C shall be modified to depict any new statistical area(s). Methodology Section 423 requires voter approval of any major amendment to the Newport Beach General Plan. According to Section 423, a "major amendment" is one that significantly increases traffic, intensity or density of allowed and proposed uses. This Section describes the methodology and assumptions to be used for purposes of calculating the traffic (maximum peak hour trips), intensity (floor area) and density (dwelling units) of allowed uses and proposed uses. A. Traffic/Peak Hour Trips. The purpose of this Section is to assist the City Council, Planning Commission, staff, the public and property owners in understanding and calculating the traffic generated by allowed and proposed uses. Section 423 specifies that the term "significantly increases" means "over 100 peak hour trips." Measure S and Section 423 do not define the terms "allowed uses" and "maximum amount of traffic" and they do not specify a method of calculating any increase in the maximum traffic resulting from an Amendment. The General Plan contains non-residential use categories that authorize a wide range of land uses with variations in trip generation rates that make infeasible the use of the highest peak hour trip rate of any allowed use. Accordingly, for property or geographical areas for which entitlement is specified in terms of one or more non-residential use category, the peak hour trip rate specified in the Trip Rate Table represents a blend of the ITE trip rates for the most prevalent uses within each category. The City Council has determined that the methodology and assumptions in these Guidelines represent the most reasonable method of determining the amount of traffic that is allowed under the existing General Plan and the increase in peak hour trips resulting from an Amendment. The following methodology shall be used for calculating the peak hour trips of an allowed use and the increase, if any, in the peak hour trips resulting from a proposed use if an Amendment is approved: CI - 1. Allowed Use. The peak hour trips that an allowed use could generate shall be calculated by multiplying the entitlement for the property or area by the morning and evening peak hour trip rate for the allowed use as specified in the Trip Rate Table. If the allowed use is designated in terms of one or more non-residential use category, the peak hour trip rate from the Trip Rate Table for the applicable non-residential use category shall be used. If the allowed use or uses are designated in terms of one or more specific land uses, the peak hour trip rate from the Trip Rate Table for each specific use shall be used in proportion to the amount of entitlement for each specific use. 2. Proposed Use. The peak hour trips that a proposed use could generate shall be calculated using the methodology specified in Subsection 1. 3. The increase, if any, in peak hour trips resulting from an Amendment shall be calculated by subtracting the morning and evening peak hour trips determined pursuant to Subsection 1 from the morning and evening peak hour trips, respectively, determined pursuant to Subsection 2. B. Intensity/Floor Area. The purpose of this Section is to assist the City Council, Planning Commission, staff, the public and property owners in understanding and calculating the "intensity of allowed uses" (allowed intensity) permitted by the General Plan for any parcel or area that is designated, or proposed to be designated for Non -Residential Uses and the allowed intensity resulting from approval of an Amendment (proposed intensity). The Land Use Element, with the exception of those special land uses described in Subsection 2, employs the following methods of specifying allowed intensity: (a) allocating a specific amount of floor area (specific floor area allocation); or (b) assigning a floor area ratio (floor area ratio), with the allowed intensity calculated by multiplying the applicable floor area ratio ("FAR") by the gross land area of the parcel,. 1. Methodology. Except for "special uses" covered in subsections 2 and 3, the increase in intensity resulting from approval of an Amendment shall be calculated by subtracting the allowed intensity from the proposed intensity. Both allowed and proposed intensity shall be calculated as follows:(i) the specific floor area allocation; or (ii) the applicable FAR multiplied by the gross land area. 2. Special Uses. The Land Use Element has historically entitled land uses on the basis of the most common "unit of measurement" utilized in the ITE Manual for calculating the peak hour traffic generated by that land use. The 5 - use of the appropriate "unit of measurement" ensures that the Land Use and Circulation Elements are, as required by State law, properly correlated. Floor area is the most common unit of measurement in the ITE Manual but a different metric is used to measure peak hour trips in the case of certain land uses such as hotels (rooms) and theatres (seats) because those metrics better reflect the traffic generation characteristics of those uses. Consistent with the ITE Manual, the City has historically entitled some large hotels in terms of rooms and two large theaters in terms of seats. The City has, in Table LU2 Anomaly Locations, either assigned 1,000 square feet of floor area for each hotel room or indicated the number of hotel rooms allowed on the site. Table LU2 also indicates the number of theater seats allowed on certain sites, while the intensity limit for other sites where theaters are allowed is indicated in Table LU1 Land Use Plan Categories. For the purposes of this policy, the rate of 1,000 square feet per hotel room and 15 square feet per theater seat shall be used. 3. 5pecial Uses/ Methodology. The "allowed intensity" of a parcel or area that is entitled using hotel rooms or theater seats as a unit of measurement shall be calculated on the basis of 1,000 square feet per hotel room or 15 square feet per theater seat. The "allowed intensity" of a parcel or area that is entitled in a unit of measurement other than floor area, hotel rooms or theater seats shall be calculated on the basis of the greater of the floor area specified in the "'Density/ Intensity" column of Table LU1 Land Use Plan Categories or Table LU2 Anomaly Locations, or the amount of floor area of the allowed uses existing on the parcel at the time the application for the Amendment is filed. C. Density/ Dwelling Units. The dwelling units authorized in the General Plan for property or an area before and after an Amendment shall be determined on the basis of the maximum number of Dwelling Units allowed on the property or area before and after the Amendment. D. Trip Rate Table. The Trip Rate Table contains the morning and evening average weekday peak hour trip rate for each land use specified in the ITE Manual. The information in the Trip Rate Table is based on the vehicle trip rates and related data in the ITE Manual. The term "unit" in the Trip Rate Table refers to the "unit of measurement" or "independent variable" that was used in the trip generation studies that form the basis of the trip rates reflected in the ITE Manual. E. Entitlement Table. The Entitlement Table shall describe, by Statistical Area, the peak hour trip (traffic), floor area (intensity) and dwelling unit (density) increases, if any, of each Amendment approved by the City Council subsequent to December 15, 2000. The Entitlement Table shall not include any Amendment approved by the n - voters and an Amendment shall be removed from the Entitlement Table ten (10) years after approval by the City Council. F. Multiple Amendments. The City Council may have occasion to approve more than one Amendment affecting the same Statistical Area at the same meeting. In such event, the Amendments shall be deemed approved in the following order: 1. The Amendment(s) with the earliest date(s) of initiation or application (for example GPA 2001-001) shall be deemed approved before an Amendment with a later date of initiation or application (for example 2002-002). 2. In the event that more than one Amendment was initiated or applied for at the same time, the Amendments shall be deemed approved in numerical order (for example GPA 2001-001 would be deemed approved before GPA 2001-002). G. Change in Land Use Categ_oly. In the case of an Amendment that proposes a change in land use from non-residential to residential or vice versa no floor area credit shall be given for allowed density (dwelling units) and no density credit shall be given for allowed intensity (floor area). For example, in the case of a Residential parcel with an allowed density of 20 dwelling units the allowed intensity is zero square feet of floor area and in the case of a Non-residential parcel with an allowed intensity of 100,000 square feet, the allowed density is zero dwelling units. However, traffic (peak hour trip) credit shall be in accordance with the entitlement multiplied by the appropriate peak hour trip rate. Procedures This Section describes procedures to be followed prior to City Council approval of an Amendment and the submittal of that Amendment to the voters. A. Mandatory Procedures. The City Council shall not approve an Amendment unless and until the Planning Commission and City Council have first conducted noticed public hearings as required by law and prepared and certified any environmental document that is required by the California Environmental Quality Act (CEQA) and the CEQA Guidelines. The City Council shall, at the same time the Amendment is considered and decided, consider and decide any discretionary land use approval or permit that is related to the Amendment and for which an application has been submitted. B. Staff Reports. The Planning Department shall prepare Planning Commission and City Council staff reports for each Amendment. All Planning Commission and City Council staff reports on an Amendment shall contain information relevant to 7 - whether the Amendment, if approved, would require voter approval pursuant to Section 423. The reports shall include the following information: 1. In the case of an Amendment where the existing and/or proposed use is a residential use, the number of dwelling units allowed by the General Plan before and/or after the Amendment; 2. In the case of an Amendment where the existing and/or proposed use is a non-residential use, the amount of floor area (and relevant unit of measurement from the Trip Rate Table if different than floor area) allowed by the General Plan before and/or after the Amendment; 3. In all cases, the number of peak hour trips allowed by the General Plan before and after the Amendment; 4. A table that identifies each Prior Amendment (see definition in Section (2)J) including any increase in Peak Hour Trips, Floor Area, and/or Dwelling Units, and the date on which each Prior Amendment was approved; 5. A table that adds eighty percent (80%) of the increases in peak hour trips, floor area and dwelling units resulting from Prior Amendments (see Definitions Section J) to the increases in peak hour trips, floor area and/or dwelling units (as appropriate) resulting from the Amendment under consideration. 6. The Entitlement Table referenced under Methodology Section E. 7. Information about the Amendment, any associated project or land use approval and the environmental analysis that would help the Planning Commission and City Council make informed recommendations or decisions on the Amendment and help the public develop informed opinions about the Amendment. C. City Council Review. The City Council shall determine at the noticed public hearing at which any Amendment is approved if, based on the administrative record for the Amendment including any testimony presented at that hearing, the Amendment requires voter approval pursuant to Section 423. The City Council shall submit an Amendment to the voters if: 1. The Amendment modifies the allowed use(s) of the property or area that is the subject of the Amendment such that the proposed use(s) generate(s) more than one hundred morning or evening peak hour trips than are generated by the allowed use(s) before the Amendment; or - 2. The Amendment authorizes an increase in floor area for the property or area that is the subject of the Amendment that exceeds forty thousand (40,000) square feet when compared to the General Plan before approval of the Amendment; or 3. The Amendment authorizes an increase in the number of dwelling units for the property or area that is the subject of the Amendment that exceeds one hundred (100) dwelling units when compared to the General Plan before approval of the Amendment; or 4. The increase in morning or evening peak hour trips, floor area or dwelling units resulting from the Amendment when added to eighty percent (80%) of the increases in morning or evening peak hour trips, floor area or dwelling units resulting from Prior Amendments (see Definitions Section J) exceeds one or more of the voter approval thresholds in Section 423 as specified in Subsection 1, 2 or 3. D. Calling an Election. In the event the City Council determines that the Amendment requires voter approval, the City Council shall, at the noticed public hearing at which the Amendment was approved or a subsequent noticed public hearing held no more than sixty (60) days after making the determination, adopt a resolution calling an election on the Amendment. The City Council shall schedule the election on the Amendment at the next regular municipal election (as specified by the City Charter) or at a special election if the City and the proponent of the Amendment have entered into a written agreement to share the costs of the special election. The City Council shall, at the time the election is called, direct the City Attorney to prepare an impartial analysis of the Amendment. The impartial analysis shall contain information about the Amendment, any related project or land use approval, and the environmental analysis conducted of the Amendment that will help the electorate make an informed decision on the Amendment. In the absence of an ordinance or Charter provision that establishes a procedure for submittal of arguments or rebuttals relative to City measures, the City Council shall, at the time a decision is made to submit an Amendment to the voters, adopt a resolution that authorizes the filing of arguments and rebuttals in accordance with the general procedures specified in the Elections Code. E. Exclusive Method. Effective November 3, 2004, in the absence of a mandatory duty arising from an initiative petition, referendum petition, court order or other mandatory legal obligation, Section 423 and the procedures outlined in these Guidelines represent the sole and exclusive method by which the City Council considers, approves and submits for voter approval an Amendment that is subject Z - to Section 423. The City Council has also determined that nothing in Section 423 prevents the City Council from submitting any matter other than an Amendment to the voters as an advisory measure. [Attachment - Exhibit A] [Attachment - Exhibit B] [Attachment - Exhibit C] History Adopted A-18 - 3-27-2001 Amended A-18 - 6-8-2004 Amended A-18 - 7-13-2004 Amended A-18 - 8-11-2009 10 - EXHIBIT A Section 423. Protection from Traffic and Density. Voter approval is required for any major amendment to the Newport Beach General Plan. A "major amendment" is one that significantly increases the maximum amount of traffic that allowed uses could generate, or significantly increases allowed density or intensity. "Significantly increases" means over 100 peak hour trips (traffic), or over 100 dwelling units (density), or over 40,000 square feet of floor area (intensity); these thresholds shall apply to the total of: 1) Increases resulting from the amendment itself, plus 2) Eighty percent of the increases resulting from other amendments affecting the same neighborhood and adopted within the preceding ten years. "Other amendments" does not include those approved by the voters. "Neighborhood" shall mean a Statistical Area as shown in the Land Use Element of the General Plan, page 89, in effect from 1988 to 1998, and new Statistical Areas created from time to time for land subsequently annexed to the City. "Voter approval is required" means that the amendment shall not take effect unless it has been submitted to the voters and approved by a majority of those voting on it. Any such amendment shall be submitted to a public vote as a separate and distinct ballot measure notwithstanding its approval by the city council at the same time as one or more other amendments to the City's General Plan. The city council shall set any election required by this Section for the municipal election next following city council approval of the amendment, or, by mutual agreement with the applicant for the amendment, may call a special election for this purpose with the cost of the special election shared by the applicant and the City as they may agree. In any election required by this Section, the ballot measure shall be worded such that a YES vote approves the amendment and a NO vote rejects the amendment; any such election in which the ballot measure is not so worded shall be void and shall have no effect. This section shall not apply if state or federal law precludes a vote of the voters on the amendment. (End of amendment. But the proposed ballot measure also includes the following "Second" through "Seventh":) 11 M Second. Purpose. It is the purpose of the amendment to give the voters the power to prevent Newport Beach from becoming a traffic -congested city, by requiring their approval for any change to the City's General Plan that may significantly increase allowed traffic; and also to make sure that major changes do not escape scrutiny by being presented piecemeal as a succession of small changes. Third. Findings. 1. In planning the growth of their city and protecting its quality of life, a prime concern of the people of Newport Beach is to avoid congestion and gridlock from too much traffic. 2. The General Plan guides growth in the City of Newport Beach by designating land use categories for all lands in the City, and providing limits on the allowed density and intensity of use for each land use category. 3. The General Plan already provides for additional growth in the City; if all development allowed by the General Plan were to be built, the traffic generated in the City would increase by about 20%. 4. The people, whose quality of life is at stake, should have the power to disapprove any proposed General Plan amendment that may significantly increase traffic congestion beyond that which could already occur from development under the General Plan. Fourth. Implementation. 1. It is the intent of the foregoing amendment to the City Charter of the City of Newport Beach that, to the maximum extent permitted by law, it apply to all amendments to the General Plan approved by the Newport Beach city council after the time of filing of the Notice Of Intent To Circulate Petition, provided that it shall not apply to any amendment for a development project which has obtained a "vested right" as of the effective date of the foregoing amendment to the City Charter. A "vested right" shall have been obtained if: (a) The project has received final approval of a vesting tentative map. As to such vesting tentative maps, however, they shall be exempt only to the extent that development is expressly authorized in the vesting tentative map itself; or (b) The project has obtained final approval of a Development Agreement as authorized by the California Government Code; or (c) The following criteria are met with respect to the project: 12 - (i) The project has received a building permit, or where no building permit is required, its final discretionary approval, and (ii) Substantial expenditures have been incurred in good faith reliance on the building permit, or where no building permit is required, the final discretionary approval for the project; and (iii) Substantial construction has been performed in good faith reliance on the building permit, or where no building permit is required, on the final discretionary approval. Phased projects shall qualify for vested rights exemptions only on a phase by phase basis consistent with California law. 2. The city council is encouraged to adopt guidelines to implement the foregoing amendment to the City Charter of the City of Newport Beach following public notice and public hearing, provided that any such guidelines shall be consistent with the amendment and its purposes and findings. Any such guidelines shall be adopted by not less than six affirmative votes, and may be amended from time to time by not less than six affirmative votes. 3. The City shall take all steps necessary to defend vigorously any challenge to the validity of the foregoing amendment to the City Charter of the City of Newport Beach. 4. Peak hour trip generation rates shall be calculated using the most recent version of the Trip Generation Manual of the Institute of Transportation Engineers. The city may fine-tune these rates, but not to less than 95% of the rates in the Manual. Fifth. Attachment. Attached to this petition is a copy of page 89 of the Land Use Element of the General Plan, showing the "Statistical Areas" of the City of Newport Beach. Sixth. Construction. Nothing herein shall be construed to make illegal any lawful use presently being made of any land or to prohibit the development of any land in accordance with the provisions of the City's General Plan in force at the time of filing of the Notice of Intent to Circulate Petition. Seventh. Severability. If any part of this initiative is declared invalid on its face or as applied to a particular case, such decision shall not affect the validity of the remaining parts, or their application to 13 • other cases. It is hereby declared that each part of this initiative would have been adopted irrespective of the fact that any one or more other parts be declared invalid. 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