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HomeMy WebLinkAbout18 - Amending and Re-Adopting the 2021-2029 6th Cycle Housing Element - Correspondence2 BANNING RANCH September 13, 2022 Item No. 18 CONSERVANCY Officers: Terry Welsh, M.D. President September 8, 2022 Suzanne Forster Submitted via email to: siur]is@newportbeachca.gov Vice -President Deborah Koken Seimone Jurjis Secretary Community Development Director Carol Lind City of Newport Beach Treasurer 100 Civic Center Drive Newport Beach, CA 92660 Melanie Schlotterbeck Executive Director RE: Comments on Housing Element Update (9/13/22 City Council Meeting) Paul Waggoner Community Dear Seimone, Engagement Coordinator In light of the City's expressed interest in using Banning Ranch as a potential housing site as stated in the Housing Element section of the Land Use Element (see excerpt Board Members: below), the Banning Ranch Conservancy believes it imperative to update you and your staff, as well as the City Council, of the current status of the acquisition of the Diane Silvers, Ed.D. property. Rick Huffman 2022 Housing Element Excerpt Cynthia D'Agosta Land Use Element, Appendix B, page B-85/Banning Ranch Area [...]: "Banning Ranch is therefore an additional policy option the City desires to Jan VandeM.D. om In Memoriam preserve, as it is consistent with existing land use policy in the Newport Beach General Plan. Units assigned to the Banning Ranch Focus Area are not used to accommodate any portion of the 6th cycle RHNA; however, to the extent the City is successful in creating housing opportunities at Banning Ranch, those opportunities may be used to satisfy a portion of the City's 6th Mailing Address: cycle RHNA need." P.O. Box 15333 Newport Beach, CA The acquisition of Banning Ranch is now fully funded and all approvals have been 92659-5333 secured. It is anticipated that by the end of this month the property will be in public ownership by the Mountains Recreation and Conservation Authority (MRCA). After close of escrow, remediation of the property will commence. Further, given the state grant restrictions that will take effect upon closing and follow the land in perpetuity, Banning Ranch is not a viable opportunity for any future residential Phone: development. Realistically, the City should not expect to be successful in creating (714) 719-2148 housing opportunities on the property that could be used for the 61" cycle RHNA needs or any future RHNA cycle. Because of this existing and known land conservation transaction, the land should instead be designated in the General Plan as Open Space. E-Mail Address: info@BanningRanch Conservancy.org We appreciate your understanding of our request that the land use language in the General Plan be updated to be consistent with the actual and imminent transition of the property to an open space park and nature preserve. We ask that you modify the Housing Element to accurately reflect the true status of the land and its immediate restricted future use. Going forward, we also hope to have the Council's good will and support in what we believe will be an historic opportunity to restore a rare ecological treasure to its natural state, and that this transition will ultimately provide immense environmental, social, and economic benefits to the beautiful City of Newport Beach and its residents. Please don't hesitate to contact the Conservancy if you have questions or require further clarification of our requests. Respectfully submitted, Terry M. Welsh, MD President cc: Newport Beach City Council(citycouncil@newportbeachca.gov) Newport Beach City Clerk (cityclerk@newportbeachca.gov) California Housing and Community Development(HousingElements@HCD.ca.gov) Mountains Recreation and Conservation Authority (elena.eger@mrca.ca.gov and mario.sandoval@mrca.ca.gov) The Trust for Public Land (Paolo.Perrone@tpl.org and Dave.Sutton@tpl.org) Received after Agenda Printed September 13, 2022 Item No. 18 From: City Clerk"s Office To: Mulvey, Jennifer; Rieff, Kim Subject: FW: Interim Report - CEQA Litigation and Housing Date: September 12, 2022 12:13:03 PM Attachments: 9-6-22 GP Update Comments .pdf From: dave@earsi.com <dave@earsi.com> Sent: Monday, September 12, 2022 12:12:40 PM (UTC-08:00) Pacific Time (US & Canada) To: City Clerk's Office <CityClerk@newportbeachca.gov> Subject: FW: Interim Report - CEQA Litigation and Housing [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. H i, The email below was intended as a comment to the City Council on the Housing Element Update for their September 13 2022 Public hearing, Item 18 "Resolution No. 2022-60: Amending and Re - Adopting the 2021-2029 6th Cycle Housing Element". Please include the comment below and the link below in the Agenda item's "Correspondence" Please expand the link below to show the individual pages for the interim report entitled "Anti - Housing CEQA Lawsuits Filed in 2020 Challenge Nearly 50% of California's Annual Housing Production". https://www.cegadeveIopments.com/wp-content/uploads/sites/166/2022/08/here-1.pdf By expanding the link to show the individual pages the public will have greater access to this information. Please include my September 6, 2022 comments to the City Council (attached) on this item in the Agenda item's "Correspondence". Thank you, David J. Tanner 223 62nd Street Newport Beach, CA 92663 949 233-0895 cell Notice of Confidentiality: This e-mail and any attachments thereto, is intended only for use by the address(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me by e-mail by replying to this message and permanently delete the original and any copy of any email and any printout thereof. From: dave@earsi.com <dave@earsi.com> Sent: Monday, August 29, 2022 11:36 AM To:'citycouncil@newportbeachca.gov' <citycouncil@newportbeachca.gov> Cc: Aaron C. Harp (aharp@ newportbeachca.gov) <aharp@newportbeachca.gov>; Seimone Jurjis (sjurjis@newportbeachca.gov) <sjurjis@newportbeachca.gov> Subject: Interim Report - CEQA Litigation and Housing in Below is a link to a 10-page interim report by Holland & Knight's Jennifer Hernandez, published this month by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units — approximately half the state's total annual housing production — in 2020 alone. Link: here-1.pdf (cegadevelopments.com) Given the issues surrounding the City's General Plan Update, this is a must read (maybe twice ! The information in this article paints a different picture of the effectiveness of the state's housing legislation, the steps taken by CARB to meet climate change GHG and VMT reductions, and the use of CEQA as a means to control population growth/protect the environment. A few of the lessons learned from this article: • Higher likelihood for anti -housing CEQA lawsuits or CEQA lawsuits challenging new infrastructure and resiliency projects (Le., the General Plan Update & Municipal Code Amendment Project). • The effectiveness of General Plan policies and Municipal Code Amendment(s) which avoid or lesson adverse impacts to the environment must be verifiable in the long-term not only by the General Plan analysis, but also through the independent CEQA analysis. This includes the incorporation of state policies. (extra efforts to identify, analyze and mitigate, not avoid the topics of concern are needed to reduce the risk of CEQA litigation) • Project's must meet the basic requirements under CEQA that mitigation measures be verifiable and enforceable. • In the future, state boards such as CARB may be given more land use authority (the city will have less land use authority) Remember, the City's decisions have lasting consequences. Cheers, Dave David J. Tanner 223 62nd Street Newport Beach, CA 92663 949 233-0895 cell Notice of Confidentiality: This e-mail and any attachments thereto, is intended only for use by the address(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me by e-mail by replying to this message and permanently delete the original and any copy of any email and any printout thereof. Anti -Housing CEQA Lawsuits Filed in 2020 Challenge Nearly 50c7c of California's Annual Housing Production August 2022 Prepared by Center for Jobs & the Economy Guest Author Jennifer Hernandez Holland & Knight HOF III IM,11% ir�THE ENTER FORJOBs & California EC�N�l1�IY fit Business Roundtable CALIFORNIA CENTER FOR JOBS & THE ECONOMY California Business Roundtable I Anti -Housing CEQA Lawsuits Filed in 2020 Challenge Nearly 50% of California's 100,000 Annual Housing Production Guest Author: Jennifer L. Hernandez, Holland & Knight' Although the Legislature has enacted over 80 laws over the past sevenyears to solve the state's acute housing crisis, actual housing production to address what Governor Newsom described as a 3.5 million housing shortfall has remainedfiat. As shown in the Figure below, California has built an average of 110,784 homes peryear for the past sixyears, only about one-third of the Governor's housing production target. Production is expected to fall in 2023 due to inflation and interest rate hikes. CEQA lawsuits targeting new housingproduction, in contrast, continue to expand - with 47,999 housing units targeted in the CEQA lawsuits filed just in 2020. Thousands more housing units were challenged in CEQA lawsuits targeting up.Zoning of existing neighborhoods, espeiialynear transit. The California Air Resources Board's Draft 2022 Scoping Plan (May 2022) acknowledges that two-thirds of CEQA lawsuits allege violations of climate impacts: greenhouse gas emissions ("GHG') and vehicle miles travelled ("VMT') by cars and pickup trucks (including electric vehicles. The Scoping Plan misleadingly asserts that CEQA litigation is rare based on an older study that counted all types of pr jects including those subject to no public review process. The 2020 statewide Petition survey proves the contrary, with lawsuits challenging nearly half (47,999 units) of the state's annual housing production. Although 2020 was a pandemicyear, residential construction workers were classified as essential workers and stayed on the job -and both housing demand and housing paces spiked. The bottom line: anti -housing CEQA lawsuits target more than half of California's annual housing production. Soaring housing costs fed by these supply limits make living in this state unaffordable for a growing share of ourpopulation, shutting off prospects for economic mobility as aspirations are replaced with fears about being able to pay the core montbybills. The Center for Jobs and the Economy Affordability Index tracks 5 core elements in the cost of living (food, healthcare, housing taxes and fees, and transportation) compared to households' ability to pay. In the latest data for homeowners, 23 senate districts and 59 assembly districts are cost burdened, while 17 senate and 29 assembly are severely cost burdened. For renters, the numbers are worse: 6 senate and 15 assembly are cost burdened, while 34 senate and 61 assembly are severely cost burdened. Yet, this type of CEQA litigation has been allowed to continue even though the available studies —including some by the Air Board itself —show that the TVMT and land use based GHG measures such as those promoted in 1 CEQA requires that all CEQA lawsuits be served on the California Attorney General ("AG"), and the AG provides copies of all these lawsuits to Holland & Knight pursuant to a Public Records Act Request. This lawsuit data is then compiled by a team of Holland & Knight attorneys and clerks. Contributors to the 2020 CEQA Petition data summaries include Nicholas Quinlivan, Nathan Bernstein, Emily Warfield, Deborah Brundy, Melanie Chaewsky, and Emily Lieben. This article was prepared independently by the author, and does not constitute legal advice or create any attorney -client relationship with Holland & Knight. the state's regulations have been a failure, adding substantial costs to new housing while producing few if any emission benefits and failing the basic requirements under CEQA that mitigation measures be verifiable and enforceable. As detailed in the Center's report on Teleconmuting (hobs: l l centedoo�obs. orgl cal sbecial-rebortsl cal�ornia-workers- moderni pd-telecommuting policies -to -build -equity -and -reduce -costs, there are cost effective alternatives available, measures thatproduce real emission reductions while in factproducing savings rather than costs for households. The current Scoping Plan process currently being conducted by the Air Board instead places even greater reliance on the failed land use and VMT policies from the past, rather than embracing policies that have shown they can work. California's Ongoing Housing and Housing -Induced Poverty Crisis. The housing crisis, and housing and homeownership opportunities for working families (the majority of whom are now members of communities of color), has continued to worsen over Governor Newsom's term in office. The median price of homes in California has escalated to $800,000, median household income stands at just under $80,000, and the number of Californians who could afford to buy a home decreased from 28% to 26%. California's homeless population also increased, even as state and local agencies invested billions in new housing construction, temporary housing in hotels and motels, supportive housing, and shelters. California's housing -cost adjusted poverty rate, as reported by the US Census, remains the highest in the nation. 250,000 150,000 50,000 0 Ln �D 1-� O a� O — cV M V Ln �D I-� O a� O — * rq O O O O O CO CO O O O O O O O O O O N . . . N N . . . N . . . . N N . . N ■ Total Units Construction Industry Researh Board (2022); 2022 The failure of California's housing policies has made the nation's largest, most densely populated urban area, and wealthiest state the poorest (by far) in the nation. Although often unreported, and notwithstanding the state's deep blue politics, its communities of color, as well as children, are far more likely to be poor than other population segments (https://www.unitedwaysca.org/realcost) - and UC Berkeley scholars have confirmed that residential racial segregation in the progressive Bay Area bastion is worse than it was when Dr. King was assassinated in 1968. htWs://www.sfchronicle.com/local/article/Bay-Area-segregation-is-is- worsening-UC-Berkeley-16266636.php CEQA and Housing. The role that CEQA lawsuits play in the ongoing housing crisis has continued to be a politically fraught debate, even as one of the Legislature's pro -housing leaders, attorney and Senator Scott Weiner, has called CEQA the "law that swallowed California." htips://www.youtube.com/watch?v=IuZFhpwFtS8 Our Holland & Knight team has produced two major research papers reporting on what kinds of projects are targeted by CEQA lawsuits, based on a review of all CEQA lawsuits filed statewide which we obtain from the Attorney General's office using the Public Records Act. Our 2015 study, In the Name oftheEnvironment (hMs://www.hklaw.com/en/in.rights/Publications/2015/08/in- the-name-of the-environment-litigation-abuse-un), reviewed all CEQA petitions filed statewide between (2010 and 2012), and found that housing was by far the most frequent private sector target of CEQA lawsuits. Notwithstanding CEQA's status quo defense that CEQA is critical to protecting the environment, we also discovered only 13% of such lawsuits were filed by environmental organizations that existed prior to filing their CEQA lawsuit. NIMBYs, bounty hunters (lawyers seeking quick cash settlements), economic competitors, and labor unions dominated the ranks of those filing CEQA lawsuits In a subsequent study published in 2018 by the Hastings Law School Environmental Law Journal, CEQA and the California Housing Crisis (https://repository.uchastings.edu/hastings environmental law journal/vol24/issl /3/ ), we reported that during the subsequent three year study period (2013 to 2015), anti -housing CEQA lawsuits had grown to an even larger share of total CEQA lawsuits filed, and that the most frequently targeted housing projects were higher density housing (e.g., apartments) on infill locations in wealthier communities. We have completed the first year (2020) of our next three year study (2019-2021) of CEQA lawsuits, and have elected to publish this interim report to alert our elected and civil rights leaders, stakeholders, and members of the public in need of housing, to the explosion of anti -housing CEQA lawsuits that allege failures to properly analyze and/or mitigate two climate -related impacts added to CEQA: greenhouse gas emissions ("GHG") from project activities (construction, along with the future building occupancy and resident/guest/vendor vehicular fuel use attributed to a housing project), and Vehicle Miles Travelled ("VMT") from passenger vehicles regardless of fuel type, including electric vehicles). Apart from the continued onslaught of anti -housing CEQA lawsuits, the volume of CEQA lawsuits challenging renewable energy and infrastructure resiliency exploded in 2020: solar, wind, hydropower, water (including management of existing water facilities), flood, and wildfire management projects were all targeted by litigants seeking to preserve the status quo, or leverage CEQA lawsuits for other purposes. CEQA and California's Climate Change Policies: Green Jim Crow In 2021, the non-profit eco-modernist Breakthrough Institute published Green Jim Crow, which described how California's climate change policies - including those applied to housing and transportation through CEQA - created a racially exclusionary and disparate burden on California's communities of color. https://thebreakthrough.org/journal/no-14-summer-2021/green-jim-crow Green Jim Crow described how the SB 375 Sustainable Communities Strategies had been weaponized into a recipe for gentrification, unaffordable housing, and displacement of communities of color. Judge Carter, presiding over the homeless crisis in Los Angeles' skid row, reached a similar conclusion about new housing production in the downtown LA transit hub. https: / /www.courthousenews.com/wp-content/uploads /2021 /04/]LAHomeless-ORDER.pdf Green Jim Crow also described the racially discriminatory and disparate burdens climate policymakers were creating to impair vehicle use and mobility of essential workers, who need a car and had largely abandoned public transit even before the COVID pandemic as documented by transportation scholars from UCLA. https://www.lewis.ucla.edu/research/falling-transit-ridership- california-and-southern-california/ The necessity of legal auto ownership and use had been soundly affirmed by the Legislature and Governor Brown with the 2013 enactment of AB 60, authorizing the issuance of drivers' licenses to undocumented immigrants. Limiting access to affordable, reliable used cars has also been repeatedly brought to the attention of the Legislature, CARB and the Governor as a poverty -inducing catastrophe for most of California. Finally, Green Jim Crow described how California's rapidly escalating prices for electricity and energy also cause major hardships for California's working families, increasing both energy poverty and reducing access to value-added, higher -wage and often union jobs held by workers without college or other advanced degrees. Notwithstanding these and many other studies, California's climate advocates and policymakers continue to insist that their increasingly infeasible housing and transportation mandates are necessary responses to climate change. As CARB has itself discovered, CEQA lawsuits have weaponized GHG and VMT to block the housing needed by Californians, and the state's energy and infrastructure transition and resiliency projects. Congress didn't pass Build Back Better, but if past experience is a prologue to the climate infrastructure projects eligible for federal funding under the Inflation Reduction Act, it will dissolve into "Bicker Back Better" CEQA lawsuits - just as President Obama's infrastructure funding surge yielded a bumper crop of CEQA lawsuits in our earlier study periods. In its Draft 2022 Scoping Plan, released in May of 2022, the California Air Resources Board concluded that two-thirds of CEQA lawsuits allege deficient analysis or mitigation of GHG or VMT. Although California's per capita GHG emissions are the lowest in the nation, and any family or job that moves to a more affordable state actually causes in an increase in global GHG, neither CARB nor the Office ofPlanning & Research ("OPR') have created clear, feasible, orlawful standards forhow new housing orinfrastructureis supposed to mitigate GHG and VMT impacts under CEQA. For our3.5million housing deficit, neither CARB nor OPR have reconciled how CEQA's VMT and GHG mandates apply to the housing production required under the Regional Housing Needs Assessment, Housing AccountabilityAct, and other housing laws - orhow CEQA is reconciled with the anti -segregation mandates of the state's newest civil rights law, Affirm a tively Furth ering Fair Housing. Housing and Greenhouse Gas Emissions In the second of the California Supreme Court's inconclusive decisions on GHG and CEQA, the majority rejected the legal adequacy of the GHG analytical methodology chosen by the lead agency in that case, which was the California Department of Fish and Game, advised by then - Attorney General Jerry Brown and future OPR Director Ken Alex. Justice Chin wrote a prescient dissent: For projects, like the present residential and commercial development, which are designed to accommodate long-term growth in California's population and economic activity, this fact gives rise to an argument that a certain amount ofgreenbousegas emissions is as inevitable as population growth... CEQA is not intended as a population control measure. (Center for Biological Diversity v. Dept. of Fish and Wildlife, (2015) 62 Ca1.4th 204, emphasis added.) With even Jerry Brown and Ken Alex unable to lawyer GHG correctly under CEQA for a housing and commercial project, it is no surprise that hundreds of cities and nearly 60 counties have not been able to do so either - at least not to the satisfaction of CEQA's legion of anti -housing litigants. CARB's proposed solution to housing aligned to state climate goals is that the Legislature should give CARB authority over land use decisions (https://ww2.arb.ca.gov/resources/documents/tracking-progress), effectively creating a Coastal Commission -like land use overlay on the whole of the state. CARB has never regulated local land use decisions, however, and CARB's 2022 Draft Scoping Plan housing provisions demonstrate its profound unfamiliarity with housing. For example, the Draft 2022 Scoping Plan identifies three housing typologies that have a "less than significant" GHG impact; by implication and omission, it invites more CEQA litigation against any housing that falls outside of this typology: (1) Deed -restricted (to low income residents) 100% affordable housing projects. Even at the height of redevelopment funding availability, deed -restricted affordable housing comprised less than 5% of the state housing supply. As every expert agency has concluded, including for example the non -partisan Legislative Analyst Office, public funding cannot solve the housing crisis https://lao.ca.gov/reports/2015/finance/housing-costs/housing-costs.aspx With per unit housing production costs topping $800,000 and even $1,000,000, https://www.latimes.com/homeless- housing/ story/2022-06-20 /california-affordable-housing-cost-l-million- apartment#: -:text=Affordable%20housing%20in%20California%20now,Great%20Highway%20in %20San%20Francisco the infeasibility of using taxpayer funding to pay for millions of new homes is absurd. (2) Mixed -income housing projects of 20 units per acre with 20% restricted to low-income affordable units, located within 1 /2 mile of an existing commuter train or ferry station, or high frequency bus stop. The bus stop frequency standard requires buses to arrive every 15 minutes for each weekday morning and afternoon commute hour, with supplemental prescribed weekday, evening, and weekend service intervals - a transit stop service frequency that generally requires ten shifts of employees and a fleet of 8 buses. As the Legislature and again every expert agency has concluded, even a 15% inclusionary affordable housing requirement can be infeasible in all but the most expensive markets (AB 1505 (2017); (https://ternercenter.berkeley.edu/research-and- policy/making-it-pencil/ California's costliest urban housing market, in San Francisco, has had to rethink its affordable unit requirements based on high housing costs and low housing production. https: / / sfist.com /2022 /08 /09 /in-fighting-over-affordable-housing-at-city-hall-escalates-with-new- lawsuit-meanwhile-newsoms-office-launches-unprecedented-review-of-sf-policy/ (3) Projects that have agreed to be "net zero GHG." Only two projects have signed onto this approach, which requires a calculation of GHG for project construction, as well as 30 years of GHG emissions attributable to future building occupancy and vehicular use by residents, employees, vendors and guests. Both are large master planned community projects, which achieve onsite GHG reductions at scale but still need to fund GHG reductions in other parts of the city, county, state or world to achieve "net zero GHG." Even for these three typologies, which ignore dozens of Legislative housing production priorities, such as accessory dwelling units, streamlined approvals for housing that complies with General Plan Housing Elements and Sustainable Communities Strategies, and down payment assistance for first time homebuyers, CARB's "Natural and Working Land," Scoping Plan chapter calls for the immediate cessation of new housing and other development on lands not previously - developed (not even the buildout of existing cities and projects). CARB asserts this radical housing prohibition on land already planned for housing in local Housing Elements and CARB-approved Sustainable Communities Strategies is necessary to achieving climate neutrality, and that undeveloped lands must be managed for carbon sequestration, renewable energy, and other climate - sanctioned purposes. CARB expressly declined to comply with a Legislative mandate (AB 197, Garcia) that CARB analyze the equity, cost and effectiveness of each Scoping Plan Measure. CARB's 2022 Draft Scoping Plan also reports that only 6% of California has been developed for both people and infrastructure, and opines that conversion of more land would equate to anti - climate "sprawl." The US Census Bureau counts "urbanized" acres as including megaregions, cities and towns - including small towns like Ione in the Sierra foothills. California is the nation's most populous state, has - by far - the highest urban population density in the nation. California also has the lowest percentage of "urbanized" acres (a US Census term which combines megaregions, cities, and small towns such as Ione in the Sierra foothills) of any other high population state except Texas (which is not lauded for its anti -sprawl policies). For example, California has a substantially lower percentage of urbanized land than Georgia, New York and North Carolina (8.3 to 9.5 percent urbanized), Pennsylvania, Ohio, Florida, Maryland, Delaware (10.5 to 20.9 percent urbanized), and Connecticut, Massachusetts, Rhode Island and New Jersey (37.7 percent to 39.7 percent urbanized). Importantly for housing, each city and county in California is required to develop a plan to accommodate its fair share of housing as part of the Regional Housing Needs Assessment ("RHNA") and General Plan Housing Element update process. Dozens of important housing production laws like the Housing Accountability Act and SB 375's Sustainable Communities Strategy, include streamlined approvals for housing built in compliance with RHNA, the HAA, and Sustainable Communities Strategy. The Draft 2022 Scoping Plan throws these and other pro- housing production laws, as well as locally -approved General Plans and housing projects, under the bus in the name of climate change. Housing and Vehicle Miles Travelled Speaking of the bus, California's families work hard: 97% of households struggling below the poverty line have at least one adult working full-time. https://www.unitedwaysca.org/realcost According to CARB in its 2022 Draft Progress Report on SB 375, only 5% of Californians use transit and 4% of Californians walk or bike to work. httl2s://ww2.arb.ca.gov/sites/default/files/2022-07/2022 SB 150 Appendix A Draft ADA.pdf Although housing and civil rights advocates concur that housing equity demands allowing for new housing for all income levels to be developed in high opportunity neighborhoods, and all cities and counties share an obligation to allow more housing in compliance with RHNA and Affirmatively Furthering Fair Housing Act laws, civil rights advocates have also long recognized the necessity of car ownership - as acknowledged by the Legislature itself when it authorized undocumented immigrants to obtain Drivers' Licenses. Some housing advocates, especially younger, more affluent college -educated professionals (often without children) who can afford higher rents and are more likely to have the option of working remotely as part of the keyboard economy, support transit, biking and walking transportation modes. These advocates readily trade away a private parking space for lower housing costs, which makes perfect sense - for them. Respectful of pro -housing allies, from a civil rights perspective most Californians do not fit this profile. In fact, as the years -long policy debates about expanding Drivers' Licenses to undocumented immigrants made clear, the vast majority of California's workforce and households need a reliable, affordable car - to transport kids/tools/supplies, to manage tight deadlines and budgets for daycare pickups and medical appointments, to reliably get to required destinations outside peak transit hours and peak transit destinations (if high frequency transit is available at all), and to manage the overlapping time demands of households with multiple drivers and multiple jobs and families. As a recent summary of the correlation between car ownership and poverty again confirms: Researchers have consistently found that having a car is associated with improved economic outcomes. When poor households have or gain a car, household members are more likely to be or become employed, keep their jobs, increase their earnings, work more hours, and leave welfare programs (Baum 2009; Blumenberg and Pierce 2017b; Cervero, Sandoval, and Landis 2002; Gurley and Bruce 2005; Ong 2002; Raphael and Rice 2002; Smart and Klein 2020). Journal of Planning Education Research (2020) available at: httl2s://journals.sagel2ub.com/doi/full/10.1 177/0739456X20950428 Transportation doesn't just need to be reliable and affordable, it also needs to be efficient: no one wants to spend more time than needed on a commute, and Marchetti's Constant confirms our millennial -long preference for spending no more than 30 minutes (each way) on our daily commute.' https://www.coadvantage.com/marchettis-constant-why-reducing-commutes-increases- productivity/ CARB reports that, consistent with Marchetti's Constant, the average commute time by car is under 30 minutes; however, the average commute time by transit is nearly an hour. In contrast, workers who commute by public transit spend twice as long, on average, as car commuters. httl2s://ww2.arb.ca.gov/resources/documents/tracking-12rogress California's transit commuters spend 20 hours more commuting each month than drivers - hours that could be spent with their families or on other activities. Neither CARB nor OPR recognize, and in some ways actively oppose, proven and cost- effective methods of reducing traffic congestion at peak hours as well as VMT. For example, broadband technology enables more telecommuting, telelearning, telebanking, and telemedicine - all of which were favored even by low wage and rural workers as confirmed by a recent SCAG/CETF study in Southern California available here: https://scag.ca.gov/sites/main/files/file- attachments/transportation broadband strategies to reduce vmt and ghg final.pdPl649987917. Similarly, micro -transit options like point-to-point van rides (https://transweb.sjsu.edu/press/Xhcrotransit-Options-Post-Pandemic-Transit-Access) instead of fixed route scheduled bus service has proven to be both more cost effective and result in shorter and more reliable transit in many communities. Finally, housing is more affordable - without waiting to win a lottery reserved for low income households - farther away from the Coast and Bay. That means non -affluent workers - especially essential workers who are required to be on time on the jobsite - are driving to tony coastal enclaves that neither they nor their kids have any expectation of ever being able to afford under longstanding state housing policies. As shown in Figure 1, below, even in pre -pandemic 2017: Figure 1: Geography of Southern California Region's Housing Cost Crisis Housing Costs Increase $19,000 per mile Median 2 B R Apartment Rents Increase $33 per month per mile (77 Mile Commute Distance to Coast) San Bernardino Home Purchase: $288,000 Apartment Rent: $1,489 Los Angeles Latino/African American Population: 76% Home Purchase: 5686,000 { Apartment Rent: $4r379 �J LatinofAfrican American Population: 57% i Ontario Home Purchase: $425,000 West Covina Apartment Rent: $1,836 Home Purchase: $563,000 Latino/African American Population: 76% Apartment Rent: $2,068 Santa Monica Latino/African American Population: 57% Home Purchase: $L722,000 Apartment Rent: $4,429 Latino/African American Populatian: 2U% 2 California's commute durations are much longer in the Bay Area and SoCal megaregions, and other factors - such as safety and sanitary conditions especially during off-peak hours - also influence transportation mode choices. California climate advocates remain laser -focused, however, on the necessity of reducing passenger car and pickup truck VMT - even for electric vehicles. Their favored solution: high density housing (which costs 3-7 times more to build than starter homes and duplexes), near a high frequency fixed route public transit stop. As the CARB Board's own nationally -renowned transportation scholar, Dr. Sperling of UC Davis, reported during the Board's July 24, 2022 meeting to consider the draft Scoping Plan: "So I appreciate all of the enthusiasm for reducing VMT. Ain't going to happen. It's failed and it's going to continue to fail." UCLA's transportation scholars report the same conclusion in much more detail: Transit patronage plunged staggeringly, from 50% to as much as 94%, during the first half of 2020 amidst the worst global pandemic in a century. But transit's troubles in California date much earlier. From 2014 to 2018, California lost more than 165 million annual boardings, a drop of over 11%. httl2s://www.ucits.org/research-project/2018-04/ UCLA's studies also debunks several transit theories: transit ridership decreased the most for low income workers who switched to cars, and neither changes in fuel costs, increased transit services, stable transit fares, and the emergence of car share services like Uber and Lyft have a significant influence on transit ridership. https://caltransit.org/news- bublications /publications /transit-california/transit-california-archives /2019- editions /may/ridership-study-revisited/ Requiring employers to restrict employee vehicular use has been prohibited by the Legislature, but this and all other specific laws have been sideswiped by CEQA's VMT impact regime in CEQA lawsuits. As Senator Weiner explained during 2022 testimony on a 2020 lawsuit to reduce enrollment at UC Berkeley, CEQA is "the law that swallowed all other laws" in California - including this one. The VMT CEQA burden on housing is no less challenging. Requiring new housing projects that are unable to meet even one-half (15%) of CARB's latest (22% of total VMT, consisting of 30% of passenger vehicle VMT) VMT reduction mandate has made housing economically infeasible. Under OPR's "guidance" the "mitigation" for VMT "impacts" has meant adding public transit system fees to new housing production costs that effectively require residents of new housing with the obligation to subsidize public transit for someone else, somewhere else - a speculative (at best) outcome in an era of declining transit ridership. Legally, CEQA mitigation measures also need to be verifiable and enforceable - but nobody has figured out how to tie a $100,000 VMT CEQA mitigation fee for each condo built on a former golf course more than 1 /2 mile from high frequency fixed route public transit in San Diego County to a verified reduction of VMT somewhere by someone for each of the next 30 years. For example, OPR's VMT CEQA "guidance" - which anti -housing litigants in San Diego successfully demanded in a 2020 anti -housing lawsuit must be enforced as a CEQA mandate not simply a "guidance"- imposed fees of hundreds of thousands of dollars for each housing unit, even for a higher density housing project that had been lauded as a sustainable project; under OPR's "guidance," VMT fees grew to over a million dollars in fees per home for other pending projects. These homes were of course never built. San Diego County built just 27.9% of its Fifth Cycle RHNA median income homes (affordable to households earning about $80,000), and 40.8% of the homes needed for households making above $80,000. https://www.hcd.ca.gov/apr-data- dashboard-and-downloads. San Diego county also produced deed -restricted, and income -restricted, low income homes - but chronic failure to produce enough new housing constrains homeownership and move -up housing opportunities, and increases housing costs. As CARB itself acknowledges, CEQA lawsuits now routinely allege VMT violations, as well as GHG violations - and as our one-year snapshot of 2020 CEQA lawsuits shows, almost 50,000 housing units were challenged with anti -housing CEQA lawsuits - and thousands more were blocked in CEQA lawsuits challenging upzoning in existing communities to allow more housing, including near transit. As the Second Appellate District concluded in rejecting a more recent CEQA lawsuit to block 34 homes on an infill parcel next to Tiburon (Marin County), after reciting a staggering multi - decade history of CEQA-inspired obstructionism, delays and litigation abuse, "something is very wrong with this picture." https://www.hklaw.com/en/insights/publications/2022/05/california- court-decries-ceaa-abuse The outcome of this CEQA-inspired decadal torture fest was not, as is often the case, any new housing. Rich donors just met the landowners' purchase price, and will slap on a conservation easement to block the 34 new homes in perpetuity, adding to Marin County's roster of 90+% land on which it is illegal to build housing. Conclusion. In 2015, Justice Chin confidently said that CEQA was not intended as a population control statute. However, using CEQA lawsuits to block housing, coupled with OPR/CARB's inchoate and infeasible GHG and VMT CEQA prescriptions to be applied to each housing unit, continue to making housing too scarce - and too expensive. The result: CEQA has indeed become a population control (aka reduction) statute. California is losing people, and the people being expelled are our families, our kids and grandkids, our favorite young teacher, our most compassionate nurse, our lifeline electricians and carpenters, our first responders, and our future caregivers (unless, like the Japanese, we try to rely on robots to care for the aging Boomer CEQA protectorate https://www.latimes.com/world-nation/story/2019-07-25/desperate-for-workers- aging-japan-turns-to-robots-for-healthcare ). Our team will complete the remaining two years of our 2019-2021 CEQA lawsuit data, but we have no expectation that the pattern of anti -housing CEQA lawsuits - or CEQA lawsuits challenging new infrastructure and resiliency projects - will change. CEQA favors legacy residents and special interests with wealth, power, or both. California's hard-working families continue to fall victim to CEQA lawsuits filed "in the name of the environment." Received after Agenda Printed September 13, 2022 Item No. 18 From: Rieff, Kim To: Mulvey. Jennifer Subject: FW: Comments on Circulation Element Update Date: September 12, 2022 11:12:38 AM From: dave@earsi.com <dave@earsi.com> Sent: September 12, 2022 11:09 AM To: CDD <CDD@newportbeachca.gov> Cc: Dept - City Council <CityCouncil@newportbeachca.gov> Subject: Comments on Circulation Element Update [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Im Thank you for this opportunity to comment on the Draft Circulation Element Update August 16, 2022. In order for the public to provide meaningful comment please post the following on the City's website: • the detailed "project description" used for the Draft Circulation Element Update. • all technical studies used to update the Draft Circulation Element and clarify any assumption used in these studies. • the environmental impact analysis conducted for the Draft Circulation Element Update. In so doing, please acknowledge if the Draft Circulation Element Update is subject to CEQA and if so, what type of CEQA document was prepared or is going to be prepared. • the consistency analysis between Draft Circulation Element Update, the Housing Element Update, Land Use Element Update and any other General Plan Element updates required to implement the Housing Element Update. • the Municipal Code Amendment required to implement the Housing Element Update with an explanation how the Code amendment will or will not impact the Draft Circulation Element Update. (for example will the Municipal Code Amendment place a cap on allowable development and if so what is that cap). Feel free to contact me directly if you have any questions. Respectfully, David J. Tanner 223 62nd Street Newport Beach, CA 92663 949 233-0895 cell Notice of Confidentiality: This e-mail and any attachments thereto, is intended only for use by the address(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me by e-mail by replying to this message and permanently delete the original and any copy of any email and any printout thereof. Received after Agenda Printed September 13, 2022 Item No. 18 From: City Clerk"s Office To: Mulvey, Jennifer; Rieff, Kim Subject: FW: 9-13-22 Housing Element Update CC hearing Date: September 09, 2022 3:13:35 PM Attachments: 9-6-22 GP Update Comments .pdf From: dave@earsi.com <dave@earsi.com> Sent: Friday, September 9, 2022 3:13:01 PM (UTC-08:00) Pacific Time (US & Canada) To: City Clerk's Office <CityClerk@newportbeachca.gov> Cc: Jurjis, Seimone <sjurjis@newportbeachca.gov>; Harp, Aaron <aharp@newportbeachca.gov> Subject: FW: 9-13-22 Housing Element Update CC hearing [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. W Please add the attached comments to the public agenda ASAP. Item 18 Resolution No. 2022-60: Amending and Re -Adopting the 2021-2029 6th Cycle Housing Element Since the City Clerk was unaware of this communication, please make sure the people this email was sent to and those CC'ed have received a copy of this email. (See email below for list) What was the noticed public comment period for this Item? Thank you, David J. Tanner 223 62nd Street Newport Beach, CA 92663 949 233-0895 cell Notice of Confidentiality: This e-mail and any attachments thereto, is intended only for use by the address(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me by e-mail by replying to this message and permanently delete the original and any copy of any email and any printout thereof. From: dave@earsi.com <dave@earsi.com> Sent: Tuesday, September 06, 2022 8:04 AM To: 'citycouncil@newportbeachca.gov'<citycouncil@newportbeachca.gov> Cc: Aaron C. Harp (aharp@newportbeachca.gov) <aharp@newportbeachca.gov>; Seimone Jurjis (sjurjis@newportbeachca.gov) <sjurjis@newportbeachca.gov>; (jcampbell@newportbeachca.gov) <jcampbell@newportbeachca.gov>;'Zdeba, Benjamin' <bzdeba@newportbeachca.gov> Subject: RE: 9-13-22 Housing Element Update CC hearing Mayor Muldoon, Member of the City Council, Please replace the letter titled 9-5-22 GP Update Comments with the attached letter titled 9-6-22 GP Update Comments. I found a few typos I wanted to fix. Thanks, Dave David J. Tanner 223 62nd Street Newport Beach, CA 92663 949 233-0895 cell Notice of Confidentiality: This e-mail and any attachments thereto, is intended only for use by the address(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me by e-mail by replying to this message and permanently delete the original and any copy of any email and any printout thereof. From: dave(@earsi.com <dave(@earsi.com> Sent: Monday, September 05, 2022 1:42 PM To:'citycouncil@newportbeachca.gov'<citycouncilPnewportbeachca.gov> Cc: Aaron C. Harp (aharp(@newportbeachca.gov) <aharp(@newportbeachca.gov>; Seimone Jurjis (siuriisna newportbeachca.gov) <sjurjis(@newportbeachca.gov>; (icampbellPnewportbeachca.gov) <jcampbellCcDnewportbeachca.gov>;'Zdeba, Benjamin' <bzdebaPnewportbeachca.gov> Subject: 9-13-22 Housing Element Update CC hearing Mayor Muldoon, Member of the City Council, Attached are my thoughts and recommendation for your 9-13-2022 scheduled hearing on the Housing Element Update, its method of CEQA compliance and the greater General Plan Update process leading to a vote of the electorate. Feel free to contact me if you have questions. David J. Tanner 223 62nd Street Newport Beach, CA 92663 949 233-0895 cell Notice of Confidentiality: This e-mail and any attachments thereto, is intended only for use by the address(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me by e-mail by replying to this message and permanently delete the original and any copy of any email and any printout thereof. September 6, 2022 Kevin Muldoon, Mayor Members of the City Council City of Newport Beach Subject: Housing Element Update/General Plan Update Mr. Muldoon, Members of the City Council, On September 13th the City Council will be asked by staff to approve the 6th Cycle Housing Element Update. The City of Newport Beach has been working diligently since 2019 to this end. In many respects the City of Newport Beach is like many other local governments who are finding it difficult if not impossible to meet their state imposed Regional Housing Needs Assessment (RHNA) in compliance with the state mandated conditions. Local governments like the City of Newport are having to take steps they would not have otherwise taken to obtain state Housing and Community Development (HCD) approval of their Housing Element Update. The City of Newport Beach has reached a point where HCD staff has approved the latest revisions proposed by City staff to the previous Council approved 6th Cycle Housing Element Update. The City is required to approve the Housing Element Update and then submit the adopted Housing Element Update to HCD for their final approval. HCD's tentative approval of the Housing Element Update commits among other things, the City to rezone at least 436 acres by October 2024, permit multifamily uses without discretionary action and require a minimum density of 20 units per acre to address the identified shortfall of 2,707 units! It's my understanding implementation of the Housing Element Update will require updates to a number of other General Plan Elements, require a Municipal Code amendment, Local Coastal Plan (LCP) amendment and approval by the Airport Land Use Commission. Ultimately, approval or denial of the larger General Plan Update Project will be determined by a vote of the electorate, pursuant to City Charter Section 423. Now is the appropriate time for the City Council to review and re-evaluate their prior approval of the 6th Cycle Housing Element Update in light of current circumstances which have changed since the City Council's approval of the Housing Element Update in February 2022. It is an appropriate time to hold a public hearing/workshop to learn the current situation facing the City of Newport Beach, to allow the public to ask questions of staff, the City Attorney and importantly, receive answers; and then provide input on the options the City of Newport Beach has as it moves forward to implement the 6th Cycle Housing Element. I offer the following thoughts and recommendations: 1) California Environmental Quality Act (CEQA) Compliance Per SB 197, in HCD's August 24th letter to the City of Newport Beach, HCD appears willing to grant the City of Newport Beach a 3-year extension (until October 2024) to complete the re -zoning required to implement the Housing Element Update. In my opinion the time extension gives the City of Newport Beach the ability to consider other options for satisfying CEQA. Options that reduce the threat of CEQA litigation, better identify and mitigate potential significant environmental effects and better inform the public about the project's environmental effects. Please consider the following. 'August 24, 2022 Lett from HCD hgpss://www.nemMortbeachca.aov/home/shomTublisheddocument/72201/637970169218800000 Page 1 of 12 An interim report released in August 2022 found that in 2020 anti -housing CEQA lawsuits targeted more than half of California's annual housing production. As of August 2022, the report's authors see no indication of a change in the increasing trend for CEQA litigation targeting housing production. The legislature when enacting CEQA did not intend CEQA to be used as a statute to control growth. Attorney and California Senator Scott Weiner, (a pro -growth, pro in -fill affordable housing advocate) has called CEQA the "law that swallowed California. ,3 CEQA has changed, it favors legacy residents and special interests with wealth, power, or both. Relying on compliance with the applicable laws and regulations may be sufficient, however "figuring it out later" as to whether mitigation will be necessary — and if so, whether it will be feasible and meets the targeted reduction — is not likely going to be a defensible approach. Given the increasing risk of CEQA litigation involving new housing production, it is imperative the City of Newport Beach fully comply with CEQA. Consider the City of San Diego's CEQA approach to update their 6th Cycle Housing Element. Take into consideration that the City of San Diego's portion of the county's RHNA target for the 2021-2029 Housing Element period is 108,036 homes (over 20 times larger than Newport Beach's 6th Cycle RHNA allocation). The City of San Diego determined their Housing Element Update is a "project" subject to CEQA, determining an Addendum to the prior General Plan EIR was the appropriate CEQA document for their 2021-2029 Housing Element Update.4 Unlike the City of Newport Beach, the City of San Diego determined the Housing Element Update did not qualify for a CEQA exemption and therefore, the project description analyzed in their CEQA document needed to address the "whole of the action". In my experience, the City of San Diego's CEQA determination is the industry standard, not the exception. The State office of Environmental Planning (OPR) identifies "Key CEQA Policies to Remember" when preparing/updating a general plan. The first policy is that "CEQA should be integrated into planning processes and guide development of the plan itself." and "The purpose of preparing an environmental analysis is not only to inform decision -makers and the public of a general plan's potential adverse environmental impacts, but also to allow environmental considerations to influence the design of the plan itself. To accomplish this purpose, the CEQA analysis should be prepared in coordination with the development of the general plan." To the dismay of the electorate, the City of Newport Beach has done the opposite by exempting the Housing Element Update from CEQA and in the manner it was done, from a vote of the electorate per City Charter Section 423. City staff and the City Council said the States requirements for submittal of a Housing Element Update did not allow the City time for the City to complete a CEQA document for the entire General Plan Update without significant penalties to the City. They had no choice. SB 197, took effect on June 30, 2022, as part of the State's 2022-23 budget package. Now, cities will have 3 years and 120 days from the applicable housing element adoption deadline to complete required rezoning when certain conditions are met. Nearly 200 cities and counties across Southern California that failed to meet a state deadline to rezone land for housing have been granted a three-year extension. z August 2022 Interim report by Holland & Knight's Jennifer Hernandez, published by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units — approximately half the state's total annual housing production — in 2020 alone. Link: hLtl2s://www.cegadevelopments.coMLwj2-conteLt/uploads/sites/166/2022/08/here-l.pdf 3 hops://www.youtLibe.com/watch?v=IuZFhpwFtS8 4 Source: hops://www.sandiego.aov/sites/default/files/addendum_to the general plan heir_for the housing element update 2021- 2029.pdf Page 2 of 12 HCD in their August 24th letter to the City of Newport Beach appears willing to grant the City of Newport Beach a 3-year extension (until October 2024) to complete the re -zoning required to implement the Housing Element Update. In my opinion the time extension gives the City of Newport Beach the ability to consider other options for satisfying CEQA. Options that reduce the threat of CEQA litigation; better identify and mitigate potential significant adverse environmental effects; and better inform the public on the project's environmental effects. CEQA re-evaluation - Based on HCD's August 24, 2022 letter to the City of Newport Beach and current circumstances, the City should conclude the Housing Element Update does not qualify for a CEQA exemption and direct staff to conduct a CEQA Initial Study to determine the appropriate type of CEQA documentation for the Project based on the City's General Plan and Municipal Code's ability to incorporate the added density required by the City's RHNA allocation, HCD's requirements and conditions for implementation of the Housing Element Update and legislation permitting regulatory streamlining of housing, as well as proposed increases in commercial/retail square footage to compensate for the increase in residential density. One example: HCD's August 24, 2022 letter to Newport Beach states: "The element now identifies adequate sites to accommodate the City's regional housing need for lower -income households demonstrated by Policy Actions I through 1G. This program commits to rezone at least 436 acres by October 2024, permit multifamily uses without discretionary action and require a minimum density of 20 units per acre to address the identified shortfall of 2,707 units." This statement is also one of many that directly link the Housing Element Update to the Land Use, Circulation, Conservation, Noise and Safety Elements, the Municipal Code and LCP which do not have the existing capacity to accommodate the City's RHNA requirement, let alone increases in commercial/retail square footage proposed. City staff acknowledges the linkage between the Housing Element Update, need to update the Land Use Element, Circulation Element and prepare a Municipal Code Amendment and is proposing the increase in commercial/retail square footage. Claiming a CEQA exemption for the Housing Element Update and processing the Housing Element Update independently from the discretionary actions required to implement the Housing Element fundamentally violates CEQA's definition of a project.5 "A 'project" is defined as a "whole action" subject to a public agency's discretionary funding or approval that has the potential to either (1) cause a direct physical change in the environment or (2) cause a reasonably foreseeable indirect physical change in the environment. " If the City moves forward with the CEQA exemption this action will become a beacon for litigants composed NIMBYs, bounty hunters (lawyers seeking quick cash settlements), economic competitors, and labor unions. Not to mention, the Housing Element Update approved using a CEQA exemption will not be part of the General Plan Update Project presented to the electorate pursuant to City Charter Section 423! 5 State office of Planning & Research, CEQA 101 htips://opr.ca. og v/ceqa/docs/20210809-CEQA 101.pdf Page 3 of 12 One last consideration on this topic. The City of Newport Beach has determined that a Program EIR will be prepared for the Land Use Element Update, Circulation Element Update and Municipal Code Amendment which are all discretionary actions triggered by the requirement to implement the Housing Element Update. The determination by the City of Newport Beach to prepare a Program EIR in satisfaction of CEQA by definition mean the City recognizes these discretionary actions have the potential to result in one or more significant adverse impacts on the environment. The state Office of Planning and Research (OPR) maintains General Plan Guidelines and Technical Advisories. OPR is required by Government Code Section 65040.2 to adopt and periodically revise the State General Plan Guidelines (GPG) for the preparation and content of general plans for all cities and counties in California. The GPG serves as the "how to" resource for drafting a general plan.6 OPR states: "The city or county cannot approve the general plan unless the approved plan will not result in a significant effect on the environment or, more commonly, the city or county has eliminated or substantially lessened all significant effects where feasible and made a written statement of overriding considerations explaining the reasons why any remaining unavoidable significant effects are acceptable (Id. at §§ 15092, 15093)." The courts had found that significant impact determinations and formulation of mitigation measures must occur before project approval.' The City of Newport Beach and its electorate has no way of knowing prior to certification of the Program EIR (2023/4) what the potentially significant adverse environmental impacts will be from the Housing Element Update's new policies and RHNA allocation on the environment. Therefore, the City and electorate has no way of eliminating or substantially lessening all significant effects where feasible prior to the time of Housing Element Update approval. For example: Housing Element Update Appendix B, Table B-1 "Summary of RHNA Status and Sites Inventory" lists the "Airport Area Environs Area rezone" and the "Banning Ranch Rezone". What are the potentially significant impacts from rezoning these areas for residential/mixed-use? I can easily identify a number of potentially significant impacts: housing within areas subjected to higher than allowable noise levels, air quality, public safety, impacts to endangered species, impacts to waters of the US/State, impacts to coastal resources? What steps are being taken to reduce and mitigate impacts? CEQA calls for environmental review of discretionary projects at the earliest meaningful stage, to serve its purposes of public participation and informed decision -making. The basic idea is simple: analyze and shape the project to reduce or avoid environmental impacts before deciding to approve it. CEQA's mandates that significant environmental impacts and feasible mitigation measures be meaningfully analyzed prior to project approval. The practical reality is that the full extent of project impacts and precise details of needed mitigation frequently cannot be known until post -approval stages of project development. In this case, the City of Newport Beach does not recognize any potentially significant impacts linked to the Housing Element Update and is improperly exempting the Housing Element Update from CEQA. The City is electing to "defer" the CEQ review to the Program EIR to be prepared for the Land Use Element Update, Circulation Element Update and Municipal Code Amendment (up -zoning). 'Source: https://www.opr.ca.gov/plannina/ eg ncral_plan/guidelines.html ' Source: Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884 Page 4 of 12 Furthermore, the Housing Element Update is not a part of the Program EIR or the planned Supplement to the Program EIR to be prepared for the discretionary actions needed to implement the Housing Element Update. At best, the Housing Element Update will be referenced in these documents. There has been no opportunity to use CEQA to analyze and shape the Housing Element Update to reduce or avoid potentially significant environmental impacts before deciding to approve it. An additional problem in this case is a Program EIR will not go into the level of specificity necessary to identify site specific impacts. Future individual site development projects will rely on the Program EIR for their CEQA compliance, or rely upon state law and/or the Housing Element Update program which will "permit multifamily uses without discretionary action".8 The City must establish with assurance that any "deferred" mitigation will be feasible and effective to meet identified performance standards. Given the current circumstances I recommend the following: • An Alternative Approach — If the City Council desires to approve the Housing Element Update, the City Council approves the Housing Element Update solely for the purpose of obtaining HCD approval, without making a CEQA finding. The City then submits the City approved Housing Element to HCD for HCD's final approval. The City lets HCD know the Housing Element Update will be included in the Program EIR for the greater project, and that while the City does not anticipate any changes, if necessary, the City will resubmit the Housing Element Update for HCD approval following rezoning. Among its advantages, this process will eliminate the potential for CEQA litigation on the Housing Element Update and allow the "whole of the action" to be analyzed as intended by CEQA. HCD could say no, but given the number of other cities and county having similar time constraints meeting HCD deadlines; the preliminary approval HCD granted the City's Housing Element Update; their willingness to provide a 3-year extension to complete the required rezoning (more than enough time to complete the CEQA document) combined with the heightened risk of CEQA litigation, I believe HCD will not object to the City's determination. 2) Scope of Additional CEQA Analysis City Staff is proposing to prepare the following: a) A Program EIR - City staff stated they are preparing a Program EIR to address primarily the Land Use Element Update, Circulation Element Update and Municipal Code Amendment required to implement the Housing Element Update; and then prepare b) A Supplemental CEQA document - Following preparation of the Program EIR, staff stated they intend to prepare an additional CEQA document (supplement to the Program EIR) to analyze the remaining documents required to implement the Housing Element Update. The City's CEQA process is a classic case of "Piecemealing". The CEQA Guidelines define a project under CEQA as "the whole of the action" that may result either directly or indirectly in physical changes to the environment". This broad definition is intended to provide the maximum protection of the environment. CEQA's general proposition is that "an agency may not improperly split a project into separate segments to avoid consideration of the cumulative impacts of the project". 8 Source: August 24, 2022 HCD letter to the City of Newport Beach Page 5 of 12 CEQA provides the following explanation of Piecemealing: 9 Piecemealing or segmenting means dividing a project into two or more pieces and evaluating each piece in a separate environmental document, rather than evaluating the whole of the project in one environmental document. This is explicitly forbidden by CEQA, because dividing a project into a number of pieces would allow a Lead Agency to minimize the apparent environmental impacts of a project by evaluating individual pieces separately, each of which may have a less than -significant impact on the environment, but which together may result in a significant impact. Segmenting a project may also hinder developing comprehensive mitigation strategies. The discretionary actions which the Program EIR and Supplement to the Program EIR analyze are not independent of the others. The analysis of the Land Use Element Update, Circulation Element Update and Municipal Code Amendment are a "first step toward" implementation of the Housing Element Update. The Housing Element Update legally compels the discretionary actions addressed by the Program EIR and Supplement to the Program EIR. One can "practically presume" the completion of other actions "cannot be implemented independently." By dividing the Project into pieces, the CEQA analysis is divided into pieces, and the cumulative adverse environmental impacts of the pieces are less than the whole of the Project and fail to provide the maximum protection of the environment, let alone adequately inform the public. If the City moves forward with a piecemeal approach to satisfy CEQA, this action will become an even brighter beacon attracting litigants composed of NIMBYs, bounty hunters (lawyers seeking quick cash settlements), economic competitors, and labor unions. Not to mention, the City's CEQA approach will fail to fully inform the public on the true magnitude of the Project's negative environmental effects. This deliberate approach will influence the vote of the electorate on the General Plan Update Project required by City Charter Section 423. The electorate will be deliberately led by the City of Newport Beach to believe the Project will have reduced adverse effects on the environmental and their quality of life. Using the City of San Diego again as an example, the City of San Diego prepared a Program EIR for their last General Plan Update which included their Housing Element. Below is the City of San Diego's view of the relationship between CEQA and the General Plan.10 In my experience, this characterization is typical throughout the industry. "Pursuant to Section 15060 (d) of the California Environmental Quality Act (CEQA), the Environmental Analysis Section (EAS) of the City's Development Services Development has determined that the proposed project may have significant effects on the environment, and the preparation of an Environmental Impact Report (EIR) is required. Staff has determined that a program EIR (PEIR) is the appropriate environmental document for this project because the General Plan Update can be characterized as one large project that governs the interconnected and continued planning of the entire City." The state of California mandates the inclusion of seven general plan elements: land use, circulation, housing (updated every five years), conservation, open space, noise, and safety. The state describes these elements (as does the City of Newport Beach in its General Plan) as interrelated and of equal status, each of the elements is 9 Source: h!Ws:HcegUortal.org/tl2/CEQA%20Proiect%20Descpiption%202020%20Update.pdf 10 Source: Scope of Work for a Program Environmental Impact Report (PEIR) for the General Plan Update (Project No. 104495) (page 12 of 64) hM2s://www.sandie2o.2ov/sites/default/files/legacy/nlannin2/2eUlan/pdf/peir/Vpendixa.pdf Page 6 of 12 an integral part of the General Plan. The City of San Diego, local and regional governments throughout the state use this characterization to describe the relationship between CEQA and the General Plan. A city's general plan is a citywide comprehensive internally consistent policy -level document. As proposed, the City of Newport Beach's Housing Element Update, will be independent from the other general plan elements and will require future discretionary actions for its implementation. The future actions include, but are not limited to the adoption/approval of the following: a) Updates to the land use, circulation, conservation, open space, and safety elements; b) The creation of an environmental justice element; c) A Municipal Code amendment; d) A Local Coastal Plan (LCP) amendment; and e) An Airport Land Use Commission (APLUC) approval The scope of the Program EIR must be at a level of detail to adequately address the potential adverse impacts to the environment from these actions. A general plan for which an EIR is prepared is considered a project of statewide, regional, or areawide significance (CEQA Guidelines § 15206). This means that the lead agency must conduct at least one scoping meeting and the EIR must be circulated through the State Clearinghouse for review by relevant state agencies. In addition, the city or county must consult with transportation planning agencies during the development of the general plan and EIR (Id. at § 15086(a)(5)). In addition to the above, the City of Newport Beach should work with the County of Orange, surrounding and nearby cities and agencies to integrate their RHNA infrastructure improvements into the City's General Plan Update and evaluate the feasibility of placing multifamily residential units in areas subject to moderate/high noise levels, potential air quality and safety impacts associated with the operation of John Wayne Airport. Given the current circumstances I recommend the following: For CEQA compliance, the City of Newport Beach includes the Housing Element Update as part of the greater General Plan Update, Municipal Code amendment, LCP amendment, etc. Project (the "whole of the action") and prepare an Environmental Impact Report (EIR) for that project description (The City of Newport Beach prepares only one EIR for the greater project, not a Program EIR and a later Supplement to the Program EIR.) Because the level of detail will not be site specific at the time of the EIR preparation, the City rely upon broad mitigation measures/programs tied to the issuance of building permits (a non -discretionary action) to insure all potential significant adverse environmental effects are mitigated to a level of less that significant, or if this is infeasible, conclude the project has the potential to result in one or more significant adverse unavoidable environmental effects, and explain the reasons why any unavoidable significant effects are acceptable. The City certify the CEQA document for the General Plan Update Project; then consider approval or denial of the General Plan Update Project; and if approved, place the General Plan Update Project before the electorate for a vote pursuant to City Charter Section 423. 3) The Housing Element Update — Commitments and CEQA Review The August 24t" HCD letter to the City of Newport Beach states: "This program commits to rezone at least 436 acres by October 2024, permit multifamily uses without discretionary action and require a minimum density of 20 units per acre to address the identified shortfall of 2,707 units." Page 7 of 12 The Program EIR for the General Plan Update Project must clearly identify whether the Program EIR will be used to approve subsequent development and other discretionary actions without further CEQA review. CEQA and the courts provide the following guidance: The general plan EIR need not be as detailed as an EIR for the specific projects that will follow (CEQA Guidelines § 15146). Its level of detail should reflect the level contained in the plan or plan element being considered (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.AppAth 351). However, the lead agency cannot defer its analysis of any significant effect of the general plan to later -tiered EIRs (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.AppAth 182). "With a good and detailed analysis of the [general plan], many subsequent activities could be found to be within the scope of the project described in the [general plan] EIR, and no further environmental documents would be required." (CEQA Guidelines § 15168(c)(5); see also id. at § 15183.3 (streamlining for infill projects)). The Housing Element Update is committing the City of Newport Beach to "permit multifamily uses without discretionary action". Therefore, the Program EIR must describe to the maximum extent feasible the location, size and intensity of any such potential project, as well as each project's potentially adverse impacts on the environment, feasible mitigation measures and identify any unavoidable adverse environmental effects because there will be no further discretionary action for multifamily projects. When a new general plan or a revision is being considered, the EIR must evaluate the proposed plans or revision's effects on both the existing physical environment and the environment envisioned by any adopted plan (Environmental Planning and Information Council v. County of El Dorado (1982) 131 Cal.App.3d 354; see also CEQA Guidelines § 15125(e)). The program EIR prepared for a general plan examines broad policy alternatives, considers the cumulative effects and alternatives to later individual activities where known, and contains plan -level mitigation measures. Later activities that have been described adequately under the program EIR will not require additional environmental documents (CEQA Guidelines § 15168(c)(2)). When necessary, new environmental documents, such as a subsequent or supplemental EIR or a negative declaration, will focus on the project - specific impacts of later activities, filling in the information and analysis missing from the program EIR (Id. at subd. (d)). The "project" being examined in the program EIR is the general plan, element, or revision. The CEQA Guidelines recommend that program EIRs deal with the potential effects of a general plan, element, or revision "as specifically and comprehensively as possible." The program EIR's level of detail should be commensurate with the level of detail contained in the general plan or element (See Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.AppAth 351). In order to have an adequate CEQA analysis the existing regulatory setting, as well as, each alternative analyzed in the Program EIR should integrate state housing incentives/legislation and the regional RHNA allocation for the 2021-2029 planning period for the Program EIR's background land use and circulation assumptions. Page 8 of 12 An adequate CEQA analysis will be difficult if not impossible, because at the time the General Plan Project Program EIR and its Supplemental EIR will be certified, the City of Newport Beach will not have specific project plans to evaluate site specific impacts, and once the Housing Element Update is approved, the City of Newport Beach must "permit multifamily uses without discretionary action." In their August 24th letter to the City of Newport Beach, HCD appears willing to grant Newport Beach a 3- year extension (until October 2024) to complete the re -zoning required to implement the Housing Element Update. In my opinion the time extension gives the City of Newport Beach the ability to consider other options for satisfying CEQA. Options that reduce the threat of CEQA litigation, better identify and mitigate potential significant adverse environmental effects and better inform the public on the project's environmental effects. Given the current circumstances I recommend the following: • The City Council instruct staff to prepare a comprehensive report on the level of detail anticipate in the Program EIR and its supplement, and measure to address the potential significant adverse impacts from potential development of multifamily uses without discretionary action. The City Council hold a public hearing/workshop where staff explains their findings, taking questions from the Council/public and providing answers. • The City Council instruct the City Attorney to prepare a comprehensive report explaining the meaning of HCD's statement "permit multifamily uses without discretionary action". The City Council hold a public hearing/workshop where the City Attorney explains his findings, takes questions from the Council/public and providing answers. The report include the types of projects this will include (mixed use, a separate retail commercial project linked to a multifamily project, levels of affordability, etc.) the number of dwelling units that could be built, their locations throughout the city, the additional development incentives these projects could be entitled to by statute (density bonus, height and building setback variances, on -site parking reductions, reduction in mitigation fees), the time period which HCD's language will be in effect, and if the City has any unmet housing requirements at the end of this Housing Element planning cycle (2029), will these unmet housing requirements be carried forward into the next Housing Element planning cycle. The report should include a description of legislation that could permit multifamily uses without discretionary action. (Examples: SB 35 applies in jurisdictions that do not issue enough permits as pro- rated by HCD or did not submit an annual progress report. SB 35 provides streamlining for proposed developments with > 50% affordability. AB 2011 the Affordable Housing and High Road Jobs Act of 2022 (approved August 2022) defines "use by right" as a development project that is not a project for purposes of CEQA; authorizes a development proponent to submit an application for a multifamily housing development that is subject to a streamlined, ministerial approval process; and not subject to a conditional use permit if the development satisfies specified objective planning standards. This bill would make its provisions operative on July 1, 2023.) The report should explain the effect of legislation on the timing for the City to approve the required rezoning. (Examples: AB 1398 and SB 197) The report should explain state sanctions local governments face if they do not comply with Housing law and how these sanctions could potentially impact the City. Importantly, examples of sanctions imposed on other local governments should be cited and the circumstances which led to those sanctions characterized. Page 9 of 12 If the City of Newport Beach is required to permit multifamily uses without discretionary action, the City of Newport Beach should develop a strategy to mitigate potential adverse impacts. The strategy should be developed with input from the electorate. Now is an appropriate time to hold a public hearing/workshop to identify the current situation and allow the public to ask questions of staff and the City Attorney, and importantly, receive answers prior to providing input on the path forward. 4) Ability of the City to meet its RHNA allocation The Housing Element Update commits the City of Newport Beach to meet its RHNA allocation by 2029. The state threatens significant sanctions if local governments do not meet their RHNA requirement. Circumstances have changed since 2019. California is experiencing a housing slowdown. Many believe the economy is in or about to enter a recession. Interest rates are increasing significantly. The costs of real estate and construction are high. The current number of housing units being constructed is below state expectations. To meet the affordability requirements, City staff is estimating 8,174 units will need to be built, requiring rezoning of 436 acres or 9,649 units and an additional 527 acres including the scenario with Banning Ranch Rezone. It appears apparent to everyone the City of Newport Beach is not going to be able to meet its RHNA requirements by the 2029 deadline through no fault of the City (many local governments are facing the same dilemma). Yet staff is asking the City Council to approve the Housing Element Update. Why? The public deserves an explanation why the City of Newport Beach is considering entering into a binding agreement with the state it appears the City of Newport Beach cannot meet. Perhaps the City believes additional accommodations will be reached over time with HCD or new legislation will be passed. 5) Banning Ranch — General Plan Amendment and Up -zoning HCD in their August 24th letter to the City of Newport Beach does not recognize the Banning Ranch Focus Area as an eligible site to accommodate the City's 6th Cycle Housing Element RHNA allocation (said another way, up -zoning of the Banning Ranch property is not required for HCD approval of the Housing Element Update)". Yet, the Housing Element Update includes up -zoning of the Banning Ranch.12 Housing Element Update, Appendix B states: "Units assigned to the Banning Ranch Focus Area are not used to accommodate any portion of the 6th cycle RHNA; however, to the extent the City is successful in creating housing opportunities at Banning Ranch, those opportunities may be used to satisfy a portion of the City's 6th cycle RHNA need." Including the Banning Ranch in the Housing Element Update will negatively impact the efforts for conservation. Funding for acquisition, the involvement of organizations and agencies have specific conditions tied to their involvement, approvals and funding. Up -zoning for any type of residential use/residential village is not allowed. Why is the City including the Banning Ranch property in the Housing Element Update? The City of Newport Beach owes the public and affected conservation organizations an explanation! ii Source: Housing Element Update, Appendix B, page B-85 iz Housing Element Update, Section 4 Housing Plan, Appendix B Sites Analysis hM2s://www.nenortbeachca. gov/home/shonublisheddocument/72266/637975588259993 369 See: Section 2 - Adequacy of Sites to Accommodate RHNA (Page B-8 and Table B-1: Summary of RHNA Status and Sites Inventory (page B-9). Page 10 of 12 Given the current circumstances I recommend the following: • The City Council act to remove the Banning Ranch site from the Housing Element Update (not up - zone the Banning Ranch Focus Area) and amend the development policies throughout the General Plan to be consistent with conservation and open space use. Conclusion. Time is of the essence. The City Council re-evaluates their prior approval of the 6' Cycle Housing Element Update in light of current circumstances which have changed since the City Council's approval of the Housing Element Update in February 2022. The City Attorney and staff explain to the City Council and electorate the potential for development of multifamily uses without discretionary action; the effects housing legislation could have on the City of Newport Beach; and what steps the City of Newport Beach has available to address the potential significant adverse impacts to the City of Newport Beach and the quality of life of the electorate. If the City of Newport Beach is required to permit multifamily uses without discretionary action, the City of Newport Beach should develop a strategy to mitigate potential adverse impacts. The strategy should be developed with input from the electorate. Now is an appropriate time to hold a public hearing/workshop to learn the current situation facing the City of Newport Beach; to allow the public to ask questions of staff, the City Attorney, and importantly, receive answers; and provide input on the options the City of Newport Beach has as it moves forward to implement the 6tn Cycle Housing Element. The City Council act to remove the Banning Ranch site from the Housing Element Update (not up -zone the Banning Ranch Focus Area) and amend the development policies throughout the General Plan to be consistent with conservation and open space use. Give the increasing risk of CEQA litigation involving new housing production, it is imperative Newport Beach fully complies with CEQA. The City Council ensure the level of CEQA analysis and mitigation anticipates site specific development. HCD appears willing to grant the City of Newport Beach a 3-year extension (until October 2024) to complete the re -zoning required to implement the Housing Element Update. In my opinion the time extension gives the City of Newport Beach the ability to consider other options for satisfying CEQA. Options that reduce the increasing threat of CEQA litigation, better identify and mitigate potential significant environmental effects and better inform the public on the project's environmental effects. If the City Council desires to approve the Housing Element Update, the City Council qpprove the Housing Element Update solely for the purpose of obtaining HCD approval, without making a CEQA finding. For CEQA compliance, the City of Newport Beach includes the Housing Element Update as part of the greater General Plan Update, Municipal Code amendment, LCP amendment, etc. Project (the "whole of the action") and prepare an Environmental Impact Report (EIR) for that project description. Page 11 of 12 The City Council instruct staff to present the "whole of the project" to the voters as required by City Charter Section 423. Not a Project excluding the Housing Element Update with piecemealed CEQA analysis which deliberately reduces the overall environmental impacts in an effort to influence the electorate. Please feel free to contact me should you have any questions. Thank you, David I Tanner 223 62nd Street Newport Beach, CA 92663 dave@earsi.com Page 12 of 12 Received after Agenda Printed September 13, 2022 Item No. 18 Providing Access to Justice September 12, 2022 City of Newport Beach City Council 100 Civic Center Drive Newport Beach, CA 92660 LAWCENTER For Orange County's Low Income Residents RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element Dear City Council, Public Law Center ("PLC") is a 501(c)(3) legal services organization that provides free civil and legal services to low-income individuals and families across Orange County. Our services range across a number of substantive areas of law, including consumer, family, immigration, housing, and health. Additionally, PLC provides legal assistance to community organizations. Further, the mission of our Housing and Homelessness Prevention Unit includes preserving and expanding affordable housing, which includes participating in the housing element update process. We write on behalf of individuals in need of affordable housing in Orange County to oppose the adoption of the City of Newport Beach's ("the City") 6th Cycle Housing Element. Although the Department of Housing and Community Development ("HCD") has recently approved the City's Housing Element, we contend that the Housing Element is inconsistent with Housing Element law, does not affirmatively further fair housing, and does not mitigate the risk of triggering No Net Loss laws.1 Our concerns are exhibited by the Tennis Club at Newport Beach project located at 1602 East Coast Highway. Background On September 8, 2022, the City's Planning Commission approved various project amendments to an existing development plan for the Tennis Club at Newport Beach .2 Located at 1602 East Coast Highway, the Tennis Club at Newport Beach comprises three sites that were identified as opportunities for additional housing development: Sites 182, 240, and 257.3 Cumulatively, these sites were deemed adequate for 100 housing units, 23 of which were assumed to be affordable to very low- and low-income households. 1 California Department of Housing and Community Development, City of Newport Beach's 6th Cycle (2021-2029) Draft Housing Element, 1 (Aug. 24, 2022). 2 City of Newport Beach, Planning Commission Staff Report, Agenda Item No. 3, Tennis Club at Newport Beach Project Amendment (PA2021-260), 1 (Sept. 8, 2022). 3 City of Newport Beach, Planning Commission Staff Report, Agenda Item No. 3, Tennis Club at Newport Beach Project Amendment (PA2021-260), 11 (Sept. 8, 2022); City of Newport Beach, 2021-2029 Housing Element, B-63, B-70, B-78 to 79 (Sept. 2022). See also Attachment 1: City of Newport Beach GIS Map of Sites. 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 p. 2 Housing Element Law A jurisdiction's housing element must include an inventory of land suitable and available for residential development, including sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality's housing need for a designated income level.4 As noted above, the City identified sites 182, 240, and 257 as suitable and available for the development of 100 residential units, including 23 very low- and low-income units.5 Additionally, the City stated the following: "The Newport Beach Tennis Club site (Map IDs. 214, 182, 240, and 257) was entitled to construct a new tennis facility, hotel accommodations and low -density housing in 2012 and 2018. The property owner is currently conducting due diligence to seek entitlements to construct a high -density housing project consisting of 350 units on a 7-acre site creating a 50 du/acre project."6 This description implies that the previous entitlements have expired and the property is available with realistic potential to be developed for high -density housing during the planning period. However, the Staff Report submitted to the City's Planning Commission in preparation for this meeting contradicts these assertions.' "On March 27, 2012, the City Council approved land use entitlements and executed a 10- year term development agreement (DA) to allow the redevelopment of the tennis club site into three distinct components," which included a tennis club, hotel, and five detached single-family residences.8 Then on June 28, 2022, the City Council approved an amendment to the DA, "which authorized the extension of the DA by one year" due to the applicant amending the project. This would mean the DA is active until March 27, 2023, presumably barring the property owner from seeking out other development opportunities. Because the City Council had knowledge of this active development agreement at the time of drafting and failed to include this project as an approved or pending project,9 the City's assertion that these sites are available for residential development during the planning period was incorrect.10 Further, claims that the property owner is preparing to seek entitlements for high -density housing and that "the current owner of the property has expressed to City staff written interest to 4 Cal. Gov. Code §65583(a)(3); Cal. Gov. Code §65583.2(a). 5 City of Newport Beach, 2021-2029 Housing Element, B-70, B-78 to 79 (Sept. 2022). See also Attachment 1: City of Newport Beach GIS Map of Sites. 6 City of Newport Beach, 2021-2029 Housing Element, B-61 (Sept. 2022). 7 City of Newport Beach, Planning Commission Staff Report, Agenda Item No. 3, Tennis Club at Newport Beach Project Amendment (PA2021-260), 8 (Sept. 8, 2022). 8 City of Newport Beach, Planning Commission Staff Report, Agenda Item No. 3, Tennis Club at Newport Beach Project Amendment (PA2021-260), 7 (Sept. 8, 2022). 9 City of Newport Beach, 2021-2029 Housing Element, B-I I to 13 (Sept. 2022). 10 City of Newport Beach, 2021-2029 Housing Element, B-70, B-78 to 79 (Sept. 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 p. 3 develop housing" are categorically false.' 1 First, as discussed above, the property owner originally intended these sites to include five single-family residences and now intends to include two single-family residences and three attached condominium units. 12 Even if the "written interest" the City obtained from Golf Realty Fund, the owner listed in the City's Housing Element, claimed it was interested in developing housing, there is no evidence to suggest that it ever sought to include more than five residential units on these sites and no evidence to support the City's assumptions that these sites have the potential to yield 23 very low- or low-income units. Second, at the September 8, 2022 Planning Commission meeting, Brett Feuerstein and Ryan Chase made the following comments: "As you may know, we own 50 percent of the tennis club property with the applicant Golf Realty Fund owning the other 50 percent. We are currently in an arbitration proceeding to determine if Golf Realty Fund has the authority to unilaterally process the planning application that is before you tonight. It probably goes without saying that we do not think Golf Realty Fund has the proper authority to process the pending application .... Additionally, contrary to some of the rumors that are being circulated, Ryan and I are not looking to shut down the Club. In fact, it's quite the opposite. I'm a pickleball player myself and after seeing how important this Club is to its members, it has only grown our desire to find a solution that allows the Club to remain to grow, thrive for the long term."13 Thus, Golf Fund Realty may not even have the authority to make commitments to the City regarding the amount of residential development that can take place on these sites. Based on Mr. Feurstein and Mr. Chase's statements alone, the City cannot overcome the presumption that the existing uses of these sites as a Tennis Club will not impede additional residential development or that the existing uses are likely to be discontinued during the planning period.14 Therefore, if the City continues to include these sites in its inventory, the City is violating Housing Element law and should remove these sites to avoid this issue. Affirmatively Furthering Fair Housing California law requires that public agencies administer all "programs and activities relating to housing and community development in a manner to affirmatively further fair housing, and take no action that is materially inconsistent with its obligation to affirmatively further fair housing."15 To affirmatively further fair housing, a public agency must do the following: 11 City of Newport Beach, 2021-2029 Housing Element, B-70, B-78 to 79 (Sept. 2022). 12 City of Newport Beach, Planning Commission Staff Report, Agenda Item No. 3, Tennis Club at Newport Beach Project Amendment (PA2021-260), 11 (Sept. 8, 2022). 13 City of Newport Beach, Planning Commission Meeting, Agenda Item No. 3, Tennis Club at Newport Beach Project Amendment (PA2021-260), 45:44 to 47:03 (Sept. 8, 2022). 14 Cal. Gov. Code Section 65583.2(g)(2). 15 Cal. Gov. Code Section 8899.50(b). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 p. 4 [Take] meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.16 Meaningful action means taking significant action that is designed and reasonably expected to achieve a material positive change that affirmatively furthers fair housing.17 Even if these sites are kept in the City's site inventory, this project does not affirmatively further fair housing. Renters in this area experience high overpayment due to the median gross rent being higher than $3,000.18 Providing five moderate- or above moderate -income residences would not address overpayment issues in the Newport Center area or promote integration of households with different income levels. Additionally, these sites are located in a very high resource area, are in close proximity to quality education, and are in close proximity to job opportunities, including lower -income retail and food service jobs at the Fashion Island shopping center.19 They are also located within a High Quality Transit Area and are within walking distance of the Newport Transportation Center.20 Developing this site for five moderate- or above -moderate income residences instead of density housing, which could have included the estimated 23 lower -income units, would continue to burden residents with rent overpayment and would deprive lower -income households the opportunity to access the high resources located in this area. Implementing Policy Action 1K: Inclusionary Housing Policy as soon as possible would help the City address patterns of segregation and disparities in housing needs and access to opportunity, thus promoting balanced living patterns.21 While the City "determined that a base inclusionary requirement of 15 percent for new residential development to be affordable to very low-, low-, and moderate -income households is an appropriate interim measure prior to the adoption of a final inclusionary ordinance or policy," we strongly recommend that the City's 16 Cal. Gov. Code Section 8899.50(a)(1). 17 HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 66 (April 2021); Affirmatively Furthering Fair Housing, 80 Fed. Reg. at 42354. Although the Department of Housing and Urban Development does not enforce this federal AFFH rule, California law has adopted the federal rule. This means that the federal AFFH rule can inform how to interpret the obligation to affirmatively further fair housing in California law. 18 See Attachment 2: HCD AFFH Data Views of Overpayment by Renters and Location Affordability. 19 See Attachment 3: HCD AFFH Data Views of TCAC Opportunity Areas - Composite Score and Education Score (2021) and HUD Jobs Proximity Index (2014-2017). 20 See Attachment 4: City of Newport Beach Map of Newport Beach Transit Priority Areas. 21 City of Newport Beach, 2021-2029 Housing Element, 4-10 to 11 (Sept. 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 p. 5 final policy require a much higher percentage of units be made affordable to very low- and low- income households.22 The City's RHNA consists of 1,456 extremely low -/very low-, 930 low-, 1,050 moderate - and 1,409 above -moderate income units.23 This means that under the interim 15% inclusionary policy, 22,907 total housing units would have to be developed to meet the City's lower- and moderate -income RHNA. Even if the inclusionary policy only required the inclusion of lower - income units, 15,907 total housing units would have to be developed to meet the City's extremely low -/very low-, and low-income RHNA. To encourage more equitable and realistic development, we suggest the City implement an inclusionary housing policy in proportion to its RHNA allocation. For example, the City's RHNA includes 30% very low-, 19% low-, 22% moderate-, and 29% above moderate -income units. The City could implement a policy that requires the inclusion of 15% very low-, 10% low-income units, and I I% moderate -income units. This strategy would break up patterns of segregation and distribute the City's resources in a more equitable manner by mixing households with varying levels of income and giving historically disadvantaged groups access to employment and education opportunities. No Net Loss Government Code Section 65863 requires that jurisdictions maintain adequate sites to accommodate its remaining unmet RHNA in each income category throughout the entire planning period. If there is a shortfall of sites to accommodate its RHNA, the jurisdiction must either amend its site inventory to include sites that were previously unidentified or rezone sites to meet the need.24 Failure to do so would constitute a violation of the No Net Loss law and Housing Element law.25 Because these sites are not available for residential development during the planning period and cannot be included in the City's site inventory, the City must reduce its total 6th Cycle lower -income development capacity by 23 very low- and low-income units. Additionally, due to the clear reluctance to develop lower -income housing, the City should seriously consider identifying additional sites where these 23 lower -income units can be developed to reduce the risk of triggering the No Net Loss law. While the City uses the potential rezoning of Banning Ranch to increase its lower income site surplus by 770, we have previously explained why development of Banning Ranch is unlikely to occur.26 Conclusion The housing element process is an opportunity for jurisdictions to meet the needs of California's residents, including needs for housing that is accessible to seniors, families, and workers and the needs of extremely low-, very low-, and low-income families for affordable 22 City of Newport Beach, 2021-2029 Housing Element, 4-11 (Sept. 2022). 23 City of Newport Beach, 2021-2029 Housing Element, 3-137 (Sept. 2022). 24 HCD, Memorandum regarding No Net Loss Law, 4 (Oct. 2, 2019). 25 HCD, Memorandum regarding No Net Loss Law, 4 (Oct. 2, 2019). 26 See Attachment 5: Public Law Center Comment Letter to the City and HCD re: City of Newport Beach Adopted 6th Cycle Housing Element, Pages 15 to 17 (Mar. 29, 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 p. 6 housing. We encourage the City to revise its Housing Element to comply with state law and to make a concrete effort to assess the fair housing needs of its community and identify sites that affirmatively further fair housing and not perpetuate patterns of segregation. We look forward to working with the City in this effort to ensure that the housing needs of all residents of the City are addressed. Sincerely, THE PUBLIC LAW CENTER, BY: /s/ Alexis Mondares, Housing and Homelessness Prevention Unit, Staff Attorney 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No September 12, 2022 p. 7 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element Attachment 1: City of Newport Beach GIS Map of Sites 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 P. 8 a, a I a (4 C D o' Oa a N' M g PQ ` >Ln m a Ln m + r�R Y o ' � E E m 0 Ln m r m 4 � i ra 4x! 0So- i ray rfa.5.""y r+zr-7�ia .tNIrKQR 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 P. 9 ten, 72- } E N h' O r-F 1 G L > U1 {D Ln � � R m • f UP 1 i--5 3 tir • II" 5 Ip a r : In C ID r Go CO 4 _ G + rt i j frDr) t r Q < W F � a FD l V 77Q7-iidY iY35-1119 tj5 t i�?Y-7lYi . °jfv.oaPs GRANVIL1.E OR x gone rt2Q xyxd _eLV.►Np01xYCENTER`L]R�- 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda lot m No. !S-Remlta ¥n No. 2 2- ¢ Amending and Re-Ad ptn Housing Element September 12, 2022 P. 10 lk�x ,no \7� t / w §\ >{c � \U § � rM y 0 § % d _ U) § 7 ZT � ®- A �- / [ TO Z u n � d { ^ \ zID E _ / e G / M > / � 2 y. / � � < 9 A § / $ x � . : . a GIAANvZLLl OR X w»m mna y � Wpon.N2 � 601 Civic Center Drive we . Santa w a, rw gRlam2.Elgsl4#n.Fax <17 p 541-5157 RE: Agenda Item No September 12, 2022 P. 11 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element Attachment 2: HCD AFFH Data Views of Overpayment by Renters and Location Affordability 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda lot m No. !S-Remlta ¥n No. 2 2- ¢ Amending and Re-Ad ptn Housing Element September 12, 2022 p. 12 It, ❑ ❑ ❑ ❑ ❑ ❑ ❑ w � � � (( { 0 El El El (/ // E ) ) ) CO 0 (2 - ` - -7 k /\[ \§ \) ) \ ] \) <IE ƒ = nI nI o! ) E3 / ,a= ) i) E% c )\/®\ ®\ /n °2/ § +e /) /) $ \ \} — 9 wo \ }}/_ _ ) \ƒ�}/ «\ ) § { — c° I"5— \} � \}( \ w \ 0 \)��( \ )\\ 7 \ \ f \ — , _\ P, \ 601 Civic Center Drive we . 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Santa w % «w gplam2.(!7 4)514010.Fa ,<!7 4)541-15 RE: Agenda Item No September 12, 2022 p. 14 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element Attachment 3: HCD AFFH Data Views of TCAC Opportunity Areas - Composite Score and Education Score (2021) and HUD Jobs Proximity Index (2014-2017) 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No September 12, 2022 p. 15 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No September 12, 2022 p. 16 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element ■oo■aF n o o V z �. 0 N Ln 0 0 0 n V ° 3 � N � � v C m m m o' 0' o. 0 O n � 0 0 y m y 601 Civic Center Drive West Santa Ana, CA 92701-4002 • (714) 541-1010 •;ax (714) 541-51 RE: Agenda Item No. 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element September 12, 2022 p. 17 n Z TI TI 11 3 J :a 0 r am'� o ao 3 a- N o m 0 � 0 A m .. @ Z m 0 0 M N m n n p ■VC7U■(�D'_ o ❑ ❑ ❑ ❑ x m A NJD< U i15 p n n n a 0 40 0 0 rt V7 0 O 0 0 n 3 a Z� y X D D D D m m m m Q N N O N O N O N 4 O N d n n 0 n B _ O 3 0 o' a n 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No September 12, 2022 P. 18 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element Attachment 4: City of Newport Beach Map of Newport Beach Transit Priority Areas 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No September 12, 2022 P. 19 1 1� R 4o- 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element L L l I I https://www.newportbeachca. aovlaovemmentldepartments/public-works/transportation 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: Agenda Item No September 12, 2022 p. 20 18 - Resolution No. 2022-60: Amending and Re -Adopting Housing Element Attachment 5: Public Law Center Comment Letter to the City and HCD re: City of Newport Beach Adopted 6th Cycle Housing Element (Mar. 29, 2022) 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 PUBLIC i ki Providing Access to Justice March 29, 2022 Colin Cross, Land Use & Planning Analyst LAW CENTER For Orange County's Low Income Residents Land Use and Planning Unit California Department of Housing and Community Development 2020 West El Camino Avenue Sacramento, CA 95833 HousingElements@hcd.ca.gov colin.cross@hcd.ca.gov City of Newport Beach Planning Division 100 Civic Center Drive Newport Beach, CA 92660 GPUpdate@newportbeachca.gov RE: City of Newport Beach Adopted 6th Cycle Housing Element Dear Mr. Cross, Public Law Center ("PLC") is a 501(c)(3) legal services organization that provides free civil legal services to low-income individuals and families across Orange County. We write again on behalf of individuals in need of affordable housing in Orange County to comment on the City of Newport Beach ("the City") adopted 6th Cycle Housing Element. It is the City's statutory responsibility to create adequate housing opportunities that meet the needs of all economic segments of the community.' To move forward in the housing element process, the City should make a concerted effort to implement the changes suggested by advocates and required by HCD rather than providing more information to recontextualize the noncompliant provisions. The City should promote the development of affordable housing and support its most vulnerable residents such as seniors, persons with disabilities, large households, families with female heads of households, farmworkers, and people experiencing homelessness. To accomplish these statutory objectives, the City's housing element should identify and analyze its housing need, inventory existing resources relevant to meeting these needs, assess constraints and barriers to meeting these needs, and create policies and programs that address any unmet need.2 Affordable and Fair Housing The City of Newport Beach is an extremely wealthy jurisdiction within Orange County. ' Cal. Gov. Code Section 65583. 2 Cal. Gov. Code Section 65583(a). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 2 Most residents are high -income earners with 3 1 % earning over $200,000 per year and 60% earning over $100,000.3 As a result, the City's median income is $122,709 which is $37,311 higher than the regional median and is the highest median household income in the area.4 Additionally, although 85.3% of the City's population is White, White residents are the group with the smallest percentage of people in poverty.5 Because of this high concentration of White residents with high incomes, almost the entire City is considered a Racially Concentrated Area of Affluence.6 Despite this affluence, about 15% of households earn under $35,000 annually and 5,670 households are living in poverty.' While comprising only .8% of the City's population, Black residents have the highest rates of poverty, followed by American Indian/Alaska Natives and Native Hawaiian/Other Pacific Islanders, which have the smallest population percentages but account for more than 20% of residents living below the poverty line.8 Further, 22,690 households are cost burdened.9 Of this group, there are 5,161 lower -income renters paying more than 30% of their income on housing and 3,715 lower -income renters paying more than 50% of their income on housing.10 In January 2020, the average monthly rental rate was $2,504 for a one -bedroom unit, $3,337 for a two -bedroom, and $4,355 for a three-bedroom.11 At this high cost of living, extremely low-, very low-, and low-income households cannot afford to rent or purchase a home within the jurisdiction.12 While moderate -income households cannot purchase a home within the jurisdiction, "a one -person moderate -income household may be able to find some adequately sized affordable apartment units."13 Housing is so expensive that a renter receiving the highest tier of Section 8 Housing Choice Voucher resources, $2,280 for two -bedroom units, would only be able to live in two residential complexes throughout the entire city.14 To address these extreme housing costs, the City must make a serious effort to provide 2,386 lower -income housing opportunities to serve its 11,595 lower -income households .15 However, the City has failed to generate affordable housing in the previous cycle, failed to preserve assisted developments, failed to address constraints to the development of affordable housing, and failed to create programs with specific actions that encourage the development of affordable housing. Additionally, the City must conduct a proper assessment of fair housing 3 City of Newport Beach, 2021-2029 Housing Element, 2-13 (February 2022). 4 City of Newport Beach, 2021-2029 Housing Element, 2-12 (February 2022). 5 City of Newport Beach, 2021-2029 Housing Element, 2-3, 2-29, 3-66 (February 2022). 6 City of Newport Beach, 2021-2029 Housing Element, 3-69 (February 2022). City of Newport Beach, 2021-2029 Housing Element, 2-13, 2-18 (February 2022). a City of Newport Beach, 2021-2029 Housing Element, 2-28 (February 2022). 9 City of Newport Beach, 2021-2029 Housing Element, 2-17 (February 2022). 10 City of Newport Beach, 2021-2029 Housing Element, 2-17 (February 2022). 11 City of Newport Beach, 2021-2029 Housing Element, 2-40 (February 2022). 12 City of Newport Beach, 2021-2029 Housing Element, 2-40 to 41 (February 2022). 13 City of Newport Beach, 2021-2029 Housing Element, 2-41 (February 2022). 14 City of Newport Beach, 2021-2029 Housing Element, 3-59 (February 2022). 15 City of Newport Beach, 2021-2029 Housing Element, 1-4, 2-12 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 3 issues, must remove Banning Ranch from its site inventory, and should strengthen its ADU program. Past Programs Promoting Affordable Housing Although the City had numerous programs promoting the development of affordable housing and the preservation of at -risk assisted developments, these programs failed to generate a significant number of affordable units and failed to preserve four of five at -risk assisted developments. First, Policy Actions 1.1.2, 2.1.2, 2.1.3, 2.1.5, 2.1.6, 2.2.1, 2.2.2, 2.2.5, 2.2.6, 2.2.7, 2.2.8, 3.1.1, 3.1.2, and 3.1.3 are past programs that were intended to promote the development of affordable housing.16 The City views these programs as a success and intends to continue them in the 6th Cycle. However, out of the 1,847 units permitted as of January 26, 2022, only 101 were affordable to lower -income households.17 While some of these programs may have contributed to the development of these units, a 5% success rate of developing affordable units is insubstantial. If this trend continues, the City would need to develop 47,720 higher -income units to generate enough units to meet its lower -income need.18 The City should reassess the efficacy of these programs from this perspective and revise them to better promote the development of affordable units. For example, the City could survey developers of recent projects to determine whether they were contacted about the development affordable housing, how many affordable units they would have found acceptable to include in their development, and why the City's 5th Cycle incentives were not sufficient to generate those units. With this information, the City can form relationships with affordable housing developers that may be able to address those issues and adjust its programs to ensure they are more effective in the next planning period. Second, Policy Actions 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.5, 4.1.6, and 4.1.7 were intended "to mitigate potential loss of `at risk' units due to conversion to market -rate units."19 However, it appears that these programs failed to preserve any assisted units as Newport Harbor I, Newport Seashore Apartments, Newport Seaside Apartment, and Newport Seacrest Apartments terminated affordability or declined to extend the affordability agreements.20 This resulted in loss of 131 affordable units.21 Because these programs did not preserve any units, the City cannot simply continue them without revision. The City should first assess why these property owners were not interested in maintaining affordability and create programs that address those reasons.22 Then, the City should compare the options of preserving affordable units and replacing them. If the City continues to be unsuccessful at preserving these units, it should determine whether 16 City of Newport Beach, 2021-2029 Housing Element, A-1 to 3, A-5 to 10, A-12 to 13 (February 2022). 17 HCD, Annual Progress Reports (APRs), APR Dashboard — Housing Element Open Data Project, https://hcd.ca.gov/community-development/annual-progress-reports.shtml (last visited Jan. 26, 2022). 'g City of Newport Beach, 2021-2029 Housing Element, 1-4 (February 2022). 19 City of Newport Beach, 2021-2029 Housing Element, A-21 to 25 (February 2022). 21 City of Newport Beach, 2021-2029 Housing Element, A-23 to 24, 3-108 (February 2022). 21 City of Newport Beach, 2021-2029 Housing Element, 3-108 (February 2022). 22 City of Newport Beach, 2021-2029 Housing Element, A-21 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 4 federal, state, and local financing and subsidy programs can supply the funding necessary to replace the units on another site. Finally, under Policy Action 4.1.7, the City should advocate with the Orange County Housing Authority to increase its payment standards so that Section 8 vouchers can be used throughout the jurisdiction.23 Additionally, the City identified the Pacific Heights Apartments as being at -risk for expiration in 2019 but did not describe the current status of their affordability.24 The City must explain whether these units are still affordable. If they have expired, they should be included in the above assessment. If they are still affordable to lower incomes, the City should describe how they were kept affordable and apply similar tactics to developments that are at -risk in the 6th Cycle. Preservation of Assisted Developments The City identified Newport Harbor II Apartments, Villa del Este, and Villa Siena as developments that are at -risk of losing affordability.25 The City should have also included a development at 1621 Mesa Drive that is receiving Low -Income Housing Tax Credit assistance for 74 units and is eligible for converting to market -rate housing on January 1, 2029.26 Additionally, the City's analysis of assisted developments is incomplete. The City has failed to estimate the preservation or replacement cost of the low- and very low-income units at Newport Harbor II Apartments at 1530 Placentia Avenue. 27 Instead, the City only analyzes the moderate -income ownership opportunities at Villa del Este and Villa Siena, as well as several developments that expired in the previous cycle.28 Further, although the City identified several entities that are "qualified" to assist at -risk developments, it did not analyze their legal and managerial capacity to actually do so.29 Similarly, the City identified several possible funding sources but failed to identify the amounts available under each program that have not been legally obligated for other purposes and could be used to preserve these developments.30 The City must provide this information to determine what resources are realistically available for the preservation of affordable housing. Then, the City could ensure its programs are aimed at obtaining additional funding and addressing other issues it may identify. Policy Actions 2C, 5A, and 5C are intended to address the preservation of at -risk assisted developments but are not adequate to do so. First, Policy Action 2C: Preservation of At -Risk Units states that the City will strategize around local regulation, technical assistance, maintaining 21 City of Newport Beach, 2021-2029 Housing Element, A-24, 3-59 (February 2022). 24 City of Newport Beach, 2021-2029 Housing Element, 3-108 (February 2022). 25 City of Newport Beach, 2021-2029 Housing Element, 3-108 (February 2022). 26 National Housing Preservation Database, https://nhpd.preservationdatabase.org/Data (last visited Mar. 12, 2022). 21 Cal. Gov. Code Section 65583(a)(9)(B); City of Newport Beach, 2021-2029 Housing Element, 3-108 to 109 (February 2022). 28 Cal. Gov. Code Section 65583(a)(9)(B); City of Newport Beach, 2021-2029 Housing Element, 3-108 to 109 (February 2022). 29 Cal. Gov. Code Section 65583(a)(9)(C); City of Newport Beach, 2021-2029 Housing Element, 3-110 (February 2022). 10 City of Newport Beach, 2021-2029 Housing Element, 3-109 to 110 (February 2022); Cal. Gov. Code Section 65583(a)(9)(D). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 5 registration as a Qualified Preservation Entity with HCD, and consulting with property owners and potential preservation organizations; and Policy Action 5A: Preservation of Affordability Covenants requires the City contact property owners of developments with affordability covenants to "inform them of financial resources available, and to encourage the extension of the affordability agreements for the developments listed beyond the years noted. ,31 However, these programs are very similar to the City's 5th Cycle programs, discussed above, that failed to preserve any affordable units.32 The City must explain how it has considered its past performance, describe revisions to these programs or how these actions are different from the past, and how these actions will yield better results. The City should also include strategies for replacing affordable units lost to conversion because its previous strategies surrounding preservation were not effective. Policy Action 5C: Incentivize for Preserving of Affordability Covenants commits the City to "[investigating] the potential for providing additional incentives or [modifying] its current policy to incentivize property owners to maintain the affordability of units on their property during the 6th Cycle. ,33 This investigation should have already been completed as part of the housing element update process so that this program could include the specific incentives the City will provide. The City must complete this investigation and revise this program accordingly. Constraints on the Development of Affordable Housing In analyzing nongovernmental constraints, the City has failed to address the high cost of land as a constraint to the development of affordable housing and has failed to properly identify the availability of financing as a constraint.34 First, the City acknowledges that the cost of land varies from $600,000 for 0.075 acres near the Santa Ana Heights neighborhood to $10,500,000 for 0.51 acres near the coast, with the cost of land per square foot ranging from $183 to $474.35 In comparison, the median cost of land in Laguna Beach is about $115 per square foot.36 While several of the City's programs are intended to promote the development of affordable housing by seeking funding assistance and providing incentives to developers, none of the programs specifically address this issue. The City should revise its programs to explain how incentives such as the reduction of fees or expedited review processes can mitigate the high cost of land. Additionally, the City should identify publicly owned sites that it can donate to the development of affordable housing. Second, the City does not consider the availability of financing a constraint to affordable housing.37 However, the availability of financing is more important here than the rest of the county because the median home value of single -unit homes and condos is $2,407,454 — 31 City of Newport Beach, 2021-2029 Housing Element, 4-12, 4-25 (February 2022). 32 City of Newport Beach, 2021-2029 Housing Element, A-21 to 25 (February 2022). 33 City of Newport Beach, 2021-2029 Housing Element, 4-25 (February 2022). 34 City of Newport Beach, 2021-2029 Housing Element, 3-1 (February 2022). 35 City of Newport Beach, 2021-2029 Housing Element, 3-2 (February 2022). 36 City of Newport Beach, 2021-2029 Housing Element, 3-2 (February 2022). 37 City of Newport Beach, 2021-2029 Housing Element, 3-2 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 6 significantly higher than the $777,000 median home value in the county.38 The availability of financing is also important to address existing patterns of segregation. Data regarding the disposition of loan applications for the Anaheim -Santa Ana -Irvine Metropolitan Statistical Area shows that above moderate -income applicants have the highest rates of loan approvals and that White applicants were more likely to be approved than any other race or ethnicity.39 These trends would benefit the majority of the City's residents as 9 1 % earn over $100,000 annually and 85.3% are White.40 In contrast, Black, American Indian/Alaska Native, and Native Hawaiian/Other Pacific Islanders would be least likely to benefit due to lower approval rates, regardless of income.41 Without intervention, these trends would continue to prioritize wealthy White applicants, giving them the greatest ability to own a home within the City. To address this issue, the City should create financial assistance programs such as a first-time homebuyers program that would utilize state and federal funding to provide grants or low -interest loans to lower -income applicants. The City should also work with affordable housing developers to create ownership opportunities for lower -income households. In analyzing governmental constraints, the City identified overlay districts; growth management measures; and development fees, local processing and permit procedures, and site development reviews as constraints to the development of affordable housing.42 First, the City notes that the additional regulations and development standards of several existing overlay districts may prevent increased density or intensity certain areas.43 However, the City fails to address this issue and plans to establish four additional overlays in the Airport Environs, West Newport Mesa, Newport Center, and Dover/Westcliff areas.44 Policy Actions IA, 1B, 1C, and I will establish these overlays and include unspecified development standards, procedures, and incentives to encourage the development of affordable units.45 The City should more closely analyze how existing overlays have restricted the development of affordable housing and ensure the proposed overlays do not have a similar effect. Second, Measure S was approved "to regulate the rate, amount, and type of development" while allowing the City "to grow responsibly and orderly" by requiring voter approval for certain amendments of the City's General Plan.46 The City notes that growth management measures that are overly restrictive "can produce constraints to the development of housing, including accessible and affordable housing."41 Measure S has the potential to constrain the development of housing because the voters must approve the zoning changes the City needs to meet its RHNA.48 The City does not anticipate a successful vote and plans to "propose alternative Policy 38 City of Newport Beach, 2021-2029 Housing Element, 3-2, 3-4 (February 2022). 39 City of Newport Beach, 2021-2029 Housing Element, 3-2 (February 2022). 40 City of Newport Beach, 2021-2029 Housing Element, 2-13, 2-3 (February 2022). 41 City of Newport Beach, 2021-2029 Housing Element, 3-3 (February 2022). 42 City of Newport Beach, 2021-2029 Housing Element, 3-7 to 8, 3-28, 3-35, 3-39, 3-44 (February 2022). 43 City of Newport Beach, 2021-2029 Housing Element, 3-7 to 8 (February 2022). 44 City of Newport Beach, 2021-2029 Housing Element, 3-7 to 8, 4-4 to 7 (February 2022). 41 City of Newport Beach, 2021-2029 Housing Element, 4-4 to 7 (February 2022). 46 City of Newport Beach, 2021-2029 Housing Element, 3-28 to 29 (February 2022). 47 City of Newport Beach, 2021-2029 Housing Element, 3-28 (February 2022). 46 City of Newport Beach, 2021-2029 Housing Element, 3-30 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 7 Actions and call for a second election."49 However, the steps outlined in the City's "Milestones for Housing Element Adoption, Implementation and Charter Section 423 Election" are not timely and are unlikely to be effective, so The City plans to bring the matter to the electorate in March 2024 are more than two years past statutory deadline for adopting a compliant housing element and more than one year past the statutory deadline for rezoning.51 Even if this vote passes, the City would not be in compliance with housing element law at the required dates. If the vote fails, the City plans to "amend [the] Housing Element for HCD review and amend [the] Land Use Element and adopt corresponding zoning strategies after conducting environmental review," then conduct a second vote.52 It is unclear what amendments to the housing element or zoning strategies would garner voter approval, so a second election seems just as likely to fail as the first election. If it does fail, the City simply plans to request an opinion from the State Attorney General's Office.53 Given the City's uncertainty surrounding these elections, it should have already contacted HCD and the State Attorney General's office to obtain advice on the relationship between housing element law and growth management measures as State housing element law will supersede a local ordinance. The City should immediately communicate with these parties and create a program to address this issue. Third, the City identifies development fees, local processing and permit procedures, and site development review as constraints on the development of affordable housing.54 Policy Actions 3A, 3D, 3G, 413, and 4D are intended to address these constraints by eliminating or reducing their application to affordable housing developments.55 However, none of these programs specifically describe how they will change these requirements or what specific incentives they will offer. The City must clarify these points to meet statutory requirements and address land use control constraints. Additionally, Policy Action 4H: Review Mixed -Use Zones describes the varied success of mixed -use housing opportunities that were created in the previous cycle but notes that "a majority of these sites remain underutilized with a single, non-residential use, such as retail or office."56 The City theorizes that "existing development standards (e.g., setbacks, height, density, parking, dedications, etc.) related to mixed -use development may create constraints to the redevelopment of these properties."57 Despite this, Policy Action 4F: Encourage Development of Opportunity Sites plans to "encourage and facilitate residential and/or mixed -use developments on sites listed" in the City's site inventory.58 However, the City should have surveyed recently 49 City of Newport Beach, 2021-2029 Housing Element, 3-31, 4-3 (February 2022). 50 City of Newport Beach, 2021-2029 Housing Element, 4-3 to 4 (February 2022). 51 Southern California Association of Governments, Housing Element Support, https:Hscag.ca.gov/housing-elements (last visited Feb. 2, 2022); Cal. Gov. Code Section 65583(c)(1)(A). 52 City of Newport Beach, 2021-2029 Housing Element, 4-3 to 4 (February 2022). 53 City of Newport Beach, 2021-2029 Housing Element, 4-4 (February 2022). 54 City of Newport Beach, 2021-2029 Housing Element, 3-35, 39 (February 2022). 55 City of Newport Beach, 2021-2029 Housing Element, 4-13 to 15, 4-21 to 22 (February 2022). 56 City of Newport Beach, 2021-2029 Housing Element, 4-23 (February 2022). 51 City of Newport Beach, 2021-2029 Housing Element, 4-23 (February 2022). 56 City of Newport Beach, 2021-2029 Housing Element, 4-22 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 P. 8 developed mixed -use projects to determine why some are successful and some are not rather than waiting to analyze these issues in the 6th Cycle.59 The City should complete this analysis and describe specific actions it will take to address any constraints created by land use control and policies. Programs Promoting Affordable Housing Many of the City's programs are intended to encourage the development of affordable housing, but some should be revised to better achieve this. First, Policy Action 1 K: Inclusionary Housing Policy explains that "the City will investigate inclusionary housing policy options as an additional means to provide a variety of housing types and opportunities for very low, low- and moderate -income households" and "assess and analyze a variety of inclusionary housing policy options, standards, requirements and regulations to determine the best course of action. ,60 The City also plans to implement a 15% affordable policy while this assessment is conducted.61 In reality, the investigation of inclusionary housing policy options should have been completed during the housing element process and this policy action should describe the specific actions the City intends to take. The City should also implement a policy that requires more than 15% affordable units.62 To meet its RHNA under a 15% inclusionary policy, the City would need to permit a total of 15,906 units, which is triple its RHNA.63 To avoid such high levels of development, the City should consider adopting a tiered inclusionary policy that reflects its lower -income housing need. For example, the City's extremely low-income need is 15% of the RHNA, the very low-income need is 15% of the RHNA, and the low-income need is 19% of the RHNA.64 If the City adopted a 30% affordable policy, it could require that 10% of units be made available to extremely low -incomes, 10% for very low -incomes, and 10% to low -incomes, increasing the likelihood that these difficult -to -build units will actually be created. Second, Policy Action 3F: Annual Reporting Program requires the City to conduct an annual compliance -monitoring program to track the development of lower -income and moderate - income units.65 However, the City should set benchmarks that indicate a successful year of development and describe specific actions it will take if development has not met that goal. Third, Policy Action 3H: Prioritization of Affordable Housing Funds "will give highest priority for use of Affordable Housing Fund monies to affordable housing developments providing units affordable to extremely -low-income households and senior households" and "establish objective priorities to allow for the ranking/scoring of future affordable housing projects so that expenditures that most meet the City's objectives are prioritized for funding."66 " City of Newport Beach, 2021-2029 Housing Element, 4-23 (February 2022). 60 City of Newport Beach, 2021-2029 Housing Element, 4-10 (February 2022). 61 City of Newport Beach, 2021-2029 Housing Element, 4-11 (February 2022). 62 City of Newport Beach, 2021-2029 Housing Element, B-9 (February 2022). 63 City of Newport Beach, 2021-2029 Housing Element, 1-4 (February 2022). 64 City of Newport Beach, 2021-2029 Housing Element, B-9 (February 2022). 65 City of Newport Beach, 2021-2029 Housing Element, 4-14 (February 2022). 66 City of Newport Beach, 2021-2029 Housing Element, 4-15 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 P. 9 The City should ensure that extremely low-income and senior households have an equal opportunity to obtain this funding and revise this program to explain its objective ranking process. Fourth, Policy Action 3J: Priority in Kind Assistance for Affordability will "provide more assistance for projects that provide a higher number of affordable units or a greater level of affordability" and require that at least 15% of units be made affordable if the development is receiving funding from the CDBG program or the City's Affordable Housing Fund.67 The City should revise this program to apply to units affordable to extremely low-, very low-, and low- income units and exclude moderate -income units, which are more readily available as market - rate housing. Fifth, Policy Action 4G: Annual RHNA Sites Inventory Monitoring states that "the City will monitor and evaluate the development of vacant and underdeveloped parcels on an annual basis and report the success of strategies to encourage residential development in its Annual Progress Reports" and "revise or add additional sites where appropriate or add additional incentives, if identified strategies are not successful in generating development interest. ,68 Again, the City should explain what "success" looks like and what incentives will implement if necessary. Affirmatively Furthering Fair Housing Assessment of Fair Housing While the City has provided additionally data, tables, and maps, the City still fails to adequately assess fair housing. The City's primary failures include lack of local knowledge and data, inadequate assessment of local and regional patterns and trends, inadequate assessment of patterns and trends over time, inadequate conclusions and summaries of fair housing issues, and inadequate consideration of all relevant data and the connections between the data. Local Data and Knowledge While the City has added a section titled "Local Data and knowledge" it does not actually contain any data other than data available federal or state level data sources, which is not considered "local data and knowledge. ,69 As such, the City fails to fully analyze local data or assess fair housing based on all of the information available to it. For example, in its assessment of Displacement Risk, the City relies largely on data and maps from the Urban Displacement Project to inaccurately conclude that "all of Newport Beach is considered stable/advanced exclusive."70 The City also includes an analysis of assisted 67 City of Newport Beach, 2021-2029 Housing Element, 4-16 (February 2022). 68 City of Newport Beach, 2021-2029 Housing Element, 4-23 (February 2022). 69 City of Newport Beach, 2021-2029 Housing Element, 3-62 (February 2022); HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 24 (April 2021). 70 City of Newport Beach, 2021-2029 Housing Element, 3-106 (February 2022). A review of the data available from the Urban Displacement Project, available at https://www.urbandisplacement.org/mgps/los-an eg les-gentrification- and-displacement/ (last visited March 17, 2022) and Figures 3-22 and 3-23 of City of Newport Beach, 2021-2029 Housing Element, 3-107, 113 (February 2022) show that some of the census tracts wholly or partially within 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 P. 10 developments in the process of or at risk of conversion to market rate. While the City accurately concludes from the Urban Displacement Project data that the City's housing market is largely inaccessible to lower -income households, the City fails to draw any conclusions regarding displacement. However, displacement is a real concern in Newport Beach, particularly the West Newport Mesa Focus Area identified by the City, as is evident from the information provided in the City's Housing Element. The majority of assisted housing developments at risk of conversion to market rate during the 6th Cycle are located in the West Newport Mesa Focus Area (census tract 6059063603).71 This is also the location of the majority of assisted units that converted to market rate (or are in the process of doing so) from the 5th Cycle.72 Additionally, the City had a mobilehome park located in the same census tract that ceased operations during the 5th Cycle.73 Finally, a regional analysis of displacement data would show that this census tract neighbors census tracts in Cosa Mesa that are identified as "Low-Income/Susceptible to Displacement" and "Advanced Gentrification."74 It is also a portion of the City with a relatively lower median income.75 A full review and assessment of this local data as well as consideration of regional trends, would have indicated that there is a displacement concern in the West Newport Mesa Focus Area. This concern is likely to be exacerbated during the current Cycle, as this is one of the focus areas the City has identified for a significant number of units to be developed to meet the City's RHNA.76 In fact, the City has identified three mobilehome parks in the West Newport Mesa Focus Area that currently have 210 mobilehomes.77 Mobilehomes generally represent naturally occurring affordable housing and if these sites are redeveloped, as the City proposes, then there would likely be even more displacement of moderate- and lower -income families in the area. As newer housing is developed in the West Newport Mesa Focus Area, it will likely result in further displacement of moderate- and lower -income families in the area. (Please see attached map identifying assisted developments within the West Newport Mesa Focus Area illustrating these displacement concerns.) Additionally, were the City to complete the requisite fair housing outreach, it would have additional local data and knowledge to rely on for this assessment. However, the City's public participation and outreach efforts do not focus on or generally address fair housing issues and Newport Beach are classified as "Stable Moderate/Mixed Income." These census tracts have either been mislabeled or have not been included in Table 3-30 of City of Newport Beach, 2021-2029 Housing Element, 3-104 to 106 (February 2022). See specifically census tracts 6059063603, 6059063101, 6059063010, and 6059062610. 71 City of Newport Beach, 2021-2029 Housing Element, 3-108 to 109 (February 2022). 72 City of Newport Beach, 2021-2029 Housing Element, A-21 to 25 (February 2022). 73 City of Newport Beach, 2021-2029 Housing Element, A-24 (February 2022). 74 Urban Displacement Project, available at hops://www.urbandisplacement.ora/maps/los-an eg les-gentrification- and-displacement/ (last visited March 17, 2022); City of Newport Beach, 2021-2029 Housing Element, 3-107, 113 (Figures 3-22, 3-23) (February 2022). 75 City of Newport Beach, 2021-2029 Housing Element, 3-96 (Figure 3-17) (February 2022). Additionally, as discussed in the previous footnote, the Urban Displacement Project actually identified the area as Moderate/Mixed Income and not the same Advanced Exclusive as most of the City. City of Newport Beach, 2021-2029 Housing Element, 3-107, 113 (Figures 3-22, 3-23) (February 2022). 76 City of Newport Beach, 2021-2029 Housing Element, 3-129 to 130 (February 2022). 77 City of Newport Beach, 2021-2029 Housing Element, B-40 (Sites 218-221) (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 P. 11 they do not target the populations that experience fair housing issues or the organizations that assist with fair housing concerns. Regional Patterns and Trends The City fails to adequately assess fair housing data and trends over time and on a regional level. The City seems to analyze only one data point over time, but cuts its analysis short to avoid the inevitable conclusion that segregation is increasing concern in the City. The City looks at the Longitudinal Tract Data Base to show that the City became more diverse between 1980 and 2010, but does not analyze the trends beyond 2010.78 The City points out that its White, non - Hispanic, population decreased from 91.6 percent to 73.6 percent of the population between 1980 and 2010, but then fails to recognize the implications from the fact that the White, non - Hispanic, population increased to 79.5 percent in 2018.79 In addition to the example of the City's failure to assess regional trends by looking at displacement trends in neighborhoods bordering the City, as mentioned previously, the City generally fails to conduct any analysis of fair housing data at a regional level and seems to actually avoid it. For example, the City briefly mentions the percentages of racial and ethnic minorities that make up the County's population, but it fails to do any comparison between the City and the region and therefore fails to recognize the major discrepancy between the County's 20.5 percent who identify as Asian and 34.1 percent who identify as Hispanic or Latino compared to the City's 8.0 percent who identify as Asian and 8.8 percent who identify as Hispanic or Latino.80 Instead, the City attempts to hide behind its dissimilarity indexes to claim that it is not as segregated as the rest of the County while failing to realize that the County's high dissimilarity indices are in part due to the large percentages of racial and ethnic minorities that would have to relocate to the City's largely White neighborhoods to overcome regional patterns of segregation.81 Conclusions and Summaries of Fair Housing Issues Generally, the City fails to adequately assess its fair housing data and its summaries and conclusions of fair housing issues are inadequate. For example, the City's data shows that there is a significant and disproportionately high percentage of female -headed households in the Newport Center Focus Area.82 The City's data also shows that the Newport Center Focus Area is one of the most cost burdened areas in the City with over 80 percent of renters and homeowners paying more than 30 percent of their income toward housing.83 These two overlapping issues in the Newport Center Focus Area should have raised concerns for the City, but it makes no connections between the two issues. 78 City of Newport Beach, 2021-2029 Housing Element, 3-63 (February 2022). 79 City of Newport Beach, 2021-2029 Housing Element, 3-63 (February 2022). 80 City of Newport Beach, 2021-2029 Housing Element, 3-62 (February 2022). 81 City of Newport Beach, 2021-2029 Housing Element, 3-62 to 64 (February 2022). 82 City of Newport Beach, 2021-2029 Housing Element, 3-93, 94 (Figures 3-15, 3-16) (February 2022). 83 City of Newport Beach, 2021-2029 Housing Element, 3-98, 99 (Figures 3-18, 3-19) (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 12 Generally we encourage the City to do more to analyze how disparities in access to opportunities and disproportionate housing needs, including displacement, cost burden and severe cost burden, overcrowding, homelessness, and substandard housing conditions, impact special populations and populations with protected characteristics. As another example, the City recognizes that racially concentrated areas of affluence (RCAAs) are a contributing factor to segregation, which can have significant impacts on "socioeconomic disparities, educational experiences and benefits, exposure to environmental conditions and crime, and access to public goods and services."84 The City also recognizes that RCAAs may represent a public policy issue to the extent that they have been created and maintained through exclusionary and discriminatory land use and development practices."85 The City then goes on to correctly recognize that "[a]lmost the entire City," or twelve census tracts, classifies as RCAAs.86 But the City does nothing more than this. It does not conclude whether there are any public policies that have contributed to the creation or maintenance of discriminatory land use and development practices, whether intentionally or not. The City also fails to assess what impacts the City's status as mostly RCAAs has on regional segregation patterns and on the disparities experienced by populations historically excluded from the City. Consideration of Relevant Data and Connections The inadequate assessment of air housing naturally has resulted in inadequate identification and prioritization of contributing factors and inadequate programs to affirmatively further fair housing. For example, had the City conducted the assessments described above, the City could have realized that, in addition to affordable housing, the Newport Center Focus Area would benefit from programs encouraging access to affordable child care and after school programs to help meet the needs of female -headed households who are likely experiencing strains on their incomes due to high housing costs and lack of affordable child care. Or the City may have recognized the need to address displacement in the West Newport Mesa Focus Area and prioritize the preservation or replacement of affordable units at risk of conversion or currently in the process of conversion. Upon completion of a thorough and compliant assessment of fair housing, the City should reassess its identification and prioritization of contributing factors and should revise its programs or add additional programs to address these fair housing issues. Site Inventory By and large, the greatest issue with the City's assessment of fair housing is its analysis of sites to affirmatively further fair housing. First, the City simply does not identify sites "throughout the community" or consistent with its assessment of fair housing, as required by law.87 The City concentrates its sites, including its sites for lower -income units, in six focus areas and justifies this by claiming that these areas are transportation rich and that since the majority of the City is considered "highest resource areas," the City essentially cannot go wrong with where 84 City of Newport Beach, 2021-2029 Housing Element, 3-98, 99 (Figures 3-18, 3-19) (February 2022). 85 City of Newport Beach, 2021-2029 Housing Element, 3-98, 99 (Figures 3-18, 3-19) (February 2022). 86 City of Newport Beach, 2021-2029 Housing Element, 3-68 to 71, 115 (February 2022). 87 Cal. Gov. Code § 65583.2(a). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 13 it identifies sites for housing, and specifically housing affordable to families with lower incomes. 88 Second, while the City generally does not have high percentages of lower -income populations or racial and ethnic minorities, the City is still concentrating housing, and particularly lower -income housing, in areas where these percentages tend to be higher than those of the City in general, such as Airport Area, Banning Ranch, and West Newport Mesa Focus Areas.89 Additionally, these locations are adjacent to higher concentrations of lower -income populations or racial and ethnic minorities in neighboring cities.90 This site selection is likely to create or exacerbate regional and local patterns of segregation. Beyond exacerbating or creating patterns of segregation, the selections of the City's Focus Areas is alarming for other reasons. While the City generally experiences low pollutant burdens, the Airport Area is the portion of the City most exposed to harmful pollutants.91 It is inadequate to justify locating lower -income housing in the area with the greatest exposure to pollutants simply because land is less expensive and the development of affordable housing is more economical.92 The City should identify sites throughout the community and implement programs that will make affordable housing available in areas where lower -income families will not experience greater exposure to harmful pollutants. Due to the high market rent values, requiring a portion of high -density residential developments to include units affordable to lower - income families is economically feasible, even in areas without reduced land costs due to higher levels of pollutants. The City should also invest in funding for the development of affordable housing in areas with lower exposure to harmful pollutants. As further examples of the City's questionable site selection, the Airport Area, Banning Ranch, and West Newport Mesa Focus Areas all lie in locations with the lowest ratings for educational outcomes and the lowest median incomes in the City.93 Generally, they are also the areas with the lowest access to opportunities.94 Not only should the City identify sites for affordable housing throughout the community to ensure that families with lower incomes have access to the best resources, and particularly quality educations, the City should also work to invest in the existing areas where the data indicates that these opportunities are lower. Additionally, rather than justifying its site selection by the increased availability of public transportation, the City should invest more in public transportation throughout the community to improve the quality of life for all of its residents and to make sites throughout the community for accessible and more competitive for affordable housing opportunities. as City of Newport Beach, 2021-2029 Housing Element, 3-123 (February 2022). 89 City of Newport Beach, 2021-2029 Housing Element, 3-116 to 122 (February 2022). 90 City of Newport Beach, 2021-2029 Housing Element, 3-116 to 122 (February 2022). 9i City of Newport Beach, 2021-2029 Housing Element, 3-87 (Figure 3-13) (February 2022). 92 City of Newport Beach, 2021-2029 Housing Element, 3-123 (February 2022). 91 City of Newport Beach, 2021-2029 Housing Element, 3-82, 96 (Figures 3-10, 3-17) (February 2022). 94 City of Newport Beach, 2021-2029 Housing Element, 3-73, 78 (Figures 3-6, 3-9) (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 14 Goals, Policies, and Actions As mentioned previously, the City's identification and prioritization of contributing factors is lacking and therefore, it becomes difficult for the City to develop adequate goals to address those contributing factors and affirmatively further fair housing. Even so, the City's current goals fail to commit to specific deliverables, measurable metrics, and specific objectives.95 Additionally, the City's goals are inadequate because they are often only a continuation of past actions, some of which were not successful, or they only promise to "explore" an issue, rather than commit to concrete actions that would have meaningful impacts during the planning period.96 And some programs, while good in theory, could be improved to better affirmatively further fair housing. The City's specific program to affirmatively further fair housing is Policy Action 4A.97 Unfortunately, many of the action steps identified are not designed to have a "beneficial impact" during the planning period.98 For example, many of the action steps are simply to "examine," "explore," "analyze," "identify," "conduct ... visits," "conduct ... meetings," and "outreach" and then "establish policies, programs, and/or improvements."99 However, all of this outreach is the work that should have been done as part of the housing element update process so that the City could then establish the policies and programs that are required to be a part of the housing element and that would actually result in beneficial impacts during the planning period. Prior to submitting its next draft, we encourage the City perform the outreach actions identified in Policy Action 4A, then based on that local knowledge and input, establish the policies and programs that will actually affirmatively further fair housing. Further, Action 4 under Policy Action 4A states that the City will "[c]onduct ground level site visits and meetings within RECAP census tracts" even though the City previously stated that there are no RECAP census tracts in Newport Beach.100 Instead, the City should conduct these ground level site visits and meetings with lower -income populations, racial and ethnic minorities, and other groups with special housing needs or protected characteristics "to better understand resident and business barriers, resources, and needs" and then develop programs from that outreach effort.' 01 Action 7 under Policy Action 4A states that the City will do outreach to schools "to discuss the housing needs and improving opportunity access, especially to lower income households located in low resource areas."102 Again, this outreach should have already been conducted and the local knowledge obtained from this outreach should have been incorporated 95 HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 52 (April 2021). 96 Cal. Gov. Code Section 8899.50(a); HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 52 (April 2021). 97 City of Newport Beach, 2021-2029 Housing Element, 4-18 to 21 (February 2022). 98 HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 51 (April 2021); Cal. Gov. Code Section 65583(c). " City of Newport Beach, 2021-2029 Housing Element, 4-19 to 20 (February 2022). '00 City of Newport Beach, 2021-2029 Housing Element, 4-18, 4-20 (February 2022). 10' City of Newport Beach, 2021-2029 Housing Element, 4-20 (February 2022). 102 City of Newport Beach, 2021-2029 Housing Element, 4-20 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 15 into the assessment of fair housing. Beyond just reaching out to educational institutions to discuss housing needs, the City needs to invest in education, particularly in the census tracts that had lower TCAC Education Scores compared to the rest of the City.103 In addition to the above suggestions to improve Policy Action 1K: Inclusionary Housing Policy, the City should eliminate moderate -income as part of its inclusionary requirements and include extremely-low-income.104 As of 2021, the moderate -income limit for a family of four in Orange County is $128,050.105 Calculating rent for a moderate -income family of four based on spending about a third of their income on rent each month comes to just over $3,500 a month in rent, which is about equivalent to market-rate.106 Requiring essentially market -rate units for moderate -income families in the inclusionary policy will not help affirmatively further fair housing but including extremely -low-income will more likely have that impact. Policy Action 5B: Section 8 Participation could include a program to assist Housing Choice Voucher holders seeking housing to connect with landlords charging rent amounts within OCHA's payment standard.107 While it is laudable that the City intends to promote the waiting list when it is open, due to the limited availability of vouchers, the length of the waiting list, and the rarity of waiting list openings, the City could have a greater impact by assisting those who do receive a voucher in connecting with landlords where they can actually benefit from the voucher. Policy Action 5E: Orange County Housing Authority Advisory Committee was essentially a goal in the 5th Cycle.108 Then too the City committed to "recommend and request use of modified fair -market rent limits to increase the number of housing units within the City that will be eligible to participate in the Section 8 program."log However, either the City did not actually implement this program or it was unsuccessful as the problem continues to exist and the City does not identify any accomplishments on this point in its Review of Past Performance.110 The City should revise Policy Action 5E to either describe how it will actually implement this goal or how it will improve or change it from the previous Cycle to actually result in beneficial impacts. It is unclear whether Policy Action 7D: Fair Housing Services was successful or not during the previous cycle."' The City identifies multiple meetings held by a fair housing service agency but does not describe how many tenants, homeowners, or landlords from Newport Beach participated in the meetings, how many fair housing complaints were made and investigated as a '03 City of Newport Beach, 2021-2029 Housing Element, 3-82 (February 2022). "' City of Newport Beach, 2021-2029 Housing Element, 4-10 to 11 (February 2022). 105 California Department of Housing and Community Development, Revised State Income Limits for 2021, December 31, 2021, available at https://www.hcd.ca.gov/grants-funding/income-limits/state-and-federal-income- limits/docs/income-limits-2021.pdf (last visited March 28, 2021). 106 For one example of average rent costs, see RentCafe, available at https://www.rentcafe.com/average-rent-market- trends/us/ca/newport-beach/ (last visited March 28, 2021). 10' City of Newport Beach, 2021-2029 Housing Element, 4-25 (February 2022). 10a City of Newport Beach, 2021-2029 Housing Element, 4-26, A-24 (February 2022). '09 City of Newport Beach, 2021-2029 Housing Element, A-24 (February 2022). 10 City of Newport Beach, 2021-2029 Housing Element, A-24 (February 2022). City of Newport Beach, 2021-2029 Housing Element, 4-31 to 32, A-31 to 33 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 16 result of this outreach and training, or whether landlord compliance with fair housing laws improved.112 The City should expand its Fair Housing Services, by, for example, including fair housing testing and should increase the data available regarding these services to better determine its success, to better understand the fair housing issues in the community, and to determine the appropriate fair housing programs and services to implement in the future. Finally, as discussed above, while the City does not actually identify displacement as a concern, local knowledge seems to indicate that displacement has been and continues to be a concern in Newport Beach and neighboring communities, especially in the West Newport Mesa Focus Area. The City should adopt a program to address displacement and should consider improving other programs to address this concern. Some improvements to existing programs that would help prevent displacement include strengthening Policy Action 5D: Mobile Home Park Conversions113 to protect mobilehome owners from displacement and, as previously discussed, revising and strengthening programs to preserve assisted housing developments that have thus far failed to prevent the conversion of affordable units to market -rate units (Policy 2C: Preservation of At -Risk Units,114 Policy Action 5A: Preservation of Affordability Covenants,15 Policy Action 5C: Incentivize for Preserving of Affordability Covenants116), including appropriately allocating all available federal, state, and local financing and subsidy programs to the preservation of at -risk units.117 No Net Loss The City intends to use Banning Ranch to increase its site inventory surplus.118 However, the City still must remove the site from its inventory because it does not actually own the site, it is unlikely to be developed for residential uses within the planning period, and the continued inclusion of the site artificially increases the City's site surplus in an attempt to shield itself from future No Net Loss consequences. First, the Banning Ranch site "is currently within the City's Sphere of Influence" but does not belong to the City and has not been annexed into the jurisdiction.119 Although the City states that it "will continue to work collaboratively with the County of Orange for annexation," the County of Orange ("the County") does not appear to share this sentiment.120 In its first Draft Housing Element, the County actually included Banning Ranch in its site inventory.'21 However, after receiving public comments requesting the exclusion of the site from the County's inventory and considering several other factors, the County decided to remove the site from its inventory: 112 City of Newport Beach, 2021-2029 Housing Element, 4-31 to 32, A-31 to 33 (February 2022). 13 City of Newport Beach, 2021-2029 Housing Element, 4-25 to 26 (February 2022). 114 City of Newport Beach, 2021-2029 Housing Element, 4-12 (February 2022). 115 City of Newport Beach, 2021-2029 Housing Element, 4-25 (February 2022). 16 City of Newport Beach, 2021-2029 Housing Element, 4-25 (February 2022). 117 Cal. Gov. Code Section 65583(c)(6). 11' City of Newport Beach, 2021-2029 Housing Element, B-9 (February 2022). 119 City of Newport Beach, 2021-2029 Housing Element, 4-7 (February 2022). 121 City of Newport Beach, 2021-2029 Housing Element, 4-7 (February 2022). 121 County of Orange, First Draft of Housing Element Update, Appendix B (Land Inventory), 199 (September 2021). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 17 "After careful consideration of the following: (1) recent efforts to conserve Banning Ranch as open space, including a private grant of $50 million, the California Department of Fish and Wildlife's announcement of a $8 million grant, and the United States Fish and Wildlife Service's announcement of a $11 million grant all to support the purchase of Banning Ranch by the Trust for Public Land, which recently entered into an exclusive agreement with the property owner to purchase the property; (2) past efforts to develop areas of Banning Ranch have been unsuccessful due to noncompliance with the California Environmental Quality Act (See e.g. Banning Ranch Conservancy v. City of Newport Beach, 2 Cal.5th 918 (2017), making the area challenging and costly to develop; and (3) Banning Ranch contains wildlife habitat that hosts endangered or threatened species and is designated for special protection under the Coastal Act, the Banning Ranch area is not reflected in the County's Draft Housing Element Update." 122 It is important to note that the County does not include possible annexation to the City as a reason to remove Banning Ranch from its inventory. Therefore, it remains unclear whether the City will actually be able to annex Banning Ranch within the planning period. Second, the County's assessment of Banning Ranch illustrates why it is unlikely to be developed for residential use within the planning period. The County's finding that CEQA compliance makes "the area challenging and costly to develop" indicates that development of affordable units is even more unlikely. Additionally, the City acknowledges the site's long history of development issues and notes that "multiple agencies at the State of California expressed concerns about the viability of future residential in the area."123 In fact, HCD has specifically stated that the "area is unlikely to support residential development in the planning period as the property is soon expected to be set aside as open space" and that "HCD will not utilize the Banning Ranch site towards the City's RHNA."124 By continuing to include Banning Ranch in its site inventory, regardless of whether the units are being used to meet its RHNA or to increase its surplus, the City is willfully ignoring the widely shared opinion that Banning Ranch is unlikely to be developed for residential use and the clear indication that HCD will not accept the use of Banning Ranch without "compelling evidence to the contrary," which the City has failed to provide.125 Third, the continued inclusion of Banning Ranch in the City's site inventory runs afoul of the intent behind the No Net Loss law by artificially increasing its site surplus. The Legislature adopted the No Net Loss law "to ensure development opportunities remain available throughout the planning period to accommodate the jurisdiction's regional housing need allocation (RHNA), especially for lower- and moderate -income households," "to expand the supply of housing, including affordable housing, and to ensure jurisdictions do not take actions to reduce the potential capacity for new development."126 Sufficient adequate sites must be available at all 122 County of Orange, 2021-2029 Housing Element Update, 242 (October 28, 2021). 121 City of Newport Beach, 2021-2029 Housing Element, B-83 to 85 (February 2022). 124 HCD, City of Newport Beach's Revised 6t1i Cycle (2021-2029) Draft Housing Element, 5 to 6 (Jan. 14, 2022). 125 City of Newport Beach, 2021-2029 Housing Element, 4-7 (February 2022); HCD, City of Newport Beach's Revised 61 Cycle (2021-2029) Draft Housing Element, 5 to 6 (Jan. 14, 2022). 121 HCD, No Net Loss Law Government Code Section 65863, 1, 3 (October 2, 2019). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 P. 18 times to meet a jurisdiction's unmet RHNA.12' An adequate site must meet several requirements, including that it is "available to be developed in the planning period." 128 Because Banning Ranch is not a realistic development opportunity, it cannot be considered adequate. Using an inadequate site to artificially increase the City's site surplus means that above -moderate income units can be developed on other sites that were deemed adequate to accommodate lower -income housing without triggering No Net Loss law. Banning Ranch enables the City to claim that those 443 lower -income opportunities are not lost because they can be made up on Banning Ranch.129 Because the City is only required to provide housing opportunities, the City will effectively be absolved of its responsibility to provide opportunities for 18% of its lower income-RHNA.130 Therefore, the City must completely remove Banning Ranch from its site inventory. Accessory Dwelling Units The City views ADUs as a "substantial opportunity to develop affordable housing" due to high land values in the jurisdiction, site availability, positive historical trends in ADU development, and policies and programs that promote the development of ADUs. 131 Based on these factors, the City anticipates that 240 ADUs will develop in the 6th Cycle. 132 However, if the City follows HCD's recommended formula to average the ADU applications since 2018 and multiply it by eight years of the planning period, the City should only estimate 114 ADUs for the planning period.133 Although the City created several programs to generate the extra 126 anticipated units, Policy Action 1H can be improved.134 Policy Action 1H: Accessory Dwelling Unit Construction states that the City will conduct a public awareness campaign, provide outreach materials on its website, "[evaluate] and [assess] the appropriateness of additional incentives to encourage ADU development," and make pre - approved prototype plans available to property owners.13' To better achieve these goals, the City should first include fair housing information in its public awareness campaign and outreach materials as owners of ADUs may not be familiar with their obligations as landlords. Second, the City should use additional incentives to encourage affordability. Given the affluence in the jurisdiction, most ADUs will be constructed on above moderate -income properties and providing incentives that specifically encourage affordability can help address patterns of segregation. Third, the City should include ADU prototype plans that are accessible to seniors and people with disabilities to create much needed affordable, accessible housing options. 12' HCD, No Net Loss Law Government Code Section 65863, 3 (October 2, 2019). 12' HCD, No Net Loss Law Government Code Section 65863, 3 (October 2, 2019 121 City of Newport Beach, 2021-2029 Housing Element, B-9 (February 2022). 13o City of Newport Beach, 2021-2029 Housing Element, B-9 (February 2022). 131 City of Newport Beach, 2021-2029 Housing Element, D-3 to 4 (February 2022). 132 City of Newport Beach, 2021-2029 Housing Element, 3-128 (February 2022). 133 City of Newport Beach, 2021-2029 Housing Element, D-7 (February 2022). 134 City of Newport Beach, 2021-2029 Housing Element, 3-128 (February 2022). 135 City of Newport Beach, 2021-2029 Housing Element, 4-9 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 P. 19 Housing for Seniors The City identified 19,574 senior residents within the jurisdiction, the second largest senior population in the County.13' 4,134 seniors have disabilities, most of which ambulatory, independent living, and hearing disabilities.137 While the City generally identified limited and fixed incomes, high healthcare costs, higher mobility and self -care limitations, transit dependency, and living alone as issues important to senior residents, it failed to quantitatively and qualitatively analyze these needs. For example, the City identified 62 seniors using Section 8 vouchers but failed to ascertain how many seniors are lower-income.138 With this information, the City could have better assessed whether past and existing programs can address this need. If they could not, the City could have created a program to do so. Instead, the City broadly states that seniors would benefit from affordable senior housing developments and supportive housing.139 However, the City has failed to provide these housing resources through past programs and failed to address constraints to the development of affordable senior housing options. Further, the City fails to explain how its new programs will address unmet needs and promote these housing options. Past Programs Addressing Affordable Senior Housing Policy Actions 1.1.2, 2.2.8, 5.1.2, 5.1.3, and 5.1.7 from the City's 5th Cycle Housing Element specifically mention promoting housing for seniors but have largely failed to encourage the development of affordable senior housing.140 Policy Action 1.1.2 required the City "investigate the use of federal funds and local funds, including Community Development Block Grants (CDBG) and the Affordable Housing Fund, to provide technical and/or financial assistance, if necessary, to existing lower- and moderate -income, owner occupants of residential properties through low -interest loans or emergency grants to rehabilitate and encourage the preservation of existing housing stock." 141 These funds were used to fund three programs benefitting senior residents.142 However, it appears that this program could have been more effective. First, the Senior Home Assistance Repair Program (SHARP) was an agreement with Habitat for Humanity Orange County that had a $600,000 grant for "critical home repair for low- income seniors."143 Only $243,466 of this grant was used over 11 projects.144 The City should have explained why the rest of the funds were not utilized and created a program that would ensure that this does not occur again in the future. 136 City of Newport Beach, 2021-2029 Housing Element, 2-18 (February 2022). 13' City of Newport Beach, 2021-2029 Housing Element, 2-19 (February 2022). 131 City of Newport Beach, 2021-2029 Housing Element, 3-88 (February 2022). "' City of Newport Beach, 2021-2029 Housing Element, 2-19 (February 2022). 141 City of Newport Beach, 2021-2029 Housing Element, A-1 to 3, A-9 to 10, A-27 to 31 (February 2022). 141 City of Newport Beach, 2021-2029 Housing Element, A-1 (February 2022). 142 City of Newport Beach, 2021-2029 Housing Element, A-1 to 3 (February 2022). 143 City of Newport Beach, 2021-2029 Housing Element, A-1 (February 2022). 144 City of Newport Beach, 2021-2029 Housing Element, A-1 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 20 Second, Seaview Lutheran entered into an affordable housing grant agreement for $800,000 to upgrade bathrooms in an apartment building serving low-income seniors as part of a larger rehabilitation effort.14' Although this agreement extended the affordability requirement to 2069, Seaview Lutheran did not pursue an additional agreement that would have provided another $800,000 to the project.146 The City should have investigated why Seaview Lutheran decided not to pursue the subsequent agreement and created a program that would encourage these agreements for future developments. Policy Action 2.2.8 "[implemented] Chapter 20.32 (Density Bonus) of the Zoning Code and [educated] interested developers about the benefits of density bonuses and related incentives for the development of housing that is affordable to very low-, low-, and moderate -income households and senior citizens."147 While this program produced several lower -income units, it did not produce any units specifically created for seniors.148 If development of senior housing is a priority for this program, the City should include specific incentives for it and describe them in its element. Policy Action 5.1.2 required that the City "cooperate with the Orange County Housing Authority to pursue establishment of a Senior/Disabled or Limited Income Repair Loan and Grant Program to underwrite all or part of the cost of necessary housing modifications and repairs" by participating in the Orange County Continuum of Care and providing CDBG funding.149 However, it is unclear how effective this program was. In addition to the aforementioned SHARP program, the City "[referred] low-income residents to Orange County for rehabilitation of mobile homes, to Neighborhood Housing for first time buyer programs, and to Rebuilding Together for handyman service for low-income and senior households" but does not describe how many seniors actually received assistance.150 The City should have surveyed seniors that were referred to these programs to ensure their needs were met and revise this program if they were not. Policy Action 5.1.3 required that the City permit, promote, and facilitate the development of senior ADUs by "providing brochures and/or informational materials at the building permit counter, online, and other appropriate locations detailing the benefits and the process for obtaining approval." 15 1 Although the City describes the number of ADUs permitted over recent years, it does not provide any evidence that these ADUs benefitted senior residents.152 The City should provide specific incentives for creating affordable senior ADUs and monitor whether ADUs are actually being used in this manner. 145 City of Newport Beach, 2021-2029 Housing Element, A-3 (February 2022). 141 City of Newport Beach, 2021-2029 Housing Element, A-3 (February 2022). 147 City of Newport Beach, 2021-2029 Housing Element, A-9 to 10 (February 2022). 141 City of Newport Beach, 2021-2029 Housing Element, A-9 to 10 (February 2022). 141 City of Newport Beach, 2021-2029 Housing Element, A-27 to 28 (February 2022). 151 City of Newport Beach, 2021-2029 Housing Element, A-27 (February 2022). 151 City of Newport Beach, 2021-2029 Housing Element, A-28 (February 2022). 152 City of Newport Beach, 2021-2029 Housing Element, A-28 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 21 Policy Action 5.1.7 "[encourages] senior citizen independence through the promotion of housing services related to in -home care, meal programs, and counseling, and [maintains] a senior center that affords seniors opportunities to live healthy, active, and productive lives in the City."153 While most programs appear to be free, the City should consider creating scholarships to allow lower -income seniors the opportunity to participate in the programs that require an additional fee. Constraints on the Development of Affordable Senior Housing The City has failed to address constraints to the development of affordable senior housing. Despite noting that seniors would benefit from a variety of affordable senior and supportive housing, the City limits the areas where large residential care facilities, residential care accessory uses, caretaker residences, and congregate care homes and convalescent facilities are permitted.154 Limited Licensed Residential Care Facilities with 6 or fewer people are permitted in all residential zones, but all other types of residential care facilities require a CUP-HO (conditional use permit in residential zoning districts) in RM and RMD zones.155 Residential care as an accessory use requires a minor use permit in PF and PI zones; caretaker residences are only permitted in IG zones; and congregate care homes and convalescent facilities require a minor use permit in PI zones.156 While these limitations "are intended to avoid overconcentration so as to maintain the residential character of a neighborhood, which if lost would have an adverse effect on the welfare of the individuals' receiving services from the residential care facility and defeat the purpose of community -based recovery," they are limiting the number of seniors that can receive assistance.157 Rather than restricting the zones where these facilities are permitted, the City should require a certain distance between each facility. This would allow facilities to be spread out but able to be developed in areas with senior resources. Programs Addressing Senior Housing Needs Three of the City's programs are intended to address senior housing needs. However, the City should make the following revisions to better address these needs and meet statutory requirements. First, Policy Action 613: Repair Loans and Grant Programs for Seniors, Persons with Physical and Developmental Disabilities and Lower -Income Households will require the City and its partners to continue its SHARP program to assist low-income seniors with home repair and modifications addressing accessibility needs, safety concerns, and health and well-being.158 However, because this program has been slow to distribute funds during the previous cycle, the City should explain how it will make the program more effective in the 6th Cycle.159 iss City of Newport Beach, 2021-2029 Housing Element, A-29 (February 2022). isa City of Newport Beach, 2021-2029 Housing Element, 2-19, 3-19 (February 2022). iss City of Newport Beach, 2021-2029 Housing Element, 3-19 (February 2022). 156 City of Newport Beach, 2021-2029 Housing Element, 3-19 (February 2022). 151 City of Newport Beach, 2021-2029 Housing Element, 3-23 (February 2022). 151 City of Newport Beach, 2021-2029 Housing Element, 4-27 (February 2022). 159 City of Newport Beach, 2021-2029 Housing Element, A-1 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 22 The City says it will also work with OCHA "to pursue establishment of a Senior/Disabled or Limited Income Repair Loan and Grant Program to underwrite all or part of the cost of necessary housing modifications and repairs" and attend quarterly meetings on these programs but should explain how it will advocate for this program and what actions it will take if a partnership with OCHA is not possible.160 Second, Policy Action 6E: Housing Assistance for Seniors will continue to fund senior services such as in -home care, meal programs, counseling, and other services. 161 The City also generally states that it "will encourage and approve senior housing developments if there is a market demand provided the projects include appropriate support services including transportation" while prioritizing lower and moderate -income units.162 However, the City must explain how it will assess market demand and how it will encourage affordable developments with these services. Third, Policy Action 6G: Senior Housing Priority Program states that the City "seeks to [develop/explore] the feasibility and appropriateness of proactive policies and programs to address and prioritize the needs of its senior population."16' Additionally, the City "will strategically collaborate with the local senior community and organizations providing senior services to evaluate existing programs and to address and prioritize the needs of its senior population."164 Based on these actions, "the City will develop a comprehensive prioritization program for Senior Housing," which "will establish the specific methodologies for priority ranking, criteria, scoring and related new policies, programs, regulations and incentives as appropriate."16s However, these actions are not timely, as they should have been completed as part of the housing element update process. Then, the City could have described the policies, programs, regulations and incentives in its draft. The City must complete this assessment as soon as possible and revise its programs before resubmitting a draft to HCD. Housing for Persons with Disabilities The City identified 6,943 people with disabilities living in the jurisdiction.166 However, the City has failed to quantitatively and qualitatively analyze the needs of this group. First, the City states that there are "no current comparisons of disability with income, household size, or race/ethnicity' available and "[assumes] that a substantial portion of persons with disabilities would have annual incomes within Federal and State income limits. ,16' The City could have conducted a survey of its residents with disabilities to obtain this information and identified the specific housing issues this group faces. Then, the City could have created programs aimed at addressing those issues. 161 City of Newport Beach, 2021-2029 Housing Element, 4-27 (February 2022). 161 City of Newport Beach, 2021-2029 Housing Element, 4-28 to 29 (February 2022). 162 City of Newport Beach, 2021-2029 Housing Element, 4-29 (February 2022). 161 City of Newport Beach, 2021-2029 Housing Element, 4-29 (February 2022). 164 City of Newport Beach, 2021-2029 Housing Element, 4-30 (February 2022). "I City of Newport Beach, 2021-2029 Housing Element, 4-30 (February 2022). 166 City of Newport Beach, 2021-2029 Housing Element, 2-18 (February 2022). 167 City of Newport Beach, 2021-2029 Housing Element, 2-20 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 23 Instead, the City generally assumes that limited earning capacity, a lack of accessible and affordable housing, and higher healthcare costs associated with a disability result in an increased need for affordable and barrier -free housing, rehabilitation assistance, and supportive living arrangements such as group homes.168 However, the City has failed to properly describe possible constraints on the development of accessible, affordable housing and has failed to include programs promote it. Constraints on the Development of Accessible Housing The City notes that "occupancy codes and restrictions may be a significant local contributing factor to fair housing issues" and that "there is a substantial recent history of municipal ordinances targeting group homes, in general, and community residences for people in recovery from alcohol or substance abuse disorders."169 Specifically, the City's conditional use permit requirement for residential care facilities for 7 or more people could be considered a fair housing issue.170 The City states that it settled a challenge regarding its ordinance, but that the settlement did not require the ordinance be repealed. 171 The City also explains that "these types of restrictions may be burdensome for ethical, high -quality group home operators" but that "occupancy codes and restrictions are not as high priority of a barrier as the factors that hinder the development of permanent supportive housing, as group homes are generally less integrated than independent living settings."172 However, the City should have explained how its ordinance relating to occupancy codes and restrictions contribute to fair housing issues. Additionally, because the court did not require its ordinance be repealed, the City should have explained how its ordinance does not continue to harm residents with disabilities. Further, the City should have explained what other factors hinder the development of permanent supportive housing and group homes. The City must provide this information and develop a program that addresses these issues. Finally, Policy Action 3P requires the City to "review, and amend if necessary, the permitting procedures, application requirements, and development standards applicable to residential care facilities for persons of 7 or more to ensure consistency with state and federal laws."173 However, the City should have already reviewed these procedures, requirements, and standards to determine whether they constrain the development of housing for people with disabilities. The City should perform this analysis and revise Policy Action 3P to describe what steps the City will take to address the constraint. i6a City of Newport Beach, 2021-2029 Housing Element, 2-20, 2-23 (February 2022). i69 City of Newport Beach, 2021-2029 Housing Element, 3-59 (February 2022). 171 City of Newport Beach, 2021-2029 Housing Element, 3-24 (February 2022). 171 City of Newport Beach, 2021-2029 Housing Element, 3-59 to 60 (February 2022). 172 City of Newport Beach, 2021-2029 Housing Element, 3-60 (February 2022). 173 City of Newport Beach, 2021-2029 Housing Element, 4-17 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 24 Programs Addressing Housing Needs of Persons with Disabilities Along with a reasonable accommodation procedure, Programs 6B and 7C are intended to address the special housing needs of people with disabilities but should be revised to better meet these needs. Policy Action 6B: Repair Loans and Grant Programs for Seniors, Persons with Physical and Developmental Disabilities and Lower -Income Households continues the City's SHARP program to "[assist] low-income seniors in need of critical home repair or modifications due to accessibility needs, safety concerns, health and well-being" with plans "to cooperate with the Orange County Housing Authority to pursue establishment of a Senior/Disabled or Limited Income Repair Loan and Grant Program to underwrite all or part of the cost of necessary housing modifications and repairs."174 However, the City should commit to creating the program to help low-income people with disabilities that are not seniors obtain these accessibility modifications and repairs regardless of OCHA's cooperation. Policy Action 7C: Housing for Persons with Developmental Disabilities states that "the City will review and prioritize housing construction and rehabilitation including supportive services targeted for persons with developmental disabilities" and "explore the granting of regulatory incentives, such as expedited permit processing, and fee waivers and deferrals, to projects targeted for persons with developmental disabilities."175 Again, the City should have already explored possible regulatory incentives during the housing element process and could have described its plan to prioritize affordable housing for people with disabilities in this program. The City should conduct this analysis and revise this program before resubmitting a draft to HCD. Housing for Large Households There are 1,945 large households within the jurisdiction, 558 of which are renters.176 Although the City does not quantify how many large households are lower -income, it acknowledges that this group must stretch their household income across more people and face housing issues such as a limited supply of adequately sized affordable units and overcrowding.177 While the City notes that large families would benefit from affordable large housing options and affordable childcare, it fails to create programs that will provide them.178 The City claims that Policy Actions I through 1F, 4C, 4D, 6C and 6D "will provide standards and provisions that will support the provision of larger sized family units."179 However, these programs are not adequate and should be revised to better address the needs of large families. 174 City of Newport Beach, 2021-2029 Housing Element, 4-27 (February 2022). 175 City of Newport Beach, 2021-2029 Housing Element, 4-31 (February 2022). 176 City of Newport Beach, 2021-2029 Housing Element, 2-18, 2-24 (February 2022). 17 City of Newport Beach, 2021-2029 Housing Element, 2-24 (February 2022). 171 City of Newport Beach, 2021-2029 Housing Element, 2-24 to 25 (February 2022). 179 City of Newport Beach, 2021-2029 Housing Element, 2-25 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 25 Although the City claims that Policy Actions IA through IF will establish housing opportunity overlays or other rezoning strategies to the Airport Environs Sub Area, West Newport Mesa, Newport Center, Dover/Westcliff, Banning Ranch, and Coyote Canyon areas to support the development of larger sized family units, none of these programs mention large units or any other special housing needs.180 Without any language to support the City's claim, it cannot assume that general programs rezoning areas for housing opportunities will yield large, affordable units. Similarly, 4C: Density Bonus and Incentives for Affordable Housing, 41): List of Pre - Approved Development Incentives, and 6C: Leverage CDBG and other Federal Formula Grant Funding all generally promote the development of affordable housing but do not mention encouraging the development of adequately sized units for large families. 181 The City must either remove the claim that these programs do so or revise these programs to include incentives that will specifically encourage this affordable, large unit development. While Program 61): Child Daycare Facilities "will continue to encourage the development of daycare centers as a component of new affordable housing developments and grant additional incentives in conjunction with the review and approval of density bonus projects," it only addresses an issue that is related to a large family's ability to afford adequate housing.182 It does not directly address the lack of affordable, adequately sized units available within the jurisdiction. The City should prioritize creating a program that describes specific incentives that will encourage the development of such units before addressing other issues. Housing for Single -Parent Households There are 1,358 single -parent households within the jurisdiction, including 936 female - headed households with children and 422 male -headed households with children.183 183 of these households are also living in poverty.184 The City generally states that these households face challenges such as lack of affordable housing options, higher monthly cost burdens due to single incomes, and childcare needs and that these families would benefit from affordable housing and childcare options.185 Aside from generally promoting affordable housing, only Policy Action 6D addresses this group's needs.186 However, Policy Action 61): Child Daycare Facilities was a part of the 5th Cycle Housing Element but did not result in the development of any child daycare facilities during the planning cycle.187 The City should review the program and determine how it can be strengthened to actually result in the development of more affordable childcare facilities in the City, especially in the Newport Center Focus Area, where the City has identified a concentration 1so City of Newport Beach, 2021-2029 Housing Element, 4-4 to 8, 2-25 (February 2022). 1s1 City of Newport Beach, 2021-2029 Housing Element, 4-21 to 22, 4-27 to 28 (February 2022). 112 City of Newport Beach, 2021-2029 Housing Element, 4-28 (February 2022). 113 City of Newport Beach, 2021-2029 Housing Element, 2-26 (February 2022). 114 City of Newport Beach, 2021-2029 Housing Element, 2-26 (February 2022). 115 City of Newport Beach, 2021-2029 Housing Element, 2-26 (February 2022). "I City of Newport Beach, 2021-2029 Housing Element, 4-28 (February 2022). 187 City of Newport Beach, 2021-2029 Housing Element, 4-28, A-29 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 26 of female -headed households and a concentration of renters and homeowners experiencing housing cost burdens.'$$ Additionally, the City should explore other methods of assisting lower - income families with childcare needs such as providing childcare allowances or scholarships to specific childcare facilities. Housing for Farmworkers Although the City notes that there are 92 farmworkers living within the jurisdiction and that farmworkers generally "earn lower incomes than many other workers and move throughout the year from one harvest location to the next," it fails to address these needs.189 For example, farmworker housing is not permitted anywhere in the jurisdiction.l90 While the City claims that Policy Action 30: Single Resident Occupancies (SROs) will help address this need, it does not actually state that SROs for farmworkers are being considered.191 Additionally, Policy Action 30 vaguely claims that "the City will continue to study housing impacts of proposed larger -scale, significant commercial/industrial" housing, "use State and federal funding to continue to provide assistance and make provisions for development of single - room occupancy (SRO) housing and other forms of housing for people experiencing homelessness in the City," and "ensure that such housing options include reasonable accommodations and supportive services for people with disabilities."192 The goal of this program is to "encourage the develop of at least one SRO development within the Planning Period."193 However, the City should have explained how it will encourage the development of SROs. In addition to generally promoting affordable housing and childcare options, the City could provide financial assistance to lower -income farmworkers through rental assistance, childcare allowances, and permitting creative housing options. Housing for People Experiencing Homelessness There are 64 people experiencing homelessness within the jurisdiction, all of which are unsheltered.194 The City states that it "entered a partnership with the adjacent City of Costa Mesa for shelter beds at the Costa Mesa Bridge Shelter, which opened in Spring 2021," but did not properly describe this agreement.195 The City of Costa Mesa asserted that this shelter will receive $1 million annually from the City of Newport Beach in exchange for 20 set -aside beds.196 If this is accurate, then the City of Newport Beach must plan to accommodate at least 44 more people experiencing homelessness. 18I City of Newport Beach, 2021-2029 Housing Element, 3-93, 94, 98, 99 (Figures 3-15, 3-16, 3-18, 3-19) (February 2022). 1s9 City of Newport Beach, 2021-2029 Housing Element, 2-18, 2-26 to 27 (February 2022). 190 City of Newport Beach, 2021-2029 Housing Element, 3-20 (February 2022). 191 City of Newport Beach, 2021-2029 Housing Element, 3-26, 4-17 (February 2022). 112 This program description is incomplete. We assume that the first sentence is referring to large-scale workforce housing. City of Newport Beach, 2021-2029 Housing Element, 4-17 (February 2022). 113 City of Newport Beach, 2021-2029 Housing Element, 4-17 (February 2022). 114 City of Newport Beach, 2021-2029 Housing Element, 2-18, 2-32 (February 2022). 115 City of Newport Beach, 2021-2029 Housing Element, 2-32 (February 2022). "I City of Costa Mesa, Housing Element 2021-2029, 4-22 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 27 However, the zones permitting emergency shelters are inadequate, the City's past efforts to assist people experiencing homelessness have failed to address this need, the City's emergency shelter standards act as constraints on the development of shelters, and the City's programs to address emergency shelter needs are inadequate. Required Zoning for Emergency Shelters The City permits emergency shelters by -right in the Office Airport (OA) and Private Institutions Coastal zoning district (PI), which together includes 98 parcels over 189 acres.197 However, sites 18, 18 (duplicate), 27, 28, 29, 30, 31, 61, 111, 112, 146, and 147 are within the OA and PI zones and were also selected to accommodate housing development in the City's site inventory.198 This essentially reduces the opportunities for emergency shelters from 98 to 86 in favor of 293 low/very low-income, 96 moderate -income, and 584 above moderate -income housing opportunities across 12 sites.199 Developing any of these sites as emergency shelters would diminish the City's ability to meet its RHNA. Additionally, the OA zone appears to be limited to a one block area near the airport.200 Because the City requires that emergency shelters be located at least 300 feet away from another emergency shelter, if one emergency shelter is built in this area, a significant portion of the remaining area will be ineligible for developing additional shelters. Given these limitations, the City should allow shelters to be developed by - right in additional zones. Past Programs Addressing Needs of People Experiencing Homelessness The City's past efforts to aid people experiencing homelessness have not addressed its need. Policy Action 5.1.1 required the City to "apply for United States Department of Urban Development Community Development Block Grant (CDBG) funds and allocate a portion of such funds to subrecipients who provide shelter and other services for the homeless."201 The City states that it funded several organizations "to preserve the supply of emergency and transitional housing," funded a City Motel Voucher Program to provide short term lodging for people experiencing homelessness, and approved a Memorandum of Understanding between itself and the City of Costa Mesa for the funding, development, and shared use of a Temporary Homeless Shelter Facility.202 However, despite planning to continue this program without modification, the City has not actually explained how successful it was. Additionally, the 2019 Point In Time Count described all 64 people experiencing homelessness within the jurisdiction as being unsheltered.203 The City should identify how many people experiencing homelessness benefitted from the funding it provided to organizations, how many people were sheltered under the City Motel Voucher Program, and how many people went to the Temporary Homeless Shelter Facility in Costa Mesa. Then, the City can determine whether this program needs to be revised to better meet its emergency shelter need. City of Newport Beach, 2021-2029 Housing Element, 3-27 (February 2022). i9a City of Newport Beach, 2021-2029 Housing Element, B-27 to 28, B-31, B-61, B-87 (February 2022). i99 City of Newport Beach, 2021-2029 Housing Element, B-27 to 28, B-31, B-61, B-87 (February 2022). 201 City of Newport Beach, Current Zoning Map for the City of Newport Beach, ho2s://www.newportbeachca.aov/flome/ShowDocument?id=660 (last visited Mar. 23, 2022). 201 City of Newport Beach, 2021-2029 Housing Element, A-26 to 27 (February 2022). 202 City of Newport Beach, 2021-2029 Housing Element, A-26 to 27 (February 2022). 201 City of Newport Beach, 2021-2029 Housing Element, 2-32 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 28 Constraints on the Development of Emergency Shelters The City has also failed to address constraints on the development of emergency shelters. First, the City failed to describe its emergency shelter standards and failed to demonstrate that they are objective and encourage and facilitate the development of, or conversion to, emergency shelters.204 Second, the City's standards relating to facility layout, sleeping area, bathroom facilities, telephone services, congregation in neighborhood, litter and graffiti, and controlled access are not permitted by statute and impede the development of emergency shelters.205 For example, requiring a shelter operator to secure the shelter itself and patrol the surrounding 1,000 feet to prevent people experiencing homelessness from congregating in the neighborhood will require the shelter operator to hire extra security, diverting resources from the programs that actually address the needs of this group.206 Additionally, although statutorily permitted, the City should seriously consider permitting stays longer than 14 days.207 Because of high rental rates and difficulty of obtaining rental assistance, it is unreasonable to expect a person experiencing homelessness to no longer need emergency shelter after 14 days. Limiting stays to 14 days would deter people experiencing homelessness from using shelters within the jurisdiction because they would have to seek additional shelter within a very short time frame. To address these issues, the City must remove unpermitted provisions from its emergency shelter standards and should extend the length of stay permitted in its shelters. Programs Addressing Needs of People Experiencing Homelessness Policy Actions 6A, 6F, 7A, and 7B are intended to address the needs of people experiencing homelessness but do not actually encourage the development of emergency shelters.208 Policy Action 6A: Homeless Program Assistance requires the City to allocate a portion of CDBG funds "to sub -recipients who provide shelter and other services for the homeless."209 Policy Action 6F: Emergency Shelters, Transitional and Supportive Housing commits the City to updating its Municipal Code provisions relating to Supportive Housing Streamlined Approvals; Emergency and Transitional Housing requirements, standards, and analyses; and its zoning code to comply with State law.210 Policy Action 7A: Supportive Housing/Low Barrier Navigation Centers commits the City to updating requirements around these types of resources, "[providing] for annual monitoring of the effectiveness and appropriateness of existing adopted policies," and amending any policies, if warranted.211 211 Cal. Gov. Code Section 65583(a)(4)(A). 215 Newport Beach, Cal., Code 20.48.100 (2021); Cal. Gov. Code Section 65583(a)(4)(A). 216 Newport Beach, Cal., Code 20.48.100 (2021). 207 Newport Beach, Cal., Code 20.48.100 (2021). 208 City of Newport Beach, 2021-2029 Housing Element, 2-33, 4-27, 4-2, 4-30 to 31 (February 2022). 211 City of Newport Beach, 2021-2029 Housing Element, 4-27 (February 2022). 211 City of Newport Beach, 2021-2029 Housing Element, 4-2 (February 2022). 211 City of Newport Beach, 2021-2029 Housing Element, 4-30 (February 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 29 Policy Action 713: Transitional and Supportive Housing "will ensure the Zoning Code is amended to encourage and [facilitate] emergency shelters and limits the denial of emergency shelters and transitional and supportive housing," "permit transitional and supportive housing by - right in all zones allowing residential uses," and amend definitions in the Zoning Code to meet State law.212 The City will also "will continue to monitor the inventory of sites appropriate to accommodate transitional and supportive housing and will work with the appropriate organizations to ensure the needs of homeless and extremely low-income residents are met" and will "[prioritize] funding and other available incentives for projects that provide housing for homeless and extremely low-income residents whenever possible."213 While allocating funding to emergency shelter and resource providers is a step in the right direction, simply updating laws to meet statutory requirements does not actively promote the development of shelters within the jurisdiction. The City should explain how monitoring the inventory of sites appropriate to accommodate transitional and supportive housing will encourage development. Additionally, the City should explain how it has previously worked with organizations serving this demographic, describe how successful these efforts were, and describe specific actions that it will continue in the 6th Cycle. The City should identify a benchmark for successfully meeting the needs of people experiencing homelessness and extremely low-income residents and explain actions it will take if the benchmark is not met. Finally, the City should describe specific incentives it will provide to projects that house people experiencing homelessness and extremely low-income residents. The City should also create a program that explains how it will promote the development of at least two emergency shelters to address the needs of its unsheltered population. It should not rely on the eventual creation of transitional and supportive housing when its residents are facing homelessness today. Public Participation The City has failed to demonstrate a diligent effort to achieve public participation of all economic segments of the community on a meaningful, frequent, and ongoing basis.214 Although the City provided a number of opportunities for public participation, there were few and infrequent opportunities for the public to meaningfully engage with officials. It is also unclear whether these opportunities were accessible to different communities.215 Further, the City's public outreach efforts have significantly decreased as the update process continues. First, the timeline below lists various opportunities for public engagement such as community workshops, Housing Element Update Advisory Committee meetings, and study sessions. While Housing Element Update Advisory Committee meetings and study sessions allow the City to discuss and inform the public on the update progress, public input is typically limited to written comment or one -to -two minute verbal comments. City officials do not necessarily respond to comments received in this forum, minimizing the opportunity for 212 City of Newport Beach, 2021-2029 Housing Element, 4-30 to 31 (February 2022). 211 City of Newport Beach, 2021-2029 Housing Element, 4-31 (February 2022). 214 Cal. Gov. Code Section 65583(c)(9); HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 10 (April 2021). 215 HCD, Affirmatively Furthering Fair Housing: Guidance for All Public Entities and for Housing Elements, 10 (April 2021). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 30 interactive discussion. Because of these limitations, it is important for cities to provide additional opportunities for the public to engage with city officials meaningfully and interactively. However, the City provided those kinds of opportunities only 13 out of 36 times. Additionally, seven of these opportunities were at the beginning of the update process in 2019. The other six opportunities were distributed sporadically throughout the rest of the process. Then, after the first full Draft Housing Element was published for public review on July 7, 2021, the City provided no opportunities for meaningful public participation, limiting opportunities to only six City Council Study Sessions and Housing Element Update Advisory Committee meetings. This means that the public was not able to interactively discuss aM of the full Draft Housing Elements with City staff. Throughout the rest of the planning period, the City must hold more collaborative meetings with the public on a frequent an ongoing basis.216 Second, despite the claim that, as part of its "efforts to further fair housing, the City will consider increased targeted outreach to the City's minority residents," it has not demonstrated that all economic segments of the community were reached .217 The City claims that the Kennedy Commission, Public Law Center, Campaign for Fair Housing, YIMBY Law, People for Housing, SPON, Jamboree Housing, Trellis Homeless outreach, St. James Episcopal Church, Serving People in Need, and Be Well Orange County "were active participants in the creation of the Housing Element" but does not describe what residents these organizations represent, what comments they gave, or how their comments were addressed.218 The City also did not collect demographic information at its community meetings and therefore cannot demonstrate diverse public participation. Further, the City held almost all of its meetings at 6:00pm, which prevents residents that do not work "regular" 9:00am to 5:00pm hours from participating. Finally, though there were "no Spanish translation service requests were made by the public at any Workshop, Study Session or community activity," the City should have investigated why these services were not required as this could indicate that the City did not provide adequate opportunities for this demographic to participate.219 Timeline of Public Participation Opportunities 220 November 12, 2019 16th Street Recreation Center - 6:00 m to 8:00 m 211 Cal. Gov. Code Section 65583(c)(9). 21 City of Newport Beach, 2021-2029 Housing Element, 3-64 (February 2022). 211 City of Newport Beach, 2021-2029 Housing Element, C-5 to 6 (February 2022). 211 City of Newport Beach, 2021-2029 Housing Element, C-4 (February 2022). 221 City of Newport Beach, 2021-2029 Housing Element, Appendix C (February 2022); City of Newport Beach, Housing Element Update Advisory Committee Agendas & Minutes, https://ecros.newportbeachca.gov/Web/Browse.aspx?startid=691513&cnb=BoardsCommissions (last visited Mar. 24, 2022); City of Newport Beach, City Calendar, https://www.newportbeachca.gov/government/data-hub/city- calendar/-selcat-33/-curm-3/-cury-2022 (last visited Mar. 24, 2022); City of Newport Beach, Housing Element Adopted, https://www.newportbeachca.gov/govemment/departments/community-development/planning- division/general-plan-codes-and-regulations/general-plan-update/housing-element-screencheck-draft-march-l0- 2020 (last visited Mar. 24, 2022). 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 31 November 14, 2019 Back Bay Science Center - 6:00 m to 8:00 m November 20, 2019 Newport Coast Community Center - 6:00 m to 8:00 m November 21, 2019 OASIS Senior Center - 6:00 m to 8:00 m December 3, 2019 Central Library's Friend Meeting Room - 6:00 m to 8:00 m December 11, 2019 Bonita Creek Community Center - 6:00 m to 8:00 m December 12, 2019 Marina Park Community Center - 6:00 m to 8:00 m + 313 days until the next opportunity for meaningful public interaction with City officials July 1, 2020 Housing Element Update Advisory Committee Meeting - 6:00 m July 15, 2020 Housing Element Update Advisory Committee Meeting - 6:00 m September 2, 2020 Housing Element Update Advisory Committee Meeting - 6:00 m October 7, 2020 Housing Element Update Advisory Committee Meeting - 6:00 m October 20, 2020 Community Workshop # 1 - 82 participants - 6:OOpm to 7:30pm + 27 days until the next op 3ortunityfor meaningful public interaction with City officials October 21, 2020 Housing Element Update Advisory Committee Meeting - 6:OOpm - Kennedy Commission presentation November 4, 2020 Housing Element Update Advisory Committee Meeting - 6:00 m November 16, 2020 Community Workshop #2 - 61 participants November 17, 2020 Community Workshop #3 - 55 participants + 99 days until the next o ortunity for meaningful public interaction with City officials December 2, 2020 Housing Element Update Advisory Committee Meeting - 6:00 m January 20, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m February 3, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m February 17, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m February 24, 2021 1 Community Workshop #4 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 32 - 6:00 m 26 days until the next opportunity for meaningful public interaction with City officials March 3, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m March 10, 2021 Initial Housing Element Draft Published for Public Review March 17, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m March 22, 2021 Community Workshop #5 - 6:00 m + 91 days until the next op:)ortunity for meaningful public interaction with City officials March 22, 2021 Planning Commission Study Session March 31, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m April 27, 2021 City Council Study Session - 4:00 m June 8, 2021 City Council Study Session - 4:00 m June 21, 2021 Community Workshop #6 June 22, 2021 City Council Study Session - 4:00 m July 7, 2021 1 Housin Element Draft Published for Public Review + 37 days for public review until next draft is published July 13, 2021 City Council Study Session - 4:00pm August 13, 2021 Draft Housing Element Published for Public Review a •. • • • • • • -• August 13, 2021 Draft Housing Element Submitted to HCD September 14, 2021 City Council Study Session - 4:00 m October 12, 2021 HCD Review Letter Published RTVIMore next draft is published October 26, 2021 City Council Study Session - 4:00 m November 12, 2021 1 Draft Housing Element Published for Public Review + 5 days for public review before draft is submitted to HCD for review November 16, 2021 City Council Study Session - 4:00 m November 17, 2021 Housing Element Update Advisory Committee Meeting - 6:00 m November 17, 2021 Draft Housing Element Submitted to HCD January 14, 2022 HCD Review Letter Published 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 RE: City of Newport Beach Draft 6th Cycle Housing Element March 29, 2022 p. 33 January 25, 2022 City Council Study Session - 4:00 m February 4, 2022 Draft Housing Element Published for Public Review February 11, 2022 Adopted Housing Element Submitted to HCD Third, the City failed to provide adequate time and opportunity for public input between publishing drafts of the Housing Element. For example, the City published a Draft Housing Element for public review and submitted the Draft to HCD on the same day, August 13, 2021. The City only allowed seven days for public review and input before submitting its most recent Draft to HCD on February 11, 2022. Moving forward, the City should provide as much time for public review and input as possible, while providing opportunities for meaningful public interaction. Conclusion The housing element process is an opportunity for jurisdictions to meet the needs of California's residents, including needs for housing that is accessible to seniors, families, and workers and the needs of extremely low-, very low-, and low-income families for affordable housing. We encourage the City to revise its Housing Element to comply with state law and to make a concrete effort to assess the fair housing needs of its community and identify sites that affirmatively further fair housing and not perpetuate patterns of segregation. We look forward to working with the City in this effort to ensure that the housing needs of all residents of the City are addressed. Sincerely, THE PUBLIC LAW CENTER, BY: /s/ Richard Walker, Housing and Homelessness Prevention Unit, Senior Staff Attorney Alexis Mondares, Housing and Homelessness Prevention Unit, Staff Attorney 601 Civic Center Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 CP dr . h Rai NEWPORT SHORES PAR 0- SL Produr.*i(mP1 r,im.d $LqLmA QF?M5 Way Displacement 7rpology Lowd ncomelS uscept1bte to Displacement Ongoing Displacement At Risk of Ge ntrMcallo n Earl­ylOngoiilng Gefftficafierl Advanced Gentrification Stable Moderate/Mixed Income U Redlined Areas Opportunity zones El Hospitals lie El Universities& Colleges W 15th 3t. 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