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a.m., daily, are not proposed to be modified. The establishment currently operates with Conditional Use Permit No. UP2018-013, which would be superseded if this application is approved.
Recommended Actions:
1. Conduct a public hearing;
2. If the Planning Commission wishes to approve the project, then first find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment, and adopt Resolution No. PC2023-028 approving a conditional use permit and coastal development permit; or
3. If the Planning Commission wishes to deny the project, then first find the denial of the project statutorily exempt from CEQA pursuant to Section 15270 and adopt Resolution No. PC2023- 028 disapproving a conditional use permit and coastal development permit.
Senior Planner Lee used a presentation to review the Stag Bar operational changes, which included a conditional use permit and coastal development permit. Senior Planner Lee discussed the project location, establishment background, project request, increased occupant load, floor plan options, parking requirements, waiver of parking requirements, late hours, alcohol service, police department review, coastal development permit, and recommendation.
The Commissioners disclosed ex-parte communications with the applicant and/or his consultant by way of a conversation.
Chair Ellmore opened the public hearing
Mario Marovic, Stag Bar and Kitchen owner, used a presentation to review the applicant's background and track record, aerial view of McFadden Square, community outreach and involvement. Mr. Marovic showed before and after photos of improvements to McFadden Square and 22nd Street, provided a project timeline and security plan, and discussed how the Stag Bar is the number one Uber "restaurant" drop off location rating in Orange County with four- and one-half stars on Yelp. Mr. Marovic also discussed the merits of the parking study and agreed to the recommended conditions of approval.
Jim Mosher thought that staff inadvertently left out the action that the Planning Commission is approving, which is typically located somewhere between action number one and two on page 28 in the decision portion of the resolution approval. Additionally, a mechanism to appeal the conditional use permit should be included, where the appeal language only pertains to the coastal development permit aspect on page 39.
James Bozes expressed support for Stag Bar and Mr. Marovic.
Micah Schiesel, Director of Operations of the Lounge Group, expressed support for the changes.
Nathan Holthouser, 7t" Street homeowner on the Peninsula, asked the Planning Commission to support the changes and thought everything on the Peninsula should have no parking requirements.
In response to Mr. Mosher's comments, Senior Planner Lee stated that the resolution for the action and appeal period for Title 20 and 21 and correct language can be added into the final resolution for signatures.
Chair Ellmore closed the public hearing.
Commissioner Langford thanked Mr. Mosher for his attention to detail
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Secretary Harris noted that he frequents the area with his young children on his bike, would not have done so in the past, and thought it is a result of the applicant's efforts, trusted the applicant's track record, and expressed support.
Vice Chair Rosene thought the operator does wonderful things for the community, acknowledged the operator for McFadden Square being well -maintained, thought the Planning Commission should give Mr. Marovic the opportunity for approval, and expressed support.
Commissioner Lowrey noted the traffic engineer's approval of the 2019 parking study, approval for safety items by staff, the operator's control of the areas regarding police department concern, and zero concern that Mr.
Marovic, his team, and the police to address and end potential problems relatively quickly.
Motion made by Commissioner Lowrey and seconded by Commissioner Barto to approve the item with the recommendations listed and from Mr. Mosher.
AYES:
Barto, Ellmore, Harris, Langford, Lowrey, Rosene, and Salene NOES:
None
ABSTAIN:
None
ABSENT:
None
ITEM NO. 3
THE HOUSE ANNUAL REVIEW (PA2011-005)
Site Location: 2601 West Coast Highway
Summary:
The review of The House restaurant for compliance with Conditional Use Permit No. UP2011-001, originally approved by the Planning Commission on June 9, 2011. UP2011-001 authorized a restaurant with late hours, live entertainment, alcohol sales, outdoor dining, a parking management plan, and adjustment to off-street parking requirements.
Recommended Actions:
1. Conduct a public hearing;
2. Find this review exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment;
3. Review the current operation, The House, for its compliance with UP2011-001;
4. Find the operator's use of a floating outdoor dining vessel to be in violation of UP2011-001;
5. Direct the operator immediately cease and desist use of the floating outdoor patio vessel, and remove it within 30 days or file the necessary application to amend the use permit within 30 days requesting retention of the vessel; and
6. Direct staff to remove Condition No. 2 from Planning Commission Resolution No. 1844 related to annual reviews of the Use Permit No 2011-001 and perform reviews on an as -needed basis.
Assistant City Attorney Yolanda Summerhill noted that additional comments were received from the applicant's representative and suggested a modification from the recommended action to receive a brief presentation from staff, receive feedback from the Planning Commission, and ask for a continuance to bring back to the body for possible action.
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Senior Planner Lee used a presentation to present The House annual review, which included the project location, photos, background information, analysis of compliance with Use Permit (UP) 2011-001, the violation of a floating outdoor patio vessel, other violations, public comments from the applicant, and recommendation.
In response to Secretary Harris' question, Senior Planner Lee noted that an additional coastal development permit and review by the California Coastal Commission (CCC) would be required to pursue using the vessel as a patio to serve the restaurant. Additionally, he noted a conditional use permit amendment would be required to use the vessel for boat storage and guests and certain conditions of approval would need to be removed, especially Condition 65. For the boat storage, no coastal development permit would be required.
Ex parte communication was disclosed by Commissioners Rosene, Harris, and Lowrey who spoke with the applicant and Commissioner Langford who spoke with the owner.
Chair Ellmore opened the public hearing.
Jim Mosher noted the challenges with receiving CCC approval for a pier and docks, floats added to expand the pier/dock and uses that are not part of the original permit, and confusion if the area is a vessel or a patio, expressed doubt in the applicant's credibility based on a violation after the owner promised to abide by the rules, and thought the vessel did not seem easy to take out.
Chair Ellmore closed the public hearing. At the direction of Assistant City Attorney Summerhill, Chair Ellmore opened the public hearing.
In response to Vice Chair Rosene's inquiry, Senior Planner Lee clarified that the Leilani Rose is the patio/float name, and the applicant has stated that it is officially registered as a vessel with the Coast Guard.
In response to Commissioner Salene's question, Planning Manager Murillo clarified that the dock was previously approved for boats or vessels so any boat or yacht can park there. He noted the concern among staff is that the vessel serves and functions like a floating patio as an extension to the restaurant which is considered a different type of development that requires CCC approval. He indicated that a condition of approval for CCC permitting would be included in the City's future approval if the Planning Commission decided it is reasonable to use the vessel as a patio.
Motion made by Vice Chair Rosene and seconded by Commissioner Salene to continue the item to the September 7, 2023 Planning Commission meeting.
AYES: Barto, Ellmore, Harris, Langford, Lowrey, Rosene, and Salene NOES: None
ABSTAIN: None
ABSENT: None
ITEM NO. 4 HOUSING ELEMENT IMPLEMENTATION - NOISE -RELATED AMENDMENTS (PA2022-0201)
Site Location: Various sites in the Newport Beach Airport Area Summary:
Amendments to the Newport Beach General Plan Land Use and Noise Elements, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code (NBMC), the Newport Place Planned Community Development Standards (PC-11), and the Newport Airport Village Planned Community Development Plan (PC-60) for the following:
• Adopting updated noise contours (Noise Element Figures N4 and N5) to reflect the noise contours identified by the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617 (EIR No. 617);
• Updating Land Use and Noise Element Policies, Land Use Element Figures LU11, LU22, and LU23, Title 20, PC-11, and PC-60 to modify and incorporate the updated noise contours identified by EIR
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No. 617 and to implement additional noise attenuation measures for future housing units proximate to John Wayne Airport; and
• Allowing residential units identified by the certified 2021-2029 Sixth Cycle Newport Beach General Plan Housing Element to be located within the 65 dBA CNEL noise contour area as identified in the updated noise contour maps identified by EIR No. 617. Parcels bisected by the updated 65 dBA CNEL noise contour could support future housing; whereas parcels located wholly within the updated 65 dBA CNEL noise contour could support housing, if deemed necessary to satisfy the Regional Housing Needs Assessment (RHNA) mandate.
Recommended Actions:
1. Conduct a public hearing;
2. Find the proposed amendments are exempt and not subject to further environmental review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15183 because the amendments would not allow development of greater intensity than is allowed under the 2006 General Plan, including the Newport Airport Village Planned Community, as amended. The updated contours, and impacts associated therewith, were also fully analyzed in the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report (EIR No. 617); and
3. Adopt Resolution No. PC2023-015 recommending approval of the Housing Element Implementation, Noise -Related Amendments to the City Council (PA2022-0201).
Assistant City Attorney Summerhill noted a lack of quorum due to the number of recused Commissioners and announced the process of drawing cards to identify Commissioner participation.
Each Commissioner who recused themselves stated the conflict associated with their recusal and cards were drawn. Commissioners Rosene and Ellmore received the top two high cards and remained at the dais to participate in the matter.
Planning Manager Murillo used a presentation to review the background, airport area map, context, purpose of the amendments, affected plans and codes, updated noise contour exhibits, existing and proposed John Wayne Airport's (JWA's) noise contours with housing sites, proposed compatibility standards, proposed 65 dBA CNEL allowance, recommended actions, modification to Exhibit C, definition of "site," and next steps.
In response to Vice Chair Rosene's question, Project Manager Murillo indicated that within the Santa Ana Specific Plan, standards are in place requiring notification and a noise study to ensure that the interior noise environment of new structures is at 45 dBA.
Except for Secretary Harris, ex parte communication was disclosed by the Commissioners for speaking with area parcel representatives.
Chair Ellmore opened the public hearing.
Jim Mosher expressed displeasure that the Noise Element Subcommittee of the General Plan Advisory Committee (GPAC) has not met yet to discuss the proposed amendments and had been bypassed, thought the amendments are not ready yet, questioned why the City is not using the best modern predictions, disagreed with using a "bisected" approach, and expressed concern for noise provisions throughout the City.
Community Development Director Jurjis relayed staff's shared frustration about the Regional Housing Needs Assessment (RHNA) units and thought staff has taken the best approach to implement State law and used the best available noise contours that are legally defensible.
Chair Ellmore closed the public hearing.
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Motion made by Vice Chair Rosene and seconded by Commissioner Salene to approve the item as recommended.
AYES:
Barto, Ellmore, Rosene, and Salene
NOES:
None
RECUSED:
Langford, Lowrey, and Harris
ABSENT:
None
DISCUSSION ITEMS
ITEM NO. 5 MUNICIPAL CODE REVIEW TO REDUCE OR SUNSET PROVISIONS (PA2022-0219) Site Location: Not Applicable
Summary:
A review of potential planning -related Municipal Code and City Council Policy amendments for inclusion in a recommendation to the City Council.
Recommended Actions:
1. Find the recommended action not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3; and
2. Recommend the City Council review the potential amendments to the Municipal Code identified in Attachment PC-1 to the staff report.
Planning Manager Murillo used a presentation to review the support of City Council efforts and five recommended areas.
Jim Mosher supported policy review, noted recommended area numbers three and five seem to eliminate redundancy while the others seem to be policy changes, thought including areas that are policy change would be deceptive if they are included in a City-wide package of recommendations from all boards, commissions, and City Council under the title "obsolete code," and suggested the Planning Commission defer the final decision until closer to the deadline of next June 2024 in order to review other potential obsolete code for removal.
Community Development Director Jurjis noted that a subcommittee worked on this matter, State law changes are rapid and everchanging, and staff has completed the task and looks forward to the Planning Commission's approval to bring back to the City Council.
Motion made by Commissioner Barto and seconded by Commissioner Salene to approve the item as recommended.
AYES:
Barto, Ellmore, Harris, Langford, Lowrey, Rosene, and Salene NOES:
None
ABSTAIN:
None
ABSENT:
None
STAFF AND COMMISSIONER ITEMS
ITEM NO. 6 MOTION FOR RECONSIDERATION
None
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ITEM NO. 7 REPORT BY THE COMMUNITY DEVELOPMENT DIRECTOR OR REQUEST FOR MATTERS
WHICH A PLANNING COMMISSION MEMBER WOULD LIKE PLACED ON A FUTURE AGENDA
Community Development Director Jurjis noted that the soil vapor extraction (SVE) remediation project appeal at the Ford Aeronutronic Facility was denied by the City Council and the project should move forward. He announced a public hearing by the CCC next Thursday to review the Local Coastal Program amendment that clarifies fractional ownership as a time share use and announced a Planning Commission meeting on August 17 to discuss the increased enrollment at Pacific Christian High School.
Jim Mosher relayed that the City Council directed staff to refund the SVE project appeal fees to the appellant ITEM NO. 8 REQUESTS FOR EXCUSED ABSENCES
Commissioner Barto requested an excused absence from the August 17 Planning Commission meeting.
X. ADJOURNMENT — With no further business, Chair Ellmore adjourned the meeting at 7:20 p.m.
The agenda for the August 3, 2023, Planning Commission meeting was posted on Thursday, July 27, 2023, at 5:15 p.m. in the Chambers binder, on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive, and on the City's website on Thursday, July 27, 2023, at 4:50 p.m.
Curtis Ellmore, Chair
Tristan Harris, Secretary
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DocuSign Envelope ID: C58AD014-680B-45F9-896A-BDEE68157193 RESOLUTION NO. PC2023-015
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING THE
CITY COUNCIL APPROVE AN AMENDMENT TO THE NOISE
AND LAND USE ELEMENTS OF THE GENERAL PLAN, TITLE 20
(PLANNING AND ZONING) OF THE NEWPORT BEACH
MUNICIPAL CODE, NEWPORT PLACE PLANNED COMMUNITY
(PC-11) AND NEWPORT AIRPORT VILLAGE PLANNED
COMMUNITY (PC-60) RELATED TO NOISE IN THE AIRPORT
AREA IN ORDER TO IMPLEMENT THE SIXTH CYCLE HOUSING
ELEMENT (PA2022-0201)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California.
2. The Noise Element is one of the mandatory elements of the Newport Beach General Plan and was last updated as part of a comprehensive General Plan Update in 2006. In January 2019, the City Council initiated a comprehensive update of the Newport Beach General Plan. Due to the Regional Housing Needs Assessment ("RHNA") allocation of 4,845 new housing units to plan for the 2021-2029 housing period ("Sixth Cycle Housing Element"), the City Council directed City staff to focus on the Housing Element, Land Use Element, and Circulation Element. The City Council adopted the Sixth Cycle Housing Element on September 13, 2022, and it was certified by the State Department of Housing and Community Development ("HCD") on October 5, 2022. The Land Use Element and other elements of the General Plan are being updated in order to implement the Sixth Cycle Housing Element.
3. The Airport Area Environs ("Airport Area") is one of the five focus areas where new housing opportunity sites are identified to satisfy the RHNA allocation. At least 2,577 housing units are planned for the Airport Area, which comprises approximately 25 percent of the City's planned housing capacity, according to the Sixth Cycle Housing Element. A total of 62 new housing opportunity sites are identified in the Airport Area. Of those sites, 48 are located wholly or partially outside the updated 65 dBA CNEL contour boundary. Only 14 new housing opportunity sites are located wholly within the updated 65 dBA CNEL contour boundary.
4. The Sixth Cycle Housing Element including Appendix B has been subject to extensive public participation. Pursuant to Government Code Section 65351, the City held thirteen community workshops, worked with the Housing Element Update Advisory Committee 22-146
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("HEUAC") at fourteen Brown Act meetings, and brought iterations of the Housing Element to one duly noticed Planning Commission study session and six duly noticed City Council study sessions where the Housing Element was publicly reviewed and discussed.
Additionally, the HEUAC formed five different subcommittees to thoroughly review and identify all feasible sites for potential redevelopment as residential in the future and those sites are captured in Appendix B (Adequate Sites Analysis), which demonstrates the City's capacity to meet the RHNA allocation.
5. The Noise Element and Land Use Elements of the General Plan, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC"), Newport Place Planned Community (PC-11), and Newport Airport Village Planned Community (PC-60) restrict residential development in the 65 dBA CNEL and higher noise contour area as identified in the 1985 John Wayne Airport Master Plan.
6. The following amendments to the Noise Element, Land Use Element, Title 20, Newport Place Planned Community (PC-11), and Newport Airport Village Planned Community (PC- 60) are necessary to implement the Sixth Cycle Housing Element to allow the identified opportunity sites to realize residential uses, including mixed -use residential, that are wholly or partially located outside the 65 dBA noise contour area identified in the Noise Element ("Amendments") without causing a potential inconsistency issue under the Planning and Zoning Law. Thus, while the Amendments do not change the existing underlying land use or zoning designations of particular parcels, the Amendments do reflect revisions to the following:
Land Use Element:
• Policy LU6.15.3 (Airport Compatibility);
• Figure LU11 — Statistical Areas J6, L4;
• Figure LU22 — Airport; and
• Figure LU23 - Airport Area Residential Villages Illustrative Concept Diagram (removal of 65 CNEL noise contour line);
Noise Element:
• Policy N 1.2 (Noise Exposure Verification for New Development); • Policy N1.5.A (Airport Area Infill Projects (new policy); • Policy N 2.2 (Design of Sensitive Land Uses); and
• Policy N 3.2 (Residential Development);
• Figure N4 - Future Noise Contours; and
• Figure N5 — Future Noise Contours;
Title 20 (Planning and Zoning) of the NBMC:
• Section 20.30.080(F) (Noise -Airport Environs Land Use Plan); Planned Communities:
Newport Place Planned Community (PC-11) — Part 111. Residential Overlay Zone, Section V.D.1 (Airport Noise Compatibility); and
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Newport Airport Village Planned Community (PC-60) — Section I.D (Purpose and Objective) & Section II.B.2 (Prohibited Uses).
7. A public hearing was held on August 3, 2023, in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of the time, place, and purpose of the hearing was given in accordance with California Sections 54950 et seq. ("Ralph M. Brown Act"), 65090, and 65353 of the Government Code, Chapter 20.62 (Public Hearings) of the NBMC and Council Policy K-1 (General Plan and Local Coastal Program). Evidence, both written and oral, was presented to and considered by, the Planning Commission at this hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
The Amendments are exempt from the California Environmental Quality Act pursuant to Section 15183 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines") because they do not change the underlying land use or zoning designations of any specific parcels, including parcels within the Airport Area or within the updated noise contours. The Amendments, therefore, will not result in development of greater intensity than is allowed under the 2006 General Plan, Newport Place Planned Community (PC- 11), and Newport Airport Village Planned Community (PC-60), as amended. To the extent new parcels are able to be developed in the future for residential uses, by nature of no longer being located within areas identified as experiencing 65 dB CNEL or greater, those parcels must be part of a specific proposed project for consideration and processing by the City for approval.
The Amendments are also exempt because they fall within the scope of analysis contained within EIR No. 617, prepared and certified by the County for the 2014 John Wayne Airport ("JWA") Settlement Agreement Amendment, to which the City is a party. EIR No. 617, fully analyzed impacts on sensitive receptors (including residential uses) in adopting the Settlement Agreement Amendment, including the updated CNEL contour boundaries associated therewith, using both the County and City's thresholds of significance. The City was a responsible agency for EIR No. 617, and co -signatory to the Settlement Agreement Amendment. EIR No. 617 concluded that the Settlement Agreement Amendment (and associated updated CNEL contours) would result in less -than -significant impacts related to noise increases at sensitive receptors, but a significant and unavoidable impact from increasing noise levels at exterior use areas of residences. A Statement of Overriding Considerations was adopted. No lawsuits were filed challenging the adequacy of the EIR.
The accompanying adopted Findings of Consistency which are attached hereto as Exhibit "H" and incorporated by reference.
SECTION 3. REQUIRED FINDINGS.
General Plan Noise Element and Land Use Element Amendments An amendment to the 2006 Newport Beach General Plan Noise Element and Land Use Element are legislative acts. Neither Title 20 (Planning and Zoning) nor California Government Code Section 65000 et seq., set forth any required findings for either approval or denial of such 22-148
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amendments. Notwithstanding the foregoing, the amendments to the Noise Element and Land Use Element are consistent with the following General Plan policies.
Finding and Facts in Support of Findings:
1. The amendments to the Noise Element and Land Use Element would eliminate conflicting general plan policies that prohibit residential developments within the 1985 JWA Master Plan 65 dBA to 70 dBA CNEL noise contour area.
2. The amendments to the Noise Element and Land Use Element are consistent with the following City of Newport Beach Housing Element Policy and Policy Action:
Housing Policy 1.1
Identify a variety of sites to accommodate housing growth need by income categories to serve the needs of the entire community.
The amendments to the Noise Element and Land Use Element would be a step in the implementation of the Sixth Cycle Housing Element. The Housing Element identified 62 new housing opportunity sites in the Airport Area. Of those sites, 48 are located wholly or partially outside the 65 dBA CNEL contour boundary. By updating the General Plan Land Element and Noise Element policies that prohibit residential uses within the outdated, 1985 Master Plan 65 dBA CNEL contour, the Amendments will advance the Sixth Cycle Housing Element's goal of accommodating at least 2,577 housing units in a variety of income levels within the Airport Area.
Tribal Consultation
Findings:
Pursuant to California Government Code Section 65352.3 (SB 18), a local government is required to contact the appropriate tribes identified by the Native American Heritage Commission ("NAHC") each time it considers a proposal to adopt or amend the General Plan.
If requested by any tribe, the local government must consult for the purpose of preserving or mitigating impacts to cultural resources.
Facts in Support of Findings:
The City received comments from the NAHC indicating that 12 tribal contacts should be provided notice regarding the Amendments. Notices were sent to the 12 tribes on February 16, 2023. California Government Code Section 65352.3 requires notification 90 days prior to Council action to allow tribal contacts to respond to the request to consult. The 90-day notification period has expired on May 16, 2023. No consultation request received. 22-149
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423 Charter Analysis
Finding:
Section 423 of the Charter and Council Policy A-18 (Guidelines for Implementing Charter Section 423) ("Council Policy A-18") require any amendment to the General Plan be reviewed to determine if a vote of the electorate would be required. If a General Plan Amendment (separately or cumulatively with other GPAs within the previous 10 years) generates more than 100 peak hour trips (a.m. or p.m.), adds 40,000 square feet of non-residential floor area, or adds more than 100 dwelling units in a statistical area, a vote of the electorate would be required.
Facts in Suaaort of Findinas:
The purpose of the Amendments is to eliminate a conflict with the certified Sixth Cycle Housing Element and the City's General Plan Land Use Element and Noise Element, which prohibit residential development within the 1985 JWA Master Plan's 65 dBA CNEL noise contour area, and to endorse a more updated CNEL contour areas that are based on updated noise modeling data, airport operations and advances in aviation technology that result in decreased noise levels. As a result, these policies and regulations must be updated to eliminate conflicting policy and regulatory restrictions to provide consistency with the Sixth Cycle Housing Element.
Notwithstanding the foregoing, no development would be directly authorized by the amendments to the Noise Element and Land Use Element. As none of the thresholds specified by Charter Section 423 are impacted nor exceeded by the amendments to the Noise Element and Land Use Element, no vote of the electorate is required.
Title 20 (Planning and Zoning) of NBMC Amendment
An amendment to Title 20 (Planning and Zoning) of NBMC is a legislative act. Neither Chapter
20.66 (Planning and Zoning, Amendments) of Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of such amendments. Notwithstanding the foregoing, the amendments to Title 20 (Planning and Zoning) of the NBMC is consistent with the following General Plan policies.
Finding and Facts in Support of Findings:
The amendment to Section 20.30.080(F) (Noise -Airport Environs Land Use Plan) of the NBMC is consistent with the following City of Newport Beach Housing Element Policies and Policy Action:
1. Housing Element Policy 4.2.
Enable construction of new housing units sufficient to meet City qualified goals by identifying adequate sites for their construction.
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2. Policy Action 4J (Airport Environs Sub Area Environmental Constraints).
Policy Action 4J requires the City to take the following actions to address potential environmental constraints in the Airport Environs Sub Area and ensure continued feasibility of sites, particularly for lower -income RHNA:
a. Require new residential development projects in the Airport Environs Sub Area provide noise studies and acoustical analyses to ensure designs include proper sound attenuation;
b. Require new residential development projects in the Airport Environs Sub Area to explore advanced air filtration systems for buildings to promote cleaner air; C. Encourage on -site indoor amenities, such as fitness facilities or recreation and entertainment facilities; and
d. Continue to implement park dedication requirements consistent with the City's Park Dedication ordinance and Land Use Element Policy LU 6.15.13 (Neighborhood Parks —Standards) and Policy LU 6.15.16 (On -Site Recreation and Open Space) to ensure adequate recreational space to ensure at least 8- percent of a project's gross land area (exclusive of existing rights -of -way) of the first phase for any development in each neighborhood or '/2 acre, whichever is greater, is developed as a neighborhood park, unless waived through Density Bonus Law.
The City has taken actions to address potential environmental constraints in the Airport Area and ensure continued feasibility of sites, particularly for lower -income RHNA by providing the following uniform and concise criteria:
a. Prior to the issuance of any building permits for such development, a noise study shall be prepared by a City -approved qualified acoustical consultant and submitted to the Community Development Director for approval;
b. All new residential structures or the residential units within a mixed -use development shall be attenuated to provide an interior noise level of 45 dBA CNEL or less; c. The design of the residential portions of mixed -use projects and residential developments shall have adequate noise attenuation between adjacent uses and units (common floor/ceilings) in accordance with the California Building Code; d. New mixed -use developments shall incorporate designs with loading areas, parking lots, driveways, trash enclosures, mechanical equipment, and other noise sources away from the residential portion of the development;
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be incorporated in the design of new residential to bring interior sound attenuation to 45 dBA CNEL or less;
f. Residential uses shall be indoor -oriented to reduce noise impingement on outdoor living areas;
g. On -site indoor amenities, such as fitness facilities or recreation and entertainment facilities shall be encouraged; and
h. Advanced air filtration systems for buildings shall be considered to promote cleaner air.
Planned Community Development Plan Amendments for the Newport Placed Planned Community (PC-11) and Newport Airport Village Planned Community (PC-60) An amendment to PC-11 and PC-60 is a legislative act. Neither PC-11 and PC-60, Chapter
20.56 (Planning and Zoning, Planned Community District Procedures) or Chapter 20.66 (Planning and Zoning, Amendments) of Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of the amendment. Notwithstanding the foregoing, the amendments to Title 20 (Planning and Zoning) of the NBMC is consistent with the following General Plan policies.
Finding and Facts in Support of Findings:
The Amendment is consistent with the following Housing Element Policy and Policy Action-
1. See findings in support of amendments to the Noise Element and Land Use Element and Title 20 (Planning and Zoning) of the NBMC above which are incorporated herein by reference.
2. Additionally, all new housing opportunity sites located in Newport Place and Newport Airport Village planned communities are located wholly or partially outside the updated 65 dBA noise contour area. By requiring conditions of approval identified in amendment to Title 20 (Planning and Zoning) of NBMC, the City has taken actions to address potential environmental constraints in the Airport Area and ensure continued feasibility of sites, particularly for lower -income RHNA.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby finds this action is not subject to further environmental review pursuant to Section 15183 of the CEQA Guidelines because the Amendments do not change the underlying land use or zoning designations of any specific parcels, including parcels within the Airport Area or within the updated noise contours. The Amendments, therefore, will not result in development of greater intensity than is allowed under the 2006 General Plan and Newport Airport Village Planned Community, as amended. To the extent new parcels can be developed in the future for residential uses, by nature of no longer being located within areas identified as experiencing 65 dB CNEL or greater, those parcels must be part of a specific proposed project for consideration and processing by the City for approval. The Amendments are also exempt because they fall within the scope of analysis contained within the previously certified EIR No. 617, prepared for the 2014 John Wayne Airport ("JWA") Settlement Agreement, to which the City is a party.
2. The Planning Commission of the City of Newport Beach hereby recommends the following to the City Council:
a. Adopt Land Use Element Amendment, which is attached hereto as Exhibit "A," and incorporated herein by reference;
b. Adopt Noise Element Amendment, which is attached hereto as Exhibit "B," and incorporated herein by reference;
C. Adopt Title 20 (Planning and Zoning) of the NBMC, which is attached hereto as Exhibit "C," and incorporated herein by reference;
d. Adopt Newport Place Planned Community (PC-11) Text Amendment, which is attached hereto as Exhibit "D," and incorporated herein by reference; and e. Adopt Newport Airport Village Planned Community (PC-60) Text Amendment, which is attached hereto as Exhibit "E," and incorporated herein by reference, f. Adopt Land Use Element Figures LU11, LU22 and LU23 to remove the 65 dBA CNEL noise contour, which are attached hereto as Exhibit "F," Exhibit "G," and Exhibit "H," respectively, and incorporated herein by reference; g. Adopt Noise Element Figures N4 and N5 to update the 65 dBA CNEL noise contour, which are attached hereto as Exhibit "I" and Exhibit "J," respectively, and incorporated herein by reference; and
h. Adopt CEQA - Findings of Consistency, which are attached hereto as "Exhibit K," and incorporated herein by reference.
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3. In conformance with City Council Policy K-1, the Planning Commission reviewed and recommended approval of the Amendments to the City Council by the adoption of Resolution No. PC2023-015.
PASSED, APPROVED, AND ADOPTED THIS 3rd DAY OF AUGUST, 2023.
AYES: Barto, Ellmore, Rosene, and Salene
NOES: None
RECUSED: Harris, Langford, and Lowrey
ABSENT: None
BY:
Curtis Ellmore, Chair
BY: TViSfAJA, RAMS
Tristan Harris, Secretary
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EXHIBIT "A"
Amendment to the 2006 General Plan Land Use Element
Airport Area
Reference &
Propose Changes
Page
Airport Area
Modify the third paragraph on page 3-100 as follows:
narrative change
Development in the Airport Area is limited reS+, �a due to the safety restrictions and noise associated Of jVY7A. with Introduction on
John Wayne Airport. n^MUGh of the seuthcrrv"res
,�, for r�do� �l
rsr IGGated onthe65 dBA GNE=1 hi�
Pg 3-100
URSUiteh�le
ether 10neise_c e„ uses. Additionally, building heights are restricted for aviation safety. Residential uses can be allowed in the Airport Area on parcels that are wholly or partially outside the 65 dBA CNEL contour as denoted in Figures N4 and N5 of the Noise Element. Figure N5 is largely derived from the 2014 John Wayne Airport Settlement Agreement Amendment
Environmental Impact Report (EIR No. 617). Residential uses may be approved in these areas provided interior living areas are protected from excessive noise by appropriate construction techniques that reduce the interior noise to 45 dBA CNEL, consistent with state law. (See Cal. Code Regs., tit. 21, § 5014, subd. (a)(1)-(4).) Parcels that are wholly within the John Wayne Airport 65 dB CNEL contour shown in Figure N5 (e.g., those identified as experiencing noise levels above 65 dB CNEL) are unsuitable for residential development unless and until the City determines, based on substantial evidence, that the site(s) wholly within the 65-70 dB CNEL contours are needed for the City to satisfy its Sixth Cycle RHNA mandate. Nonresidential uses are, however, encouraged on parcels located wholly within the 65 dBA CNEL contour area.
Policy Overview;
Modify the fourth sentence in first paragraph on page 3-101 as Pg 3-101
follows-
follows-
He
HeUSiRg Residential and mixed -use (commercial and residential) buildings would be restricted from areas exposed to exterior noise levels of John Wayne Airport 65 dBA CNEL and higher, based on the dBA CNEL contour boundaries shown in Figure N5 of the Noise Element of the General Plan, unless and until the City determines, based on substantial evidence that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate.
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Policy LU6.15.3 Require that all development be constructed in conformance with the (Airport height restrictions set forth by the Federal Aviation Administration Compatibility); (FAA), Federal Aviation Regulations (FAR) Part 77, and Caltrans Pg 3-101 Division of Aeronautics, and that residential development shall be allowed only on parcels with noise levels of less than leGated outside of the John Wayne Airport 65 dBA CNEL noise contour area as shown in Figure N5 of the Noise Element of the General Plan specified by the 1985 jWA Master Plan, unless and until the City determines, based on substantial evidence, that the sites wholly within the 65 dBA CNEL noise contour shown in Figure N5 are needed for the City to satisfy its Sixth Cycle RHNA mandate. Nonresidential uses are, however, encouraged on parcels located wholly within the 65 dBA CNEL contour area. (Imp 2.1, 3.1, 4.1, 14.3)
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EXHIBIT "B"
Amendment to the 2006 General Plan Noise Element
Reference & Page Proposed Changes
Narrative -Community Modify the second full paragraph on page 12-9 as follows:
Noise Contours; Pg 12-
9 The aircraft noise contours that are used for planning purposes by the County of Orange and Airport Land Use
Commission are found in the Airport Environs Land Use Plan (AELUP) and are derived from the 1985 Master Plan for JWA and the accompanying EIR 508. These noise contours are
based on fleet mix and flight level assumptions developed in EIR 508, and are shown in Figure N5 Figures N1 and N2." Add the following paragraph after the second full paragraph on page 12-9 as follows:
The Noise Chapter within 2014 John Wayne Airport
Settlement Agreement Amendment Environmental Impact
Report EIR No. 617 illustrated how the dBA CNEL noise
contours have reduced in size compared to the 1985
AELUP Master Plan CNEL noise contours, in which the
General Plan policies and maps are based on. The noise
contours in EIR No. 617 are based on more contemporary
noise modeling programs. Airport noise contours
generated in this noise study using the INM Version 7.Od which was released for use in May 2013, and is the state - of -art in airport noise modeling. Consequently, Figures N4 and N5 are updated to reflect the noise contours identified by the 2014 John Wayne Airport Settlement Agreement
Amendment Environmental Impact Report No. 617.
Modify the last sentence of the third full paragraph on page 12- 9 as follows:
The 65 dBA CNEL contour area describes the area for which new noise -sensitive developments, including residential uses, will be conditionally permitted only if appropriate measures are included such that the standards contained in this Noise Element are achieved. Noise -sensitive uses shall not be located on parcels that are wholly within the John Wayne Airport 65 dBA CNEL contour as shown in Figure
N5.
Modify the fourth full paragraph on page 12-9 as follows:
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The W- AEI I ID (lost amender! in ` 002) onhi allows
�-i-r�o-v-v�-�rc��vr�rc���arrr �.�rr�cvvc� r9—crnvvr�
and other noose_ sensitive a 65
residential
uses uses within
��ucrr i--avcv�art�v ���
dBA noise Genteur if the interior noise standard of 45 dB an a000mnanyino erdinatien of
GNELGan he maintained, rd
with
a—avigat+en easement for noise to the airport nrepriete anlli able to single family resirdenGes Furthermore,
`residential
units should be sufficiently indoor -oriented,
consistent with Title 21 of the California Code of
Regulations, so as to reduce noise impingement on
outdoor living areas. The JWA AELUP also strongly
recommends that if any residential uses are allowed within a 60 dBA G GE)Rtnit that sant seunaatneR
nffri
d'at i-ig
to maintain a 45 dBA GNEL interin
metheds are
used Jc
level.all designated outdoor common or recreational
areas provide outdoor signage informing the public of the presence of operating aircraft.
Policy N1.2 (Noise
Applicants for proposed residential or mixed -use projects Exposure Verification
that reg—.-�neRtal review and ar^ located in areas
for New Development);
projected to be exposed to 65-70 dBA CNEL or greater
Pg 12-25
GNEl 60 dBA and higher as shown on Figure 4, Figure N5; and Figure N6 may must
,� conduct a fieldsurvey
le to
measurements ether medelimanner aGGep
the rit„ noise study to provide evidence that the depicted noise contours do not adequately account for local noise exposure circumstances due to such factors as, topography, variation in traffic speeds, and other applicable conditions.
These findings shall be used to determine the level of exterior or interior noise, attenuation needed to attain an acceptable noise exposure level and the feasibility of such measures when other planning considerations are taken into account, consistent with Title 21 of the California Code of
Regulations. (Imp 2.1)
Policy N1.5 (Infill
Allow a higher (above 65 dBA CNEL) exterior noise level Projects); Pg 12-25
standard for infill projects in existing residential areas adjacent to major arterials if it can be shown that there are no feasible mechanisms to meet the exterior noise levels. The interior standard of 45 dBA CNEL shall be enforced for any new
residential project or mixed -use project containing a
residential component, consistent with Title 21 of
California Code of Regulations. (Imp 2.1, 7.1)
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Policy N1.5A (Airport
Allow infill residential projects proximate to John Wayne Area Infill Projects)
Airport to have a higher exterior noise level standard (65- 70 dBA CNEL) if it can be shown that there are no practical New Policy
mechanisms or designs to meet the exterior noise levels.
The interior standard of 45 dBA CNEL shall be enforced
for any residential component of projects. No residential units may be located on parcels wholly within the John
Wayne Airport 65 dBA CNEL noise contour area as shown
in Figure N5, of the Noise Element of the General Plan, unless and until the City determines, based on substantial evidence, that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate. Nonresidential uses are encouraged on parcels
located wholly within the 65 dBA CNEL contour area,
shown in Figure N5.
Policy N2.2 (Design of
Require the use of walls, berms, interior noise insulation, Sensitive Land Uses);
double -paned windows, advanced insulation systems, or
Pg 12-26
other noise mi+�atie,Tmeasures, as appropriate, in the design of new residential developments to attenuate noise levels to not exceed 45 dBA CNEL interior. or eOther new noise sensitive land uses that are adjacent to major reads- arterials and located proximate to John Wayne Airport (e.g., infill residential) and within the 65-70 dBA CNEL noise contour area are required to be indoor -oriented to reduce noise impacts on outdoor living or recreational areas.
Application of the Noise Standards in Table N3 N2 shall govern this requirement. (Imp 7.1)
Policy N3.1 (New
Ensure new development is compatible with the noise
Development); Pg 12-
environment by Ucing airpgrt noise nentei m ng larger +hen 27 the 1985 I\A/center Plan
these to
Grprta�ned—IR as guides
fi it ire planning and development denicienc proximate to John Wayne Airport by not allowing residential units on parcels located wholly within the John Wayne Airport 65 dBA CNEL noise contour, as shown in Figure N5 of the
Noise Element of the General Plan, unless and until the City determines, based on substantial evidence, that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate.
Policy N3.2 (Residential
Require that residential development in proximate to John Development); Pg 12-
Wayne Airport Area shall not be located elide on parcels 28 wholly within the John Wayne Airport 65 dBA outside of the 65 dBA CNEL noise contour shown in Figure N5 of the 22-159
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Noise Element of the General Plan, unless and until the City determines, based on substantial evidence, that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate. the 1985
jWA Master Plan and. Rrequire residential developers of residential or mixed -use land uses with a residential
component to notify prospective purchasers or tenants of aircraft noise. Additionally, require outdoor common areas or recreational areas of residential or mixed -used
developments to be posted with signs notifying users
regarding the proximity to John Wayne Airport and the
presence of operating aircraft and noise. (Imp 2.1, 3.1, 4.1) 22-160
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EXHIBIT "C"
Amendment to Title 20 (Planning and Zoning) of the Newport Beach Municipal Code Amend Section 20.30.080.F (Noose Airport Environs Land UsePlanResidential Use Proximate to John Wayne Airport) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code to read as follows:
F. Residential Use Proximate to John Wayne Airport ERV;r^nE ' and i Se PIResidential uses, including mixed -use residential, shall be prohibited wi " R the 1985 dehR VVaY a Airport ( WA) MaStor DlaR 65 dBA GNE GORt,,,r allowed on parcels or sites wholly or partially outside the John Wayne Airport 65 dBA CNEL noise contour as shown in Figure N5 of the Noise Element of the General Plan, as identified in the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report (EIR No. 617) and consistent with Title 21 of the California Code of Regulations, subject to the following conditions that apply to all residential projects within the John Wayne Airport 60 dBA CNEL or higher CNEL noise as shown in Figures N4 and N5 of the Noise Element of the General Plan:
1) Prior to the issuance of any building permits for such development, a noise study shall be prepared by a City -approved qualified acoustical consultant and submitted to the Community Development Director for approval; 2) All new residential structures or the residential units within a mixed -use development shall be attenuated to provide an interior noise level of 45 dBA CNEL or less;
3) The design of the residential portions of mixed -use projects and residential developments shall have adequate noise attenuation between adjacent uses and units (common floor/ceilings) in accordance with the California Building Code; 4) New mixed -use developments shall incorporate designs with loading areas, parking lots, driveways, trash enclosures, mechanical equipment, and other noise sources away from the residential portion of the development, 5) Use of walls, berms, interior noise insulation, double paned windows, advance insulation systems, or other noise mitigation measures, as deemed appropriate shall be incorporated in the design of new residential to bring interior sound attenuation to 45 dBA CNEL or less;
6) Residential uses shall be indoor -oriented to reduce noise impingement on outdoor living areas;
7) On -site indoor amenities, such as fitness facilities or recreation and entertainment facilities shall be encouraged; and
8) Advanced air filtration systems for buildings shall be considered to promote cleaner air.
Residential development shall be limited to parcels or sites wholly or partially outside the 65 dBA CNEL noise contour, unless and until the City determines, based on substantial evidence, that the parcels or sites wholly within such contour area are 22-161
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needed for the City to satisfy its Sixth Cycle RHNA mandate. Non-residential uses are encouraged on parcels or sites located wholly within the 65 dBA CNEL contour area. 22-162
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EXHIBIT "D"
Amendment to Newport Place Planned Community (PC-11)
Amend Part III. Residential Overlay, Section V.D.1 (Airport Noise Compatibility) to read as follows:
1. Residential development shall be located outside up to the iW 65 dB GNEL noise Gonteur-, speGifFec h� 985 iWA Master Plan the John Wayne Airport 65 dBA CNEL noise contour as shown in Figure N5 of the Noise Element of the General Plan, and subject to compliance with Section 20.30.080.F (Residential Use Proximate to John Wayne Airport) of the Newport Beach Municipal Code. Residential development shall be limited to parcels wholly or partially outside the 65 dBA CNEL noise contour, unless and until the City determines, based on substantial evidence, that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate. Non-residential uses are encouraged on parcels located wholly within the 65 dBA CNEL contour area.
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EXHIBIT "E"
Amendment to Newport Airport Village Planned Community (PC-60) Amend Section I.D. (Purpose and Objective) to read as follows:
"D. Purpose and Objective
The purpose of the PCDP is to establish appropriate zoning regulations that govern the land use and development of the PC in a manner that is consistent with the City of Newport Beach General Plan. Implementation of the PCDP will:
- Provide a quality mixed -use development that includes residential and supporting commercial uses; as well as, commercial uses that support or benefit from the proximity to the airport. - Create two planning areas to guide the development of the PC District (see Figure 4).
Planning Area 1 will include the residential and, potentially, a complimentary retail or service commercial component of the PC District. Planning Area 2 will consist exclusively of non- residential uses.
- Provide new housing opportunities in response to increased demand for housing, reduction of vehicle trips, and an encouragement of an active lifestyle by increasing the opportunity for residents to live in proximity to jobs, services, and entertainment. Such housing will be proximate to, and interconnected with, commercial development through pedestrian walkways provided by future development within the PCDP. - Ensure that all residential units are IOGated outside the jehR WaYRe Airpert 65 dBA Cnl�i nn�_ ise GGRte it and cafe and noise -sensitive uses (e.g., schools, churches, hospitals, public libraries) regardless of location, shall be designed to maintain the interior noise standard of 45 dBA CNEL or less and in compliance with Section
20.30.080.F (Residential Use Proximate to John Wayne Airport) of the Municipal Code. " - Protect future residents and other sensitive uses by prohibiting these uses from being developed on parcels that are wholly within the John Wayne Airport 65 dBA CNEL noise contour area shown in Figure N5 of the Noise Element of the General Plan.
Residential development shall be limited to parcels wholly or partially outside the John Wayne Airport 65 dBA CNEL noise contour, unless and until the City determines, based on substantial evidence, that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate. Non-residential uses are encouraged on parcels located wholly within the John Wayne Airport 65 dBA CNEL contour area as shown in Figures N5 of the Noise Element of the General Plan and outside of Safety Zone 3 of the AELUP."
Amend Section II.A. (Permitted Uses) to read as follows:
Table 1 lists the permitted uses for each planning area of the Planned Community. The uses identified within the table are not intended to be a comprehensive list, but rather major use 22-164
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categories. All residential units and noise -sensitive uses, regardless of location, shall maintain the interior noise standard of 45 dBA CNEL or less, and shall be located on parcels wholly or partially outside the John Wayne Airport 65 dBA noise contour as shown in Figures N5 of the Noise Element of the General Plan area and Safety Zone 3 of the AELUP. Residential development shall be limited to parcels wholly or partially outside the John Wayne Airport 65 dBA CNEL noise contour, unless and until the City determines, based on substantial evidence, that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate. Non-residential uses are encouraged on parcels located wholly within the John Wayne Airport 65 dBA CNEL contour area.
The Community Development Director may determine other uses not specifically listed herein are allowed or allowed pursuant to an MUP or a CUP, provided they are consistent with the purpose of the planning areas, are compatible with surrounding uses, and are not listed as a prohibited use.
Amend Section II.B. (Prohibited Uses) to read as follows:
The following uses shall be expressly prohibited from the PCDP:
B. Prohibited Uses
The following uses shall be expressly prohibited from the PCDP:
1. Any use not authorized by this PCDP unless the Community Development Director determines a particular use consistent with the purpose and intent of the PCDP,
2. Residential dwelling units within John Wayne Airport Safety Zone 3 (residential accessory uses, and amenities are allowed),
3. The following uses, if said structure within 250 feet of any residential dwelling unit:
a. Handicraft Industry
b. Industry, Small (less than 5,000 sq. ft.)
c. Emergency Health Facilities/Urgent Care
d. Ambulance Services
e. Funeral Homes and Mortuaries
f. Maintenance and Repair Services.
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Land Use Element Figure LU11 — Statistical Areas J6, L4 22-166
2020-84 GP2014-004 PA2014-225 09/222/2020 Change land use designation from Airport Office and 2019-14 GP2015-004
2011-21 GP2007-009
RM
14 Fac
Supporting Uses (AO) to Mixed -Use Horizontal 2
(MU-H2) and add Anomaly No. 86 (329 dwelling units
and 297,572 commercial sq ft) for 4341,4361, and
4501 Birch Street; 4320, 4340, 4360, 4400, 4500, 4520,
4540, 4570, 4600, and 4630 Campus Drive; and 4525,
4533, and 4647 MacArthur Boulevard.
PA2015-210 02/12/2019 Change land use designation from General Commercial Office (CO-G) to Private Institutions (PI) and amend
Anomaly No. 22 to allow 85,000 square feet for
Residential Care Facility for the Elderly located at
101 Bayview place.
PA2007-213 02/22/201 1 Increase the maximum allowable development limit by 11,544 square feet and create anomaly
No. 2.1 for 4300 Von Karman.
sRi opR\
1FNANE
J
P �p
0 487.5 975 Feet
I I I I I
e00
BgwFW
K'AY
0 J
m
la
a
0 UNIVERSITY DRIVE
CITY of NEWPORT BEACH
GENERAL PLAN
Figure LU 11
STATISTICAL AREAS
J6, L4
Residential Neighborhoods
Rs-D Single -Unit Residential Detached
Rs -A Single -Unit Residential Attached
RT Two -Unit Residential
- Multiple -Unit Residential
- Multiple -Unit Residential Detached
Commercial Districts and Corridors
cN Neighborhood Commercial
cc Corridor Commercial
- General Commercial
- Visitor Serving Commercial
-Recreational and Marine
Commercial
- Regional Commercial
Commercial Office Districts
co-c General Commercial Office
co-M Medical Commercial Office
co-R Regional Commercial Office
Industrial Districts
F—iG7 Industrial
Airport Supporting Districts
Ao Airport Office and Supporting Uses
Mixed -Use Districts
Mu-v Mixed Use Vertical
Mu-H Mixed Use Horizontal
Mu# Mixed Use Water Related
Public, Semi -Public and Institutional
PFJ Public Facilities
Private Institutions
- Parks and Recreation
Fos] Open Space
rs Tidelands and Submerged Lands
*94. y City of Newport Beach
pis Boundary
4 Statistical Area L4
Boundary
Land Use Delineator Line
• Refer to anomaly table
i
EW �Rr
E I P
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EXHIBIT "G"
Land Use Element Figure LU22 — Airport
22-168
86 • 3
9 �.•
10 •
�
'
. 4
• 11
" 5
6 11
• I 1
.�I 2
r
.
14 NINE
�Ip
LAND USE POLICY
OUnderlying Uses: Office, Hotel, Supporting Retail, © Airport -Supporting Businesses © Commercial and Office Residential Village: Housing and Mixed -Use
(with Guidelines for Design and Development)
Document Name: Land_Use_Airport_Area_Figure_LU22_Amendment CITY of NEWPORT BEACH
GENERALPLAN
FIGURE LU22
AIRPORT AREA
QSub -Area
Conceptual
Q Development
Plan Area
Land Use
Delineator Line
�s Highway
•Refer to anomaly
table
Feet
0 250 500 1,000
Source: City of Newport Beach and EIP Associates
PROJECT NUMBER: 10579-01
ZE PoHr F M
O
o � �
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EXHIBIT "H"
Land Use Element Figure LU23 - Airport Area Residential Villages Illustrative Concept Diagram
22-170
ram+
cd—pv% PA-ya
r
RBI}Tpt Fr�k�r •flsr�
Document Name: Land —Use _Airport _ Area_Figure_LU23_Amendment CITY of NEWPORT BEACH
GENERAL PLAN
Figure LU23
AIRPORT AREA RESIDENTIAL
VILLAGES ILLUSTRATIVE
CONCEPT DIAGRAM
Legend
OPPORTUNITY SITES
PROPOSED OPEN SPACES
IMPROVED RESIDENTIAL STREETS
PROPOSED RESIDENTIAL STREET
PROPOSED PEDESTRIAN WAYS
CONCEPTUAL PLAN REQUIRED
Source: ROMA Design Group
PROJECT NUMBER: 10579-01
Date: 08/03/06
� SEW ART
O
u � i
Ew
<r�apH�P w s s o c� w x e s
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EXHIBIT "I"
Noise Element Figures N4 - Future Noise Contours
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EXHIBIT "J"
Noise Element Figure N5 - Future Noise Contours
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EXHIBIT "K"
CEQA - Findings of Consistency
The California Environmental Quality Act ("CEQA") (California Public Resources Code §§21000 et seq.); the State CEQA Guidelines (Title 14, California Code of Regulations §§15000 et seq.); and the rules, regulations, and procedures for implementing CEQA as set forth by the City of Newport Beach ("City") provide guidance regarding when additional environmental review is required. Pursuant to the provisions of CEQA and the State CEQA Guidelines, Newport Beach is the Lead Agency charged with the responsibility of deciding whether to approve the Amendments to Newport Beach General Plan Land Use and Noise Elements, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code, Newport Place Planned Community (PC-11), and Newport Airport Village Planned Community (PC-60) (Amendments) to accommodate housing units identified by the certified 2021-2029 Sixth Cycle General Plan Housing Element.
The provisions of State CEQA Guidelines Section 15183 are applicable to the Amendments. The Amendments are not subject to further environmental review pursuant to CEQA Guidelines Section 15183 because the Amendments do not change the underlying land use or zoning designations of any specific parcels, including parcels within the Airport Area or within the updated noise contours; and would not result in new significant impacts or a substantial more adverse impact than addressed in John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No. 2001111135) (EIR No. 617). The Amendments are also exempt because they fall within the scope of analysis contained within the previously certified EIR No. 617, prepared for the 2014 John Wayne Airport Settlement Agreement, to which the City is a party.
CEQA Guidelines Section 15183 provides, in relevant part:
(a) CEQA mandates that projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project -specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies.
(b) In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis:
(1) Are peculiar to the project or the parcel on which the project would be located, (2) Were not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent, (3) Are potentially significant off -site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action, or
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(4) Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR. (c) If an impact is not peculiar to the parcel or to the project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards, as contemplated by subdivision (e) below, then an additional EIR need not be prepared for the project solely on the basis of that impact.
(d) This section shall apply only to projects which meet the following conditions:
(1) The project is consistent with:
(A) A community plan adopted as part of a general plan, (B) A zoning action which zoned or designated the parcel on which the project would be located to accommodate a particular density of development, or (C) A general plan of a local agency, and
(2) An EIR was certified by the lead agency for the zoning action, the community plan, or the general plan.
As part of its decision -making process, the City is required to review and consider whether the Amendments would create new significant impacts or significant impacts that would be substantially more severe than those disclosed in the John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No. 2001111135) (EIR No. 617). Additional CEQA review is only triggered if the Amendments create new significant impacts or impacts that are more severe than those disclosed in EIR No. 617 such that major revisions to the EIR would be required.
The Amendments provide for updated noise contours as established in EIR No. 617 and revisions to General Plan policies, Title 20 of Newport Beach Municipal Code (NBMC), Newport Place Planned Community (PC-11), and Newport Airport Village Planned Community (PC-60) to allow for consistency between the certified 2021-2029 Sixth Cycle Housing Element and the Newport Beach General Plan and NBMC as it applies to future housing uses near John Wayne Airport.
The Amendments are proposed to ensure consistency pursuant to the State Planning and Zoning Law and the City's compliance with its RHNA allocation.
Residential and mixed -use (commercial and residential) buildings would be restricted from areas exposed to exterior noise levels of 65 dBA CNEL and higher, based on the dBA CNEL contour boundaries set forth in EIR No. 617 for inclusion as Figure N5 of the Noise Element of the General Plan, unless and until the City determines, based on substantial evidence that the sites wholly within such contour area are needed for the City to satisfy its Sixth Cycle RHNA mandate. The Amendments do not grant any development entitlements or authorize development. 22-177
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The proposed policy changes and NBMC amendments would allow the City to implement housing policies which are in the Sixth Cycle Housing Element. The Sixth Cycle Housing Element was determined to be statutorily exempt under CEQA Guidelines Section 15262 because it does not provide development entitlements to any specific land use projects, nor does it make any changes to the General Plan land use map or modify land use designations, densities, or land use intensities.
The policies and program changes are needed for the City's compliance with its RHNA allocation and would not cause a significant effect on the environment or that were previously analyzed adequately in the Newport Beach General Plan Update Program EIR (SCH No. 2006011119) or EIR No. 617.
The Noise Chapter of EIR No. 617 explained how the dBA CNEL noise contours have reduced in size compared to the 1985 Airport Environs Land Use Plan (AELUP) Master Plan CNEL noise contours, in which the City's General Plan policies and maps are based on. The 1985 Master Plan noise contours are considerably larger than the existing noise contours presented previously.
This is largely due to a quieter fleet of existing commercial aircraft and a dramatic reduction in the number of generation aviation operations. The noise contours in EIR No. 617 are based on more contemporary noise modeling programs, as the EIR explained that "one of the most important factors in generating accurate noise contours is the collection of accurate operational data".
Airport noise contours generated in this noise study using the INM Version 7.Od which was released for use in May 2013, and is the state -of -art in airport noise modeling.
As such, the City proposes to update the Noise Element to include these noise contours, which in part, modify where residential uses could occur outside of the 65 CNEL contour in the Airport Area. Based on these updated noise contours, certain Housing Opportunity Sites will now be outside of the 65 CNEL contour while others will be within the 65 CNEL contour. However, the Amendments will not result in development of greater intensity than is allowed under the 2006 General Plan and Newport Airport Village Planned Community, as amended. Residential uses can be allowed in the Airport Area on parcels that are wholly or partially outside the 65dBA CNEL contour as denoted in Figure N5 of the Noise Element. Figure N5 is largely derived from EIR No. 617. Residential uses may be approved in these areas provided interior living areas are protected from excessive noise by appropriate construction techniques that reduce the interior noise to 45 dBA CNEL, consistent with state law. Parcels that are wholly within the 65 dB CNEL contour shown in Figure N5 (e.g., those identified as experiencing noise levels above 65 dB CNEL) are unsuitable for residential development unless and until the City determines, based on substantial evidence, that the site(s) wholly within the 65-70 dB CNEL contours are needed for the City to satisfy its Sixth Cycle RHNA mandate. The changes would not allow for more development than assumed in the growth assumptions in the General Plan nor would it impact the City's RHNA obligations.
To the extent new parcels are able to be developed in the future for residential uses, by nature of no longer being located within areas identified as experiencing 65 dB CNEL or greater, those parcels must be part of a specific proposed project for consideration and processing by the City for approval. Future housing development would be subject to compliance with the established regulatory framework, namely federal, State, regional, and local (including General Plan policies, NBMC standards, and Standard Conditions of Approval). While by -right housing projects may be 22-178
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exempt from CEQA, all future residential uses affected by the Amendments would continue to be subject to further development review, which can include technical supporting reports.
No new information that was not known at the time the General Plan and EIR No. 617 were prepared is now available that demonstrates that the Amendments will result in a new or increased significant impact. The Amendments would not cause growth beyond that accommodated by the General Plan. The Amendments do not introduce new land use designations or otherwise alter general land use patterns or development standards. Therefore, the findings of previously certified EIR No. 617 are applicable to the Amendments. Implementation of the Amendments would not substantially increase the severity of previously identified impacts, including but not limited to air emissions and greenhouse gas emissions. Although the noise contours would be updated, the requirements for compliance with noise standards would not change.
In summary, the Amendments would not result in any new significant environmental effects that are substantially different from those identified in EIR No. 617 nor would it substantially increase the severity of significant effects previously identified in EIR No. 617. Therefore, based on the provisions of State CEQA Guidelines Section 15183, no additional CEQA documentation is required.
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Attachment No. F
Agency Comment Letters
22-180
DocuSign Envelope ID: OOD406E1-2E9F-4D91-A4A3-55E230ED583F /11" AIRPORT LAND USE COMMISSION
ORANGE COUNTY
FOR ORANGE COUNTY
3160 Airway Avenue • Costa Mesa, California 92626 - 949.252.5170 fax: 949.252.6012 October 11, 2023
Rosalinh 1 Ong
City of Newport Beach
Community Development Department
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Response to Notice of Intent to Overrule the Airport Land Use Commission for Orange County Determination on Housing Element Implementation Dear Ms. I -ng.
We are in receipt of the City of Newport Beach (City) letter dated September 13. 2023. and City Council Resolution No. 2023-52 notifying the Airport Land I'se Commission (ALUC) for Orange County of the City's intent to overrule the ALIJC's inconsistency determination on the proposed Housing Element Implementation — Noise Related Amendments. In accordance with Section 21676 of the Public Utilities Code, the ALUC submits the following comments addressing the proposed overrule findings for the above -referenced project. These comments shall be included in the public record of a final decision to overrule the ALUC.
Pease be advised that California Public Utilities Code (PUC) Section 21678 states: "With respect to a publicly owned airport that a public agency does not operate, if the public agency pursuant to Section 21676, 21676.5, or 21677 overrules a commission's action or recommendation, the operator of the airport shall be immune from liability for damages to property or personal injury caused by or resulting directly or indirectly from the public agency's decision to overrule the commission's action or recommendation." Background
On August 17, 2023, the ALUC for Orange County found the proposed Housing Element Implementation - Noise Related Amendments to be inconsistent with the Airport Environs I.and Use Plan (AELUP) for John Wayne Airport (JWA) on a 4-0 vote. The inconsistent finding was based on AELUP Sections 2.1.1, 2.1.2, and 2.1.4. and PUC Sections 21674(a) and 21674(b).
Pursuant to Section 1.2 of the AELUP for JWA, the purpose of the AELUP is to safeguard the general welfare of the inhabitants within the vicinity of the airport and to ensure the continued operation of the airport. Specifically, the AELUP seeks to protect the public from the adverse effects of aircraft noise to ensure that people and facilities are not concentrated in areas 22-181
DocuSign Envelope ID: OOD406E1-2E9F-4D91-A4A3-55E230ED583F Housing Clement Implementation Overrule Response
October 11. 2023
susceptible to aircraft accidents, and to ensure that no structures or activities adversely affect navigable airspace. Additionally, Section 2.1.4 of the AELUP for JWA and PUC Section 21674 charge the Commission to coordinate at the local level to ensure compatible land use planning. Therefore, because of the City's proposed amendment and potential residential uses, that would occur within Community Noise Equivalent Levels (CNEL) 60 and 65, and Safety Zones 4 and 6, which include exposure to significant risks, noise and aircraft overflight, the City's proposed actions are inconsistent with the AELUP.
ALUC has the following additional comments regarding the findings and facts of support included in Resolution No. 2023-52.
Response to Finding and Fact in Support A - Regarding Noise Standards:
Pursuant to AELUP Section 2.1.1, "... aircraft noise emanating from airports may be incompatible with the general welfare of the inhabitants within the vicinity of an airport..." As noted in the City's discussion, the CNEL standards are set forth in the AELUP. As part of the review of the proposed Housing Element Implementation - Noise Related Amendments, it was noted that the "suitable" sites are identified within the JWA 65 dBA and 60 dBA CNEL noise contours. The ALUC believes that the proposed new locations for residential units would be highly affected by airport noise due to the close proximity to the airport (some within less than one mile from the runway end and others directly across the street from the airport), and that the past and current land use designation of Open Space and/or Commercial is the appropriate designation for this site.
One of the proposed amendments to the Noise Element is to replace the existing noise contours which are currently consistent with the adopted AELUP for JWA, with more narrow noise contours which were included in 2014 Settlement Agreement EIR 617. Although a CEQA finding is not required for purposes of making a consistency determination, EIR 617 did not provide an analysis of the potentially significant impacts of placing future residential uses within the 65 dB CNEL contour, therefore, the City's reliance on FEIR 617 is misplaced and inconsistent with the AELUPfor JWA.
The proposed Housing Element Implementation - Noise Related Amendments would allow residential uses which are not suitable and would subject the future residents to excessive noise regardless of which noise contours are utilized. The ALUC has historically found residential uses in the vicinity of JWA to be inconsistent with the AELUP for JWA.
Response to Fact in Support B - Regarding Safety:
Pursuant to AELUP Section 2.1.2, "[s]afety and compatibility zones depict which land uses are acceptable and which are unacceptable in various portions of airport environs. The purpose of these zones is to support the continued use and operation of an airport by establishing compatibility and safety standards to promote air navigational safety and to reduce potential safety hazards for persons living, working or recreating near JWA." 22-182
DocuSign Envelope ID: OOD406E1-2E9F-4D91-A4A3-55E230ED583F Housing Klement Implementation Overrule Response
October 11, 2023
The proposed housing sites in the Housing Element Update and subject to the Noise Related Amendments include property located in Safety Zone 4 Outer Approach/Departure Zone, and Safety Zone 6 Traffic Pattern Zone 6. Many of the sites located in Safety Zones 4 and 6 are also located in the 65 dB CNEL contour, According to the California Airport Land Use Planning Handbook, noise and overflight should be considered in Safety Zone 6 and residential uses should be limited to low density in Safety Zone 4. Flight tracks for the property were included in the ALUC staff report and are attached to this letter. There are few residential uses surrounding the proposed suitable sites, none as dense as the City's proposed sites. Considering the proposed densities, proximity to JWA and the number of flights over the property, the inclusion of these new dense sites in the proposed Housing Element Implementation - Noise Related Amendments is inappropriate.
Response to Fact in Support C. - Regarding "Intent of the AELUP":
By virtue of being clearly stated in AEL UP for JWA Sections 1.2 "Purpose and Scope" and
2.0 "Planning Guidelines," the ALUC understands the complex legal charge to protect public airports from encroachment by incompatible land use development, while simultaneously protecting the health, safety and welfare of citizens who work and live in the airport's environs. To this end, and as also statutorily required, ALUC proceedings are benefited by several members having expertise in aviation. Based upon careful consideration of all information provided, and input from ALUC members with expertise in aviation, the ALUC unanimously found the proposed Housing Element Implementation - Noise Related Amendments to be Inconsistent with the AELUP for JWA.
We urge the City Council to take ALUC's concerns into consideration in its deliberations prior to deciding whether to overrule ALUC. In the event the City overrules ALUC's determinations, ALUC requests that individual projects within the airport influence area are submitted to ALUC for review. Thank you for the opportunity to provide these comments.
Sincerely,
DocuSigned by:
OD FA 3FFFB2438...
Mar onin
Vice Chairman
Attachment: John Wayne Airport Flight Tracks for Housing Element Implementation - Noise Related Amendments
cc: Members of Airport Land Use Commission for Orange County Members of Newport Beach City Council
Jonathan Huff, Caltrans/Division of Aeronautics
22-183
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STATE OF CALIFORNIA—CALIFORNIA STATE TRANSPORTATION AGENCY Gavin Newsom, Governor
DEPARTMENT OF TRANSPORTATION
AERONAUTICS Program- M.S. #40
1 120 N STREET
P. O. BOX 942874
SACRAMENTO, CA 94274-0001
PHONE (916) 654-4959
FAX (916) 653-9531
TTY 711
www.dot.ca.gov
October 13, 2023
Ben Zdeba, AICP, Principal Planner
City of Newport Beach
Community Development Department
100 Civic Center Drive
Newport Beach, CA 92660-3267
Dear Mr. Zdeba:
Making Conservation
a California Way of Life.
Electronically Sent
[email protected]
The Aeronautics Program (Program) at the California Department of Transportation (Caltrans) appreciates receiving the Notice of Intent dated September 13, 2023, from the City of Newport Beach (City), to overrule a determination of the Orange County Airport Land Use Commission (ALUC). The ALUC has reported that the Sixth Cycle Housing Element Update Project (Project) is inconsistent with the Airport Environs Land Use Plan (AELUP) for the John Wayne Airport (JWA). The Notice of Intent concerns the City's Resolution (No.) 2023-52 (Resolution), and specific "Facts in Support" related to the AELUP. In advance of a public hearing on the Resolution to consider overruling the ALUC's determination, the Program is providing the following comments pursuant to California Public Utilities Code (PUC) section 21676.
Please accept this updated response initially dated November 24, 2021.
Facts in Support #1 -The Project is consistent with the noise standards of the AELUP.
Citing AELUP section 3.2.3 for "residential uses to be developed with advanced insulation systems to bring the sound after attenuation to no more than 45 dB inside" overlooks a key provision of the section that is seen prior to quoting the conclusion of the section that says, "residential uses within the 65- 70 dBA CNEL noise contour are required to be 'indoor - oriented' to preclude noise impingement on outdoor living areas." The provision in between says, "All residential units are inconsistent in this area unless it can be shown conclusively that such units are sufficiently sound attenuated for present and projected noise exposures, which shall be the energy sum of all noise impacting the project, so as not to exceed an interior standard of 45 dB CNEL."
No "conclusive" support is provided as part of Facts in Support # 1. Instead, the statement is made that the City's existing "General Plan Land Use Element Policy LU 6.15.3 and Noise Element Policy N 3.2 currently require that residential development in the Airport Area are to be located outside of the 65 dBA CNEL noise contour." A claim that follows says, "as part of the City's comprehensive update to the General Plan, these policies will be updated to reflect and allow the additional housing opportunity sites in the higher impact noise zones." The City's proposed overrule of the ALUC, then, is based on a claim yet to be proven, whereas the ALUC's determination of inconsistency is related to existing fact. The Program can only conclude that the Project does not satisfy requirements in PUC section 21670, as "Provide a safe, sustainable, integrated, and efficient transportation system to enhance California's economy and livability"
22-190
Mr. Ben Zdeba
October 13, 2023
claimed in the Notice of Intent for the purpose of public protection from hazards near airports.
Facts in Support #2 - The proposed Project is consistent with the safety standards of the AELUP.
This Fact in Support is deficient for not adequately citing the reference to Safety Zone 6 (Traffic Pattern Zone) of the AELUP. As used in the Notice of Intent, the statement that says, "risk factors associated with Safety Zone 6 generally include a low likelihood of accident occurrence," is drawn from the AELUP, but it overlooks the AELUP's reference to the 2002 California Airport Land Use Planning Handbook (Handbook; published by the Program). It is Table 9B in the 2002 Handbook that refers to "a low likelihood of accident occurrence." Unfortunately, the AELUP does not account for the current Handbook of 2011. The City also does not account for it.
The 2011 Handbook allows for low risk of accidents in the zone for an airport traffic pattern, but it goes further to quantify accident risk (Chapter 4, page 4-25). Owing to a relatively large area, the Handbook indicates 18-29 percent of accidents near a runway could occur in the traffic pattern zone (attributable also to lower and slower flight profiles for less time and altitude to recover from distress). The 2011 Handbook also allows for residential land use in the traffic pattern zone, but with the condition that says, "where ambient noise levels are low."
By accounting for this discrepancy, the Program recommends that the City evaluate ambient noise levels in the JWA Safety Zone 6 before taking further action on the proposed ALUC overrule. It would be a prudent means for abiding by PUC section 21670 "to prevent new noise and safety problems."
Facts in Support #3 - The proposed Project is consistent with the purpose and intent of the AELUP and will not result in incompatible land uses adjacent to JWA.
Citing the City's intention related to the Project that says, "any development on the proposed housing opportunity sites will comply with the noise criteria and safety standards," contained in Sections 2 and 3 of the AELUP, is appreciated by the Program. Sections 2 and 3 of AELUP provide overall policies for planning and land use around JWA, including certain specific criteria. The points made in this letter concerning specific criteria should be considered for their value to ensure accurate compliance with PUC section 21670. Otherwise, the Program contends that any less effort compromises both the City's declared position in the Notice of Intent and the public's welfare.
Sincerely,
Originally signed by
Jonathan Huff
Associate Transportation Planner
c: Lea U. Choum, Executive Officer, Orange County Airport Land Use Commission; [email protected] "Provide a safe, sustainable, integrated, and efficient transportation system to enhance California's economy and livability"
22-191
Mr. Ben Zdeba
October 13, 2023
bc: Lan Zhou, Deputy District Director, District 12; [email protected] "Provide a safe, sustainable, integrated, and efficient transportation system to enhance California's economy and livability"
22-192
%ZF
JOHN WAYNE
AIRPORT
ORANGE COUNTY
October 9, 2023
Rosalinh Ung, Principal Planner
City of Newport Beach
Community Development Department
100 Civic Center Drive
Newport Beach, California 92660
LuDgQnewportbeachca.ciov
RE: Newport Beach Housing Element Implementation Noise -Related Amendments Dear Ms. Ung:
This letter provides comments on behalf of the County of Orange (County), acting in its capacity as the owner and operator of John Wayne Airport, Orange County (SNA) (JWA or Airport), to the City of Newport Beach's (City) proposed noise -related amendments to its Land Use Element, Noise Element, Zoning Code, Newport Place Planned Community, and Newport Airport Village Planned Community (collectively, Housing Element Noise Update or Update). We understand that this Update is intended to accommodate the City's proposed residential sites located within the Airport's 60 and 65 decibel (dB) Community Noise Equivalent Level (CNEL) noise contours that were included in the Housing Element Update that was approved by the City in September 2022.
The Airport has a number of serious concerns relating to this proposed Housing Element Noise Update including, but not limited to, land use, noise, safety and airspace compatibility issues, compliance with the 2006 Cooperative Agreement between the County and the City, and compliance with the California Environmental Quality Act (CEQA) (Pub. Res. Code § 21000 et seq.) and the State CEQA Guidelines (Guidelines) (Cal. Code Regs. Tit. 14, § 15000 et seq.).
Our concerns are addressed in detail below.
Background
As you know, the City recently submitted the Housing Element Noise Update to the County's Airport Land Use Commission (ALUC) for a consistency determination. In August 2023, the ALUC found the City's Update to be inconsistent with the Airport Environs Land Use Plan (AELUP) for JWA due to noise, safety and land use incompatibility issues. The City has indicated that it plans to overrule ALUC's most recent inconsistency determination and adopt the Housing Element Noise Update. Our understanding is that the ALUC will submit a separate comment letter relating to the AELUP overrule and the sufficiency of the City's findings for that overrule. Therefore, this comment letter will not address those important ALUC and findings issues. Rather, our comment letter focuses on the important land use, noise, safety and airspace compatibility issues relating to the City's Housing Element Noise Update, as well as issues relating to the 2006 Cooperative Agreement and the City's compliance with CEQA and the CEQA Guidelines.
Charlene V. Reynolds (949) 252-5171 3160 Airway Avenue
Airport Director (949) 252-5178 FAX Costa Mesa, CA
www,ocair.com 92626-4608
22-193
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Land Use, Noise, Overflight, and Safety Compatibility Issues The City's proposed Housing Element Noise Update identifies approximately twenty-eight (28) new sites for potential residential development within the 65 dB CNEL noise contour and twenty- three (23) new sites for potential residential development within the 60 dB CNEL noise contour.
In addition, the 2021 Housing Element Update removed a policy that was included in previous Housing Elements prohibiting residential uses within the 65 dB CNEL noise contour, and the City is now proposing to revise or remove similar policies from the Housing Element Noise Update.
Our understanding is that the City's proposal identifies sites that can achieve the City's assigned 2021 Regional Housing Needs Assessment (RHNA) for the 2021-2029 planning period. However, many of these sites are now located within the 65 dB CNEL noise contour, which was formerly prohibited by the City's own policies.
Noise is one of the most basic land use compatibility concerns. Federal and state statutes and regulations establish the basis for ensuring land use compatibility in areas around airports.
Specifically, both the Federal Aviation Administration (FAA) and the California Department of Transportation, Division of Aeronautics (Caltrans) have adopted noise and land use compatibility standards for residential land uses, schools, and other noise sensitive uses. (See, e.g., 49 U.S.C. § 47502, Pub. Util. Code § 21669, Cal. Code Regs. § 5000 et seq.). These standards generally establish a maximum exterior noise level of 65 dB CNEL for private outdoor living areas and an interior noise level of 45 dB CNEL for residential and other sensitive land uses. As indicated in Section 5006 of the California Code of Regulations (Title 21, Division 2.5, Chapter 6):
"The level of noise acceptable to a reasonable person residing in the vicinity of an airport is established as a community noise equivalent level (CNEL) value of 65 dB for purposes of these regulations. This criterion level has been chosen for reasonable persons residing in urban residential areas where houses are of typical California construction and may have windows partially open. It has been selected with reference to speech, sleep, and community reaction." Because the City's proposed Housing Element Noise Update could result in new residential development being exposed to excessive noise levels outside these standards, we request that the Housing Element Noise Update be revised to reflect only non-residential uses within the 65 dB CNEL noise contour to ensure compliance with these important state and federal noise standards.
In addition to the FAA and Caltrans standards for noise compatibility, general plan guidelines relating to noise compatibility are provided in the California Government Code. (See, e.g., Cal.
Gov. Code §65302.) These code provisions require noise contours to be used as a guide for establishing a pattern of land uses that minimizes the exposure of community residents to excessive noise. The Housing Element Noise Update, which potentially would expose residents to excessive noise impacts, is not consistent with these general plan guidelines. We therefore, also request that the City revise its Housing Element Noise Update to, at a minimum, locate any new residential development outside the 65 dB CNEL noise contour and, preferably, locate any new residential development outside the 60 dB CNEL noise contour in order to minimize the exposure of community residents to excessive noise.
Adding new residential sites within the 65 dB CNEL noise contour would not only subject future residents to excessive aircraft noise due to the proximity of the Airport but would also increase 22-194
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
the amount of incompatible land use within the 65 dB CNEL noise contour. If the City does not revise its Update to eliminate all residential sites within the 60 and 65 dB CNEL noise contours, specific noise mitigation requirements should be implemented for any future residences located within these noise contours, including appropriate avigation easement and sound attenuation as required under Cal. Code Regs. Tit. 21 §5037. These requirements could be accomplished through an overlay zone in the Housing Element Noise Update that notifies planners processing projects in the airport environs that avigation easements and appropriate sound attenuation requirements must be met. This type of overlay zone will minimize the risk to both the City and County relating to future sound attenuation requirements and/or noise litigation.
The proposed residential sites also include properties that fall beneath the approach and transitional obstruction imaginary surfaces for JWA. Therefore, potential future residents would be exposed to significant aircraft overflight annoyance as approaching aircraft fly overhead. In the past, residential land uses located under aircraft approach corridors have generated a significant number of noise complaints from affected residents. Therefore, it is important that the City ensures that appropriate overflight notification requirements be put in place relating to these potential residential sites. Again, this type of notification requirement can be implemented through a Housing Element Noise Update overlay zone or through the CEQA process discussed further below.
There are also safety concerns related to proposed residential sites which are located within the AELUP Safety Zones for JWA. The comment letter from the ALUC provides more specifics on this issue, but it is important to note that the proposed residential sites within the Airport environs have been identified in Safety Zone 6: Traffic Pattern Zone and Safety Zone 4: Outer Approach/Departure Zone. As provided in the AELUP's Basic Safety Compatibility Qualities Table (page 9-45), within Safety Zone 4, "[i]n undeveloped areas, limit residential uses to very low densities (if not deemed unacceptable because of noise); if alternative uses are impractical, allow higher densities as infill in urban areas." In this instance, locating residential uses within Safety Zone 4 would place future residents within close proximity to the Airport and locate residential development directly under a general aviation, low -altitude, primary flight corridor. It is important that the City recognize these safety issues in the context of the Housing Element Noise Update and make adjustments and modifications to eliminate, where possible, these safety concerns.
Further, there are numerous flights over the proposed residential sites in the Airport environs, with a concentration of flights over the primary approach corridor and proposed sites east of the Airport within Safety Zone 6 and the transitional surface for JWA. The location and number of proposed new residential sites within Safety Zones 4 and 6, with some directly under the flight path of commercial and general aviation flights, again suggests that these new residential land uses would be incompatible with the operations at JWA and subject the future residents to not only excessive noise but also safety risks.
In addition to the land use, noise, overflight, and safety compatibility issues identified above, many of the residential sites included in the Housing Element Noise Update are in the Approach Surface, Transitional Surface, and Horizontal Surface of the Federal Aviation Regulation (FAR) Part 77 Obstruction Imaginary Surfaces for JWA. (See, e.g., 49 U.S.C. § 44718, 49 V.S.C. § 46301.) Although no height increases are proposed at this time, and with approximate ground elevations of 46 to 53 feet, the City's existing maximum building heights for the sites would not penetrate the Obstruction Imaginary Surfaces, the City has indicated that proposals for changes 22-195
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
to the existing height limits may be considered in the future. Therefore, it is important that the City is aware of this issue and the importance of compliance with the FAR Part 77 surfaces for JWA.
Cooperative Agreement Between the City and County
In addition to the land use, noise, safety, and airspace compatibility issues identified above, if the City moves forward with approving the Housing Element Noise Update which places new residential sites within the 65 dB CNEL noise contour, such actions will undermine the goals set forth in the Cooperative Agreement between the City and County of Orange, dated November 1, 2006. In that Agreement, the City and County agreed to "expand their longstanding efforts to promote compatibility between operations at John Wayne Airport ... and land uses within and in proximity to the City."
Furthermore, the City agreed to become a "consistent" agency with respect to residential land uses within the airport vicinity and to preserve certain longstanding land use plans, such as the Santa Ana Heights Specific Area Plan (SAHSAP) that were designed to harmonize land uses in Santa Ana Heights with air carrier operations at JWA. The City agreed to retain this consistent agency status through the term of the Agreement provided that the AELUP CNEL contour is not expanded in comparison to that which is in the AELUP as of the effective date. Importantly, the noise contours that the City proposed to utilize for the ALUC Update consistency determination are smaller than those provided in the AELUP. In addition, the City agreed not to repeal/modify the SAHSAP without County consent. The proposed Housing Element Noise Update would require changes to the City Zoning Code, which in turn requires an amendment to the SAHSAP. Consistent with the 2006 Cooperative Agreement, the City is required to obtain County consent prior to any amendments to the SAHSAP.
CEQA Compliance
With respect to CEQA compliance, because the City's Housing Element Noise Update submittal allows new residential sites within the 65 dB CNEL noise contour, there is a significant land use and noise impact for purposes of CEQA. In addition, and as discussed in detail above, there are also significant safety, airspace protection, and related environmental issues that must be addressed in the CEQA context.
The City has mistakenly indicated that the proposed Housing Element Noise Update is exempt from CEQA pursuant to Guidelines section 15183. (See City of Newport Beach Planning Commission Staff Report, dated August 3, 2023, Agenda Item No. 4, Housing Element Implementation, Noise -Related Amendments (PA2022-0201), pp. 1, 10-11; City of Newport Beach Resolution No. 2023-52, Section 6.) However, the referenced CEQA provision does not apply to projects otherwise consistent with a General Plan's development density parameters where it is "necessary to examine whether there are project -specific significant effects which are peculiar to the project or its site." (Guidelines, §15183(a).) As described throughout this comment letter, the proposed Housing Element Noise Update would facilitate the future development of residential land uses in a geographic area that is subject to potentially significant aviation -related noise, airspace, overflight and safety environmental concerns. Guidelines section 15183 does not provide a CEQA compliance pathway that permits the City to abdicate its duty to evaluate, disclose and mitigate these "peculiar" environmental concerns that are unique to the airport environs. (Guidelines, §15183(b).)
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Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
The City additionally has indicated that the proposed Housing Element Noise Update is not subject to further environmental review based on the erroneous premise that its impacts were fully analyzed in Final Environmental Impact Report (FEIR) 617, which was prepared for the amendments to the 1985 Settlement Agreement entered into by and between the County and the Orange County Board of Supervisors, the City of Newport Beach, Stop Polluting Our Newport, and the Airport Working Group of Orange County, Inc., (the Settlement Amendment) (see, Board of Supervisors Resolution No. 14-084 [September 30, 20141 and Board of Supervisors Resolution No. 14.088 [September 30, 2014]). (See City of Newport Beach Planning Commission Staff Report, dated August 3, 2023, Agenda Item No. 4, Housing Element Implementation, Noise - Related Amendments (PA2022-0201), pp. 1, 10-11; City of Newport Beach Resolution No. 2023- 52, Section 6.) FEIR 617, however, did not analyze the potentially significant environmental impacts of future residential land uses within the 65 dB CNEL noise contour. This is because, at the time that FEIR 617 was prepared, the City's policies did not allow residential land uses within the 65 dB contour and none were proposed. (See, e.g., FEIR 617, Table 4.5-10 [Goals and Policies Consistency Analysis], City of Newport Beach General Plan Policy 6.15.3: Airport Compatibility ["Require that ... residential development be located outside of the 65 dBA CNEL noise contour specified by the 1985 JWA Master Plan."].) Therefore, the City cannot rely on FEIR 617 for CEQA compliance because it does not analyze the potentially significant land use compatibility, noise, overflight, and safety impacts, among other impacts, of locating future residential development within the 65 dB CNEL noise contour. (See, e.g., CEQA Guidelines §§15006(f) and 15153 [permitting a lead agency to reuse a prior EIR for another project only when it "adequately addresses the proposed project" and where it can be demonstrated that "such projects are essentially the same in terms of environmental impact"]; see also CEQA Guidelines §15162 [providing that a subsequent EIR shall be prepared where "substantial changes" to the project are proposed which trigger the involvement of new significant environmental effects].) Also, and importantly, CEQA is the vehicle not only for the discussion and analysis of potentially significant impacts, but also for the imposition of appropriate mitigation, including, but not limited to, avigation easements and sound attenuation. (See, e.g., Guidelines §15002(a)(1)-(3).) The City must prepare and certify adequate CEQA analysis, including approval of adequate mitigation for significant environmental impacts, prior to considering approval and adoption of the Housing Element Noise Update.
Due to the proposed policy amendments which now would allow residential uses within the 65 dB CNEL noise contour, CEQA compliance is required prior to approval of the Housing Element Noise Update. The City cannot wait for a future residential project proposal. CEQA prohibits this type of deferral and piecemealing of the analysis of impacts. (See, e.g., Guidelines §15004 [CEQA compliance "should be prepared as early as feasible in the planning process"]; Guidelines §15378 [the "project" is the "whole of an action" and includes activities "directly undertaken by any public agency including ... the adoption and amendment of local General Plans or elements thereof'].)' ' It is noted that, on June 27, 2023, the City published a Notice of Preparation (NOP) for preparation of a Program EIR relating to its proposed Housing Implementation Program. In the NOP's "Project Summary," the City explains that its Program EIR will "evaluate the potential environmental effects of the implementing actions associated with the 2021-2029 Housing Element," including the housing sites identified in the so-called `Airport Area" (see, e.g., Figure 2E therein) and corresponding revisions to the City's General Plan Land Use Element and Zoning Code. It is unclear how the City's proposed Housing Implementation Program relates to the City's proposed Housing Element Noise Update that is the subject of this comment letter. Absent additional explanation, it appears that the City is improperly piecemealing the CEQA review of the totality of the City's efforts to implement its 2021-2029 Housing Element. (The 22-197
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Conclusion
In conclusion, the City's proposed Housing Element Noise Update has the potential to increase incompatible land use within the 65 dB CNEL noise contour, which could result in significant land use compatibility, noise, safety, and overflight impacts and additional encroachment of incompatible land uses within the airport environs. As indicated above, the City must comply with CEQA requirements to adequately analyze these potentially significant environmental impacts prior to considering approval of this Update. In addition, the City's proposed Housing Element Noise Update is inconsistent with the 2006 Cooperative Agreement entered into between the City and the County. Revisions are required to the Update to remove any residential uses within the 65 and 60 dB CNEL noise contours to ensure continued compliance with this important Agreement.
We continue to appreciate our close relationship with the City and will make ourselves available to discuss the issues identified in this letter at your convenience. Our hope is that we can continue to work cooperatively to ensure land use compatibility surrounding the Airport.
Sincerely,
Charlene V. Rey olds
Airport Director
Cc: Frank Kim, County Executive Officer
Lilly Simmering, Deputy County Executive Officer
Leon Page, County Counsel
Nicole Walsh, Senior Assistant County Counsel
referenced NOP for the proposed Housing Implementation Program is available on the City's website at Notice of Preparation and�Scopino Meettnq 062723.odf inewportbeachca.covx.) 22-198