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Council intends to override airport commission on housing element, noise-related amendments

By SARA HALL

Newport Beach City Council voted 5-0 on September 12 in support of a resolution that notified the Orange County Airport Land Use Commission about the city’s intent to override the commission’s finding of inconsistency for housing element implementation and noise-related amendments.

Councilmember Joe Stapleton was absent and Councilmember Erik Weigand recused himself based on campaign contributions that exceeded $250 received from participants in the proceedings.

The City of Newport Beach is required to submit the housing element implementation, noise-related amendments to the Airport Land Use Commission for a consistency determination with the Airport Environs Land Use Plan for John Wayne Airport. The commission conducted a hearing on the matter on August 17 and found the amendments to be inconsistent with the plan.

Last week, city council agreed to move forward with overriding ALUC’s finding and voted to provide notice to the commission and the state of the city’s intention.

When the city started working on the process to update the housing element three years ago, they formed a housing committee made up of local residents, explained Assistant City Manager Seimone Jurjis. The committee was charged with site selection for where housing units should be planned for in the city in an effort to meet the state mandated Regional Housing Needs Assessment.

“These housing units are just opportunity sites,” Jurjis noted. “The committee is the one that decided where these opportunities are going to go, some of it were placed closer to the airport than others, but the airport area was looked at as an opportunity for redevelopment.”

The housing element includes an inventory of potential candidate housing sites by income category to meet the city’s RHNA allocation. As identified in the housing element, the airport area includes 62 new housing opportunity sites that could accommodate up to 2,577 housing units.

Council adopted the 2020-2029 housing element last September and the California Department of Housing and Community Development certified the document as substantially compliant with state housing laws on Oct. 5, 2022.

If certain actions aren’t taken to implement the policies in the housing element, the city’s certification could be threatened and there are severe fines and penalties if the city were to be decertified by the state, Jurjis said.

Over the last three years, while discussing the housing element, they encouraged people to get involved so they would better understand the city’s position when attempting to deal with mandates from the state, said Mayor Pro Tem Will O’Neill. They went through the process and got a compliant housing element to try and avoid a lot of the “draconian measures,” the state is dictating.

“We understand the point that the state’s wrong. We said as much. You can go back and look at our appeal documents. And we fought that fight and we lost every step of the way and so now we’re here,” O’Neill said. “I appreciate the frustration because we share that.”

Council intends to override airport commission city hall

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Council intends to override the airport commission’s determination related to the city’s housing element, noise-related amendments

Several of the sites identified in the housing element are proximate to John Wayne Airport and within the existing 65 dBA Community Noise Equivalent Level (CNEL) noise contour area. Staff argues that the potential sites are necessary so the city to meet the RHNA allocation. No development would be directly authorized by the proposed amendments.

“What we’re talking about here’s the noise contours. We’re not talking about adding additional units,” confirmed City Attorney Aaron Harp. “Changing those noise contours does have impacts as far as what can be developed and what the requirements are for that development, but no units are being added as part of this action.”

O’Neill also pointed out that this change is not “out of the blue.” These noise contours were actually used in the environmental impact report for the 2014 settlement agreement, he said.

The county did a noise study, developed the contours and included them in their EIR, Jurjis agreed. Newport Beach then used those existing noise contours as a basis to make adjustments, he explained.

“This is not something we created, this is something that the county created,” Jurjis added.

Since the city has policies and regulations related to noise that prohibit residential uses in this area, the code needs to be updated in order to allow the housing opportunity sites.

When the housing element was initially drafted, the ALUC reviewed these sites and found the entire document to be inconsistent with the AELUP. Ultimately, council overruled the airport commission’s determination, finding it inconsistent with state law, and adopted the housing element with these sites included.

Recently, ALUC determined that the amendments needed to city code to allow residential in this specific CNEL noise contour area are also inconsistent with the AELUP. In their determination letter, ALUC cited sections in the Airport Environs Land Use Plan for JWA related to aircraft noise, safety compatibility, assisting local agencies in ensuring compatible land uses in the vicinity of existing airports and the general policy of the AELUP.

Several public comments at last week’s meeting raised concern that the action would impact the airport settlement agreement and/or the cooperative agreement between the city and county (the Spheres agreement).

Last week’s action does not have any impact on the Spheres agreement, Harp confirmed. This vote was about notifying the appropriate agencies about the city’s intent, which will be considered at a future meeting.

“I think the more important point is (regarding) the future action, potentially – will that have an impact on the Spheres agreement?” he pointed out.

Harp argued that, if council ultimately votes to override the decision of ALUC, the city would still not be in violation of the Spheres agreement because of the public utilities code.

“The public utilities code lays out a process for us to maintain our consistency and we’re going through that process,” Harp explained. “No action is being taken tonight and before the City Council takes action, you will be considering whether or not to make the required findings and see whether there’s a 2/3 vote to do so.”

If a majority of the council makes the required findings, it can overrule the ALUC’s determination and therefore still be consistent, he said.

The Airport Land Use Commission can only find inconsistency for very specific reasons, he said, one of which is if a majority of the council doesn’t make the required findings to take action to override a determination.

“In sum, as long as the City Council by two-thirds vote makes the findings necessary to override the Airport Land Use Commission, (then) the city’s not in violation or not an inconsistent agency for purposes of the ALUC or the airport land use plan; and it wouldn’t have any impact on the Spheres agreement. I think that’s an important point.”

Harp later clarified that it’s two-thirds of the quorum in attendance during the vote.

In a written comment to the council, resident Jim Mosher referenced the 2006 Spheres agreement. Mosher noted that in return for the Board of Supervisors’ promise to not extend the runway to the south without council consent, the city promised that it will become a “consistent agency” for purposes of the AELUP and that the city shall take the actions necessary to do so within 12 months after the effective date. The city promised to retain the consistent agency status through the term of the agreement provided that the 65 CNEL contour is not expanded in comparison to that which was already existing in the AELUP.

“Particularly in view of the ALUC chair’s reaction, that promise now seems in question,” Mosher wrote.

Even if the council’s future action (two-thirds vote in favor of the required findings) could legally make the city consistent that could “open an avenue for litigation that the council’s findings were irrational and unsupportable,” Mosher said during public comment at last week’s meeting.

“In which case we would be, then, inconsistent,” he pointed out.

He also commented that acting against the county’s wishes is a poor idea.

“The whole thing, I think, sends a very bad message,” Mosher said.

“Newport Beach has a long history of objecting to noise from the John Wayne Airport and by adopting this we now seem to say, ‘We don’t think noise is a problem anymore.’ I don’t think that’s what the public wants to communicate.”

During public comment, only eight residents spoke, but all raised a variety of concerns about what the action could mean for the community. Longtime local Nancy Scarbrough suggested placing the item on a study session agenda to allow for more public interaction and to ease any worry residents might have, particularly those who live around the airport, about what they will or won’t have at the end of the day.

Anything that could impact airport expansion is of the utmost concern, commented Councilmember Robyn Grant.

“We, the city council, would definitely want to have the appropriate information and make sure that we are crossing all the t’s and dotting all the i’s to not be jeopardizing either a legal position or a bargaining position or anything like it,” Grant said.

It’s a two-step process to override ALUC’s determination. The first step in the process is to conduct a public hearing to adopt a resolution of intention to override, which is what the council approved last week. The second step in the process is that not less than 45 days after notification has been sent to the ALUC and the state, the council conduct a second public hearing to consider adoption of a resolution to actually override the ALUC. The second hearing will likely happen in November.

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Sara Hall covers City Hall and is a regular contributor to Stu News Newport.

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