Appeal of “Director’s Determination” Allowing Construction of Residences in Place of Hotel Rooms
The appeal described on this page was noticed for a hearing before the City Planning Commission on July 8 at 6:30 p.m. At that hearing, the Planning Commission denied the appeal. SPON has until July 22 to appeal that decision to the City Council.
On April 30, 2021, City staff posted a “Director’s Determination” by which the Community Development Director purports to have discovered that, without any need to amend the City’s General Plan, 30% of the current General Plan hotel room limits at four resort hotels can be used alternatively to build permanent dwellings units. The addition of this potential for new dwelling units without counting the newly-allowed units toward the Greenlight thresholds for voter approval, which this claims to do, is a clear evasion of our City Charter.
SPON appealed this “Determination” to the Planning Commission. But, at a July 8 hearing, the Planning Commission denied the appeal, leaving the Determination standing. A further appeal to the City Council would have to be filed by July 22.
Why We Appealed:
SPON does not yet have a opinion about the value of hotel to residential conversions in general or as part of the solution to the City’s state-mandated RHNA (Regional Housing Needs Assessment) obligation to provide for 4,845 new homes in the next 10 years.
SPON does object to the process, which allowed a staff person to effectively amend the City’s General Plan ahead of the larger update to meet RHNA that is in progress, and improperly avoid the Greenlight tracking required by our voter-enacted City Charter. In particular, the increase in General Plan housing capacity declared by the Community Development Department’s Director, if properly enacted by the City Council as a General Plan amendment, is, for the Newport Center statistical area, well in excess of the amount that requires voter approval under Charter Section 423 (Greenlight).
Additionally, for hotel conversions to be part of the RHNA solution, there would have to be an assurance that they would lead to construction of affordable units, which is the primary category of housing Newport Beach is struggling with. The staff Determination creates flawed policy in that respect since it contains no obvious requirement that any of the newly allowed resort living units would be in the affordable categories.
City staff’s finding that its Determination is consistent with its state-certified Local Coastal Program is equally flawed. The portion of the City subject to the LCP is divided into an area in which City decisions can be appealed to the California Coastal Commission for further consideration of their consistency with state coastal policy, and an area where they cannot. The Determination is said to apply only to hotels outside the appeal area. It is very difficult to see how what is good and consistent policy outside the appeal area would not also be good and consistent policy inside the appeal area. Especially since the Determination excludes from eligibility the two coastal zone hotels (The Resort at Pelican Hill and the Marriot’s Newport Coast Villas) that seem most readily adaptable to residential resort living, while the single coastal zone hotel it includes (the Newport Beach Marriot at Newport Center) seems much less suitable for residential construction.
The citizens of charter cities are supposed to be able to control what their city government can and cannot do.
Newport Beach citizens adopted a charter in 1954 and in 2000 amended it to include the Greenlight provision, limiting the Council’s ability to add growth potential to the City’s General Plan. Greenlight counts hotel rooms separately from residential units.
In 2006, a slim majority of voters approved specific General Plan limits for the allowable number of hotel rooms and residences in each of the City’s 50, or so, statistical areas. Any subsequent increases to allowed number of hotel rooms or residences are supposed to counted toward the Greenlight thresholds for what the City Council is permitted to add without voter approval.
This “Determination,” effectively allowing hundreds of new dwelling units to be added to the General Plan without counting any of them toward the Greenlight thresholds, is a clear evasion of Greenlight.
The Determination is particularly problematic with regard to the Newport Center statistical area, because the voter-approved allotment for dwelling units has all been built, and the City Council recently increased that limit by 90 units. Since Greenlight allows the Council to add only 100 units in 10 years without voter approval, should they add a policy allowing previously-approved hotel rooms provide entitlements to build residences it would have to be limited to creating around 10 new units. Any more would have to be placed on a ballot for voters to decide.
Yet, through this Determination, staff is claiming it can add the potential for something like 250 new residential units in the Newport Center statistical area without the Council having to do anything and with no need for voter approval.
As the SPON appeal says, there is something fundamentally wrong with this notion that City staff has greater authority than the Council to make changes to land use policy in Newport Beach.
July 22: deadline for appeal of Planning Commission decision to City Council
- July 8, 2021: The City Planning Commission heard SPON’s appeal of the Community Development Department Director’s Determination regarding hotel room to residences conversion, and denied the appeal on a 6:0 vote, with one Commissioner absent. See meeting materials, archived here.
- May 14, 2021: SPON appealed the Determination to the Planning Commission for an independent decision regarding it.
- May 6, 2021: Although not legally required, City staff presented the Determination to the Planning Commission as a “receive and file” item at their May 6 meeting.
- April 30, 2021: Director posted his Determination.
- Stu News Newport, June 29, 2021: Fair Game by Tom Johnson: SPON appeals “director’s determination” that allows converting hotel rooms to residential use
- Stu News Newport, July 13, 2021: Commission denies appeal, debates definitions, Greenlight triggers, General Plan amendments
- SPON appeal form as submitted