Referendum prompts council to repeal ordinance on building height, mass, bulk; staff directed to include elements into zoning code update


City Council this week considered options for qualified referendum for a city ordinance relating to building height, mass, bulk and parking within commercial districts.

Under elections code, there is a specific process when a council receives a referendum on a previously adopted ordinance, City Attorney Megan Garibaldi explained. Pursuant to that law, council was asked to either:

–Direct staff to return with an ordinance, and take all steps necessary, to repeal the ordinance and amend city code, relating to building height, mass, bulk and parking within commercial districts.

–Direct staff to return with the requisite election resolutions, and take all steps necessary, to submit the ordinance to the voters at the November 5 regular municipal election.

Ultimately, councilmembers voted 3-0 on Tuesday (May 28) to repeal the ordinance, but also directed staff to incorporate certain components of the item into the comprehensive zoning code update that still comply with state housing law. Councilmember Mark Orgill recused himself due to a business conflict of interest and Councilmember George Weiss was absent.

Mayor Sue Kempf supported the basic elements in the ordinance and emphasized the importance of getting it legally secure.

“If we do that…we’ll have something that we can all be proud of,” Kempf said.

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Photo by Mary Hurlbut

Council decided to repeal an ordinance related to building height and bulk in commercial districts, including Downtown, in response to a referendum

The issue is related to a pending lawsuit, noted Councilmember Bob Whalen.

“We’ve been advised…that the ordinance here runs afoul of some of the state housing laws that are now in effect,” he said. “The problem is that, even if it’s affirmed by the voters, we’re going to have that defect that we can’t avoid.”

There could possibly be an argument regarding the ordinance and Senate Bill 330, which required subjective design criteria for housing-related projects, Garibaldi said, answering a council question about whether there are any legal issues with the current ordinance.

“I think that there is a potential legal vulnerability for a SB 330 subjective design criteria argument,” Garibaldi said. “I think it’s fixable with a change to an ordinance, unfortunately your hands are tied in doing that tonight with the current ordinance, given the referendum.”

Elections code prohibits a city from passing a new ordinance for one year after repealing another that was the subject of a referendum that is materially identical to the original ordinance, Garibaldi explained.

“This restriction doesn’t foreclose the entire subject matter for all ordinances and allows the city to deal with the subject matter of the suspended ordinance by enacting a sufficiently different ordinance from that protested,” Garibaldi said. “In short, you cannot currently make modifications to the ordinance before you.”

Although, the repealed ordinance could return with modifications at a later date, she added.

Answering another council question, Garibaldi explained that if council decided to place the matter on the November ballot, voters would be asked whether or not they want to repeal the ordinance. If a majority wanted to keep it, any future amendments to it – like to fix any potential legal issues related to state housing law – would need to also be put on the ballot, she noted. Once a law is approved or enacted by the voters, which would occur by virtue of a referendum, further amendments to that ordinance need to be done by a vote of the people, she said.

Overall, councilmembers opposed the idea of putting a potentially flawed ordinance on the ballot.

“When the voters pass something, it can’t be changed,” said Mayor Pro Tem Alex Rounaghi. “Ballot box land use planning is not a good idea.”

The voters don’t want us to be spending taxpayer dollars on defending an ordinance that has legal issues, he added.

“It’s irresponsible to put something on the ballot that has a legal flaw,” Kempf agreed. “You just don’t do that. That’s just not responsible by the council. It’s a terrible idea.”

Whalen suggested repealing the ordinance and directing staff to bring it back with the provisions, and, in a new ordinance, eliminate any concerns relative to housing.

“We will continue to have these limitations in effect, which I advocated for last July, and we’ll get them in an ordinance that is not going to be subject to challenge on a housing basis,” he said.

Not just repeal it and let it go, Whalen said, but direct staff to bring it back with whatever modifications are necessary to conform to the state housing laws.

Rounaghi suggested to instead include provisions related to height and lot size (mass and scale) into the comprehensive zoning code update. The best way forward is to repeal the ordinance and incorporate the elements that don’t violate state housing law into that update, he said.

“The look and feel of Laguna is what people want to protect,” Rounaghi said.

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Whalen agreed to the suggestion. He wants to direct staff to include these issues, Whalen added, however that happens.

“I just want us to be on record that we want to see these addressed in a manner that is consistent with state (housing) law,” Whalen said.

A lot of time was spent on this ordinance, Rounaghi noted, and the goals behind it were in response to public concern. People came forward with a ballot initiative, measure Q, but that had a lot of adverse impacts, he commented.

“The overwhelming majority of Laguna Beach residents want to keep Laguna looking (like) Laguna,” he said. “The goal of the council at the time…was to come up with a solution to do that.”

“As I look at the legislative history of this, I think what was really happening was the council was trying to listen to the community,” Rounaghi noted.

The ordinance initially stemmed from 2022 ballot initiatives tackling the same issues. Council voted to officially oppose both measures (along with another proposing to increase hotel worker wage) on July 19, 2022. At the time, most councilmembers agreed the initiatives (one called Measure Q sponsored by Laguna Residents First, the other was Measure R by UNITE HERE Local 11 union) were confusing, over-reaching, or unnecessary. Staff proposed an ordinance with alternative guidelines related to building height, mass, bulk and parking within commercial districts, primarily the Downtown.

“I was intimately involved in the drafting of this ordinance,” Whalen said.

They met with proponents of Measure Q and others several times and they came up with this, he said.

“(It was) in an effort to see if the Measure Q proponents would retract Measure Q and not have it go forward, which they ultimately decided not to do,” Whalen said.

At the time they were working on Measure Q, there was an opportunity to get together and pare down the ballot initiative to focus on what people were really worried about, Kempf added, which was not to change the character of the town.

“We all feel like that, that’s why we live here,” she said.

The Planning Commission unanimously voted on June 15, 2022, to recommend that the City Council adopt the ordinance with some suggested modifications.

During a special meeting on July 26, 2022, a split 3-2 council approved the introduction and first reading of the ordinance, an action on which was postponed from the July 12 meeting. Councilmember George Weiss and former Councilmember Toni Iseman dissented. During the second reading of the item at the Aug. 16, 2022 meeting, councilmembers voted 3-2 to adopt the ordinance, but this time Weiss and former Councilmember Peter Blake voted no. The ordinance went into effect on Aug. 29, 2022, Garibaldi confirmed.

Garibaldi highlighted that the ordinance made certain changes to the zoning code, design review criteria, lot mergers in Downtown, design standards for building sites of 15,000 square feet or more, amended the variances that are heard by the Planning Commission, and amended maximum building heights.

The ordinance noted that lot mergers shall not exceed 15,000 square feet for any property within 500 feet of the Downtown Specific Plan. The language also specifically exempted public facilities and public parking structures from these standards, something several speakers previously raised concerns about with the ballot initiatives.

It also changed the zoning code to amend variances that are heard by the Planning Commission to add that: Height variance limited to where emergency access is required; height variance for new or replacement of existing rooftop mechanical equipment, provided the equipment is required for the operation and maintenance of the building, does not unreasonably encroach into ocean views of neighboring building’s occupants, and respects the design integrity and character of the building and height variance cannot be issued for the expansion of existing floors or creation of new floors whose envelope would exceed the allowed height limit.

Language in the ordinance also noted that no element of a new building shall exceed 36 feet in height, including but not limited to rooftop elevators, equipment, furniture and other design features.

The ordinance also included a section that development of existing or newly created parcels requires that the building be constructed on a parcel be designed to appear from the street frontage as two or more distinctly different developments to avoid the appearance of a single large project and to ensure maintenance of the city’s small scale and village character.

Following the recommendation from planning commissioners (after quite a bit of back and forth), the ordinance also included limiting the maximum length of any individual building street frontage to 125 feet, including those buildings which have exposures on two or more street frontages. Longer building lengths may be approved by the Planning Commission when all other design objectives of the section are met.

Other requirements listed in the ordinance relate to public accessible open space, public way improvements, parking and sustainability.

On Sept. 26, 2022, the city clerk received signatures for the referendum petition seeking to repeal the ordinance. The Orange County Registrar of Voters verified a total of 2,613 valid signatures on the referendum petition.

On Nov. 15, 2022, councilmembers unanimously decided to receive and file the referendum against the city ordinance.

Initially, the council was scheduled to consider options and take action, either entirely repeal the ordinance or submit the ordinance to the voters, but a lawsuit filed by the Laguna Beach Company on Nov. 14, 2022, changed the recommended course of action. After the lawsuit was filed looking to invalidate the approved ordinance, council decided to wait on taking action in response to the referendum until they discussed the litigation in closed session.

According to city staff, ordinances that are the subject of a referendum are automatically suspended once the petition with sufficient signatures is submitted. Therefore, Laguna Beach’s ordinance related to building height, mass, bulk and parking within commercial districts has not been in effect since the referendum qualified.

During public comment this week, only a few residents spoke, but all were in favor of sending the ordinance to the voters.


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

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