Chapter 15.40 — TRAFFIC PHASING ORDINANCE6

A. The phasing of development with circulation system improvements to accommodate project-generated traffic is important to maintaining the high quality of the residential and commercial neighborhoods in Newport Beach;

B. Traffic congestion caused by inadequate phasing of circulation improvements and
development is harmful to the public health, safety and general welfare due to the potential
for delays in emergency response, air quality impacts and an overall reduction in the quality
of life.

C. While some development may be important to the continued vitality of the local economy,
the City should continue to require mitigation of traffic impacts by project proponents to
ensure the circulation system functions as planned;

D. Circulation system improvements should not alter the character of neighborhoods or result
in the construction of streets and highways which expand the capacity of the roadway
system beyond levels proposed in the circulation element;

E. This chapter is consistent with the authority of a public entity to ensure that project
proponents make or fund improvements that increase the capacity of the circulation system
to accommodate project generated traffic.
(Ord. 99-17 § 1 (part), 1999)

The City Council has adopted this chapter to achieve the following objectives:

A. To provide a uniform method of analyzing and evaluating the traffic impacts of projects that generate a substantial number of average daily trips and/or trips during the morning or evening peak hour period;

B. To identify the specific and near-term impacts of project traffic as well as circulation system improvements that will accommodate project traffic and ensure that development is phased with identified circulation system improvements;

C. To ensure that project proponents, as conditions of approval pursuant to this chapter, make or fund circulation system improvements that mitigate the specific impacts of project traffic on primary intersections at or near the time the project is ready for occupancy; and

D. To provide a mechanism for ensuring that a project proponent’s cost of complying with traffic related conditions of project approval is roughly proportional to project impacts. (Ord. 99-17 § 1 (part), 1999)

A. Standards for Approval. Unless a project is exempt as provided in subsection (C), no building, grading or related permit shall be issued for any project until the project has been

6. Prior ordinance history: Ords. 1765, 1777, 1787, 85-30, 86-20 and 94-2.

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City of Newport Beach, CA § 15.40.030 NEWPORT BEACH CODE § 15.40.030

approved pursuant to this chapter (approved). A project shall be approved only if the
Planning Commission, or the City Council on review or appeal, finds:

1. That a traffic study for the project has been prepared in compliance with this chapter
and Appendix A;

2. That, based on the weight of the evidence in the administrative record, including the
traffic study, one of the findings for approval in subsection (B) can be made; and

3. That the project proponent has agreed to make or fund the improvements, or make the
contributions, that are necessary to make the findings for approval and to comply with
all conditions of approval.

B. Findings for Approval. No project shall be approved pursuant to this chapter unless the
Planning Commission, or the City Council on review or appeal, finds that:

1. Construction of the project will be completed within sixty (60) months of project
approval; and:

a. The project will neither cause nor make worse an unsatisfactory level of traffic
service at any impacted primary intersection, or

b. The project including circulation improvements that the project proponent is
required to make and/or fund, pursuant to a reimbursement program or
otherwise, will neither cause nor make worse an unsatisfactory level of traffic
service at any impacted primary intersection, or

c. The project trips will cause or make worse an unsatisfactory level of traffic
service at one or more impacted primary intersection(s) but the project
proponent is required to construct and/or fund, pursuant to a reimbursement
program or otherwise, circulation improvements, or make contributions, such
that:

(1) The project trips will not cause or make worse an unsatisfactory level of
traffic service at any impacted primary intersection for which there is a
feasible improvement, and

(2) The benefits resulting from circulation improvements constructed or funded by, or contributions to the preparation or implementation of a traffic mitigation study made by, the project proponent outweigh the adverse impact of project trips at any impacted primary intersection for which there is (are) no feasible improvement(s) that would, if implemented, fully satisfy the provisions of Section 15.40.030 (B)(1)(b). In balancing the adverse impacts and benefits, only the following improvements and/or contributions shall be considered with the greatest weight accorded to the improvements and/or contributions described in subparagraphs (a) and (b) below:

(a) Contributions to the preparation of, and/or implementation of some
or all of the recommendations in, a traffic mitigation study related to
an impacted primary intersection that is initiated or approved by the
City Council,

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City of Newport Beach, CA § 15.40.030 BUILDINGS AND CONSTRUCTION § 15.40.030

(b) Improvements, if any, that mitigate the impact of project trips at any
impacted primary intersection for which there is (are) no feasible
improvement(s) that, if implemented, would satisfy the provisions of
Section 15.40.030(B)(1)(b),

(c) Improvements that mitigate the impacts of project trips on any
impacted primary intersection in the vicinity of the project,

(d) Improvements that mitigate the impacts of project trips on any
impacted primary intersection operating, or projected to operate, at
or above 0.80 ICU, or

d. The project complies with (1)(b) upon the completion of one or more circulation
improvements; and:

(1) The time and/or funding necessary to complete the improvement(s) is (are)
not roughly proportional to the impacts of project-generated trips, and

(2) There is a strong likelihood the improvement(s) will be completed within forty-eight (48) months from the date the project and traffic study are considered by the Planning Commission, or City Council on review or appeal. This finding shall not be made unless, on or before the date of approval, a conceptual plan for each improvement has been prepared in sufficient detail to permit estimation of cost and funding sources for the improvement(s); the improvement(s) is (are) consistent with the circulation element or appropriate amendments have been initiated; an account has been established to receive all funds and contributions necessary to construct the improvement(s) and the improvement is identified as one to be constructed pursuant to the five year capital improvement plan and as specified in Appendix A, and

(3) The project proponent pays a fee to fund construction of the
improvement(s). The fee shall be calculated by multiplying the estimated
cost of the improvement(s) by a fraction. The fraction shall be calculated
by dividing the “effective capacity decrease” in the impacted primary
intersection attributable to project trips by the “effective capacity increase”
in the impacted primary intersection that is attributable to the
improvement. The terms “effective capacity increase” and “effective
capacity decrease” shall be calculated in accordance with the provisions of
Appendix A; or:

2. The project is a Comprehensive Phased Land Use Development and Circulation
System Improvement Plan with construction of all phases not anticipated to be
complete within sixty (60) months of project approval; and

a. The project is subject to a development agreement which requires the
construction of, or contributions to, circulation improvements early in the
development phasing program, and

b. The traffic study contains sufficient data and analysis to determine if that portion
of the project reasonably expected to be constructed and ready for occupancy
within sixty (60) months of project approval satisfies the provisions of

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City of Newport Beach, CA § 15.40.030 NEWPORT BEACH CODE § 15.40.030

subsections (B)(1)(a) or (B)(1)(b), and

c. The Land Use and Circulation Elements of the General Plan are not made
inconsistent by the impact of project trips (including circulation improvements
designed to mitigate the impacts of project trips) when added to the trips
resulting from development anticipated to occur within the City based on the
Land Use Element of the General Plan and Zoning Ordinance, and

d. The project is required, during the sixty (60) month period immediately after
approval, to construct circulation improvement(s) such that:

(1) Project trips will not cause or make worse an unsatisfactory level of traffic
service at any impacted primary intersection for which there is a feasible
improvement,

(2) The benefits resulting from circulation improvements constructed or
funded by, or contributions to the preparation or implementation of a
traffic mitigation study made by, the project proponent outweigh the
adverse impact of project trips at any impacted primary intersection for
which there is (are) no feasible improvement(s) that would, if
implemented, fully satisfy the provisions of Section 15.40.030(B)(1)(b). In
balancing the adverse impacts and benefits, only the following
improvements and/or contributions shall be considered with the greatest
weight accorded to the improvements and/or contributions described in
subparagraphs (a) or (b):

(a) Contributions to the preparation of, and/or implementation of some
or all of the recommendations in, a traffic mitigation study related to
an impacted primary intersection that is initiated or approved by the
City Council,

(b) Improvements, if any, that mitigate the impact of project trips at any
impacted primary intersection for which there is (are) no feasible
improvement(s) that, if implemented, would fully satisfy the
provisions of Section 15.40.030(B)(1)(b),

(c) Improvements that mitigate the impacts of project trips on any
impacted primary intersection in the vicinity of the project,

(d) Improvements that mitigate the impacts of project trips on any
impacted primary intersection operating, or projected to operate, at
or above 0.80 ICU; or

3. The Planning Commission, or City Council on review or appeal finds, by the affirmative vote of five-sevenths (5/7) of the members eligible to vote, that this chapter is inapplicable to the project because the project will result in benefits that outweigh the project’s anticipated negative impact on the circulation system;

   C. Exemptions. The following projects are exempt from the provisions of this chapter:

   1. Any project that generates no more than three hundred (300) average daily trips. This exception shall not apply to individual projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty-

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City of Newport Beach, CA § 15.40.030 BUILDINGS AND CONSTRUCTION § 15.40.035

four (24) month period cumulatively generate more than three hundred (300) average
daily trips;

2. Any project that, during any morning or evening peak hour period, does not increase
trips by one percent or more on any leg of any primary intersection;

3. Any project that meets all of the following criteria:

a. The project would be constructed on property within the sphere of influence of
the City of Newport Beach and that is within the jurisdiction of the County of
Orange or an adjacent city as of the effective date of this ordinance; and

b. The project is subject to a vesting tentative or parcel map, development
agreement, pre-annexation agreement and/or other legal document that vests the
right of the property owner to construct the project in the County or adjacent
city; and

c. The property owner enters into a development agreement, pre-annexation
agreement, or similar agreement with the City of Newport Beach:

(1) That establishes the average daily trips generated by the project
(“baseline”),

(2) That requires the property owner to comply with this chapter prior to the
issuance of any permit for development that would, in any twenty-four
(24) month period, generate more than three hundred (300) average daily
trips above the baseline for the project, and

(3) That makes this chapter applicable to the project immediately upon
annexation;

d. The City Council determines, prior to annexation, that the environmental document prepared for the project fully complies with CEQA and the CEQA Guidelines. (Ord. 99-17 § 1 (part), 1999)

A. The Planning Commission, or City Council on review or appeal, shall establish a specific date on which the approval of the project shall expire (expiration date). In no event shall the expiration date be less than twenty-four (24) months from the date of approval. The initial expiration date for projects other than those described in Section 15.40.030(B)(2) shall be no more than sixty (60) months from the date of approval unless subsequent approval is required from another public agency. In the event the project requires approval from another public agency subsequent to approval pursuant to this chapter, the date of approval shall be the date of the action taken by the last public agency to consider the project. Approval pursuant to this chapter shall terminate on the expiration date unless a building permit has been issued for the project and construction has commenced pursuant to that permit prior to the expiration date or the expiration date has been extended pursuant to subsection (C).

B. Any project approved pursuant to this chapter shall be considered a “committed project” until the expiration date, if any, or until the final certificate of occupancy has been issued if

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City of Newport Beach, CA § 15.40.035 NEWPORT BEACH CODE § 15.40.040

construction has commenced on a portion or a phase of the project. All trips generated by each committed project shall be included in all subsequent traffic studies conducted pursuant to this chapter as provided in appendix A. Committed projects shall be administered in accordance with Appendix A.

C. The Planning Commission or City Council may, subsequent to the date of approval, extend the expiration date for any project.

D. The Community Development Director and Traffic Manager shall, at least annually, monitor the progress of each project to ensure compliance with this chapter. (Ord. 99-17 § 1 (part), 1999; Ord. 2013-11 § 110, 2013)

The following terms used in this chapter shall have the meaning indicated below:

“Circulation element” means the Circulation Element of the General Plan of the City of Newport
Beach as amended from time to time.

“Circulation improvement(s)” or “improvement(s)” means a modification to a primary
intersection (possibly including a related roadway link) that increases the capacity of the primary
intersection.

“Date of approval” means the date the project is approved, pursuant to this chapter, by the
Planning Commission or City Council on review or appeal.

“Feasible improvement” means a circulation improvement that:

1. Is not inconsistent with the Circulation Element as the date of approval and has not been
identified as infeasible by the City Council at a public hearing to initiate or approve a traffic
mitigation study; or

2. Is not inconsistent with any amendment(s) to the Circulation Element initiated and
approved in conjunction with the project and is required to be completed by the project
proponent and/or the City within the time frames required by this chapter.

“ICU” means the intersection capacity utilization computed in accordance with standard traffic
engineering principles and the procedures outlined in the existing Appendix A.

“Impacted primary intersection” means any primary intersection where project trips increase the
volume of traffic on any leg by one percent or more during any peak hour period.

“Level of traffic service” means the letter assigned to a range of ICU’s in accordance with
Appendix A.

“Members eligible to vote” means all members of the Planning Commission, or the City Council
on review or appeal, lawfully holding office except those members disqualified from voting due
to a conflict of interest.

“Peak hour period” means the four consecutive fifteen (15) minute periods between 7:00 a.m.
and 9:00 a.m. (morning) and the four consecutive fifteen (15) minute periods between 4:30
p.m. and 6:30 p.m. (evening) with the highest traffic volumes (for each primary intersection) as
determined by the field counts required by Appendix A.

“Primary intersection” means each intersection identified in the existing Appendix B and,
with respect to individual projects, any additional intersection selected by the Traffic Manager

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City of Newport Beach, CA § 15.40.040 BUILDINGS AND CONSTRUCTION § 15.40.050

pursuant to Section 15.40.050(B)(1).

“Project” means “project” as defined in CEQA and relevant decisional law without regard to whether any environmental document is required for the project. The term “project” shall also mean any application for a building or grading permit for development that would generate more than three hundred (300) average daily trips.

“Traffic engineer” means the traffic engineer retained by the City to prepare the traffic study.

“Traffic Manager” means the person designated by the City Manager as the City Traffic Engineer pursuant to Section 2.32.010.

“Traffic mitigation study” means a study designed to evaluate and recommend a plan to mitigate the impact of an actual or potential unsatisfactory level of traffic service at any primary intersection or traffic volumes in any residential neighborhood in the vicinity of that primary intersection.

“Traffic study” means the study prepared by the traffic engineer in strict compliance with this chapter including Appendix A.

“Unsatisfactory level of service” means a level of service at a primary intersection, which is worse than level of service “D” (.90 ICU), during any morning or evening peak hour period as determined in accordance with Appendix A. (Ord. 99-17 § 1 (part), 1999; Ord. 2007-12 § 1 (Exh. A), 2007; Ord. 2013-11 § 111, 2013; Ord. 2023-22 § 733, 2023)

A. The Planning Commission shall determine compliance with this chapter based on the traffic study for the project, information from staff and/or the traffic engineer, and the entire record of the proceedings conducted with regard to the project. The traffic study shall be prepared in compliance with Appendix A.

B. Subject to review by the Planning Commission, or City Council on review or appeal, the
traffic manager, in the exercise of his/her professional discretion, shall:

1. Direct the preparation of each traffic study by a traffic engineer retained by the City
and, in compliance with Appendix A, determine those primary intersections (or other
intersections if the impact of project traffic on primary intersections may not be
representative) that may be impacted by project trips;

2. Ensure that each traffic study is prepared in compliance with the methodology
described in Appendix A and independently evaluate the conclusions of the traffic
engineer;

3. Make recommendations to the Planning Commission and/or City Council with
respect to the criteria for evaluating trip reduction measures, the appropriate trip
generation rates of land uses, and the criteria for distributing project trips to ensure
that each traffic study reflects modern transportation engineering practice.

C. Any finding or decision of the Planning Commission with respect to any project that also
requires discretionary action on the part of the City Council, such as an amendment to the
general plan or zoning ordinance, shall be deemed an advisory action. In such cases the
City Council shall take any action required by this chapter at the same date and time that

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City of Newport Beach, CA § 15.40.050 NEWPORT BEACH CODE § 15.40.075

the City Council considers the other discretionary approvals required by the project.

D. The application for any building, grading or other permit for any project subject to this chapter shall be approved, conditionally approved or denied within one year from the date on which the application is deemed complete. In the event action is not taken on an application within one year, the project shall be deemed approved provided it is consistent with the general plan and zoning ordinance of the City of Newport Beach.

E. A fee as established by resolution of the City Council to defray the expenses of administering this chapter shall accompany the application for a traffic study. The application for a traffic study shall be submitted in compliance with Appendix A.

F. The City Council shall conduct a noticed public hearing prior to initiating or approving any traffic mitigation study and identifying as infeasible any improvement at or near any primary intersection;

G. The City Council may establish reimbursement programs to ensure that multiple projects affecting the same primary intersection pay for improvements in proportion to their respective impacts. The reimbursement programs shall be developed and administered in compliance with Appendix A. (Ord. 99-17 § 1 (part), 1999)

A. The Planning Commission, and the City Council on appeal or review, shall hold a public hearing on any project pursuant to this chapter. The public hearing on the traffic study may be consolidated with other hearings required by the project. The hearing shall be noticed in the manner provided in Title 20 of the Newport Beach Municipal Code or any successor provision.

B. All findings required or provided for in this chapter shall be in writing and supported by
the weight of the evidence in the entire administrative record for the project including the
traffic study.
(Ord. 99-17 § 1 (part), 1999; Ord. 2013-11 § 113, 2013)

A. Except as otherwise provided in this chapter, any Planning Commission decision to approve a project shall be final unless there is an appeal by the project proponent or any interested person. The appeal shall be initiated and conducted pursuant to the procedures in Title 20 of the Newport Beach Municipal Code or any successor provision;

B. The City Council shall have a right to review a decision of the Planning Commission consistent with the procedures and processes as specified in Title 20 of the Newport Beach Municipal Code or any successor provision;

C. The City Council shall be subject to the same requirements as the Planning Commission relative to decisions and findings required by this chapter. (Ord. 99-17 § 1 (part), 1999; Ord. 2013-11 § 114, 2013)

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City of Newport Beach, CA § 15.40.075 BUILDINGS AND CONSTRUCTION § 15.40.075

A. In no event shall the Planning Commission or City Council on review or appeal:

1. Impose any traffic related condition or conditions on the approval of a project that
would require the project proponent to construct one or more circulation
improvement(s) if the total cost of traffic related conditions and/or improvements is
not roughly proportional to the impact of project trips; or

2. Impose any traffic related condition or conditions on the approval of a project which
would require the payment of fees or costs that are not roughly proportional to the
impact of project trips.

B. The provisions of this chapter are intended to address the specific and, in most cases, near
term impacts of project trips on impacted primary intersections rather than the overall
impact of project traffic on the circulation system. Chapter 15.38 of the Newport Beach
Municipal Code is intended to address the overall impact of development on the circulation
system. Conditions or fees imposed pursuant to this chapter shall be in addition to fees
required pursuant to Chapter 15.38 except as otherwise provided in Chapter 15.38.

C. The provisions of this section shall not limit or restrict the authority of the Planning
Commission, or City Council on review or appeal, to impose on any project all feasible
mitigation measures pursuant to the provisions of applicable law, including CEQA and the
CEQA Guidelines.

D. The provisions of this section shall not require approval of any project if the Planning
Commission, or City Council on review or appeal, is unable to make the findings required
for approval pursuant to this chapter.

E. The provisions of this section shall not require approval of any project which the Planning
Commission is authorized to deny or modify pursuant to any State law or City ordinance,
resolution or plan.

F. The provisions of this section shall not limit or restrict the authority of the Planning
Commission, or City Council on review or appeal, to impose conditions, fees, exaction or
dedications on a project pursuant to:

1. A development agreement;

2. A reimbursement agreement, a reimbursement program, or any agreement acceptable
to the project proponent;

3. The consent of the project proponent; or

4. An amendment to the land use element or zoning ordinance of the City of Newport Beach that is required for approval of the project7. (Ord. 99-17 § 1 (part), 1999) 7. Editor's Note: Appendix A Administrative Procedures for Implementing the Traffic Phasing Ordinance is included as an attachment to this title.Editor's Note: Appendix B Primary Intersections is included as an attachment to this title.

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City of Newport Beach, CA