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HomeMy WebLinkAbout02/14/1994 - Regular MeetingCOUNCIL MEMBERS CALL < Present Excused Motion All Ayes M (en A yes Motion All Ayes • • CITY OF NEWPORT BEACH REGULAR COUNCIL MEETING PLACE: Council Chambers TIME: 7:00 P.M. DATE: February 14, 1994 x I x I x I x I x I x I x I ROLL CALL x x x Reading of Minutes of Meeting of January 24, 1994 was waived, approved as written, and ordered filed. Reading In full of all ordinances and resolutions under consideration was waived, and City Clerk was directed to read by titles only. Mayor Turner presented a Proclamation to Ben Nolan, Public Works Director, in recognition of NATIONAL ENGINEER'S WEEK in Newport Beach, February 20 - 26, 1994. CONSENT CALENDAR The following items were approved, except for those items removed: ORDINANCES FOR INTRODUCTION - Pass to second reading on February 28, 1994: 1. Proposed ORDINANCE NO. 94 -9, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADDING SECTION 12.66.088 TO THE NEWPORT BEACH MUNICIPAL CODE TO PROVIDE FOR APPLICATION OF VEHICLE CODE TO PRIVATE STREETS IN THE VILLA BALBOA. DEVELOPMENT. [Report from Public Works /Traffic Engineering] 2. Proposed ORDINANCE NO. 94 -10, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTION 12.52.070 OF THE NEWPORT BEACH MUNICIPAL CODE TO DESIGNATE VIA FLORENCE BETWEEN VIA LIDO SOLID AND PIAZZA LIDO AS ONE - WAY NORTHEASTERLY. [Report from Public Works /Traffic Engineering] 3. Proposed ORDINANCE NO. 94 -11, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REPEALING CHAPTER 12.60 OF THE NEWPORT BEACH MUNICIPAL CODE REGARDING PEDESTRIAN CROSSWALKS. [Report from Traffic Affairs Committee] RESOLUTIONS FOR ADOPTION MINUTES Ord 94 -9 Veh /Trfc (85) Ord 94 -10 (85) Ord 94 -11 Veh /Trfc (85) 4. Resolution No. 94 -7 establishing NO Pkg Rstrctr PARKING RESTRICTIONS for street sweeping St Swpg from 8:30 a.m. to 12:30 p.m. on Res 94 -7 Thursdays on GRANT STREET BETWEEN (85) SEASHORE DRIVE AND OCEANFRONT. [Report from Traffic Affairs Committee] 5. Resolution No. 94 -8 ordering the SUMMARY Vac /Abandm VACATION AND ABANDONMENT OF AN UNUSED Res 94 -8 EASEMENT FOR SEWER PURPOSES recorded on (90) March 16, 1937 in Book 867, Page 440 of Official Records located in Lot 3 of Tract 5361; City Clerk to have resolution recorded. [Report from Public Works Department] Volume 48 - Page 35 CITY OF NEWPORT BEACH COUNCIL MEMBERS MINUTES S' `A February 14, 1994 ROLL CRLL 0 INDEX 6. Resolution No. 94 -9 approving the Trfc installation of MID-BLACK CROSSWALKS at Res 94 -9 various locations. [Refer to report with (85) agenda item 3] 7. Resolution No. 94 -10 modifying various Cncl Ad HC resolutions to amend the duties; extend Cmtes (24) the termination dates; and sunset Res 94 -10 various CITY COUNCIL AD NOG COMMITTEES. S. Removed from the Consent Calendar. CONTRACTS AND - AGREEMENTS 9. CONSTRUCTION FOR WATER PIPELINE/FIRST 1st Av Wti AVENUE WATER MAIN REPLACEMENT PROJECT Mn /Pipeln (CONTRACT NO. 2944) - Take -over C -2944 agreement surety with Great American (38) Insurance Company. [Report from Utilities Department] 10. Removed from the Consent Calendar. 11. NATURAL COMMUNITY CONSERVATION PLANNING PW /NCCP PROGRAM AGREEMENT (NCCP). [Report from C -2989 Planning Department] (38) 12. ENGINEERING SERVICES AGREEMENT FOR Unt#III/ PROJECT MANAGEMENT AND DESIGN OF THE Upr Npt BE UNIT III UPPER NEWPORT BAY SEDIMENT Sdmt Cntr] CONTROL AND ENHANCEMENT PROJECT with John M. Tettemer and Associates. C -2987 [Report from Public Works Department] (38) 13. ENGINEERING SERVICES AGREEMENT FOR Upr Npt Ba PROJECT NANACEMENT SERVICES TO IMPLEMENT Sdmt Cntr] VARIOUS 1993/94 CAPITAL IMPROVEMENT C -2 9 9 2 PROJECTS with M. Pickart P.E. [Refer to (38j - - -- report w /agenda item 12] 14. ENGINEERING SKRVIGES AGREEMENT FOR Upr Npt Ba PROJECT MANAGEMENT SERVICES TO IMPIMENT Sdmt Sdmt VARIOUS 1993/94 CAPITAL IMPROVEMENT PROJECTS with Hunter Cook and -Cntr1 Associates. [Refer to report w /agenda (38) item 12] 15. 15TH STREET REHABILITATION BETWEEN 15th St IRVINE AVENUE AND NEWPORT BOUIEVARD Rehab (CONTRACT 2661) - Cooperative design C -2661 agreement with the City of Costa Mesa. (38) [Report from Public Works Department] 16. 1993 -94 SIDEWALK AND CURB AND GUTTER 193 -94 REPIACEMENT PROGRAM; AND LIDO ISLE Sdwlk /Crb/ SIDEWALK REPLACEMENT, PHASE I (CONTRACT Gtr /Lido I 2769) - Rescind award of Contract No. C -2769 2769 to O'Keefe Engineering, Inc., and direct staff to either collect the (38) bidder's bond or negotiate a settlement in lieu of collecting the bidder's bond; award Contract 2769 to the second low bidder, Lambaren Contractors, Inc., for the total bid price of $211,267.50; and direct staff to use the low bidder's unit prices to compute costs for Lido Isle Community Association's portion of the work. [Report from Public Works Department:] Volume 48 - Page 36 COUNCIL MEMBERS ROLL CRLL • • CITY OF NEWPORT BEACH February 14, 1994 17. PARR IMPROVEMENT 6 MAINTENANCE AGREEMENT FOR EL CAPITAN PARR, located at the southerly end of E1 Capitan Road between Point Conception and San Joaquin Hills Road; City Clerk to have agreement recorded. [Report from Public Works Department] 18. BIRCH STREET BRIDGE WIDENING OVER S.R. 73 FREEWAY COMBINED PROJECT STUDY REPORT - Engineering Services Agreement with Wildan Associates. [Report from Public Works Department] 19. NEWPORT BEACH PROFESSIONAL AND TECHNICAL EMPLOYEES ASSOCIATION (MBF&TEA) CONTRACT 2051 - Tentative agreement on reopeners of the MOU. [Reports from Personnel Director and City's Negotiations Team] 20. PERSONNEL VACANCIES - Reports from Personnel, Community Services and General Services Directors. 21. CLAIMS - For Denial by the City Manager Charles Adair alleging personal injuries as a result of trip and fall in front of Museum parking lot adjacent to Newport Center Library on January 12, 1994. Erin Houghton alleging personal injuries, loss of work, etc., as a result of trip and fall in street while walking dog on November 27, 1993. Brick and Wendy Huston seeking reimbursement for personal belongings, alleging City sewer line backed up and spilled raw sewage into garage on January 9„ 1994 at Serra Drive, Corona Highlands. Lewis A. Retring alleging he was rendered a paraplegic and partially quadriplegic as a result of his head striking something while surfing in the ocean between 35th and 36th Streets on August 16, 1993. Melinda 2e Alexander Mahban seeking reimbursement for damages to date, alleging City Business License Division denied their request on October 29, 1993 for Special Events Permit without legal grounds. Michael McDonough seeking reimbursement of uncompensated prebriefing preparation, etc., (Police Department) March 5 - May 26, 1993. Lois E. Miller seeking indemnity from claim filed by Charlene Melville regarding trip and fall on August 23, 1992 near 2908 W. Ocean Front. Kenneth M. Ott for property damage, alleging his parked vehicle was hit by City truck, on January 13, 1994. Marcia Thompson for personal injuries, as a result of trip and fall on raised portion of concrete sidewalk at 700 Edgewater, Balboa on October 9, 1993. Volume 48 - Page 37 MINUTES INDEX Prk Impr•-- & Mntnc E1 Capitan Prk DIP 3495 Birch St Brdg Wdng C -2991 (38) NBP &TEA C -2051 (38) (66) (36) COUNCIL MEMBERS yc"�ss�9�� ROLL CRLL • • • Motion All Ayes r,a CITY OF NEWPORT BEACH MINUTES February 14, 1994 INDEX Eric Whittenberg/CNA Ins. Co., alleging personal property damage as a result of sewer backup into home at 1919 Glenwood on March 1,6, 1993. - For rejection - late claims: Mark William Faus alleging illegal search, false arrest, violation of civil rights, etc., sustained on January 17, 1993, at Irvine Boulevard and La Canada Avenue. Robert L. Stratton alleging harassment, trespassing, etc., by Police Department, et al, from 1979 to present. Robert L. Stratton alleging loss of income as a result of illegal surveillance by City, et al, from 1979. 22. TRACT NO. 11949 - Release the Faithful Tract 1194: Performance Bond and Labor and Materials Bond (Bond No. 709 7003) for construction of a traffic signal located at 3400 Fifth Avenue; intersection of Marguerite: Avenue and Fifth Avenue. [Report from Public Works Department] 23. UTILITIES YARD EXPANSION PROJECT /PHASE Utlts Yrd II (CONTRACT NO. 2962) - Accept work; Expnsn file Notice of Completion and release Phase II bonds 35 days after Notice of Completion C -2962 has been recorded in accordance with (3B) applicable: provisions of the Civil Code. [Report from Utilities Department] 24. SPECIAL EVENTS APPLICATION NO. 94 -025 - Permit /Spc For West Coast Pro -Am Tour for 2 -day Events surfing contest in the 2300 block of Apl#94 -025 West Oceanfront from 7:00 a.m. - 6:00 (27) p.m., on ;February 19 and 20, 1994 and the use of amplified sound, subject to conditions in the staff report. [Report from Revenue Manager, Finance Department] 25. BUDGET AMENDMENTS - Removed from the Consent Calendar. ITEMS REMOVED FROM THE CONSENT CALENDAR Agenda Item No. 8. Proposed resolution regarding ADULT ORIENTED BUSINESSES. Sid Soffer, 900 Arbor Street, Costa Mesa, addressed the Council and advised that the subject document had not been included in the agenda packet in the lobby for public viewing. The City Attorney gave Mr. Soffer a copy of the proposed resolution and advised that it was not available to the staff or the City Council until late this afternoon. There being no further comments, motion was made by Council Member Hart to adopt Resolution No. 94 -11 accepting studies and other documentation regarding the secondary effects associated with the operation of ADULT ORIENTED BUSINESSES. Volume 48 - Page 38 Adult Oriented Businesses (27) Res 94 -11 COUNCIL MEMBERS ROLL CRLL CITY OF NEWPORT BEACH February 14, 1994 Volume 48 - Page 39 MINUTES Well Site Agr /GrndWti Dev Prj C -2988 (38) 10. Report from Utilities Department concerning WELL SITE LASE AGRME NT with purchase option/Fountain Valley School District Tamura School Site, GROUNDWATER DEVIMPEENT PROJECT. Robert Nigro, 8767 La Zana Court, Fountain Valley, addressed the Council • and stated he was in support of the City's objective for a local source of water, but was concerned with the proposed site for the pumphouse inasmuch as it will be within 55 feet of his second floor bedrooms. He also discussed sound attenuation, and stated that if the proposed site is approved, the sound level will go from 49 dB to 55 dB. He suggested the City Council consider alternate sites that do not impact homeowners and that do not come closer that 200 feet to any residence. Mr. Nigro also submitted a petition containing 28 signatures of residents living in the immediate area of the proposed well site in opposition to the choice of the Tamura School grounds for this project. He reported that the Fountain Valley School District will be voting on this matter on March 10, 1994. R. J. Turner, 8901 La Dona Court, Fountain Valley, addressed the Council and stated he, too, was in support of the City's request to purchase water from Fountain Valley, but suggested the Council re- evaluate the benefits and • cost savings to the City vs. Newport Beach's total dollar expenditure to purchase, erect and operate the pump stations. Jeff Staneart, Utilities Director, responded to the above remarks by stating, In part, as follows: "The staff's of both the Fountain Valley School District and the City, believe that the site under consideration is optimal in several respects in that it is very close to the pipe line alignments that are being considered for transport of the water. It is an area some distance away from the school operations, and is adjacent to a street which has some of the utilities that are necessary to provide service as well as access to the proposed well site. Included with the proposed action, is an addenda to the EIR that was considered and approved by the Council in December 1992. This • addenda is site specific in considering the impacts to the surrounding community for this certain site. With regard to ambient noise levels, the construction project that is proposed, will not create noise Volume 48 - Page 39 MINUTES Well Site Agr /GrndWti Dev Prj C -2988 (38) COUNCIL MEMBERS ROLL CRLL • • • �fI CITY OF NEWPORT BEACH February 14, 1994 anywhere close to 55 dB; however, there would be construction - related impacts from drilling equipment, etc., but it would be short -term in nature. The proposed construction of the water well site includes a building to enclose the water well, pumping equipment and electrical panel which will have acoustical protection, masonry construction, some insulation, and sound -proof thickened doors. Even though the proposed site was ranked third in the cluster of nine locations, it is fair to say that all of the sites considered as part of the project were feasible from the standpoint they had good groundwater, good access to pipeline routes and would be favorable for Newport Beach. If the proposed site is approved, the Fountain Valley School District would have architectural review and approval of the facility that would be placed on the site itself, and the City of Fountain Valley Building Department would review and approve the structures to be constructed. He will provide a list of already constructed water well sites to Mr. Nigro to visit which are similar in size and scope to the one being proposed. With regard to other possible locations, offers have been made on a variety of other sites, but they have not been well received by the property owners other than the Fountain Valley School District." John Douglas, Principal Planner, addressed the Council with regard to sound attenuation, and stated that the 55 dB noise level in the EIR was a mitigation measure that was applied as part of the original approval prior to the proposed site being selected. 55 dB is the level that is normally considered acceptable for a residential area; therefore, they applied this mitigation measure to the project to cover the situation where a well might be located near a residential area. However, it is his understanding that the enclosure to house the pump, equipment, etc., will be designed as such that someone standing outside the structure would not be able to hear any difference with the pump operating or not. If the City Council wishes to condition this project relative to sound attenuation, he indicated this would not be a problem. Mr. Nigro addressed the Council again and stated he has visited some other pump sites and found that well No. 11 in Fountain Valley had a noise level of 72 dB at 25 feet away from the enclosed pump station. He referenced a map on Volume 48 - Page 40 MINUTES Well Site Agm /GrndWt7 Dev Prj COUNCIL MEMBERS \* \ O `o \\ • Motion All Ayes M n A *es X CITY OF NEWPORT BEACH MINUTES February 14, 1994 display and depicted his home in relation to the proposed well site. He suggested consideration be given to an alternate site at Newland and Talbert Avenues. The Utilities Director noted that there could be a higher noise level around a water well enclosure that is adjacent to an open commercial area, as opposed to the noise level in a residential area due to the design of that enclosure. The City Attorney stated that the legal counsel representing Fountain Valley School District may be more agreeable to entering into an Easement Agreement rather than a Lease Agreement, and recommended Council give authorization to executing such a document which is substantially similar to the lease agreement. Following discussion, motion was made by Mayor Turner that the City enter into an Easement Agreement with the Fountain Valley School District for the proposed well site as recommended, but that a letter also be sent to the District addressing the concerns discussed relative to noise levels. 25. BUDGET AMEPDMIICTS— 1(40) BA -032, $450,000 - To fund computer system for the NEWPORT BEACH PUBLIC LIBRARY (Newport Beach Public Library Foundation. donation) [Memorandum from (50) Community Services Director] BA -033, $7,396 - To provide for energy efficient improvements to the CORPORATION YARD and City Hall (unbudgeted rebate revenue from the Edison Company). BA -034, $160,000 - To provide for transfer of funds from CENTRAL LIBRARY FURNITURE AND EQUIPMENT to the general project management account for the Central Library. [Memorandum from C -27 Public Works Department] (38) BA -035, $15,455.21 - To provide for final design consultant services of the POLICE FACILITY SHOOTING RANGE MODIFICATIONS (CONTRACT 2980). [Report C -29 from Public Works Director and Police (38) Chief] Dolores Otting, 17 Hillsborough Avenue, addressed the Council and received clarification from the City Manager as to the purpose and intent of each of the above budget amendments, and there being no further comments, motion was made by Council Member Hart to approve Budget Amendments 032 through 035 as recommended. Volmme 48 - Page 41 • • • CITY OF NEWPORT BEACH COUNCIL MEMBERS MINUTES y9�� TG� \s F� s February 14, 1994 INDEX Tily B/ U/P 1727(A (88) PUBLIC HEARINGS, 26. Public hearing on the APPEAL OF TILY B. INC., DR& MIRAGE OF NEWPORT from denial by the Planning Commission of USE PERMIT NO. 1727 (AMENDED) - Request to amend a previously approved use permit which permitted the establishment of a restaurant with on -sale alcoholic beverages and established a parking requirement based on one parking space for each 40 square feet of "net public area." The proposed amendment includes a request to change the operational characteristics of the restaurant so as to permit adult live entertainment as well as patron dancing to prerecorded music and live entertainment; and a request to provide valet parking spaces; property located at 4248 Martingale Way and Dolphin- Striker Way, in the Newport Place Planned Community. Report from Planning Department. Letter of appeal filed by Attorney Ronald Talmo. Letter from Bonnie and Dan O'Neil, in opposition to negative activities that can impact the community. Letter from Tim McKeehan in opposition to subject appeal. The City Clerk advised that after the agenda was printed, seven (7) additional letters in opposition to the request were received from the following: Kathy Rosenberger, Candi M. Neilly, Corona del Mar PTA, El Torito Restaurant, Mr. & Mrs. Blair Armstrong, Mr. & Mrs. Dudley Pfaff, and Ann King. The Planning Director read into the record the following: "The applicant for Use Permit No. 1727 proposes to operate a business on property located within the Newport Place Planned Community (Newport Place). The Newport Place Planned Community Development standards (PC text) were adopted by the City Council on December 21, 1970. The Newport Place PC text divides the community into industrial and commercial districts. The commercial districts are, in turn, divided into sites designated for Professional and Business offices, General Commercial, Retail /Commercial, Auto Center, Hotel, Service Station and Restaurant. Applicant's parcel is one of three within the Restaurant Site No. 1 and is designated Commercial/ Restaurant:. Restaurants have been the only use occurring on Restaurant Site No. 1 since the inception of the PC text and the only use permitted on the Site by the PC text and adopted map. In Volume 48 - Page 42 INDEX Tily B/ U/P 1727(A (88) COUNCIL MEMBERS • • CITY OF NEWPORT BEACH February 14, 19504 addition to Restaurant Site No. 1, restaurants are permitted on Retail /Commercial Sites and are permitted as accessory uses to a limited extent on Professional and Business Office Sites, and are permitted in four out of five of the Sites designated as General Commercial. "The Newport Place PC text does not permit theaters on Restaurant Site No. 1 or any other Site within the Planned Community. Staff has again reviewed the floor plan submitted by the applicant and has determined that less than 25% of the net public area is devoted to food serving uses. More than 75% of the net public area is devoted to dancing and theater uses. The applicant's representative has testified the business is a theater as that term is used in Sections 318.5 and 318.6 of the Penal Code of the State of California. The applicant's representative has also stated that provision of food and drink is incidental to the entertainment being provided and we have attached a transcript of pertinent testimony before Planning Commission as Exhibit A to the proposed findings for denial. The applicant proposes to offer live dancing performances with some movie and video performances on or about six 'theater stages' that occupy approximately 2610 square feet of net public area compared to 831 square feet of net public area devoted to food service and dining. The applicant has described the business as a 'topless theater' in the Live Entertainment Permit Application and as an 'adult theater' in the Business License Application. Copies of these Applications are attached as Exhibit B and C to the proposed findings for denial. Accordingly, we believe applicant is changing what was once a restaurant to a theater with an accessory or ancillary food and beverage service, and the proposed use is not permitted by the Newport Place PC text." The Planning Director further noted that the Planning Commission considered this request on January 20, 1994 and voted to deny it. The City Attorney stated that Mr. Talmo, the attorney representing the applicant, has suggested in testimony before the Planning Commission that the City's Adult Business Ordinance authorizes adult businesses in commercial areas of planned communities that are designated for commercial type uses. He stated he has looked at the Ordinance and looked at the City's practice, and determined that Mr. Talmo is correct only if the use that is being proposed is in fact a permitted use within the PC text. In this case it would mean, an adult theater would be permitted within the PC text if the underlying use was a permitted use in portions of this PC; however, a theater is not a permitted Volume 48 - Page 43 MINUTES INDEX U/P 1727(A) COUNCIL MEMBERS *00 1 1 0%� *\* • CITY OF NEWPORT BEACH February 14, 1994 use. The interpretation that Mr. Talmo has given to the Planning Commission and may give to the City Council, is not consistent with the provisions of the City's Adult Business ordinance which requires adult uses to be consistent with and in conformance with other provisions of Title 20 of the Municipal Code /Zoning Ordinance. In addition, the courts have ruled that cities and counties do not have the legal authority to issue a use permit for a land use that is :inconsistent with or out of conformance with either the General Plan or the Zoning Ordinance. Accordingly, this use permit must be denied because use permits can only be granted when the use that is being authorized is consistent: with the Zoning Ordinance. A recalculation was also done on the area of this particular use devoted to food service and theater, and the actual percentages resulted in approximately 34% of the net public area devoted to food service, and about 66% devoted to theater and theater -type seating. Also, copies of` the revised findings for denial have been distributed to the City Council as well as the Applicant and Mr. Talmo. Ron Talmo, representing the Applicant, addressed the Council and stated that the City Attorney's factual statements are all accurate. He discussed the issue of the Planned Community Text which was recently discovered by the City, but stated it was not discovered by the Planning Department when the Applicant purchased the site, nor was it known by the Planning Department when they applied for permits. In addition, the staff report from the Planning Department to the City Council, that particular situation is not referenced; however, it does appear in the City Attorney's memorandum. As a result, if they are not considered a restaurant by the City, then they do not need a Conditional Use Permit. The only reason they applied for an amended use permit is because they were told by City staff that if they were going to serve any quantity of food or beverage, then an amended use permit is required because they are changing the type of entertainment from live to the proposed use. If their theater is not considered a restaurant then they do not need a use permit anyway, and if this is not the case, then the issue before the Council is apparently the parking issue that was before the Planning Commission. It is inconceivable that the City could do business in such a way that an applicant for a use of a premises appears in front of a Planning Commission with full staff reports and input from the City Attorney's office, but yet when the matter is appealed to the City Council, a totally different basis is discovered by the City. He disagrees with the interpretation of the City Attorney with respect to the PC text inasmuch as it allows for restaurants and they fit the Volume 48 - Page 44 MINUTES U/P 1727(A CITY OF NEWPORT BEACH COUNCIL MEMBERS MINUTES �`g,�`�y ROLL CflLL S ' February 14, 1994 INDEX Title 20 definition of a restaurant. U/P 1727(1 The definition that is apparently being "talked about now appears nowhere." So as long as they fit the City's definition of restaurant, and if they are changing their use, they could still • be a theater (under Penal Code Section 318.5), and yet qualify under the City's "strange" definition of restaurant as set forth in Title 20. The City Attorney stated that Mr. Talmo is somewhat correct about not needing a use permit amendment inasmuch as one could not be granted for the use they are proposing as the use simply is not permitted in that zone. Mr. Talmo is also correct in the sense that the PC text issue was not identified prior to the Planning Commission hearing on the subject. The precise issue being raised by staff at this time was brought to the attention of the City by an attorney representing an adjoining land owner who reviewed the entire PC text shortly after the Planning Commission hearing. This is not a situation where the staff took a particular course of action and then looked for some way to change that course of .action. The following persons addressed the Council in opposition to the request for adult live entertainment: Jim Dale, 2813 Villa Way • Shirley Wentzel, 4100 Newport P1. Debbie Lucas, 1942 Port Bishop Gail Ochs, 444 Isabella Terrace Bonnie O'Neil, 314 Morningstar Jim Buckingham, 1420 Bristol St. Sandy L. Kureshi, 16425 Harbor B1. (representing Enough is Enough Campaign against Pornography) Ed Benson, 1028 Westwinds Way Howard Ashton, 308 Orchid Ave. Sarah Sansevieri, 704 Marigold Ave,. It was indicated by the above speakers that such a use would negatively impact the image of Newport Beach; would be a detriment to the business mix in the neighborhood; valet parking would pose additional problems; would create an unsafe environment in the area; would decrease property values in the City as well as the standard of living in the City; would not benefit anyone in the City other than the operator; it could open the door to similar requests; and that the proposed use is an exploitation of womanhood; and therefore, would attract undesirable clientele which could increase crime, particularly molestation and rape. Volume 48 - Page 45 CITY OF NEWPORT BEACH COUNCIL MEMBERS MINUTES C �� `t�y,�RLL February 14, 1994 IN➢EX 0 Motion All Ayes X Sid Soffer, 900 Arbor Street, Costa U/P 1727(A: Mesa, addressed the Council and stated he was not for or against pornography, but was concerned with safety of children. He indicated that society has changed, but he did not feel it is because women remove their clothes, but rather the mentality of people in general. lie also stated that pornography can be seen on late night cable television. Hearing no others wishing to address the Council, the public hearing was closed. In response to question raised by Council Member Sansone, the City Attorney stated that in order to permit what the applicant is proposing to operate is an amendment to the PC teat that would authorize theaters at that particular location. The way in which this request has been brought before the City Council, is an application by an individual who seeks to amend an existing use permit for a business which he believes constitutes a theater; and therefore, the appropriate action for the City Council is to deny the application. Mr. Soffer addressed the Council again and asked for point of clarification which reopened the public hearing. Mr. Soffer stated that if the word "adult entertainment" were deleted, it would take away from the constitutionality question, and if the City Attorney says there cannot be a theater of any kind at this location, the City removes the chance of a lawsuit in regards to public entertainment and first amendments. The City Attorney stated that Mr. Soffer is correct in that the issue is not adult vs. non - adult; the issue is solely whether this particular land use is permitted by the Zoning Ordinance, and it is the staff's interpretation that it is not; and therefore, that is the decision which is before the City Council at: this time. Hearing no other comments, the public hearing was closed again. Council Member Debay moved to sustain the decision of the Planning Commission and deny the subject appeal, based on the Findings for Denial (Items 1 through 10) that were presented to the City Council and Applicant this date. 27. Mayor Turner opened the public hearing 62nd St regarding CONSTRUCTION OF CURB, CUTTER, Cnstr /PCH .AND SIDEWALK ON BOTH SIDES OF 62ND Prospect St STREET BETWEEN PACIFIC COAST HIGHWAY AND NEWPORT SHORES DRIVE; AND ALONG PROSPECT C -2929 STREET BETWEEN NEWPORT SHORES DRIVE AND (38) PACIFIC COAST HIGHWAY (CONTRACT 2929). Report from Public Works Department. Volume 48 - Page 46 CITY OF NEWPORT BEACH COUNCIL MEMBERS MINUTES ROIL CRLL February 14, 1994 TNMY The City Clerk advised that after the 62nd st agenda was printed, a letter of protest Cnstr /PCH was received from Mike Hoskinson of the prospect Spaghetti Bender, 6204 W. Coast Highway. The Public Works Director stated that following a public hearing that was held is on October 12, 1992, the Council directed the staff to use a procedure of Chapter 27 of the Improvement Act of 1911 to complete the remaining curb and sidewalk on 62nd Street and on Prospect Street between Coast Highway and Newport Shores Drive. Under this procedure the property owners are responsible for completing the frontage improvements as is the case uniformly elsewhere in the City. The City paid the cost of constructing the 62nd Street pavement. This project was initiated to improve drainage conditions, and it has made some improvement to provide a place for pedestrians to walk on the narrow streets, and to improve the appearance In an area that has been upgrading for the past several years. The work was done under a competitively bid public works contract with the final cost to the property owners ranging from $1,133 to $2,977. The paving costs to the City on 62nd Street was a little over $20,000; in addition, the City funded the cost of engineering and contract administration. Reference was made to the letter of • protest received and referenced earlier by the City Clerk, wherein the Public Works Director stated that the staff will continue to work with the affected property owners to resolve the driveway, grade and drainage problems to the extent that is possible to do so. The policy type objections were heard and considered at a previous public hearing when it was decided to proceed with this project. He recommended that the Council confirm the assessments and allow the property owners three years to pay for the improvements pursuant to an agreement at a rate of 6% per year on the unpaid balance. Hearing no others wishing to address the Council, the public hearing was closed. Motion x Council Member Debay stated that she has 111 Ayes met twice previously with Mr. Hoskinson regarding his concerns, and that the Public Works Director has assured her that the staff and she would be meeting with him again to work on those problems; therefore, she moved to confirm the assessments and allow the property owner three years in which to pay his assessment with an interest rate • of 6% per annum on the unpaid balance. Volume 48 - Page 47 COOU,NCIL MEMBERS ROLL CHLL s Mo on yes X CITY OF NEWPORT BEACH February 14, 1994 28. Mayor Turner opened the public hearing regarding proposed ORDINANCE NO. 94 -2, being. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ANENDffiG SECTION 15.40.030(C) OF THE NEWPORT BEACH MUNICIPAL CODE TO CHANGE THE 133MTION CRITERIA IN THE TRAFFIC PHASING ORDINANCE. Report from Planning Department. The City Manager stated that if approved, the proposed amendment will change certain provisions of the City's Traffic Phasing Ordinance. As proposed by the Economic Development Committee, the change will increase the exemption threshold from 130 Average Daily Trips to 300 Average Daily Trips, and eliminate the building square footage and dwelling units thresholds contained within the exemption section. Hearing no one wishing to address the Council, the public hearing was closed. Council Member Watt stated that she concurs in the above recommendation inasmuch as she felt it will not change the "good" of the Ordinance; however, she reserves the right to bring it back at a future date. In view of the foregoing, motion was made by Council Member Cox to adopt Ordinance No. 94 -2; and amend Council Policy I. -18, the Administrative Procedures for Implementing the traffic Phasing Ordinance, consistent with Ordinance 94 -2. 29. Mayor Turner opened the public hearing regarding proposed ORDINANCE N0. 94 -3, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMSHDING TITLE 20 OF THE NEWPORT BEACH MUNICIPAL CODE SO AS TO REVISE VARIOUS SECTIONS OF THE ZONING CODE CHANGING THE CALCULATION OF GROSS FLOOR AREAS TO INCLUDE THOSE PORTIONS OF RESIDENTIAL BUILDINGS OR RELATED STRUCTURES WHICH SPAN MORE THAN ONE FLOOR AND WHICH ARE LOCATED OVER UNINHABITABLE AREAS (PLANNING COHML.SSION AMENDMENT NO. 789). Report from Planning Department. The Planning Director advised that the proposed amendment is a follow -up to the problem the City was having with certain duplexes on Balboa Island and the construction of clerestory areas, specifically in the areas of garages as opposed to other inhabitable areas of Volume 48 - Page 48 MINUTES Ord 94 -2 Traffic Phasing (26) Ord 94 -3 Zoning (94) PCA 789 CITY OF NEWPORT BEACH COUNCIL MEMBERS �`�`9yJr s ROLL CRLL February 14, 1994 Motion All Ayes • MINUTES INDEX Zoning Ord 94 -4 Zoning (94) PCA 791 a dwelling. This Ordinance would require t1►at in an uninhabitable area, such as a garage, and if the ceiling of that garage was more than 14 feet, 6 inches above the finished floor, then the area of that space would be calculated to 2 x the floor area. Sid Soffer, 900 Arbor Street, Costa Mesa, addressed the Council and requested clarification of the purpose and intent of the Ordinance, to which the Planning Director responded. Hearing no others wishing to address the Council, the public hearing was closed. X Motion vast made by Council Member Watt to adopt Ordinance No. 94 -3. 30. Mayor Turner opened the public hearing regarding proposed ORDINANCE NO. 94 -4, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING TITLE 20 OF THE NEWPORT BEACH MUNICIPAL CODE SO AS TO REVISE A PORTION OF DISTRICTING NAP NO. 2 ESTABLISHING A 10 FOOT YARD SETBACK ALONG THE SOUTHEASTERLY SIDE OF 47TH STREET BETWEEN -RIVER AVENUE AND - NEPTUNE AVENUE IN WEST NEWPORT (PLANNING COMMISSION AMENDMENT NO. 791). Report from Planning Department. The City Clerk advised that after the agenda was printed, a letter was received from Alice T.C. Donovan, co- owner of property at 126 47th Street in opposition to the proposed setback. The Planning Director stated that the proposed amendment was initiated by the City and is basically intended to change the setback on this portion of 47th Street and to bring the residential setbacks more into line with existing 10 foot setbacks on lots of similar size in the area. This was considered by the Planning Commission on January 6, 1994 and approved unanimously. Peter Tarr, 5023 Lido Sands Drive, addressed the Council in opposition to the proposed amendment. He stated their neighborhood is already very congested, and does not feel this change will be of any benefit. Dave Archie, 138 47th Street, addressed the Council and stated that he and his wife initiated the proposed amendment in order to get more owner /occupied residents living on their street. He stated he has lived in the area for approximately five years and invested heavily into his house to make it a better place for his family. Volume 48 - Page 49 INDEX Zoning Ord 94 -4 Zoning (94) PCA 791 CITY OF NEWPORT BEACH COUNCIL MEMBERS MINUTES \1PVO � �� \%\A February 14, 1994 nni � roi i INDEX Council Member Debay stated that the Zoning Archies had contacted her regarding their concerns and desires, and pointed out to Mr. Tarr that 47th Street is the only street that has a 20 foot setback in that neighborhood, and as a result, penalises the people that side of 47th Street in that they cannot build what • anybody can on any other street. In addition, because the Archies want to stay where they are and build a home, she has supported them through the Planning Department. Alice Donovan, co -owner of 126 47th Street, addressed the Council in opposition to the proposed amendment. She referenced her letter dated February 9, 1994; stated their property has been in the family since 1954; felt the proposal would only add to the over- crowding in the area; stated that 47th Street is unique and different from all the other streets in the area in that it does not have houses on the opposite side of the street that have 10 foot setbacks; if the City allows a 10 ft. frontyard setback, the City will only increase congestion and cramped feelings, and it will not have a positive effect on the neighborhood whatsoever. Sid Soffer, 900 Arbor Street, Costa Mesa, addressed the Council and • discussed the two main reasons for setbacks according to case law. Hearing no others wishing to address the Council, the public hearing was closed. Motion x Council Member Debay stated she would like to see the Archies be able to build their home and to be on equal footing with those on other streets, and therefore, moved to adopt Ordinance Mo. 94 -4. Council Member Watt stated she will not be supporting the motion inasmuch as the City has in the Housing Element of the General Plan, statements that provide a variety of housing throughout the City, types and styles, and as a result, she felt there is no justification to change the setbacks on one whole street because of just one lot, only to have the rest of the street be faced with a different setback. Council Member Sansone stated he will also not tie supporting the motion for the same reasons as stated by Council Member Watt, and that the City should maintain what is already there. x x x x The motion was voted on and carried. N x x PUBLIC COMMENTS 1. Sid Soffer., 900 Arbor Street, Costa Mesa, commented he would like to see more public participation during the Volume 48 - Page 50 COUNCIL MEMBERS �G3,s���j. mot+` (- ROLL CALL CITY OF NEWPORT BEACH February 14, 19114 MINUTES Volume 48 - Page 51 INDEX public comment period of the agenda. He also stated it is still his understanding that 50% of the money generated from the blue meters at McFadden Square goes into an off - street parking fund to provide more parking for • that particular area. The City Manager reported that he is still looking into the history of where the monies from parking meters have been allocated over the years and those amounts, and that he will be in contact with Mr. Suffer when those figures are finalized. 2. Ron Hendrickson, 1991 Port Claridge, Newport Taxpayers Alliance, stated there is a used for more public awareness and understanding of City Council activities. He stated that a number of unpublicized activities occurred during and prior to the Measure A Election last November which offended many of the people involved in the opposition to Measure A. He also felt that there should have been an executed agreement between the City and the Newport Conservancy for payment of the election costs. He pointed out that the Newport Taxpayers Alliance raised and spent over $50,000 on the election, and the Committee to Preserve the Open Space Areas spent almost $97,000. He commented that his concern is that "a ton of money has been spent in this City • for an election that, in his opinion, never needed to happen." Hs also referenced the adjourned City Council Strategic :Planning Workshop held at the Balboa Bay Club on January 14 and 15, 1994, and indicated he felt the meeting was not properly noticed; that the news media should have been in attendance, and that the meeting should have been tape recorded. He stated that after reviewing what topics were discussed, he felt there were a number of items the public would have been interested in hearing. He also felt it was inappropriate in these tight budget times to hold meetings at a facility such as.the Balboa Bay Club. Mayor Turner informed Mr. Hendrickson that the City Council adjourned their January 10 meeting to the January 14 and 15 meetings, and that a notice was posted in accordance with the law. He stated the press could have been in attendance had they chosen to do so; however, in talking with the press, they did not realize they could have attended. He emphasized the meeting was not a "closed" meeting and the public could have also attended. The purpose • of the meeting was to discuss long -range planning for the future of the City. Volume 48 - Page 51 INDEX COUNCIL MEMBERS \0 \ kA S0XQ / CRLL C Motion All Ayes Motion All Ayes Motion Ayes Noes • X RA CITY OF NEWPORT BEACH XI XIXI.IXIX February 14, 1994 ORDINANCES FOR ADOPTION 31. Proposed ORDINANCE NO. 94 -5. being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 6.04.120 AND 6.04.150 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO REFUSE COLLECTION. Recycled report from General Services Department. The City Manager noted that in order to ensure a safer work environment for the refuse collectors and thereby provide more efficient refuse collection services, the staff is recommending adoption of the subject Ordinance. Following discussion, motion was made by Council Member Sansone to adopt Ordinance No. 94 -5. 32. Proposed ORDINANCE NO. 94 -6, being, AN ORDINANCE OF OF THE CITY C AMENDING CHAPTI NEWPORT BEACH RELATING TO OCCUPANCY-TA%. THE CITY COUNCIL F NEWPORT BEACH M 3.16 OF THE MUNICIPAL CODE THE TRANSIENT Recycled report from Revenue Manager, Finance Department. The City Manager advised that the interest rate imposed for late payment of tax liability has not been revised since 1965, and is significantly below current market rate. The proposed rate included in the proposed Ordinance would increase the interest rate for delinquent payment of TOT from one -half percent (1/28) to one and one -half percent (1 -1/28) per month. Additionally, the proposed revisions in the Ordinance would exempt from TOT airline crew visits when an airline has made a commitment to a hotel to occupy a defined number of rooms each night for more than thirty days. Council Member Hart suggested this item be voted on in two motions as she was opposed to the proposed increase in Interest rate for delinquent payment; and therefore, she made a motion to adopt Ordinance No. 94 -6, with the exception of the Interest provision. In view of the foregoing, Mayor Turner moved to approve the proposed increase In interest rate for delinquent payment as presented. Volume 48 - Page 52 MINUTES INDEX Ord 94 -5 Refuse Collection (44) Ord 94 -6 TOT (40) COUNCIL MEMBERS ROLL CFlLL� • Motion All Ayes • Motion All Ayes M* A as A X CITY OF NEWPORT BEACH X MINUTES February 14, 1994 33. Proposed ORDINANCE NO. 94 -8, being, Ord 94 -8 Hoag Hsptl AN ORDINANCE OF THE CITY COUNCIL Dev Agm 5 OF THE CITY OF NEWPORT BEACH C -2913 APPROVING AN AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF (38) NEWPORT BEACH AND HOAG MEMORIAL HOSPITALFRESBYTERIAN (DEVELOPMENT AGREEMENT NO. 5). Report from Planning Department. Notion was made by Council Member Debay to adopt Ordinance No. 94 -8. Council Member Watt stated she will be supporting the motion and this project, even though she did not support the original Development Agreement. The motion was voted on and carried. CURRENT BUSINESS 34. Report from Public Works /Traffic Beach Expre Engineering regarding BEACH EXPRESS Shuttle Stp SHUTTLE STOP. (85) The Public: Works Director reported that Beach Express Shuttle expects to begin operating shortly and will serve several destinations such as Balboa Island, Fashion Island, Hard Rock Cafe, Newport Harbor Marina, etc., and are requesting permission to install two signs to indicate the location of a shuttle stop at the intersection of Jamboree Road and Bayside Drive. He stated that if this request is; granted, he would recommend that staff be directed to approve the design and placement of the signs as a condition of approval. The City Attorney suggested this item be deferred for two weeks in order for him to determine just what type of license has been issued by the P.U.C. to Beach Express Shuttle, and whether or not the City Council may want to consider a City -wide policy on these types of requests. Discussion ensued, wherein Council Members indicated they would like additional information relative to beach stops, type and size of vehicles to be used, and frequency of stops, prior to approving this request; and therefore, motion was made by Mayor Turner to continue this item to February 28, 1994. 35. AVIATION COUNCIL/CITIZENS AD HOC Aviation COMMITTEE. Cucl Ad Hoc Notion was made by Council Member Hart to confirm appointment of Bill Walker (replacing Karen Evarts) as Alternate to Dan Gilliland on subject committee. Volume 48 - Page 53 CITY OF NEWPORT BEACH COUNCIL MEMBERS �G*y9�T ROLL CALL February 14, 19514 Motion All Ayes Men A yes is • X X 36. Letter from Thomas F. Riley, Chairman, EL TORO REUSE PLANNING AUTHORITY. Notion was made by Mayor Turner to appoint Tom Edwards as the City's representative to the EL TORO REUSE PLANNING AUTHORITY (ETRPA). Notion was made by Mayor Turner to adjourn at 9:25 p.m., in memory of Maxine McAlpine, retired former City Manager's Secretary, who passed away, Sunday, February 6, 1994. The agenda for this meeting was posted on February 10, 1994 at 8:30 a.m., on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. ATTEST: Volume 48 - Page 54 MINUTES INDEX 0/C E1 Tor, Reuse Ping Auth (54) J