HomeMy WebLinkAbout11/24/1997 - Regular MeetingCITY OF NEWPORT BEACH
City Council Minutes
Regular Meeting
November 24, 1997 - 7:00 p.m.
6:00 p.m.
None
RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING
ROLL CALL
Present: O'Neil, Thomson, Edwards, Hedges, Glover, Noyes, Mayor Debay
Absent: None
Pledge of Allegiance - Council Member Hedges.
Invocation by Reverend Peter Haynes, Saint Michael and All Angels
Episcopal Church.
Presentation by Mike Hayes, Orange County Register, of the 'Best of
® Orange County" Awards - Best Place to In -Line Skate - Newport Beach
Boardwalk; Best Place to Walk and Jog - Balboa Island; and Best Place to
Swim - Newport Beach.
ELECTION OF MAYOR
Council Member O'Neil nominated Mayor Pro Tem Edwards as Mayor. Nominations
were closed and without objection, Tom Edwards was elected as Mayor.
Outgoing Mayor Debay thanked the Council, staff, and the citizens of Newport
Beach. To the citizens that volunteer on the commissions and committees, she said
she is most grateful for their hard work, support and efforts this year. She said that
three of her most satisfying experiences this year have been to see the dedication of
the new active park, The Bob Henry Park; the completion of the water delivery
system; and the Green Acres intertie project. She said one of her biggest
disappointments this year was the fact that the dredgers aren't in the back bay yet.
Another disappointment would be the progress with getting the El Toro airport
further along the way, however she stated that Mayor Edwards is the most qualified
person on Council to lead the City in the coming year on this effort. She wished
everyone a very blessed Thanksgiving holiday. Among the other things she is
thankful for, she said she is very thankful she had the opportunity to serve the City
of Newport Beach as Mayor, and that the year is over. She congratulated Mayor
Edwards and passed the gavel on to him.
ELECTION OF MAYOR PRO TEMPORE
® Council Member Glover nominated Council Member O'Neil as Mayor Pro Tem.
Nominations were closed and without objection, Dennis O'Neil was elected as Mayor
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November 24, 1997
Pro Tem.
NEW MAYOR'S COMMENTS
INDEX
Mayor Edwards thanked the Council for allowing him to be Mayor and said he
appreciates the work that Jan has done. He thanked his wife for putting up with
some long days. He said that there is a lot going on in the City at the present time.
He thanked the current Council and noted that their first meeting together was a
special session regarding the Orange County bankruptcy. At the same time the City
was just coming out of difficult times as a result of the recession. Even during the
difficult times the City was able to move forward. He stated that the Council, as
fiduciaries of the City, will continue to be vigilant in the particular issues of
finances. He noted that last year a lot was accomplished - The Bob Henry Park, the
groundwater project, the opening of Bloomingdale's and Fletcher Jones, as well as
moving forward in two elections with El Toro. The City has also moved forward with
the bay dredging, reached agreement with the safety associations, and put the final
touches on the Bonita Canyon project. He said the cleanliness of the bay, water
quality, El Toro, and annexation of the downcoast will continue to be major issues in
the City. He said that Newport Beach is a dynamic community and calls for quality
of life in all aspects. Due to the efforts of Council Member Noyes the community
outreach program has begun. He said one thing that has been written about is
bringing the community associations and their presidents into the fold of the City
since they feel that the EDC seems to run the City. He said he is going to propose
® that the community associations be brought into the fold in the form of perhaps
reconstituting the Environmental Quality Affairs Committee so that they are certain
that they understand what is going on in the City and they are fully informed so
they can inform the members of their associations. In addition to their participating,
he said he thinks it serves another real positive purpose for the City because with
the right to participate and have input at the committee level, they also have an
obligation to the citizens. He said that he would expect that the next time Supervisor
Wilson tries to obstruct movement towards El Toro as an airport that the City can
call upon this community association to put a 1000 letters on his desk and
participate at the board hearings. The next time the Governor has a bill to sign to
allow dredging of the back bay and then he decides at the last moment to veto such a
bill, that perhaps the City can call upon that community association to put 1000
letters on his desk as well. The same would be true with issues such as offshore
drilling, etc. He reiterated that he thinks this is a very dynamic community and said
his hope is that it continues to be a very dynamic city.
Mayor Pro Tem O'Neil thanked his colleagues for voting for him as Mayor Pro Tem.
Motion by Mayor Pro Tem O'Neil to waive reading of the minutes of the
Regular Meeting of November 10, 1997, approve as written and order filed;
and waive reading of the ordinances and resolutions under consideration
and direct the City Clerk to read by titles only. Without objection, the
motion carried by acclamation.
MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A
FUTURE AGENDA FOR DISCUSSION, ACTION OR REPORT (NON-
DISCUSS ION ITEM):
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® Mayor Pro Tem O'Neil commended the Police Department and their
involvement in the undercover situation which resulted in the arrest of a
number of persons involved in gambling and narcotics.
• Mayor Pro Tem O'Neil announced that the Mwanis Club is organizing a
Newport Coast Triathalon in July of 1998. The proceeds will benefit the
Junior Lifeguard Association, as well as other youth oriented activities
sponsored by the Yiwanis. He said he has been asked to write a letter in
support of this event on behalf of the City Council, therefore requested that
an item be agendized for December 8, 1997 authorizing him to use official
City letterhead.
• Council Member Hedges requested that the Planning Commission consider
incorporating the boilerplate conditions of approval for use permits into the
municipal code. Any different or specific conditions would then considered
during the public hearings.
• Council Member Glover requested that a committee look into establishing an
ombudsman position to work with the residents.
• Council Member Noyes congratulated the recipients of the American Legion
Firefighter and Lifeguard of the Year awards - Captain Rich Thomas,
Paramedic, and Reenie Boyer, Senior Lifeguard Coordinator.
® • Council Member Noyes commented about former Mayor Debay's relationship
and respect from other cities.
• Council Member Debay reported on the Public Works Committee meeting
held regarding the traffic in the Eastbluff area. She explained that the
committee voted to put into effect on a six -month trial basis four of the six
traffic mitigation measures.
Mayor Edwards reported that a full report will be brought back to Council on
December 8, 1997.
• Mayor Edwards requested that the recommendations he referred to earlier
be referred to the Legislative Committee to incorporate the changes for the
Environmental Quality Affairs Committee.
• Mayor Edwards asked for a report back on whether the City can potentially
act on behalf of its residents to negotiate a savings on electrical rates for
each individual homeowner in the City.
CONSENT CALENDAR
ORDINANCE FOR INTRODUCTION
1. INTRODUCE ORDINANCE NO. 97 -39 AMENDING CHAPTER 5.12 OF
Taxicabs
THE NBMC PERTAINING TO VEHICLES FOR HIRE AND ADDING
Ord 97 -39
CHAPTER 5.17 ESTABLISHING REGULATORY AUTHORITY FOR
®
(27)
TAXICABS THROUGH THE ORANGE COUNTY TAXI
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ADMINISTRATION PROGRAM (OCTAP). Introduce ordinance and pass
to second reading on December 8, 1997; and review the proposed resolution
regarding taxicab rates and requirements and schedule for adoption on
December 8, 1997.
ORDINANCE FOR ADOPTION
2. ADOPT ORDINANCE NO. 97 -36 AMENDING CHAPTER 1.04 AND
ADDING CHAPTER 1.05 TO THE NBMC PERTAINING TO AN
ADMINISTRATIVE CITATION PROGRAM.
RESOLUTIONS FOR ADOPTION
3. UPDATE ON FREEWAY SIGNAGE ISSUES. Adopt Resolution No. 97 -81
supporting the San Joaquin Hills Transportation Corridor Agency
informational and directional sign program to provide for additional guide
signs at each end of the San Joaquin Hills Transportation Corridor.
CONTRACTS AND AGREEMENTS
4. COMPLETION AND ACCEPTANCE OF SUNSET VIEW PARK (C-
3095). Accept the work; authorize the City Clerk to file a Notice of
Completion and release the bonds 35 days after the Notice of Completion has
been recorded in accordance with applicable portions of the Civil Code.
5. Removed from the Consent Calendar by Council Member Thomson.
MISCELLANEOUS ACTIONS
6. PLANNING COMMISSION AGENDA FOR NOVEMBER 20, 1997.
7. Removed from the Consent Calendar by Mayor Edwards.
8. LOT LINE ADJUSTMENT BETWEEN HARBOR VIEW COMMUNITY
ASSOCIATION AND THE CITY OF NEWPORT BEACH (BUFFALO
HILT S PARK AND THE HARBOR VIEW COMMUNITY
ASSOCIATION POOL SITE BETWEEN PORT CHARLES PLACE
AND PORT WESTBOURNE PLACE, IN THE NEWPORT HH,LS
DEVELOPMENT). Approve in concept a Lot Line Adjustment between the
Harbor View Community Association and the City of Newport Beach and
authorize the Mayor and City Clerk to execute the appropriate deed; and
direct staff to proceed with the processing of the Lot Line Adjustment
through the Modifications Committee.
9. TRACT NUMBERS 12212 AND 12362 (PORTIONS OF BLOCK 51 OF
IRVINE'S SUBDIVISION AS SHOWN ON .A MAP RECORDED IN
BOOK 1, PAGE 88 OF MISCELLANEOUS RECORD MAPS, RECORDS
OF ORANGE COUNTY). Authorize the City Clerk to release the Faithful
Performance surety in the form of a Passbook Account in the amount of
$50,000 and the Labor and Materials surety in the form of a Passbook
Account in the amount of $50,000 for construction of a traffic signal at the
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INDEX
City Administration
Citation Program
Ord 97 -36 (35)
Transportation/Signs
SJHTC
Res 97 -81
(85)
Sunset View Park
(formerly Hoag
Linear Park)
C -3095 (38)
Planning (68)
Lot Line Adjust-
ment/Buffalo Hills
Park and Harbor
View Comm
Assoc Pool
(74)
Tract 12212 &
12362
City of Newport Beach
City Council Minutes
November 24, 1997
® intersection of Bayview Way (formerly University Drive) and Bayview Place.
10. STATUS REPORT REGARDING CITY COUNCIL REQUESTS
(Requested by Council Member Glover). Receive and file.
11. Removed from the Consent Calendar by Council Member Hedges.
MOTION BY MAYOR PRO TEM O'NE1L TO APPROVE THE CONSENT
CALENDAR, EXCEPT FOR THOSE ITEMS REMOVED (5,7 and 11). Without
objection, the motion carried by acclamation.
ITEMS REMOVED FROM THE CONSENT CALENDAR
5. ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND
MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE
HAZEL DRIVE PUBLIC RIGHT -OF -WAY ADJACENT TO 220 POPPY
AVENUE, CORONA DEL MAR (EP -97 -368).
Council Member Thomson reported that this item was discussed at the
Public Works Committee and a compromise was reached with the applicant
to allow the encroachment five feet into the public right -of -way.
Motion by Council Member Thomson to approve the application subject to
® the conditions as outlined in the staff report. Without objection, the motion
carried by acclamation.
7. NEWPORT AQUATIC CENTER - REPORT ON THE COMPLIANCE
OF THE NEWPORT AQUATIC CENTER WITH THE CONDITIONS
OF APPROVAL OF USE PERMIT NO. 3104 (Requested by Mayor Pro
Tern Edwards).
Motion by Council Member Noyes to refer this item to the Harbor, Beaches
and Parks Committee for some type of resolution with the parties involved.
In response to questions posed by Council Member Glover, Planning Director
Temple reported that the original use permit authorized a two bay storage
bay plus offices for the Newport Aquatic Center. The original permit and the
original exercise of the permit included the construction of all of the
classrooms and office space in one of the bays and it was acknowledged at
the permit stage that a second bay would be constructed at some later date.
She indicated that she is not familiar with the permit history, however was
under the impression that the second bay had actually been implemented
within the last year. As part of the original use permit, there was a great
deal of discussion between the homeowners association and the City in
regard to how the Newport Aquatic Center could appropriately operate
within their neighborhood, therefore conditions were imposed. The two most
relevant were the limitation on actual membership of the Newport Aquatic
Center, which was intended to at least control the number of users, and
® additionally a member of the homeowners association was to be on the board
of the Newport Aquatic Center io provide a direct conduit of exchange of
information for resolution of problems. In this case, there are some problems
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1100
City Council
Requests (33)
Encroachment
Agreement/Hazel
Drive/Poppy Ave
(65)
UP 3104
Newport Aquatic
Center
(88)
City of Newport Beach
City Council Minutes
November 24, 1997
iswhich the City can address by working with the Center, although there are
also other activities which are not really within the jurisdiction of the City,
which are more difficult to control through the use permit since they are
casual users who are accessing the bay from the public beach.
Council Member Glover requested a complete report on the status of the
build -out when this comes back to the Harbor, Beaches and Parks
Committee.
City Manager Murphy reported that the most recent request to expand was
within that overall framework of entitlement and the Newport Aquatic
Center is intending to exercise something that was already approved and are
advising the City of their intention to proceed. It was also the subject matter
of a ballot measure in 1982 and the use was approved by the voters.
Ms. Temple explained that the election was primarily surrounding the fact
that it was a leasehold of public property.
City Attorney Burnham stated that the election simply authorized the
construction of the aquatic center and did not specify square footage.
Without objection, the motion carried by acclamation.
11. EMERGENCY POWERS OF CITY MANAGER (Requested by Council
® Member Hedges).
Council Member Hedges explained that most of the emergency powers deal
with the Vehicle Code. The things that prompted this request were the sand
berm and the traffic congestion problems during the hurricane. The vehicle
code allows the City to adopt rules to allow the Police to close streets in these
situations. He said that the watch commanders should be reminded of this
power and urged to use it when necessary. As far as the sand berms, he said
the decision was probably premature and with a change of that magnitude it
would have been appropriate to have the Council ratify the decision. He said
the Council has the ability to call an emergency meeting with 24 hours
notice. He said he wants to make sure that the City Council stays engaged in
these kind of things, however if there is a bonafide emergency, the City
Manager can take action.
In response to concerns raised by Council Member Noyes, City Manager
Murphy indicated that the General Services Department can change the
message on their telephone to indicate that callers should call the Police
Department after regular office hours in case of emergency.
Motion by Council Member Hedees to receive and file the report. Without
objection, the motion carried by acclamation.
PUBLIC COMMENTS
® • Delores Cantarella, 122 Easi Bay Street, read a letter concerning the
offensive and disturbing elements displayed at a T -shirt shop at 707
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Emergency Powers -
City Manager (35)
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® Edgewater. She said that it is an embarrassment to anyone that lives in
Balboa. She asked the City Council to take action to clean this up and
reported that the Central Newport Beach Community Association, the
churches and the Business and Merchants Association have also requested
that it be cleaned up.
City Attorney Burnham said he talked to Mr. Kennedy and the Police
Department and they may have some areas for exploration.
Joyce Barnes, 122 East Bay Avenue, said she doesn't believe the City can't
do something to clean up this t -shirt shop problem. She said she has visited
eight schools in Costa Mesa and showed the pictures to the school teachers.
Madelene Arakelian, addressed the Council regarding her concerns about
the audit procedure for the solid waste franchise holders and distributed a
copy of a letter she received from Glen Everroad. She said the problem isn't
that they don't think there should be an audit, but the problem is that the
auditors are requesting records that are proprietary and don't pertain to the
franchise. She said the auditors want records from their entire business and
they don't feel that is appropriate. She said they will make one more effort to
see that audit goes forward.
• Evelyn Hart, congratulated Mayor Edwards and Mayor Pro Tern O'Neil and
presented a single rose to outgoing Mayor Debay on behalf of the former
® women mayors.
• Mona Risch, 1524 Priscilla Lane, asked what the next step would be
regarding her concerns about the smoking that is currently allowed in cigar
shops.
City Attorney Burnham explained that it will be up to the City Council to
decide whether they want to prohibit smoking in these establishments.
PUBLIC HEARINGS
12. APPEAL HEARING OF TLA RESTAURANT - 3100 WEST COAST
HIGHWAY (Jonathan Rodriquez - Atkatz, applicant) - APPROVAL OF
A USE PERMIT, A TRAFFIC STUDY AND A NEGATIVE
DECLARATION TO ALLOW THE CONSTRUCTION OF A 1500
SQUARE FOOT, TWO -STORY DRIVE - THROUGH RESTAURANT
FACILITY WITH A 300 SQUARE FOOT STORAGE BUILDING AND
RELATED OFF - STREET PARKING (contd. from 11/10/97).
Assistant City Manager Wood pointed out that the supplemental staff report
included one additional letter from the applicant's traffic engineer.
Council Member Glover explained that this will be a drive through
restaurant located next to Sterling BMW. She stated that she has requested
® information from the applicant regarding the .project signs and has not
received anything. She voiced concerns about another fast food restaurant in
her district and noted that if this is approved tonight the Council will in
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INDEX
UP 3612
TLA Restaurant
(88)
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November 24, 1997
I 1
essence be approving another fast food restaurant. She noted that the use
permit goes with the land, therefore she has asked staff if this can be put in
another category. If the applicant gets this entitlement and chooses not to
use it within 24 months, they could sell it to another fast food operator. She
also voiced concerns with the curb cuts and noted that if the project is
approved it would be contrary to what the consultant and committee have
been trying to do over the past few years. She said the Council needs to look
at the total concept and make decisions in order to get the end results
desired. She asked each Council Member to consider whether they would
vote to have another fast food place in their district.
Mayor Edwards opened the public hearing.
Jonathan Rodriquez - Atkatz explained that certain questions were asked at
the last meeting and he has submitted answers to them. He said he concurs
with the conditions proposed and doesn't view their restaurant as a fast food
concept, but a restaurant that serves food to go. He asked that the
application be approved. He indicated that their goal is to be open in March,
however that is based on Coastal Commission approval and the cleanup of
the site.
In response to questions raised by Mayor Edwards, Mr. Rodriquez - Atkatz
explained why they have requested hours of operation from 6:00 to 11:00
p.m., gave details about the proposed landscaping and screening and
® indicated that if it is determined that more screening is needed, they will be
willing to make further adjustments. He also explained the proposed lighting
and indicated that they want to maintain the lighting so it is a garden
atmosphere.
Joe Rosener, 125 Via Venezia, said that until a plan is instituted for
Mariner's Mile, no matter how desirable an individual project may be, it may
not fit. He asked that the granting of the use permit be denied until the plan
is complete.
City Attorney Burnham explained that the 24 month construction period is a
provision of the zoning code, however Council is allowed to reduce that time
frame if they so choose to do so. If this project fails a subsequent owner
would be bound by the same terms and conditions that are imposed on this
operator, therefore a successor in interest would have to operate the
business in the same way that the Council is requiring this individual to
operate. He further explained that Council has the authority pursuant to
condition 40 to add conditions to the approval if a finding is made that the
operation is imperious to the health, safety and welfare of the neighborhood.
Motion by Council Member Glover to sustain the action of the Planning
Commission and deny the application. The motion failed by the following
roll call vote:
® Ayes: Glover, Mayor Edwards
Noes: Thomson, Deboy. O'Neil, Hedges, Noyes
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® Motion by Council Member Thomson to approve Use Permit No. 3612,
Traffic Study No. 112, and the acceptance of an environmental document.
Council Member Debay spoke in support of the project and said there are
two ways to characterize an application. She said this could be a flagship
business and new concept and will also get rid of a vacant old disintegrating
structure and the toxic problems. She said that Council Member Glover has
worked hard with plans for Mariner's Mile and she is not negating her
concerns, but doesn't agree with the characterization.
Council Member Hedges offered an amendment to the motion to shorten the
construction period from 24 to 12 months, however it died for lack of a
second.
Motion by Council Member Glover to amend the motion to add Condition
#42, which states that any ground sign shall not; exceed a height of six feet,
however the sign may be permitted to exceed this limit with the approval of
the Planning Director upon a determination that the overall design of the
sign incorporates landscaping and architectural treatments which contribute
to the aesthetics of the project and Finding #8, that the addition of a pole
sign as permitted by the City's sign code would detract from the
architectural elements incorporated into the building design.
The applicant concurred with the proposed new condition on signage.
® The amendment to the motion carried by the following roll call vote:
Ayes: Debay, Hedges, Glover, Noyes, Mayor Edwards
Noes: Thomson, O'Neil
Absent: None
Abstain: None
Council Member Hedges moved to amend condition 18 related to the 45 mph
site distance to 55 mph, however the motion died for lack of aaecond.
The main motion as amended carried by the following roll call vote:
Ayes:
Thomson, Debay, O'Neil, Noyes, Mayor Edwards
Noes:
Hedges, Glover
Absent:
None
Abstain:
None
13. PUBLIC HEARING ON THE APPLICATION OF BAY ISLAND (BAY
ISLAND CLUB, APPLICANT) FOR USE PERMIT NO. 3618 - A
PLANNED RESIDENTIAL DEVELOPMENT USE PERMIT TO
ESTABLISH LAND USE AND PROPERTY DEVELOPMENT
REGULATIONS FOR THE BAY ISLAND COMMUNITY.
Planning Director Temple explained that this particular use permit is to
® establish design and development standards for the Bay Island area. When
the new zoning code was adopted several zoning districts were eliminated,
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(80)
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November 24, 1997
including the R3 District. As part of that process, the property of Bay Island
was rezoned to the MFR (multi - family residential) District with a planned
residential development overlay. The reason for this is that Bay Island while
it is fully developed with single family dwellings is a single parcel with no
subdivision in place, therefore in order to have zoning consistent with the
existing development it was necessary to establish the MFR district. Staff
proposed the tool of the PRD Use Permit to establish the particular
development standards that would allow for and control and limit the
development to single family style development so apartments can not be
built in that area. The actual development standards were developed by an
architect working for the Bay Island organization and were concurred with
by the Planning Commission.
Mayor Edwards opened the public hearing.
Bill Ficker, 417 30th Street, architect for Bay Island, requested that the
Council approve the subject use permit.
Hearing no further testimony, the public hearing was closed.
Motion by Council Member Hedges to approve Use Permit No. 3618.
Without objection, the motion carried by acclamation.
14. PUBLIC HEARING TO CONSIDER THE ADOPTION OF
® ORDINANCE NO. 97.38 GRANTING A NONEXCLUSIVE
COMMERCIAL SOLID WASTE COLLECTION FRANCHISE TO KEY
DISPOSAL, INC.
City Manager Murphy explained that this public hearing is pursuant to an
ordinance the Council adopted regulating non - exclusive franchising of
commercial solid waste activities. This applicant has provided all the
necessary information pursuant to that ordinance and staff is recommending
adoption of the ordinance.
Mayor Edwards opened the public hearing.
Madelene Arakalian, said that this company has been operating for several
years in Newport Beach and questioned whether the City has been collecting
fees from there. She spoke against the granting of the franchise since they
have operated without one for so many years.
Mr. Murphy explained that there has been enforcement action taken against
the applicant and staff is recommending approval since they have been
outside of the law and this will bring them into compliance with the laws.
Motion by Mayor Pro Tom O'Neil to adopt Ordinance No. 97 -38 granting a
Non - Exclusive Solid Waste Franchise to Key Disposal, Inc.; and authorize
approval of a subsequent franchise agreement with Key Disposal, Inc.
® Without objection, the motion carried by acclamation.
Council Member Hedges said he would like to see a change to the ordinance
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Solid Waste
Franchise
Ord 97 -38
(42)
City of Newport Beach
City Council Minutes
November 24, 1997
® establishing non - exclusive solid waste franchises which would allow the
granting of solid waste franchises by right to applicants assuming that they
meet City standards with right of appeal to the City Council for denial.
15. APPEAL HEARING ON THE APPLICATION OF WINDOWS ON THE
BAY RESTAURANT (SCOTT SHUTTLEWORTH, APPLICANT) FOR
USE PERMIT NO. 3293 (AMENDED) ON THE PROPERTY LOCATED
AT 2241 WEST COAST HIGHWAY - :REQUEST TO AMEND
CONDITIONS OF APPROVAL OF AN EXISTING FULL SERVICE
RESTAURANT TO CHANGE THE OPERATIONAL
CHARACTERISTICS.
Planning Director Temple explained that this particular use permit came
before the Planning Commission at their meetings on September 18 and
October 23. The reason for the continuance at the Planning Commission
level was to have staff take additional noise measurements and to provide
specific information in relationship to questions raised by the Commission.
In terms of the appeal application, staff feels it is important to highlight
some of the aspects of the Planning Commission approval. The approval for
the use of an outdoor patio dining area is for the purpose of food and
beverage service only. The conditions of approval in regard to the nightclub
and live entertainment require that all live entertainment be contained
within the building and that it can only operate when all the doors and
windows are closed. No live entertainers or any aspect of that operation can
® actually operate on the outdoor patio. Additionally, there are speakers which
are currently present which are proposed to remain on the patio and those
are conditioned to only provide pre- recorded music and in no case can the
music associated with the live entertainment be transmitted to the outdoor
patio through that means. Additionally, the Planning Commission was very
concerned about the ongoing operation of this restaurant as it proceeded into
the evening hours as a nightclub and also the ongoing use of the outdoor
dining area. As a result, the Commission required that the use permit be
reviewed at very specific periods as set forth in the findings and conditions of
approval. On a mandatory basis the use permit will be reviewed by the
Planning Commission in July of 1998 and in July of 1999, however if there
are problems which become present before those time frames the standard
conditions of approval will allow the Planning Commission to call the use
permit for review for additional conditions or potential revocation at that
time.
Mayor Edwards opened the public hearing
Scott Shuttleworth, owner of Windows on the Bay Restaurant, said he hopes
to put to bed the misconception that they are trying to become a nightclub.
He said they are trying to take the restaurant that they have run over the
last three years and on paper change some of the operational characteristics
to reflect what they have been doing over the last three years. He said
questions have arose about whether there will be times when the dining
® room will close before the bar and that is where the "nightclub" term came
in. I3e said they have a DJ and danr..ng on Friday and Saturday nights and
they have not had any noise complaints. He said they keep the dining room
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Windows on
The Bay Rest
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going for as long as they can possibly sell food. They have operated the
restaurant for three years in the same fashion and in the last two years have
closed the restaurant one hour earlier than their competition. He said they
built the patio at the restaurant, :vbich was an improvement to Mariner's
Mile, however the original approval didn't include a bartender. The old
permit for entertainment states mariachi bands. As for the retention of the
loudspeaker, he said they have the same system throughout the dining room
and the bar. He said they have three loudspeakers on the patio and
explained that the sound is set at the same volume as in the interior dining
room. He explained that they do not have a paging system.
Council Member Debay asked when the complaints started surfacing and
noted that the letters she reviewed refer to Joe's Crab Shack, therefore she is
wondering if there is some confusion. There won't be any operational
changes at Windows on the Bay and the application does not propose any
changes to what they have been doing for the last, three years.
Martin Weinberg, 100 Via Lido Nord, submitted 250 petitions signed by
residents of Lido Island objecting to the permit as proposed and approved by
the Planning Commission. He reported that the Lido Island Community
Association Board decided unanimously to send their letter since they have
experienced something different than the applicant states. He said the
applicant is recommending changes to their conditions of approval to allow
the cessation of regular meal service prior to the closing of the restaurant
® and operation of the facility as a bar /nightclub with alcoholic beverage
service as the principal purpose from that time until closing. He said this is a
deviation from how they are currently operating or how others are operating
in Mariners Mile. He addressed concerns related to the loudspeakers on the
patio as well as the Police Department's concerns with traffic problems. He
said the change to the permit should be denied, in particular the
loudspeakers on the patio.
Bill Mein, 101 Via Lido Send, spoke against the issuance of the permit for
Windows on the Bay. He noted that Mariners Mile has at least 12
restaurants and this is an extremely potent example of what will come if this
is allowed and it will set a precedent. Of the 12 restaurants only one has
changed hands and format (Joe's Crab Shack) and the level of noise from
that restaurant far exceeds the legal standards allowed. He said the outside
speakers are an issue and the speakers don't have to be large to generate a
lot of noise. He asked the Council to reconsider this approval.
Dan McGurk, 114 Via Lido Nord, said he doesn't understand what this
request is about. If the owners are not going to change anything, he
questioned why they need a permit. If they are going to change the
operational characteristics, he said he objects for the reasons given already
(noise, lights, etc.).
Mayor Edwards stated that the amended permit will bring them into
® conformity with what they have been doing and it does not change the
manner in which they have operated 1'or the past three years.
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® Elaine Weinberg, 100 Via Lido Nord, addressed safety issues and stated that
there will be a cumulative impact when the permit is given and a
deterioration of the character of the neighborhood. She said she doesn't see
how their hour earlier closing time has any impact and as far as the
designation "nightclub" there are no Aber nightclubs on Mariners Mile and
this would be the first. She requested that the Council deny this permit.
Robert Baker, 108 Via Lido Nord, said he is familiar with mariachi music
and loud combos and to make it longer and louder would make it worse. He
said he agrees with the points raised by the prior speakers and said the
changes being sought will create a nuisance. He said the residents will have
problems selling their properties because they will have to disclose this and
it will result in a financial loss to the homeowners.
Carolyn Klein, 101 Via Lido Soud, said there is a conflict between what the
applicant says and what is in the application. If this permit is granted it will
give the applicant certain rights and since the permit goes with the land, if
anyone purchases the property they will have the same rights. She said this
change will affect their quality of life and it will be a real floodgate
operation. She voiced concerns about the increased crime rate, DUI's and
traffic problems.
Nancy Hutchinson, 118 Via Lido Nord, said she .loves the restaurant and
thinks everyone can have a good time inside. She spoke against the noise
® going across the bay.
Joe Rosener, 125 Via Venezia, reaffirmed his support for Council Member
Glover's earlier comments about Mariner's Mile and said that without a
specific area plan the Planning COmllrissi0n will fmd it difficult to tun down
applications one at a time and it will be hard to differentiate between
businesses. He urged the Council to deny the permit.
Lyme Pharris, 306 Via Lido Nord, stated that the September 18 staff report
(Conditions 3 & 4) and the staff report of October 23 (Condition 12) excluded
the outdoor bar area once the restaurant stopped serving. At the Planning
Commission on October 23 the outdoor bar was included in the permit so
that once restaurant service stopped inside and outside they would be
allowed under the permit to have the bar open outside on the patio until
closing. She said that this is where the problem is and once the City starts
allowing outside bar activities on patios after cessation of restaurant activity
the noise will drift across the bay and disturb all the residents. She said this
will be the first of many petitions since there are about eight restaurants on
bay front property facing Lido. She said she strongly objects to the use of the
outside patio after the cessation of food service and also asked that the
outside speakers be eliminated.
Paul Weinberg, 138 Via Yanthe, stated that a number of noise
measurements were taken and they fill within the allowed range, however
® he said he feels the number, i ri't tcllmg the whole story or perhaps there
is an acoustic issue with the n,ie going acro5 the water. He noted that
there was an extensive set of findings that the Planning Commission made
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isin anticipation of the granting of the permit and a minimal set of findings
that the Planning Commission made in anticipation of the denial of the
permit. If the Planning Commission was adequately informed of what the
problems were, the proposed findings against should have been as in depth
as the proposed findings in Favor. He noted that water amplifies noise and
that should be taken into consideration.
Rush Hill, 1211 Cliff Drive, said he has been involved with this use permit as
a friend of the applicants since its beginning and noted that this is a unique
situation. He explained that this is not a use permit to change operational or
physical procedures. He said the operational procedures have been in place
since Windows took over the property and the physical changes have been in
place since the most recent change which was the addition of the patio about
2+ years ago. The speakers have been used since that time. He said they are
trying to bring restaurants into paperwork compliance with their use
permits, therefore the operator instigated this process to bring them into
conformance. He said that it is true the residents have a grievance and their
property rights are in jeopardy, but he contended that it is not being caused
by Windows but by other operations. He said testimony has been given that
if Windows just continues to operate as they are now, there wouldn't be any
problems. He noted that the Planning Commission placed many conditions
on the property, they are governed by the noise ordinance and there are
mandatory call up provisions, as well as the opportunity to call up the
property at any time. He said that if you understand the acoustics of
® Windows you would find that the patio is the quiet area of the
establishment. He urged the Council to uphold the findings of the Planning
Commission and approve the amendments sought so Windows can continue
to operate in the manner they have. He also urged the Council to be very
hard on the management of Windows during their mandatory call -ups.
Mayor Edwards closed the public hearing.
Council Member Glover said she would like an opportunity to spend some
time with staff looking at all the restaurants on Mariners Mile, in particular
Joe's Crab Shack to see if they are all operating in compliance with their
present use permits. She said she is very committed to the restaurants on
Mariners Mile and their ability to operate and be successful.
Motion by Council Member Glover to continue this item for sixty (60) days
and direct staff to review the other restaurants to be sure they are in
compliance with their use permits. This delay will allow Windows to come
back with something that might be more suitable and will give the City the
opportunity to solve the problems so the restaurants are successful. During
this period, Windows on the Bay will be allowed to maintain the status quo.
Council Member Hedges said he thinks it is important to maintain the sixty
day status quo while Joe's Crab Shack is being, evaluated, as well as the
operation of Windows. He noted that this is an appeal of- a Planning
® Commission decision and the reasons for the appeal are amplified in five
pages. In surnmary, the r cntir ! of i i. aruendn ent aggr rvates an already
existing problem. The sixty day period will allow the City Attorney and
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® Planning staff to initiate proceedings against the conditional use permit held
by the landowner of Joe's Crab Shack, as well as initiate nuisance abatement
proceedings against the business owner if appropriate. If City Council action
is needed then staff can bring that back on December 8th, otherwise if there
is a clear violation of City codes presently staff is encouraged to enforce those
codes. With respect to Windows particular operation, he said he would be
inclined to propose at the appropriate time that the patio be closed to
business at 10 a.m. and that loud speakers be prohibited outside all together
at all times.
Council Member Glover clarified that this process would include the
residents on Lido Island.
Mayor Edwards said he would also consider doing away with the sound
system altogether or stopping it after the closing of the restaurant or
stopping the outdoor bar after the restaurant closes in conjunction with
eliminating the outdoor sound system.
Without objection, the motion carried by acclamation.
RECESS AND RECONVENE
The Council took a brief recess at 9:40.p.m, and reconvened at 9:45 p.m. with all
® members present.
16. PUBLIC HEARING TO CONSIDER ADOPTION OF ORDINANCE NO.
97.40 AMENDING CIIAPTER 20.60 (SITE REGULATIONS) OF TITLE
20 OF THE NBMC BY ADDING SECTION 20.60.115 WHICH WILL
PROHIBIT BUSINESSES LOCATED IN MIXED -USE 'ZONING
DISTRICTS FROM BEING OPEN FOR BUSINESS BETWEEN
HOURS OF 2:00 A.M. AND 5:00 A.M. [AMENDMENT NO. 8621 (could.
from 10/27/97).
Assistant City Manager Wood explained that this is a proposed ordinance to
regulate hours of businesses only in mixed -use districts. As it was finally
recommended by the Planning Commission, the regulation applies to the
hours between 2:00 and 5:00 a.m. but would not apply to existing businesses
which have operated this way for a minimum of two days per week during
the past year. There would be exceptions granted for businesses which are
controlled through use permits or special event permits and then there
would also be the opportunity for the Planning Director to grant an
exception for a specific operation if one of the four findings as outlined in the
staff report are made.
Mayor Edwards opened the public hearing
Jim Robertson, 20862 Woodlea Lane, Huntington Beach, explained that he
has operated the 7- Eleven store for 19 years and it is a 24 hour operation. He
® said be agrees with the grandfather clause as it stands. A change in hours
would affect their sales since 'their image is haled on 24 hours and if they
close during those hours it affects their sales during the day. He said he is
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Mixed Use
Zoning Dist
Ord 97 -40
PCA 862
(94)
City of Newport Beach
City Council Minutes
November 24, 1997
® willing to work with the City if there are any noise problems with trucks, etc.
Steve Jones, Mission Viejo, franchisor of Robinson's 7- Eleven, concurred
with Mr. Robertson about tl'u grandfat:hering of the existing businesses.
Martha Durkee, P.O. Box 3353, spoke in support of the proposal as
recommended, however she said if the wording is changed she may have
some problems. She explained that laundromats serve a lot of people from 2 -
5 a.m. and she has operated for 24 hours for years without any complaints.
Elaine Limhoff, 1760 E. Ocean Blvd., said that it is comforting to know there
are stores open between 2 and 5 a.m.
Mayor Edwards closed the public hearing.
Motion by Council Member Hedges to modify the decision of the Planning
Commission and introduce Ordinance No. 97 -40 amended as follows: 1) add
paragraph 1 under Section B of Section 20.60.1.15 which states that "Any
existing use with extended hours which ceases operation for 180 days shall
follow the provisions of this section." and 2) Under Section C, Exceptions,
paragraph 1, modify the sentence to read, "Any existing extended hours
operation which has operated as such for two or more days of each week as of
November 24, 1997. Without objection, the motion carried by acclamation.
® CONTINUED BUSINESS
17. INTRODUCE ORDINANCE NO. 97 -41 AMENDING PROVISIONS OF
CHAPTER 12.56 OF THE NBMC PERTAINING TO BICYCLE
LICENSING (RETAINS THE CURRENT MANDATORY BICYCLE
LICENSING PROVISIONS FOR RESIDENTS, ELIMINATES THE
PROVISIONS REQUIRING DEALER BICYCLE SALES REPORTS;
AND ABOLISHES PROVISIONS AUTHORIZING IMPOUNDMENT
OF UNLICENSED BICYCLES) (contd. from 1.0/27/97).
Council Member Hedges explained that this item is the consideration of the
existing bicycle licensing ordinance. It has been taken through committee
and they have recommended a couple of minor changes.
Motion by Council Member Hedges to introduce Ordinance 97 -41 as
amended to repeal the following sections: 12.56.020, 12.56.030, 12.56.040,
12.56.045, 12.56.050, 12.56.060, 12.56.070, 12.56.075, 12.56.080, 12.56.090,
12.56.100, 12.56.110 and 12.56.130 and to direct staff to strike from the
definitions section the definitions which are no longer operative; and to
direct the Police Department to develop a voluntary system for people to
keep their bicycle frame numbers on file and bring back the appropriate
ordinance for Council consideration.
Chuck Avery, 1609 E. Balboa, questioned why the Council is considering
® revoking the policy on bicydo iicensin- and why the section that requires
dealers to report sales is being eliminated.
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Bicycle Licensing
Ord 97 -41
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City of Newport Beach
City Council Minutes
November 24, 1997
® Mayor Edwards closed the public hearing.
Without objection, the motion carried by acclamation.
18. BAY KNOLLS REQUEST TO CHANGE SPHERE OF INFLUENCE
(contd. from 10/27/97).
This item was continued to December 8, 1997.
19. ADDITION OF APPOINTED MEMBERS OF CITY CHARTER
BOARDS AND COMMISSIONS TO CITY'S CONFLICT OF INTEREST
CODE.
Mayor Edwards explained that this item was heard four separate times
before the Legislative Committee.
City Attorney Burnham explained that the City has adopted a Conflict of
Interest Code as required by the Political Reform Act. The Conflict of
Interest Code identifies those City officials and employees that have decision
making authority and specifies the financial interests those officials are
required to disclose. In January the City Council directed the City Attorney's
office to evaluate whether any of the Charter boards and commissions have
® decision making authority and should be added to the Conflict of Interest
Code. He said they prepared a number of reports expressing their opinion
that each of those boards and commissions have or exercises decision making
authority and could be required to make very limited, very narrow financial
disclosures that are related to that decision making authority.
Motion by Council Member Glover to adopt Resolution No. 97 -82 to add the
Boards and Commissions to the City's Appendix of Designated Employees.
Without objection, the motion carried by acclamation.
20. G-1 POLICY REVISIONS - DISCUSSION OF HARBOR VIEW HILLS
SOUTH REFORESTATION PROPOSAL.
City Manager Murphy explained that this item results from the first
reforestation proposal which came before the Parks, Beaches and Recreation
Commission from the Harbor View Hills South Homeowners Association.
The proposal was approved by the Parks, Beaches and Recreation
Commission after the proponents of the process complied with all the
relevant sections of City Council Policy G -1. The City Council received a
letter from SPON addressing several issues related to an appeal provision,
one for one replacement for trees in reforestation proposals, and they asked
that it be considered by the Council. Council Member Glover requested that
the item be placed on the agenda for review. Staff is recommending two
actions as outlined in the staff report. He said there has also been some
® further discussion about the size of the trees and perhaps there would be an
increase from the minimum standard of 15 gallon to 24 inch box trees.
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Conflict of Interest
Code
Res 97 -82 (66)
Council Policy G -1
Trees (69)
J
City of Newport Beach
City Council Minutes
November 24, 1997
I1ZI1
Motion by Council Member Thomson to allow a cooling off period for up to
120 days for the homeowners association involved and citizens who have
been expressing concerns about this, to understand the G -1 policy. He asked
that thev work with that and have it come back to the Council Harbor,
Beaches and Parks Committee wiLlun. 120 days or sooner with revisions to
the policy which would in effect require a one for one tree replacement, a
minimum size of tree (committee to decide), and a process to appeal these
decisions to the Council.
Mr. Murphy explained that the proposal is for Council to proceed to make
the changes listed under item 2 with the addition of the size of the trees so
that other proposals which may come forward during this period of time
would follow the new guidelines, while item 1 which deals with the appeal on
Harbor View Hills South would be held for 120 days.
Council Member Noyes said he disagrees with the committee designated by
Council Member Thomson and feels it should go back to the Parks, Beaches
and Recreation Commission.
Jan Vandersloot, representing SPON, said they appealed this for the reasons
set forth in the letter to Council. He said they want to allow appeals by
interested parties, to require one for one replacement of trees, and also
request that the requirement for 24 inch box trees be implemented. He said
it is his understanding that the homeowners have agreed to this and have
® agreed to having more than one to one tree replacement. They have agreed
to replace 26 trees rather than the 21 trees. He said they have questions
about how this process of reforestation is being implemented and the request
for more time to study the implications is warranted. He addressed the
guidelines as they pertain to contiguous boundaries and noted that the
homeowners have requested that Sandcastle be reforested and City staff has
asked that some of the trees be included. He said the policy is not being
implemented in the proper way. The residents are concerned about liability
from branches falling off the trees and damaging property, however he isn't
sure that is a valid reason for removal. He said he doesn't think the
requirement for a petition signed by a minimum of 60% of the residents is
being carried out.
Guy Cazort, 3501 Seabreeze Lane, stated that the eucalyptus trees enhance
his views, however he doesn't feel that someone's enjoyment of the tree can
have more weight than the safety of the people that live at these houses. He
said it would be different if the City were trimming them. He said there is a
need to eliminate them and replace them with gem magnolias or prune them
very seriously.
Yvonne Houssels, 1307 Outrigger Drive, said that this has been going on for
fora- years and asked that it not be delayed. She said many homeowners are
already following the policy and have begun reforestation. The association is
not requesting removal as stated in the unsigned flyer that was distributed.
® She. aauhed that the y n t :iv 1 iag fbr re oo c ,tation of 21 trees and noted that
th, y have 649 parlcvInv t c m. Lh,,!u association. She said another
unidentified individual said this was opposed by over 100 people at their
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November 24, 1997
plop1
homeowners meeting, however it was not discussed. She said they have met
with John Conway and determined locations where additional trees can be
planted, therefore 10 more trees will now be planted for a total of 21 trees
removed and 26 replaced. She said they are encouraging the homeowners to
replace them with the larger magnolias where possible. She noted that Mr.
Birnberg now supports the reforestation and has offered to help pay for the
trees. She said they are only reforesting where individual homeowners have
requested and agreed to pay for the entire reforestation. She presented
petitions from the homeowners on Sandcastle who have requested the
reforestation. She said there are only three homes on side streets that were
considered for reforestation. The homeowners have asked for this because
the falling branches have hit cars and damaged them. She asked for Council
to support the Parks, Beaches and Recreation Commission, the City staff
and the homeowners and allow them to proceed with the reforestation.
Martha Jones, 1220 Seacrest, stated that some of the homes in the area were
evacuated during the Laguna fires. One of the big concerns was the
eucalyptus trees on Sandcastle, so at that time she carried a petition on
Sandcastle and obtained signatures of all but 6 of 109 homeowners to remove
the trees.
Joan Hoops, 1201 Outrigger Drive, requested that the trees along Sandcastle
and also in the front of their property be removed. She said they were
marked several years ago for removal, but have not been removed. She
® explained the damage caused by the roots and said that since they are just
around the corner they are requesting that they be removed since they are
hazardous. She asked that the Council reconsider the 120 days since this is a
safety factor, not a beauty factor.
James Ensign, 4545 Tremont Lane, urged the Council not to continue this
matter. He stated that discussions were held with various homeowners
associations to work out the policy and it was a compromise of the various
groups involved. He said it is a workable policy and a compromise policy.
Their community association has started the process by delineating the
areas and identifying the trees so they can start with their reforestation
project and they don't want to delay it.
Council Member Thomson amended his motion to refer this to the Parks,
Beaches and Recreation Commission.
Elaine Limhoff, 1760 East Ocean Blvd., asked if SPON's appeal is denied if
the reforestation will be allowed to continue. She said that if the Council is
going to change the G -1 policy it needs to be made clearer. She said it isn't
clear whether all or only one provision needs to be satisfied to allow
reforestation.
Ilene Blatz, 1646 Irvine Avenue, said she is concerned about the procedures
because this is the first proposal and she understands there are a lot of other
proposals going forward. She spoke in support of the continuation in order
to get the integrity of the policy and the procedures working the first time
around so a precedence isn't set. She said they need to know what trees are
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City Council Minutes
November 24, 1997
I Q1 1
isbeing talked about and what is covered by tl
Tess Lear, 4709 Dorchester Road, member of Cameo Community
Association, said she has worked on the policy for two years. She said a
compromise was reached with SPON and the Parks, Beaches and Recreation
Commission and to delay this for 120 days will add more frustration. She
asked the Council for support of the policy and asked the Council to move
forward on the policy as it has been written.
Ron Richmond, 1307 Seacrest Drive, Board of Directors for Harbor View
Hills South Homeowners Association, said they have been discussing ways to
get rid of the dangerous trees and ways to replace them with trees that are
more appealing from a view point and a safety point. He said the G -1 policy
was created in concert with SPON. He said they have agreed with the G -1
policy as it exists now and said it should go forward right now.
Larry Weeshoff, 1407 Outrigger Drive, President of Harbor View Hills South
Homeowners Association in 1984, said that in 1984 there was a big issue
about removing all of the eucalyptus trees on Sandcastle. He said they held
an election about whether to remove those trees and decided that they could
replace the trees as long as the association didn't pay for it. It passed
overwhelmingly, therefore a lot of trees were removed on lower Sandcastle
and never replaced. He said SPON has agreed to a system to do this and now
they want to change the policy. He said he wants the reforestation to take
® place, but also thinks more trees should be planted on lower Sandcastle.
Dick Schweickert, 1312 Outrigger Drive, said the tree in front of his house is
one of the ones that is not on Sandcastle. He said he wants it replaced
because it is an old carrotwood tree and the cement in the sidewalk has been
replaced once. He said the tree is dirty and he is willing to pay to have it
replaced.
Substitute motion by Council Member Hedges to deny the appeal by SPON
and approve the reforestation plan of the .Harbor View Hills South
Homeowners with a requirement that a minimum of 26 trees be planted and
they be a minimum of 24 inch box trees. With Council Member Thomson
dissenting, the motion carried by acclamation.
Substitute motion by Council Member Hedge to modify Policy G -1 to
require one for one replacement of trees in reforestation projects with a
minimum of 24 inch box trees. Without objection, the motion carried by
acclamation.
Council Member Hedges explained that he would not be proposing an appeal
process.
Substitute motion by Council Member Hedges . to direct staff to clarify
requirements for having a reforestation proposal considered by modifying
® the language of the policy to add "or' between sections a, b, and c. Without
objection, the motion carried by acclamation.
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10
City of Newport Beach
City Council Minutes
November 24, 1997
MOTION FOR RECONSIDERATION - None
ADJOURNMENT - 10:55 p.m. in memory of Sergeant Steve Van Horn and Dr. Bob
Stein
The agenda for the Regular Meeting was posted on November 19, 1997 at
10:30 a.m. on the City Hall Bulletin Board located outside of the City of
Newport Beach Administration Building.
a°J&A^k-M A�
City Clerk
// ��'
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INDEX