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HomeMy WebLinkAbout02/09/1998 - Regular Meeting0 CITY OF NEWPORT BEACH City Council Minutes Regular Meeting February 9, 1998 - 7:00 p.nL INDEX None RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING ROLL CALL Present: Thomson, Debay, O'Neil, Hedges, Glover, Noyes, Mayor Edwards Absent: None Pledge of Allegiance — Council Member Noyes. Invocation by Reverend Dr. Dennis Short, Harbor Christian Church of Newport Beach. Presentation of Environmental Quality Affairs Citizens Advisory • Committee (EQAC) Beautification Awards. MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON- Council Member Noyes reported that he attended the Employee Awards Dinner and congratulated Retired Police Captain Jim Jacobs in winning the Dorothy Palen Award. • Council Member Noyes encouraged the public to be involved in their community and send correspondence to Council at City Hall. • Council Member Noyes announced that the City is working on the first issue of the City Newsletter and that it will be inserted in the Navigator and two water bills. He reported that topics such as airport, annexation, and traffic issues will be discussed in the Newsletter. • Council Member Noyes announced that a business paramedic program is beginning which costs $42 a year. • Council Member Noyes requested that a noise report regarding Joe's Crab Shack be brought back to Council. • • Council Member Noyes reported that the D.A.R.E. Program graduated last week. He thanked Mayor Pro Tern O'Neil and Mayor Edwards for attending the graduation and presented them with shirts. He commended Officer Tom Monarch for his efforts in the D.A.R.E. Program. Volume 51- Page 607 City of Newport Beach City Council Minutes February 9, 1998 • • Council Member Hedges requested that minimum standards for bayfront restaurants and night clubs be developed. • Mayor Pro Tem O'Neil reported that he attended the conference of the California Fire Chiefs Association. He read a memorandum from Fire Chief Tim Riley regarding the impact of Friday's storm and the team effort made by everyone. He commended the Fire Department, Police Department, and City crews for working together during the storms. • Council Member Debay announced that she received many calls from residents on the peninsula regarding flood gates. She reported that the City has about 84 tide gates which keep bay water off the streets, but that the City will need to rely on pumps when the streets are flooded. Further, that the City is attempting to get more pumps in the event of another big storm. • Regarding future use of assessment funds in the West Newport and Peninsula area, Council Member Debay requested that a report be brought back to consider conducting an underground utility /sidewalk project or neighborhood enhancement on Seashore Drive once all the street end improvements are completed. • Council Member Thomson commended the City on its storm relief efforts. He reminded the public to prepare for future storms by having flashlights, • batteries, food, and water on hand. CONSENT CALENDAR READING OF MINUTES /ORDINANCES AND RESOLUTIONS 1. MINUTES OF THE REGULAR MEETING OF JANUARY 26, 1998. Waive reading of subject minutes, approve as written and order filed. (At the end of the meeting, Council Member Hedges requested that the minutes reflect that the historical dedication of the Balboa Saloon more specifically state that the dedication is for the site, not the business.) 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. ORDINANCE FOR INTRODUCTION 3. INTRODUCE ORDINANCE NO. 98 -2 AMENDING SECTION 12.32.020(b) OF THE NBMC TO PROHIBIT COMMERCIAL VEHICLES EXCEEDING 6,000 POUNDS FROM OPERATING ON CERTAIN STREETS WITHIN THE CITY LIMITS. Introduce Ordinance amending Section 12.32.020 of the Municipal Code to add Marguerite Avenue between Coast Highway and San Joaquin Hills Road to the list of • streets with a three ton weight limit. RESOLUTIONS FOR ADOPTION Volume 51 - Page 608 IRIUWA Ord 98 -2 Commercial Vehicle Weight Limit (85) • City of Newport Beach City Council Minutes February 9, 1998 4. Removed from the Consent Calendar by Council Member Glover. 5. ADOPT RESOLUTION NO. 98 -13 APPROVING AN APPLICATION BY THE CITY OF NEWPORT BEACH REQUESTING THE ORANGE COUNTY LOCAL AGENCY FORMATION COMMISSION TO INITIATE PROCEEDINGS FOR THE SHELTON ANNEXATION TO THE CITY OF NEWPORT BEACH. Ayes Debay, O'Neil, Hedges, Glover, Noyes, Mayor Edwards Noes: None Abstain: Thomson Absent: None 6. ADOPT RESOLUTION NO. 98 -14 ORDERING TERRITORY DESIGNATED AS THE BROCKMAN PROPERTY ANNEXED INTO THE CITY OF NEWPORT BEACH. CONTRACTS AND AGREEMENTS 7. RENEWAL OF LEGISLATIVE ADVOCACY CONTRACT WITH KENNETH EMANUELS AND ASSOCIATES (C- 3083). Authorize execution of a one -year agreement for professional services with Kenneth • Emanuels and Associates for State legislative advocacy services, not to exceed $40,000 annually beginning March 1, 1998. 8. COMPLETION AND ACCEPTANCE OF NEWPORT AND BALBOA PIER REPAIR PROJECT (C- 3093). 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. 9. ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE OCEAN BOULEVARD PUBLIC RIGHT -OF -WAY ADJACENT TO 3709 OCEAN BOULEVARD, CORONA DEL MAR (EP98 -018). Approve the application subject to the execution of an Encroachment Agreement for non- standard improvements and the issuance of an Encroachment Permit by the Public Works Department; authorize the Mayor and City Clerk to execute the Agreement; and authorize and direct the City Clerk to have the agreement recorded with the Orange County Recorder. 10. OCEAN FRONT STREET ENDS IMPROVEMENTS FROM 56TH TO 59TH STREET - AWARD OF CONTRACT (C- 3151). Approve the plans and specifications; award Contract No. 3151 to E. A. Mendoza Contracting for the total price of $80,766 and authorize the Mayor and City Clerk to execute the contract; and establish an amount of $8,000 to cover the costs of testing, materials and additional work. • 11. Removed from the Consent Calendar by Council Member Hedges. Requested that Item be discussed with Item 23. Volume 51- Page 609 INDEX Res 98 -13 Annexation (21) Res 98 -14 Annexation (21) C -3083 State Legislative Advocacy Services (38) C -3093 Pier Repair (38) Encroachment/ 3709 Ocean Blvd (65) C -3151 Ocean Front Street Ends Improvements (38) As C J City of Newport Beach City Council Minutes February 9, 1998 MISCELLANEOUS ACTIONS 12. PLANNING AGENDA FOR FEBRUARY 5, 1998. 13. APPROVE BUDGET AMENDMENT (BA -041) IN THE AMOUNT OF $25,000 TO INCREASE PLAN CHECK OVERTIME .DUE TO INCREASED BUILDING DEPARTMENT ACTIVITY. 14. APPROVE BUDGET AMENDMENT (BA -042) IN THE AMOUNT OF $3,319.81 TO APPROPRIATE FUNDS TO COVER AN ADDITIONAL REFUSE COLLECTION SCHEDULED FOR APRIL 4, 1998 REQUESTED AND PAID BY HARBOR VIEW AND NEWPORT HILLS ASSOCIATIONS. 15. APPROVE BUDGET AMENDMENT (BA -043) TO TRANSFER $19,016 FROM THE HOAG HOSPITAL PARAMEDIC PROGRAM DESIGNATED RESERVE ACCOUNT 010 -3732 TO THE FIRE AND MARINE DEPARTMENT CAPITAL EXPENDITURE ACCOUNT 010- 2340 -9300, TO FUND THE PURCHASE OF TWO CARDIAC MONITOR/DEFIBRILLATORS. 16. APPROVE BUDGET AMENDMENT (BA -044) TRANSFERRING $11,975.26 TO THE FIRE AND MARINE DEPARTMENT BUDGET ACCOUNTS TO COVER ADDITIONAL STORM RELATED COSTS WHICH WILL BE SUBMITTED FOR REIMBURSEMENT TO THE STATE. 17. ATTENDANCE RECORDS FOR BOARDS /COMMISSIONS /COMMIT- TEES FOR CALENDAR YEAR 1997 (Requested by Council Member Glover). Receive and file report. 18. STANDARD USE PERMIT CONDITIONS (Requested by Council Member Hedges). Receive and file report. Motion by Council Member Noyes to approve the Consent Calendar, except for those items removed (4 and 11). Without objection, the motion carried by acclamation. Council Member Thomson abstained on Item 5. ITEMS REMOVED FROM THE CONSENT CALENDAR 4. ADOPT RESOLUTION NO. 98 -12 ADOPTING AN UPDATED FAIR POLITICAL PRACTICES COMMISSION (FPPC) DESIGNATED EMPLOYEES LIST FOR 1998. In response to Council Member Glover's questions, City Manager Murphy stated that the limit for gifts and honoraria is $50 per calendar year. City Attorney Burnham, noting that he has not checked the Political Reform Act, added that the maximum for gifts and honoraria includes spouses' gifts; that the designated employees list includes boards /committees /commissions and additional individuals, and that some disclosure categories have been expanded depending on the duties of the individual. Volume 51- Page 610 INDEX Planning (68) BA -041 Building Dept. Overtime (40/66) BA -042 Refuse Collection (40/44) BA -043 Medical Purchases (40/41) BA -044 Storm Related Costs (40/41) Boards /Commissions/ Committees Attendance (24) Use Permit Conditions (88) Res 98 -12 Conflict of Interest (66) • City of Newport Beach City Council Minutes February 9, 1998 Motion by Council Member Glover to adopt Resolution No. 98 -12, adopting an updated Fair Political Practices Commission (FPPC) designated employees list for 1998. Without objection, the motion carried by acclamation. PUBLIC HEARINGS 19. PUBLIC HEARING ON THE FINAL APPROVAL OF PORTIONS OF THE RESIDENTIAL SUBDIVISION FOR PACIFIC BAY HOMES, SPECIFICALLY, TRACTS NO. 15388 AND 15389, LOCATED AT 2300 JAMBOREE ROAD. Mayor Edwards. opened the public hearing. Hearing no testimony, Mayor Edwards closed the public hearing Motion by Mayor Pro Tern O'Neil to approve Final Map of Tract 15388, with the finding and subject to the condition of approval set forth in Exhibit "A "; and Final Map of Tract 15389, with the finding and subject to the condition of approval set forth in Exhibit "A '. Without objection, the motion carried by acclamation. . 20. PUBLIC HEARING ON THE APPLICATION OF ROCKWELL SEMICONDUCTOR SYSTEMS, INC. (RICHARD BLUTH, CONTACT) FOR AMENDMENT NO. 867 ON PROPERTY LOCATED AT 4311 JAMBOREE ROAD TO AMEND THE KOLL CENTER PLANNED COMMUNITY DISTRICT REGULATIONS TO INCREASE THE HEIGHT LIMIT WITHIN INDUSTRIAL SITE I FROM 75 FEET TO 90 FEET. Mayor Edwards opened the public hearing. Hearing no testimony, Mayor Edwards closed the public hearing. Motion by Mavor Pro Tem O'Neil to introduce Ordinance No. 98 -3 for Amendment 867 and pass to second reading on February 23, 1998. Without objection, the motion carried by acclamation. 21. UPDATE ON NEWPORT COAST FINANCIAL ANALYSIS. Council Member Hedges reported that, due to questions that arose relative to the assumptions and the accuracy of the previous figures, Council • requested that the Finance Committee review the revised figures. He reported that the analysis is now broken out annually; that the number of residential units' valuations has been updated using 1998 figures; that the difference between the two fiscal years has been reviewed; that a separate Volume 51 - Page 611 110113 o1V Final Tract Maps 15388 & 15389 Ord 98 -3 Planning Commission Amendment 867 (94) Newport Coast Annexation (21) City of Newport Beach City Council Minutes February 9, 1998 • INDEX analysis was conducted showing a contingency reserve of 10 percent; that other assumptions were tested (public vs. private maintenance of parks and adding up to 500 hotel rooms); and that different inflationary rates were added. Council Member Hedges stated that, in the worst case assumptions, the annexation will not hurt the City and may become an asset. Further, that hotel use has an important affect on the assumptions and that the residential valuation is "more than a wash." He announced that the Finance Committee is satisfied with the analysis and expressed the opinion that it is time to prepare the LAFCO application. Mayor Edwards commended Stan Hoffman and Associates for their response to Council concerns. Relative to the reports on Pages 1 and 2, Mayor Pro Tem O'Neil expressed the opinion that he is now comfortable in making annexation decisions since the reports were so thorough. He announced that the information was also disseminated to the community. Mayor Pro Tem O'Neil expressed the opinion that hotel development should be included in the report since it may generate a significant amount of revenue. Further, that the hotels should not be developed as timeshares as • the City may lose Transient Occupancy Tax (TOT) money. Council Member Hedges stated that hotel development is subject to negotiations in the context of the development agreement. Council Member Hedges expressed reluctance in putting existing City timeshares with downcoast timeshare development. City Manager Murphy stated that staff will be coming back with a report highlighting discussions with The Irvine Company; copies of the development agreement between the County and The Irvine Company; the amended development agreement; and the settlement agreement between the Friends of the Irvine Coast and The Irvine Company. Additionally, a discussion of TOT and timeshare issues will be included. Mayor Pro Tem O'Neil expressed the opinion that it may make sense to accept the dedication of two parks and medians that are paid for by either Mello Roos assessments or HOA assessments since it may benefit the City parks division. In response to his question, Mr. Murphy indicated that Council can make that decision at the time of filing the Application for Annexation since a Plan of Services will be required to be filed at the same time. Referencing Page 2, Council Member Debay requested that a summation be provided that determines which services will be provided as County services, i.e. schools, libraries, and parks. With regard to Council concerns relative to whether the City took formal • action on the parks and median responsibilities, Mayor Edwards indicated that no formal action was taken. Council Member Debay assured residents that they will not be charged for maintenance if the City maintains the Volume 51 - Page 612 City of Newport Beach City Council Minutes February 9, 1998 • parks and medians. In response to Council Member Noyes' questions, Mr. Murphy stated that the Legislative Committee will review an analysis of all the spheres of influences and it will be brought to Council at the next meeting. He explained the differences between the Santa Ana Heights and Banning Ranch spheres of influence. He emphasized that fiscal impact was never studied as it will be in the analysis to the Legislative Committee. Council Member Glover requested that a list of potential spheres of influences, particularly in the downcoast area, be provided to assist in the decision making process. Motion by Mayor Pro Tem O'Neil to receive the report from staff and directed staff to prepare a LAFCO application for Council consideration at the February 23, 1998, meeting. In response to Council Member Hedges' question, Mr. Murphy confirmed that Newport Coast residents will be notified. In response to Mayor Pro Tem O'Neil's question, Mr. Murphy reported that over 20 outreach meetings were conducted with the homeowners' associations. He indicated that generating a written newsletter for • community outreach meetings and conducting a Saturday event in which the City would have representatives from various departments was considered in order to assist in the information process. Mayor Pro Tem O'Neil supported conducting the Saturday event. Without objection, the motion carried by acclamation. 22. LIQUIDATED DAMAGES REPORT (Requested by Council Member Hedges). Public Works Director Webb reviewed the staff report, reporting that the need to charge liquidated damages (LD) occurs only once or twice a year. He indicated that General Fund projects have more latitude relative to which funds the LD could be placed into. However, if Council wanted to take projects on a case -by -case basis, the funds could be distributed to a legal entity that might have been affected due to the contract going beyond its scheduled deadline. He reviewed the four options outlined in the staff report. Council Member Hedges stated that his intent for the report was to return the LD to a legally established entity which is established by ordinance. He took issue with the disadvantages and options indicated in the staff report. Mayor Edwards indicated that the Finance Committee was discussing the establishment of a reserve policy. Discussion ensued by and between Mayor • Edwards and Council Member Hedges relative to placing the money back into a fund when it does not mitigate the damages to the area. Volume 51 - Page 613 INDEX Liquidated Damages (74) City of Newport Beach City Council Minutes February 9, 1998 • Motion by Council Member Hedges to return the liquidated damages to the General Fund for future projects in the area in which the projects were completed: if there is a business improvement district or neighborhood enhancement zone, LD is to be returned to the area; if there is none, LD is to be returned to the Capital Improvement Fund; if the project was funded by an enterprise fund project, LD is to be returned to that fund. In response to Mayor Pro Tem. O'Neil's question, City Manager Murphy indicated that the LD varies depending on the magnitude of the project. He suggested that Council direct staff to prepare a policy for the next meeting that would determine the LD administering process. Mr. Murphy pointed out that some projects have multiple bids in which the Council would need to choose the funds. In response to Council Member Glover's questions, Mr. Murphy indicated that there are two projects that qualify as neighborhood enhancement projects in which funds can be replaced in the reserve. He clarified that the neighborhood enhancement reserves can only be established in locations that would be generating additional revenue. Council Member Hedges concurred that a policy needs to be established to address the concerns. Mayor Edwards suggested that the policy be established that would place any LD issue on the Consent Calendar with a • recommendation from staff. This will enable Council the opportunity to vote as to which fund to place the LD into. He also suggested letting the Finance Committee make the recommendation for Council consideration. Council Member Noyes supported the concept but suggested it be on a project -by- project basis. Mr. Murphy reported that projects are brought before Council prior to completion and that, if LD does exist, recommendations could be brought back at that time. Mayor Pro Tem O'Neil called for the question. Mayor Edwards presented a substitute motion to direct staff to come back with a policy in which staff makes recommendations to Council on a project -by- project basis relative to which funds to place the liquidated damages into. Following discussion, the substitute motion carried by the following roll call vote: Ayes Thomson, Debay, Glover, Mayor Edwards Noes: O'Neil, Hedges, Noyes Abstain: None Absent: None • 23. ELECTRIC VEHICLES PROGRAM. 11. ELECTRIC VEHICLE CHARGE PROGRAM. Volume 51 - Page 614 INDEX Electric Veh. Prog. (44) C- 3185/EV Charging Program (38/44) • City of Newport Beach City Council Minutes February 9, 1998 11013 General Services Director Niederhaus reviewed the staff reports. He explained that leasing the electric vehicles (EV) in this manner saves the City from using $293,000 of its own funds; that the City would experience a fuel savings; that the EV can run about 100 to120 miles; and that the EV has bumper to bumper warranties. He announced that Jack Kitowski (Chief of the On -Road Control Branch of Mobile Source Division), Larry Reinhart (Governmental Affairs Director of the Southcoast AQMD), Kyle Davis and Kim Varone (Southern California Edison), and Stephanie Robinson and Brenda Chase (Planning Center) were in attendance to answer questions. Mr. Niederhaus reported that the charging program is a separate project that involves the extension of a County -wide and Los Angeles basin network of charging stations. He highlighted the proposed locations for the charging stations and the types of chargers to be installed. He stated that this is a means of governmental support for alternate fuel vehicle use within the County. In response to Council Member Debay's questions, Mr. Niederhaus confirmed that funding for the installation will be covered by the Mobile Source Air Pollution Reduction Review Committee (MSRC) and the OCTA. Further, that no general funds will be used for either projects. He reported that the City will be leasing the EVs for three years. • In response to Council Member Hedges' question, Assistant City Manager Wood explained that the Planning Center is a planning consulting firm that has been retained by the group of cities. Ms. Wood clarified that the Library will no longer be used as a charging site and that the City is considering using the OCTA site instead. She added that, although City funds will not be used for installation, the City will be providing electricity at the sites for at least a year. Following the year, a payment system for the electricity may be utilized. In response to Council Member Hedges' questions, Ms. Wood reported that two vehicles could be charged at City Hall. City Manager Murphy stated that the parking spaces are not presently metered spaces and reiterated that electricity will be free for the first year but that a debit system can be administered by the Revenue Division of the Administrative Services Department. Ms. Wood indicated that there is no estimate relative to the number of vehicles that may be using the chargers. Mr. Murphy added that installation of the chargers may take place within the next twelve months. Stephanie Robinson, Planning Center, indicated that anyone using an EV has the ability to use the chargers, Council Member Hedges took issue with taking away City Hall parking spaces from individuals conducting City business. Mr. Murphy stated that a report can be brought back to Council detailing how the program will be administered. • Following a review of his calculations, Council Member Hedges expressed the opinion that the City should purchase gas vehicles for $40,000 more. He stated that the $414,000 is still taxpayer money even if it is not General Volume 51 - Page 616 City of Newport Beach City Council Minutes February 9, 1998 • Fund money. Council Member Glover expressed the opinion that California's intent under the Health and Safety Act is to improve air quality and that all municipal vehicles should use some form of alternative fuel. Motion by Council Member Glover to authorize the City Manager to execute a contract with Edison EV to construct an electric vehicle (EV) charging station located at City Hall, and authorize the City Manager to execute the EV Team Memorandum of Understanding (MOU) [Item 11]; and approve the application, including a contract with AQMD, for a grant from AQMD of $82,867 for an electric vehicle.program; and upon the approval of the grant of matching funds from AQMD, direct staff to proceed with the leasing of 17 electric vehicles and the purchase and installation of 17 charging stations utilizing the City's AB 2766 restricted funds in the amount of $331,470 [Item 231. Mayor Pro Tom O'Neil pointed out that the City is required to return the AB2766 funds if it is not used. He supported the motion, stating that the $330,000 would come from the General Fund if the City decides to purchase gas vehicles. Council Member Thomson stated that he will support the motion even • though he feels that leasing 17 EVs at one time may not be the best solution. He expressed the opinion that the programs are a viable use of AB2766 funds. Council Member Hedges expressed the opinion that the funds still come from the taxpayers and that the quality of air has improved in the absence of the EV. Mayor Edwards stated that the City would need to purchase some type of vehicle regardless if the City utilizes the funds. The motion carried by the following roll call vote Ayes Thomson, Debay, O'Neil, Glover, Noyes, Mayor Edwards Noes: Hedges Abstain: None Absent: None 24. RESTRUCTURING OF AVIATION COMMITTEE. Council Member Glover stated that the restructuring is an attempt to work better with airports. She reported that the Aviation Committee will try to serve as a focal point to get information to the community; will meet at the Central Library; and will have speakers at each meeting to update the • Committee. She added that the current president or designee from the Airport Working Group will also be a member of the Aviation Committee. Volume 51 - Page 616 INDEX Res 98 -15 Aviation Committee (24) • • • City of Newport Beach City Council Minutes February 9, 1998 Motion by Council Member Glover to adopt Resolution No. 98 -15 amending Resolution No. 94 -67 (changing the committee composition and expanding its duties), and rescinding Resolution No. 94 -67; and confirm the following nominations: Aviation Committee (District 1) Council Member Hedges' appointment of and (alternate). . (District 2) Council Member Debay's appointment of Dan Gilliland and (alternate). (District 3) Council Member Glover's appointment of Sue Hogan and (alternate). (District 4) Mayor Edwards' appointment of Rich Taylor and (alternate). (District 5) Council Member Noyes' appointment of Bing Girling and Lee Sutherland (alternate). (District 6) Mayor Pro Tem O'Neil's appointment of John Yeager and (alternate). (District 7) Council Member Thomson's appointment of and (alternate). Without objection, the motion carried by acclamation. Mayor Edwards requested that this item be brought back at a future meeting to confirm the remaining appointments. He also requested that confirmation of Council appointments for the Bicycle Trails and Harbor Quality Citizens Advisory Committees be placed on the next agenda. PUBLIC COMMENTS Taylor Munz, 520 Avocado Avenue, stated that Harbor View Elementary School is holding its 15th Annual Spirit Run on Sunday, February 22, in front of Fashion Island. He noted the importance of the Spirit Run as it raises money for the school and brings the community together. He reported that he won last year's 10K for his age group and invited Council to attend. He announced that two 5K Runs, a 10K Run, a Kid's Expo, and a One -Mile Diaper Dash will take place during the Spirit Run. Brandon Borcoman, 2217 Private Road, announced that the 15th Annual Spirit Run's slogan is, "It's Cool to Run for Our School" and that there will be a climbing wall, games, food, and entertainment at the Kid's Expo. He presented Council with invitations to the Spirit Run. Volume 51 - Page 617 II01]�►V • City of Newport Beach City Council Minutes February 9, 1998 25. REQUEST FOR RECONSIDERATION OF CONDITIONAL USE PERMIT NO. 3293 (AMENDED) ON PROPERTY LOCATED AT 2241 WEST COAST HIGHWAY (WINDOWS ON THE BAY) (Requested by Council Member Glover). Council Member Debay requested and received clarification from Mayor Edwards that a public hearing will be set for a future date if a motion for reconsideration is approved. In response to Council questions, City Attorney Burnham clarified that, if a motion for reconsideration is approved, Windows on the Bay will then be operating at "status .quo" prior to Council making its previous action and prior to the Planning Commission making its findings. He pointed out that it was operating in excess of its original use permit. Mr. Burnham stated that he is unsure if Windows on the Bay is operating under the revised conditions from January 26 and that the document of revised conditions is a legal document absent a motion to reconsider and took affect immediately. Assistant City Manager Wood indicated that the applicant contacted her to receive clarification on the conditions, particularly regarding reservations for patio dining and the installation of a soundwall. • Motion by Council Member Glover to reconsider Conditional Use Permit No. 3293 (amended) on property located at 2241 West Coast Highway (Windows on the Bay), specifically Conditions 4, 32, 33, 34, 35, and 36; and schedule the public hearing for February 23. In response to Council Member Debay's question, Mr. Burnham stated that his understanding of reconsiderations is that reconsidering this item will put the application back to where it was prior to Council taking action. Therefore, the six conditions would not apply if the motion for reconsideration is approved. Don Gregory, 601 Lido Park Drive, expressed disapproval to the motion, stating that the property's original use was for just a restaurant, not a night club, and that the residents near Windows on the Bay are united in opposition. He pointed out that the vote of January 26 was unanimous and speculated that Council was pressured into bringing this item back. He expressed the opinion that businesses are making additions to their use permits at the expense of residents and that the reconsideration will send a signal to any defeated applicant to reapply for a reconsideration. Martin Weinberg, 100 Via Lido Nord, expressed the opinion that Council had enough information from the January 26 staff report to warrant the unanimous vote. Further, that this issue should not be reconsidered since no new evidence was presented. He also expressed the opinion that this item is being reconsidered because Council is receiving pressure from the Daily . Pilot. Mr. Weinberg believed that property values will suffer as a result of Windows on the Bay operating as a night club and that the decrease in property values will surpass any revenue Windows on the Bay could Volume 51 - Page 618 INDEX UP 3293/ Windows on the Bay (88) City of Newport Beach City Council Minutes February 9, 1998 • produce. He noted that this issue will be reviewed in July and that opinions should be voiced at that time. Council Member Debay clarified that she supports the motion because she believes that the applicant did not have the opportunity to agree to the findings and conditions. Mr. Weinberg stated that,no applicant will consent to every condition. Dee Higby, 5004 River Avenue, stated that, following a report by her real estate agent that noise issues may exist in the area, she placed a contingency on her escrow (218 Via Lido Nord) pending a satisfactory resolution of the issue. She removed the contingency following the January 26 meeting and expressed the opinion that Council is not acting in good faith. Helmuth Von Bulow, 3423 Colony Plaza, commended Council for bringing this matter back for reconsideration. Michael McCormick, 227 Canal Street, stated that he also works in the City and that his firm typically takes clients to Windows on the Bay for entertainment. He expressed the opinion that Windows on the Bay is one of the few places a person can sit outside to drink cocktails and smoke cigars and believes it is not a night club. He hoped that this item will be approved for reconsideration. • Scott Shuttleworth, applicant, thanked Council for bringing this issue back. He presented Council with petitions signed by residents who support the reconsideration. He expressed the opinion that facts exist to warrant reconsideration and urged Council to approve the motion. In response to Mayor Pro Tem O'Neil's questions, Mr. Shuttleworth confirmed that he fully understands that the motion is to reconsider only Conditions 4, 32, 33, 34, 35, and 36 and that he agrees with the motion. In response to Council Member Hedges' questions, Mr. Shuttleworth stated that he did not have information with him to present to Council as he was unaware that was the intent of tonight's discussion. He indicated that he would bring the information forward at the public hearing. He pointed out that the patio area has been enclosed by glass since the building was built. Lynn Pharris, 306 Via Lido Nord, asked for the additional justifications that warrant the reconsideration since this issue has been under discussion since September 1997. She urged Council to stand behind its original vote. Paula Roberts, resident and restaurant supplier, expressed the opinion that Mr. Shuttleworth would work with the City toward a more reasonable solution rather than take away 30 percent of Window on the Bay's business. She stated that she frequents Windows on the Bay regularly and never considered it a night club. She requested that Council reconsider the issue. • Wendy Flotow, 240 Nice Lane, stated that she has been in the restaurant and night club industry for over ten years. She expressed the opinion that Volume 51 - Page 619 I1I10W1 City of Newport Beach City Council Minutes February 9, 1998 • INDEX Windows on the Bay has always been a popular night spot but that it is not a night club. She urged Council to reconsider the issue. David Dabou, 1221 West Coast Highway, stated that he has been in the alcohol business for 35 years. He expressed the opinion that Windows on the Bay is the epitome of how to run a business. He stated that he has never heard any noise from Windows on the Bay from his home and disagreed that the patio should be considered a night club. He expressed hope that Council will reconsider the issue. Joan Shuttleworth, 1923 Irvine Avenue, stated that she is not speaking as Scott Shuttleworth's.mother, but as the person who runs the front desk. She told Council stories of patrons who support the reconsideration. She expressed hope that Council will approve the reconsideration. Patrick Glennon, 3010 San Joaquin Hills Road, expressed the opinion that Windows on the Bay is a fine dining restaurant, works very hard on their service, and is well renowned by the hotels. He stated that there will never be live bands performing in the patio and that the patio has a calm environment. He expressed hope that Council will reconsider the issue. Linda MacDonald, 3423 Colony Plaza, expressed the opinion that the January 26 vote was a blanket vote by all the restaurants against Windows . on the Bay. Further, that Windows on the Bay is a fine restaurant that everyone should experience. She expressed hope that Council will reconsider the issue. Peter Helfrich, 1912 Holiday Road, stated that he frequents many of the restaurants in the area and expressed the opinion that Windows on the Bay does not have a noise problem. He expressed support of the reconsideration and stated that many Lido residents support it also. He expressed the opinion that the previous vote was unjust. Robert Swanson, 23 Curl Drive, stated that he is a movie producer and only entertains at Twin Palms and Windows on the Bay. He believed that the restaurant generates a lot of revenue and he is considering using the restaurant in one of his movies. He expressed the opinion that items should be brought back as many times necessary to ensure that all facts are considered. He expressed support to the reconsideration of the issue. Council Member Hedges expressed the opinion that the motion to reconsider the item abuses the democratic decision making process. Further, that no new evidence was presented to change the facts that led to the vote on January 26; that the public comments over the past six months have been clear; that Council has been pressured into reconsidering this item; and that the applicant has been conducting an illegal operation. He stated that this Council is not "anti- business," pointing out that Council created an Economic Development Committee and Development Review Committee, and • streamlined the permit process. He believed that reconsideration is premature since the issue will be reviewed in July and that it would upset many residents in the community, particularly Lido Isle residents. Council Volume 51- Page 620 City of Newport Beach City Council Minutes February 9, 1996 Member Hedges expressed the opinion that residents will become suspicious of Council action and wonder if the votes will mean anything in the future. He stated that the issue is a land use decision, not a character issue, and noted that the applicant is on a lease and may not be in the community in the future. He stated that Council is under no obligation to ask the applicant or appellant (Mr. Weinberg) whether they agree to the conditions. He further expressed the opinion that the motion is a recipe for chaos in the decision making process. Council Member Glover assured that she has not been pressured by the Daily Pilot to place this item back on the agenda for reconsideration. Additionally, that she has not heard of Mr. Shuttleworth prior to the public hearings. Council Member Noyes expressed the opinion that Council is reconsidering this item because Council "fumbled the ball" two weeks ago and made a "bad decision." He stated that he was comfortable with reviewing the issue again in six months. Additionally, that it is common practice to vote on the prevailing side of an issue so that it may be brought back in the future. He expressed the opinion that the Lido Isle residents may have asked for too much and tonight is the reaction. Council Member Debay reassured both sides of the issue that her support of • the motion does not mean there will be a winner or loser when this is concluded. She expressed the opinion that everyone needs to work together and that Council went too far. She requested that the anger be stowed to help resolve the issue. Mayor Edwards suggested eliminating Condition 4 since he is currently in compliance. He noted that Mr. Shuttleworth is currently in compliance with Condition 32, but he has concerns relative to whether it meets noise requirements. Regarding Conditions 33 and 34, Mayor Edwards stated that he is comfortable with revisiting these conditions in July. Regarding Condition 36, he noted that it was an addition by Council Member Debay. Regarding Condition 35, he stated that State laws are just being added. Mayor Edwards expressed the opinion that he would be comfortable if Council Member Glover included the Cannery decision in her motion. He also expressed the opinion that Windows on the Bay currently can operate efficiently and profitably and that the conditions can be reviewed in July. Mayor Pro Tem O'Neil stated that he will be supporting the motion. He indicated that he would like to see Windows on the Bay continue to operate as it has been and place restrictions on the restaurant only if problems arise. He expressed the opinion that it is not fair to place conditions on the business prior to problems arising. He stated that he is not reconsidering this issue because he has been pressured and that he does know Mr. Shuttleworth. • Council Member Thomson requested and received clarification from Mayor Edwards that the motion is only to reconsider the five conditions. Volume 51 - Page 621 INDEX 0 • E City of Newport Beach City Council Minutes February 9, 1998 Council Member Thomson presented a substitute motion to reconsider all the conditions in Conditional Use Permit No. 3293 (amended) on property located at 2241 West Coast Highway (Windows on the Bay); and schedule the public hearing for February 23. Following discussion, the substitute motion failed by the following roll call vote: Ayes: Thomson Noes: Debay, O'Neil, Hedges, Glover, Noyes, Abstain: Mayor Edwards Abstain: None Absent: None The motion to reconsider Conditional Use Permit No. 3293 (amended) on property located at 2241 West Coast Highway (Windows on the Bay), specifically Conditions 32, 33, 34, 35, and 36; and schedule the public hearing for February 23, 1998, carried by the following roll call vote: Ayes Thomson, Debay, O'Neil, Glover, Noyes Noes: Hedges, Mayor Edwards Abstain: None Absent: None ADJOURNMENT — 10:14 p.m. * * *rr *rrotrr *t *tt * * *tx *x * *xxo *s The agenda for the Regular Meeting was posted on February 4, 1998 at 2:30 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. vol City Clerk M- &v,,, V, W � Recordi g S retary i" a r Volume 51 - Page 622 INDEX