HomeMy WebLinkAbout06/14/1999 - Regular Meeting•
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CITY OF NEWPORT BEACH
City Council Minutes
Regular Meeting
June 14, 1999 - 7:00 p.m. IN
STUDY SESSION - 3:00 p.m. [Refer to separate minutes]
CLOSED SESSION - 6:00 p.m.
CLOSED SESSION REPORT PRESENTED - None.
RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING
ROLL CALL
Present: Adams, Glover, Debay, Ridgeway, Noyes, Mayor O'Neil
Absent: Thomson (excused)
Pledge of Allegiance - Council Member Noyes.
Invocation by Mrs. Marianne Scott, First Church of Christ Scientist.
Presentation to Paul Salata regarding "Irrelevant Week ".
MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A
FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON -
DISCUSSION ITEM):
• Council Member Adams requested that the Jamboree/Bison intersection
issue be agendized for the July 26 City Council meeting.
Council Member Glover announced that the Aviation Committee will
hold a forum at the Central Library on the status of E1 Toro Airport
planning on June 21 at 7 p.m
Council Member Noyes thanked Council and the City Manager for
participating in the Balboa Parade last weekend. He also thanked
Assemblywoman Marilyn Brewer and Congressman Dana Rohrabacher
for their participation.
CONSENT CALENDAR
READING OF MINUTES /ORDINANCES AND RESOLUTIONS
1. MINUTES OF THE ADJOURNED REGULAR (STUDY SESSION) AND
REGULAR MEETING OF MAY 24, 1999. Waive reading of subject
minutes, approve as written and order filed.
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.
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City of Newport Beach
City Council Minutes
June 14, 1999 INDEX
• RESOLUTIONS FOR ADOPTION
3. REVISED PARKING LOT FEES FOR BALBOA PIER AND CORONA
No report
DEL MAR PARKING LOTS (contd. from 4/26/99 & 5/10/99). Continue
to July 26, 1999.
4. Removed at the request of Council Member Adams.
5. RECYCLING SURCHARGE. Adopt Resolution No. 99 -39 authorizing the
Res 99 -39
recycling surcharge to be set at $2.17 per month per residential unit effective
Recycling Surcharge
July 1, 1999.
(40144)
6. ASSIGNMENT OF WASTE MANAGEMENT OF ORANGE COUNTY
Res 99 -40
NON - EXCLUSIVE SOLID WASTE FRANCHISE AGREEMENT AND
Solid Waste
TERMINATION OF NON - EXCLUSIVE SOLID WASTE FRANCHISE
Franchise
AGREEMENT WITH WESTERN WASTE. Adopt Resolution No. 99 -40
Agreement
terminating the commercial solid waste franchise agreement between the
(42)
City and Western Waste and assigning the City's franchise agreement with
Waste Management of Orange County, Inc. to Waste Management of Orange
County, a Division of Waste Management Collection and Recycling, Inc; and
approve agreement to terminate the solid waste collection franchise
agreement between the City and Western Waste, and to assign the Waste
Management of Orange County Franchise to Waste Management of Orange
County, a Division of Waste Management Collection and Recycling, Inc.
• 7. MEASURE M ELIGIBILITY REQUALIFICATION FOR FY 1998 -99.
Res 99 -41
Adopt the Seven -Year Capital Improvement Program; adopt Resolution
Measure M
No. 99 -41 pertaining to the status of the City's Circulation Element and
Eligibility/
affirming that there has been no unilateral reduction in lanes on any Master
Orange County
Plan of Arterial Highways during FY 1998 -99; and direct staff to submit the
Transportation
adopted Capital Improvement Program, and the Maintenance of Effort
Authority
certification to the Orange County Transportation Authority to satisfy the
(74)
eligibility provisions for the Measure M and the Congestion Management
Programs.
8. Removed at the request request of Council Member Noyes.
CONTRACTS AND AGREEMENTS
9. MULTI -YEAR MEMORANDUM OF UNDERSTANDING (MOU) WITH
C -2932
POLICE MANAGEMENT ASSOCIATION (PMA). Approve the subject
Police Management
MOU.
MOU (38)
10. MULTI -YEAR MEMORANDUM OF UNDERSTANDING (MOU) WITH
C- 2060/Firefighters
FIREFIGHTERS ASSOCIATION (NBFA). Approve the subject MOU.
MOU (38)
11. AGREEMENT WITH WESTNET. Approve the Automate Rescue Series
C -3291
Sponsorship agreement with Westnet to provide enhanced communications
Rescue Series
equipment for two lifeguard rescue vessels.
Sponsorship (38)
• 12. MACARTHUR BOULEVARD PAVEMENT :REHABILITATION AND
C -3269
SANDCASTLE/ TILLERBLUE KEY PAVEMENT OVERLAY (C -3269) -
Pavement
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City of Newport Beach
City Council Minutes
June 14, 1999 INDEX
• AWARD OF CONTRACT. Approve the plans and specifications; award
Rehabilitation
C -3269 to All American Asphalt for the total bid price of $894,521 and
& Pavement
authorize the Mayor and the City Clerk to execute the contract; and
Overlay
establish an amount of $89,000 to cover the cost of materials testing and
(38)
unforeseen work.
13. Removed at the request of Council Member Debay.
14. Removed at the request of a member of the audience.
15. ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND
EP 99 -211
MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE
Encroachment/
NORTH BAY FRONT AND ONYX AVENUE PUBLIC RIGHTS -OF-
North Bay Front &
WAY, ADJACENT TO 1301 AND 1301% NORTH BAY FRONT,
Onyx Avenue
BALBOA ISLAND (EP 99 -211). Approve the application subject to
(65)
1) execution of an Encroachment Agreement for non - standard
improvements; and authorize the Mayor and the City Clerk to execute the
Agreement and authorize and direct the City Clerk to have the agreement
recorded with the Orange County Recorder; 2) an Encroachment Permit
issued by the Public Works Department; and 3) a Building Permit issued by
the Building Department.
MISCELLANEOUS ACTIONS
16. PLANNING COMMISSION AGENDA FOR JUNE 10, 1999. Receive and
Planning Commission
file.
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(68)
17. BUDGET AMENDMENT (BA -073) TO APPROPRIATE A CHECK IN
BA -073
THE AMOUNT OF $2,079 FROM THE STATE LIBRARY S PUBLIC
State Library/
LIBRARY STAFF EDUCATION PROGRAM FOR TUITION
Tuition Reimbursement
REIMBURSEMENT. Approve BA -073.
(50/40)
18. BUDGET AMENDMENT (BA -075) TO INCREASE REVENUE
BA -075
ESTIMATES AND EXPENDITURE APPROPRIATIONS BY $2,661.37
Police/
FOR THE PURCHASE OF A TRAINING MANAGEMENT COMPUTER
Training Management
SYSTEM TO BE REIMBURSED BY THE CALIFORNIA COMMISSION
Computer System
ON PEACE OFFICER STANDARDS AND TRAINING (POST). Approve
(70/40)
BA -075.
19. BUDGET AMENDMENT (BA -076) TO APPROPRIATE A CHECK IN
BA -076
THE AMOUNT OF $1,395 FROM THE NATIONAL JUNIOR
Basketball Scoreboard
BASKETBALL ASSOCIATION TO PURCHASE SCOREBOARD
(62/40)
CONTROLLERS. Approve BA -076.
20. BUDGET AMENDMENT (BA -077) TO TRANSFER $1,308 FROM THE
BA -077
BONITA CANYON APARTMENT OVERTIME ACCOUNT 010 -22366
Building Department
TO THE BUILDING DEPARTMENT OVERTIME ACCOUNT 2900-
Overtime
7040. Approve BA -077.
(26/40)
21. BUDGET AMENDMENT (BA -078) TO APPROPRIATE A CHECK IN
BA -078
THE AMOUNT OF $11,428.30 FROM A.Y.S.O. REGION 57 FOR FIELD
•
Lincoln Elementary
IMPROVEMENTS AND MAINTENANCE AT LINCOLN
Field Improvements
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City of Newport Beach
City Council Minutes
June 14, 1999
Approve BA -078.
22. Removed at the request of a member of the audience.
23. APPOINTMENT OF CITY MANAGER AS VOTING MEMBER OF
METRO CITIES FIRE AUTHORITY BOARD. Approve appointment.
24. NOMINATION TO FILL ECONOMIC DEVELOPMENT COMMITTEE
(EDC) VACANCY. Appoint Barbara Wold to fill the Community Based
Marketing vacancy on the EDC.
25. Removed at the request of Council Member Adams.
532. RESIGNATION OF ROYA FOULADI FROM THE ARTS
COMMISSION. a) Accept the resignation of Roya Fouladi, Arts
Commissioner, effective immediately (term expires June 30, 2001); b) waive
noticing and appointment requirements pertaining to unscheduled vacancies
as outlined in City Council Policy A -2; c) increase the number of vacancies to
be filled on June 28, 1999 by one member; and d) direct the City Clerk to
incorporate the appointment of this vacancy with the appointments to be
made on June 28, 1999 to fill the scheduled vacancies (terms which expire on
June 30, 2003).
Motion by Council Member Debav to approve the Consent Calendar,
except for those items removed and /or continued (4, 8, 13, 14, 22, and 25).
Without objection, the motion carried by acclamation.
ITEMS REMOVED FROM THE CONSENT CALENDAR
4. CITY S SUPPORT OF THE "FAIR COMPETITION AND TAXPAYER
SAVINGS ACT ".
Council Member Adams stated that he is delighted that Council is
considering formally supporting the "Fair Competition and Taxpayer
Savings Act" and read portions of Resolution No. 99 -38.
Motion by Council Member Adams to adopt Resolution No. 99 -38 stating
the City's support of the "Fair Competition and Taxpayer Savings Act" and
its legislative vehicles (ACA 16 and AB 1448).
Without objection, the motion carried by acclamation.
8. ADOPT RESOLUTION NO. 9942 REDUCING THE NUMBER OF
MEMBERS ON THE ARTS COMMISSION FROM NINE TO SEVEN
EFFECTIVE JULY 1, 1999 AND CONFIRM THE NOMINEES FOR
BOARD AND COMMISSION VACANCIES.
Regarding the resolution that reduces the number of members on the Arts
• Commission, Council Member Glover reported that this is the only
committee with nine members. She indicated that the Ad -Hoc Appointments
Committee felt that seven members could make just as good decisions as
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INDEX
(62/40)
Metro Cities Fire
Authority Board (61)
Economic
Development
Committee (24)
Arts Commission
(24)
Res 99 -38
ACA 16 & AB 1448
Fair Competition/Tax
(48)
Res 99 -42
Commissions
& Boards Nominees/
Arts Commission
Membership (24)
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City of Newport Beach
City Council Minutes
June 14, 1999
nine members, and that this brings the committee back in line with the other
City committees.
City Manager Bludau stated that staff did hear from Commissioners who
were on the Arts Commission when it changed from seven to nine members
and some of them expressed the feeling that it was more difficult to reach a
consensus with the larger membership.
Motion by Council Member Noyes to reopen nominations.
Without objection, the motion carried by acclamation.
Motion by Council Member Noyes to add Patricia Beek to the list of
nominees for the Parks, Beaches and Recreation Commission.
Without objection, the motion carried by acclamation.
Motion by Council Member Debav to add Richard Fuller to the list of
nominees for the Planning Commission.
Without objection, the motion carried by acclamation.
Motion by Council Member Noyes to adopt Resolution No. 99 -42.
Without objection, the motion carried by acclamation.
Council confirmed the following nominations; and scheduled appointments
for June 28, 1999:
Board of Library Trustees (2 Vacancies — Bartolic and Ryan)
Nominees: Patrick Bartolic, Julie Ryan, and Mary Petropoulos.
City Arts Commission (2 Vacancies — Valentine, Michaels, Fouladi &
vacant seat)*
Nominees: Karen Raab, Lila Crespin, Don Gregory, Tom Staple, and
Catherine Michaels.
* (2 vacancies as a result of the adoption of Resolution No. 99 -42 and
resignation of Roya Fouladi — Item S32)
Civil Service Board - (1 Vacancy - Godfrey)
Nominees: James Dunlap. Jr. and Douglas Wood.
Parks. Beaches & Recreation Commission (2 Vacancies — Beek and
Glasgow)
Nominees: Timothy Brown, Stuart Macfarland, Jules Marine, Curtis
Herberts, and Patricia Beek.
Planning Commission (2 Vacancies — Gifford and Fuller)
Nominees: Robert Patterson, Christi Bettingen, Steven Kiser, Anne Gifford,
and Richard Fuller.
Volume 52 - Page 520
INDEX
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City of Newport Beach
City Council Minutes
June 14, 1999
13.
14.
REHABILITATION AWARD OF
CONTRACT (C- 3170).
Noting that there are seven recommendations with this report, Council
Member Debay pointed out that four of the contracts are being funded or
supplemented by a competition that the City entered, along with all Orange
County cities, in order to receive the Gas Tax Funds that OCTA administers,
Federal Highway Funds, and State funds. She commended Public Works
Director Webb and his department for doing this and emphasized that this,
in effect, brings the tax dollars back to the City to benefit the residents.
Motion by Council Member Debav to a) approve the plans and
specifications for San Joaquin Hills Road from Jamboree Road to MacArthur
Boulevard (Federal Authorization No. STPLMA- 5151- (008)) and for San
Joaquin Hills Road from MacArthur Boulevard to Marguerite Avenue
(Federal Authorization No. STPLMA- 5151- (009)); b) award contract (C -3170)
to R.J. Noble Company for the total bid price of $1,297,459 ($866,924 for
STPLMA- 5151 -(008) and $430,535 for STPLMPL- 5151 - (009)), and authorize
the Mayor and the City Clerk to execute the contract; c) establish an amount
of $129,000 ($86,000 for STPLMA- 5151 -(008) and $43,000 for STPLMA-5151-
(009)) to cover the cost of material testing and unforeseen work; d) authorize
a budget amendment (BA -074) to appropriate $258,368 of Federal Highway
AHRP Funds (STPLMA05151- (008)) in a newly established account 7285 -
05100396; e) authorize a budget amendment (BA -074) to appropriate
$190,955 of Federal Highway AHRP Funds (STPLMA05151- (009)) in a newly
established account 7285- C5100494; f) establish Gas Tax Account No. 7181 -
05100494 for STPLMA -5151- (009); and g) authorize a budget amendment
(BA -074) to transfer $282,580 from Gas Tax Account No. 7181- C5100396 into
Account No. 7181- C5100494.
Without objection, the motion carried by acclamation.
NEWPORT THEATRE ARTS CENTER ADDITION — AWARD OF
CONTRACT (C- 3225).
Dr. Jan Vandersloot, 2221 East 16th Street, member of SPON, stated that
this is to remove six mature eucalyptus trees at Fnsign View Park due to the
Newport Theater Arts Center remodeling. He provided Council with
pictures of the eucalyptus trees and believed that the alternative would be to
only remodel the Theater internally. He noted that the trees are beautiful,
mature, healthy eucalyptus trees that seem to be on the City's "endangered
list", noting that Item 22 also deals with the removal of eucalyptus trees.
Dr. Vandersloot believed that a remodel that could have preserved the trees
would have been considered if this was appropriately regarded a year ago
when the design was first considered. He expressed the opinion that
planting other trees on Riverside Avenue does not justify the removal of
these trees since Riverside Avenue has nothing to do with Ensign View Park.
Public Works Director Webb stated that the tree removals were at the
• request of the Arts Center. He indicated that they are working within a
confined area and needed to have better access into the dressing rooms and
also needed to push the wall out. He stated that six eucalyptus trees will be
Volume 52 - Page 521
INDEX
C- 31701BA -074
San Joaquin
Hills Road
Rehabilitation
(38/40)
C -3225
Newport Theatre
Arts Center
(38)
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City of Newport Beach
City Council Minutes
June 14, 1999
removed at the Arts Center but six king palms will be planted along
Riverside Avenue as part of the beautification program.
Council Member Glover took issue with Dr. Vandersloot's statement relative
to reviewing the designs a year ago, noting that she, Dr. Vandersloot, and
another member of the public met with the architect at that time.
Margaret Mary Butt, P.O. Box 522, Corona del Mar, stated that ficus trees
are also being cut down in Corona del Mar and that it looks awful because
now the streets signs are exposed. She agreed that the eucalyptus trees
should not be removed because of their beauty.
Christine Karen stated that she and her neighbors hope there is another
way to handle the situation and indicated that they are willing to try to raise
money if it costs more to do something else.
In response to Council Member Noyes' question, Mr. Webb believed there
were at least 20 -25 more eucalyptus trees at that location.
Motion by Council Member Ridgeway to approve the plans and
specifications; award contract (C -3225) to L.T.G. Construction Co. for the
total bid amount of $118,800 and authorize the Mayor and the City Clerk to
execute the contract; establish an amount of $6,500 to cover the cost of
unforeseen work; and approve Amendment No. 1 to the Professional Services
Agreement with Brion S. Jeannette & Associates, Inc.
Without objection, the motion carried by acclamation.
22. REFORESTATION FUNDING.
Dr. Jan Vandersloot, 2221 East 16th Street, member of SPON, showed
Council photographs that he believed illustrate that the trees are not
decaying or dying. He stated that the General Service Director is requesting
Council approval based on a boring tool test which only measures density.
He requested that Council allow the public to have an independent arborist
evaluate the health of the trees prior to their removal and the City spending
the money.
Dr. Vandersloot added that these trees may not pose any health or safety
problems and that they may be perfectly healthy trees. He suggested
delaying the award of this until after the public hearing with the Parks,
Beaches and Recreation Commission, noting that the surrounding residents
do not know of the pending removal of the 14 eucalyptus trees.
Council Member Debay stated that the boring test identified large, rotten
internal areas that could fail at any time. Dr. Vandersloot disagreed, stating
that an independent arborist needs to look at that since the boring test only
shows that the trees are old; that the boring tool does not tell what disease a
tree has; and that the boring tool just measures density. Council Member
Debay expressed concern that houses could be damaged by these trees
falling during a windstorm.
Volume 52 - Page 522
Q1 III
BA -079
Reforestation
(62/40)
City of Newport Beach
City Council Minutes
June 14, 1999
• General Services Director Niederhaus explained that a private appraisal of
these trees was conducted two years ago using a boring tool. He indicated
that these trees are 60 years old, are advanced in age for their species, and
have been tested twice. He added that the private arborist wrote strong
letters two years ago for the City to watch these trees very closely for
internal failure. He emphasized that not all the trees are being removed,
just those that have not passed the internal test. Mr. Niederhaus stated that
he was called out on a tree failure during the El Nino storms and indicated
that there is absolutely no place for these 65 -75 foot tall trees to fall. He
pointed out that it is his responsibility to keep trees in a safe condition
throughout the City and that he feels strongly about these trees needing to
be removed to protect and provide for the safety of the residents.
Council Member Ridgeway stated that this is a calm time of year and that he
would support continuing this for no more than four weeks if
Dr. Vandersloot wanted to have the trees retested by a credible arborist,
believing that the arborist will find exactly what the City has concluded
about the trees.
Regarding the Marine Avenue trees, Council Member Noyes stated that
there were two instances in which the residents requested that the General
Services Department look at these trees because they were concerned about
their condition and since they were visibly damaged.
• Council Member Adams stated that he would be supportive of postponing the
tree removal to have the trees retested and to review the report since it is a
calm time of year. Mr. Niederhaus strongly recommended that the trees be
removed and invited Dr. Vandersloot to view the conditions of the removed
trees. Further, he would be happy to test the trees again and share the
report with Dr. Vandersloot.
is
In response to Mayor O'Neil's question, Mr. Niederhaus indicated that the
trees are scheduled for removal within the next two weeks. Mayor O'Neil
stated that the timeframe still provides Dr. Vandersloot an opportunity for
independent examination and to meet with Mr. Niederhaus. Further, if the
trees are not diseased when they are removed, the General Services
Department will cease removing any more trees.
Motion by Mayor O'Neil to approve a Budget Amendment (BA -079) for
$13,000 to provide additional funding for emergency reforestation operations
(removal and replacement of decayed trees on 4th and Marine Avenues).
Elaine Linhoff, 1760 E. Ocean Boulevard, stated that it is difficult for her to
believe that there are 20 trees in such an emergency state that warrants
immediate removal and noted that Policy G -1 indicates that these matters
first go before the Parks, Beaches and Recreation Commission.
With Council Member Glover and Council Member Ridgeway dissenting, the
motion carried.
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City of Newport Beach
City Council Minutes
June 14, 1999
25. TREE REMOVAL APPEAL - 2327 ARBUTUS AVENUE (contd. from
4/12/99). Continue to 6/28/99.
Council Member Adams stated that he received a call from the applicant,
Mr. Parker, and asked why this is being continued to the June 28 Council
meeting.
General Services Director Niederhaus indicated that this item is being
continued so that it coincides with the review of Policy G -1. Further,
Mr. Parker will be in attendance at the 6/28/99 meeting.
PUBLIC COMMENTS -None.
PUBLIC HEARINGS
26. ADOPTION OF THE 1998 CALIFORNIA FIRE CODE.
Mayor O'Neil opened the public hearing.
Philip Bettencourt, 9 Executive Circle, Irvine, representing the Building
Industry Association, stated that the Building Industry Association (BIA)
made a concerted effort this year throughout Orange County cities to try to
get as much protection for the uniformity of codes as possible. Knowing that
there are unique, local circumstances permitted under law that allow cities
to make some exceptions to the code, he believed that the City's exceptions
have been done legitimately because of the City's hillside terrain and the
harbor conditions that limit ordinary street grid access. He stated that BIA
supports the package that is before Council this evening.
There being no further testimony, Mayor O'Neil closed the public hearing.
Motion by Council Member Glover to adopt Urgency Ordinance
No. 99 -13 Amending Title 9 of the NBMC to adopt the 1998 California Fire
Code and local amendments to take effect concurrently with the State Code
on July 1, 1999.
Without objection, the motion carried by acclamation.
27. ADOPTION OF THE BUILDING CODES AND RESOLUTION
NO. 99 -43 SETTING FORTH FINDINGS BASED ON LOCAL
CONDITIONS WITHIN THE CITY OF NEWPORT BEACH WHICH
MAKE CERTAIN MODIFICATIONS AND CHANGES TO THE
CALIFORNIA BUILDING CODE, THE CALIFORNIA PLUMBING
CODE AND THE CALIFORNIA RESIDENTIAL CODE REASONABLY
NECESSARY.
Mayor O'Neil opened the public hearing.
Philip Bettencourt, 9 Executive Circle, Irvine, representing the Building
• Industry Association, stated that the Building Industry Association (BIA)
salutes the City's building official for being a part of the consensus group
which emerged from a select group of local building officials to pool and
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INDEX
No report
Ord 99 -13
Fire Code
(41/53)
Ord 99 -14
Res 99 -43
Building Code
(26/53)
City of Newport Beach
City Council Minutes
June 14, 1999
• evaluate local changes in the interest of trimming down the number of
amendments in the over 400 cities and counties in California. He stated that
BIA endorses this package and believes that the conditions are limited and
within the scope of findings required by State law.
Richard Luehrs, Building Code Board of Appeals Chairman, stated that the
Building Code Board of Appeals reviewed this and unanimously recommends
that Council adopt this package.
There being no further testimony, Mayor O'Neil closed the public hearing.
Motion by Council Member Debav to adopt Urgency Ordinance
No. 99 -14 amending Title 15 of the NBMC to adopt the 1997 Edition of the
Uniform Administrative Code, the 1997 Edition of the Uniform Housing
Code, the 1998 Edition of the California Building Code, the 1998 Edition of
the California Mechanical Code, the 1998 Edition of the Electrical Code, the
1998 Edition of the California Plumbing Code, the 1997 Edition of the
Uniform Swimming Pool, Spa and Hot Tub Code, and the Excavation and
Grading Code; and adopt Resolution No. 99 -43 setting forth findings of
necessity.
Without objection, the motion carried by acclamation.
28. PUBLIC HEARING REGARDING THE PRELIMINARY BUDGET
• FOR THE 1999 -00 FISCAL YEAR, PURSUANT TO SECTION 1102 OF
THE NEWPORT BEACH CITY CHARTER, AND THE CITY'S
APPROPRIATION (GANN) LIMIT FOR THE 1999 -00 FISCAL YEAR,
PURSUANT TO ARTICLE XIIIB OF THE STATE CONSTITUTION.
Mayor O'Neil.opened the public hearing.
There being no testimony, Mayor O'Neil closed the public hearing.
Motion by Council Member Ridgeway to adopt Resolution No. 99 -44
determining and establishing an appropriations limit for fiscal year 1999 -00
in accordance with Article XIIIB of the California Constitution and
Government Code Section 7910.
Without objection, the motion carried by acclamation.
29. ALBERTSON'S INC. (MARK STEINMAN, APPLICANT), 3049 EAST
COAST HIGHWAY - AN APPEAL OF THE DECISION OF THE
PLANNING COMMISSION WHICH APPROVED A REQUEST FOR A
USE PERMIT TO ALLOW A REMODEL AND CONSTRUCTION OF A
STORAGE MEZZANINE WITHIN AN EXISTING RETAIL GROCERY
STORE BUILDING AND A WAIVER OF OFF - STREET PARKING
REQUIREMENT WITH THE ACCEPTANCE OF AN OFFSITE
PARKING AGREEMENT.
• Mayor O'Neil opened the public hearing.
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INDEX
Res 99 -44
199912000
Budget
(40)
Use Permit 3650
Planning Commission
Appeal/
Albertson's, Inc.
(88)
C
City of Newport Beach
City Council Minutes
June 14, 1999
INDEX
Planning Director Temple reported that the Planning Commission
considered this item on May 6 and that many concerns regarding the
parking situation and traffic circulation around the shopping center were
expressed by the surrounding neighbors. In order to address the neighbors'
concerns, the Planning Commission added conditions to those recommended
by staff that requires the store owner to purchase City parking permits for
their employees so that they could park in the City lot on Bayside Drive;
limits delivery hours to 7 a.m. to 8 p.m.; requires Albertson's to chain off the
delivery service bays at the times delivery is not permitted; and includes
additional landscaping around the perimeter of the remodeled building.
Ms. Temple stated that staff and the applicant continued to review the
situation after Planning Commission action and the filing of the appeal,
particularly as it relates to the current truck delivery traffic and circulation
around the center. She reported that the large trucks can make a right turn
onto Iris Avenue and proceed directly onto Coast Highway by relocating a
guy wire associated with a telephone pole, widening the driveway, and
adding red curb along Iris Avenue. Ms. Temple pointed out that the
proposed change /additional condition could result in the loss of two to three
on- street parking spaces on Iris Avenue in order to allow the truck a
sufficient turning radius. She indicated that, if Council wishes to include
this solution, there is an additional condition on Page 3 of the staff report
that should be added to the list of conditions of approval.
• In response to Council Member Adams' questions, Ms. Temple confirmed
that only right turns can be made onto Coast Highway from Iris Avenue, but
that trucks needing to make U -turns can do so at Marguerite.
Referencing a letter by Janet Rappaport, Council Member Debay stated that
Ms. Rappaport indicated that residents wanting to park near their houses is
the problem, not necessarily Albertson's use permit. She pointed out that
this is similar to an issue Council heard recently about other streets in
Corona del Mar that are being impacted by businesses.
In response to Council Member Debay's questions, Ms. Temple indicated that
staff initially recommended that delivery be from 8 a.m. to 8 p.m.; however,
the Planning Commission changed it, indicating that 7 a.m. delivery was
acceptable in this case. Additionally, she stated that the entrance to the
shopping center is a one -way aisle with angled parking and that the Public
Works Department feels it is inappropriate to have the large trucks go
against the flow of a one -way circulation lane.
Mayor O'Neil stated that Planning Commission Chairman Selich indicated
that he observed a large delivery truck turning left onto Coast Highway
without much problem during the morning hours. Mayor O'Neil expressed
the opinion that the driveway could be made to have two-way flow if parking
is modified. Ms. Temple stated that she discussed this with Traffic Engineer
Edmonston who felt that certain kinds of trucks and high- skilled drivers
could make those quick maneuvers; however, Mr. Edmonston advised
is against making it the primary mode of egress. Further, a significant number
of parking spaces in the lot would be lost if the driveway were made to go
two -ways and noted that there is a lot of competition for parking in the area
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June 14, 1999
already.
N wI�Toll
In response to Council Member Debay's question regarding the trash
compactor, Ms. Temple stated that she does not believe a time limitation was
set, but thought that a similar curfew as the delivery bays' could be
established. Council Member Debay reported that Ms. Rappaport also
indicated that Albertson's has been very cooperative in working with the
residents and even stated that, "...it would appear that the Old Corona del
Mar residents' appeal of the Albertson's permit is asking the Council to
modify the use permit rather than deny it...:' She asked if there was any
way to put "teeth" in the requirement that the employees park either in the
Albertson's lot or the City lot. Ms. Temple skated that the intent of the
condition is to make their use of the Bayside Drive lot the first choice when
looking for parking. Additionally, there is incentive to use the lot since
Albertson's will be purchasing the blue meter permits for its employees.
Ms. Temple believed that it would be difficult to enforce an actual
prohibition especially since the shopping center already has a serious
parking deficiency.
Janet Rappaport, 400 Iris Avenue, stated that she is married to the
appellant, Eric Parker, who filed the appeal basically on behalf of the Old
Corona del Mar Residents Association. She indicated that he will not be
attending the meeting because he left for Europe for the entire summer.
Ms. Rappaport stated that they have been working with Albertson's and like
• the idea of making the neighborhood nice. She stated that they agree with
Albertson's regarding the rerouting of trucks. She also indicated that many
good ideas were brought up during the Corona del Mar planning charette
held over the weekend. Ms. Rappaport agreed with Council Member Debay
in wanting some sort of "teeth" for the parking issue. She indicated that she
understands that there may be times that parking is not available but
believed that this does not happen too frequently.
Kimberly Cole, 410 Iris Avenue, thanked Albertson's for their willingness to
work with the residents on this issue. She stated that she is happy with the
agreement to reroute the trucks and with the parking agreement. She
indicated that a protocol for reporting parking violations needs to be
established if there were no "teeth" established for parking. She requested
that the City also investigate the excessive speeding on Iris Avenue
especially since there is a park on both sides of the base, no marked
crosswalks, and no signage. Ms. Cole noted that some of the houses on Iris
Avenue are built in a canyon and that those houses hear everything that
goes on in the area. She asked what type of noise levels will the
neighborhood be expecting.
Keith Dean, 403 Iris Avenue, also thanked Albertson's for working hard to
resolve some of the issues and requested that Council use the 8 a.m. to
8 p.m. curfew as the curfew for trash pickup and trash compacting.
Regarding the truck route, he suggested moving the truck bay closer to First
Street because it will be easier for the trucks to make the right turn and will
• free residential streets from having the trucks drive onto them. Noting that
Iris Avenue has a 3 -ton truck limit, he requested that Albertson's waiver
that permits them to drive on Iris Avenue be revoked if a new routing
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solution is established.
INDEX
Mark Steinman, 1180 W. Lambert Road, Brea, applicant, reported that
improvements are being proposed to both the exterior and interior of the
store and that they are convinced that they can reroute the trucks. He
reported that the telephone company has already agreed to move the guy
wire for an additional cost; the driveway can be expanded; and Albertsons
will provide a truck for staff to determine how many residential parking
spaces will be lost. Regarding the trash compactor, Mr. Steinman stated
that Marathon Compactors, the maker of the trash compactor, gave them an
acoustical engineers report that indicates that the decibel level will be
similar to that of a normal conversation (60 -70 dB). He presented
Ms. Temple with the report and noted that the compactor will not be used
continuously. Mr. Steinman also stated that they do not have a problem
with limiting the trash pick -up and return of the bins to the same hours as
truck delivery. He requested that the hours of delivery remain 7 a.m. to
8 p.m. and explained that the trucks need to leave the Brea yard early 'so
that the products will be available to the consumers prior to the afternoon
hours. He indicated that they do not have a problem with chaining the docks
before 7 a.m. and after 8 p.m. or with revoking travel from Iris Avenue
towards Bayside Drive. Regarding the ingress and egress out of the
driveway onto Coast Highway, Mr. Steinman stated that it is possible but
takes one of the better drivers and three vacant parking stalls to make the
turn.
• In response to Mayor O'Neil's questions, Mr. Steinman stated that no
parking spaces would be lost in the shopping center if the route were
changed. He indicated that Albertson's would probably find out about
employees not parking in the Bayside Drive lot from the residents, and that
he discussed this with Steve Check, District Manager, who believes that this
is reasonably enforceable. Further, there has not been any real complaints
or problems from the employees. Mr. Steinman pointed out that requiring
employees to park in the shopping center lot if the City lot is full would be in
violation of a condition they currently have with the City. Regarding
weekends, he stated that there generally is not a full compliment of
employees during Farmers Market hours.
Mayor O'Neil pointed out that the improvement is to add a mezzanine to
increase the storage area, thereby reducing the number of weekly truck trips
to the market. Mr. Steinman believed that the truck trips will decrease as
many as three to four deliveries a week. He stated that the sales floor area
will increase but the footprint of the building will not change.
Regarding the condition on page 3 of the staff report, Mr. Steinman
indicated that Albertson's accepts the condition. In response to Council
Member Debay's questions regarding construction vehicles, he stated that
Albertson's selected one of their most experienced and best contractors to do
the job and is requiring the contractor to rent a construction yard so that the
workers can be carpooled to the site, but noted there will be times when an
• electrician or plumber truck will be onsite. He indicated that another benefit
to selecting a contractor is that it shortens the timeframe. Mr. Steinman
indicated that, once the truck dock and mezzanine are done, work will be
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INDEX
concurrent for the interior and exterior of the building as much as possible.
He reported that Albertson's already has an encroachment permit for the
mezzanine work.
In response to Council Member Ridgeway's questions, Mr. Steinman
indicated that the mezzanine is across from the dock area and that the dock
will be raised to the same elevation as the main building. Council Member
Ridgeway suggested moving the dock to the other side of the building so that
loading would be off of Jasmine Avenue. He believed this would add
ten parking spaces but that the trucks would need to use Jasmine as part of
their turning radius. Mr. Steinman indicated that they looked at that
suggestion but that it was not physically possible to turn on Jasmine
Avenue. He utilized the blueprints to explain the turning situation and
added that backing and turning onto Jasmine was undesirable to staff
because of its potential danger. Further, he did not believe any additional
parking spaces would be gained from moving the loading docks.
Mr. Steinman indicated that the architect also drew a sketch for the trucks
to enter from Coast Highway and have a through dock, but that this may not
be financially feasible. He clarified that Albertson's trucks do back -up;
however, that this occurs onsite rather than on City streets.
Traffic Engineer Edmonston expressed concern relative to having trucks
turn left onto Coast Highway, stating that it would currently take the entire
driveway and cause traffic on Coast Highway to stop. He also explained the
• differences between the trucks reversing on the Albertson's lot versus
reversing on Jasmine Avenue. Mr. Edmonston stated that the Albertson's
engineers believed that two spaces would be lost with the proposed rerouting
and indicated that the two spaces may be based. on extremely good driving.
He noted that, once the driveway is constructed, Albertson's will send out a
driver in order to determine exactly where the red curb needs to be painted.
Regarding an earlier comment that Albertson's receives a waiver to drive
their trucks on Iris Avenue, Mr. Edmonston clarified that no waiver exists
but that, pursuant to the California Vehicle Code, the trucks were allowed to
violate the City's truck weight limit because Iris Avenue was the only route
they could physically make. He believed that Iris Avenue is already posted
to prohibit 3 -ton trucks.
In response to Council Member Debay's question; regarding excessive speeds
on Iris Avenue, Mr. Edmonston indicated that equipment can be placed on
Iris to measure speeds and that the Police Department may be willing to also
place their trailer on the street.
Shirley Conger, 3033 Bayside Drive, stated that her home has been impacted
by large trucks, not necessarily Albertson's trucks, traveling down Iris,
turning onto Bayside, and passing her house. She added that this happens
at odd hours and expressed delight that the trucks will be rerouted.
Regarding speeding vehicles, she believed that the average driver on Bayside
travels at 45 mph and hoped that the prohibition of trucks on Iris Avenue
• will be enforced. She indicated that she attended the Corona del Mar design
charette and that there were many good ideas for improving the
environment.
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is Dr. Richard Nichols, 519 Iris Avenue, stated that Albertson's knows when
trucks will be coming so they can utilize the pax-king spaces accordingly. He
believed that the trucks could turn left onto Coast Highway if someone
stopped traffic and that this would take less time than having the trucks
U -turn at Marguerite. Dr. Nichols reviewed the history of the parking
problems, believing that these are cases in which restaurants are allowed to
move into a commercial location when they have special requirements that
are not being met. He stated that Albertson's has been a pretty good
neighbor but that they did not have a use permit since it was old.
Regarding Council Member Ridgeway's suggestion to back -up the trucks
onto Jasmine, Ken Wirgler, 207 Via Koron and owner of 415 Jasmine, stated
that the maneuver is difficult since there is a telephone pole in the parking
lot. He expressed concern relative to the delivery hours, noting that
deliveries occur at hours like 5 a.m. and 11 p.m. and that it is not just
Albertson's trucks that are delivering to this area at odd hours. He
encouraged Council to continue the noise curfew for the trash compactors
and trash pickup. He added that the other businesses in the center also
produce a lot of garbage.
Council Member Glover stated that she would like to see all the trucks
ingress and egress from Coast Highway because this would be most
important to the residents.
• Pauline Wall, 413 Iris Avenue, indicated that she brought this to the City's
attention years ago and that Albertson's trucks have never changed their
ways. She stated that the drivers do not contribute anything to the City and
that she has checked with the Police Department who indicated that the
drivers have never received a ticket. She suggested that Albertson's hire
other drivers if they do not comply and requested that Council consider the
neighborhood's quality of life.
Charles Masters, business property owner, expressed concern relative to
requiring employees to park offsite, believing that they also have the right to
use public streets. Further, he does not believe that Albertson's should be
required to buy parking permits for parking areas that are supposed to be
for the public. He stated that Albertson's should not lose customer parking
spaces just to accommodate a few people. Mr. Masters expressed the opinion
that directing employers to require their employees to park offsite is unfair
to the business community.
Margaret Mary Butt, P.O. Box 522, Corona del Mar, stated that everyone
has to use common sense when planning businesses and recited "God Sense"
by John Oxenham. She believed that Albertson's serves the community and
that it has been a wonderful market. She stated that noise is unavoidable
when there is a market and that traffic will always be a problem. Ms. Butt
indicated that there would be a better world if everyone was kind and helped
each other and informed Council of an incident that involved the Manager of
Albertson's and a resident.
• Susan Dean, 403 Iris Avenue, stated that Planning Commission Chairman
Selich suggested legally establishing an officially designated shopping center
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that encompasses all six businesses on the two adjacent parcels. She
believed that Albertson's is legally non - conforming because it does not own
or have any property that has one single parking space on it since it is built
to the lot line. Further, Albertson's was permitted to lower their ratio when
the floor area space ratio was discussed because they were allowed to use the
square footage for all the parcels that are adjacent to them.
Ms. Dean noted that this was initiated because the Coastal Commission
wanted to keep beach access available to the public since it is being limited
by employee all-day parking. She stated that three of the businesses have a
condition in their use permit that requires employees to park onsite.
Ms. Dean believed that, even if Council implements the merger ordinance to
combine the two commonly owned parcels, the offsite parking agreement will
only address the "tip of the iceberg" and many other issues will still need to
be resolved before any expansion can be approved. Ms. Dean added that her
children are afraid to play out front because of the trucks that drive by and
the speeding vehicles.
Fran Rahimi, 412'/2 Iris Avenue, stated that everyone agrees that this is a
great project but wanted to know who to turn to if the agreement is not being
abided by, noting that the trucks were waiting in front of the store at 6 a.m.
Ms. Rahimi expressed concern relative to the trash enclosure, stating that
there is a health issue since there are many rats in that area.
• Mr. Steinman stated that Albertson's has tried to alleviate as many of the
problems as possible but that, if this cannot be worked out, they will just do
a regular remodel. Mayor O'Neil stated that the community understands
that Albertson's is trying to make it better but there is an incompatibility of
land uses in Corona del Mar and other parts of the City, and that Council
has to try to balance the interests.
Mr. Steinman stated that the 8 a.m. to 8 p.m. curfew would be very difficult
for them to follow, noting that they agreed to a 7 a.m. to 8 p.m. curfew at the
Planning Commission meeting when they had no restrictions prior to that.
He reiterated that they intend to have a chain across the docks before 7 a.m.
and after 8 p.m.
In response to Mayor O'Neil's question regarding Ms. Dean's merger
suggestion, City Attorney Burnham stated that he believes the City can
initiate merger proceedings without the owner's consent, but noted that he is
unsure if the merger would address any of the residents' concerns.
There being no further testimony, Mayor O'Neil closed the public hearing.
Motion by Mayor O'Neil to sustain the action of the Planning Commission
with the addition of the condition that prior to the issuance of building
permits the applicant shall obtain the appropriate permits to widen the
driveway closest to First Avenue from the parking lot onto Iris Avenue. The
work on the driveway shall be completed under an encroachment permit
• issued by the Public Works Department. Upon completion of the driveway
widening, delivery trucks shall be required to exit the shopping center from
this driveway and turn right onto Iris Avenue. Delivery trucks shall be
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June 14, 1999
• prohibited from driving south down Iris Avenue and Jasmine Avenue beyond
First Avenue.
In response to Council Member Noyes' questions, Mr. Steinman stated that no
company will pay its driver to sit around at 5 a.m. because it would ruin the
whole routing schedule. Additionally, vendors will learn to reroute their
trucks once enforcement begins.
Without objection, the motion carried by acclamation.
Mayor O'Neil expressed the opinion that it would be appropriate to look into
the merger issue. He also requested that City Manager Bludau check with
the Police Department to see if there is anything that can be done to enforce
the speeding law and the truck tonnage limitation. Ms. Temple stated that
the Planning Commission Chairman has requested a parcel merger report
for their review.
Council Member Debay requested that a noise curfew be considered for areas
in which residents abut commercial sites. Ms. 'Temple indicated that there
are regulations (Community Noise Ordinance, NBMC Section10.26) relating
to the flow of noise for all types of land uses. Council Member Debay stated
that she will meet with Ms. Temple to discuss this further.
Mayor O'Neil recessed the Council meeting at 9:30 p.m.
• Mayor O'Neil reconvened the Council meeting at 9:45 p.m.
30. TRAFFIC PHASING ORDINANCE - PROPOSED AMENDMENTS TO
CHAPTER 15.40 OF THE NBMC, TRAFFIC PHASING ORDINANCE,
TO PROVIDE THAT CIRCULATION SYSTEM IMPROVEMENTS
REQUIRED FOR A DEVELOPMENT ARE ROUGHLY
PROPORTIONAL TO THAT PROJECT'S IMPACT, TO MODIFY THE
DEFINITION OF FEASIBLE IMPROVEMENT, TO ESTABLISH A
THRESHOLD FOR TRAFFIC IMPACTS THAT REQUIRE
CIRCULATION SYSTEM IMPROVEMENTS AND TO CHANGE THE
NUMBER OF AFFIRMATIVE VOTES NEEDED TO OVERRIDE THE
PROVISIONS OF THE ORDINANCE TO 5 /7THS OF THE MEMBERS
ELIGIBLE TO VOTE.
Mayor O'Neil opened the public hearing.
City Attorney Burnham utilized four flow charts to illustrate the differences
between the existing and proposed Traffic Phasing Ordinance (TPO). He
stated that the flow charts use a proposed project that is scheduled for
completion in five years, noting that there is a separate provision for projects
that will be completed in a timeframe that is longer than five years.
Mr. Burnham indicated that the first thing to determine under the existing
TPO is whether the project generates more than 300 average daily trips
• (ADT). If the project does not, then the project satisfies the TPO. However,
if the project does, the next thing to determine is whether the project trips
contribute more than 1% of the trips at any leg of any critical intersection
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Traffic
Phasing
Ordinance
(53/26)
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City Council Minutes
June 14, 1999 INDEX
• during any 2%-hour peak period. He added that the flow charts indicate
both the existing TPO provisions as well as the administrative guidelines
which have been developed by staff and Council over the years to administer
provisions of the TPO. He believed that they are very consistent with both
the spirit and intent of the ordinance.
Mr. Burnham stated that the project is exempt from the TPO if the project
does not contribute at least 1% of the trips at any leg of any critical
intersection during that 2'% -hour peak period. If it does, then intersection
capacity utilization calculations are prepared by the Traffic Engineer or the
consultant. If the calculations establish that the project would cause or
make worse an unsatisfactory level of traffic service at any critical
intersection, then there is another set of calculations to conduct. He clarified
that "to cause and make worse an unsatisfactory level of service" means that
the project will cause an intersection to become worse in Level of Service D
(LOS D) or will cause an existing intersection that is operating worse in
LOS D to become worse still.
Mr. Burnham stated that the City then determines if the project proponent
is willing to mitigate if the project would cause or make worse an
unsatisfactory level of traffic service at any intersection. And if so, the City
analyzes the project to determine if findings for approval can be supported
by substantial evidence in the record. Council or the Planning Commission,
as appropriate, then determines if findings for approval can be made and the
. project can go forward. If not, the project proponent has the option of
requesting that Council or the Planning Commission, on review or appeal,
override the TPO by a 6 /7'h vote. He stated that the project proponent has
the option, if an override is not obtained, to downsize the project. The
project is then evaluated at the point where it is determined that it
.contributes sufficient traffic at any leg of an intersection to warrant further
analysis.
In response to Council Member Glover's questions, Mr. Burnham explained
that the Public Works Department, through Traffic Engineer Edmonston
and a traffic consultant, would determine what improvements are necessary
to mitigate the impacts of the project. He stated that a cost estimate is
typically prepared once the improvements are identified and then Council or
the Planning Commission determines whether the project warrants a
requirement that the project proponent fund the entire cost of the
improvement or whether the project is too large for that. There are certain
findings that could still allow the project to move forward.
Mr. Burnham clarified that the Planning Commission takes final action,
subject to the right of Council, to call up the project or the right of someone
to appeal it.
Mr. Burnham stated that the second flow chart demonstrates the changes
that are being proposed to the ordinance. He noted that the analysis of
whether the project generates more than 300 ADT is still conducted.
• However, the proposed TPO contemplates the deletion of the next test of
whether the project contributes 1% or more to the trips at any leg of any
intersection. He reported that one now goes directly to the Intersection
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June 14, 1999
INDEX
Capacity Utilization (ICU) calculation and determines if the project trips do
not increase the ICU by at least .005 at any intersection. If this is the case,
the project complies with the TPO. If not, then it is determined whether the
project causes or makes worse an unsatisfactory level of traffic service and
whether the project proponent is willing to mitigate. Mr. Burnham stated
that one goes back to findings for approval and, if there are no facts or
insufficient facts to support findings for approval, the project proponent can
request an override. The Planning Commission is recommending that
Council reduce the vote for an override from 6/7th to 5/7th. Mr. Burnham
reported that those are the only changes proposed to the overall process in
the TPO.
Council Member Adams pointed out that there is another flow chart to follow
that goes into detail on the findings for approval and provides the overall
schematic of the ordinance: He clarified that the pink diamonds indicate a
change; the pink diamonds with dashed borders indicate an eliminated
process; and the solid bordered pink diamonds indicate the changes being
proposed in the broad scope of the ordinance.
Mr. Burnham noted the "Findings for Approval" box on the charts and
indicated that more detailed flow charts have been developed to show what
occurs in the existing and proposed TPO.
Mr. Burnham stated that the first determination, under "Findings for
• Approval", is whether there are improvements that can be made at all
impacted critical intersections that will cause the project not to make worse
an unsatisfactory level of traffic service. If this is true and those
improvements can be made or are expected to be made within one year after
the project is occupied, then Council or the Planning Commission can
approve the project. If there are feasible improvements that are not going to
be completed within a one year period after occupancy, Council or the
Planning Commission can still approve the project if it is found that the cost
of the improvement is clearly disproportionate to the size of the project; that
the improvement will be complete within four years; that the project
proponent pays a fee; and that the improvement and the fee substantially
outweigh the impacts at any critical intersection that cannot be improved. If
there are no feasible improvements that can be constructed at all impacted
critical intersections, the project can still be approved if the project
proponent makes all feasible improvements; if the project proponent makes
improvements at other intersections in which the benefits outweigh the
impact at the impacted but unimproved intersections; and if there is an
overall improvement in traffic congestion. Mr. Burnham stated that, if those
findings for approval cannot be made, the project proponent has the option of
requesting an override from Council or the Planning Commission. If the
override is denied, then there is no project or the project can be downsized
and the process starts over.
Mr. Burnham stated that the fourth flow chart reflects the "Findings of
Approval" under the proposed TPO. He reported that the first diamond is
• divided and made more specific so that, if the project trips do not cause or
make worse an unsatisfactory level of service, Council or the Planning
Commission can approve it or, as before, the project can be approved if the
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June 14, 1999
• project trips will impact a critical intersection but there is an improvement
that can be made and that improvement will be made within one year of
occupancy. He indicated that, if the improvements at the intersection will
not be made within one year after occupancy, the project can be approved if
the cost of the improvement is disproportionate to the size of the project; if
the improvement will be complete in four years; and if the project proponent
pays a fee to more closely reflect the benefits to the City of making the
improvement, the contribution of the project proponent, and the trips of the
project to that intersection. Mr. Burnham believed that the proposed fee
provision would require a greater fee from a project proponent and makes
sure that the fee is proportionate to the benefits that the intersection
improvement conferred, as well as proportionate to the impact of the project
trips at the intersection.
Mr. Burnham reported that the proposed deletions include the last finding
which requires that the benefit substantially outweigh the impacts. This
was done because of the concern that the terminology is inconsistent with
the recent court decisions that require rough proportionality between project
impacts and conditions.
Mr. Burnham stated that there is a way to improve a project which does
impact a critical intersection where there is no feasible improvement since
the project proponent is required to make all feasible improvements. He
reported that the balancing provisions have been modified to require that
• the project proponent either make improvements at intersections in the
vicinity of the critical intersection that cannot be improved; that the project
proponent make improvements at intersections that are projected to function
at or above .80; or that the project proponent make contributions to a plan
that would mitigate the potential increased commuter traffic in a residential
neighborhood near or adjacent to the critical intersection that cannot be
feasibly improved.
Mayor O'Neil stated that the reason Council is considering modifying the
TPO is because of the rough proportionality test and the nexus requirements
under the case laws. He reiterated that the fees could be used to make
traffic improvements that are not related to the impacts of the project but
questioned how this would reach the nexus. Mr. Burnham pointed out that
the current TPO has no nexus and allows the project proponent to make
intersection improvements distant from the project where there was no
impact by project trips. He stated that, during the TPO working group,
technical advisory committee, and the Planning Commission process, the
focus was on what the project proponent would need to do in order to obtain
approval. He noted that one of the criteria was that the project proponent
make improvements to intersections in the vicinity of the impacted
intersection and that the project proponent make improvements at
intersections that are projected to function at or above .80. He stated that,
in both cases, there is a statement that these would be intersections which
are impacted by project trips or contribute to a plan that is related to the
congestion at an intersection which is impacted by the project. Mr. Burnham
• believed that, through the revised balancing provisions, a clear nexus
between project impacts and project conditions is established.
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• In response to Council Member Glover's questions, Mr. Burnham stated that
the existing TPO leaves the decision of which of the three mitigation choices
is appropriate to Council or the Planning Commission, and that there is no
provision in the proposed TPO that establishes a priority for the mitigation
measures. He indicated that the proposed TPO does retain the three
options, but modifies the test on two of the options. He clarified that the
following process will remain the same in the existing and proposed TPO:
the traffic study will be prepared under the direction of the Traffic Engineer
and then it will be presented to the Planning Commission for review and
approval, if approval is warranted.
Regarding Section 15.40.030.A.l.c.ii., Council Member Ridgeway expressed
the opinion that that choices b and c are fairly attenuated from having a
nexus and that this will create a fatal flaw in the draft. He stated that the
draft talks about impacted critical intersections but questioned if it should be
using impacted intersections that have a nexus to the project. He asked if a
standard should be established for impacted intersections by a project.
Mr. Burnham stated that the TPO does not have a current standard.
Council Member Ridgeway emphasized that the current TPO is flawed
because of the proportionality and because of nexus, adding that the City is
just creating a new TPO that starts out on a flawed nexus. Mr. Burnham
clarified that the threshold of significance at any critical intersection that
the Planning Commission is proposing is .005 ICU. He expressed the
• opinion that there is a nexus in Section 15.40.030.A.l.c.ii.a because it talks
about improvements that mitigate the impacts of project trips; and
subsection c has sufficient nexus because it talks about contributions to a
plan that is designed to mitigate the impact of project trips in an adjacent
residential area. However, subsection b should be revised to read,
"Improvements that mitigate the impacts of project trips and improve
critical intersections operating, or projected to operate..." Noting that the
first portion of the presentation talked about ICU analysis by project because
those are directly related and are short term in nature, Council Member
Ridgeway took issue, stating that the circulation system is a long term view
at the improvements that are needed. He stated. that subsection c is talking
about the circulation system as a whole instead of ICU analysis directly
related to the project. He believed that the proposed TPO addresses
proportionality but does not address nexus. Council Member Ridgeway
suggested using "impacted intersections by the project" rather than using
"critical intersections" that may be across town from the project.
Mr. Burnham stated that the legal reasons for proposing the amendments to
the TPO are because of the common requirement that project conditions be
roughly proportional to project impacts. As part of this, there is a
requirement that project conditions bear a relationship or nexus to project
impact. Mr. Burnham stated that another legal issue is because of a concern
that he and private counsel have of the potential for the TPO to single out
and treat unfairly a particular property owner. He noted that the TPO has a
tendency to do this because people who develop projects earlier than later
• are less likely to be impacted by the TPO. However, given the fact that there
may be certain critical intersections that Council is unwilling or unprepared
to make the improvements to and to the extent that Council is unwilling to
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• make those changes to the intersection could result in the denial of a project
when applying the TPO, there was a concern that the property owner may be
singled out unfairly on two separate grounds. He indicated that, when that
happens, courts tend to look very carefully at what cities have done and tried
to correct any perceived inequity. Mr. Burnham reported that the Planning
Commission recommended some changes to the 'TPO that deletes the concept
of exempt intersection and substitutes a definition of feasible improvements
that he hopes expands the category as broadly as possible without capturing
those improvements which Council would prefer not to see made or intends
not to make within a given timeframe.
Council Member Ridgeway took issue, believing that the City is moving
circular with the concepts. He expressed the opinion that the second issue is
one of inverse condemnation. He stated that inverse condemnation has not
been fully adjudicated by the Supreme Court and that the Supreme Court
has basically said that there is no inverse condemnation if a city leaves the
property owner a viable beneficial use for the property. He suggested
writing in some type of adjustment into the TPO that can be looked at in the
future if there is a fear of this. He noted that the court has supported that
concept in unpublished opinions.
Mr. Burnham believed it was not correct to say that the Supreme Court
determined that there is no inverse condemnation so long as the property
owner has some viable economic use of the property. He noted that the
• Cavanaugh case was recently decided in the Supreme Court and that they
did not find a taking but described 13 factors that could go into the
determination of whether there was a taking in this particular case. This
included a reasonable investment - backed expectation of the property owner.
Further, the Supreme Court said that the 13 criteria for evaluating his case
was not exclusive. He expressed concern that there is the potential for an
inverse condemnation litigation whenever there is one of the 13 criteria and
a perceived inequity. He emphasized that the proposed TPO is trying to
establish a framework that will minimize the potential for that to fall out of
the ordinary traffic study and traffic analysis in the approval process, rather
than put it in something similar to the suggested provision that basically
means that the City will not take anyone's property through the application
of the ordinance. Mr. Burnham stated that this is an option available to
Council but requires a fairly detailed and complicated legal analysis every
time Council is presented with a traffic study.
Council Member Ridgeway disagreed that, under the current situation, if
Council chooses not to make an improvement, Council has inversely
condemned someone's property. Additionally, every parcel has some type of
zoning and has a reasonable expectation under that zoning. He stated that
the proposed change creates a situation for someone to come in for a more
aggressive approved project. He believed that no one's property can be
condemned at this present time under the City's current General Plan. He
also noted that the Cavanaugh case was remanded. Mr. Burnham stated
that he had Phil Conn, Laguna Beach City Attorney, generally review the
• TPO as it applied to a property similar to the Airdell property. He believed
that, although Mr. Conn felt he could not guarantee an adverse decision,
Mr. Conn indicated to him and the Planning Commission that there was
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• some risk of receiving an adverse ruling if the person simply applied for a
project that would be permitted under existing zoning and General Plan
designation.
In response to Council Member Glover's statement, Mr. Burnham stated that
he believed Council Member Ridgeway's point was that the TPO only applies
to projects that generate 300 ADT, therefore, there are some projects that
any property owner could construct that would. not be subject to the TPO.
Regarding the Ardell property, he stated that his recollection is that, under
current General Plan and zoning designations, the property is authorized for
about 120,000 or 130,000 square feet of commercial or office use. He stated
that the TPO applies to any project of at least 25,000 or 30,000 square feet.
He noted that this would be a significant reduction if a property owner
downsized their project to avoid the application of the TPO.
Regarding the consistencies between the standards of the TPO and the
General Plan, Mr. Burnham stated that the TPO has some statements that
indicate it is designed to deal with near term impacts of projects. He
indicated that Council Member Ridgeway correctly noted that one of the
conditions of the subsection discusses contributions to a plan to mitigate
potentially long term traffic. Mr. Burnham stated that another legal issue
that has been raised before is whether LOS D standards are consistent with
the City's circulation element which projects /predicts ICUs in excess of
LOS D, especially in the airport area.
• Council Member Ridgeway stated that, if there was an intersection where
the City did not make improvements but then chose to make them, the City
is limited by land area and geometries as to what improvements can be
placed there. He noted that adequate improvements cannot be made for
Ardell to build a 120,000 square foot building which, under Mr. Burnham's
analysis, makes this inverse condemnation. Council Member Ridgeway
disagreed that this is inverse condemnation.
Traffic Engineer Edmonston stated that he has worked with the TPO during
its entire 21 years of existence and processed over 150 projects through it.
He reported that, in reviewing these projects, many inconsistencies and gaps
were identified in both the existing ordinance and the administrative
procedures, and that staff has worked hard to eliminate those problems.
Mr. Edmonston stated that, even though the inconsistencies were identified,
he does not believe they have ever been used to a developer's advantage
since they are generally identified early in the process. He reported that the
following are the 5 key areas that the proposed TPO addresses: 1) combining
the ordinance and the administrative procedures into one document;
2) updating the definitions; 3) creating a clear basis for trip generation rates;
4) using the City's model to get trip distribution methodology for calculating
ICUs; and 5) explaining how approval expires once a project is approved.
Mr. Edmonston stated that a comparison of how the existing and proposed
ordinances treat projects was conducted using the Corona del Mar Plaza
• project at the Newport Center area as the larger project, and the Burger
King at Jamboree and Birch in the airport area as the smaller project. He
reported that, under both ordinances, the same intersections were identified
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as being impacted and that the same types of mitigation measures would
have also been identified. Regarding the Burger King project, he noted that
the impact at one intersection was .006 due to a revision in the project to
eliminate one car; otherwise, it would have been less than .005 and they
would not have had to mitigate the intersection. He believed that, using
these examples, no changes occurred although there might have been if the
proponent was given a clearer way to identify what needs to be done in order
to not be in the mitigation category.
In response to Council Member Ridgeway's questions, Mr. Edmonston stated
that he believed that the new TPO has addressed all the old inconsistencies;
however, new inconsistencies may arise as the TPO is applied.
Council Member Adams stated that he is a consulting traffic engineer; has
been putting this ordinance into practice for over 18 years; and has put
traffic studies together for the City. He noted that, as a Planning
Commissioner, he reviewed traffic studies and the implementation of the
ordinance from the City's perspective. Council Member Adams stated that
the issue of changing the TPO first surfaced when he was on the Planning
Commission about 3 years ago. He indicated that there was a proposal to
change the policy that would increase entitlement in the airport area and
other areas in the City. He characterized it as loosening -up the TPO to
accommodate increased development and that he was concerned with this at
the time. A TPO task force was formed from members of the Planning
• Commission, Council, Building Industry Association (BIA), Newport Harbor
Chamber of Commerce, and Stop Polluting Our Newport (SPON) and met for
over 18 months. He believed that the ideas of changing the policy fell out
and the focus shifted to changing the ordinance to simply address the legal
issues that Mr. Burnham outlined. He stated that he is convinced that
Council is at the point where only a minimal change is being proposed to
only bolster it to legal challenge. Council Member Adams stated that the
whole point of the TPO is to make sure that the roadway system keeps pace
with development, noting that the existing ordinance says that on face value.
He indicated that a previous flow chart had a "Downsize" diamond which he
believed may have, to a certain extent, affected development in the City.
Council Member Adams believed that the various individuals who sat on the
TPO committee made a significant impact on the drafting of the TPO and
that this has been a collaborative effort.
Council Member Adams stated that, since last week's Planning Commission
meeting, there have been a couple of minor suggested text changes. He
suggested adding a fee calculation example into the administrative
procedures to demonstrate how a project proponent funds construction
improvements (Subsection 15.40.30.A.l.d.iii). He stated that Subsection
15.40.30.A.l.d.iii needs refinement, believing that it is trying to say that the
improvement betters the intersection capacity by some percentage amount if
an improvement is made to an intersection. Regarding Subsection
15.40.30.B.3.a, Council Member Adams suggested that the exemption clause
be limited to the City's sphere of influence, and read, "The Project would be
• constructed on property within the sphere of influence in the City of
Newport Beach and is within the jurisdiction of the County ..." He suggested
that Subsection 15.40.030.c.ii be amended to read, "...in any 24 month
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period, generate more than 300 average daily trips above the baseline for the
Project" Regarding Subsection 15.40.030.c.iii, he suggested striking out all
of the text after the word "annexation." Council Member Adams suggested
amending Subsection 15.40.040.0 (Feasible Improvement) to read, "That is
contemplated by, or not inconsistent with ... and that is identified as an
improvement to be construction or designed in whole or in part in the Five
Year Capital Improvement Plan (CIP)." In Subsection 15.40.075.B, he
recommended that "short term impacts" be changed to "near term impacts,"
and that "or a development agreement approved pursuant to Chapter 15.45"
be stricken from the text.
Council Member Glover reported that there are six proposed exempt
intersections and that four of those are in her district. She pointed out that,
if there is no mitigation on these non - feasible intersections, there is high
potential for impacts on the residential areas. She emphasized that she has
no intention of supporting the TPO unless the impacts are properly
addressed.
Council Member Ridgeway reiterated that the document is deficient. He
stated that the issue is with impacted intersections but that there is no
definition for this in the ordinance. He also stated that the ordinance does
not incorporate the CIP by reference. He added that the feasible
improvement must become fixed within the CIP and cannot be removed from
it without the provisions of an override if a project is going to be approved
• with a finding that there was a feasible improvement. He believed that this
entire document avoids this.
Council Member Ridgeway stated that he would approve a project if a project
proponent can mitigate the impacts and believed that the City can write a
TPO that is much. simpler and directly addresses the issue of impacted
intersections at or near a project.
Allan Beek, 2007 Highland, stated that everyone has worked very hard on
this and that he agrees with Council Member Ridgeway, Council Member
Glover, and Council Member Adams. He expressed the opinion that all this
work is being done but no one has figured out the basic objective. He stated
that there are varying viewpoints and that the City has a conflict it has not
yet resolved. Once resolved, he believed that a. TPO can be written to fix
whatever it is the City is trying to do. Mr. Beek reiterated that the genesis
for the TPO was the desire to have more development, but that this proposal
more than doubles the threshold requirement; reduces the override
requirements; provides that intersections can be exempted by a Council
majority vote; and declares some improvements to be infeasible. Mr. Beek
indicated that the actual goal was to achieve proportionality but this has not
occurred. Additionally, the fees have been reduced for those who were
paying too much, but nothing has been done to those who have been paying
too little. He indicated that he, Council Member Adams, and Mr. Burnham
discussed how this could be done during the recess. Mr. Beek stated that he
has a list of other things that he believes is wrong with the TPO and left a
• copy with the City Clerk. He expressed concern that the threshold between
Level of Service D and Level of Service E was originally 90 percent, but has
now been moved to 90.5 %. This gives developers a big break since, as the
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intersections get more loaded, this gives them a year of grace in which they
do not have to mitigate their impact. He believed that Council Member
Ridgeway's point about not meeting nexus is a valid point and stated that
there is a lot more work needed in order to make this a reasonable and
feasible amendment to the TPO.
In response to Council Member Debay's question, Ms. Temple indicated that
she does not know of any other city in Orange County that has a separate
ordinance related to traffic study procedures. She reported that most
communities handle traffic analysis and impact mitigation through CEQA
review and the Environmental Quality Act. Council Member Debay stated
that she believed that the basic reason the TPO was created in 1979 was
because there was a "no growth" majority Council at the time. She agreed
that trying to fix this has been a real problem. She commended those who
want to maintain a quality of life, but noted that developers build larger
projects around the airport area that also impacts the City. She stated that,
if the TPO does not get fixed in a reasonable manner, she could see herself
suggesting that the City not have a TPO.
Mayor O'Neil stated that he chaired the TPO committee a couple of years
ago and that good meetings were conducted which he hoped would
eventually lead to an ordinance that everyone could live with. He noted that
he even asked why the City had the ordinance during the first meeting of the
TPO committee. He believed that there still are legal problems with the
• ordinance that could expose the City to liability even though it served a good
purpose over the last 20 -25 years and controlled development. Mayor O'Neil
asked how much development is really left for the City and what control the
City has over development around the surrounding cities. He assured that
Council was not trying to somehow circumvent, the purpose of the TPO to
provide a blank check for development to run rampant in the City; that there
is not that much more development that can be done; and that Council is not
paid by the developers to make decisions that would provide more profit to
them. He asked if there was a work product that can come out of this effort
and if the City needs a TPO since there is still CEQA and the Fair Share
Ordinance. Mayor O'Neil stated that, if a sense of consensus cannot be
reached on both sides of the issue, he may make a motion to repeal the TPO.
Philip Bettencourt, 9 Executive Circle, Irvine, representing the Building
Industry Association and Newport Harbor Chamber of Commerce, stated
that he and some of his colleagues were on the TPO committee. He indicated
that he came to the meeting to generally, but reluctantly, embrace the
proposed TPO so that there was something to follow in terms of reform,
believing that the process has only served those in the "no growth" camp
because nothing has been fixed. He likened fixing the TPO to unraveling a
tangled fishing reel, but that the committee started the process in good faith
because they thought it was important and the ordinance has a certain
confidence level within the environmental activists. Mr. Bettencourt stated
that the original agenda given to Council by his group and the EDC does not
have an exempt intersection list; a separate level. of service standards for the
• airport area business district; a pooling of intersections or intersection
averaging when calculating litigation; or a relief for small businesses. He
believed that fixing the ordinance is the right thing to do and pointed out
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that Council can also use the General Plan and adopt specific plans, enforce
floor area ratios, adopt height restrictions and parking requirements, have
environmental reviews, have development agreement bargaining, and utilize
the fair share fee formula. He believed that there has not been a shred of
evidence to ever demonstrate that the fair share fee formula is not providing
for adequate and reasonable mitigation. He expressed the opinion that the
City cannot wrap up every land use decision and every hypothetical decision
in this instrument.
H. Ross Miller, 1627 Bay Cliff Circle, stated that he is the Advocacy
Chairman for the Friends of the Oasis Senior Center and the Secretary of
the Community Associations Alliance. He questioned the notification
process, expressing the opinion that the notice in the newspaper is
insufficient notification for the community. He stated that the senior
community is concerned about the uncontrolled intersections, noting that the
six intersections are major routes to Hoag Hospital. He indicated that some
residents rush their loved ones to the hospital in their own vehicles and do
not have lights or sirens to deal with the traffic. He believed that Council
needs testimony from the Fire and Marine Chief, Police Chief, private
ambulance operators, and Hoag Hospital officials before making any
decisions, noting that there is no clause in the `.CPO that states that "public
safety and public welfare will not be impacted."
Mr. Miller expressed the opinion that the Planning Commission completely
• ignored the scheduled build out of Newport Center. He noted that some of
those buildings are high rises and that this means there will be thousands of
daily trips through the City from people who do not live in the City. He
believed that the TPO can be left as it is, but suggested changing the
financial arrangements so that the developers pay a proportional amount;
and exempting the new office buildings at Fashion Island from the proposed
TPO and require them meet the requirements of the present TPO. He
expressed the opinion that the City is opening themselves up to action by
CalTrans who has the objective to move traffic.
Council Member Debay noted that the intersection at Superior and Pacific
Coast Highway has posed a problem for the area and is an intersection that
leads to Hoag Hospital. She indicated that a reason it has become a problem
is because people have stopped building the 19th Street bridge that goes
across the Santa Ana River. She expressed the opinion that this artificial
constraint is being placed on Newport Beach is mafair.
Fire and Marine Chief Riley reported that the current TPO and the proposed
TPO do not have a significant impact on the way they provide services. He
stated that Newport Beach is one of the few cities in Orange County that has
a traffic engineering system that embraces the issue of traffic preemption or
signal preemption. He explained that the system has key, strategically
located intersections throughout the corridor that lead up to the hospitals
where fire and paramedic vehicles can take complete control of the
intersection and stop all traffic through signal control regardless of traffic
• pattern. He stated that, historically, there are areas with additional traffic
demands, but they have appropriate traffic patterns to get to the hospitals.
Additionally, Chief Riley stated that they have red lights and sirens that
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• they can use but only utilize under conditions of extreme emergencies.
Regarding heart attack victims, he indicated that all the transport units are
paramedic equipped and have advanced life support capability. He reported
that they would not use the lights and sirens unless the condition warrants
getting to the emergency room immediately.
Council Member Adams stated that the signal preemption device works by
using strobe lights on the vehicle to assure that there will be a green signal
for the emergency vehicle well in advance of the vehicle approaching the
intersection.
Police Captain Paul Henisey stated that he serves as the Captain in charge
of the Patrol/Traffic Division. After being in the City for 23 years, he
expressed the opinion that traffic has improved, recalling that PCH has been
jammed beyond Jamboree to go across the Bay Bridge. Further, he believed
that the significant traffic on the peninsula has also been mitigated.
Captain Henisey believed that the City probably enjoys the best response
time (approximately 3 minutes) of all Police Departments in Orange County
due to the way the Newport Beach Police Department deploys personnel. He
explained the deployment process and indicated that this allows them to
keep their response times low no matter what type of traffic problem may
occur. Captain Henisey concurred with Chief Riley in that there would not
be significant changes in their response times when using the current or
• proposed TPO.
Council Member Glover stated that Council is opposed to the Safe and
Healthy Initiative that South County cities have brought before the County
which requests that a Countywide vote occur if a city were to have a jail,
landfill, or airport. She indicated that she was told that an initiative would
be started, depending on whether the City adopts a TPO tonight, that would
put projects that need General Plan amendments to a vote of the people and
would no longer be voted on by Council. She stated that Council is working
as hard as possible to protect the citizens and ensure that the City does not
have a new airport in the area, noting that there will be a new airport
somewhere in the County. She indicated that there will probably be a new
airport at John Wayne Airport if the Safe and Healthy Initiative goes
through. Council Member Glover stated that it :looks like the City will soon
have two initiatives to fight, believing that the other initiative is similar to
the Safe and Healthy Initiative. She proposed that staff examine what the
CEQA process entails and also agreed that it may be time to go to this
process since the TPO has served its purpose.
Dr. Richard Nichols, 519 Iris, expressed the opinion that Corona del Mar
may not be impacted now but will be impacted soon because there are
three intersections at the .80 threshold. Further, he believed that Old
Corona del Mar has been serving as the "sewer" for City traffic. He stated
that the streets were not built that needed to be built and that the streets
that were put in do not run traffic on them, believing that it does not make
• sense that his community should suffer. Dr. Nichols stated that the big issue
that was discussed during the charette was slowing traffic down in Corona
del Mar and stated that it was even suggested that a tunnel be built
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underneath Coast Highway if the City wants to keep traffic flowing through
Corona del Mar. He pointed out that the TPO states that building should
stop if certain road capacities are exceeded. He indicated that one of the
architects believed that Corona del Mar is one of the most unique
communities in all the south coast area and has higher land values than
anywhere else in Newport Beach.
Lula Halfacre, 1907 Tahuna Terrace, Chairman of the Newport Harbor
Chamber of Commerce, expressed respect for all the time and studies that
have gone into the TPO process. She stated that she supports the TPO,
believing that this to be the right thing for the community as a whole.
Gary DiSano, 1840 Leeward Lane, stated that he is representing the
Economic Development Committee (EDC) who has had an interest in
revising the TPO longer than probably any other group in the City (1996).
He indicated that the EDC recommended an earlier proposal to revise the
General Plan, Circulation Element, and the TPO, but because of questions
by the Planning Commission, the proposal was tabled and the scope of the
TPO revision project was narrowed. Mr. DiSano reported that the EDC
continues to support two features of the original proposal: changing the
override vote from 6 /7th to 5 /7th; and adding that Level of Service D in the
airport area be exceeded. Additionally, the EDC recommends that the
ordinance be amended so that traffic studies are required for projects that
generate 500 ADT, rather than 300 ADT; rough proportionality provisions
• are added for fairness and to limit the threat of lawsuits from developers; the
rounding problem is corrected so that mitigation is not being required for
miniscule impacts especially when those impacts are calculated using a lot of
assumptions and data as much as 2% years old; the TPO provides a way for
property owners especially in commercial areas where improvement is
needed, like .in Mariner's Mile, to redevelop their properties in a way that
brings economic benefit to the City without having to build intersections that
are needed for two hours a day and spoil the beauty of Newport Beach.
Mr. DiSano stated that the EDC urges Council to approve the TPO revisions
and expressed support of the City's efforts at long range comprehensive
planning. He hoped that a more extensive TPO revision can be considered
after the planning is done.
Christine Iger, 601 Lido Park Drive, representing the Building Industry
Association, stated that she has been tracking the TPO because it is unique
in Orange County where she deals with mitigation measures professionally.
She stated that the BIA supports the Planning Commission's endorsed,
reformed package.
Dr. Jan Vandersloot, 2221 East Wh Street, expressed concern that the
revised TPO will increase traffic congestion in the Riverside /Coast Highway
area, as well as at the other impacted intersections. He believed that this is
a complex issue that needs more analysis through an environmental impact
report. Further, that Council needs to analyze what impacts these revisions
will have on the residential communities of Newport Heights and Cliff
• Haven. He suggested that Council consider resolving the traffic vs.
development problem by revising the General Plan since it has not been
revised since 1988. Dr. Vandersloot stated that he is very concerned with
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the recommendations to reduce the super - majority vote and change the
definition of feasible improvement, expressing the opinion that those types of
changes significantly weaken the TPO. He disagreed with Police Captain
Henisey's statement that traffic has gotten better in the City but stated that,
if this is true, it may be because the City has a TPO. Dr. Vandersloot highly
recommended not repealing the TPO but stated that, if changes need to be
made, they should be minor. He asked that Council consider how much
traffic the residents will be enduring in the future.
Tim Strater, 3801 Inlet Isle, expressed the opinion that the TPO has been
flawed from the beginning because it is based on a false assumption that
Newport Beach can solve the regional traffic problems through some type of
complicated, technical analysis. He stated that traffic is a regional issue and
that no other city has a TPO. Mr. Strater indicated that he is a lawyer and
that his law professor and any court judge would laugh the City out of court
if they were given an ordinance that needed diagrams to be understood. He
expressed the opinion that he does not believe any judge would enforce this
ordinance because he would have trouble following the matrix. He stated
that it may be time to disband the TPO and use all the tools mentioned by
Mr. Bettencourt. He stated that he does not have a problem driving on
Coast Highway now that the improvements have been made, but believed
that the computer would still indicate that the City has a problem on Coast
Highway. He emphasized that people like to come to the City because it is
next to the ocean.
• Council Member Glover stated that the ocean limits how people can get
across town and that traffic ends up being forced onto Coast Highway, which
is her district. Mr. Strater stated that he has never seen an ordinance like
this, noting that he has developed in 20 or so cities up the west coast.
Regarding the CEQA process, he reported that it requires that the worst
case scenario be analyzed for its environmental impacts and then discussions
held about ways to mitigate those impacts since there is more than one way
to mitigate a traffic problem. He stated that he likes the proposed TPO
because it goes from the single mitigation factor to giving a menu of options.
Council Member Debay asked Council Member Adams if the City could
depend on the CEQA process to maintain the City's quality of life. Council
Member Adams stated that the City already uses the CEQA process but that
the City's focus has been almost "tunnel visioned' through the TPO and may
have eclipsed the fact that there is an overriding Environmental Quality Act
that the City needs to conform to. Further, the City has been using the TPO
analysis process as part of CEQA documentation while most cities follow a
traffic impact analysis procedure that is prescribed by the transportation
and engineering literature that is straightforward and similar to what the
City does in the TPO. Council Member Adams stated that the City has an
ordinance that has removed a lot of decision making and clearly identifies
the procedures for establishing mitigation. He stated that, on the upside,
the TPO has left the City with one of the best street systems of any city in
Orange County. Council Member Adams expressed the opinion that the
• change to the TPO will not have a significant change on the way Council
approves traffic impacts on the City. If it did, he indicated that he would not
be supportive of it since he opposed previous notions where the TPO did
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open things up.
Council Member Debay reiterated her two choices of either supporting staff
recommendation, including Council Member Adams' changes, or considering
repealing the TPO completely.
Motion by Council Member Debay to introduce the Ordinance, as
amended, and pass to second reading on June 28, 1999.
Council Member Adams indicated that the City received a fax tonight from
Worden, Williams, Richmond, Brechtel & Gibbs, attorney for SPON, that
raises some issues relating to the environmental impact of the proposed
TPO. He stated that he has not had time to read the document and that the
City Attorney has only briefly examined it. He believed that this is
something that the City Attorney needs to address and give his opinion, and
that he would need this before he could consider voting on this issue. He
reiterated that the ordinance has some language issues that still need to be
worked on and that Mr. Beek still has a list of concerns, adding that some of
these things can be accommodated while still retaining the essence of what
Council is trying to do. Council Member Adams suggested looking at this
again in two weeks.
In response to Mayor O'Neil's question, Mr. Burnham confirmed that an
environmental review will need to be conducted in order to repeal the
ordinance.
Phil Arst stated that everyone is really talking about the future shape of
Newport Beach and that the TPO crutches an out of balance General Plan.
Noting that it was said that no other city has a TPO in the County, he stated
that this is because Newport Beach is like no other city nor does he want it
to be, and applauded Council for their work in preserving the City. Mr. Arst
expressed the opinion that the proposed provisions could permit future
Councils to change the City into a high rise, congested metropolitan area and
supports Mr. Beek's list because it may prevent this from happening. He
indicated that there are some loopholes that he would be happy to discuss
with Council Member Adams. He distributed a map that depicts future
congestion and pointed out that over 113 of the City's intersections will be
unsatisfactorily congested.
Mr. Arst reported that the existing TPO requires all projects to mitigate
their impacts concurrent with the development of the project, but that the
proposed TPO does not require mitigation concurrency. Additionally, the
gridlock permitted by the TPO omits summer traffic analysis. He stated that
a careful analysis is needed before the City permits gridlock in the winter
also, as shown in the staff prediction. Mr. Arst expressed the opinion that
this does not need to be made into something so complex since everyone
agrees that what the City needs is a General Plan revision. He stated that,
for the good of the City and for future generations, he requests that Council
vote against this confusing and ill- conceived proposal and adopt one of the
two stop gap measures. He indicated that the other stop gap measure would
be to leave the current TPO enforced, as Council Member Ridgeway
suggested, and to address the few issues on an override basis.
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to continue the public
hearing to June 28, 1999.
Without objection, the motion carried by acclamation.
CURRENT BUSINESS
31 REQUEST FOR CO- SPONSORSHIP BY THE BALBOA
PERFORMING ARTS THEATRE FOUNDATION.
Motion by Council Member Debay to approve City co- sponsorship of the
Run for the Arts and waive City costs, not to exceed $5,000.
Without objection, the motion carried by acclamation.
MOTION FOR RECONSIDERATION — None.
ADJOURNMENT — 12:05 a.m. on June 15, 1999.
The agenda for the Regular Meeting was posted on June 9, 1999, at
3:30 p.m. on the City Hall Bulletin Board located outside of the City of
Newport Beach Administration Building. The supplemental agenda for the
• Regular Meeting was posted on June 11, 1999, at 1:00 p.m. on the City Hall
Bulletin Board located outside of the City of Newport Beach
Administration Building.
City Clerk
•
Recording Secretary
Volume 52 - Page 547
Balboa
Performing
Arts Theatre
Foundation
(62)