HomeMy WebLinkAbout11/25/2003 - Regular MeetingCITY OF NEWPORT BEACH
City Council Minutes
Regular Meeting
November 25, 2003 - 7:00 p.m.
- Cancelled
INDEX
CLOSED SESSION - 6:00 p.m
A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING
B. ROLL CALL
Present: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Absent: None
C. CLOSED SESSION REPORT - None
D. PLEDGE OF ALLEGIANCE - Council Member Adams
E. INVOCATION - The Reverend Praveen Bunyan, St. James Episcopal
Church
F. PRESENTATIONS
Taste of Newport Grant Presentations. Richard Luehrs, Newport Beach
Chamber of Commerce, stated that the Chamber of Commerce puts on the Taste
of Newport each September to recognize the restaurant community in Newport
Beach. Mr. Luehrs introduced Cara Stephens, Public Affairs Coordinator, and
together they presented checks from the Taste of Newport proceeds to several
community groups.
Proclamation for Jim Jennings. Mayor Bromberg presented a proclamation
to Jim Jennings for all of his years of caring and sharing with the folks on Balboa
Island. Mr. Jennings thanked the City for the recognition.
G. NOTICE TO THE PUBLIC
H. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL
MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR
DISCUSSION, ACTION OR REPORT (NON- DISCUSSION ITEM):
• Council Member Heffernan requested and received clarification from
Chief Building Inspector Hook that the City requires a minimum Class C
fire rating for shingles, except in areas that interface with wildlife.
• Council Member Heffernan asked if the City is addressing exterior wood
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City of Newport Beach
Regular Meeting
November 25, 2003
burning fireplaces that are right at the lot line. City Manager Bludau
indicated that staff is looking into this and will come back to the City
Council.
Council Member Heffernan requested an update regarding the
telecommunications ordinance. City Manager Bludau reported that it
will be agendized for the December 9, 2003, City Council meeting.
I. CONSENT CALENDAR
READING OF MINUTESIORDINANCES AND RESOLUTIONS
1. Item removed from the Consent Calendar at the request of a
member of the audience.
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.
CONTRACTS AND AGREEMENTS
3. NEWPORT BOULEVARD/BALBOA BOULEVARD — 26TH STREET
TO 16TH STREET — COMPLETION AND ACCEPTANCE OF
CONTRACT (C- 3373). 1) Accept the work; 2) authorize the City Clerk
to file a Notice of Completion; 3) authorize the City Clerk to release the
Labor and Materials bond 35 days after the Notice of Completion has
been recorded in accordance with applicable portions of the Civil Code;
4) release the Faithful Performance bond 1. year after Council acceptance;
and 5) authorize a contract for $77,430 with Asbury Environmental
Services (AES) to install the 58 Ultra Urban Filters that were deleted
from this project through Change Order No. 4,
4. FIRE STATION NO. 3 PAVEMENT RECONSTRUCTION —
COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3605).
1) Accept the work; 2) authorize the City Clerk to file a Notice of
Completion; 3) authorize the City Clerk to release the Labor and
Materials bond 35 days after the Notice of Completion has been recorded
in accordance with applicable portions of the Civil Code; and 4) release
the Faithful Performance bond 1 year after Council acceptance.
5. OCEAN FRONT BEACH ACCESS WALKWAYS — COMPLETION
AND ACCEPTANCE OF CONTRACT (C- 3378). 1.) Accept the work;
2) authorize the City Clerk to file a Notice of Completion; 3) authorize the
City Clerk to release the Labor and Materials bond 35 days after the
Notice of Completion has been recorded in accordance with applicable
portions of the Civil Code; and 4) release the Faithful Performance bond 1
year after Council acceptance.
6. HARBOR VIEW NATURE PARK — MISCELLANEOUS SLOPE
REPAIRS — COMPLETION AND ACCEPTANCE OF CONTRACT
(C- 3567). 1) Accept the work; 2) authorize the City Clerk to file a Notice
of Completion; 3) authorize the City Clerk to release the Labor and
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INDEX
C -3373 / C -3670
Newport
Boulevard/
Balboa
Boulevard
(38)
C -3605
Fire Station
No. 3 Pavement
Reconstruction
(38)
C -3378
Ocean Front
Beach Access
Walkways
(38)
C -3567
Harbor View
Nature Park —
Slope Repairs
City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
Materials bond 35 days after the Notice of Completion has been recorded (38)
in accordance with applicable portions of the Civil Code; and 4) release
the Faithful Performance bond 1 year after Council acceptance.
7. Item removed from the Consent Calendar at the request of a
member of audience.
8. Item removed from the Consent Calendar at the request of
Council Member Rosansky.
9. Item removed from the Consent Calendar at the request of
Council Member Heffernan.
MISCELLANEOUS ACTIONS
10. Item removed from the Consent Calendar at the request of
Council Member Rosansky.
Motion by Mavor Pro Tern Ridgeway to approve the Consent Calendar.
except for those items removed (1, 7, 8, 9 and 10).
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
J. ITEMS REMOVED FROM THE CONSENT CALENDAR
1. MINUTES OF THE REGULAR MEETING OF NOVEMBER 12,
2003.
Jim Hildreth referenced page 489 of the November 12, 2003, minutes and
disagreed with the City accepting the minutes of October 28, 2003, noting
that a correction he requested wasn't made. He further noted comments
made by Mayor Bromberg that were not included in the minutes of
November 12, 2003. Mr. Hildreth also referenced pages 491 and 503, and
stated that his comments were incorrectly recorded.
Motion by Mayor Pro Tern Ridgeway to waive reading of subject
minutes, approve as written and order filed.
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
i
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City of Newport Beach
Regular Meeting
November 25, 2003
7. REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND
ASSESSMENT DISTRICT NO. 87 (BIG BALBOA ISLAND).
Jim Hildreth stated that the report doesn't include information regarding
aesthetics and safety, as was done for the report on Assessment District
No. 78. He expressed his hope that the residents of Big Balboa Island
wouldn't suffer the same consequences as a resident on Little Balboa
Island did as a result of the removal of the streetlights. He stated that if
a resident doesn't grant an easement, safety should still be a
requirement. Mr. Hildreth added that financial aide should be offered if
a resident cannot afford to have the work done. He stated that the
residents of Big Balboa Island should be made aware of all that is
involved with the undergrounding of utilities.
Motion by Mayor Pro Tern Ridaewav to 1) establish Assessment
District No. 87, Account No. 7401- C5200742; 2) approve a budget
amendment (BA -015) in the amount of $287,212 from Assessment
District Fund Balance, Account No. 400 -3605 to Account No. 7401 -
05200742; 3) authorize the Mayor to execute a Professional Services
Agreement with Harris & Associates in an amount not to exceed $98,000
for assessment engineering and district coordination services;
4) authorize the Mayor to execute a Professional Services Agreement
with Bush & Associates, Inc. in an amount not to exceed 848,100 for
aerial survey; and 5) authorize staff to proceed with design of
underground utilities plans by remitting $51,112 to Southern California
Edison and $90,000 to SBC.
Council Member Webb pointed out that 61 °% of the residents on Big
Balboa Island signed a petition requesting the formation of the
assessment district.
Mayor Bromberg congratulated those involved with moving the process
forward so quickly.
The motion carried by the following roll call vote
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
8. BACK BAY SCIENCE CENTER AGREEMENT.
Council Member Rosansky asked for clarification on the City's financial
contribution to the project. City Attorney Burnham stated that be is
recommending two changes to the agreement. The first change is that
the City's obligation to front the University of California at Irvine's (UCI)
share of the site improvement costs should come out of the Upper Bay
Restoration Fund, and not the General Fund. Council Member Rosansky
confirmed that the $100,000 advance to UCI is included in the $311,578
that is being budgeted. Additionally, it was recommended to remove the
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INDEX
Underground
Assessment
District 87/
BA -015/
Big Balboa
Island
(40/89/38)
C- 3481(E)
Back Bay
Science Center
(38)
City of Newport Beach
Regular Meeting
November 25, 2003
requirement that the Phase I construction project include the
Department of Fish & Game (DFG) administrative offices. Council
Member Rosansky confirmed, and requested that it be made clearer in
the agreement, that the wetland demonstration area takes priority over
the DFG storage facility. Additionally, per Council Member Rosansky's
question, City Attorney Burnham stated that two additional agreements
will be needed for the use and occupancy of the property, and the ongoing
maintenance and operation. City Attorney Burnham stated that there
have been discussions regarding the agreements, but that the City will
not commit to spending the $311,578 until those agreements have been
executed.
At the request of Mayor Pro Tem Ridgeway, City Attorney Burnham
explained that the funding for the project includes $1.23 million from the
County, $1.2 million through the DFG and $300,000 from the American
Trader Oil Spill Fund that the City has already spent on design and
planning.
Per Council Member Rosansky's question, City Attorney Burnham stated
that funding is short by approximately $118,000 for Phase I, and $1.5
million for the entire project.
Doug Cordo£f thanked the City for keeping the Back Bay area so
beautiful and stated that it is appreciated by the surrounding
communities.
Motion by Mayor Pro Tern Ridgeway to authorize the City Manager
to approve a Cooperative Agreement between the City of Newport Beach,
the County of Orange and the Department of Fish and Game pertaining
to the Back Bay Science Center, amended to incorporate the City
Attorney's two recommendations and Council Member Rosansky's
request to add the priority for the wetlands.
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
9. PROFESSIONAL SERVICES AGREEMENT WITH
ENVIRONMENTAL ENGINEERING & CONTRACTING, INC.
(EEC) FOR FATS, OIL & GREASE (FOG) CHARACTERIZATION.
Council Member Heffernan asked what the City is expecting to learn
from the study and what action might be taken as a result of it. Assistant
City Manager Kiff stated that the City is under special waste discharge
requirements issued by the Regional Water Quality Control Board, and
that a part of the plan includes characterizing exactly where Newport
Beach's sources of grease come from. In response to Council Member
Heffernan s question, Assistant City Manager Kiff explained further that
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INDEX
I C -3672
BA -016
Fats, Oil &
Grease (FOG)
Characterization
(38/40)
City of Newport Beach
Regular Meeting
November 25, 2003
it will deal with what's in the collection system and not what's in the
treatment system. Assistant City Manager Kiff stated that the study
could result in an ordinance requiring additional grease control measures
throughout the community.
Mayor Pro Tem Ridgeway added that the study will provide information
on the more than 300 restaurants in the community and that currently,
adequate information on the restaurants is not available and annual
inspections are not being conducted. The study will help with both.
Jim Hildreth stated that businesses should be allowed to thrive in the
City and not be reprimanded for what they're doing.
Doug Cordoff stated that the problem with grease and the restaurants is
a serious one. He thanked the City for addressing the problem.
Motion by Mayor Pro Tern Ridgeway to 1) approve Professional
Services Agreement with EEC for the contract price of $47,000 and
authorize the Mayor and the City Clerk to execute the agreement; and
2) approve a budget amendment (BA -016) appropriating $47,000 from the
unappropriated balance of the Wastewater Enterprise Fund to Account
No. 7531- C5600691,
Mayor Pro Tom Ridgeway stated that most of the restaurants in the City
are very cooperative in their efforts to lower grease content.
Council Member Nichols asked how effective grease traps are. Assistant
City Manager Kiff stated that they are exceptionally effective, and that
grease interceptors are the most effective device when they are
maintained properly.
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
10. DRAFT EIR FOR PACIFIC CITY PROJECT, PACIFIC COAST
HIGHWAY, HUNTINGTON BEACH.
Council Member Rosansky stated that he's glad that the City is taking a
position on the Environmental Impact Report (EIR) because there will be
significant impacts on Newport Beach and Coast Highway from the
project being contemplated by the City of Huntington Beach.
Motion by Mayor Bromberg to approve and authorize the Mayor to
send comments to the City of Huntington Beach, as modified to include
an acknowledgement that the project was reviewed by the Environmental
Quality Affairs Committee (EQAC).
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INDEX
Pacific City
Project
(68)
City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
Mayor Pro Tern Ridgeway noted that the letter requests that the City of
Huntington Beach also analyze the project as if the 19th Street Bridge
were not being built, particularly since they oppose the bridge.
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
K. PUBLIC COMMENTS
Jayne Jones, Equestrian Coalition of Orange County Board and Back Bay
Equestrians, stated that offensive signs have been placed in the Santa
Ana Heights area regarding horse manure on the trails. She stated that
studies have shown that horse manure does not adversely affect water
quality. Ms. Jones stated that when the City of Newport Beach annexed
the Santa Ana Heights area, the residents were told that nothing would
change in their neighborhood. She objected to the signs and the fines
that might be imposed, and offered to work with the City on the issue.
Sheila Ferguson, Back Bay Equestrians, also expressed her concern for
the regulations and fines associated with the signs. She asked that the
City reconsider the manure issue. She stated that horseback riding is
one of the last non - regulated activities that children can participate in.
She also cited the issue of safely picking up the manure along Irvine
Boulevard. Ms. Ferguson also offered to work with the City on the issue.
At the request of Mayor Bromberg, Assistant City Manager Kif£
explained that the Newport Beach Municipal Code prohibits animal feces
from remaining on public property and it was decided that signage in the
newly- annexed Santa Ana Heights area would be beneficial in informing
the public.
Mayor Pro Tern Ridgeway also noted that the City is regulated by the
National Pollution Discharge Elimination System (NPDES).
Council Member Webb asked if the County of Orange has regulations in
place regarding the same issue. Assistant City Manager Kif£ stated that
he would look into it.
Council Member Adams requested that the item be agendized for a future
Study Session.
Marianne Orr, representing residents of the Master Circle in Costa Mesa,
stated that the residents are concerned about the possible annexation of
the Santa Ana Country Club and their area not being included. She
asked for a contact in the City to work with.
Jim Hildreth stated that his issue involves access rights to the Grand
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City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
Canal. He also expressed his concern for the vaults that are ;put in as a
part of underground utility projects, and stated that the City has to
realize that contaminants have been introduced into the Grand Canal.
He added that the Edison Company is actually dumping the
contaminants that are in the vaults into the waterways.
• Jim Walker, Executive Director of Stop Tobacco Abuse of Minors Pronto
(STAMP), asked that the City Council consider making the beaches in the
City smoke free. He cited the dangers of tobacco smoke and noted that
other cities have enacted similar ordinances.
• Dolores Otting stated that the playground equipment at San Miguel Park
was removed in September and hasn't been replaced. She expressed her
concern for the project taking so long. Additionally, Ms. Otting stated the
Mayor incorrectly calls some items on the agenda public hearings, when
they are not.
• Linda Nicholes, Earth Resources, asked that the City Council consider
making the beaches in the City smoke free. She stated that the beaches
are an asset to the City and noted that cigarette butts are not
biodegradable.
• Jane Brown, Southern California Edison, assured everyone that Edison is
not dumping pollutants into the water system.
• Doug Cordoff stated that the issue of cigarettes on the beach is about
population density versus quality of life. He stated that a smoking ban
on the beaches is inevitable, but that enforcement of cigarette butts being
discarded on the beach is difficult. He suggested that a ban be introduced
gradually and that the property rights of the public be considered.
• Nonie Melane, Youth Program Coordinator Earth Resources Foundation,
stated that a smoking ban on piers and beaches is coming, and listed the
cities in California that have smoking bans in parks and recreational
areas. She asked that the City Council agendize the item for
consideration. She stated that there were 165 participants for a recent
beach clean -up at the Newport Beach Pier. She listed the groups
involved, and noted that many of them were youth groups.
Ellie Urbenbeck, President of the Newport Harbor High School Earth
Resources Foundation Club, Stacy Desbro, Vice President, and Amy
Thomas, club member, introduced themselves. Ms. Urbenbeck stated
that their club participated in the clean -up at the Newport Pier on
November 15, 2003. She stated that approximately 10,000 cigarette butts
were collected, that something needs to be done and that the club
supports a smoking ban on the beaches and piers. Ms. Desbro stated that
the cigarette butts were collected in a two -hour period and the pollution
of the beaches needs to be stopped. Ms. Thomas expressed her surprise
that the beach clean -up involved so many cigarette butts.
Laura Dietz invited everyone to the December 14, 2003, Corona del Mar
Christmas Walk. She stated that it's a marvelous opportunity for the
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City of Newport Beach
Regular Meeting
November 25, 2003
community to enjoy family activities, food and camaraderie.
L. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES
Status report - Ad Hoc General Plan Update Committee (GPUC). Council
Member Adams announced that the next GPUC meeting is scheduled for
December 8, 2003.
Status report - Local Coastal Program Certification Committee. Mayor
Pro Tem Ridgeway reported that Chapters 2 and 3 of the Coastal Land Use Plan
have been drafted. The committee will be meeting soon to review the drafts, with
the intent to submit them to the California Coastal Commission as soon as
possible. Mayor Pro Tern Ridgeway additionally noted that public comments will
also be sought at future Planning Commission and City Council meetings.
Status report - Newport Coast Advisory Committee (NCAC). Council
Member Heffernan announced that the NCAC is scheduled to meet on
December 1, 2003, at 5:30 p.m. He suggested that those with comments
regarding the community center attend the meeting.
Status report - Mariners Joint Use Library Ad Hoc Steering Committee.
Council Member Webb stated that the committee has not met since the prior City
Council meeting and is not expected to meet until again until January or
February, 2004.
Status report - Other Committee Activities. Council Member Rosansky
reported that he recently attended a meeting of the Santa Ana River Flood
Control District board. He stated that they are moving forward with the
dredging and clearing of the channel.
Mayor Bromberg stated that he was honored when he was appointed to the
Governor's Water Policy Advisory Task Force and that the goal of the task force
is to make a recommendation to the Governor within six months on a water
policy. He stated that the task force has already met several times and has
drafted an action plan. Mayor Bromberg stated that he is utilizing local
expertise to assist with his involvement on the task force.
M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT
11. PLANNING COMMISSION AGENDA FOR NOVEMBER 20, 2003.
Planning Director Temple stated that the first item considered by the
Planning Commission at their meeting of November 20, 2003, involved a
call for review of a decision of the Modifications Committee to approve an
amended sign program for Conexant. She stated that the Planning
Commission reversed the decision of the Modifications Committee and
denied the additional sign. Planning Director Temple stated that the
applicant has appealed the decision of the Planning Commission and the
item will come before the City Council at their meeting of December 9,
2003.
Planning Director Temple stated that the Planning Commission also
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11013:0
Planning
Commission
(68)
City of Newport Beach
Regular Meeting
November 25, 2003
approved a use permit for the Mariposa Restaurant, and a general plan
amendment, local coastal program amendment and code amendment
were recommended for approval for the Balboa Theater property.
Planning Director Temple stated that this item would also be agendized
for the City Council meeting of December 9, 2003. Lastly, the Planning
Commission recommended for approval the general plan and code
amendments for the Area 7 annexation. The item will be agendized for
the City Council meeting of January 13, 2004.
Council Member Heffernan asked that additional information be
provided regarding the Balboa Theater item. Planning Director Temple
explained that the general plan amendment and the local coastal
program amendment would change the intensity allocation for the
property from a floor area ratio to a theater seat count. The code
amendment would provide additional flexibility for the height of the
building. She confirmed that the proposal from the Balboa Theater
Foundation would increase the height of the building.
Council Member Nichols asked if the amendments would also apply to
the other landmark buildings in the City. Planning Director Temple
confirmed that the code amendment would, but that the general plan and
local coastal program amendments would only apply to the Balboa
Theater.
N. PUBLIC HEARING
12. CODE AMENDMENT NO. 2003 -003 — AMENDMENT TO CHAPTER
20.93 TO REVISE THE MODIFICATION PERMIT'S STANDARDS
OF REVIEW (PA 2003 -080).
Senior Planner Alford stated that the code amendment was initiated by
the City Council in June 2003, in response to a Study Session in April on
the modification permit process. Three major concerns with the
modification permit process were identified. The first concern dealt with
the apparent deviation from the original intent of the modification permit
process, which was to provide relief from the strict and literal
interpretations of the zoning regulations. Instead, the modification
permit process is being used to accommodate individual project designs.
The second concern was that the modification permit process was slowly
reshaping the character of neighborhoods. Lastly, there was a concern
that insufficient attention was being given to maintaining proper public
access.
Senior Planner Alford stated that the code amendment is intended to
address these concerns by revising the required findings in order to
approve a modification permit. Currently, the only finding required is
that the granting of the modification permit would not be detrimental to
persons or property in the surrounding area. He stated that the
recommended code amendment would require three findings. The first
finding states that the granting of the application is necessary due to the
physical constraints of the property and that the strict application of the
zoning code would result in hardships that are inconsistent with the
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INDEX
Code
Amendment
No. 2003 -003
Modification
Permit's
Standards of
Review
(68)
City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
purpose and intent of the zoning code. The second finding states that the
requested modification must be compatible with existing development in
the neighborhood. The third finding states that the granting of an
application must not adversely affect the health or safety of persons
residing or working in the neighborhood, and will not be detrimental to
the general welfare or injurious to property or improvements in the
neighborhood.
In response to Mayor Bromberg's question, Senior Planner Alford stated
that the Planning Commission approved the recommendation to amend
the code by a vote of 4 to 3.
Council Member Heffernan noted that in the staff report, it was reported
that if the new findings had been in place, nearly half of prior
modifications would not have been granted. He expressed his
understanding that the Modifications Committee was established to
handle properties with unique characteristics or unusual situations.
Senior Planner Alford stated that the survey of the recent modifications
isn't meant to imply that the applications would have been denied, only
that sufficient information wasn't presented to make the findings. He
further noted that in addition to providing additional direction to staff,
the proposed amendment also provides additional direction to applicants.
He stated that it should also provide for greater consistency in the
process over time. Council Member Heffernan asked why it was
determined that the process needed to be reviewed. Senior Planner
Alford stated that there has been an increase in the number of
applications and that the nature of them has changed over time, from
finding relief from the zoning code to trying to accommodate particular
designs. He added that the current finding is broad and subject to
interpretation by a staff that changes over time. Additional direction
through the findings would provide for greater consistency. Council
Member Heffernan asked if the need to make the amendment is also due
to residents wanting to build larger homes. Senior Planner Alford stated
that it is a reflection of the increase in property values, resulting in more
ownership turnovers and improvements.
Mayor Bromberg asked how many modifications are reviewed per month.
Senior Planner Alford stated that 26 applications were reviewed from
July, 2003, to October, 2003. Mayor Bromberg expressed his concern
regarding the recent modifications that wouldn't have been granted if the
new procedure had been in place. He suggested that the item be
continued for several months while a parallel review of modifications is
conducted.
Motion by Mayor Bromberg to continue the item for several months to
conduct parallel reviews using the current method versus the proposed
method.
Mayor Pro Tern Ridgeway asked if modification requests are received for
new homes. Senior Planner Alford responded in the affirmative, but
wasn't aware of how many of the 26 permits in the survey were for new
construction. Mayor Pro Tem Ridgeway stated that possibly the parallel
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City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
review could include information on how many requests are for new
construction and how many are for modifications to existing homes. He
stated that the proposed findings might be best applied to new
construction.
Council Member Nichols stated that the first proposed finding seems to
apply to properties that were divided or altered, and that these property
owners appear to be receiving special privileges. He stated. that new
owners of such properties should be required to abide by the current
regulations. Senior Planner Alford that the intent of the modification
permit process is to grant relief for circumstances that were unforeseen
in developing the code.
Council Member Webb stated that the proposed findings appear to
address the concerns that were expressed by the City Council. He noted
that too many of the modification requests are for encroachments into
setbacks. He stated that if these encroachments are continually allowed,
it changes the character of a neighborhood and could have an effect on
the health and safety in the area. Council Member Webb stated that the
proposed findings provide better guidance to staff on the regulations and
felt that they should be approved at the current meeting.
Mayor Bromberg stated that by continuing the item, actual projects can
be looked at. He agreed that changes to the process are needed, but felt
:hat a comparison of the current and proposed findings should be
performed.
Council Member Adams asked if four months would be adequate.
Mayor Bromberg agreed that four months would provide an adequate
comparison. City Manager Bludau stated that the application form may
need to be revised, so that additional information from the applicant can
be obtained.
Council Member Heffernan felt that modification permits have been
granted on a random basis, or have being granted because similar
requests in the neighborhood were granted in the past. He stated that
the proposed findings help to insure that permits are issued only for
unique circumstances. He asked how the comparison period would work.
Mayor Bromberg stated that the existing process would be followed,
while a comparison to a process using the proposed findings is made.
Senior Planner Alford added that it would provide the opportunity to
compare the processes by requiring the applicant to provide the
additional information needed for the proposed findings, without actually
applying the proposed findings.
Council Member Adams stated that by using a revised application during
the parallel review period, enough information would be obtained to
make a true comparison of the two processes.
Amended motion by Mayor Bromberg to continue the item for four
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City of Newport Beacb
Regular Meeting
November 25, 2003
INDEX
months to conduct parallel reviews using the current method versus the
proposed method.
Council Member Heffernan asked if the City could require the applicant
to provide information that may not be necessary in reviewing their
modification request. City Attorney Burnham stated that staff could look
at the modification applications for the past six months and obtain the
information needed to make a comparison between the two processes. He
added that the Planning Director has the authority to request additional
information from the applicants under the existing code. Referring to
modifications for existing structures versus new structures, City Attorney
Burnham noted that the City Council might also want to consider what is
an appropriate topic or subject for a modifications permit.
Mayor Bromberg opened the public hearing.
Robert Walchli stated that modifications are currently being allowed that
are detrimental to surrounding properties. He cited some examples, and
stated that these modifications also affect the property values of the
surrounding properties, as well as all of the properties in the City.
Mr. Walchh asked that the City Council move slowly on changing the
process and allow time to receive public input.
Mayor Bromberg stated that some of the examples provided by
Mr. Walchli, such as the height issues, are subject to the City's process
for approving variances and do not go through the modification permit
process.
Laura Dietz agreed with Mr. Walchli that the impact of changing the
modification process will be felt for a long time. She noted that some
neighborhoods are covered by homeowner association guidelines, and
asked how many of the 26 properties reviewed in the staff report were
under homeowner association guidelines. In regard to the additional
information that may be asked of the applicants during the comparison
period, Ms. Dietz suggested that possibly the information should be
obtained voluntarily from the applicants. She also agreed that the issue
should be looked at more closely and that public input should be sought.
Jim Hildreth stated that he is glad to see the City taking public safety
into consideration. He expressed his concern for the increase in the
notification radius and the additional signage that might be required. He
agreed that hardship should be a consideration when granting
modification permits. Mr. Hildreth stated that the current process seems
to be working fine and doesn't need changing.
Hearing no further testimony, Mayor Bromberg closed the public hearing.
The amended motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Mayor Bromberg
Noes: Webb, Nichols
Abstain: None
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City of Newport Beach
Regular Meeting
November 25, 2003
A
Absent:
None
13. 3450 VIA OPORTO (PA2003 -213) - GENERAL. PLAN
AMENDMENT NO. 2003 -010, LOCAL COASTAL PROGRAM
AMENDMENT NO. 2003 -004, AND CODE AMENDMENT NO. 2003-
008 - REQUEST TO AMEND THE GENERAL PLAN AND LOCAL
COASTAL PROGRAM LAND USE DESIGNATIONS FROM
GOVERNMENTAL, EDUCATIONAL AND INSTITUTIONAL
FACILITIES TO RETAIL & SERVICE COMMERCIAL AND TO
CHANGE THE ZONING DISTRICT CLASSIFICATION FROM
GEIF TO RSC.
Planning Director Temple stated that the item is agendized to correct a
mapping error that occurred in 1988 with the adoption of the current
general plan. She stated that the property was inadvertently designated
as governmental, educational and institutional, but should have
remained as commercial.
Mayor Bromberg opened the public hearing.
Hearing no testimony, Mayor Bromberg closed the public hearing.
Motion by Mayor Pro Tem Ridgeway to approve the request by
adopting Resolution No. 2003 -62; and by introducing Ordinance
No. 2003 -17 and passing to second reading on December 9, 2003.
The motion carried by the following roll call vote:
Ayes: Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg
Noes: None
Abstain: None
Absent: Heffernan
14. UNSCHEDULED VACANCY ON THE PARKS, BEACHES &
RECREATION COMMISSION.
Mayor Pro Tem Ridgeway stated that the Ad Hoc Appointments
Committee met and is recommending that Tim Brown and Michael Wade
be nominated by the City Council.
Motion by Mayor Pro Tem Ridgeway to confirm the nomination of
Tim Brown and Michael Wade to fill the unscheduled vacancy as a result
of the appointment of Steven Rosansky to the City Council.
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Volume 56 - Page 527
INDEX
Res 2003-62
Ord 2003 -17
GPA 2003 -010
3450 Via Oporto
(45)
Parks, Beaches
& Recreation
Commission
Unscheduled
Vacancy
(24)
City of Newport Beach
Regular Meeting
November 25, 2003
Absent: None
Mayor Bromberg recessed the meeting at 9:15 p.m. and reconvened the
meeting at 9:30 p.m., with all council members present.
15. ADOPTION OF AN ORDINANCE ESTABLISHING A PROCEDURE
FOR GRANTING A "SPECIAL CIRCUMSTANCE VARIANCE" FOR
PROJECTS THAT INVOLVE BUILDING PERMITS THAT WERE
ISSUED BASED ON FALSE SURVEY DATA SUBMITTED BY
ANDREW GOETZ.
Mayor Pro Tern Ridgeway announced that he would be recusing himself
from voting on the item because he hired Mr. Goetz for work on his home.
Mayor Pro Tern Ridgeway left the Council Chambers.
Council Member Heffernan asked why Mayor Pro Tem Ridgeway's recusal
is necessary. City Attorney Burnham stated that there may not be a legal
conflict, but Mayor Pro Tern Ridgeway feels that there could be the
appearance of a conflict.
City Attorney Burnham stated that at the City Council meeting of
November 12, 2003, the proposed ordinance was discussed. The ordinance
establishes a two -prong test for determining if a special circumstance
variance should be issued. City Attorney Burnham noted that his
supplemental report recommends an option for handling situations for
structures that exceed 5% of the permitted height, but can be redesigned to
fit within the requirement.
Council Member Heffernan confirmed that the ordinance would only apply
to permits issued prior to the discovery of the falsified surveys.
Additionally, City Attorney Burnham stated that eligibility to apply for a
special circumstance variance would also be based on the City having no
evidence that the property owner had knowledge of a falsification. Council
Member Heffernan asked if the property owner would be required to testify
under penalty of perjury their knowledge of any falsification. City Attorney
Burnham stated that such a requirement is not included in the ordinance,
but that it could be added.
Mayor Bromberg stated that the Mayor already has the authority to swear
speakers in who testify at City Council meetings.
Council Member Adams confirmed with City Attorney Burnham that the
ordinance would need to be re- introduced if the option suggested in the
supplemental report were to be included. City Attorney Burnham added
that he didn't think there would be a significant impact on the property
owners if the ordinance were modified and re- introduced at the current
meeting.
Council Member Heffernan asked what the authority of the Planning
Director is in releasing stop work orders as if the ordinance had been
adopted, prior to it being adopted. City Attorney Burnham stated that staff
has the authority to issue and release stop work orders, at the discretion of
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II►`t"M
Ord 2003 -16
Special
Circumstance
Variance
(26)
City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
the Building Director. He added that, in this instance, this has been done
for the convenience of the property owners and that they have been notified
that they are proceeding at their own risk.
Planning Director Temple stated that following the introduction of the
ordinance, staff developed an application form and a process for those
projects under construction and affected by the issue. She stated that six
projects were identified as qualifying for the special circumstance variance,
with five of these being under the 5% de mimmus provision. It was
determined that the sixth property could be altered to make it more closely
conforming to the height limit. The issued permits are conditional on the
ordinance being adopted.
Council Member Heffernan asked if there could be other errors, in addition
to the falsified surveys, that have not been identified. Planning Director
Temple stated that a review of the plans indicates that the surveys appear
to be only enabling a higher building to be built, and that the buildings
otherwise conform.
Council Member Nichols stated that other deviations in the properties are
possible.
Ellen Counts expressed concern for the construction at 308 Carnation and
the garage that encroaches into the alley, affecting access by emergency
and trash pick up vehicles. She explained the construction taking place at
the site, and noted that the home being built is four stories. She stated that
it shouldn't be permitted, and listed the problems with having a four -story
home in the neighborhood.
Mayor Bromberg stated that 308 Carnation is not a property listed in the
report from the Planning Director. Ms. Counts stated that it is a Goet2
property. City Attorney Burnham stated that 308 Carnation has other
issues associated with it. Planning Director Temple stated that the stop
work order for the property has not been released. She stated that staff is
still evaluating the project's compliance with the zoning code.
Don Rothman referred to a memorandum he sent to the Planning
Department on August 16, 2003, regarding construction at 505 J Street.
Mr. Rothman stated that he asked if the construction conformed to code
and if not, was a variance obtained by the builder. He stated that he
submitted another memorandum to the Building Department on
September 5, 2003, expressing his continued concern and the lack of
response from his first memorandum. Mr. Rothman stated that he was
informed by the City that the construction conforms to code, and that later
he received notice about the hearing for the special circumstances variance
being considered for the property. Mr. Rothman retained legal counsel and
attended the hearing, where approximately sixteen objections were raised.
He requested that the stop notice order not be released.
Bill Hart, representing the owners of 202 Fernleaf Avenue, stated that
there should be a 5% de minimus exception to the variance. As noted
earlier by the Planning Director, five of the six properties that were
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City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
reviewed fell within the 5% exception to the variance. He stated that 202
Fernleaf fell outside of the exception at the front and back of the property,
but is within the de minimus exception with regard to ridgeline and height.
He asked that the City allow the affected homeowners to reconstruct and
redesign their homes to come within the de minimus exception. He stated
that this should apply to the property owners at 202 Fernleaf, as well as
the other affected property owners, and that it should include the de
minimus exception for all of the midpoints on the ridgeline. He provided a
photo of the property at 202 Fernleaf, which included a line marking where
the newly designed roofline would run.
Council Member Adams confirmed with Mr. Hart that the top of the
ridgeline wouldn't be changed. Council Member Adams stated that, if the
property owners are allowed to redesign and reconstruct their properties, it
needs to be made clear that they cannot take advantage of the envelope
that would be created.
Council Member Nichols asked if the porch at 202 Fernleaf has a roof.
Mr. Hart stated that it would be removed in the proposed redesign.
Council Member Nichols stated that the views from the homes in the area
have been ruined by the current design, and that the homeowners must
have been aware that they were out of compliance. Mr. Hart stated that
four surveys were conducted during construction, and they all confirmed
that the construction was legal in all respects.
Council Member Heffernan asked if the property owners would be willing
to sign an affidavit swearing that they had no knowledge that their
construction was not legal. Mr. Hart responded in the affirmative, and
stated that they were present at the current meeting and could be sworn in.
Robert Walchli displayed photos of the 202 Fernleaf property. He stated
that if the building had conformed to the legal height limit, his views
would have been retained. He also provided letters from other neighbors
who were in support of having the home comply with the code. He stated
that the City was made aware of the problems with the elevation in
March of 2003, but allowed construction to continue, and that the owners
and builders were also aware of the problems and the building not
complying with code. Mr. Walchli stated that the City is condoning the
illegal acts through a variance process, and that the property was also
subject to being overbuilt twenty years ago. He stated that stress and
suffering is being experienced by the neighbors in the area, in addition to
a loss in their property values. He stated that the City could be liable for
not taking timely action on the matter and for having lack of oversight.
City Attorney Burnham stated that the Building Director authorized
painting to be done at 202 Fernleaf to preserve the wood. Chief Building
Inspector Hook stated that he has not been able to confirm this.
Bob Anderson asked to see the photo provided earlier by Mr. Hart. He
was given the photo.
William Beckman stated that the home at 202 Fernleaf is several feet
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City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
higher than it should be. He expressed his dissatisfaction that; the Hart's
are asking to reduce it by only inches.
Ed Gates stated that he thought the home at 505 J Street was being built
to code, based on drawings that he thought were correct. He thanked the
City for working with them on trying to get the job done satisfactorily.
Mrs. Gates thanked the City for understanding what they'd been through
by trusting Mr. Goetz. She stated that the ridgehne at 505 J Street is at
29 feet. She stated that she didn't notice that they had a problem and
noted that other homes in the neighborhood are taller than theirs. Mrs.
Gates stated that they didn't know they were doing anything wrong or
hurting their neighbors' views, but would be happy to bring the chimney
into compliance and work with the City.
Adrienne Brennan stated that the homeowners at 505 J Street complied
with the requirements of the City from the beginning in the construction
of their home. She stated that the improvements to the home actually
help the property values in the area.
Jim Hildreth stated that the City is setting precedence, but agreed that the
issue should be handled on a case -by -case basis. He stated that the
discrepancy appears to be the result of the incorrect determination of the
original grade level. He suggested that the City audit other plans to make
sure this hasn't happened elsewhere. Mr. Hildreth expressed his
dissatisfaction that Mr. Goetz appears to have been convicted prior to going
to trial. Mr. Hildreth stated that the performance of the City's inspectors
should also be looked at.
Lester Edelberg expressed his objection to the rules changing after the
Planning Director had made her rulings. He stated that when the home at
202 Fernleaf was being framed in March of 2003, it was apparent that it
was taller than the previous structure. Mr. Edelberg stated that he
contacted Mr. Goetz at that time, and was told that he used an alternate
measurement that allowed the home to be built three feet higher.
Mr. Edelberg contacted the City and it was discovered that certain parts of
the property were found to be in violation. He stated that the structure
should be required to be brought into conformance with the zoning codes.
Sandy Beckman stated that the home at 202 Fernleaf is too high and there
shouldn't be any changes from what the Planning Director determined.
Ms. Beckman stated that her own home was changed due to complaints
from the neighbors, and the same should be required of the homeowners at
202 Fernleaf.
Susan Hart stated that multiple surveys have been performed at the
request of the City, and the adjustments made were to the midpoints on the
roofline and not to the overall height. She stated that they were always
told that they were within the height limit.
Jean Bruton stated that the owners at 202 Fernleaf and their lawyers seem
to be working with the City secretly. She stated that the home at 202
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City of Newport Beach
Regular Meeting
November 25, 2003
Fernleaf destroys the skyline, the ocean views and the property values in
the area. Ms. Bruton cited examples of similar situations in previous years
where she fought to retain views and property values. She stated that she
talked with Mr. Goetz regarding the home at 202 Fernleaf and he knew
that the grade had been raised.
Mayor Bromberg stated that it's apparent that the neighbors don't like the
home at 202 Fernleaf.
Motion by Council Member Adams to adopt Ordinance No. 2003 -16.
Council Member Adams stated that he is supporting the adoption of the
ordinance as provided in the staff report without the addition of the option
provided in the supplemental report.
Council Member Heffernan confirmed that this would mean that the
findings made by the Planning Director would stand. He specifically
confirmed with the Planning Director that the removal of the third level
patio cover and restroom would be required at 202 Fernleaf. City Attorney
Burnham additionally confirmed that if there are no changes to the
ordinance, it can be adopted at the current meeting. Further, the
determinations made by the Planning Director would stand, and that the
hearings were conducted in anticipation of the City Council adopting the
ordinance, which is a valid exercise of the City's authority.
The motion carried by the following roll call vote
Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Bromberg
Noes: None
Abstain: Ridgeway
Absent: None
Council Member Webb requested that staff report back to the City Council
on how the process to determine natural grade can be changed so that the
same situation won't happen in the future. City Manager Bludau stated
that staff has already taken action in that regard and feel that it's been
taken care of.
P. CURRENT BUSINESS
16. RESOLUTION RELATING TO ADDING A 3RD COUNCIL SEAT
AND APPOINTMENT TO THE COASTAL/BAY WATER QUALITY
CITIZENS ADVISORY COMMITTEE AND APPOINTING A
COUNCIL MEMBER TO THE 3RD SEAT.
Mayor Bromberg stated that the water quality issues in the City have
changed dramatically and that it would be beneficial to have every
council member serve for two years on the Coastal /Bay Water Quality
Citizens Advisory Committee. He stated that he intends to appoint
Council Member Rosansky to the committee.
Motion by Mayor Bromberg to adopt Resolution No. 2003 -63 which
Volume 56 - Page 532
INDEX
Res 2003 -63
Coastal/Bav
Water Quality
Citizens
Advisory
Committee
(24)
City of Newport Beach
Regular Meeting
November 25, 2003 INDEX
expands the Coastal/Bay Water Quality Citizens Advisory Committee to
include three members from the City Council; and confirm the
appointment of Council Member Rosansky as the Mayor's appointment to
the Coastal/Bay Water Quality Citizens Advisory Committee.
The motion carried by the following roll call vote:
Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Bromberg
Noes: None
Abstain: None
Absent: Ridgeway
S17. REPORT FROM THE AIRPORT POLICY REVIEW COMMITTEE.
City Attorney Burnham stated that the Airport Policy Review Committee
met over a period of nine months to discuss several issues. He stated
that the committee is recommending that the City Council consider the
formation of a successor committee to the Airport Policy Review
Committee, and authorize the Mayor to transmit a letter to the Board of
Supervisors asking them to meet with the successor committee to discuss
sphere issues. City Attorney Burnham stated that the sphere issues
include Coyote Canyon, Santa Ana Heights Redevelopment Agency,
County tidelands and John Wayne Airport, and that the committee is
also recommending that studies be conducted to evaluate the sphere
issues and determine if there are others. Finally, the committee
recommended that the successor committee report back to the City
Council with the progress on any discussions with the County.
Mayor Bromberg stated that the City owes it to the residents of the City
to determine if any of the sphere issues are feasible. He stated that he
intends to appoint Council Member Heffernan, Mayor Pro Tern Ridgeway
and himself to the successor committee, and noted that the three are the
same council members who served on the Aviation Issues Committee.
Dolores Otting asked what types of consultants would be used for the
studies, how much they would cost and how many would be hired. She
noted a letter to the editor in the November 23, 2003, issue of the Daily
Pilot regarding the City taking over the operations of the Harbor Patrol
and the privatization of harbor services. Ms. Otting asked if the meetings
of the committee would be open to the public and if the meetings of the
Airport Policy Review Committee were open to the public. Regarding the
Coyote Canyon landfill, she referred to the staff report and stated that it
appears that the City is already in control of the landfill. She expressed
her dissatisfaction with the information provided in the Newport Coast
Preannexation Agreement documents and stated that no one was aware
that the City annexed the Coyote Canyon landfill when it annexed the
Newport Coast area. She stated that there was never a proper
description of the property provided to the public in the documents.
City Manager Bludau stated that the maps on display in the Council
Chambers show the Coyote Canyon landfill and it was never hidden that
the landfill was in the City limits. City Attorney Burnham added that
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Sphere Issues
Committee/
Airport Policy
Review
Committee
(24/54)
City of Newport Beach
Regular Meeting
November 25, 2003
the City could put those maps on the City's website. He stated that
although the Coyote Canyon landfill has been annexed, the City has not
assumed any obligation to maintain or monitor it. He stated that it's
private property that is being managed and maintained by the County.
Lastly, City Attorney Burnham stated that the Airport Policy Review
Committee was of limited duration and did not have continuing subject
matter jurisdiction, so it was not subject to the Brown Act, which would
also be true of the successor committee.
Madelene Arakelian stated that when she was running for a seat on the
City Council, she never received answers to her questions about
annexation of the Coyote Canyon landfill. She expressed her
dissatisfaction that information is not being disseminated to the public.
She added that it will not be possible for the City to own, or build on, the
landfill. Ms. Arakelian asked why the City would want to assume
management of the landfill, given that the liability would be horrendous.
Mayor Bromberg stated that the City is only trying to find answers to
some questions, and that the issues are more complicated than they
appear. He stated that, at this point, the City is only looking at the
issues and requesting that information be brought back to the City
Council.
Motion by Mayor Bromber¢ to 1) create a "Sphere Issues Committee ",
confirm the Mayor's appointment of Mayor Pro Tern Ridgeway, Council
Member Heffernan and himself to the Committee, and direct that
Committee meet with the appropriate representatives of the Board of
Supervisors to discuss issues of mutual interest toAhe City and County;
2) authorize the Mayor to transmit a letter to the Chair of Board of
Supervisors requesting that the County (a) participate in a process with
Newport Beach to review and discuss Sphere Issues and (b) designate
appropriate representatives to meet with the Sphere Issues Committee;
3) authorize staff and consultants to conduct the studies and analyses that
the "Sphere Issues Committee" considers necessary or appropriate to fully
understand the opportunities presented by the Santa Ana Heights
Redevelopment Area/Plan, the Coyote Canyon Landfill, County Tidelands
and the John Wayne Airport,.and/or to identify other properties /services
that could be considered possible Sphere Issues; and 4) direct the Sphere
Issues Committee to submit a status report to the City Council no later
than six months after its formation.
The motion carried by the following roll call vote:
Ayes: Heffernan. Rosansky, Adams, Webb, Nichols, Mayor Bromberg
Noes: None
Abstain: None
Absent: Ridgeway
Q. MOTION FOR RECONSIDERATION - None
R. ADJOURNMENT at 11:05 p.m.
Volume 56 - Page 534
INDEX
City of Newport Beach
Regular Meeting
November 25, 2003
INDEX
The agenda for the Regular Meeting was posted on November 19, 2003, at
2:40 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 November 21, 2003, at 2:30 p.m. on the City Hall Bulletin
Board located outside of the City of Newport Beach Administration Building.
Recording Secreta
Mayor
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'City Clerk
Volume 56 - Page 535