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HomeMy WebLinkAbout08/24/2004 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting August 24, 2004 - 7:00 P.M. STUDY SESSION — 4:30 p.m. CLOSED SESSION — 6:00 p.m. A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING C. D. E. F. ROLL CALL Present: Heffernan, Rosanshy, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Absent: None CLOSED SESSION REPORT — None PLEDGE OF ALLEGI_ANCE — Mayor Pro Tem Adams INVOCATION —Pastor Kerry Beaulieu, Our Lady Queen of Angels Church PRESENTATION'S Lifeguard Check Presentation. Peggy Fort, representing the Duda Family Foundation and its new community giving program, presented a check in the amount of $2,500 to the Lifeguards Association. She stated that the money was raised from a portion of the ticket sales from the Sunday Morning Surf Series at the Lido Theater. Cultural Arts Grant Awards. David Colley, City Arts Commission Chair, acknowledged the other City Arts Commissioners in the attendance at the meeting. They included Kirwan Rockefeller, Wendy Brooks, Carol Starcevie, Arlene Cartozian and Kathy Harrison. With the assistance of Mayor Ridgeway, Mr. Colley presented grants totaling $40,000 to twelve different arts organizations, all benefiting the citizens of Newport Beach. Mayor Ridgeway thanked the City Arts Commission for the work that they do. Proclamation for Inner Coastal Cleanup Day. Mayor Ridgeway read the proclamation proclaiming September 18, 2004, as Inner- Coastal Cleanup Day. Presentation by Newport Ocean Sailing Association (NOSA). Paul DeCapua, NOSA Commodore, acknowledged Jane Benson, Vice Commodore of NOSH, in attendance at the meeting. Mr. DeCapua presented the City Council with an appreciation plaque for its support of the 2004 Newport to Ensenada Volume 56 - Page 1164 INDEX City of Newport Beach City Council Minutes August 24, 2004 INDEX Yacht Race and the events leading up to the race. 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 Bromberg congratulated City Clerk Harkless on her recent accomplishment in receiving the Master Municipal Clerk (MMC) designation. • Mayor Pro Tem Adams requested that the Council's appointee to the Orange County Vector Control District Board of Trustees address the City Council at a future meeting to provide an update on the West Nile Virus issue. • Mayor Pro Tem Adams announced that the Corona del Mar Traffic Mitigation Committee is still active and that progress is being made. • Council Member Rosansky requested that staff prepare a report on the progress of the Sunset Ridge Park development. He specifically requested that the report include information on the status of the project, the status of the funding, the progress of an operating agreement or lease for the property with the State Parks Department, and the status of the smaller parcel to the east of Superior Avenue. • Council Member Heffernan volunteered to take Mayor Pro Tem Adams place on the Corona del Mar Traffic Mitigation Committee until his successor is appointed. • Council Member Heffernan requested a report by the September 28, 2004, City Council meeting on the final lease terms of the Marinapark site, as well as background on Sutherland - Talla. He specifically requested that this information include their business background, financial resources, other business interests, and financing options for the project. I. CONSENT CALENDAR READING OF MINUTES /ORDINANCES AND RESOLUTIONS 1. MINUTES OF THE ADJOURNED REGULAR AND REGULAR MEETING OF AUGUST 10, 2004. Waive reading of subject minutes, approve as written and order filed. Mayor Piro Tem Adams and Council Member Heffernan abstained from voting on this item. 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. Volume 56 - Page 1165 City of Newport Beach City Council Minutes August 24, 2004 INDEX RESOLUTIONS FOR ADOPTION 3. AWARD OF NON - EXCLUSIVE SOLID WASTE COLLECTION Solid 4A'aste FRANCHISE TO DIRECT DISPOSAL, INC. 1) Adopt Resolution of Franchise Intention No. 2004 -76 to award a Non - exclusive Solid Waste Franchise to (42/100 -2004) Direct Disposal, Inc. and to schedule a public hearing for September 14, 2004; and 2) introduce Ordinance No. 2004 -17 granting a Non - exclusive Solid Waste Franchise to Direct Disposal, Inc. and pass to second reading on September 14, 2004. 4. PARS ACCUMULATED LEAVE CONVERSION PROGRAM. Adopt (100 -2004) Resolution '\o. 2004 -77 to provide an Accumulated Leave Conversion Program to eligible employees with PARS (Phase II) effective July 1, 2004. 5. RESOLUTION SUPPORTING THE MARINE LIFE PROTECTION (100 -2004) ACT. Adopt Resolution No. 2004 -78 asking the State to pursue further implementation of the Marine Life Protection Act in Southern California. CONTRACTS AND AGREEMENTS 6. CONTRACT WITH FORMER CITY ATTORNEY (C- 3725). Approve C -3725 Temp. and authorize the City Manager to sign the proposed Temporary Employment Employment Agreement with Robert Burnham. (38/100- 02004) 7. PIPELINE MASTER PLAN REPLACEMENT PROJECT - C -3644 SEASHORE DRIVE BETWEEN 341'H STREET TO CEDAR STREET Pipeline Master AND OCEAN FRONT ALLEY BETWEEN 23RD STREET TO 32ND Plan STREET - AWARD OF CONTRACT (C- 3644). 1) Determine that the Replacement project is exempt from environmental review pursuant to Section 15302 Project of the California Environmental Quality Act Implementing Guidelines; (38/100 -2004) 2) approve the plans and specifications; 3) award the contract (C -3644) to Majich Brothers, Inc. for the total bid price of $1,045,900 and authorize the Mayor and the City Clerk to execute the contract; and 4) establish an amount of $104,000 to cover the cost of unforeseen work. S. MEMORANDA OF UNDERSTANDING WITH NEWPORT BEACH C -2059 CITY EMPLOYEES ASSOCIATION (C- 2059), NEWPORT BEACH C -2065 EMPLOYEES LEAGUE (C -2065) AND NEWPORT BEACH C -2051 PROFESSIONAL AND TECHNICAL EMPLOYEES ASSOCIATION Employee MOU's (C- 2051). Approve one -year Memoranda of Understanding with non- (38/100 -2004) safety employee associations. MISCELLANEOUS ACTIONS 9. G -6 POLICY CHANGES. Approve revisions to G -6 Policy (Maintenance (100 -2004) and Planting of Parkway Trees). 10. PROPOSED CITY COUNCIL POLICY, L -25: DECORATIVE (100 -2004) ALLEY PAVEMENT PROGRAM. 1) Adopt City Council Policy L -25 - Decorative Alley Pavement Program; and 2) adopt City STD -144 -L - Volume 56 - Page 1166 City of Newport Beach City Council Minutes August 24, 2004 Interlocking Uoncrete Paver Alley Pavement. 11. APPOINTMENT TO THE ENVIRONMENTAL QUALITY AFFAIRS CITIZENS ADVISORY COMMITTEE (EQAC). Confirm Council Member Rosansky's appointment of Matthew Wiley as the District 2 representative to EQAC. 12. TELECOMMUNICATIONS FACILITY PERMIT NO. 2003 -003 (PA2003 -255) (contd. from 5/11/04, 6/8/04, 7/13/04 & 7/27/04). Continue to September 14, 2004. 13. Item removed from the Consent Calendar by Council Member Heffernan. Motion by Mavor Pro Tern Adams to approve the Consent Calendar, except for the item removed (13); and noting the abstentions of Mayor Pro Tem Adams and Council Member Heffernan on Item No. L The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 1s. ZONING AMENDMENT /GROUP LIVING USES [item taken out of order]. Mayor Ridgeway noted that there are major changes that need to be made to the ordinance. Motion by Mayor Ridgeway to continue the item to September 14, 2004. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky Ridgeway Noes: None Abstain: None Absent: None J. PUBLIC HEARINGS Adams, Bromberg, Webb, Nichols, Mayor 14. CORONA DEL MAR BUSINESS IMPROVEMENT DISTRICT RENEWAL: PUBLIC HEARING FOR RENEWAL OF THE CORONA DEL MAR BUSINESS IMPROVEMENT DISTRICT FOR THE 2004 -2005 FISCAL YEAR AND ADOPTION OF RESOLUTION OF CONFIRMATION. Assistant City Manager Wood reported that no protests for renewal of the Volume 56 - Page 1167 INDEX (100 -2004) (100 -2004) (100 -2004) (100 -2004) City of Newport Beach City Council Minutes August 24, 2004 Corona del 1\4ar Business Improvement District (BID) have been received. Mayor Ridgeway opened the public hearing. Hearing no testimony, Mayor Ridgeway closed the public hearing. Motion by Council Member Webb to adopt Resolution of Confirmation No. 2004 -79 and confirm the BID Advisory Committee. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 15. JOSH SLOCUM'S DINNER AND SUPPER CLUB - USE PERMIT NO. 2003 -036 (PA2003 -220) - 2601 WEST COAST HIGH187AY (contd. from 6/22/04 & 7/13/04). Council Member Rosansky asked if a traffic study would be presented at the current meeting. Planning Director Temple stated that the applicant did indicate at a previous City Council meeting that one would be prepared but that, to date, one has not been received. She added that the City did receive a letter from a traffic engineer describing a variety of options that could be considered, but that no specific proposal was included. Mayor Ridgeway recalled that the applicant also wanted to review the police service calls that went to Josh Slocum's, and noted that a report was sent to them on July S, 2004. Mayor Ridgeway stated that the report is included in the staff report and noted that there were 159 calls for service at Josh Slocum's from June 1, 2003, to June 21, 2004. Of these, 27% were for loud music disturbances. He noted the demand that this places on the Police Department's resources. Council Member Rosansky asked if the letter from the traffic engineer was included in the staff report. Planning Director Temple responded in the negative, and explained that it was only faxed to the City on August 20 or 23, 2004. In response to Mayor Pro Tem Adams' question, Planning Director Temple stated that the letter was prepared by RK Engineering Group. Mayor Ridgeway opened the public hearing. Bill Hodge, Hodge & Associates, representing the applicant, stated that he is hoping to work with City staff on the contents of the letter from the traffic engineer. Mr. Hodge provided a handout on calls for service and stated that a major issue with the Josh Slocum's project has been the noise complaints. He noted that the recommended conditions of approval Volume 56 - Page 1168 INDEX (100 -2004) City of Newport Beach City Council Minutes August 24, 2004 INDEX for the project include measures to alleviate these concerns. Mr. Hodge stated that the conditions of approval also include measures to address traffic concerns. He listed the proposed additional conditions contained in the letter from RK Engineering Group related to parking and circulation. Referring to the report on police service calls, Mr. Hodge clarified that he asked to receive the information for the City Council meeting of June 22, 2004. Mr. Hodge stated that his handout looks at calls for service by neighborhoods or reporting districts, and compares three on Coast Highway in the vicinity of Josh Slocum's and three on the peninsula during the week of August 17 to 24, 2004. He noted that reporting district number 15 on the peninsula had 171 calls for service, while reporting district number 25, where Josh Slocum's is located, only had 71, which indicates that the district on the peninsula puts a far greater demand on the Police Department's resources than the district that Josh Slocum's is located in. Mr. Hodge stated that the number of patrons that pass through Josh Slocum's also needs to be considered when looking at the number of service calls. He agreed that the behavior of some individuals is unacceptable, and that Josh Slocum's doesn't hesitate to call the police when there is a problem. In closing, Mr. Hodge stated that the issues can be worked out and Josh Slocum's would like to continue to work with staff. In response to Mayor Ridgeway's question, Mr. Hodge stated that Josh Slocum's shares their driveway with the wig shop and the boat yard in the back. Council Member Bromberg referred to the handout from Mr. Hodge and stated that reporting district number 15 is the area west of the Newport Pier and represents an entire community. He stated the problem is the number of service calls to Josh Slocum's, which is a single facility. He stated that it doesn't make Josh Slocum's a good candidate for a nightclub. Mayor Ridgeway stated that Newport Beach has not had a great deal of success with nightclubs. He stated that their use permits have been revoked and it's been a difficult use for the City. Mr. Hodge stated that Josh Slocum's intends to offer dinner until 1:30 a.m., and that only some of the tables would be removed for dancing and live entertainment. Council Member Rosansky asked Mr. Hodge if there was anything contained in the letter from the traffic engineer that would change the City's position on the matter. Mr. Hodge stated that if many of the measures contained in the letter were implemented, it would take care of the problems with traffic and circulation. Council Member Rosansky confirmed that additional parking spaces would not be added, and that offsite parking would continue to be utilized. Police Captain Riley referred to Mr. Hodge's handout and stated that he has not had the opportunity to verify the figures, but that the information was obtained from the Police Department's website and not every call is posted on that website. He agreed with Council Member Bromberg's statement that reporting district number 15 does represent a Volume 56 - Page 1169 City of Newport Beach City Council Minutes August 24, 2004 INDEX sigmticant area. City Manager Sludau contirmed with Captain Riley that approximately 40% of the police resources are deployed on the peninsula. Council Member Webb asked if there were any other restaurants in the Mariners Mile area that have the frequency of service calls that Josh Slocum's has. Captain Riley responded in the negative and stated that none of them came close during the same time period that was analyzed. In response to Council Member Rosansky's question, Captain Riley stated that no other restaurant in the City has the frequency of calls that Josh Slocum's has. Jim Hildreth stated that Dennis Rodman was unjustly picked on by the City and that Josh Slocum's is also being picked on because of him. Mr. Hildreth asked how the City Council can justify its actions. He stated that Josh Slocum's is a good restaurant and should be viewed that way, and that the area needs more good restaurants. He stated that prior complaints should be dealt with and the restaurant should be allowed to continue working with the City. Sheila Baker stated that she lives directly across from Josh Slocum's and doesn't want a nightclub in her backyard. In the past, Josh Slocum's has not complied with the rules and regulations, and has had a number of police service calls. She stated that they shouldn't be rewarded for this behavior. Roger Grable, counsel for Josh Slocum's, stated that when the City filed litigation against Josh Slocum's, it was determined that the best way to address the negative impacts of the facility was to establish a set of conditions. He stated that this should be followed through on and that the use permit application should be approved. If Josh Slocum's doesn't comply with the standards, the City can revoke the use permit. He suggested that the item be continued and that Josh Slocum's be allowed to continue to work with the City on the issues. If the application is not approved, Josh Slocum's has the right to continue to operate under its current nonconforming status. Robert Baker requested that the appeal be denied. He stated that a nightclub at Josh Slocum's would be in his backyard, because the noise travels across the water to his home. He stated that the applicant bought the property with the knowledge that it was to be operated as a restaurant, but that they operate the facility as a nightclub and the conditions that have been imposed, have been ignored. The lawsuit caught their attention, but they broke the settlement agreement and continue to defy the City's rules and conditions. He stated that they shouldn't be rewarded for their past conduct. Hearing no further testimony, Mayor Ridgeway closed the public hearing. Council Member Webb stated that the applicant is asking to increase the occupancy of the facility from 133 to 190, which is an increase of Volume 56 - Page 1170 City of Newport Beach City Council Minutes August 24, 2004 approximately 43%. He stated that trattic and circulation will continue to be a problem, but that he's most concerned for the number of police service calls. He stated that the restaurant has not shown that it can operate for any period of time without the police being called to the site. Council Member Webb stated that this is not the type of facility that should be allowed to intensify its use. Motion by Council Member Webb to deny the appeal and uphold and affirm the decision of the Planning Commission and adopt Resolution No. 2004 -80 to approve Use Permit No. 2003 -036 allowing the existing restaurant to provide periodic lunch service, increase the occupancy and modify the minimum parking requirements. Mayor Ridgeway stated that the traffic report that was prepared doesn't become relevant, because the City can't get past the issue regarding the number of police calls. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 16. REVISIONS TO APPEAL AND CALL FOR REVIEW PROCEDURES — CODE AMENDMENT NO. 2004 -002 (PA2004 -028) (contd. from 6/8/04, 6/22/04, 7/13/04 and 8/10/04). Motion by Council Member Webb to introduce Ordinance No. 2004 -18 approving Code Amendment No. 2004 -002 and pass to second reading on September 14, 2004. Council Member Rosansky stated that he has reservations about the proposed ordinance and concerns about the Brown Act. Substitute Motion by Council Member Rosanskv to only require three council members to call for the review of a decision. He stated that this eliminates the problems associated with the Brown Act and that the support of three council members shows significant interest in an appeal. Council Member Heffernan agreed and stated that a majority of the council members should not be required, because it is also a majority of the council members that appoint the members of the Planning Commission. This could cause a problem with a certain majority having control over the issues. He stated that some items should be appealed and it should not be complicated to do so. Assistant City Manager Wood stated that the proposed ordinance would not cause a problem with the Brown Act. She explained that a request Volume 56 - Page 1171 INDEX (100 -2004) City of Newport Beach City Council Minutes August 24, 2004 INDEX for an appeal and the vote of the City Council would occur at a public meeting, Council member Rosansky stated that it might only appear to cause a problem, but that he wants to avoid any allegations and the appearance of any improprieties. Mayor Ridgeway stated that up until 1998, four council members were required to call for the review of a decision. He stated that it worked well and that good dialogue and debate occurred at the public meetings of the City Council and the Planning Commission. He added that the applicant always has the right to file an appeal also. Mayor Ridgeway opened the public hearing. Dolores Otting provided a handout, which provided an opinion from the Attorney General that a majority of the board members of a local agency may not e -mail each other to develop a collective concurrence as to action to be taken by the board without violating the Brown Act. Ms. Otting stated that the purpose of the Brown Act is to allow the public to participate in the decision- making process at the local level of government. She agreed with the substitute motion made by Council Member Rosansky and stated that by only requiring three council members, the spirit of the law wouldn't be violated. Jim Hildreth stated that the City Council is supposed to be representing those that live in Newport Beach and understand the Brown Act. He stated that the citizens need to know that the City Council is acting in their best interest and not violating the Brown Act. He disagreed with changing the current procedure and felt that only one council member should be required to call an item up for review. Hearing no further testimony, Mayor Ridgeway closed the public hearing Mayor Ridgeway stated that the comments made by Ms. Otting actually support changing the procedure to four council members, because all of the discussions and debate would occur at a public meeting. Mayor Pro Tem Adams agreed and stated that requiring four does insure that the discussions will take place in public. The substitute motion failed by the following roll call vote Ayes: Heffernan, Rosansky Noes: Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Abstain: None Absent: None The motion carried by the following roll call vote: Ayes: Adams, Bromberg, Webb, Mayor Ridgeway Noes: Heffernan, Rosansky, Nichols Volume 56 - Page 1172 City of Newport Beach City Council Minutes August 24, 2004 Abstain: None Absent: None K. PUBLIC COMMENTS INDEX • Jim Hildreth stated that he's a registered voter in Newport Beach and would like to be considered as a write -in candidate for the upcoming election. He said the proper spelling to use on the ballot would be "Jim R. Hildreth ". Continuing with his comments on the City's website on himself, Mr. Hildreth stated that the location where the onshore mooring was moved was never given. Additionally, he stated that the locations in the Grand Canal are actually accessed by access structures. • Allan Beek stated that there are many things wrong with former City Attorney Burnham's impartial analysis of Measure L. Foremost, he stated that it does not inform the voters that there is an existing contract and if Measure L passes, the City is committed to the hotel. • Tom Billings, Protect Our Parks, stated that the voters will be voting on two things when they vote on Measure L, and that they include a change in the land use designation from recreation and environmental open space to recreation and marine commercial, and the development of a timeshare hotel resort. He also stated that regardless of the vote, the existing mobile home park will be removed, and the American Legion and Girl Scout House will remain. He cited other reasons why he is not in support of Measure L and stated that parkland should not be used for revenue generation. Mr. Billings stated that more information can be obtained by accessing Protect Our Parks' website at Newport- Parks.com. • Dr. Linda Orozco stated that verbal insults were allowed to be made against her, personally, at the City Council meeting of August 10, 2004, by the CEO of Narconon. She stated that a few days later, postings were made to a local website threatening her and her home, and threats of violence and death followed. She stated that the Mayor allowed the comments to be made at the meeting, that he should take responsibility and should demonstrate vigilance in curbing such attacks. Mayor Ridgeway suggested that Dr. Orozco forward her comments to the Police Department and death threats should be reported. Secondly, he stated that freedom of speech does allow speakers to make such verbal attacks. L. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report — Ad Hoc General Plan Update Committee (GPUC). Assistant City Manager Wood stated that GPUC met on August 23, 2004. The General Plan Advisory Committee (GPAC) has been working on developing land use alternatives for the future, and the consultant presented the consolidation of this work to GPUC. The same presentation will be made to the Planning Commission on September 9, 2004, and to the City Council on September 14, 2004. Volume 56 - Page 1173 City of Newport Beach City Council Minutes August 24, 2004 Status report - Local Coastal Program (LCP) Certification Committee. Mayor Ridgeway stated that the LCP has been accepted by the Coastal Commission, who plans to ask for a one -year continuance in order to review it. Status report - Newport Coast Advisory Committee (NCAC). Council Member Heffernan stated that the next meeting of the NCAC will be on September 6, 2004. The two items that will be addressed are the progress being made on the Newport Coast Elementary loop road and potential redirection of construction traffic from Ridge Park Drive. Status report - Mariners Joint Use Library Ad Hoc Steering Committee. Council Member Webb stated that the design plans are complete, the City has issued a building permit and it should go out to bid by the first week in September. Status report - Other Committee Activities. Council Member Nichols reported that the Environmental Quality Affairs Citizens Advisory Committee (EQAC) considered the environmental document for St. Mark Church. Assistant City Manager Wood noted that EQAC's comments on the document will be forwarded with the other comments received to staff and the environmental consultant, who will prepare responses to the comments. Council '.Member Nichols stated that the other item considered by EQAC was the Pelican Hill Resort. Comments regarding Mayor Pro Tem Adams. Mayor Ridgeway stated that Mayor Pro Tem Adams will be resigning effective September 1, 2004, to take a significant promotion with a large engineering company that will require him to relocate to Washington, D. C. Mayor Ridgeway stated that he'll be missed and has been a welcome asset to the community. Council Member Webb agreed that Mayor Pro Tem Adams will be sorely missed. He expressed his appreciation for his thorough way of analyzing all of the projects that have been brought before him, and his to- the -point comments. Council Member Bromberg stated that he also will miss Mayor Pro Tem Adams. He noted how he handled the Greenlight issue with objectivity and professionalism. Council Member Heffernan agreed that Mayor Pro Tem Adams is fair, unbiased and ethical. He also expressed his admiration for how he handled the Greenlight issue. M. PLANATIATG COMMISSION AGENDA AND ORAL STATUS REPORT 17. PLANNING COMMISSION AGENDA FOR AUGUST 19, 2004. Planning Director Temple stated that the Planning Commission had six items on its agenda for the meeting of August 19, 2004. She stated that several of the items were simple and were approved with little comment. These included the traffic study for 1901 Westclif£ Drive and a use permit amendment for a restaurant at 1701 Corinthian VA'ay. Planning Director Temple reported that, after discussion and some modifications. the use Volume 56 - Page 1174 INDEX (100 -2004) City of Newport Beach City Council Minutes August 24, 2004 permit for the Bahia Corinthian Yacht Club was approved. Item No. was removed from the agenda, at the request of the applicant. Planning Director Temple stated that the major item of the meeting was the additional consideration of the St. Andrews Presbyterian Church expansion. After a presentation by the church and receiving public testimony, the Planning Commission discussed the specifics of the revised proposal by the church and determined that more work was needed by the church and the community to identify a project that might be more acceptable to all. The item was continued to the Planning Commission meeting of September 23, 2004. Council Member Heffernan asked for more detail regarding the decision on the yacht club. Planning Director Temple stated that the revised parking lot layout was accepted and additional offsite parking was resolved. For Mayor Ridgeway, Planning Director Temple confirmed that the plan approved is totally different from the current site plan. N. CONTINUED BUSINESS 19. DESIGNATION OF VOTING DELEGATE FOR LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE — SEPTEMBER 17 — SEPTEMBER 19, 2004 IN LONG BEACH (contd. from 8/10/04). Motion by Mayor Ridgeway to designate Council Member Webb as the City's voting delegate for the conference. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: Webb Abstain: None Absent: None O. CURRENT BUSINESS 20. RESOLUTION OF APPLICATION TO REORGANIZE TERRITORY KNOWN AS THE WESTERN BORDERS ANNEXATION. The item was continued. 21. SMOKING ON PIERS AND BEACHES. By a show of hands from the audience, Mayor Ridgeway noted that there was no opposition to the proposed ordinance from those in attendance at the meeting. General Services Director Niederhaus stated that the issue was addressed by the City Council at their Study Session on May 25, 2004. At Volume 56 - Page 1175 INDEX (100 -2004) Western Borders Annexation (21/100 -2004) (100 -2004) City of Newport Beach City Council Minutes August 24, 2004 INDEX the direction of the City Council, the matter was addressed by the Parks, Beaches & Recreation (PB &R) Commission. He reported that the PB &R Commission was unanimous in their support of a no smoking ordinance on the City's piers and beaches. He stated that staff presented a number of options and spent some time studying where the problem was occurring. During the process, a considerable amount of public input was received and nearly all of the input was in support of a ban. Council Member Heffernan asked if the ban would include State beaches. Mr. Niederhaus responded in the affirmative, and noted that it would not include County beaches, such as the Dunes. Council Member Heffernan asked why it would apply to State beaches, such as Big Corona and Little Corona, but not to County beaches. Mr. Niederhaus explained that the City manages the State beaches. He further confirmed that the ordinance would not apply to private beaches or property. Council Member Nichols asked if there were any restrictions that would apply to the smoke generated by the fire rings. Mr. Niederhaus responded in the negative, but stated that the PB &R Commission is looking into that matter separately. In response to Mayor Ridgeway's question, Police Captain Newman stated that there are other nuisance - related ordinances currently in effect. The Police Department's position would be to enforce the smoking ordinance in the same way, which would be during the normal course and scope of the Police Department's existing duties. He added that compliance would increase as public attitudes shift. Council Member Bromberg asked if the Police Department would respond to calls from the public. Captain Newman stated that such calls would be addressed as similar violations are currently addressed. The officers in the area would be notified and they would respond, if not already handling another situation. Motion by Council Member Webb to 1) introduce Ordinance No. 2004- 19 prohibiting smoking on all public piers, beaches, beach walkways, floats, wharfs and Inspiration and Lookout Points and pass to second reading on September 14, 2004; and 2) approve a budget amendment (05BA -009) in the amount of $19,000 to provide for the purchase, installation and maintenance of smoking ash receptacles. Mayor Ridgeway announced that public comments would be limited to three minutes. Jim Hildreth stated that he doesn't like smoking and discourages it. If the City is going to ban cigarette smoking, he suggested that information be issued to the violators to help them curb their habit. He stated that it would be an opportunity for the City to promote rehabilitation and encourage people to stop smoking. Nancy Gardner, Surfrider Foundation, stated that the foundation is not opposed to the proposed ordinance, but that banning smoking will not Volume 56 - Page 1176 City of Newport Beach City Council Minutes August 24, 2004 INDEX eliminate cigarette butts and filters from the beach. She explained that much of this trash reaches the beaches via the storm drains. She hoped that people would properly dispose of their cigarette butts inland, as well as on the beaches. She offered the assistance of the foundation in achieving this goal. Ray Halowski stated that he has a concern for the lack of enforcement that will take place because it potentially opens the City up to liability by anti - tobacco groups. Elle Erpenbeck and Caroline Wilkinson introduced themselves and stated that they are both with the Earth Resource Foundation Club at Newport Harbor High School. They stated that they are representing the youth and support the proposed ordinance. Ms. Erpenbeck and Ms. Wilkinson stated that banning smoking on the beaches has picked up momentum throughout the State. They encouraged the City Council to vote in favor of the proposed ordinance. Jessie Loeb, Earth Resource Foundation Club, Newport Harbor High School, stated that smoking should be banned from public beaches because smoking is unhealthful and the City can't afford not to pass the ban. Karl Duesterberg stood with several of his friends and stated that they are in support of the smoking ban. He didn't expect enforcement to be strong, but stated that the ban would still make a difference in reducing the number of butts on the beach and other negative side effects. He didn't feel that the ban would effect tourism or people's right to smoke. Tom Tobin, PB &R Commission, stated that the PB &R Commission unanimously recommended adoption of the proposed ordinance. He provided photos of an urn in San Clemente and noted that it wasn't being utilized as a no smoking urn. He additionally provided photos of signs and noted that there is a proliferation of signs in Newport Beach. In closing, Mr. Tobin stated that the PB &R Commission was unanimous in its support of no smoking areas and no smoking in Newport Beach. Linda Nichols, Earth Resource Foundation, displayed artwork done by the foundation's volunteers. She thanked the City Council for taking responsibility and doing the right thing, and stated that the foundation is available to provide assistance. Ms. Nichols stated that the benefits of tough environmental regulations far outweigh the cost and effort of enforcement. Brent Ritenour stated that he is a smoker and is proud of the smoking ban on beaches. He explained that smokers understand the kind of litter that smoking creates. Council Member Rosansky stated that the City has been looking at the issue for several months and that he has been an advocate of a ban from the beginning. He noted the support for the ban by the PB &R Commission, the public and the business community. He didn't feel that Volume 56 - Page 1177 City of Newport Beach City Council Minutes August 24, 2004 enforcement would be an issue, and that the ban would be self- enforcing and people would do the right thing. Council 1Vlember Rosansky stated that the City is committed to a higher standard. Council Member Bromberg stated that he deplores smoking, but in the beginning, was concerned with the enforcement issue. He explained that he was concerned that the City would be put in the position of having an ordinance that couldn't be enforced, and criticism would be received. He stated that he is now satisfied that enforcement will not be a problem. Council Member Nichols stated that the City is going overboard with the proposed ordinance and going after people in the wrong way. He stated that he could support an ordinance that dealt with the littering aspect, but not one that bans smoking. Council Member Nichols noted that it has not been proven that secondhand smoking is hazardous. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Mayor Ridgeway Noes: Adams, Nichols Abstain: None Absent: None 22. ORDINANCE AMENDING SECTION 12.32.020(B) OF THE NBMC. The item was continued. S23. LETTER OF RESIGNATION SUBMITTED BY COUNCIL MEMBER ADAMS AND THE OPTIONS AVAILABLE TO THE CITY COUNCIL FOR FILLING THE VACANCY IN DISTRICT 4. Mayor Ridgeway stated that City code requires the City Council to appoint a successor within 30 days of the resignation of a council member. If this can't be done, the matter goes to a special election. He stated that the City Clerk intends to advertise for applications, which would be accepted until September 9, 2004, and that the interviews could be conducted by the City Council at either the meeting of September 14, 2004, or at a special meeting on September 21, 2004. Council Member Bromberg stated that it might depend upon how many applications are received as to when the interviews should be conducted. Motion by Council Member Bromberg to 1) declare the office currently held by Council Member Adams to be vacant on September 1, 2004, the effective date specified in the letter of resignation: and 2) establish the process, as outlined in the staff report, leading to the appointment of a successor on or before October 1, 2004, as required by Section 403 of the City- Charter, and set September 21, 2004, at 7:00 p.m. as a special meeting of the City Council to conduct interviews. Council Member Webb agreed and stated that the 21at would give the council members some time to review the. applications prior to conducting Volume 56 - Page 1178 INDEX (100 -2004) District 4 Council Member Resignation (33/100-2004) City of Newport Beach City Council Minutes August 24, 2004 interviews. INDEX After a brief discussion, it was determined that the interviews would be televised and that an evening meeting would allow the public to view the process. Council Member Rosansky agreed that it was important to have a special meeting devoted to the interviews, so that the council members could focus on just that matter. He noted that it's an important decision and that the new council member will hold the seat for over two years. Council Member Heffernan asked if there was any possibility of a special election. Council Member Bromberg stated that it would be unknown at this time. He explained that it's conceivable that the City Council could be unable to find a suitable applicant and would be unsuccessful in making an appointment. Council Member Heffernan asked if the appointment would be for the balance of the term. Council Member Bromberg clarified that his motion is for the appointment to be for the balance of the term, which is November 2006. Mayor Ridgeway stated that making an appointment for part of a term is not an option and that this information is included in the staff report. He stated that a special election will only be held if the City Council is unsuccessful in making an appointment. Council Member Rosansky asked if that the City Council could also complete the appointment process at the City Council meeting of September 28, 2004. City Clerk Harkless confirmed that the appointment would need to be made on, or before, October 1, 2004. If not, a special election would have to be called. She added that the earliest that a special election could be held would be March of 2005. Mayor Ridgeway noted that there will only be six council members making the decision on the appointment, which increases the chances that a majority vote may not be reached and an appointment not made. City Manager Bludau confirmed that the interview process will be similar to that conducted for former Council Member Proctor's seat, and as outlined in the staff report. Council Member Heffernan confirmed that the council members are free to contact the applicants prior to the interviews. He further confirmed with the City Clerk that the appointment will be for the balance of the term. In response to Council Member Nichols' question, City Clerk Harkless stated that in order for the seat to have been on the November 2004 Volume 56 - Page 1179 City of Newport Beach Citv Council Minutes August 24, 2004 ballot; the resignation would have to have occurred prior to the beginning of the nomination period, which was in July. Mayor Pro Tern Adams confirmed with Acting City Attorney Clauson that regardless of the timing of the resignation, the first obligation is for the City Council to make an appointment within 30 days. Mayor Ridgeway announced that public comments would be limited to three minutes. John Buttolph stated that he is concerned about the appropriateness of an appointed council member voting on the appointment of another council member. He suggested that the City Council direct staff to look into the matter. Mayor Ridgeway stated that the question has already been asked and it has been confirmed that it is appropriate. Acting City Attorney Clausen explained that an appointed council member has all of the powers of the seat that was vacated. She stated that she is not aware of any prohibitions that would disallow this. Jim Hildreth stated that the City Council has recently been through this and it shouldn't be difficult to establish the process. The motion carried by the following roll call vote: .Ayes: Heffernan, Rosansky, Bromberg, Webb, Nichols. Mayor Ridgeway Noes: None Abstain: .Adams Absent: None Mayor Ridgeway recessed the meeting at 9:35 p.m. and reconvened the meeting at 9:50 p.m. with all Council Members present. 524. LOXATR SANTA ANA RIVER PROJECT. Mayor Ridgeway expressed his appreciation to all those in attendance at the current meeting regarding the item, but noted that the City does not have a lot of control over the Army Corps of Engineers. He stated that a draft letter has been prepared from the City to the Corps that addresses the concerns that have been expressed regarding the project. He read the letter, which was slightly different than the draft included in the staff report. After reading the letter, he made one correction and that was to change the word "require" in paragraph 3 to "request ". Ile explained that the City does not have the authority to require and doesn't want to mislead anyone by suggesting that it does. Using a PowerPoint presentation, .Assistant City Manager Taff displaced an aerial photo of the lower Santa Ana River. He stated that the $4.4 million project will remove 900;000 cubic yards of material from the Santa Ana River. The plans and specifications directed the material to be Volume 56 - Page 1180 INDEX C -3745 Lower Santa Ana River Project (38/100 -2004) City of Newport Beach City Council Minutes August 24, 2004 INDEX placed in the West Newport groinfield and on least tern island in the Newport Slough, and the contract allowed the bidders to chose between one of two transport methods, which included pumping the material into the nearshore zone or hauling it along the beach. Assistant City ?Manager Kiff reported that CJW Construction was the low bidder and chose the beach haul method. He stated that the project started upstream on August 4, 2004, transport is scheduled to begin on September 8, 2004, and the project is expected to be completed on December 16, 2004. He listed some of the constraints that would be placed on the contractor. Assistant City Manager Kiff displayed a map showing the beachfill limits, and noted that it is the entirety of the groinfield. He also pointed out the stockpile area and the area where the material would be disposed of, if it were deposited offshore. He stated that the reasons for doing the project include flood control and beach replenishment. Assistant City Manager Kiff explained that in a fully natural environment, the sand in West Newport would come from a variety of sources. He explained that these would include sedimentation of the watersheds and cliffside erosion. Studies in 1981 and 2003 showed that the Santa Ana River was only delivering one -third of its traditional sand, and that it was due to upstream development. He displayed a schematic showing how natural sediment transport works. Assistant City Manager Kiff stated that the major sand replenishment project that the City has participated in is the Surfside- Sunset project, which started in 1964 and included a beach haul in 1997. He displayed a map of the project area and a list of the various stages of the project. Assistant City Manager Kiff stated that the Coast of California Storm and Tidal Wave Study was completed in the 1990's and included the concept of a "sediment budget ". He displayed a diagram illustrating how sediment budgeting works, and stated that the data from the study also included beach width measurements, which found that in most locations up and down the coast, the beach widths grew. In West Newport, the beach retreated an average of .5 feet per year during a 5 -year period of no nourishment. With nourishment, the beach is growing by an average of 4.1 feet per year. He displayed a graph showing the beach width measurements from 1963 to 1997, and an aerial photo taken of the groins in December of 1997. He also displayed a photo of trucks working in Surfside Beach in 1992. Assistant City Manager Kiff displayed a list of the concerns that have been expressed about the project. These included that the material's mix, which is sand and sediment, will harm water quality and stay present too long. He pointed out that the material will be tested and that a mix of greater than 15% sediment will go to a landfill. He explained that it's the sediment that carries the pollutants. Another concern is that the material will be darker than the existing sand, which he stated would most likely be true, but that it would bleach out over a period of time. He stated that the City is in agreement with another concern, which showed a beach width limit of 350 feet in the environmental documents, but that the limits are really greater than that. Concerns have also been expressed about the project being unnecessary because the beaches aren't Volume 56 - Page 1181 City of Newport Beach City Council Minutes August 24, 2004 INDEX receding. Assistant City Manager Kiff explained that they would recede if there were no nourishment projects, such as the one under discussion. In response to Council Member Rosansky's question, Harbor Resources Manager Rossmiller stated that, currently, the average width of the beach is approximately 200 feet. Council Member Rosansky asked how many years of protection the project would provide. Manager Rossmiller explained that it would be dependent on numerous conditions and environmental factors and that one wave event, for example, could cause a significant loss. Referring to the photo displayed earlier of the groins in December of 1997, Manager Rossmiller stated that it was taken after the replenishment was done and after the El Nino storm of that year. He noted some of the geographic features in the area, and stated that they explain why the center of the groinfield is subject to severe erosion. Council Member Rosansky asked how much beach was lost during the El Nino storm. Manager Rossmiller stated that not much was lost because it wasn't associated with a large swell. Assistant City Manager Kiff continued with the list of concerns that have been expressed about the project by stating that another concern was that the disposal method chosen was the cheapest, but the most beach and resident impacting. He stated that this is true. Another concern is that the jetties would be entirely filled, which would cause several impacts. Assistant City Manager Kiff stated that impacts are possible, but that they are short -term and the decision needs to be made on whether the project is worth any short -term impacts. Council Member Nichols asked if the offshore deposit of the sand would cause a flatter beach and the onshore deposit would allow the shoreside sand to be built up to a higher amount. Manager Rossmiller stated that the offshore option would keep the sand within the literal cell, which is good, but it would not guarantee where it would go and would be dependent on wave activity. Council Member Rosansky asked if the sand were to be placed elsewhere, if it would eventually migrate back to Newport Beach. Manager Rossmiller stated that it could, given the right wave activity. He added that there would be a short -term impact on surf breaks that could last for a couple of weeks to a couple of months. Manager Rossmiller stated that the long -term benefit of having the protection to the back beach is far outweighed by the short -term impacts, and that public education could also help with the surf break impact. Assistant City Manager Kiff stated that there were also concerns expressed about the noticing of the project, but that four notices were sent and the mailing list is available for anyone that would like to see it. Another concern was that access to the water during construction would be too limited. He stated that this is a fair concern. Lastly, there was a concern expressed for the noise, dust and pollutants if trucks are used, as opposed to the nearshore disposal method. He again agreed that this would also be true. Assistant City Manager Kiff concluded his comments by stating that the staff recommendation is listed on the agenda and Volume 56 - Page 1182 City of Newport Beach City Council Minutes August 24, 2004 INDEX included in the staff report. Council Member Nichols asked if any of the sand could be deposited in Big Corona. He also asked if building up the shoreside could only be done with the onshore deposit method. Assistant City Manager Riff stated that the Corps has a policy of not moving sand from one literal cell to another, and Big Corona is in a different literal cell. Secondly, he stated that the environmental documents didn't evaluate this option. Council Member Nichols stated that sand is needed in Corona del Mar. Mayor Ridgeway suggested that a straw vote be taken on the draft letter and staffs recommended action, and reminded everyone that the City- is limited in what it can do and that the project has started. He stated that the City supports the public's concerns and will do its best, but that sand replenishment is needed in Vest Newport. He added that the City has a long -term working relationship with the Corps. Council Member Rosansky stated that the position of the City should be that it will not permit the deposit of the sand on the beach and that the Corps will be urged to look strongly at the ocean disposal method. He suggested that in the issuance of the encroachment permit by the City, if one is issued, that it specifically preclude anything other than water disposal without authorization by a majority- vote of the City Council at a public meeting. Motion by Council Member Rosanskv to 1) direct the City Manager to investigate contracting with a firm with an expertise in coastal engineering to monitor and review any work done along West Newport's beaches; 2) authorize the Public Works Director to issue an Encroachment Permit for the Lower SAR Project that: a) requires contractor compliance with existing Environmental Assessments; b) requires contractor communication with City's oversight staff, if hired; and c) allows sand transport to be done solely via dredge or water -borne suspension; and 3) authorizes the Mayor to write a letter to the US Army Corps of Engineers and to the Orange County Board of Supervisors stating the City's position that: a) sand replenishment is an important protective measure for West Newport; b) the City desires that any replenishment work be done via dredge in the near -shore zone to minimize resident and visitor impacts along the beach; and c) all beach disposal work done should be in accordance with the Project's Environmental Impact Statement and related Supplemental Environmental Assessments, supporting the limit of not more than 350' of beach width following beach disposal. Council Member Nichols questioned the judgment being made by the City Council, noting the lack of engineering background on the subject by its members. Council Member Rosanskv stated that it's a matter of economics and what makes sense. He stated that the contractor can't be faulted for selecting the cheaper disposal method that was allowed by the job specification. He expressed his understanding that it would cost an Volume 56 - Page 1183 City of Newport Beach City Council Minutes August 24, 2004 INDEX additional $1 million to put the material out into the ocean. Assistant City Manager Kiff stated that withholding the encroachment permit is not advisable. He stated that the City's relationship with the Corps is important, and that sand in West Newport is needed. Council Member Bromberg asked if the Corps was aware of the agendized item at the current meeting and how they feel about it. Assistant City Manager Kiff stated that staff talks daily with the Corps, and that they have been responsive and expressed every intent to try to work within the contract to deposit the material offshore. In response to an additional question by Council Member Bromberg, Public Works Director Badum stated that no official application for an encroachment permit has been received to date. Council Member Bromberg expressed his understanding of not wanting to jeopardize the City's relationship with the Corps, but asked if the City could deny the encroachment permit after the Corps had exhausted the option of the offshore disposal method. Council Member Rosansky stated that the project is set to begin depositing sand on September 8, 2004, and the City Council doesn't meet again until September 14, 2004. He stated that his suggestion is not to withhold the issuance of an encroachment permit, but to include the disallowance of putting sand on the beach, if one is issued. If the Corps insists that putting the sand on the beach is the only way that they can do the project, they would then need to come back to the City Council for approval. Council Member Bromberg stated that he is concerned that if there is no pressure on the Corps by the City, they won't try hard enough. Assistant City Manager Kiff stated that the Corps would have the option to take the sand and sell it elsewhere, which would mean that the City would lose the opportunity of receiving the sand and would have to get it from another source in the future. He expressed his concern for the effect this would have on the City's resources and budget. Council Member Bromberg stated that if the City bought the needed sand, it could deposit it how it wants to. Council Member Rosansky stated that much of the sand that will be dredged can't be used for most construction projects and has little economic value, due to the seawater and salt content. Additionally, he stated that the Corps is being required by the State to deposit the sand into the beach and that it can't be sold. Council Member Rosanky further noted that the project is part of a bigger project, and needs to be done by the Corps. He expressed his belief that the Corps and the contractor are willing to look at alternatives for disposal. Council Member Heffernan asked what the impact of the City Council's decision will be on other projects. Assistant City '_Manager Kiff stated that it could jeopardize them. He explained that anytime the City does not appear to be working with the Corps, the information reaches the heads of the district and Washington, D.C. offices who take this into consideration when making funding decisions on projects that help the Volume 56 - Page 1184 City of Newport Beach City Council Minutes August 24, 3004 t;ity. INDEX Council Member Bromberg stated that the City should not be punished by the Corps for wanting to protect the beach. He stated that he would contact Congressman Cox and seek his assistance, if needed, but believes that the Corps has more respect for the City than to have a decision on this project affect other projects. Council Member Rosansky stated that Congressman Cox has already indicated to him that he will support whatever action is taken by the City Council at the current meeting. Council Member Rosansky assured everyone that the upper bay and harbor projects will occur, regardless of what happens in Vest Newport. Larry Paul, Tetra Tech, consultant to the City, stated that the Corps is under funded, is undergoing some different budgeting processes than they have in the past, and is prioritizing their major projects by some new criteria. Local support of its projects is taken into consideration, and Newport Beach has always provided this. He stated that the Corps does listen, but that it's simply a matter of money for them. They want to do the right thing and congressional assistance is appreciated. Mr. Paul stated that the sand replenishment project does not have to take place this year, and that there is a limited amount of money for the overall Santa Ana River project. The money could be used elsewhere, such as Prado Dam. Mr. Paul stated that an extensive amount of lobbying will be needed if extra money is to be obtained for offshore disposal. Council Member Nichols stated that water supply is a major concern in Southern California. He cited the expenditures and projects that are needed to insure that this issue is also addressed. Council Member Rosansky asked if the Corps plans to turn the project over to the Flood Control District once it is completed. Mr. Paul responded in the affirmative and stated that it wasn't a part of the original project documents, but it is an agreement between the Corps and the district. He didn't know what would happen if the project weren't completed. Council Member Webb stated that he couldn't recall any projects in the past that hauled material directly from the river onto the beaches. He stated that the previous hauls came from sand that was on the beaches and that they also had short -term impacts. He expressed his concern for the draft letter stating that the City would never allow trucking of sand on the beach again. He stated that this wouldn't be appropriate because it might be necessary in the future to deposit sand farther down the beach than can be reached with hydraulic dredging. He suggested that the letter indicate that the elimination of trucking on the beach is regarding the current project only. Council Member Webb stated that the City needs to attempt to have the material hydraulically placed and that he can't support having the material trucked onto the beach, unless there is a requirement that it be 96% sand. Volume 56 - Page 1185 City of Newport Beach City Council ➢Minutes August 24, 2004 INDEX Council ?Member Rosansky expressed his support for Council Member Webb's comments, and stated that he also wouldn't want to affect trucking in the future in case it might be needed for a different project, but that he is opposed to it for the current project. Mayor Ridgeway stated that he is no more confident today than he was a couple of years ago that the upper bay dredging project will be funded. He explained that the President does not support the Corps' projects. Mayor Ridgeway stated that there is a severe risk in not doing the replenishment project, because a storm in the future could take away the beach. He asked if the City Council could delay the issuance of an encroachment permit until the meeting of September 14, 2004. Acting City Attorney Clauson stated that Council Member Rosansky's suggestion would be to authorize staff to issue an encroachment permit with the preferred process, as outlined in the draft letter. She stated that if this is done and the Corps can't comply with the requirements of the encroachment permit, the matter would have to return to the City Council. She stated that this approach allows everyone the opportunity to work together, and does not make a statement by the City Council that they won't allow the work to be done on the beach, only that the Corps is being asked to explore other options. Mayor Ridgeway expressed his support for such an approach and confirmed that the requirements would include the issue raised by Council Member Webb. Council Member Rosansky stated that the contractor has indicated that the contract wouldn't necessarily have to be terminated if changes are made. Additionally, Acting City Attorney Clausen confirmed that encroachment permits are issued under a Council- adopted policy, so the City Council is within its authority to place limitations on the permit. Mayor Ridgeway asked for a straw vote of the action under consideration. Council Member Nichols stated that he was undecided. Council Members Webb, Bromberg and Rosansky, and Mayor Pro Tem Adams stated that they were in support of it. Council Member Heffernan asked if the City is contributing any money towards resolving the concerns. City Manager Bludau stated that staff is only proposing to spend the money that would be needed for a contract oversight person. Council Member Heffernan confirmed with Mayor Ridgeway that he doesn't feel that delaying the issuance of an encroachment permit to September 14, 2004, would jeopardize the upper bay dredging project with the Corps, and expressed his support for the action. Mayor Ridgeway expressed his support, as well. Council Member Nichols asked why Manager Rossmiller couldn't oversee the project. Mayor Ridgeway announced that public comments on the item would be limited to three minutes. Volume 56 - Page 1186 City of Newport Beach City Council Minutes August 24, 2004 INDEX Jim brooks expressed his support for dredging the river and depositing the material offshore. He did not support depositing it on the land. Mr. Brooks stated that the Corps made an error when allowing the contractor to bid either method, and the City Council should not worry about its relationship with the Corps when trying to do what's right. He disagreed with some of the statistics that were presented by staff, and stated that they were only best guesses. Michele Brooks stated that the fine black silt from the sand blows into her home and is a result of the material that was deposited on the beach in 1997. She added that she did not receive the noticing that was discussed earlier. She stated that the health and safety of the residents and visitors shouldn't have to be compromised, and that the City Council should use stronger language in the draft letter. Council Member Webb confirmed that Ms. Brooks' address was included on the list of those who received the notices. Ms. Brooks stated that the City didn't receive returned mail, so doesn't know how many of the notices actually reached their destinations. Barbara De La Pena stated that the City's statistics are not accurate and are outdated, and that a compromise with the Corps is unacceptable. She stated that sand contains silt and holds pollutants, and depositing it on the beach would be the equivalent of littering. Everett Phillips suggested that the City Council consider the least tern island, and the canals and channels in the salt marsh in the draft letter, and that the contract person also take these areas into consideration. Mr. Phillips stated that this is an opportunity to push the Corps to move ahead on the dredging of the canals around Newport Shores and the salt marsh. Ann Krueger displayed photos, which showed how much the area is filling up. She stated that it's a serious problem and that before too long, water won't be able to get out through the storm drain near her house. Jim Hildreth stated that he supports dredging, as long as it is done the right way, and that hydro dredging is not the right way. He stated that the City Council should consider contaminants when drafting the letter and that testing would be very important. Mr. Hildreth stated that the City should offer a clean environment, and that the letter should mandate that the material be tested. John Olson asked the City Council to also consider dredging the canals and channels in Newport Shores, while the equipment is available. He stated that the area has a potential for flooding. Cathy McQueen thanked the City Council for their effort in trying to keep the sand off the beach and protecting the sea life in the jetty. Dave Bent wanted confirmation that dumping would not begin on September 8, 2004. He stated that the Corps has never stated that they Volume 56 - Page 1187 City of Newport Beach City Council Minutes August 24, 2004 would stop it, only that they would look at other ideas. Mr. Bent stated that flooding is unlikely during this period of drought. Mayor Ridgeway didn't know if the City's proposed action would stop the work from beginning. Council Member Rosansky stated that he didn't believe that the Corps would force the issue, and that September 8, 2004, is only the first date that they could begin depositing sand and not a date that they've set to do so. Mr. Bent expressed his concern for depositing the material on the beach without any, cleaning or testing. Charles Darcaya stated that he only became aware of the issue earlier in the day and owns two properties in the area. He stated that the repercussions of the project include the effect it will have on the City's economics and tourism. Jim Miller thanked the City Council and those in attendance at the meeting. Mayor Ridgeway stated that the letter doesn't promise dredging so the equipment may not be available. He added that trucking can occur under the suggested scenario to the nearshore zone. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None P. ITEMS REMOVED FROM THE CONSENT CALENDAR 13. COMMENTS ON DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT (DSEIR) FOR PELICAN HILL RESORT. Council Member Heffernan asked why the Environmental Quality Affairs Citizens Advisory Committee (EQAC) didn't receive the new Environmental Impact Report (EIR) to comment on. Assistant City Manager Wood explained that the entire Newport Coast development was done with a tiering of EIR's, and that supplemental EIR's were done when more was known about a project. She stated that EQAC reviewed the most recent supplement that analyzed the latest proposal for Pelican Hill Resort. She confirmed for Council Member Heffernan that staff feels this is adequate. Motion by Council Member «'ebb to approve and authorize the Mayor to send the comment letter. Council Member Nichols stated that more time was needed for EQAC to consider the item properly. Volume 56 - Page 1188 INDEX (100 -2004) City of Newport Beach City Council Minutes August 24, 2004 In response to Council Member Heffernan's question, Assistant City Manager Wood stated that the deadline to receive comments is September 8, 2004. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Q. MOTION FOR RECONSIDERATION — None R. ADJOURNMENT at 11:38 p.m. in recognition of the contributions of Mayor Pro Tern Adams. The agenda for the Regular Meeting was posted on August 18, 2004, at 2:30 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 August 20, 2004, at 3:00 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk I VL Recording Secre ary Mayor l Volume 56 - Page 1189