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HomeMy WebLinkAbout03/09/2004 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting March 9, 2004 - 7:00 p.m. - 4:00 p.m. 11017 D1V CLOSED SESSION - 5:35 p.m. A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Absent: None C. CLOSED SESSION REPORT - Mayor Ridgeway announced that the City Council unanimously approved a settlement of the Scrimgeour case in the sum of $100,000. The City Council took no reportable action on other items. D. PLEDGE OF ALLEGIANCE - Council Member Heffernan E. INVOCATION - Reverend Dr. Dennis Short, Harbor Christian Church, President of Newport -Mesa- Irvine Interfaith Council F. PRESENTATIONS Sons of the American Legion Proclamation. Mayor Ridgeway read the proclamation to be presented to the American Legion, proclaiming March 14, 2004, as the 70th anniversary of the founding of the Sons of the American Legion, Squadron 291. 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 a report be provided to the City Council on how the City is addressing the rehabilitation homes on the peninsula and asked when the item will be agendized. He specifically requested that the use permit issue be addressed. City Attorney Burnham reported that the ordinance modifications are expected to be considered by the Planning Commission in approximately 60 days, and that the use permit requirements for a specific project are currently being investigated and would be handled at the staff level. Volume 56 - Page 738 City of Newport Beach Regular Meeting March 9, 2004 INDEX Mayor Ridgeway stated that he would also be forwarding three homes not on the City's list to the City Attorney. Mayor Pro Tem Adams announced that he has formed a task force in his district to address the traffic problems in the area of Corona del Mar High School. He stated that the task force held its first meeting on March 8, 2004, and will continue to meet until satisfactory solutions to the problems are determined. Council Member Bromberg stated that in December of 2003, the City adopted the lst Battalion, 1st Marines out of Camp Pendleton, also known as "The One One". The City engaged in a letter writing campaign to the marines deployed in Iraq and the response was incredible. Council Member Bromberg announced that he has formed the Newport Beach One One Committee, and he would be reporting on events at future meetings. Council Member Bromberg announced that the Newport Beach Relay for Life, a fundraiser and awareness event sponsored by the American Cancer Society, is one of 3,000 relays put on throughout the country. He stated that the Newport Beach event will begin at 6:30 p.m. on May 14, 2004, at Newport Harbor High School, and continue over a 24 -hour period. Council Member Bromberg stated that it's a fun event and that additional information can be obtained by contacting Stephanie Taylor at 949 - 567 -0611. Council Member Webb congratulated "Go & Do Likewise" for its cleanup of 1810 Dover Drive. He also acknowledged the efforts of Deputy City Attorney Ohl and Code & Water Quality Enforcement Manager Sinasek. Council Member Webb announced that the 31st Annual Roman Feast & Charity Auction, put on by YES, the Youth Employment Service of the Harbor Area, would be taking place on May 6, 2004, at the Costa Mesa Neighborhood Community Center. He stated that additional information can be obtained by contacting Christine Carr at 949 - 642 -8306. Council Member Webb announced that the Centennial Committee met to discuss its membership and goals. He requested that an item be placed on the agenda of the March 23, 2004, City Council meeting to expand the membership of the committee to include the Recreation & Senior Services Director, the Library Services Director, a member from the Chamber of Commerce, a member from the Conference & Visitors Bureau, a Nautical Museum representative, seven citizens and possibly the City Manager. He requested that the appointments be scheduled for the meeting of April 13, 2004. Council Member Nichols announced that the issue regarding the relinquishment of Coast Highway in Corona del Mar will be on the agenda of the March 23, 2004, City Council meeting. He encouraged those that are concerned about the issue or those that travel through the area to get an idea of what will be occurring and provide input. Volume 56 - Page 739 City of Newport Beach Regular Meeting March 9, 2004 • Mayor Ridgeway announced that the Planning Commission met on March 4, 2004, and will be meeting again on March 18, 2004, to discuss the Local Coastal Plan (LCP). He encouraged those that would like to make comments on the LCP to attend the meeting on March 18th, and added that the document is available at the library or on the City's website. • Council Member Heffernan announced that applications for the City Attorney's position are due on March 15, 2004. Assistant City Manager Wood announced that the City is still seeking individuals to serve on the General Plan Advisory Committee (GPAC), and that applications can be obtained by contacting the City Manager's office at 949 - 644 -3002. • Mayor Ridgeway suggested that publicity for the GPAC openings be done in the Daily Pilot. I. CONSENT CALENDAR READING OF MINUTESIORDINANCES AND RESOLUTIONS 1. Item removed from the Consent Calendar by Council Member Nichols. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. ORDINANCE FOR ADOPTION 3. CODE AMENDMENT NO. 2003 -010 (PA2003 -289) — PROPOSED AMENDMENT TO SECTION 20.65.070 OF THE NBMC TO ALLOW ELEVATOR SHAFTS IN EXCESS OF 25 SQUARE FEET IN AREA TO EXCEED APPLICABLE HEIGHT LIMITS, BY NO MORE THAN 5 FEET, WHEN MANDATED BY THE BUILDING CODE AND FIRE DEPARTMENT. Adopt Ordinance No. 2004 -3 approving Code Amendment No. 2003 -010. RESOLUTIONS FOR ADOPTION 4. RESOLUTION TO EXTEND THE TERM OF THE CITY COUNCIL AD HOC OASIS COOPERATIVE AGREEMENT COMMITTEE. Adopt Resolution No. 2004 -18 extending the term of the Ad Hoc OASIS Cooperative Agreement Committee to December 31, 2004 or on the date the City Council approves a Cooperative Agreement, whichever occurs first. 5. BALBOA VILLAGE BUSINESS IMPROVEMENT DISTRICT RENEWAL: ANNUAL REPORT FOR FISCAL YEAR 2003 -2004 AND ADOPTION OF RESOLUTION OF INTENTION TO LEVY FOR FISCAL YEAR 2004 -2005. 1) Approve Balboa Village Business Improvement District 2003 -2004 Annual Report, and 2) adopt Resolution Volume 56 - Page 740 INDEX (100 -2004) (1.00 -2004) (100 -2004) City of Newport Beach Regular Meeting March 9, 2004 of Intention No. 2004.19 and set the public hearing for March 23, 2004. CONTRACTS AND AGREEMENTS 6. BALBOA ISLAND PAVEMENT REPAIR, PHASE III — CRYSTAL, ABALONE NORTH OF PARK AVENUE, COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3648). 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 one (1) year after Council acceptance. BIG CANYON RESERVOIR LANDSCAPE IMPROVEMENTS, COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3599). 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 one (1) year after Council acceptance. 8. CITYWIDE SLURRY SEAL PROGRAM FY2003 -2004 — AWARD OF CONTRACT (C- 3647). 1) Approve the plans and specifications; 2) award the contract (C -3647) to Bond Blacktop, Inc. for the total bid price of $357,097.50 and authorize the Mayor and the City Clerk to execute the contract; 3) establish an amount of $35,000 to cover the cost of unforeseen work; and 4) approve geotechnical work in the amount of $3,500. 9. IRVINE TERRACE VALVE REPLACEMENT — REJECT BIDS FOR CONTRACT (C- 3643). Reject the bid received for C -3643 and authorize staff to re- evaluate project design and re- advertise the project at a later date. MISCELLANEOUS ACTIONS 10. APPOINTMENT TO THE COASTALBAY WATER QUALITY CITIZENS ADVISORY COMMITTEE. Confirm Council Member Nichols' appointment of Janet Rappaport as the District 6 representative to the Coastal/Bay Water Quality Citizens Advisory Committee. 11. ACCEPTANCE OF U.S. DEPARTMENT OF JUSTICE COPS TECHNOLOGY GRANTS. 1) Accept for administrative purposes the transfer of three U.S. Department of Justice, Office of Community Oriented Policing Services (COPS) Technology Grant Awards in the total amount of $1,989,148; 2) authorize the Administrative Services Director to establish revenue and expenditure accounts in the Capital Improvement budget to facilitate the administration of these grants on behalf of all municipal police departments and the Sheriffs Department in Orange County; and 3) approve a budget amendment (BA -036) to increase revenue estimates and expenditure appropriations related to the administration of the three grants. Volume 56 - Page 741 INDEX C -3648 Balboa Island Pavement Repair (38/100 -2004) C -3599 Big Canyon Reservoir Landscape Improvements (38/100 -2004) C -3647 Citywide Slurry Seal Program (38/100 -2004) C -3643 Irvine Terrace Valve Replace. (38/100 -2004) (100 -2004) (100 -2004) City of Newport Beach Regular Meeting March 9, 2004 12. CALIFORNIA BOARD OF CORRECTIONS GRANT AWARD "EVERY 15 MINUTES — SUBSTANCE ABUSE PROGRAM ". 1) Approve acceptance of a $19,228 grant from the State of California, Board of Corrections (BOC A301); and 2) approve a budget amendment (BA -040) increasing expenditure appropriations by $19,228 in the Police Substance Abuse Program Account 1850 -9019 (the remaining $2,136 of required City matching funds will be funded from the Police Department's Narcotics Asset Forfeiture Fund in Account 1210 - 9300.) S21, APPROVAL OF AGREEMENT WITH KEY GOVERNMENT FINANCE, INC. AND CARD METER SYSTEMS (CMS) TO PURCHASE NEW COPIER EQUIPMENT AND PROVIDE PUBLIC PRINT, COPY AND COMPUTER ACCESS AT THE NEWPORT BEACH PUBLIC LIBRARIES. Approve a Lease /Purchase Agreement with Key Government Finance, Inc., (C -3691) and a Document Management and Support Services Agreement with Card Meter Systems (CMS) [C- 3691(A)] to provide equipment, service and software for public copying, printing and computer access /time management at the libraries for a fee of $4,785.90 per month and authorize the Mayor and the City Clerk to execute the agreements subject to final review and approval by the City Attorney. Motion by Mayor Pro Tern Adams to approve the Consent Calendar, except for the item removed (1). The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None J. PUBLIC HEARINGS 13. CALL FOR REVIEW OF MODIFICATION PERMIT NO. 2004 -007 (PA2004 -019) — 1807 PORT TIFFIN PLACE. Council Member Heffernan stated that the Modifications Committee approved a waiver to the setback for the construction of a trellis, fireplace and gazebo at 1807 Port Tiffin Place. He asked why the variance was granted and if the project went through the homeowners association first. Mayor Ridgeway noted that it wasn't a variance that was granted, it was a modification. Council Member Heffernan further noted that the approval allowed a fireplace to be placed at the property line. He asked if the City's standards include requirements for fireplaces in regard to setbacks and heights so that they don't create a nuisance and if the fireplaces create a fire hazard of any kind. Assistant City Manager Wood stated that there is an important distinction between a variance and a modification. A variance requires a public hearing before the Planning Commission and Volume 56 - Page 742 INDEX (100 -2004) C•3691 C- 3691(A) Public Print, Copy and Computer Access at the Libraries (38/100 -2004) Modification Permit No. 2004 -007 1807 Port Tiffin Place (94/100 -2004) City of Newport Beach Regular Meeting March 9, 2004 INDEX four findings for approval. Modification permits are for less significant differences from what the zoning allows and require only one finding to be made for approval, which is that there will not be significant adverse impacts to the surrounding property owners and uses. Council Member Heffernan asked why the applicant's request qualified for the modification permit process. Assistant City Manager Wood explained that the City's code specifies that encroachments into setbacks are handled through the modification permit process. She also stated that she wasn't sure if the request went through the homeowners association first, but that the City does encourage applicants to receive homeowners association approval prior to requesting a permit from the City, even though the City has no enforcement authority for homeowners association rules and could not withhold a permit for that reason. Assistant City Manager Wood also stated that the Modifications Committee approval was for a gas fireplace. She added that staff is looking at updating the code regarding fireplaces. Council Member Heffernan confirmed that the City has no authority over the design of a fireplace. He further confirmed that the letter from a neighbor in opposition to the request was received by the City after the decision was made by the Modifications Committee. Mayor Pro Tem Adams asked the likelihood of the Modifications Committee granting the approval if they'd received the letter beforehand. City Manager Bludau stated that the Modifications Committee wouldn't deny a request based solely on a neighbor stating that they would be impacted by the project. The Modifications Committee would confirm if there was an impact. Council Member Heffernan asked if the gazebo was inhabitable, noting that there would be a light in the structure. Assistant City Manager Wood stated that it didn't appear that it would be inhabitable due to the trellis -like open construction. In follow -up to the previous conversation, she also stated that the Modifications Committee would give more consideration to opposition from neighbors if a number of people voiced concerns. Mayor Ridgeway noted that 35 -foot lots have 3 -foot setbacks and many have lights alongside the homes. He also noted that built -in barbecues are allowed on the property line, are not vented and no less of a danger than the proposed fireplace. Mayor Ridgeway stated that both occur on the peninsula and are a part of urban life. Mayor Ridgeway opened the public hearing. Jim Hildreth stated that it's a fireplace that is being requested by the applicant. He further stated that the variances that are being asked for will be changed anyway, because the City won't enforce them. Council Member Heffernan noted that the opposition letter was received from a neighbor who is across and down the street from the applicant, which he felt should be given less weight than one that might have been received from an adjacent neighbor. Volume 56 - Page 743 City of Newport Beach Regular Meeting March 9, 2004 INDEX Dolores Otting stated that she learned about planned community text, setbacks, variances and modifications when a developer requested a modification for a house being built next door to her. She noted that she was opposed to what the Modifications Committee allowed in that instance. Referring to the current request, Ms. Otting stated that she is opposed to property owners infringing on setbacks. She stated that neighbors need to be respectful of each other. She disagreed with the applicant getting preferential treatment, and stated that the City Council has the fiduciary responsibility to insure the property rights of everyone in the community. Robert Walchli agreed with Mr. Hildreth that too often plans are changed after the fact. He stated that any negative impact on a surrounding property should be sufficient cause to deny a modification request and that plans should be provided to neighbors prior to construction. He stated that the problem isn't unique to Newport Beach. Paul Westhead, the applicant, stated that he did check with his neighbors and showed them the plans. He confirmed that changes will not be made to what is approved. Council Member Heffernan asked Mr. Westhead if he received approval from the homeowners association. Mr. Westhead responded in the negative and stated that he wanted to seek City approval prior to going to the homeowners association. He added that he didn't know if homeowners association approval was required, since none of the project is visible from the street. He further noted that the president of the association is a neighbor of his and aware of the project. Council Member Nichols stated that the fireplace is at the interior corner of the property where it affects four lots, and the lattice work is on the back property line where it also affects the neighbors more. He stated that it is obvious that parties and activity will be occurring away From the house and affecting the neighbors more, but that the neighbors also don't appear to be having a problem with it. Council Member Nichols expressed his assumption that the homeowners association would most likely address the issue and that if the neighbors have a problem with the project, they should make their concerns known. He stated that the City Council hasn't received such opposition. In response to earlier comments about preferential treatment, Mayor Pro Tom Adams stated that everyone has an equal opportunity to apply for a modification. He further noted that there are reasons for setbacks and that the Modifications Committee assesses the impacts of the setbacks from a technical standpoint. He stated that if it's determined that a request isn't compromising the reasons for setbacks and the adjoining neighbors don't have a problem with it, then it meets the requirements for a modification. He stated that this appears to be the case with the current request. Hearing no further testimony, Mayor Ridgeway closed the public hearing. Motion by Council Member Heffernan to uphold and affirm the Volume 56 - Page 744 City of Newport Beach Regular Meeting March 9, 2004 decision of the Modifications Committee to approve Modification Permit No. 2004 -007. Mayor Ridgeway noted the conditions for approval established by the Modifications Committee for the project, and stated that the modification permit process worked well in this situation. Council Member Bromberg asked Mr. Westhead if he had any intentions of using the fireplace as a barbecue and cooking on it. Mr. Westhead responded in the negative. Amended motion by Council Member Heffernan to uphold and affirm the decision of the Modifications Committee to approve Modification Permit No. 2004 -007 with two added conditions, to include 1) prior to the issuance of building permits for the fireplace and trellis, the property owner shall obtain written approval from the easement's holder(s) for the proposed improvements located within the easement area, and 2) the proposed fireplace shall be restricted to gas burning only. Council Member Heffernan asked if the City could require a condition that the homeowners association must approve the project. City Attorney Burnham responded in the negative. The amended motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 14. RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN AND DIRECT STAFF TO ACQUIRE THE REAL PROPERTIES LOCATED AT 1971 MESA DRIVE AND 20401 ACACIA STREET. Mayor Ridgeway announced that he received a letter from Geoffrey Payne, dated March 9, 2004, that will be made a part of the record. Fire Chief Riley stated that due to the loss of the ability for the County to serve Newport Beach with fire protection out of their John Wayne Airport fire station in late 2000, the City installed a temporary fire station in February of 2001, to serve the citizens of Santa Ana Heights and the surrounding areas. He reported that there is a need for a permanent fire station in the area, and the City has been working with the County and the Santa Ana Heights Project Area Committee (SAHPAC). Fire Chief Riley stated that We taken a long time to acquire sites because of the time it took to conclude the annexation of the area where the property would be located. He further explained that the site selection for a fire station is unique and many concerns must be taken into consideration, such as the site characteristics themselves, the impact on the neighbors and the potential to support the entire response time scheme. Fire Chief Riley stated that these site acquisition concerns limited the search to an area Volume 56 - Page 745 INDEX (100 -2004) City of Newport Beach Regular Meeting March 9, 2004 INDEX known as the `Birch/Mesa Business Park" area and that five parcels were identified as being suitable to meet the City's fire station needs. After the completion of the annexation, three sites remained available and staff selected a site that most nearly met the needs of a fire station and had the least impact on the community. The City then entered into negotiations with the two property owners and made an offer for the full appraised value. A developer has also made an offer to the property owners for an amount well above the appraised value. Fire Chief Riley stated that the recommended actions in the staff report direct staff to continue to attempt to acquire the sites as the most suitable location for a fire station and training facility for the City, utilize the eminent domain process if necessary and set aside the funds that would be needed to move forward. Fire Chief Riley introduced Doug Evertz, counsel on the eminent domain action, Roger Cunningham, property acquisition agent, the property owners, Ms. Davis and Ms. Murray, and the developer who made the competing offer. Mayor Ridgeway opened the public hearing. Jim Hildreth stated that the public hearing is being opened too soon and that more things need to be looked into when a fire station is relocated. He stated that the Balboa Island fire station has caused a great deal of turmoil due to its height. He also questioned the need for a training facility at the proposed fire station in Santa Ana Heights. He stated that a variety of issues need to be addressed. Kim Davis, property owner, stated that the City has placed a great deal of stress on her family over the acquisition of the property. She stated that her parents had no intention of selling, but a condemnation threat has been made about the condition of the property, they are afraid to spend money for repairs, and Steadfast Properties has made an offer to buy the property for $45.50 foot. She stated that the City's offer is $33 per foot and isn't fair. Ms. Davis asked the City Council to consider the effect that the City is having on her parents and their health. She stated that the stress is going to kill them. Mayor Ridgeway asked if the Davis's had entered into an agreement with Steadfast Properties. Ms. Davis responded in the affirmative, and stated that the property is in escrow because her parents are afraid that the property is going to be condemned. City Manager Bludau asked if her parents were stressed over the agreement with Steadfast Properties. Ms. Davis stated that her parents feel forced into selling their property, but that the offer with Steadfast Properties at least gives them fair market value and the opportunity to purchase another home. Council Member Bromberg asked for an explanation of how the fair market value of the property was determined. Geoffrey Payne, attorney for Steadfast Properties, stated that the property is located within a business park, that Steadfast Properties has built 250,000 square feet in the immediate area and the property under consideration is the premier piece of property in the area. He stated that their proposal would provide the highest and best use of the property. In Volume 56 - Page 746 City of Newport Beach Regular Meeting March 9, 2004 INDEX addition, Mr. Payne stated that Steadfast Properties has offered to work with the City in also locating a fire station on the site. He questioned the need for a training facility, the square footage being proposed for the fire station and if this is the best use of taxpayer dollars. Mr. Payne also asked why the other two sites, mentioned by the Fire Chief, weren't given additional consideration. He stated that the costs the City will have to pay to go through an eminent domain case should also be considered, and explained that the property is already in escrow for its fair market value. He asked the City Council to reconsider the staff recommendation or work with Steadfast Properties on sharing the property. Mayor Ridgeway questioned the information in Mr. Payne's letter that stated that Steadfast Properties bought property in the area for $40 per square foot. Mayor Ridgeway stated that the appraisals done for the City did not show such comparables. Gil Moureau, Voit Commercial, stated that he handled the $40 per square foot property purchase transaction and received the call from the appraiser. He explained that at the request of the owner, he was asked not to divulge the information. Mayor Ridgeway asked if the information was now public, and what the address and size of the property was. Mr. Moureau stated that it's the property directly across the street from the property under consideration and consists of five parcels totaling approximately 100,000 square feet. Mayor Ridgeway requested that Mr. Moureau provide the closing statements for each of the five parcels. Referring to the proposed resolution in the staff report, City Attorney Burnham stated that the City is only required to pay the fair market value of the property, which will be determined by the appraisals or by the court. He stated that the consideration before the City Council at the current meeting is whether the project is necessary, has been properly planned and is located to provide the most public good. Mayor Ridgeway stated that an accurate appraisal is still needed and that decisions will be based on that appraisal. City Attorney Burnham encouraged Mr. Moureau to provide the information as soon as possible, but noted that the proposed resolution does not terminate the opportunity to negotiate the fair market value of the property. Council Member Heffernan stated that if the proposed resolution commits the City to purchasing the property, the value of the property should be known. City Attorney Burnham stated that the proposed resolution authorizes the initiation of eminent domain proceedings, which does not commit the City to acquiring the property. He further noted that the project will primarily be funded by redevelopment funds. Mayor Ridgeway stated that the recommended action also proposes to deposit funds for the amount of the purchase price. Mr. Evertz stated that the City can withdraw from the eminent domain proceedings at any time and the property will have to be reappraised anyway as of the date of value. The additional information can be considered at that time. Council Member Bromberg asked how the fair market value of the Volume 56 - Page 747 City of Newport Beach Regular Meeting March 9, 2004 INDEX property was determined. Mr. Evertz stated that it was done by the appraiser that was retained by the City. Laurie Murray, property owner and Ms. Davis's sister, agreed that the area needs a fire station, but disagreed that the size of the property being proposed is necessary. She stated that the City will be spending more money than is necessary. Mayor Ridgeway stated that the City offered to buy both parcels because the same family owned them. Ms. Murray stated that she purchased her property so that the Davis's would have a buffer zone from the commercial development taking place in the area. She stated that there must be another parcel in the area that's better suited and provides the amount of space that's really necessary for a fire station. Wayne Stewart, real estate broker and relative of the property owners, stated that the value of the property is germane to the current action before the City Council. He stated that an appraisal is an art, not a science, and the appraisal that was done for the City is too low. He disagreed with the comparables that were used. He stated that the value of a property is the amount that buyers are willing to pay, and that the City will have to end up paying $45 to $50 per square foot. Dolores Otting asked what happened to the other two parcels initially under consideration. She stated that it's important for the City Council to determine what it will have to pay for the proposed site before taking any action and asked where the money will come from. She asked if the City would lose the redevelopment money if a fire station is not built in Santa Ana Heights. She expressed her concern for the family that doesn't want to sell their home. She stated that the City should be sharing training facilities with Costa Mesa. Robert Walchli stated that the difference between the City's appraised value and what is being offered by Steadfast Properties is approximately $1 million. He stated that although the community needs a fire station, he's concerned for the family that's being put out of their home. Mr. Walchli stated that the proposal by Steadfast Properties to share the property seems like a solution that should be looked into further. Linda Orozco stated that all other avenues should have been exhausted prior to considering the proposed site and that it's not right to put someone out of their home. She stated that it reflects on the City and is distressing. Hearing no further testimony, Mayor Ridgeway closed the public hearing. Mayor Ridgeway stated that it is also distressing that the City does not have adequate safety personnel in the airport area. He stated that the City has spent millions of dollars since the County fire station was destroyed by fire to provide temporary service for the area. Council Member Bromberg stated that the City has the responsibility to provide the best fire service possible to the citizens of Newport Beach, Volume 56 - Page 748 City of Newport Beach Regular Meeting March 9, 2004 LNFi75N and that training is an important aspect. He stated that the City is not putting anyone out of their home, noting that the property is currently in escrow with Steadfast Properties. Council Member Bromberg stressed that the City wants to know what the fair market value of the property is and is not looking to purchase it for anything less. He expressed his concern for not knowing of the other purchases in the area until the current meeting. Council Member Bromberg confirmed with the City Attorney that the proposed action will allow the City to purchase the property for the fair market value, even if it is determined to be higher. Motion by Council Member Bromberg to 1) approve the Notice of Exemption from the requirements of CEQA for the proposed Santa Ana Heights Fire Station and Training Facility; 2) adopt Resolution No. 2004- 20 establishing the need for the City of Newport Beach to acquire the real properties located at 1971 Mesa Drive and 20401 Acacia Street in Newport Beach for the purposes of developing a fire station and training facility to serve the surrounding community; 3) direct staff to acquire the real properties located at 1971 Mesa Drive and 20401 Acacia Street in Newport Beach, using its powers of eminent domain if necessary, for the purposes of developing a fire station and training facility to serve Newport Beach and the surrounding community; and 4) approve a budget amendment (BA -039) increasing expenditure estimates in 7456 - C2320669 to $3,092,000 and increasing revenue estimates in 455 -4845 by $2,500,000 (the balance, $592,000, will come from General Fund unappropriated fund balance). Mayor Ridgeway stated that the circumstances are unfortunate, but that they will hopefully end in a win -win situation for everyone. He stated that he didn't know of any other way to handle the matter and that the action is for the community at- large. Mayor Pro Tem Adams stated that he's convinced that all other avenues have been exhausted and that there isn't any other suitable property in the area for a fire station. He agreed that the situation is difficult and confirmed with the City Attorney that this is only the third time the City has condemned property in twenty years. He stated that it isn't done lightly. Council Member Heffernan stated that he's not certain that all of the other possible locations have been looked at, and that there might be a suitable property at a better price. He expressed his sympathy for the property owners and the position they've been put in. He stated that they are in the process of selling their property regardless, at this point, but that the City should still explore other sites. Council Member Bromberg asked if the City could afford to purchase the property if the price were closer to $45 per square foot. City Manager Bludau responded in the affirmative. Council Member Nichols stated that he feels that the price of the property should be determined prior to taking the recommended action. He also expressed his uncertainty that a training facility is needed at that site. Volume 56 - Page 749 City of Newport Beach Regular Meeting March 9, 2004 INDEX Mayor Ridgeway stated that the process has been going on for three years and it has been frustrating. Council Member Webb noted the location of the other fire stations in the City and the close proximity to residences. He stated that the proposed site does not have residences near by, and the other two sites that were under consideration were smaller and immediately adjacent to residential properties. Council Member Webb also noted that the airport area has taller and denser buildings and should be supported by a larger fire station. City Manager Bludau stated that he's confused by the information provided by Steadfast Properties on the price of the parcels that have been sold in the area. Mayor Ridgeway stated that it's important for Steadfast Properties to provide the requested information to confirm the sale prices. City Manager Bludau continued by saying that he's been involved with the process for two to three years and that the parcel is larger than the City needs, but it met the desire of the property owners to sell both parcels together. He stated that no other sites will serve the City as well as the proposed site. Council Member Rosansky expressed his disappointment that the City didn't learn of the parcels that were sold at the higher price until the current meeting. He felt, however, that the property values in the area are not declining and that the City does need to move forward. Council Member Rosansky encouraged staff to look at other sites again and consider scaling down the project, if necessary. He stated that the recommended action preserves the City's right to move forward with the proposed site, but that other alternatives should still be considered. The motion carried by the following roll call vote Ayes: Rosansky, Adams, Bromberg, Webb, Mayor Ridgeway Noes: Heffernan, Nichols Abstain: None Absent: None K. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE ADJOURNED REGULAR AND REGULAR MEETING OF FEBRUARY 24, 2004. Council Member Nichols encouraged the public to read the minutes of the February 24, 2004, adjourned regular meeting and the discussion on group homes. He stated that there was a lot of good discussion and that it provides a better understanding of the situation. He also referred to page 697, and stated that he wants to make it clear that he does not feel that group homes should be classified as day schools, but that they should be classified as sororities and fraternities. Volume 56 - Page 750 City of Newport Beach Regular Meeting March 9, 2004 INDEX Jim Hildreth stated that his comments regarding elevator shafts should be listened to again. He stated that the Mayor disallowing him to speak on the solid waste hauler issue should also be noted in the minutes and that it is a violation of his civil rights. He expressed his intent to issue a lawsuit. In response to Mr. Hildreth speaking directly to a staff member, Council Member Heffernan reminded Mr. Hildreth that he is to address the City Council. Mr. Hildreth apologized and continued by stating that during the discussion of the underground assessment district, his comments regarding Mayor Ridgeway benefiting from the assessment district are not included. He stated that all of the words spoken at the City Council meetings should be included in the minutes. Robert Walchli stated that the minutes of the City Council meetings are not verbatim and that the City should consider providing a better record of the proceedings. He noted that the video recordings of the meetings are only kept for six months, and suggested that they be kept indefinitely. Mr. Walchli requested that the City Council consider providing the funds necessary to copy the video recordings onto Digital Video Disc (DVD) or include archiving as a requirement in the cable television franchise agreements. Motion by Council Member Bromber¢ to waive reading of subject minutes, approve as amended by Council Member Nichols and order filed. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: Adams Absent: None L. PUBLIC COMMENTS Philip Bettencourt, Newport Beach Chamber of Commerce, invited the public to the 33rd Annual Police Appreciation Breakfast on March 24, 2004, at the Marriott Hotel & Tennis Club. He stated that it will begin at 7:15 a.m. Robert Walchli referred to the letter of February 28, 2004, from him and his neighbors regarding the continued construction at 202 Fernleaf. He stated that the action taken by the City Council at its meeting of November 25, 2003, ordered the removal of the cabana on the third story. He stated that the owners only removed part of it and in addition, the height of the rear patio wall has been increased. Mr. Walchli stated that neither of these actions should be allowed by the City. He stated that it will create a financial hardship on him and his neighbors if they have to take the matter to court. He asked the City Council to force compliance. Volume 56 - Page 751 City of Newport Beach Regular Meeting March 9, 2004 INDEX City Attorney Burnham stated that he has requested that the Planning Director investigate the matter and that the City will respond to the letter submitted by Mr. Walchli and his neighbors. Council Member Nichols stated that the owners at 202 Fernleaf are calling their construction a remodel and are using a different technique to raise the wall. Mayor Ridgeway assured Council Member Nichols that the City Council will be copied on the response sent to Mr. Walchli. • Dolores Otting provided information on the South Coast Air Quality Management District (SCAQMD) board meeting of March 5, 2004. She stated that the SCAQMD has established the Brain Tumor and Air Pollution Foundation to fund research into the connections between air pollution and brain cancer. Ms. Otting stated that she is bringing this information to the attention of the City Council because of the outdoor wood burning fireplaces that are being installed throughout the City. She stated that she is aware that City staff is looking into the matter, but asked that a moratorium be placed on additional outdoor wood burning fireplaces until the matter is fully addressed. • Jim Hildreth stated that the City's website contains many fallacies. He specifically noted that the information on him wanting a pier in the Grand Canal is incorrect. He stated that there is no shore in the Grand Canal and that these structures are for access only. He stated that the agreement with J. M. Hildreth is still in effect and access cannot be denied. He stated that the City has the obligation to provide access and to provide him with the documents that he has requested. Council Member Bromberg asked who J. M. Hildreth is. Mr. Hildreth stated that the answer is contained within the City's documents and that J. M. Hildreth is not his father. Mayor Ridgeway stated that between 1976 and 1999, the permit was transferred to J. M. Hildreth, who the City believes is Mr. Hildreth's brother. He added that Mr. Hildreth has continually asked for billing records and old harbor permits for the Grand Canal. In February of 2001, the City sent him more than 70 pages of material, which included everything that the City is aware of and has on file. He stated that every time Mr. Hildreth states that he has not received anything, he is lying. He further noted the amount of City time spent on the issue. • Linda Orozco provided a handout showing a comparison of the requirements for alcohol /drug residential treatment homes in Irvine, Huntington Beach and Newport Beach. She pointed out that Irvine has no rehabilitation homes, Huntington Beach has one with 16 beds and Newport Beach has six with 98 beds. She went over some of the differences in the regulations between the cities, and noted that in several instances, Newport Beach is in violation of the City's zoning code. Mayor Ridgeway requested that the City Attorney incorporate responses Volume 56 - Page 752 City of Newport Beach Regular Meeting March 9, 2004 INDEX to the comments made by Dr. Orozco when the item returns to the City Council. Mayor Pro Tem Adams asked if the City concurs with the contention that not requiring a conditional use permit is in violation of the zoning code. City Attorney Burnham responded in the negative and stated that there is a conditional use permit requirement for group homes that serve seven or more people. Council Member Nichols asked why there aren't any use permits for the rehabilitation homes. Gerry Marshall, Narconon, stated that one of the reasons he works in the drug rehabilitation field is that he went through the program himself several years prior, and learned what caused his problem and that he was a good person. He stated that he made some changes and decided that he wanted to help others too. Mr. Marshall stated that rehabilitation is a good thing and makes the world a better place. Bob Anderson stated that he has watched the construction at 202 Fernleaf and disagrees with what is taking place, and that it is being called a remodel. He stated that there needs to be some straight talk about the matter, and everyone needs to be sensible and work together. M. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report - Ad Hoc General Plan Update Committee (GPUC). No report. Status report - Local Coastal Program (LCP) Certification Committee. Mayor Ridgeway announced that the LCP will be before the Planning Commission on March 18, 2004, and before the City Council in April 2004. Status report - Newport Coast Advisory Committee (NCAC). Council Member Heffernan stated that the NCAC's next task for the Newport Coast Community Center is to site the facilities and lay out what will be included inside, while staying within the $7 million budget. Ad Hoc Telecommunications Committee. Council Member Heffernan reported that the committee met earlier in the week and reviewed the proposed cable franchise ordinance. He agreed with an earlier comment that the franchise agreements should include the requirement that the cable television companies archive the video recordings of the City Council meetings. He also reported that the committee will meet on March 22, 2004, to review the right -of -way ordinance. Council Member Heffernan stated that the committee's self- imposed deadline for the extension of the cable franchise agreements is the end of July 2004. Status report - Mariners Joint Use Library Ad Hoc Steering Committee. Council Member Webb reported that the committee has assigned Board of Library Trustee Theresa Chase to help plan a groundbreaking ceremony for the library. He stated that this would probably occur the beginning of June 2004. Volume 56 - Page 753 City of Newport Beach Regular Meeting March 9, 2004 N. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT a 15. PLANNING COMMISSION AGENDA FOR MARCH 4, 2004. Assistant City Manager Wood stated that there were two significant items on the Planning Commission agenda, which included a proposed medical office building at 494 -496 Old Newport Boulevard. She stated that the Planning Commission approved the application for the additional floor area and did not require an increase in parking. She explained that this is consistent with current code requirements, but noted that the City has initiated a code amendment regarding parking requirements for medical office buildings. Mayor Ridgeway asked for the status of the code amendment. Assistant City Manager Wood stated that it has been initiated and that staff is working on it, but that a date for the public hearing has not been set. Council Member Rosansky's noted that the applicant requested 12,500 square feet and asked what was approved. Assistant City Manager Wood stated that staff recommended that 11,359 square feet be approved, but that she believes that the Planning Commission approved the 12,000 as indicated on the agenda. Council Member Rosansky stated that if more than 11,359 was approved, he is requesting that the item be called -up for review. Council Member Heffernan asked if the item can be called up by one council member. City Attorney Burnham responded in the affirmative and stated that an ordinance changing the call-up procedure is being prepared by the Planning Department, as discussed at previous City Council meetings. Assistant City Manager Wood stated that the second item on the Planning Commission agenda was a review of the Local Coastal Program (LCP). 16. PROPOSED ASSESSMENT DISTRICT NO. 75 - BALBOA BUSINESS DISTRICT (AREA BOUNDED BY OCEANFRONT BOULEVARD, ADAMS STREET, EDGEWATER PLACE, AND `A' STREET) FOR UNDERGROUNDING UTILITIES. Motion by Council Member Bromberc to adopt the following Resolutions for Proposed Assessment District No. 75: a) Resolution No. 2004 -21 declaring intention to order the construction of certain improvements in proposed Assessment District No. 75; declaring the improvements to be of special benefit; describing the district to be assessed to pay the costs and expenses thereof; providing for the issuance of bonds; and designating the area an underground utilities district; and b) Resolution No. 2004 -22 giving preliminary approval to the Report of the assessment engineer, setting the time and place for a public hearing as April 27, 2004; and ordering the intention of assessment ballot procedure for Assessment District No. 75. Volume 56 - Page 754 INDEX (100 -2004) Assessment District No. 75 Balboa Business District (89/100 -2004) City of Newport Beach Regular Meeting March 9, 2004 Robert Walchli stated that he hopes the district is approved, and that the undergrounding of utilities should be a priority for everyone in the community. He explained that the cost to underground utilities will only increase. He suggested that the City consider a citywide undergrounding project, so that a price could be locked in at today's rate and distributed among more properties. He further suggested that City staff meet with the property owners individually to explain the process and costs. Council Member Bromberg agreed that communicating with the citizens is important and that the City already does this. He stated that the citizens aren't necessarily met with individually, but that meetings are held and, from his experience, the attendance is good. Jim Hildreth stated that he attended the meetings for the undergrounding of utilities on Little Balboa Island, and that they were told that the undergrounding was being done for aesthetics and safety, but that this ended up not being true. Mr. Hildreth stated that the residents in the Balboa Business District have already voted in opposition to the assessment, and that the City should accept this. He stated that the residents shouldn't be put through the process again. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Mayor Ridgeway Noes: None Abstain: Nichols Absent: None 17. REVISIONS TO COUNCIL POLICY A -6, "OPEN MEETING POLICIES" AS IT PERTAINS TO THE ORDER OF BUSINESS FOR COUNCIL MEETINGS. Mayor Ridgeway stated that the recommended change to the order of business is to put the discussion of the items removed from the Consent Calendar at the end of the agenda. Motion by Council Member Webb to approve the revisions to Council Policy A -6. Council Member Heffernan asked how the current meeting is being run differently than it would be run under the proposed changes. City Clerk Harkless explained that, under the proposed revisions, the items removed from the Consent Calendar would be discussed after Current Business and prior to Motion for Reconsideration. At the current meeting, the items removed from the Consent Calendar were discussed after the Public Hearings. Dolores Otting asked how it would be done at the current meeting. Volume 56 - Page 755 INDEX (100 -2004) City of Newport Beach Regular Meeting March 9, 2004 The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: Adams Abstain: None Absent: None 18. UPPER MORNING CANYON CHANNEL — APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR PREPARATION OF CONSTRUCTION DOCUMENTS. Public Works Director Badum stated that the Upper Morning Canyon Channel issue was discussed at the June 24, 2003, Study Session and that the preliminary engineering done by Rivertech indicated the need to do some remedial drainage work to prevent future erosion and slope stability problems in the Upper Morning Canyon Channel. He stated that part of the direction by the City Council was to verify that the residents in the area were in support of the project. The action before the City Council at the current meeting is to approve a professional services agreement with RBF Consulting to fully assess the project. Public Works Director Badum stated that the project is expected to cost approximately $2 million and will be complicated due to the number of regulatory agencies that will be involved. He further noted that funding has not been identified, but it is appropriate for the City to look at the area as a whole and provide a solution. He stated that there will be several opportunities during the process when information can be provided to the City Council and additional direction provided, prior to finalizing the design. Mayor Pro Tem Adams noted that two residents didn't sign the Memoranda of Intent (MOI) and asked if this would create a problem. Additionally, he asked where these two residences were located. Principal Civil Engineer Stein stated that one has indicated consent and the other has stated that their signed MOI is in the mail. Mayor Pro Tem Adams asked if all residents need to cooperate in order for the project to be carried out. Principal Civil Engineer Stein stated that all of the residents want the project to move forward to see what the final plans will look like. He further noted that the other regulatory agencies are also in support of the project and offering to assist the City. Council Member Rosansky asked if the City owns the riverbed. Public Works Director Badum stated that it's primarily private property, but that there is an easement that the City holds. He stated that the easement was given to the City when the tract was formed and was expected to be potentially used for a facility, such as a storm drain. He noted that a storm drain would most likely not receive approval from the other regulatory agencies today. He further explained that the 22 -foot easement essentially parallels the dividing line between the Corona Highlands and Cameo Highlands tracts. Council Member Rosansky asked if the City was responsible for the erosion in the gully. Public Works Director Badum stated that each of the tracts in the area were Volume 56 - Page 756 INDEX C- 3517(A) Upper Morning Canyon Channel (38/100 -2004) City of Newport Beach Regular Meeting March 9, 2004 INDEX developed in accordance with the rules that were in place at the time, but that drainage design criteria has evolved and become more accurate over the years. Council Member Rosansky questioned why the City would consider spending approximately $2 million to fix the problem when it doesrit own the property and hasn't caused the problem. City Attorney Burnham stated that the cause of the erosion is unknown, but some feel that there is a lack of sediment coming into the drainage course. He noted that the City inherited two drainage facilities when it annexed Cameo Highlands. City Attorney Burnham stated that he was not prepared to discuss the City's liability at the current meeting, but felt that if there is litigation stemming from erosion in the channel, the City would be involved and it would be expensive to defend. He stated that another reason for the City to be involved with fixing the problem is to avoid continued erosion and to rehabilitate the canyon floor. Council Member Rosansky stated that it would certainly be a valuable project with a laudable goal, and he's only questioning who should pay for it. City Attorney Burnham stated that the MOI only asked the residents if they would cooperate by granting an easement. Council Member Rosansky asked if the public would have access to the habitat area that would be enhanced. City Attorney Burnham responded in the negative. Council Member Nichols agreed that the City does have liability. He stated that the residents' right to protect themselves is inhibited by the regulatory agencies and that they are not responsible for most of the water that flows through their area. He felt that the City needs to be involved with the project or guarantee that the residents can protect themselves. Mayor Ridgeway confirmed with the Public Works Director that the project is limited to Morning Canyon above Coast Highway. Council Member Bromberg asked Council Member Nichols why the City might have liability. Council Member Nichols stated that there are three drains from Cameo Highlands into Morning Canyon and that they are the main sources of water coming into the canyon. Council Member Webb added that there was a canyon that was filled in and one of the storm drains was constructed at the bottom of it. He stated that historical photos show that the canyon that was filled in drained a larger area than Morning Canyon. Council Member Heffernan stated that the tracts were developed 40 to 50 years ago. More recently, the golf course and Newport Coast were developed upstream. He asked why the City is paying to fix the problem when it may be the newer development that is causing the problem. He also expressed his concern that the cost may be higher than $2 million. Public Works Director Badum stated that more has been learned about the canyon and it appears that a lack of sediment could be causing the problem. He didn't believe that the drainage standards that were used when the development took place addressed sediment transport issues. Council Member Heffernan asked why the City is inheriting the problem. Volume 56 - Page 757 City of Newport Beach Regular Meeting March 9, 2004 INDEX City Attorney Burnham stated that, over time, there has been a change in the law relative to inverse condemnation and there have been changes to the manner in which people litigate slope failures. He stated that Morning Canyon had a limited watershed, while the watershed that Council Member Webb mentioned earlier had a significant watershed. City Attorney Burnham stated that there's only a potential that the City would be involved in any litigation, but it would be complicated and costly and is a reason for the City to consider being involved with the project. He stated that it won't prevent the City from being named in any future litigation, but it would reduce the potential. Mayor Ridgeway asked if RBF Consulting is capable of reviewing the previous watershed and the previous canyon to provide the City with a better perspective. Public Works Director Badum responded in the affirmative and stated that it could be added to their scope of work. Council Member Bromberg noted that any litigation might not cost the City as much as the project would. He asked if it would make sense to spend some money on a legal analysis by someone who is an expert in the field. City Attorney Burnham agreed that the opinion from an expert in hydrology and slope failure could be valuable, but that it might be better to get it after the information from RBF Consulting is obtained. Mayor Ridgeway agreed that the information from RBF Consulting would help an expert to form a legal opinion, and also noted that the engineering work needs to begin and is an urgent matter. He felt that the liability could be looked at later. City Attorney Burnham stated that the preliminary phases of the recommended scope of work would provide an expert in the field with much of the information that would be needed, and that the legal opinion of the expert would be helpful for the City Council in determining if the full project should be paid for. Council Member Webb agreed that Phases 1 and lA would give the expert the information needed to make the analysis. Phase 2 gets into final surveys and the design in greater detail. City Attorney Burnham stated that Phases 1B and 2 would provide information beyond what is needed for a legal opinion to be formed. He further suggested that the scope of work could be looked at and modified, if necessary. Mayor Pro Tem Adams stated that one of the property owners has already experienced slope failure and is unable to do the necessary work on the slope under current circumstances. He asked what could be done to authorize the property owner to begin the work. He also noted that it doesn't appear that the City should be totally responsible for fixing the problem in Morning Canyon, and asked if the possibility of an assessment district had been looked into. He stated that the project will add value to the homes and shouldn't be paid for entirely with public funds. He did feel, however, that the City should participate to some extent. Mayor Pro Tem Adams asked what "drainage easement" on a parcel map meant in terms of the City's legal responsibility. Council Member Heffernan asked if RBF Consulting is the appropriate firm to be doing the engineering work, given that they've done work for Volume 56 - Page 758 City of Newport Beach Regular Meeting March 9, 2004 INDEX The Irvine Company upstream of Morning Canyon. Public Works Director Badum stated that RBF Consulting is a full- service firm with considerable resources. Council Member Heffernan stated that he wasn't questioning their ability to do the work but was referring to any potential future litigation and RBF Consulting's ability to represent the City and provide expert testimony. City Attorney Burnham stated that it is a question that could be asked of RBF Consulting. Cal McLaughlin, UCI Professor of Environmental Toxicology, stated that Morning Canyon has been stable for a long period of time, but that in 1997, the area experienced a 100 -year storm. He indicated on a wall map the flow of water from the storm and stated that this single event scoured the canyon and caused damage to the homes on one side of the canyon. Mr. McLaughlin stated that he would favor a minimal project that would help the property owners, but wouldn't tear up the canyon. Richard Cabin, property owner in the Morning Canyon area, stated that Morning Canyon was no problem and self - sustaining from the mid- 1980's to the mid- 1990's. After the grading for the golf course and the building in Newport Coast began in the mid - 1990'x, water has flowed continuously and the ground is always wet. He stated that it's flowing from the larger drain, and indicated the location of his home and the drain on the wall map. Secondly, in response to the property owners helping to pay for the project, Mr. Cabin stated the project will not add value to the properties, it will only restore value. He noted that erosion has caused the loss of a fence and grass area on his property. Chris Wynkoop, property owner in Morning Canyon, stated that his property has experienced slope failure and that the damage began prior to the mid 1990's. He stated that the City should be involved because of the drainage easement that was designated to, and accepted by, the City. He stated that the City used to maintain the drainage easement, and that he is concerned about more failures in the future. Council Member Nichols confirmed with Mr. Wynkoop that it is his property that needs some erosion control work performed, as indicated earlier by Mayor Pro Tem Adams. Council Member Nichols agreed that the work needs to be done and that any sizable rain would cause major damage. Mr. Wynkoop expressed his appreciation for the City's concern and stated that working with the various agencies has been frustrating. City Manager Bludau stated that the master plan for improvements needs to be determined before work on an individual property can be done. Mayor Ridgeway agreed that the engineering report is needed. Dick Walton stated that the City maintained the property in the past by grading and sculpting the bottom of the canyon in such a way that it formed a broad, shallow flood plain. He stated that the City stopped doing this in 1989 or 1990, and since that time, the vegetation has grown and property owners have installed such things as fences, walls, swing sets and landscaping improvements, which has caused the direction of the water to change. Mr. Walton stated that when the property owners Volume 56 - Page 759 City of Newport Beach Regular Meeting March 9, 2004 INDEX approached the City in the early 1990's to request that the maintenance of the canyon continue, the City responded that it never should have done it to begin with since it's private property. He stated that Morning Canyon is a natural drainage area, but it needs to be managed and should be a concern of the overall community. Council Member Heffernan asked if the City did maintain the drainage area and perform clearing in the past. City Manager Bludau stated that attempting to clear it now might not be possible due to environmental issues. Council Member Heffernan stated that if it was done, it shouldn't have been stopped. City Attorney Burnham stated that it's unclear how many times the City did clear the drainage course, but that it was done. Council Member Bromberg noted the letter, dated July 2, 1990, to a Morning Canyon resident that did imply that the City had cleared the canyon in the past. Mayor Ridgeway stated that he supports moving forward with the entire engineering study. Bob Patterson stated that he is speaking on behalf of his mother, Helen Lusch, a resident in Cameo Highlands. He read from her letter, dated March 9, 2004, and stated that the erosion problems in Morning Canyon directly threaten her property. He encouraged the City to take responsibility for the repair and maintenance of the flood channel that runs through the canyon. Mr. Patterson stated that the City has an easement to allow for the maintenance of a drainage pipe and that it wasn't until the completion of the golf course and other upstream development, that the character and topography of the canyon started to change. Mr. Patterson stated that Morning Canyon is essentially a public flood channel and the City should again take responsibility for the channel and implement a long -term solution. He stated that the residents on both sides of the canyon have expressed the willingness to work with the City by providing all necessary access. Council Member Webb agreed that the City did periodically clear the brush and he thought it was primarily done for fire control purposes. He also agreed that the situation in the area has changed, noting that the erosion was primarily caused by the storm in 1997 and also that enough silt is not coming downstream as it did in the past. He expressed his concern for the fact that the area is primarily private property and that it's inappropriate for the City to be obligated to pay for the entire project. He cited other similar examples in the City and expressed his concern for the City being able to afford all of the capital improvement projects that are needed. He agreed that the City should help the property owners that need work done now and have RFB Consulting perform Phases 1 and lA of the scope of work. Motion by Council Member Webb to 1) approve a Professional Services Agreement with RBF Consulting (RBF) of Irvine [C- 3517(A)], as amended to authorize Phases 1 and lA of the proposed agreement and to include the gathering of the information needed for a legal opinion to be formed, at a contract price of $103,280 and authorize the Mayor and the Volume 56 - Page 760 City of Newport Beach Regular Meeting March 9, 2004 INDEX City Clerk to execute the agreement; 2) approve a budget amendment (BA -038) of $103,280 from the unappropriated General Fund reserves; and 3) modify the Memoranda of Intent (MOI) with the property owners to remove the clauses that obligate the City to pay for all maintenance and construction costs for a storm drain system and direct staff to investigate a program to obtain cost sharing. Council Member Nichols stated that the slope repair needs to be done and the City should do whatever it takes to get it done. He expressed his concern for the City's liability. Per Mayor Ridgeway's question, Council Member Webb pointed out in the MOI where it states that the City intends to solely pay for the project. Mayor Pro Tem Adams suggested that the language be changed to indicate that the City would participate, as appropriate. He explained that this would allow the payment details to be worked out later and that it encourages the residents to cooperate, so that the problem and the solution can be figured out. He stated that this needs to be done frost. City Attorney Burnham pointed out that the MOI has already been distributed and signed by some of the property owners. He stated that the MOI is not binding and only shows the intent of the property owners to grant an easement. It does not commit the City to fund the entire cost of the project. Mayor Ridgeway stated that the MOI is unilateral and could still be modified. Council Member Webb stated that any agreement that infers that the City intends to fund the entire project is inappropriate because the City Council hasn't given the permission to commit to such funding. Council Member Heffernan stated that the MOI implies that the City intends to pay for the project and could have influenced the property owners' decision to sign the MOI. City Attorney Burnham stated the MOI does not force the property owners to grant an easement. He stated that future agreements would be needed to bind the City and the property owners. Council Member He£fernan.asked what the purpose of the MOI is then. City Attorney Burnham stated that the MOI provides the City Council with a certain comfort level to go forward with the study and indicates that the property owners intend to cooperate by granting the easements that might be necessary to construct and maintain the project. Council Member Heffernan expressed his concern that staff distributed a nonbinding MOI that might allow the property owners to not grant the easements after the City has already obligated itself to go forward with the project. City Attorney Burnham stated that the process becomes very complicated if the property owners don't grant the easements. Mayor Pro Tem Adams stated that the MOI served its purpose by showing the City Council that the majority of the property owners are willing to cooperate. He also noted that the motion under consideration before the City Council at the current meeting only approves the first two Volume 56 - Page 761 City of Newport Beach Regular Meeting March 9, 2004 phases of the agreement and that the City Council will have the opportunity to address the other concerns in the future. He suggested that the part of the motion dealing with the MOI be removed. Amended Motion by Council Member Webb to 1) approve a Professional Services Agreement with RBF Consulting (RBF) of Irvine [C- 3517(A)], as amended to authorize Phases 1 and lA of the proposed agreement and to include the gathering of the information needed for a legal opinion to be formed, at a contract price of $103,280 and authorize the Mayor and the City Clerk to execute the agreement; and 2) approve a budget amendment (BA -038) of $103,280 from the unappropriated General Fund reserves. Council Member Bromberg stated that the comfort level provided by the MOI is important. Council Member Heffernan confirmed that the City Attorney will also address the issue of the potential for RBF Consulting having a conflict of interest. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 19. MOBILE DATA COMMUNICATIONS SYSTEM UPGRADE. Motion by Council Member Brombere to 1) approve recommended upgrades to the Police Department's Mobile Data Communications System, which will include a three -year agreement with the City of Brea to lease time on their new network; 2) waive formal bidding requirements and authorize the Chief of Police to negotiate the terms of the agreements with the recommended vendors as required, and provide the City Manager with the authority to sign the agreements with those vendors; 3) approve a budget amendment (BA -037) allocating $218,782 of COPS MORE grant funds and transferring $72,928 from General Fund unappropriated reserve to Capital Improvement account number 7017- C1820539; 4) authorize the Chief of Police to purchase the specified equipment, software and services for a total cost of $291,710; and 5) approve an $89,406 increase to the Police Department's base budget for Fiscal Year 2005 for recurring costs associated with implementation of the project, which include the fees to the City of Brea. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: Rosansky Absent: None Volume 56 - Page 762 INDEX (100 -2004) City of Newport Beach Regular Meeting March 9, 2004 20. ADOPTION OF A RESOLUTION APPROVING USE PERMIT NO. 3618 (BAY ISLAND CLUB). Motion by Mayor Pro Tern Adams to adopt Resolution No. 2004 -23 approving Use Permit No. 3618. 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 11:05 p.m. The agenda for the Regular Meeting was posted on March 3, 2004, at 2:45 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 March 5, 2004, at 3:00 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. � - r Mayor r Volume 56 - Page 763 11061 �►:� (100 -2004)