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HomeMy WebLinkAbout05/11/2004 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting May 11, 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 B. ROLL CALL Present: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Absent: Webb (excused) C. CLOSED SESSION REPORT — No report D. PLEDGE OF ALLEGIANCE — Council Member Rosansky E. INVOCATION — Associate Pastor Patrick Thompson, Presbyterian Church of the Covenant, Costa Mesa F. PRESENTATIONS Arts Commission Presentation — Annual Report FY 2002 -2003 and Program Preview FY 2003 -2004. Kathy Harrison, Chair of the City Arts Commission, introduced City Arts Commissioners Arlene Cartozian, Kirwan Rockefeller, Lyn Belasco and Kathy Harrison, and Lila Crespin of the Arts Foundation. Ms. Harrison announced that the Arts Foundation is donating $4,000 to the City's Shakespeare by the Sea program, which will take place on August 7 and 8, 2004. Mr. Rockefeller unveiled the Newport Beach Arts & Cultural Guide, a resource guide made possible by donations from the Arts Foundation, and thanked those involved with the project. Ms. Harrison invited the community to attend the arts lecture on May 15, 2004, at 3:00 p.m. at the Central Library. She announced that the speaker would be Dr. Betty Edwards. Additionally, Ms. Harrison announced the events taking place at this year's Summer Concert Series. Mayor Ridgeway thanked the City Arts Commission and stated that they are a valuable resource to the City. 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 ITEMI: Volume 56 -Page 988 INDEX City of Newport Beach Regular Meeting May 11, 2004 INDEX • Council Member Heffernan requested a status report on the research being done by staff on a possible ordinance to ban cigarette smoking on the beach, the pros and cons of doing so and what is being done in other cities. He also asked for a similar report on the possibility of eliminating styrofoam from the bays and beaches. • Council Member Rosansky thanked the Newport Ocean Sailing Association (NOSA) for the invitation to attend the events associated with the Newport to Ensenada sailing race. He complimented NOSA and stated that the race benefits the City from both a revenue and public image standpoint. • Council Member Rosansky announced that if the revisions to Council Policy G -2 are approved later in the current meeting, Item No. S22, a kickoff of the new Adopt -A -Beach Program would be taking place on May 22, 2004, at the Balboa Pier. Council Member Rosansky explained that the Adopt -A -Beach program will provide the community an opportunity to adopt a section of the beach and take responsibility for cleaning it. He stated that additional information can be obtained by calling 949 -715 -1994. • Council Member Bromberg announced that the American Cancer Society's Relay for Life will be taking place on May 14 and 15, 2004, at Newport Harbor High School. He stated that it's a 24 -hour fundraising event with over 1,000 people participating. He further explained that the event has a party atmosphere, and raises cancer awareness. • Council Member Bromberg announced that the 11th Annual Balboa Island Parade will be taking place on June 6, 2004, at 11:00 a.m. • Mayor Ridgeway announced that this year's Baker to Vegas relay race was held on April 24 and 25, 2004, and that the City's Police Department came in second place. He thanked those that participated. I. CONSENT CALENDAR READING OF MINUTES /ORDINANCES AND RESOLUTIONS 1. Item removed from the Consent Calendar by a member of the audience. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. ORDINANCES FOR ADOPTION 3. Item removed from the Consent Calendar by Council Member Nichols. 4. Item removed from the Consent Calendar by a member of the audience. Volume 56 - Page 889 City of Newport Beach Regular Meeting May 11, 2004 RESOLUTIONS FOR ADOPTION 5. Item removed from the Consent Calendar by a member of the audience. CONTRACTS AND AGREEMENTS 6. APPROVAL OF REIMBURSEMENT AGREEMENTS WITH IRVINE RANCH WATER DISTRICT AND COSTA MESA SANITARY DISTRICT FOR JOINT UTILITY EFFORTS WITH THE IRVINE AVENUE 24 -INCH WATER MAIN TRANSMISSION MAIN REPLACEMENT PROJECT - CONTRACT NO. 3411 AND AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT WITH DANIEL BOYLE ENGINEERING. 1) Approve Reimbursement Agreements with the Irvine Ranch Water District (IRWD) and the Costa Mesa Sanitary District (CMSD) for construction of water and sewer facilities with the City's Irvine Avenue 24 -inch Water Transmission Main Replacement Project; and 2) approve Amendment No. 2 to Professional Services Agreement with Dan Boyle Engineering (DBE) for a not -to- exceed fee of $29,940. NEWPORT SHORES STREET END IMPROVEMENTS - PHASE I (C- 3669). 1) Approve the plans and specifications; 2) award the contract (C -3669) to Diversified Landscape Management, Inc. for the total bid price of $54,992 and authorize the Mayor and the City Clerk to execute the contract; and 3) establish an amount of $5,000 to cover the cost of unforeseen work. S. STORM DRAIN AND SEWER REPLACEMENT - AWARD OF CONTRACT (C- 3645). 1) Approve the plans and specifications; 2) award the contract (C -3645) to GCI Construction, Inc. for the total bid price of $730,255 and authorize the Mayor and City Clerk to execute the contract; 3) establish an amount of $72,000 to cover the cost of unforeseen work; 4) approve a reimbursement agreement with the Orange County Sanitation District; and 5) approve a budget amendment (04BA -057) increasing revenue estimates by $93,430 in account 250 -5901, Affordable Housing Contributions, and $93,430 in account 250 -4839, Orange County Sanitation District Contributions, transferring $63,313 from City -Wide Slurry Account 7181- C5100462 to Storm Drain Improvement Program 7181- C5100008, and increasing expenditure appropriations by $186,860 in 7251- C5100755. 9. Item removed from the Consent Calendar by Council Member Nichols. 10. Item removed from the Consent Calendar by Mayor Ridgeway. 11. Item removed from the Consent Calendar by a member of the audience. 12. Item removed from the Consent Calendar by Council Member Volume 56 -Page 890 INDEX C -3411 Irvine Avenue Water Transmission Main Replacement (38/100 -2004) C -3669 Newport Shores Street End Improvements (38/100 -2004) C -3645 Storm Drain and Sewer Replacement (38/100 -2004) City of Newport Beach Regular Meeting May 11, 2004 Nichols. MISCELLANEOUS ACTIONS 13. BUDGET AMENDMENT TO ACCEPT A CHECK FROM THE NEWPORT BEACH ARTS FOUNDATION AND APPROPRIATE FUNDS FOR SHAKESPEARE BY THE SEA PRODUCTIONS, 2004. Approve a budget amendment (04BA -056) in the amount of $4,000. 14. BUDGET AMENDMENT TO INCREASE REVENUE ESTIMATES WITH AN UNANTICIPATED REVENUE OF DIRECT LOAN REIMBURSEMENT FROM THE STATE OF CALIFORNIA AND TO APPROPRIATE SPECIFIED FUNDS TO A REVENUE ACCOUNT AND AN EXPENDITURE ACCOUNT. Approve a budget amendment (04BA -058) to increase revenue estimates by $83,472.48, the amount of an additional CSLA direct loan payment to the Newport Beach Public Library, and to appropriate $1000 to expenditure account 7451- C5100756 for ground breaking ceremonies on June 10, 2004 for the new Mariners Library. 15. APPOINTMENTS TO ECONOMIC DEVELOPMENT COMMITTEE. Appoint Debra Logan to the Medical Industry seat and Richard Wray to the Newport Center seat on the Economic Development Committee (EDC). 16. BUDGET AMENDMENT FOR NEWPORT COAST: COST OF MAINTAINING CERTAIN PROPERTIES ALONG PUBLIC STREETS. 1) Approve a budget amendment (04BA -060) in the amount of $600,000 to the City Manager's Professional and Technical Services account (0310 -8080) with $100,000 coming from the General Services Department's 8080 account and $500,000 from unappropriated General Fund reserves; and 2) direct the City Manager to disperse funds in the amount of $600,000 to the Newport Coast Community Association (NCCA). S22. REVISIONS TO COUNCIL POLICY G -2 - "ADOPT -A- BEACH" PROGRAM. Amend Council Policy G -2, "Adopt -A- Beach" Program, as shown in the staff report. Motion by Mayor Pro Tem Adams to approve the Consent Calendar, except for those items removed (1, 3, 4, 5, 9, 10, 11 and 12). The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb J. PUBLIC COMMENTS Jim Hildreth indicated that he has discussed the City's website at previous meetings. He referred to the third paragraph, and stated that it is incorrect to state that Jim Hildreth wanted to build a pier. He stated that Volume 56 - Page 891 INDEX (100 -2004) (100 -2004) (100 -2004) (100 -2004) (100 -2004) City of Newport Beach Regular Meeting May 11, 2004 INDEX it's not a pier, it's an access structure, and was denied by the City because of navigational concerns, which he stated do not exist. He asked where the permits for the other moorings in the Grand Canal were. Dolores Otting stated that the camera at the back of the room should be adjusted so that Council Member Nichols can be seen. Secondly, she reported that the SunBridge nursing home still has a lack of heating and air conditioning, and that she brought this matter to the City Council's attention last year. She asked the Mayor to consider the matter to be within the City Council's subject matter jurisdiction and write a letter to the owners of the company. Ms. Otting stated that she would be providing the information on who to write. Mayor Ridgeway stated that the City did address the matter last year and provided information to a citizen who had a relative in the facility on who the appropriate entities are to contact. He stated that the City has no authority to do anything. K. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report - Ad Hoc General Plan Update Committee (GPUC). Mayor Pro Tem Adams stated that both GPUC and the General Plan Advisory Committee (GPAC) met on May 10, 2004. Assistant City Manager Wood reported that both committees reviewed discussion papers and guiding principles on a number of topic areas, which will be used by GPAC as they develop land use alternatives. She stated that a leadership training session was also held for those that will be training the subcommittees that will be formed. Status report - Local Coastal Program Certification Committee. Mayor Ridgeway announced that the Local Coastal Plan (LCP) has been approved by the Planning Commission and will be agendized for the City Council meeting on May 25, 2004. Status report - Newport Coast Advisory Committee (NCAC). Council Member Heffernan reported that the NCAC met on May 3, 2004, and dealt with a variety of issues, which included the grading taking place in Los Trances Canyon, the potential for a library at the proposed Newport Coast Community Center, the status of the use of the Mello Roos money by the County and the lack of landscaping on Newport Coast Drive on the toll road entrance side. He stated that another issue that is being addressed is the planned resort development by The Irvine Company. Status report - Mariners Joint Use Library Ad Hoc Steering Committee. Mayor Ridgeway announced that there will be a groundbreaking for the new library on June 10, 2004, at 10:00 a.m. Status report - Other Committee Activities. Council Member Rosansky reported that the July 4th West Newport Safety Planning Committee met on May 10, 2004, and reviewed the 2003 plan and the results of the actions that were taken. He stated that it is anticipated that a similar plan will be implemented this year. Volume 56 - Page 892 City of Newport Beach Regular Meeting May 11, 2004 L. M. 17. PLANNING COMMISSION AGENDA FOR MAY 6, 2004. Assistant City Manager Wood reported that the Planning Commission approved the request of the Newport Technology Center to add office use to the research and development use already approved for the site. It was determined that there would not be any traffic impacts as identified in the traffic phasing ordinance. Mayor Ridgeway called -up the item for review. Assistant City Manager Wood stated that the second item reviewed by the Planning Commission was a use permit request by Josh Slocum's to extend their hours of operation and to operate as a nightclub later in the evening. She reported that the Planning Commission did not approve the nightclub portion of the request, but that they did approve the extended hours of operation for the restaurant. This put a use permit into place for the establishment. Council Member Heffernan confirmed with Assistant City Manager Wood that Josh Slocum's is not required to provide adequate parking because they are grandfathered in. Assistant City Manager Wood added that the conditions that were put in place with the use permit included a requirement to provide offsite and valet parking. Assistant City Manager Wood stated that Blackie's also requested to increase their hours and that this was approved by the Planning Commission. Lastly, the Planning Commission recommended the approval of an amendment to the districting map for Clay Street. She stated that this will be agendized for the City Council meeting on May 25, 2004. Council Member Heffernan noted that the McFadden Square area where Blackie's is located is a troublesome area and asked what the basis for extending their hours was. Assistant City Manager Wood stated that Blackie's had a much earlier closing time than the other establishments in the area and the Planning Commission didn't feel that extending Blackie's hours would contribute significantly to the problems in the area. Council Member Nichols stated that the approval of the Newport Technology Center request allows for higher uses on the property. Mayor Ridgeway stated that the item has been called -up for review and will be discussed at the City Council meeting on May 25, 2004. Jim Hildreth asked if Josh Slocum's is being treated differently because it is owned by Dennis Rodman. He stated that the City should support such establishments because of the revenue they generate. 18. TELECOMMUNICATIONS FACILITY PERMIT NO. 2003 -003 Volume 56 - Page 893 11011 �►� (100 -2004) I C -3706 City of Newport Beach Regular Meeting May 11, 2004 INDEX (PA2003 -255) — TELECOMMUNICATIONS LICENSE AGREEMENT — 4600 WEST COAST HIGHWAY (APPLICANT — CINGULAR WIRELESS) (contd. from April 13 & 27, 2004). Assistant Planner Brown stated that the application by Cingular Wireless is the first application submitted to the City since the telecommunications ordinance was adopted. She stated that the facility is proposed to be located on City -owned property and requires special review by the City Council because the applicant is proposing a facility that is 50 feet in height. The maximum height allowed is 35 feet. Assistant Planner Brown stated that Cingular Wireless has designed the facility as a 50 -foot flagpole, 24 inches in diameter with three panel antennas concealed within the flagpole. The support equipment will be ground- mounted with a retaining block wall enclosure adjacent to the flagpole. She listed the findings that will be necessary for the City Council to make in order to approve the application, and that Cingular Wireless has stated that they have a coverage deficiency in this portion of the City. Cingular Wireless investigated a lower facility and other locations in the area, but there may be other alternatives that have not been identified. The impact on views is also a concern. Assistant Planner Brown reported that the Police Department provided several recommendations to mitigate any potential interference with the City's emergency communication systems, and that these are included in the conditions for approval. Council Member Rosansky asked if the City had made any independent evaluations of the alternatives and the necessity for a 50 -foot high structure. Assistant Planner Brown responded in the negative. Council Member Rosansky noted the photo simulations provided by the applicant, but stated that they didn't show the view from several surrounding neighborhoods. Assistant Planner Brown reported that she did request additional simulations, but did not receive them. Council Member Rosansky asked if the facility would be visible from these neighborhoods and impact their views. He also asked if the flagpole would be required to be illuminated at night. Assistant Planner Brown responded in the affirmative to all of these questions. Council Member Rosansky asked if the pole would be able to accommodate other carriers cell sites. Assistant Planner Brown stated that Cingular Wireless has stated that it will not, but that the City does encourage this. Council Member Rosansky stated that the City can expect to have multiple applications for the site. He also noted the maps provided by Cingular Wireless showing the coverage for a 35 -foot facility and a 50 -foot facility. He stated that they were a bit misleading, but it appears that the additional coverage isn't significant. Council Member Rosansky also asked if the height limit were reduced to 35 feet if an existing light standard could be utilized. Assistant Planner Brown stated that Cingular Wireless has indicated that it would be a problem because there wouldn't be room for the supporting equipment cabinets. Council Member Nichols asked if the possibility of other carriers using the same site had been looked at. City Manager Bludau stated that the City would encourage this. Volume 56 - Page 894 Telecommunica- tions License Agreement 4600 West Coast Hwy./ Cingular Wireless (38/100 -2004) City of Newport Beach Regular Meeting May 11, 2004 INDEX Mayor Ridgeway stated that this site has been looked at before and that several site designs were presented in the past. He noted in particular a lighthouse design, and stated that it was less obtrusive than the flagpole design and would accommodate multiple users. He stated that he'd like to see other designs considered, and the possibility of using the site above the proposed site. Council Member Heffernan stated that the City becoming a landlord of cell sites has been looked at for four years. He stated that it improves cell coverage for the area and provides the City with a new revenue source. He felt that it would be the objective of the City to become the landlord of multiple cell sites, and noted that the cell providers are accustomed to dealing with site specific issues in other communities. Mayor Ridgeway stated that there will have to be discretionary action by the City on any alternate sites. Gil Gonzalez, Cingular Wireless, stated that there was not a difference in the scale of the two maps that were presented. He stated that other alternatives were investigated, and that the lower height wasn't acceptable to Cingular Wireless. He explained that the higher the facility, the better the coverage. He also noted that there isn't enough room for their equipment cabinets on the sidewalks if the existing light standards are utilized. Additionally, Mr. Gonzalez stated that other designs were not looked at because it was felt that the flagpole design was the most compatible. In response to co- locating with another carrier, he stated that he'd have to look into the structural compatibility. Council Member Rosansky asked for a better explanation as to why the existing light standards can't be used. Mr. Gonzalez stated that Cingular Wireless desires to have the equipment cabinets within 100 feet of the antennas. Jayson Mojica, Cingular Wireless, stated that it's not only the loss of coverage, it's the number of cables that are needed. He explained that four cables are needed per antenna, which means that 24 cables will be needed. Council Member Rosansky asked if it would be feasible to locate the antennas within the existing light standards and run the cables to the proposed cabinet location. He expressed his understanding that Cingular Wireless desires to limit the cable run. Mr. Mojica stated that the coverage would suffer and the structure wouldn't be able to handle the number of cables. He admitted it would be feasible, but that he hasn't looked at that alternative. He further explained that the terrain rises drastically above the site. Council Member Rosansky asked if it would be possible to achieve the same coverage with two 35 -foot cell sites instead of one 50 -foot cell site. Mr. Mojica stated that Cingular Wireless already has sites within a mile of the proposed site, and that the proposed site is needed because of the problem with the terrain. He stated that a second site would probably end up being located where there is already a cell site and coverage. Mr. Gonzalez added that the coverage objective of the search ring was recommended by the Cingular Wireless engineers and that the location is chosen so that it doesn't overlap coverage with existing sites, which can cause interference. Council Member Rosansky referred to the maps provided by Cingular Wireless and asked what the difference is Volume 56 - Page 895 City of Newport Beach Regular Meeting May 11, 2004 INDEX between "good" and "marginal" coverage. Mr. Mojica stated that "marginal" would result in 25% of the calls being dropped. Council Member Bromberg asked if Cingular Wireless had installed a facility such as the one proposed in such close proximity to residential areas. Mr. Gonzalez responded in the affirmative. Council Member Bromberg asked if Cingular Wireless conducted any outreach for the proposed facility. Mr. Gonzalez responded in the negative, but stated that Cingular Wireless was available to respond to any comments as a result of the entitlement process. Mayor Ridgeway asked if the residents of Villa Balboa and the other community associations on the bluff were notified. Assistant Planner Brown reported that a mailing was done to property owners within 300 feet of the proposed site, which included Villa Balboa and Newport Crest. Chris Hansen, Newport Crest, stated that a 24 -inch diameter steel pipe is not a pole, it's a cylinder. He stated that he was not notified of the project. Mayor Ridgeway requested that a map of the radius where the notices were sent be provided to the City Council. Council Member Rosansky additionally asked when the notices were sent. Mr. Hansen stated that after learning of the project, he met with the Planning Department and gained a better understanding of the situation. Mr. Hansen stated that the facility would impact the views from his property and he referred to Resolution No. 83 -43, which provides view protection for Newport Crest. Mr. Hansen requested that the City Council limit the height of the facility to 35 feet, as required by City ordinance. Additionally, he requested that residents of Newport Crest be notified of this and future telecommunication facilities. Frank Jenes, Villa Balboa Board of Directors, provided a handout and stated that Cingular Wireless seems to be taking advantage of the City's rules for flagpole height. He stated that the proposed facility isn't a flagpole and that the height combined with the base and the elevation, puts the total height at 84 feet, which is 12 feet above the bluff. Mr. Jenes stated that approving the facility would also set an inappropriate precedence. He stated that the site should not be used for such a tall structure and he provided photos to illustrate the impact on the views from Sunset View Park. Mr. Jenes stated that it would be helpful to have a visual of what the facility would look like. Lastly, he expressed his concern for the facility having to be illuminated. Jim Hildreth stated that he has nothing against Cingular Wireless, but that it reminds him of the pole at the end of Park Avenue on Little Balboa Island, which is a hollow cylinder that stinks. He stated that it appears to be a contradiction by the City to underground utility poles and then recommend approval of the proposed facility. He stated that it's being done for revenue and that the Mayor may have a conflict of interest if he gets revenue from such facilities also. Mr. Hildreth stated that the Volume 56 - Page 896 City of Newport Beach Regular Meeting May 11, 2004 INDEX residents have a right to a view. Mayor Ridgeway asked if he had a contract with a company, other than Cingular Wireless, if he had a conflict of interest. City Attorney Burnham responded in the negative. Ross Ribaudo, Villa Balboa, stated that he did receive a notice and that it was dated April 1, 2004. He asked if the tower would have a direct affect on the public views from Sunset View Park and would the exemption to the policy inspire Hoag Hospital to appeal their current height limitations. Additionally, he asked if it would be safe to build a steel tower on a known field of methane gas and close to a power - generating plant that will be using natural gas as its fuel. Donald Richroath, Villa Balboa, stated that the pole is a monstrosity. He urged the City Council to limit the height of the structure to the existing limitations imposed on Hoag Hospital. He complimented the idea of considering a lighthouse design. Mayor Ridgeway referred to the photos in the staff report and noted that the dimension of the flag is 12 feet by 18 feet. He stated that the illustrations appear to be out of scale and that the flag doesn't appear to be in proportion to the pole. Mayor Pro Tern Adams stated that the two drawings are not of the same scale. Council Member Bromberg stated that a flagpole would be nice, but agreed that the proposed facility isn't really a flagpole. He stated that the 50 -foot pole at the end of Park Avenue on Balboa Island is a vent from a sewer pump station and looks like a flagpole. He stated that it's a nice looking structure. Council Member Bromberg noted the resolution referred to by Mr. Hansen and stated that the proposed facility does appear to violate the terms. Lastly, Council Member Bromberg expressed his concern for setting a precedence by approving a 50 -foot pole with a 24 -inch base. Mayor Ridgeway stated that the resolution appears to be related to an Environmental Impact Report (EIR) for a project that was never built. He asked if it was still valid. City Attorney Burnham stated that it only pertains to the CalTrans West site, has been superseded and is probably not relevant. Council Member Bromberg stated that it still provides an indication of what the policymakers in the City were thinking in 1983 and their concern for preserving views. Council Member Rosansky stated that the Superior Avenue /Coast Highway intersection is a fairly key intersection in West Newport, and that there is residential development and a view park in the area, all of which will be impacted by the pole. He stated that it's not just a matter of approving a 50 -foot pole, its also a matter of considering the use of the existing structures in the area. He felt that the item should be continued Volume 56 - Page 897 City of Newport Beach Regular Meeting May 11, 2004 INDEX and that staff- should hire a consultant to look into the claims made by the applicant about the necessity for a 50 -foot structure and the feasibility of using existing structures. Additionally, he felt that a demonstration should also be done to give an accurate depiction of what the structure will look like. Motion by Council Member Rosanskv to continue the item, and direct staff to hire a consultant to look into the issues discussed and provide more information. Mayor Ridgeway stated that he didnt want to discourage the applicant, but that the intersection is significant and the proposed design is not in good taste. He also expressed his support for improving coverage, collecting the revenue and continuing to work with the applicant, and agreed that more information is needed. City Manager Bludau stated that it could cost the City $5,000 to verify the information provided by the applicant. He encouraged the City Council to consider if a 50 -Foot tower would even be approved. Council Member Rosansky stated that he's opposed to a 50 -foot tower, but that he couldn't rule it out if it is determined that it is the only feasible alternative. He felt that an independent evaluation would be helpful. Assistant City Attorney Clauson noted that the matter would not be before the City Council if the applicant had not requested the additional 15 feet above the current height limit. She stated that if the item is continued, the City can continue to work with the applicant. Mayor Pro Tem Adams expressed his concern for the applicant currently having the ability to install a 35 -foot pole which is two feet in diameter. Assistant City Attorney Clauson stated that there are also provisions for flagpoles, and that the applicant would have to show that their proposed facility qualifies as a flagpole. City Attorney Burnham stated that continuing the matter would allow the City and the applicant to work on a design that would be more palatable to the City Council and the community. Mayor Pro Tern Adams stated that although the example of a lighthouse being done tastefully might be possible, he expressed his concern for the City Council not having discretionary approval on such facilities. He felt that the ordinance may need to be looked at again. Council Member Heffernan suggested that the policy include direction to staff to contact the district's council member prior to presenting the proposal to the full City Council. He stated that the ordinance was meant to streamline the process and encourage cellular carriers to install sites on City -owned property, and that an initial read by the council member on the aesthetics issue might save some time and money. Assistant City Manager Kiff stated that such a provision is included in the policy. He explained that when a proposal is not required to go to the City Council, the City Manager's office is still required to notify the council members of the pending application and the City Council has the right to Volume 56 - Page 898 City of Newport Beach Regular Meeting May 11, 2004 call the item up for review. City Attorney Burnham pointed out the importance of the application under consideration, since it will set the stage for future permits. Mayor Ridgeway agreed that it was appropriate to be careful. Amended motion by Council Member Rosanskv to continue the item to the City Council meeting of June 8, 2004, and direct staff to hire a consultant to look into the issues discussed and provide more information. Council Member Nichols asked if the poles in Newport Coast are similar to the proposed pole. Council Member Heffernan stated that those poles are for the Edison supply lines, but that an example of one can be found at MacArthur Boulevard and Jamboree Road. The amended motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb N. CURRENT BUSINESS 19. CABLE COMMUNICATIONS FRANCHISES ORDINANCE. Assistant City Manager Kiff stated that the City has worked extensively with the cable companies on the proposed ordinance and that it is the second one being presented to the City Council. Council Member Heffernan stated that the proposed ordinance was also reviewed by the Ad Hoc Telecommunications Committee and outside legal counsel. He pointed out that the ordinance does not extend the franchise agreements with Adelphia and Cox, but is needed. Assistant City Manager Ki£f explained that the ordinance provides the framework for how the City would treat any cable company. After it's adopted, the City will work with Adelphia and Cox to enter into agreements that follow the ground rules. Mayor Ridgeway noted that the ground rules are limited since the Federal Government has preempted the cable franchise industry. Assistant City Manager Kiff added that the City can't control the rates, for example. Jim Hildreth stated that the ordinance does not include a provision for the general public to have access and viewing rights of the City Council meetings, which means that anything recorded by the general public must be admissible. He expressed his surprise that the ordinance doesn't reflect upon the requirements of the Brown Act. He stated that there should also be a viewing room for those that can't record the City Council meetings or those who lose power. Volume 56 - Page 899 �11L1170// Cable Communications Franchises Ordinance (42/100 -2004) City of Newport Beach Regular Meeting May 11, 2004 Motion by Council Member Heffernan to introduce Ordinance No. 2004 -8 relating to cable communications franchises; and pass to second reading on May 25, 2004. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 20. PUBLIC RIGHT -OF -WAY ORDINANCE. Assistant City Manager Kiff acknowledged Leslie Daigle of the Ad Hoc Telecommunications Committee who worked on the ordinance for this item, as well as the previous item. Assistant City Manager Kiff reported that this is the first time that the City has proposed a public right -of -way ordinance and that it's an attempt to govern how utility companies will be treated when they propose to conduct activity on public right -of -way. He stated that the ordinance has been reviewed extensively by outside counsel. Council Member Heffernan stated that the current code has the public - right-of way regulations in various sections and that the proposed ordinance would make them more concise. Additionally, Council Member Heffernan stated that the process is also being done in other municipalities. Assistant City Manager Kiff stated that four existing models were used and that the City's ordinance is compilation of these models. Mayor Pro Tern Adams noted the e -mail sent to the City Council by Assistant City Manager Kiff earlier in the day, which addressed some new changes to the proposed ordinance. Assistant City Manager Kiff explained that the changes were in response to some concerns by Edison. Using a PowerPoint presentation, Assistant City Manager Kiff stated that the utility companies feel that their current franchise agreements should exempt them from the ordinance. The agreement with the Gas Company is from 1943 and the agreement with Edison is from 1947. Assistant City Manager Kiff stated that they are exempted from the financial security section of the ordinance, but that the agreements do not address public right -of -way issues. He stated that the concern was addressed, however, and he read the two sentences that are being recommended for addition to Section 13.20245, Severability, of the Newport Beach Municipal Code (NBMC). Assistant City Manager Mff stated that the utility companies also feel that the ordinance does not protect national security interests. This concern is addressed by the addition of language to Section 13.20.190, System Location Data, of the NBMC. Council Member Heffernan explained that the City wants the plans from Volume 56 - Page 900 INDEX (100 -2004) City of Newport Beach Regular Meeting May 11, 2004 INDEX the utility companies on where their lines will be located in the public right -of -way, but that the utility companies don't want to disclose too much data. Continuing with the PowerPoint presentation, Assistant City Manager Kiff stated that the utility companies are also concerned that they'll have to pay for the relocation due to another agency's actions. He stated that this was also addressed. The last change proposed is to add the definition of "franchise ", so that it's clear that it's a franchise between the City and the company. Jennifer Gonzalez, of the Gas Company, thanked the City for including the Gas Company in the process, but stated that they haven't had enough time to review the changes. She stated that they do not feel comfortable moving forward with the ordinance as currently proposed. She asked for a continuance of the item. Bob Jystad, representing AT &T Wireless, expressed his concern for the recent changes and the lack of an opportunity to provide input on them. He thanked the City for allowing them to participate in the process and taking their concerns seriously. He stated that they still have a concern regarding excess capacity, because antennas aren't defined as facilities and excess capacity is limited to facilities as defined in the ordinance. Another issue is that an alternative location is listed as one of the reasons why a permit might be denied. He stated that since these are right -of -way locations, the City doesn't have the authority to require an alternate location. Lastly, Mr. Jystad stated that any attempt to apply future ordinances to permits already issued would be unlawful. He requested that AT &T be notified of any workshops regarding amendments to the ordinance. Council Member Nichols asked if Mr. Jystad was concerned that AT &T antennas would have to be shared by other companies. Mr. Jystad stated that their concern is that municipalities would require evidence of capacity of their antennas and obligate AT &T to share that excess capacity. He wanted it clear that excess capacity does not apply to antennas. Mayor Ridgeway noted that excess capacity is regulated by the federal government. Council Member Nichols stated that he's more concerned for the utility companies that have pipes in the ground and physical facilities that are difficult to move. Carol Tagayun, SBC Communications, thanked the City for the consideration that was given to SBC's input. She stated that there are still several concerns and that these were addressed in a letter submitted by SBC to the City Council on May 10, 2004. She stated that one remaining concern is the definition of "feasible' because it doesn't take into consideration economic factors. Another concern is the indemnity requirement because it would mean that SBC would be responsible for all damages arising from an incident where the City is anything less than Volume 56 - Page 901 City of Newport Beach Regular Meeting May 11, 2004 INDEX 100% at fault. Lastly, Ms. Tagayun stated that the bonding and security requirements are an unreasonable burden. In closing, she stated that SBC is hoping that the adopted ordinance will be reasonable in its requirements and that it will help promote the installation of new technology in Newport Beach. Jane Brown, Southern California Edison, thanked the City staff for their openness, their willingness to listen and their efforts in developing good public policy. She stated that there only remains some differing opinions on some of the language and how it can be interpreted. Ms. Brown stated that the legal department at Edison has not had the opportunity to review the changes made by staff earlier in the day. She asked for a continuance of the item. Jim Hildreth referred to Section 13.20.100, Excavations, of the proposed ordinance and stated that it should be mandatory for the public to be notified when their right -o£ -way will be disrupted. He stated that the noise and lights from such projects should also be addressed, and that the general public needs to be taken care of. Assistant City Attorney Clauson stated that outside counsel has provided input on the concerns of the utility companies. With regard to the definition of "feasible ", she stated that it is the same as that used in the telecommunications ordinance. She stated that everyone has a different opinion on what would be considered economically feasible. Assistant City Attorney Clauson stated that staff also feels that the provisions in the right -of -way ordinance provide for reasonable time, place and manner regulations that apply to everyone on an equal basis. She did agree that it would be fairer to change the language in the indemnity section from "sole negligence" to "active negligence ". Mayor Ridgeway asked if all of the concerns of the utility companies had been addressed. Assistant City Attorney Clauson responded in the affirmative. Additionally, he asked if the utility companies were provided with enough time to review the document. Assistant City Manager Kiff responded in the negative and suggested that the City Council introduce the ordinance with the recommended changes. He stated that staff would continue to work with the utility companies and if additional changes were needed, the ordinance would be reintroduced. Council Member Bromberg stated that he understood the urgency, but that it didn't seem appropriate to introduce an ordinance that hadn't been reviewed by the utility companies. City Attorney Burnham stated that although the precise wording may not have been reviewed by the utility companies, the issues have been discussed extensively. Mayor Ridgeway stated that the recent changes were straightforward and benefit everyone. Council Member Bromberg stated that he didn't know if that was the point of view of the utility companies, however. Volume 56 - Page 902 City of Newport Beach Regular Meeting May 11, 2004 Council Member Heffernan stated that two hearings were held and everyone has had the chance to provide input. He stated that it would only be continued if there is some precise language that staff feels could be addressed over the next two weeks. City Attorney Burnham stated that there would probably not be any significant changes in the two -week period. Motion by Council Member Heffernan to introduce Ordinance No. 2004 -9, as amended by staff, pertaining to use of the public right -of -way; and pass to second reading on May 25, 2004. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 21. NOTICE OF INTENTION TO MAKE APPLICATION TO REORGANIZE TERRITORY KNOWN AS THE WESTERN BORDERS ANNEXATION. Item removed from the agenda. O. ITEMS REMOVED FROM THE CONSENT CALENDAR Motion by Council Member Brombere to limit public comments on items removed from the Consent Calendar to two minutes, with the option for the Mayor to extend the time limit at a speaker's request. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 1. MINUTES OF THE ADJOURNED REGULAR AND REGULAR MEETING OF APRIL 27, 2004. Jim Hildreth referred to page 850 of the regular meeting minutes and stated that he did not state that the costs seem to be justified. Additionally, during Public Comments, he stated that his comments regarding the City installing a ladder are incorrect. He stated that the minutes are not accurate. He also disagreed with the recording of his comments on page 857. Motion by Mayor Pro Tern Adams to waive reading of subject minutes, approve as written and order filed. The motion carried by the following roll call vote: Volume 56 - Page 903 INDEX [No report] City of Newport Beach Regular Meeting May 11, 2004 Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 3. ORDINANCE PROHIBITING ISSUANCE OF NEW SHORT TERM LODGING PERMITS IN SINGLE FAMILY ZONES SUBSEQUENT TO JUNE 1, 2004, Council Member Nichols stated that the item addresses summer rentals in R -1 districts. He stated that people should be told about the ordinance and not be deterred if they want to take out a license with the Revenue Division. City Attorney Burnham stated that he's only heard a concern about the ordinance from Robert Walchli, and that he has spoken with Mr. Walchli and it was agreed that Mr. Walchli would be issued a short term lodging permit. A business license would also be issued, but fees would not be paid until the short term lodging permit were utilized. City Attorney Burnham explained that the purpose of the ordinance is to protect the character of the R -I district neighborhoods that can be impacted by the proliferation of short term rentals. He further explained that approximately 61 short term rental permits have been issued in R -1 zones and the bulk of them are on the Balboa Peninsula, Council Member Nichols agreed with the intent of the ordinance. Craig Batley stated that there are numerous single family homes that have short term rentals and that many of them are not in R -1 districts. Mayor Ridgeway clarified for Mr. Batley that an R -1 house can be built in an R -2 zone. City Attorney Burnham added that the ordinance would only apply to dwelling units in R -1 zones, and would not apply to single family residences in R -2 zones. Mr. Batley stated that the wording of the ordinance is not clear, and added that many people have second homes in Newport Beach and rely on the revenue. He stated that the ordinance would disallow this. He stated that others travel, rent their homes and also depend on the revenue. Mr. Batley stated that targeting the R -1 districts targets the higher -end properties, which don't disrupt the neighborhood. He added that it will also hurt the businesses on the peninsula, since there would basically be no R -1 properties that can be rented in the area. He requested that the financial impacts be analyzed and that the item be continued to allow for further study. Dolores Otting agreed with the comments of Mr. Batley, and asked how people find out about the impacts of such an ordinance. She noted that the item was listed on the Consent Calendar and is being discussed very late in the meeting. She expressed her concern for people's property rights and stated that people should be allowed to rent their property if they choose to do so. Ms. Otting read from Section 2 of the proposed ordinance and stated that what is being done is unconstitutional. She further noted that this Volume 56 - Page 904 INDEX (100 -2004) City of Newport Beach Regular Meeting May 11, 2004 INDEX would apply to upscale neighborhoods. In response to the public being notified about the proposed ordinance, City Attorney Burnham stated that the ordinance has appeared twice on the City Council agenda, is on the Internet and has been posted in the required locations. He added that the ordinance does not apply to exchanges of homes, it only applies to short term rental of homes, and that existing permits are vested. In regard to constitutional rights, City Attorney Burnham stated that property rights are not being impacted by the proposed ordinance. Mayor Ridgeway asked if the whole concept of R -1 zoning is to protect the neighborhood from the impacts of short term rentals. City Attorney Burnham stated that several studies have addressed the turnover of occupants in homes in R -1, R -1.5 and R -2 districts, and that the R -1 neighborhoods have appeared to have less turnover and a more stable living environment. In response to Mayor Pro Tern Adams' question, City Attorney Burnham stated that the definition of short term is 30 days or less. Council Member Nichols asked if less than two months is considered short term. City Attorney Burnham responded in the negative and explained that transient occupancy is defined as 30 days or less. Council Member Nichols confirmed that the ordinance would not apply to a recurring month -to -month tenancy. Linda Grant agreed with the comments of Mr. Batley and Ms. Otting, and stated that she was in attendance at the current meeting for another issue, and was not aware of the proposed ordinance. She expressed her disappointment that the proposed ordinance is being considered and explained that the price of the weekly rentals is high, which draws the families to the area and is good for the community. She stated that the issue should be addressed further, that she is against it and that the public should have been properly noted. Jim Hildreth expressed his surprise that more realtors weren't speaking in opposition to the proposed ordinance. He stated that the rights of the renters are being violated and that he doesn't feel that the proposed ordinance should be adopted. Mr. Hildreth added that the City should welcome and encourage renters. Mr. Batley referred to the comment by the City Attorney that the ordinance would not affect those that already have short term rental permits, and stated that it appears that the ordinance could be written more carefully. City Attorney Burnham stated that a property owner does not have the "right" to rent a property on a short term basis. The ordinance attempts to balance the interests of the City Council to preserve the manner in which properties have been used historically in Newport Beach while, at the same time, protecting the residential character of the R -1 neighborhoods. Volume 56 - Page 905 City of Newport Beach Regular Meeting May 11, 2004 INDEX In response to Mayor Pro Tem Adams' question, City Attorney Burnham stated that 61 permits were applied for in the past twelve years and of those, two or three were for properties located north of Coast Highway. Mayor Pro Tem Adams noted the low demand. Council Member Heffernan asked if staff was aware of how many property owners should have applied for a permit, but did not. City Attorney Burnham stated that the short term lodging permit ordinance was designed to carry a heavy sanction if violated and did not require a fee for the permit. Council Member Heffernan stated that by prohibiting the short term rentals, the City will never know who's complying and the City won't receive the revenue. City Attorney Burnham stated that it only applies to the R -1 zone and that only 61 have been applied for in the past twelve years. Council Member Heffernan asked what would happen if a neighbor noticed someone in violation. City Attorney Burnham stated that the City would pursue enforcement for failure to obtain a short term lodging permit. He further explained that the code is violated if a property owner rents without obtaining the required permit. He added that action would not be taken against tenants. Council Member Heffernan asked why the matter is being addressed at this time. Mayor Ridgeway stated that the intent of the proposed ordinance is to maintain the integrity and quality of a residential R -1 neighborhood. He expressed his support for the ordinance and stated that it maintains property values. Motion by Mayor Ridgeway to adopt Ordinance No. 2004 -6. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Mayor Ridgeway Noes: Nichols Abstain: None Absent: Webb In regard to public notification, Mayor Ridgeway stated that he couldn't explain why more people often aren't present for discussions on City -wide matters. 4. PUBLIC NUISANCE ABATEMENT (CHAPTER 10.50) — PROPOSED AMENDMENTS. Jim Hildreth asked if the proposed ordinance applied to golf carts or electric vehicles, and stated that it appears to be violating individual property rights. He explained that the vehicles in question are located on private property. Dolores Otting stated that the public needs to be aware of the proposed ordinance and that a better method needs to be established for getting such information out to the public. She asked if a vehicle parked on the street could be ticketed. Volume 56 - Page 906 j (100 -2004) City of Newport Beach Regular Meeting May 11, 2004 City Attorney Burnham stated that the ordinance only applies to conduct or activity that occurs on private property. It would not be used to remove vehicles from the street. In response to the comments made by Ms. Otting, Council Member Bromberg stated that the public does find out about matters addressed by the City Council, and that it's easy to criticize the method but difficult to offer solutions. Although the City does not knock on doors, it is effective in getting the word out, as noted by several issues that have been dealt with in the past and the large attendance at those meetings. City Attorney Burnham noted that the ordinance was drafted at the request of Council Member Webb and was a result of the lengthy nuisance abatement efforts at the Thomassen property. Motion by Mayor Pro Tem Adams to adopt Ordinance No. 2004 -7 amending Chapter 10.50 of the NBMC to streamline the process and add parking or storage of vehicles other than in a garage, carport or driveway as a public nuisance. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 5. FOURTH OF JULY STREET CLOSURE RESOLUTION. Jim Hildreth expressed his opposition to the proposed action, and noted that the FreeNewport.com website was started because of what the City proposed on the Fourth of July and the infringement of rights. Mr. Hildreth stated that the individual that started FreeNewport.com was not in attendance at the current meeting, but that he has voiced his opposition to the street closures in the past. Mr. Hildreth stated that he is voicing an objection to the proposed action on this individual's behalf. Dolores Otting stated that the City receives money to conduct sobriety checkpoints. She asked why checkpoints are not conducted on the peninsula on July 3rd and 4th. She stated that it would save the City some money, would deter people from coming onto the peninsula and would be a legal use of the grant funds. City Attorney Burnham confirmed that the City does receive grants to conduct sobriety checkpoints and that they are generally set up when the Police Department feels that arrests will be made for driving under the influence of alcohol. He didn't feel that it would be a wise or legal use of the grant funds to deter people from coming into the area and enjoying themselves. Volume 56 - Page 907 INDEX (100 -2004) City of Newport Beach Regular Meeting May 11, 2004 Mayor Ridgeway stated that safety is paramount on the Fourth of July and that police deployment deals with the felons and those driving under the influence of alcohol. City Attorney Burnham agreed that checkpoints are labor intensive and that having police presence in West Newport is a wiser use of manpower. Mayor Ridgeway noted that an additional fifty police officers would be hired from different cities for this year's Fourth of July efforts. Motion by Council Member Brombere to adopt Resolution No. 2004 -37 authorizing temporary closure or diversion of traffic from portions of Seashore Drive, the "100" block streets and alleys between 32nd Street and 54th Street, Balboa Boulevard, Back Bay Drive and Newport Boulevard during the Fourth of July holiday, to install temporary boundaries on Seashore Drive, and to close certain parking lots. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 9. RELINQUISHMENT OF BRISTOL STREET NORTH AND SOUTH — APPROVAL OF COOPERATIVE AGREEMENT WITH STATE OF CALIFORNIA AND ADOPTION OF RESOLUTION. Council Member Nichols confirmed with the City Manager that there is a $750,000 fee for the relinquishment. He expressed his support for the action, and confirmed that additional territory couldn't be included. Motion by Council Member Rosanskv to 1) approve the cooperative agreement with the State of California, which provides for the relinquishment of that portion of the northbound and southbound Bristol Street frontage roads on State Route 73 (SR 73), between Jamboree Road and Irvine/ Campus Drive to the City of Newport Beach; 2) adopt Resolution No. 2004 -38 to accept the request of the State of California to relinquish the right -of -way for northbound and southbound Bristol Street frontage roads on State Route 73 (SR 73), between Jamboree Road and Irvine /Campus Drive; and 3) direct staff to invoice the State of California in the amount of $750,000. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 10. COUNTY LANDFILL FEE AGREEMENT. Volume 56 - Page 908 INDEX C -3705 Relinquishment of Bristol Street North and South (38/100 -2004) C -3136 County Landfill City of Newport Beach Regular Meeting May 11, 2004 INDEX Mayor Ridgeway stated that in reading the staff report, it appeared that Fee Agreement the City had a ten -year option. He asked why the option was only (38/100 -2004) exercisable by the landfill operator. General Services Director Niederhaus stated that it's a mutual agreement, and that the City has an irrevocable option before June 30, 2004, to renew the current $22 per ton rate with the County for ten more years, but that it has to be a mutual agreement. Mayor Ridgeway thanked the General Services Director for the information and stated that the mutuality explains why the City is agreeing to a three -year extension. Motion by Mayor Ridgeway to 1) accept the County offer to extend the Waste Disposal Agreement through June 30, 2010; and 2) authorize the City Manager to execute Amendment No. 1 to the Waste Disposal Agreement. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 11. BUDGET AMENDMENT AND APPROVAL OF AMENDMENT NO. 1 C -3614 TO THE PROFESSIONAL SERVICES AGREEMENT FOR HARBOR Harbor RESOURCES PROGRAM AND PROJECT SUPPORT WITH TETRA Resources TECH, INC. Program and Project Support Jim Hildreth asked if this was a waste of public resources and if it was (38/100 -2004) necessary to have this service. He agreed that the City needs to establish a dredging program but felt that by approving the action, the City is circumventing the requirement to go through the Coastal Commission. Motion by Mayor Pro Tern Adams to 1) approve Amendment No. 1 to an existing sole - source Professional Services Agreement with Tetra Tech Inc. extending the agreement's term to June 30, 2005; and 2) approve a budget amendment (04BA -059) appropriating $50,750 from unencumbered reserves (Tidelands Fund) to the City Manager's 0310 -8080 account to fund the period of December 1, 2003 through June 30, 2004. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 12. TIDELANDS GRANTS. C -3357 Tidelands Council Member Nichols requested that a staff report be given, and stated Grants that there are projects in the back bay that could use the funding. City (38/100 -2004) Volume 56 - Page 909 City of Newport Beach Regular Meeting May 11, 2004 INDEX Attorney Burnham stated that one of the sphere issues that the City Council has considered is the possibility that the City and the County might reach an agreement for the City to take over, as grantee, some of the tidelands in the lower and upper bay. He stated that the County's support would be contingent upon revenue neutrality. The benefit to the City is that the City would have control over the tidelands and could possibly administer them in a more efficient manner. The County would benefit by receiving revenue that would not be limited to use in Newport Beach. City Attorney Burnham stated that the County recently asked the State Lands Commission if they would support legislation that would declare some County uplands in the upper bay and some City property as tidelands, and is the reason why the item was agendized for the current meeting. City Attorney Burnham explained that although the details aren't known yet, the City could potentially gain control of the tidelands in the lower and upper bay through the legislation. He added that the City currently has a $4.5 to $5 million deficit in terms of tideland expenditures versus tideland revenue. Council Member Nichols referred to the comment about revenue neutrality and asked for a better explanation of the funding aspect. He stated that it seems to generate expenses only for the City. He asked what the advantages would be and if the Newport Dunes property was included. City Attorney Burnham stated that the Newport Dunes would be the largest parcel and the parcel that would generate the most revenue. He provided an example of the funding aspect by stating that if the Newport Dunes generated $2 million in tideland revenue over a one year period, the City would use that money for tideland purposes and give the County $2 million that would not be subject to the tideland trust restriction on use. In response to Council Member Nichols' questions, City Attorney Burnham stated that the details of the agreement have not been worked out, but that the City would have the administration costs. He explained that the costs to administer the additional tidelands would not be significant, given that the City already administers a large number of tidelands. Additionally, he stated that the City, as grantee, would have an additional measure of control over how the tidelands would be used. The State Lands Commission does not question the land use decisions of the trustee or grantee, as long as the uses are consistent with trust purposes. Council Member Nichols asked if the City should take over control of as much as possible and confirmed that the City would have the right to control zoning in those areas. City Attorney Burnham noted that the City already has the right to control the land use at Newport Dunes because of a settlement agreement, but being the grantee would give the City additional authority and the ability to modify the lease. In response to Council Member Nichols' question, City Attorney Burnham stated that any transient occupancy tax generated by a hotel development at the Newport Dunes would remain in the City. Mayor Ridgeway stated that the proposed action before the City Council at the current meeting is to approve a cooperative agreement with the County to allow them to place the funds in their general fund instead of limiting it to their tidelands. The City would be the administrator, or the trustee, of the tidelands that the County currently administers. The City would Volume 56 - Page 910 City of Newport Beach Regular Meeting May 11, 2004 INDEX collect any revenue and give the County that amount. Council Member Nichols stated that the City would be incurring the equivalent of the costs that the tidelands would generate in revenue. Mayor Ridgeway stated that it would need to be worked out and that the City is working with the County on about five other issues, as well. The County is interested in receiving money to pay down their debt, and the intent is that there would be no additional expense to the City and no loss of revenue to the County. City Attorney Burnham stated that any agreement would be brought back to the City Council, unless there is not enough time to meet legislative deadlines. Dolores Otting referred to the staff report and asked if the City is currently spending $5 million more on administering tidelands. Mayor Ridgeway stated that the City collects about $6 million and spends about $11 million. Ms. Otting asked why the City would be better off with the proposed agreement. She expressed her opposition to the proposed action. Jim Hildreth stated that prior to 1975, the City had the Harbor Department. He asked if this was now the City's attempt to get back what was taken away from them. He stated that misappropriation of funds was the cause and the City has shown that it doesn't keep good records. He stated that the County has done a good job and the proposed action doesn't appear to be good for the City or the general public. Motion by Council Member Bromberg to authorize the City Manager to execute an agreement with the County, of Orange that would approve a re- alignment of tidelands pursuant to legislation and on a revenue neutral basis. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Mayor Ridgeway Noes: None Abstain: Nichols Absent: Webb P. MOTION FOR RECONSIDERATION Motion by Council Member Heffernan to reconsider the amendment to Council Policy G -1, Retention or Removal of City Trees, as approved at the City Council meeting of April 27, 2004, Item No. 23, G -1 Policy Review, and to add a requirement for a one - for -one replacement on tree removals. City Attorney Burnham stated that a motion for reconsideration should only be a motion to reconsider the item and not to take a different action on the item. Council Member Heffernan withdrew his motion. Volume 56 - Page 911 City of Newport Beach Regular Meeting May 11, 2004 INDEX Council Member Rosansky confirmed with the City Attorney that the G -1 policy could always be amended further at a future meeting. After a brief discussion, it was determined by the City Attorney that Motion for Reconsideration is an agendized item and that public testimony should be taken. Linda Grant expressed her support for a one - for -one tree replacement requirement, and stated that it would cause individuals to give more thought when removing a tree. She stated that 470 trees being removed a year is far too many and would have an environmentally negative impact on Newport Beach. Dr. Jan Vandersloot stated that he sent an e -mail to the council members and was hoping that the City Council would reconsider their vote on a couple of specific items related to the G -1 policy. He expressed his understanding that this would be done at a future meeting. Mayor Pro Tem Adams asked if it was appropriate to discuss the issue or if the discussion should be limited to reconsidering the item. City Attorney Burnham stated that the discussion can be open to the agenda item being considered for reconsideration. Dr. Vandersloot stated that new information was developed during the meeting that the public did not have the opportunity to comment on. Mayor Pro Tem Adams stated that the intent of the vote was to have a one - for -one replacement, and that the language provided the City with a failsafe in case there were serious financial implications. Mayor Ridgeway requested that at the Study Session on May 25, 2004, five minutes be allotted to providing an interpretation of what was approved by the City Council. He agreed that the intent was to have a one - for -one replacement. City Attorney Burnham stated that it might be better to place the item on the Consent Calendar to confirm staffs understanding of the intent of the amendments to the G -1 policy. Mayor Pro Tem Adams confirmed with the City Attorney that it would be appropriate to have the General Services Director verify the City Council's understanding of what was voted on, at the current meeting. General Services Director Niederhaus stated that the three removal categories are problem trees, all other trees and reforestation- Removal of trees in the all other trees and reforestation categories are replaced one - for -one. The only caveat is the allowance and the option, if the City cannot produce the needed funds, for staff to not replace trees in the problem trees category one - for -one. This would not apply to resident requests for removal of problem trees. General Services Director Niederhaus stated that it is staffs endeavor and understanding that it is to be a one - for -one replacement unless the City is in grave financial hardship. Council Member Nichols confirmed with the General Services Director that the one - for -one tree replacement would not have to be with a tree of the same species. City Attorney Burnham noted that if any member of the community has a concern Volume 56 -Page 912 City of Newport Beach Regular Meeting May 11, 2004 with the way the policy is being implemented, they are advised to contact a council member and request that the item be agendized. General Services Director Niederhaus added that staff is also required to notify the appropriate council member and the City Manager of problem tree removals. He stated that, at that time, staff could also indicate if there are financial problems with replacing the tree, and appropriate action could be taken. . Council Member Heffernan asked who has the final decision on determining if the replacement would not be done due to financial concerns. City Manager Bludau stated that he would make the decision and that the council member could call the item up if they didn't agree with that decision. Q. ADJOURNMENT at 11:00 p.m. The agenda for the Regular Meeting was posted on May 5, 2004, at 4:10 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 May 7, 2004, at 2:10 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. DCV� City Clerk J Recording Secr6dry �L Mayor U 01�",Owoo', Volume 56 - Page 913 INDEX