HomeMy WebLinkAbout10/27/2009 - Regular MeetingCITY OF NEWPORT BEACH
City Council Minutes
Regular Meeting
October 27, 2009 — 7:00 p.nL
I. STUDY SESSION - 4:00 p.m
II. CLOSED SESSION - 5:46 p.m
1. Conference with Legal Counsel _- _Existin¢ Litigation (Government Code
§54956.9(a)): Eighteen matters:
A. IBC Litigation Matters: Four matters, all arising out of the IBC Litigation
against the City of Irvine:
1. Newport BeachlPustin v. City of Irvine (Martin Street), Orange
County Superior Court Case No. 07CCO1264
2. Newport BeachlTustin v. City of Irvine (2861 Alton), Orange
County Superior Court Case No. 07CCO1265
8. Newport BeachlTustin v. City of Irvine (HCG), Orange County
Superior Court Case No. 30- 2008 - 0022885- CU- WM -CXC
4. Newport Beachllustin v. City of Irvine (Accessory Retail
Business Regulations), Orange County Superior Court Case No.
30- 2009 - 00264696
B. Group Homes Matters: Five matters all arising out of the Group Homes
litigation brought against the City, as follows:
L Concerned Citizen's v. City of Newport Beach, U.S. District
Court Case No. SACV 08- 00192 -JVS (RNBx)
2. Sober Living By The Sea v. City of Newport Beach, U.S. District
Court Case No. SACV 08 -00200 JVS (RNBx)
3. City of Newport Beach v. Morningside Recovery, Orange County
Superior Court Case No.07CC11694
4. Pacific Shores v. Newport Beach, U.S. District Court Case No.
&ACV 08 -00467 AG (PLAx)
5. Newport Coast Recovery v. City of Newport Beach, U.S. District
Court Case No. SACV 09 -0701 DOC (ANx)
C. Group'Homes Matters: Six matters all arising out of the Group Homes
investigation brought against the City, as follows:
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1. Pacific Shores v. Newport Beach, U.S. Dept. of Housing & Urban
Development Investigation No. 09 -08- 0592 -8
2. Newport Coast Recovery v. City of Newport Beach, U.S. Dept. of
Housing & Urban Development Investigation No. 09 -09- 0713 -8
3. Paul Murdoch v. City of Newport Beach, U.S. Dept. of Housing
& Urban Development Investigation No. 09- 09- 0831 -8
4. The Kramer Center v. City of Newport Beach, U.S. Dept. of
Housing & Urban Development Investigation No. 09- 09- 0833 -8
5. Oxford House v. City of Newport Beach, U.S. Dept. of Housing &
Urban Development Investigation No. 09- 09- 0830 -8
6. Yellowstone v. City of Newport Beach, U.S. Dept. of Housing &
Urban Development Investigation No. 09- 09- 0834 -8
D. McCollum v. Newport Beach, Orange County Superior Court Case No. 30-
2009- 00309287.
2. Conference with Labor Negotiators (Government Code §64957_6
Agency Designated Representatives: Bill Avery of Avery & Associates and Terri
Cassidy, Human Resources Director
Employee Organization: Multiple - Lifeguard Management Association;
Police Management Association; and Police Employees Association
a. Conference with Real Property Negotiator (Government Code §54956.8)
Property: 608 E. Balboa Boulevard
City Negotiator: Sharon Wood
Negotiating Parties: Levon Gugasian
Under Negotiation: Consideration of acquisition of property
III. RECESS
IV. RECONVENED AT 7:00 P.M. FOR REGULAR MEETING
V. ROLL CALL
Present: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor
Selich, Council Member Gardner, Council Member Daigle
Excused: Council Member Webb
VI. CLOSED SESSION REPORT
City Attorney Hunt reported that Council authorized outside counsel to defend litigation
regarding McCollum v. Newport Beach.
VII. PLEDGE OF ALLEGIANCE - Mayor Pro Tern Curry
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VIII. INVOCATION - Mr. Frank Carpenter
DL PRESENTATION
Presentation from Goodwill Industries of Orange County for E -Waste Partnership
- Goodwill Community Development Manager Doug Woolie presented Mayor Selich with a
certificate of appreciation.
X. NOTICE TO THE PUBLIC
XI. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH CQ T-UNCIL MEMBERS
WOULD._LIKE PLACED _ON A FUTURE AGENDA FOR DISCUSSION, ACTION OR
REPORT (NON- DISCUSSION ITEM)
Council Member Daigle noted the success of Public Safety Day and complimented the Public
Safety Departments for a job well done, discussed the ecological goals of the
Southern California Water Committee, noted that community member Monica Florian was
honored at that meeting, and discussed the need for a Sacramento -San Joaquin Delta
solution.
Council Member Rosansky noted that the Barrett - Jackson Auction Company will be coming
to the Orange County Fairgrounds from June 25 -27, many hotels will be needed for this
event, and this is an opportunity to work with the City of Costa Mesa.
Mayor Pro Tem Curry congratulated the Restaurant Association for another successful
Restaurant Week.
XII. CONSENT CALENDAR
A. READING OF MINUTESIORDINANCES AND RESOLUTIONS
1. MINUTES OF THE REGULAR MEETING AND ADJOURNED
REGULAR MEETING OF OCTOBER 18, 2009. Waive reading of subject
minutes, approve as written and order filed.
2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in
full of all ordinances and resolutions under consideration, and direct City
Clerk to read by title only.
B. ORDINANCE FOR ADOPTION
3. AMENDMENT TO MUNICIPAL CODE CHAPTER 9.04.080,
SUBSECTION 807.4.2.1 (FIRE RING POLICY UPDATE). [100 - 2009]
Adopt Ordinance No. 2009 -23 amending Municipal Code Section 9.04.030,
Subsection 307.4.2.1, to clarify the public use of fire rings at any beach,
park, or other public place.
C. CONTRACTS AND AGREEMENTS
4. AVOCADO AVENUE AND WESTCLIFF DRIVE MEDIAN
IMPROVEMENTS - AWARD OF CONTRACT (C -8967). [381100 -20091
a) Approve the project drawings; b) award contract (C -3967) to Tal Cal
Engineering, Inc. for the total bid price of $197,565.00 and authorize the
Mayor and the City Clerk to execute the contract; and c) establish an
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amount of $20,000 to cover the cost of unforeseen work.
City Manager Kiff noted that bids for the project came in 24% lower than
engineer estimates.
5. RHINE WHARF REPAIRS & PUBLIC DOCK - AWARD OF
CONTRACT (C- 8821). [281100 -2009] a) Approve the project drawings and
specifications; b) award contract (C -3821) to Associated Pacific Constructors,
Inc. for the total bid price of $430,539.84 including the base bid price of
$374,539.84, and an additive bid item 1 of $56,000, and authorize the Mayor
and the City Clerk to execute the contract; and c) establish an amount of
$64,580.00 (15 %) to cover the cost of unforeseen work.
City Manager Kiff noted that bids for the project came in 25% lower than
engineer estimates.
6. MCFADDEN SQUARE PHASE II - AWARD OF CONTRACT (C- 4865).
(881100 -2009) a) Approve the project drawings and specifications; b) declare
the apparent low bid submitted by C.A. Odell Contractor as nonresponsive;
c) declare the 2nd low bid submitted by EBS Concrete, Inc. as the low
responsive bid; d) award (C -4365) to EBS Concrete, Inc. for the total bid
price of $32,150.00 and authorize the Mayor and the City Clerk to execute
the contract; and e) establish an amount of $5,850.00 to cover the cost of
unforeseen work.
City Manager Kiff noted that bids for the project came in 20% lower than
engineer estimates.
Motion by Mayor Pro Tem Curry, seconded by Council Member Rosanskv to
approve the Consent Calendar, except for the items removed (7 and 8).
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council Member Gardner, Council Member Daigle
Absent: Council Member Webb
XIII. ITEMS REMOVED FROM THE CONSENT CALENDAR
7. APPOINTMENTS TO THE TASK FORCE ON CYCLING SAFETY. (100 -2009]
Mayor Selich recommended appointing Council Member Daigle to the Task Force, in
addition to the candidates listed in the staff report.
Motion by-Mayor Pro Tem Curry. seconded by Council Member _Gardner to
a) adopt amended Resolution No. 2009 -74, amending Resolution No. 2009 -67
regarding the membership of the Task Force on Cycling Safety; and b) confirm the
Mayors appointments to the Task Force on Cycling Safety - Council Member Daigle;
Daniel Murphy (Balboa Peninsula or West Newport Beach Area); Francis (Frank)
Peters (Corona del Mar Area); Jim Sweet (Newport Coast Area); and Sean Matsler,
Tony Petros, and John Tzinberg (At -large Residents).
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
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8. REVISION TO COUNCIL
'PERTAINS TO THE
MEETINGS. [100 -20091
POLICY A-6 (OPEN MEETING POLICIES) AS IT
ORDER OF BUSINESS FOR COUNCIL
In response to Council Member Gardner's question, City Manager Kiff explained
that the Planning Commission Report will be placed on the consent calendar and
can be pulled in the event an oral report is needed.
Motion by Council Member Gardner, seconded by Council Member
Rosanskv to approve the revisions to Council Policy A -6.
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council Member Gardner, Council Member Daigle
Absent: Council Member Webb
)UV. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES
As a member of the Citizen's Aviation Committee, Council Member Daigle reported on
RNAV Procedures, that the FAA will be at the next Citizen's Aviation Committee meeting on
December 7, and that the City will be providing a chart of all the different flight patterns for
concerned residents.
Council Member Gardner reported on CoastalBay Water Quality Committee findings and
the importance of street sweeping in reducing bacteria in the water supply.
Council Member Henn reported items considered at the most recent Economic Development
Committee Meeting, including the new Harbor Cruising Guide produced by the Harbor
Resources Department and the Harbor Commission, and discussed presentations by the
Orange County Business Service Center and the One Stop Center.
XV. PUBLIC COMMENTS - None
XVII. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT
XVIII.
11. . PLANNING COMMISSION AGENDA FOR OCTOBER 22,2009.[100-20091
Planning Manager Alford reported on the following Planning Commission items:
North Newport Center Planned Community Amendment (PA2009 -111) - Newport
Center Drive; ONG Parking Waiver (2009 -059) - 333 Old Newport Boulevard; and
Megonigal Residence (PA2007 -133) - 2333 Pacific Drive.
12. WATER CONSERVATION ORDINANCE. [100 -20091
Utilities Director Murdoch reported on changes to the amended ordinance in regards
to water leaks, zoning irrigation, the appeal process, construction sites, and smart -
controllers.
Council Member Gardner requested and received clarification from Utilities Director
Murdoch on the wording in Section 14.16.040 H and on approval systems in Section
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M.
Motion by Council Member Gardner, second-gd -by. Council Member Daigle
to a) introduce Ordinance No. 2009 -24 amending Chapter 14.16 of the Newport
Beach Municipal Code; and b) set a public hearing relative to the Ordinance for
Tuesday, November 10, 2009, at which time additional public testimony will be
taken and the Ordinance will be heard for a second time.
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council Member Gardner, Council Member Daigle
Absent: Council Member Webb
13. COUNCIL PRIORITIES STATUS REPORT. [100 -2009]
City Manager Kiff provided a staff report to discuss the following six Council
priorities: adverse impacts of John Wayne Airport (JWA), performance improvement
and benchmarking, FY09 -10 budget, the Facilities Replacement Plan, the Group
Homes Ordinance, and the fire hazard in Lower Buck Gully.
Assistant City Manager Wood reported on the Zoning Code update which is
tentatively scheduled for February 2010 and the Inclusionary Housing Ordinance.
Council Member Henn suggested conducting another Citizen's Survey to assist with
the performance improvement and benchmarking process.
S14. CONSTRUCTION AND MAINTENANCE PROJECTS IN RESIDENTIAL
DISTRICTS CODE AMENDMENT. [100 -2009)
Assistant City Manager Wood clarified a change in the code amendment language.
Mike Lugo expressed concern for the magnitude of the project being built next door
to him.
Motion by Mayor Pro Tem Curry, seconded by Council Member Rosansky to
continue the item to the November 10, 2009 meeting.
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council Member Gardner, Council Member Daigle
Absent: Council Member Webb
XVI. PUBLIC HEARINGS
9. APPEAL OF HEARING OFFICER'S DENIAL OF USE PERMIT AND
REASONABLE ACCOMMODATION - 1216 WEST BALBOA BOULEVARD
(NEWPORT COAST RECOVERY, LP) (PA2008 -104). [68/100 -2009]
Mayor Selich stated that the appellant withdrew the appeal, so no action is
necessary.
City Attorney Hunt verified that the appeal was canceled and noted that Code
Enforcement reported that the facility has been relocated to Costa Mesa. In
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response to Council Member Henn's questions, he clarified that any rehabilitation
center wanting to move to 1216 West Balboa would have to apply for a use permit or
reasonable accommodation and that our Group Homes Ordinance prohibits location
of new group homes in R -1 and R -2 Districts.
10. APPEAL OF HEARING OFFICER'S DENIAL OF REASONABLE
ACCOMMODATION - 492 AND 492'% ORANGE AVENUE, 8809 CLAY
STREET (PACIFIC SHORES PROPERTIES, LLC). (681100 -2009]
City Attorney Hunt framed the issues for Council in regards to changes to the
original application and advised Council on their options as outlined in the staff
report. He also discussed the fire code and noted conditions that would allow Council
to grant the reasonable accommodation.
Associate Planner Brown utilized a PowerPoint presentation to discuss facility
locations, Pacific Shores Properties' request for five accommodations, findings
required to grant a reasonable accommodation, the Hearing Officer's
determinations, and the amended request for reasonable accommodation that was
submitted on October 23.
Deputy City Attorney Wolcott discussed substantial evidence, reasonable
accommodations, the five separate application requests made by the appellant,
recommendations, conditional approval, exit door size and occupancy, and lack of
verifiable evidence showing financial necessity.
Chris Brancart, representing Pacific Shores Properties, utilized a presentation to
discuss facility locations, "sober environment" requirements, their good neighbor
policy, national surveys on drug use and health, government funding, past City goals
in regards to funding for substance abuse treatment, the need for a single
housekeeping unit, California landlord tenant law conflicts, enforcement issues,
dwelling statistics, community complaints, and observations relative to the staff
report. He further noted that this is an administrative proceeding and requested the
reasonable accommodation to be treated as a single housekeeping unit. In response
to Council questions, he clarified funding for housing elements and the 12 -12 -6
proposed solution.
Assistant City Manager Wood discussed the Community Development Block Grant
(CDGB) program and the consolidated plan.
Mayor Selich opened the public hearing.
Denys Oberman discussed citizen complaints and the over - concentration of group
homes on the Peninsula. She supported denying the request.
Cindy Koller expressed her reasons for supporting the denial of the request.
James Wilcox discussed his experience living at Pacific Shores and expressed
his support for the facility.
Lori Morris agreed that there is an over - concentration of group homes in the area
and expressed support for denying the request.
Larry Mathena discussed evidence from neighbors and expressed support
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for upholding the denial.
David Obbage, Casa San Miguel and Casa Santa Rosa HOA Representative,
discussed his opposition for the over - concentration of group homes in the area and
expressed the opinion that Pacific Shores represents a pursuit of profit at the
expense of the neighborhood.
Laura Curran noted that financial viability has not been demonstrated.
Kit Bobko, outside counsel, discussed statistics on licensed and unlicensed facilities
in the County versus the City, the definition of an appellant body, resident
testimony about facilities, direct substantial evidence, the housing element, and
reasonable accommodations.
Hearing no further testimony, Mayor Selich closed the public hearing.
In response to Council Member Henn 's request for clarification, City Attorney
Hunt clarified that, based upon the amendment to the application, Council can
consider and conditionally grant a reasonable accommodation for 12 residents in
each Orange Avenue address and six residents at the Clay Street address,
conditioned upon sufficient evidence of financial viability provided by Pacific Shores
Properties, LLC within ten days of the Council's decision. The financial information
will be forwarded to the City's Administrative Services Department for analysis and
the matter will be heard by the Hearing Officer to determine whether financial
viability exists. He also clarified that the number of occupants entitled to live on the
premises is based on the fire code and that this will need to be identified,
recommended against waiving any fire code requirements, and noted that Council's
action on the appeal is final and not subject to negotiation.
Deputy City Attorney Wolcott requested and received clarification from Council
relative to upholding the denial of the first four reasonable accommodation requests.
Motion by Council Member Henn seconded by Moor Pro Tem Curry to
consider and conditionally grant a reasonable accommodation for 12 residents in
each Orange Avenue address and six residents at the Clay Street address,
conditioned upon sufficient evidence of financial viability provided by Pacific Shores
Properties, LLC within ten days of the Council's decision to the City's
Administrative Services Department for analysis and determination by the Hearing
Officer to whether financial viability exists, determine the appropriate number of
occupants entitled to live on the premises based on the fire code, and not waive any
fire code requirements.
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry,
Mayor Selich, Council Member Gardner, Council Member Daigle
Absent: Council Member Webb
City Attorney Hunt indicated that a resolution will be brought back at the next
meeting to set forth the conditions.
XIX. MOTION FOR RECONSIDERATION - None
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XX. ADJOURNMENT, 9:09 p.m.
The agenda for the Regular Meeting was posted on October 21, 2009 at 8:05 p.m.
and the Supplemental Agenda for the Regular Meeting was posted on October 23,
2009 at 3:45 p.m. on the City Hall Bulletin Board located outside of the City of
Newport Beach Administration Building.
Mayor
tN v1/� � • r �1 �'U I �
City Clerk
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