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HomeMy WebLinkAbout04/26/2011 - Regular Meeting! i0 z G Q C City Council Minutes City Council Regular Meeting April 26, 2011 — 7:00 p.m. II. CLOSED SESSION - 5:15 p.m. A. Conference with Legal Counsel - Existing Litigation (Government Code 6 54956.9(a)): One matter: Status Report on Pending Litigation: We will report on a global basis on all pending litigation involving the City. This is an informational item only. No action, however, may be taken on any item unless it is specifically noticed below. B. Conference with Legal Counsel - Anticipated Litigation - Exposure to Litigation (Government Code 6 54956.9(b)): One matter: Based upon facts and circumstances not known to a potential plaintiff or plaintiffs, and as a result need not be disclosed (Section 54956.9(b)(3)(A)), a point has been reached where the City Council will meet to: (1) determine based upon the advice of its legal counsel whether there is a significant exposure to litigation against the City (Section 54956.9(b)(2)); and if so, (2) to discuss those facts and circumstances and potential action regarding the same (Section 54956.9(4)(3)(A)). C. Public Employee Performance Evaluation (Government Code 6 54957(b)(1)): The City Council will meet in closed session to consider the appointment, employment, evaluation of performance, discipline, or dismissal of one public employee. Title: City Attorney III. RECESS IV. RECONVENE AT 7:00 P.M. FOR REGULAR MEETING V. ROLL CALL Present: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry, Council Member Daigle VI. CLOSED SESSION REPORT - City Attorney Hunt reported that there was no reportable action VII. PLEDGE OF ALLEGIANCE - Council Member Hill VIII. INVOCATION - Mr. Frank Carpenter Volume 60 - Page 117 City of Newport Beach City Council Minutes April 26, 2011 IX. PRESENTATIONS Orange County Transportation Authority (OCTA) Presentation of Resolution of Appreciation to Newport Beach for Partnering to Deliver Needed Transportation Solutions - Huntington Beach Mayor Pro Tem Don Hansen reported that the City received $40 million in Measure M funds and presented the City with the OCTA Resolution of Appreciation. Presentation of check to the City by Scott Paulson, President of Friends of OASIS - Scott Paulson provided a background about the Friends of OASIS and the extensive volunteering that they do at the OASIS Senior Center. Mr. Paulson and Evelyn Hart presented the $390,000 check to Mayor Henn that represents the Friends of OASIS' total budget for 2010. OPISnetwork presentation of the Judi Kaminishi Award of Excellence - Norm Bour, OPISnetwork, presented certificates to the winner of the Judi Kaminishi Award of Excellence, Gay Himebaugh, and to the runner -ups - Micheal Fletcher, Dr. Phillip Yoo, and Millie De Is Cruz. X. NOTICE TO THE PUBLIC XI. 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 Hill reported that he attended the Corona del Mar joint meeting of the Residents Association and the Business Improvement District, the Newport to Ensenada Race kick -off dinner, and the Chamber of Commerce annual scholarship awards breakfast. Mayor Pro Tem Gardner added that cycling safety in Corona del Mar was discussed at the joint meeting. Council Member Daigle announced that residents can see a write -up about each of the Chamber of Commerce scholarship winners in the Daily Pilot. She reported that, while participating in the Orange County Victims Rights March and Rally, District Attorney Rackauckas commended the Newport Beach Police Department and asked if the City could adopt an ordinance that creates a child safety zone that restricts registered sex offenders in parks. Mayor Henn announced that the Newport Beach Police Department took first place in the Baker to Vegas Relay Race for the 9th year in a row; reported that he attended several Newport to Ensenada Race events; reported that the July 4th Committee will hold a meeting on May 4th to review updated planning for this year's holiday; and announced that the next Meet the .Mayor event will be on May 7 from 9:00 -10:30 a.m. at the Community Youth Center. (CYC). He also announced that he completed the Boston Marathon last week. City Manager Kiff wanted residents to be aware that the OC Marathon takes place Sunday morning. He also announced that budget discussions will begin at the May 10 study session. XII. CONSENT CALENDAR A. READING OF MINUTES /ORDINANCES AND RESOL UTIONS 1. MINUTES FOR THE STUDY SESSION AND REGULAR MEETINGS Volume 60 - Page 118 City of Newport Beach City Council Minutes April 26, 2011 2. OF APRIL 12, 2011. Waive reading of subject minutes, approve as amended, and order filed. Mayor Pro Tern Gardner requested that page 111 be amended to reflect that she was asking for suggestions for a temporary street closure for a cycling event. READING OF ORDINANCES AND full of all ordinances and resolutions Clerk to read by title only. B. RESOLUTIONS FOR ADOPTION RESOLUTIONS. Waive reading in under consideration, and direct City 3. RESOLUTION SUPPORTING AN APPLICATION BY THE CITY OF IRVINE FOR ORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA) MEASURE M2 TRAFFIC SIGNAL SYNCHRONIZATION PROGRAM FOR JAMBOREE ROAD. [100 -20111 Adopt Resolution No. 2011 -33 supporting the City of Irvine's application for the OCTA Measure M2 Traffic Signal Synchronization Program for the Jamboree Road Corridor Project from Portola Parkway to MacArthur Boulevard. 4. SPECIAL EVENTS TEMPORARY BUSINESS LICENSE. [100 -2011] Adopt Resolution No. 2011 -34 which would 1) reduce the business license tax for exhibitors, vendors and other event service providers at permitted special events to $20 (the fee can be adjusted annually by the Consumer Price Index); 2) require a special event organizer to include, with any special event permit application, a roster of exhibitors, vendors and other service providers participating in the special event; and 3) require a special event organizer to collect such business license tax from each of its exhibitors, vendors, and other service providers, and remit such payment to the City prior to the special event. C. CONTRACTS AND AGREEMENTS 5. REVIEW OF SEAWALL STRUCTURAL INTEGRITY AND SEAWATER OVER- TOPPING ASSESSMENT FOR BALBOA AND LITTLE BALBOA ISLANDS - APPROVAL OF THE THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. [381100- 20111 Approve Amendment No. 3 to the Professional Services Agreement with Everest International Consultants, Inc. of Long Beach, to perform additional tasks requested by staff at a contract price of $15,466, and authorize the Mayor and City Clerk to execute the Amendment. 6. 2010 -2011 OCEAN PIERS MAINTENANCE - AWARD OF CONTRACT NO. 4682. [381100 -20111 a) Approve the project drawings and specifications; b) award Contract No. 4682 to Associated Pacific Constructors, Inc. for the total bid price of $316,700, and authorize the Mayer and City Clerk to execute the contract; and c) establish an amount of $47,500 (15 %) to cover the cost of unforeseen work not included in the original contract. 8. PROFESSIONAL SERVICES AGREEMENT WITH BONTERRA Volume 60 - Page 119 City of Newport Beach City Council Minutes April 26, 2011 CONSULTING LLC FOR ENVIRONMENTAL SERVICES RELATED TO NEWPORT BANNING RANCH DEVELOPMENT. [381100 -2011] Receive and file. D. MISCELLANEOUS 9. PLANNING COMMISSION AGENDA FOR APRIL 21, 2011. [100- 2011] Receive and file written report. Motion by Mayor Pro Tom Gardner, seconded by Council Member Rosanskv to approve the Consent Calendar, except for the item removed (7); and noting the amendment to Item 1. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry, Council Member Daigle XIII. ITEMS REMOVED FROM THE CONSENT CALENDAR ANIMAL SHELTERING SERVICES. [381100 -2011] Council Member Rosansky reported that he visited the Orange County Humane Society and was impressed with the services provided and noted that the shelter encourages people to volunteer when the previous shelter did not. Cameror. Cireca expressed concern about the sizes of the cages at the new shelter because they are not conducive to getting pets adopted. Mindy Miller, Miss Kitty Rescue, stated that she is pleased with the improvements. She also expressed concern that the cages are half the size of the previous cages. She hoped that this could be addressed at a later date. City Manager Kiff indicated that the City would discuss this with the shelter, but the City needs to get the contract executed to begin shelter services with the Orange County Human Society. Motion by Council Member Rosansky, seconded by Mayor Pro Tern Gardner to approve the execution of an agreement with the Orange County Humane Society for the provision of animal sheltering services in an amount not to exceed $94,000 annually for a period of two years, with the City option to renew for three additional one -year terms. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tern Gardner, Council Member Selich, Council Member Curry, Council Member Daigle XIV. PUBLIC COMMENTS Bettina Deininger discussed inconsistencies relative to City - imposed fines, especially as it relates to Morningside Recovery and issues with use permits, parking requirements and business licenses. Willis Longyear expressed issues with Morningside Recovery and requested that the City Volume 60 - Page 120 City of Newport Beach City Council Minutes April 26, 2011 require Morningside Recovery to vacate the property by a date certain. Denys Oberman noted that the City discussed code enforcement during the study session, but believed that Morningside Recovery demonstrates a disregard for City regulations. She expressed the opinion that Morningside Recovery's presence hinders economic revitalization for Lido Village. Mayor Henn reported that the City is moving forward with issuing Notices of Violations (NOVs) to Morningside Recovery. City Attorney Hunt confirmed that NOVs have been sent and Morningside Recovery has responded; the City will continue to monitor the situation and enforce the zoning agreement; and will continue to review the need for increased code enforcement when the City is not obtaining compliance in a timely manner. He stated that staff will keep the City Council and community informed. XV. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Council Member Daigle reported that the Aviation Committee discussed noise monitoring locations in the City and that she will be visiting the San Francisco Airport Roundtable. Mayor Pro Tem Gardner reported that the Tidelands Resource Management Committee received a presentation from a Harbor Commission Subcommittee regarding their visioning for portions of the Bay. XVI. PUBLIC HEARINGS 10. NEWPORT THEATRE ARTS CENTER ELECTRONIC SIGN - 2501 CLIFF DRIVE (PA2011 -063). [100 -20111 Associate Planner Brown utilized a PowerPoint presentation to display the location of the Theater and what type of signage they are requesting. Acting Planning Director Campbell indicated that the Zoning Code has changed since the OASIS Senior Center requested their sign, so it necessitated tonight's review. Mayor Henn opened the public hearing. Hearing no testimony, he closed the public hearing. Council Member Rosansky pointed out that the Theater is owned by the City but is fully operated by volunteers. Motion by Council Member Rosansky, seconded by Council Member Curry to adopt Resolution No. 2011 -35 granting an exemption of the provisions of Chapter 20.42, and approving retrofitting the existing marquee sign with a new electronic LED changeable copy sign. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tern Gardner, Council Member Selich, Council Member Curry, Council Member Daigle 11. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG), FISCAL YEAR 2011 -2012 ACTION PLAN. [100 -20111 Acting Planning Director Campbell reported that this is an annual report and Volume 60 - Page 121 City of Newport Beach City Council Minutes April 26, 2011 discussed grant amounts, funding allocations, and loan repayments. In response to Council questions, Clint Whited of LDM Associates, reported that City administrative costs account for 17% although it can be as high as 20 %. Acting Planning Director Campbell discussed the competitive bid process that LDM Associates underwent and indicated that this will continue to be a service that will be bid out in the future. He confirmed that the City is required to have a fair housing component. Mr. Whited indicated that the U.S. Housing and Urban Development (HUD) has not determined the exact amount the program will decrease but HUD's estimate is 16 %. He further explained how the City's Section 208 loan repayment qualifies as a CDBG fund. Mayor Henn opened the public hearing. Hearing no testimony, he closed the public hearing. Motion by Council Member Rosanskv seconded by Mayor Pro Tem Gardner to approve the 2011 -2012 CDBG Action Plan; and c) adopt Resolution No. 2011 -36 adopting the 2011 -2012 Action Plan and authorizing the City Manager to: 1) submit the Action Plan to HUD with any modifications to project allocations necessary to conform the allocations to HUD's final 2011 -2012 CDBG grant allocations and currently unallocated funds in the City's account with HUD; 2) execute the FY 2011 -2012 CDBG Program Grant Agreement and all related documents on behalf of the City; 3) execute subrecipient agreements with the not - for- profit organizations receiving allocations of CDBG finds in the Action Plan; 4) execute a one -year contract extension with LDM Associates, Inc. (year 2 of 3) in an amount not to exceed $60,000 to administer the CDBG program and to monitor Affordable Housing Covenants; and 5) authorize the Community Development Director or his /her designee to be the official representative of the City of Newport Beach to submit required environmental documentation for CDBG projects. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem. Gardner, Council Member Selich, Council Member Curry, Council Member Daigle 12. 2010 -2015 REGIONAL ANALYSIS OF IMPEDIMENTS TO FAIR HOUSING CHOICE. [100 -2011] Acting Planning Director Campbell provided the staff report and indicated that staff chose to do a regional analysis. Mayor Henn opened the public hearing. Hearing no testimony, he closed the public hearing. Motion by Council Member Rosanskv seconded by Mayor Pro Tern Gardner to a) approve the 2010 -2015 Regional Analysis of Impediments to Fair Housing Choice; and b) adopt Resolution No. 2011 -37 authorizing the City Manager to submit the 2010 -2015 Regional Analysis of Impediments to Fair Housing Choice Certification to HUD. The motion carried by the following roll call vote: Volume 60 - Page 122 City of Newport Beach City Council Minutes April 26, 2011 Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry, Council Member Daigle 13. DEVELOPMENT AGREEMENT ANNUAL COMPLIANCE REVIEW - 2011 - FOR NEWPORT HARBOR LUTHERAN CHURCH (DA 10, PA2009 -137) AND HOAG MEMORIAL HOSPITAL PRESBYTERIAN (DA 5, PA2009 -064). [381100 -2011] Acting Planning Director Campbell discussed the Newport Harbor Lutheran Church Development Agreement and finds that it is in good faith substantial compliance with the agreement. Regarding Hoag Memorial Hospital Presbyterian's Development Agreement, he stated that they are also in good faith substantial compliance and discussed the lighting plan, landscaping, soundwall, and enclosed loading dock area. He announced that Hoag completed the window replacement program for Villa Balboa and reported that they have not applied for any major improvements this year. In response to Council questions, Acting Planning Director Campbell indicated that Hoag met their lighting requirements and voluntarily changed the bulbs to emit softer light; planted the appropriate number of trees; and that the issues brought forward in correspondence are not substantive issues to warrant a finding that Hoag is not in compliance. Mayor Henn opened the public hearing. Dennis O'Neil, representing Hoag Memorial Hospital Presbyterian, indicated that they agree with the findings and request that Council approve staffs recommendation. Erik Thurnher stated that the cogeneration plant sound test concerns relate to the measurements not being done while the four cooling towers were operating; the location of the sound test; and that the test did not take wind conditions into account. Barbara Batson stated that she was under the impression that the Newport Harbor Lutheran Church classroom plans would be available tonight. James Miller stated that the church is excited to be able to use the development agreement, believed that the fees were supposed to be waived, and stated that the church would be happy to speak with Ms. Batson to ensure that the project will not impact her residence. Regarding the church, Senior Planner Garcia stated that the project would require a public hearing and notices will be mailed. Dick Runyon expressed concerns about the use of the plume data supplied by Hoag, the number of data CDs available to the public for review, the lack of landscape screening, lighting issues in the parking lot, and that the project is exempt from CEQA. Jim Mosher referenced page 21 and noted that the City has yet to claim the $150,000 to be used for Sunset View Park. Volume 60 - Page 123 City of Newport Beach City Council Minutes April 26, 2011 Nancy Knight discussed issues related to sound, lighting in the lower campus, landscaping, the sound test, and the cogeneration plant. Ross Rabutto expressed concerns related to the secondary loading dock, thanked Hoag for the new windows, and requested that the soundwall be extended by 60 feet. Ms. Schuler expressed appreciation for the soundwall but requested that it be extended. She indicated that the trees need to be cut down because it obstructs the view to the Harbor. Hearing no further testimony, Mayor Henn closed the public hearing In response to Council questions, Hoag Hospital Project Manager Carey Brooks discussed the types of trees that were planted, the use of the parking lot in question and the need for lighting in that lot, and the voluntary decrease in lighting levels that has already occurred. He stated that he can find out when all four towers will be operational, they will replant the vines, and that the engineers completed the sound tests to the satisfaction of City staff. Acting Planning Director Campbell confirmed that staff makes sure that four towers are running during the sound test and that the acoustical engineer can address wind conditions during next year's test. Motion by Council Member Rosansky, seconded by Council Member Curry to a) find that Newport Harbor Lutheran Church has demonstrated good faith compliance with the terms of their development agreement; and b) receive and file the Annual Status Report of Development Agreement with Newport Harbor Lutheran; Church. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry, Council Member Daigle Regarding Hoag Hospital's Development Agreement, Council Member Rosansky stated that he was glad that progress has been made with some of the elements and that anything that can be done at the secondary loading dock would be appreciated. He requested that staff look into the light issue. Acting Planning Director Campbell added that the City can hire a third party review at Hoag's expense to evaluate the sound test and that the protocol will be reviewed in advance of the test. Motion by Council Member Rosansky, seconded by Council Member Carry to a) find that Hoag Memorial Hospital Presbyterian has demonstrated good faith compliance with the terms of their development agreement; and b) receive and file the Annual Status Report of Development Agreement with Hoag Memorial Hospital Presbyterian. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry, Council Member Daigle 14. T- MOBILE TELECOMMUNICATIONS PERMIT (PA2011 -021 AND Volume 60 - Page 124 City of Newport Beach City Council Minutes April 26, 2011 TELECOMMUNICATIONS PERMIT NO. TP2011 -005) - 20311 ACACIA STREET - FOR THE INSTALLATION OF NEW TELECOMMUNICATIONS ANTENNAS ON THE ROOF OF A TWO -STORY OFFICE BUILDING - THE ANTENNAS WILL EXCEED THE 37 -FOOT HEIGHT LIMIT FOR THE AREA BY 3 FEET 10 INCHES. [100 -2011] Council Member Daigle recused herself. Motion by Council Member Curry, seconded by Council Member Selich to continue the item to the May 24, 2011 City Council meeting. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry 15. MALARKY'S IRISH PUB APPEAL (PA2010 -172) - 3011 NEWPORT BOULEVARD - AN APPEAL OF THE PLANNING COMMISSION'S APPROVAL OF CONDITIONAL USE PERMIT NO. UP2010 -039 AND COMPREHENSIVE SIGN PROGRAM NO. CS2011 -002, AUTHORIZING THE EXPANSION AND REMODEL OF AN EXISTING EATING AND DRINKING ESTABLISHMENT WITH LATE HOURS AND ALLOWING THE USE OF OFF -SITE PARKING. [100 -2011] Council Member Hill believed that this item warranted additional discussion to further define the use of the operator license permit ordinance and whether it is an appropriate tool in this case. He indicated that he voted for the ordinance in order to give the Police Department authority to control some of the issues that occur after 11:00 p.m. Acting Planning Director Campbell provided a staff report. Associate Planner Murillo utilized a PowerPoint presentation to discuss the location as it relates to other bars in the area, the proposed plans, signage, the March 13 Planning Commission meeting, the appeal of Condition No. 10, operator licenses, and increased occupancy concerns. In response to Council questions, Associate Planner Murillo indicated that the establishment must maintain an operator license. Police Captain Fox indicated that the operator license will not account for the additional people that will be out in the streets during the late hours. He expressed support for the operator license permit because it allows the Police Chief the ability to alter the hours of operation and security operations, and anything related to the establishment and parking lot; however, it is difficult to tie any problems back to the operator. He indicated that late hour establishments are a drain on resources and a problem for the community. Captain Fox indicated that having staggered closing hours may assist with Police resources but the request still creates more patrons in the area. Acting Planning Director Campbell indicated that the establishment is a bar that serves food until 11:00 p.m. and indicated that staggering closing hours may create a competitive disadvantage. Captain Fox discussed Police staffing levels due to the 3:30 a.m. shift change. Council Member Daigle indicated that she opposed the operator license ordinance because of the appeal process and communication issues between the Police Chief and the City Manager. City Attorney Hunt agreed that the Police Chief is the Volume 60 - Page 125 City of Newport Beach City Council Minutes April 26, 2011 decision maker but there will be a process to provide notice and provide the public with the opportunity to be heard. The same is true for the City Manager's appeal process in order to protect the rights of all individuals involved. Mayor Henn opened the public hearing. Mario Marovic, applicant, provided letters of support and showed a video. He discussed his background and indicated that he wants to create a better facility to bring in better demographics. He indicated that the restriction to reduce the number of patrons at 11:00 p.m. is unfeasible and suggested requiring that he stop allowing any entries starting at 1:00 a.m. He highlighted the improvements he has done to date and the proposed improvements he would like to do, and noted that he is not requesting a full build -out. He reported on the increased security and other steps he will implement in order to better the establishment. He displayed a map of residents who support and oppose the project, questioned how he is supposed to ask 46 patrons to leave at 11:00 p.m., discussed issues with Police Reporting District 15, and indicated that Malarky's is a long term business for him. Regarding issues with Landmark in Corona del Mar, Mr. Marovic indicated that he corrected the problems as soon as the Police Department made him aware of them and discussed improvements he did to that establishment. Joe Reiss utilized a PowerPoint presentation and stated that he supports the expansion but believed that the patio should close at 10:00 p.m. He discussed his meeting with Mr. Marovic, the staff recommendation at the Planning Commission meeting, and Planning Commission's decision. He took issue with the 2:00 a.m. closing tame and the number of patrons in the area from all the bars. He believed that the .-,perator license is an effective tool for businesses and parking lots, but the Police D>partment cannot tie specific patrons or problems to its origin. He expressed concern about Condition 26 (televisions and amplified noise on the patio) and Condition 56 (security plan), adding that the area has enough bars. Drew Wetherholt stated that he supports the restaurant improvements but believed that the increase in the number of patrons is a public safety issue. He displayed and discussed photos and Daily Pilot articles. Craig Batley requested and received clarification from City Attorney Hunt relative to how the operator license works. Mr. Batley indicated that he could be persuaded to see how the establishment functions, as long as the Police Department can change hours, etc. if needed. He noted that the applicant wants to improve his establishment, but Council's decision may set a precedene for future operators. Bob Rush expressed concern that the applicant's Facebook page has a link to Council Member Hill's campaign webpage and provided a copy of the Facebook page. Council Member Hill stated that he met Mr. Marovic less than 30 days ago and that his campaign webpage has not been active for some time. Bruce Shomberger stated that he lives near many of the bars in the area and expressed his support for Mr. Marovic's plan. He noted that many of the photos displayed occurred prior to Mr. Marovic instituting his security plan. He believed the problem is when people drink on the beach and asked the City to find out what is happening instead of limiting someone who has already made a substantial investment in the area. Volume 60 - Page 126 City of Newport Beach . City Council Minutes April 26, 2011 Judith Deaton expressed support for the proposed plan and liked that there would be more sit down areas for dining. She agreed that people drink on the beach and that the problems do not necessarily come from the bars in the area. Margo Leonard believed that, when Mr. Marovic makes improvements to Malarky's, the clientele will be upgraded. Rick Lumas commended Mr. Marovic for all the improvements he has made to Malarky's, stated that he does not believe it is a bar, and noted that Mr. Marovic is only trying to improve the establishment. Logan Rogers expressed opposition to the Malarky's expansion plan, believing that the establishment already has enough patrons. Denys Oberman commended Mr. Marovic for what he is trying to do, but the City needs to consider public safety and look at over concentration. She suggested limiting the number of patrons to 120 and closing the patio at 10:00 p.m. or 11:00 p.m. George Schroeder expressed support for the improvements but concern for what will happen after 11:00 p.m. He referenced the DUI report and drunk in public arrests on page 87, and a newspaper article about one of Mr. Marovic's employees. He pointed out that the City is trying to improve the area and requested that the City not add more problems by allowing more drinking in the area. Robert flarpin took issue with the condition that requires a capacity decrease at 11:00 p.m. He suggested allowing full occupancy until 2:00 a.m., allowing Mr. Marovic to complete the improvements, and imposing the operator license if it does not work. Richard Glassman expressed support for the Planning Commission's recommendation and believed that Council should listen to the Police Department, Frank Bassell expressed support for the renovations but concern for how Mr. Marovic is supposed to ask 46 paying customers to leave. Meredith Fleener expressed appreciation for what Mr. Marovic is doing to improve Malarky's. Gordon Brock stated that he is in favor of all of Mr. Marovic's improvements. He also expressed concern for the establishment if it had to ask people to leave at 11:00 p.m. Doug Sienfracca stated that the City needs to support the businesses that are investing a lot of money into the Peninsula and expressed concern for asking people to leave before closing. Cindy Farney stated that three generations of her family meet at Malarky's regularly and that she patrons all of Mr. Marovic's establishments because of the quality of the establishments. Oliver Fleener noted that the City should support business owners who are willing to invest in the area, especially since vacancy rates are up and rental prices have been cut. He expressed concern for what will happen to the area when City Hall Volume 60 - Page 127 City of Newport Beach City Council Minutes April 26, 2011 moves. Huff Francosi thanked Mr. Marovic and Catellus for improving the parking lot and shopping center. He stated that the City needs to encourage people to spend their own money back into the City and believed that the development will bring a higher clientele. Tony Buchecco stated that he was an investigator for ABC for 17 years and indicated that the ABC would discourage any type of condition limiting patron capacity since it may open the business owner to discrimination issues. He believed that this condition would be a burden for Mr. Marovic and stated that any complaints that ABC receives regarding discrimination are investigated and could result in the deletion of any disciplinary action imposed by the City. Brenda Martin expressed support for Mr. Marovic's proposal, believing that the bad behavior is occurring between 2:00 a.m, and 4:00 a.m. Hugo Arbulles believed that the improvements in the area over the years is attracting responsible partiers and commended the Malarky's improvements. He believed that the City should let Mr, Marovic run his establishment as he proposes so he can demonstrate to the City that he is capable of honoring the community's requests. Brian Harrington noted that the City was built around tourism, he likes having a place he can go to when he gets off work at 9:00 p.m. or 10:00 p.m., expressed appreciation to Mr. Marovic for building the parking lot, and noted that Mr. Marovic is trying to make the establishment better. He believed that Mr. Marovic should get the chance to prove himself as a business owner and that there will be consequences if he cannot. Brett Rettig discussed his observations as a City lifeguard, stated that he also works at Malarky's, and reported that Mr. Marovic even made him attend LEAD classes. He expressed support for the project. Mario Marovic, applicant, stated that he only met Council Member Hill and Mayor Henn recently, pointed out that he would not invest in this establishment and increase security to encourage or allow bad behavior, took issue with some of Mr. Wetherholt's photos, explained the support /opposition map, and reiterated his concerns relative to asking 46 random people to leave the establishment. He again suggested amending the condition to require no further entry beginning at 1:00 a.m. He noted his desires to improve Malarky's, the community outreach he conducted, and the vocal majority. Hearing no further testimony, Mayor Henn closed the public hearing. Council Member Hill stated that he recognizes that the area has a problem, but believed that this project could be part of the solution. He discussed issues with underaged drinking and reported that Mr. Marovic delivered many illegal drivers licenses to the Police Department because he does not allow that. He stated that Mr. Marovic needs to be able to operate and get a return on his money, but the City needs to utilize the operator license if problems arise. He suggested moving forward and take appropriate action immediate if things in the area get worse. Volume 60 - Page 128 City of Newport Beach City Council Minutes April 26, 2011 N. �u..�.. ....n...unr nisi, seconaea ny l;ouncll iylember C:urry to adopt Resolution No. 2011 -39 approving Conditional Use Permit UP2010 -0369 and Comprehensive Sign Program No. CS2011 -003, subject to findings and conditions included within the Resolution, but allowing full occupancy of 166 until 2:00 a.m., and stop allowing entrance into the establishment starting at 1:00 a.m. Council Member Curry agreed that asking 46 people to leave is not a practical way to run a business. He commended Mr. Marovic for implementing additional security and offering the suggestion to stop entry into the establishment at 1:00 a.m. He believed that Mr. Marovic is making a major investment into a place that needs it. He asked that the City find a way to make high -end establishments work economically. Mayor Pro Tom Gardner questioned how the reduction of patrons by 46 people would work and the need for the televisions on the patio when no other establishment can have them. She believed that Malarky's should serve food until it closes. Council Member Selich believed that the operator license ordinance will allow good businesses a chance to operate and prove themselves, and expressed support for the motion. Council Member Daigle stated that she supports the 120 person limit, but expressed concern about the Police Department's shift change during the crucial after closing hours. Police Captain Fox clarified that the Police Department's concern is with the total number of people. Mayor I -Tenn stated that the area has too many bars. He indicated that the operator license iF a good idea, but does not address the increase in the number of intoxicated people going into the streets late at night and causing trouble. He believed that, if the City allows more bar capacity, it will never make the Peninsula situation better. He discussed the full capacity numbers and questioned how doubling the capacity until 11:00 p.m. could be uneconomical for Mr, Marovic. He noted that this has nothing to do with Mr. Marovic who is a good operator, but the bigger policy issue of the long term fix for the Peninsula. Substitute motion by Mayor Henn seconded by Mayor Pro Tem Gardner to adopt Resolution No. 2011 -39 approving Conditional Use Permit UP2010 -0369 and Comprehensive Sign Program No. CS2011 -003, subject to findings and conditions included within the Resolution, with the amendment that allows the full occupancy of 166 people until 2:00 a.m., stops allowing entrance into the establishment starting at midnight, requires full food service until midnight, stops alcohol sales on the patio at 10:00 p.m., and allows the patio to remain open until 11:00 p.m. Mario Marovic believed that stopping entrance at midnight will only make those people go to another location. Council Member Hill emphasized that the operator license can be implemented immediately if the establishment is acting inappropriately. He believed this is worth the risk, especially considering how much money Mr. Marovic will be investing. Council Member Rosansky indicated that he can support the motion if alcohol is allowed to be served on the patio until 11:00 p.m. Volume 60 - Page 129 City of Newport Beach City Council Minutes April 26, 2011 Amended substitute motion by Mayor Henn seconded by Council Member Curry to adopt Resolution No. 2011 -39 approving Conditional Use Permit UP2010- 0369 and Comprehensive Sign Program No. CS2011 -003, subject to findings and conditions included within the Resolution, with the amendment that allows the full occupancy of 166 people until 2:00 a.m., stops allowing entrance into the establishment starting at midnight, requires full food service until midnight, and allows the patio to remain open and sell alcohol until 11:00 p.m. Mr. Marovic expressed concern that midnight is too early to stop allowing entry into Malarky's and noted that he spoke with the Police Chief about stopping entry at 1:00 a.m. and he liked the idea. Mayor Henn indicated that the item can be continued in order for Mr. Marovic to determine the economic feasibility associated with the motion. Substitute to the substitute motion by Council Member Rosanskv, seconded by Council Member Selich to continue the item to the May 10, 2011 City Council meeting. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tem Gardner, Council Member Selich, Council Member Curry, Council Member Daigle Discussion ensued relative to Council Policy A -10 relative to agenda items being discussed after 11:00 p.m. It was the consensus of Council to continue, with the remainder of the agenda items since there were many members of the audience who waited to discuss their items. XVII. CURRENT BUSINESS 16. APPOINTMENT BY MAYOR OF AD HOC APPOINTMENTS COMMITTEE TO REVIEW APPLICATIONS AND MAKE RECOMMENDATIONS TO THE FULL COUNCIL FOR THE BOARD AND COMMISSION VACANCIES SCHEDULED TO OCCUR ON JUNE 30, 2011. [100 -20111 Mayor Henn announced that, with Council confirmation, he will be appointing himself, Mayor Pro Tern Gardner, and Council Member Selich to the Ad Hoc Appointments Committee. City Attorney Hunt recommended adding the Building and Fire Board of Appeals to this year's list of Board and Commission vacancies. He suggested that there be no more than three vacancies at this time and noted that this begins the process of having the Board of Appeals consistent with the City Charter. Motion by Council Member Rosanskv seconded by Council Member Curry to a) include the Building and Fire Board of Appeals to the list of Board and Commission vacancies; and b) confirm the Mayor's appointment of Mayor Henn, Mayor Pro Tern Gardner, and Council Member Selich to serve on the Ad Hoc Appointments Committee to review applications and make recommendations to the full Council for the Board and Commission vacancies scheduled to occur on June 30, 2011. Volume 60 - Page 130 City of Newport Beach City Council Minutes April 26, 2011 Jim Mosher referenced Charter Section 702 and questioned why there would only be up to three openings. City Attorney Hunt highlighted the provisions of Charter Section 700 et seq and Council Policy A -2, and indicated that staff needs to work out an appropriate staggering of terms and other details. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Henn, Mayor Pro Tom Gardner, Council Member Selich, Council Member Curry, Council Member Daigle 17. ORDINANCE NO. 2011 -12 AMENDING NEWPORT BEACH MUNICIPAL CODE TITLE 6 PERTAINING TO GAS - POWERED LEAF BLOWERS IN RESIDENTIAL DISTRICTS. [100 -20111 City Manager Kiff provided a staff report. Motion by Mayor Pro Tem Gardner, seconded by Council Member Curry to introduce Ordinance No. 2011 -12 amending Newport Beach Municipal Code Title 6, Chapter 6.04 (Garbage, Refuse and Cuttings) by revising Section 6.04.055, and pass to second reading on May 10, 2011. Bill Martin expressed support for still allowing the use of electric leaf blowers. Ken Rawson expressed support for the ordinance in concept, but recommended banning the use of all leaf blowers. Council ,Member Rosansky indicated that he will not be supporting the motion because the ordinance does not solve the problem and does not address other noise nuisances like gas - powered mowers or edgers, or the generators that electric leaf blowers will be using. Council Member Selich expressed opposition to the ordinance, believed that electric leaf blowers are louder than new generation gas - powered leaf blowers, and that the ordinance will be unenforceable. Mayor Pro Tem Gardner noted that excluding electric leaf blowers was the compromise and stated that she will be supporting the motion. Mayor Henn stated that he will support the motion but would prefer a ban on all types of leaf blowers. Council Member Daigle expressed concerns about enforceability, especially when code enforcement is understaffed. She also expressed concern about requiring homeowner associations to opt out of the program. The motion carried by the following roll call vote: Ayes: Council Member Hill, Mayor Henn, Mayor Pro Tem Gardner, Council Member Curry Noes: Council Member Rosansky, Council Member Selich, Council Member Daigle 18. LOUD AND UNRULY GATHERING ORDINANCE. [100 -20111 Council Member Curry believed that this item should be continued, noting that he Volume 60 - Page 131 City of Newport Beach City Council Minutes April 26, 2011 supports the fines but is concerned with the process. He also believed that the issue is that the unruly parties have not been shut down. He suggested that the Office of the City Attorney and the Police Department meet with property owners to discuss the fines and how the ordinance would be implemented. Motion by Council Member Curry, seconded by Council Member Daiale to continue the item to the May 10, 2011 City Council meeting. Police Lieutenant Hartford assured everyone that it is the Police Department's intent to gain compliance. He believed that the ordinance would be an effective tool in addressing loud and unruly gatherings, and to address individuals or responsible parties that are causing the problems. He stated that staff met with Craig Batley, West Newport Beach Association (WNBA) and Burr White, and came to a common agreement. Craig Batley expressed concern that the Police Department could overstep their authority, but noted that he supports the concept and is in favor of the revisions that were provided this evening. He questioned the need for four fines, encouraged the Police to shut down the parties, and reiterated the need for the landlord /property owner to make tenants aware of the ordinance. George Schroeder expressed concern that, if the item is continued, they would be heard after the Malarky's issue again. He noted that he initially had concerns but will give the Police Department the benefit that the ordinance will not be abused. He believed that the ordinance needs to be implemented by July 4 so that people's mindset will begin to change about the area. He suggested moving forward, but adjust the fines if needed. Amo Mu -•dy requested a continuance and a chance to discuss this with the Police Department. He believed that the ordinance is flawed. Jo King expressed concern that, even if the lease has provisions, tenants will disregard them. She stated that something needs to be figured out that is fair, there needs to be more discussion, and requested to meet with the Police Department about the fines and how they can be adjusted. Carmen Rosa noted that she tries to fix any problem with her properties, but the tenants may not be responsive. She asked if there is a payment plan if the tenant is unable to pay the fine. She believed that the ordinance can be improved. Ken Rawson believed that there are many steps that are needed to improve the Peninsula and turn it into a better family environment. He indicated that he supports the idea but believed that the problems during July 4th are a bigger problem than imposing fines could fix. Mayor Henn indicated that the ordinance is part of the solution and that the July 4 Committee will be meeting on May 4 to discuss the plan. Jim Mosher believed that Title 10 needs to be redone, the ordinance is not an urgent item, and suggested referring it to a committee. Council Member Curry noted that the City received comments regarding the terms of the process from an apartment association, believed that property owners need to meet with the Police Department and that the Police Department needs to rethink the fine process. Volume 60 - Page 132 City of Newport Beach City Council Minutes April 26, 2011 Council Member Rosansky suggested discussing this item on May 10 before the Malarky's deliberations. Mayor Henn pointed out that there are substantial protections for property owners in the ordinance and believed that the ordinance is needed for the July 4th holiday. In response to Council questions, Police Lieutenant Hartford believed that the ordinance is needed for the July 4th holiday. He confirmed that the ordinance provides relief to property owners and has been reviewed extensively by the Office of the City Attorney. He noted that there are other area of the City that could benefit from the ordinance applying Citywide. Mayor Henn indicated that he could agree to the removal of the fines in Section 5.95.060.13 in order to move this forward for the holiday. City Attorney Hunt confirmed that, if the ordinance is approved for first reading and the fine amounts are amended, that would be considered a substantive change and would require another first reading. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Council Member Selich, Council Member Curry, Council Member Daigle Noes: Mayor Henn, Mayor Pro Tem Gardner XVIII. MOTION FOR RECONSIDERATION - None XLY. ADJOURNMENT -Adjourned at 12:18 a.xn. on Wednesday, April 27, 2011 The agenda for the Regular Meeting was posted on April 14, 2011, at 1:40 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. s4kmi .Q. � City Clerk Mayor Volume 60 - Page 133 ;,,r, Aa t( Volume 60 - Page 133