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HomeMy WebLinkAbout06/25/2020 - Special MeetingCITY OF NEWPORT BEACH City Council Minutes Special Meeting June 25, 2020 I. CALL MEETING TO ORDER - 3:00 p.m. II. ROLL CALL Present: Mayor Will O'Neill, Mayor Pro Tem Brad Avery, Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Jeff Herdman Absent: Council Member Kevin Muldoon (excused) III. INVOCATION — Mayor O'Neill IV. PLEDGE OF ALLEGIANCE — Mayor Pro Tem Avery V. PUBLIC COMMENTS ON NON AGENDA ITEMS — None VI. PUBLIC HEARING 1. Review of Cliff Drive Encroachment Permit No. N2020-0366 at Ensign Intermediate School [381100-20191 Deputy Public Works Director Houlihan utilized a presentation to display the project, discussed City authority for school projects and the City's jurisdiction, detailed interactions between the City and Newport -Mesa Unified School District (School District), displayed the City's alternative plan, discussed the timeline for the encroachment permit approval, and highlighted the improvements listed in the permit. In response to Mayor O'Neill's questions, City Attorney Harp explained that Council needs to look for evidence that supports each of the three findings and determine if there is significant interference with vehicular or pedestrian traffic of parking spaces. Deputy Public Works Director Houlihan continued the presentation with a map of the School District's proposed right-of-way improvements. In response to Council Member Dixon's and Mayor O'Neill's questions, City Attorney Harp indicated federal laws limit when tree removal can occur, and there are also environmental concerns, noted some enforcement mechanisms are within the purview of City enforcement officers and they did not see any violations, advised that there is no City permit to be obtained for this project, advised that laws, rather than permitting requirements, regulate when construction can occur and when trees with bird nests can be disturbed, and concluded that from his discussions with the Police Department, there were no violations of any laws associated with the tree removal. Mayor O'Neill noted permitting and enforcement are separate issues, and the hearing pertains to permitting. City Attorney Harp stated enforcement and violation of laws pertaining to the removal of trees is not before Council today and if this were a private project, the City could place conditions on it, noted that the City did not issue a permit for the work done on school property, clarified that the trees and birds are not part of the matter before the Council today, and added that only the encroachment into the public right-of-way and the issuance of permits for the driveway approaches are before the Council. In response to Council Member Brenner's question, City Attorney Harp explained that the City has no regulatory control over zoning or building permits for State properties as those are examined by the State architect, noted that the City does not issue a permit for any work on school property and would not be involved in this project but for the proposed changes to the City's street, and added Volume 64 - Page 456 City of Newport Beach Special Meeting June 25, 2020 that what the School District does on its property or if it violated any laws is not before Council today. Council Member Brenner suggested a future discussion of the process and how this could have been prevented. In response to Council Member Dixon's question, City Attorney Harp advised that the applicability of zoning laws and building permits depends on the type of entity, as all entities are obligated to comply with State and local laws. Mayor Pro Tem Avery believed school districts are separate entities, and the City's only real interest is fire protection, requested this special meeting because residents have expressed their concerns but have not felt they were being heard, felt having a forum for people to express their views on how this process rolled out is important, and stated he did not take issue with the permit but with the community feeling their concerns have been disregarded and hoped there will be more ways for the community to be involved in these types of neighborhood projects. Spencer Covert, School District General Counsel, indicated project plans and specifications are approved by the State of California Division of State Architect, displayed the project, cited the three conditions of replacing trees, described working with the City arborist, reported the School District agreed to and complied with the City's conditions, and noted appreciation for Council quickly bringing this matter for hearing because the project needs to be completed before staff returns to school on August 19. Mr. Covert discussed his letter to the City Attorney indicating the contractor will commence work on School District property, the Board of Education's authority to make decisions regarding projects, the safety plan, the City permit, and a letter from the School Site Council, which are attached to his report. Mr. Covert further provided a detailed chronology that shows a face-to-face meeting on March 11 between City and School District staff, which is contrary to the statement in the staff report that the City has not received any feedback regarding its alternative design, topics covered in the March 11 meeting, and various communications and meetings that began in October 2018, including five public Board of Education meetings. Martha Fluor, School District Board Member, noted the District's relationship with the City, the Police Department, and the school resource officer program, the design of Ensign Intermediate School for student safety, other schools included in the School District's safety and security program, and a letter from the president of the Ensign School Site Council. She read excerpts from the president's letter, an email regarding the project, and stated that the Board of Education urges Council to uphold the Public Works Director's decision. Ex parte communications: Mayor O'Neill disclosed a meeting with Board Members Fluor and Yelsey and Superintendent Navarro and communications with Board Members Yelsey, Ms. Barfield, and Mr. Greer. Council Member Herdman disclosed no communications. Council Member Duffield disclosed no communications. Council Member Dixon disclosed communications with Ms. Barfield. Council Member Brenner disclosed communications with Board Members Fluor, Yelsey, Black, Anderson, Snell, and Metoyer, Mr. Greer, Ms. Barfield, Ms. Scarbrough, Mr. Klobe and some others. Mayor Pro Tem Avery disclosed meetings with Dr. Navarro and Board Members Fluor, Yelsey and Black. Mayor O'Neill opened the public hearing. Carol Anne Dru noted the absence of trees and birds and the increase of air pollution, believed students and teachers in classrooms will breathe air pollution from traffic using the drop-off, and requested the City rescind the curb ingress and egress until the community better understands all the information. Volume 64 - Page 457 City of Newport Beach Special Meeting June 25, 2020 Dennis Baker indicated the overall process was bad, SPON is concerned about the whole process, and hoped Council would discuss the project beyond the City permit. Kristen Petros advised that she witnessed the removal of the trees and was aghast that the School District acted before discussing it with the City and neighbors, stated that the trees screened the school buildings and provided habitat for birds and shade for children and teachers, believed the School District ignored alternatives that did not remove trees, and suggested Council rescind the permit until the School District implements a list of conditions she previously provided in writing. Nancy Barfield utilized a presentation and two videos to discuss the project timeline, the description of the project, a petition to save the trees, the safety of the proposed drop-off, the City's plan providing greater student safety and not creating circulation issues, the School District blindsiding the City with the project, the lack of an environmental report on the soil, tree destruction on Monday, comments made from the construction crew, the Board of Education's need for a better relationship with the community, and believed Council should not grant the encroachment permit. Nancy Scarbrough shared a video of trees being removed, thanked Police Chief Lewis and Sergeant Oberon for their professional and calm management, noted protesters were not out of control, just emotional, discussed behavior of the District and felt they did not conduct extensive outreach to the community, believed the alternate plan deserves additional consideration, and stated that the community is pleading for time to discuss revising the project. An unidentified speaker stated one design does not include the banana parking lot, believed tax dollars are funding the project, and felt the cutting down of the trees was underhanded. She asked Council to look at alternative plans and stop the destruction. The McKenny family indicated they picked the community to live in because of the trees and believed in children's safety, but felt the trees are a big part of the community. Mary Didomenico expressed astonishment about the School District's actions and history of not listening to the community, related that the community learned about this plan via the January 28, 2020 Council meeting and attended the February 11 Board of Education meeting, stated that the principal of Ensign did not reach out to the PTA or parent groups, and noted that she is working with an arborist to determine the monetary loss of removing the trees. Bill Dunlap expressed concern about the breakdown of communication between the School District and the Council, stated that the School District seemed to disregard the Council's authority, believed the Board of Education needs term limits for members, and questioned whether this is the beginning of the School District doing what it wants to do. Charles Klobe related that the Board of Education made a finding that the project was exempt from the California Environmental Quality Act (CEQA) because there was no environmental damage. He hoped Council would stop or slow this project so that a respectful discussion could occur. Nancy Skinner questioned the Board's message to school children and suggested Council pause the encroachment permit so that the community can heal and discuss solutions. Phil Greer stated SPON could do nothing about the tree removal because the required 24-hour notice was provided on Monday at 9 a.m., noted that the School District had not communicated to the community but misrepresented its actions and bulldozed the process, suggested that Government Code Section 53067 protects trees, also suggested that Civil Code Section 3346 imposes treble damages on anyone who intentionally destroys a tree, believed the School District maliciously and willfully damaged the trees, stated that SPON will seek treble damages from the School District and the two contractors, and discussed a June 3, 2020 email from Deputy Public Works Director Houlihan to Ms. Barfield. Mr. Greer, on behalf of SPON and the community, asked Council to deny the permit and challenge the CEQA application. Volume 64 - Page 458 City of Newport Beach Special Meeting June 25, 2020 Mr. Covert suggested everyone think about the safety and security of the children, noted that the Government Code section about trees does not apply to School District property and the School Site Council supports the project, noted that City staff found that the project is safe and the State of California approved the project through a rigorous permit process, and stated that Council should not delay the project so that the permit can proceed and the project can be completed before the start of school. Hearing no further testimony, Mayor O'Neill closed the public hearing. In response to Mayor O'Neill's questions, City Attorney Harp advised that the City has not been served with a copy of the complaint against the School District and the City. Mr. Greer clarified that the City is not named in the lawsuit and that a hearing on the temporary restraining order is scheduled for Monday. At the Mayor's request, City Attorney Harp read the court's order. Mayor O'Neill noted no trees can be removed between now and Monday. In response to Council Member Herdman's questions regarding the four required findings, staff indicated the curb -cut driveways do not exceed 10% slope and they comply with City standards. With respect to the demand for parking, staff looked at the existing condition for traffic during peak periods and found that double parking and congestion is present and the biggest change from a traffic perspective is the proposed single point of entry on Cliff Drive, which will cause more traffic. Staff further noted that parking is tied to the project in that off-street parking will take some load off Cliff Drive. Council Member Herdman assumed the welfare of children includes safety, believed the School District will have to stop the project, noted that the public has not heard any plans concerning the start of school and felt urgency to complete the project prior to then is not yet a concern, stated that Council Policy L-2 is being followed, advised that the project could alleviate some parking problems and provide improvement to vehicular and pedestrian traffic, and stated that while he is sympathetic to all the concerns of the public, Council has to base its decision on those four findings. In response to Council Member Brenner's questions, Mr. Covert reported the project contractor, TELACU, is a listed contractor and currently working for the City of Newport Beach. Tim Holcomb, Assistant Superintendent, indicated the State standard for parking does not deal with student parking at high schools but with teachers and staff and the standard is 2.25 spaces per teaching station. Council Member Brenner disagreed with Mr. Covert's statement that the school board owns the trees on school property because taxpayers fund the School District, and the school board represents citizens. She related that her grandchild attends Ensign and the City is very concerned about student safety and worried about the single entry and traffic conditions at Irvine Avenue and Cliff Drive, noted the partnership between the City and the School District and did not understand why the alternate proposal was not discussed, and was disappointed on Monday by the brutality of the contractors destroying the trees. Council Member Brenner further noted that eleven hundred kids signed the petition and wanted a dialogue with the school board, stated that Council sat through hours of testimony about removing diseased trees from Marine Avenue, and the removal was thoughtfully done, and hoped the City and School District could be partners and do what is best for the parents and kids. In response to Mayor Pro Tem Avery's questions, Mr. Holcomb indicated two trees near the school's entry are designated for demolition. Board Member Fluor noted two trees are protected and will remain. Mr. Holcomb reported the project includes extensive landscape improvements along Cliff and Irvine, and the school board has requested 1:1 replacement of trees and offered to complete the parkway planting along Cliff drive. Mayor Pro Tem Avery believed a project could have been crafted that did not remove the trees and provided for the safety of children, while communicating effectively with the community taking into Volume 64 - Page 459 City of Newport Beach Special Meeting June 25, 2020 consideration residents' emotions and viewpoints, thought Monday's actions were surprising because he felt the school board would have saved the trees or devised a replacement plan, and applauded the community that attends meetings of bodies and hoped there is a robust plan to plant more trees on all the campuses. In response to Council Member Dixon's questions, Traffic Engineer Brine did not have the number of accidents in the area but knew it was not a significant number. Mr. Greer indicated there have been no accidents on Cliff Drive from 2017 to the present. Superintendent Navarro advised that the Ensign principal reported nine students were struck by vehicles on Irvine between Cliff and Coral in the 2018-2019 school year with five more students being struck through March of the 2019-2020 school year, advised that the design redirects traffic from Irvine to Cliff, noted that the School District retains accident reports for the incidents, detailed that the learning areas for physical education would have been compromised by locating the parking elsewhere, and Ensign staff was not in favor of that. Mr. Holcomb stated initially there were no indications that there were any environmental impacts. Superintendent Navarro reported school in some format will begin on August 24th, and plans will be based on State guidelines. Council Member Dixon noted that residents care about changes to the community and Council takes their concerns very seriously, noted that safety is the number one issue, and expressed that the community should know that Council called a special meeting on a matter over which it has a very small jurisdiction. She wanted the community to know she is very disappointed with the outcome today and suggested the Council's decision indicate its displeasure with prejudice with the process disregarding the voices of the community. Council Member Duffield related that he attended Ensign 52 years ago and questioned why the school is more dangerous now than then. Council Member Herdman shared that following his retirement in 2005, he filled in for five months as assistant principal at Ensign and believed many public relation mistakes have been made during this entire process, and they could have been avoided, advised that the section of the Ensign campus affected by this plan is a significant gathering spot for kids before and after school, and teachers use the area as an extension of the classroom, and stated that the issues are the affects on the instructional program, staff, students, campus life, school spirit, and most importantly on the community surrounding the school. In response to Mayor O'Neill's question, Deputy Public Works Director Houlihan reported the initial meeting between City and School District staff was a regular quarterly meeting, where Board Member Fluor brought up the alternative; the next day, staff from both bodies met, and Mr. Holcomb reviewed the analysis, parking, and the desire to get kids closer to the front door. In response to Council Member Brenner's question, Deputy Public Works Director Houlihan did not recall if that meeting focused on City Council approval of this plan. Mayor O'Neill believed there was a breakdown in communication on many levels and he will redouble his efforts at the City level to ensure the City has a good relationship with the School District and ensure the City works on improving its communication. He stated that although he liked the alternative better, he never heard a discussion of why the alternative would not work as well as the original project. Mayor O'Neill announced he would not include the phrase "with prejudice" in the motion to approve staffs recommendation with the understanding that all comments made today will be incorporated. Council Member Dixon requested the motion reflect with reluctant approval. In response to Mayor O'Neill's question, City Attorney Harp advised that the language is fine Volume 64 - Page 460 City of Newport Beach Special Meeting June 25, 2020 With reluctance, motion by Mayor O'Neill, seconded by Council Member Dixon, to a) determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) uphold the Public Works Director's decision to issue Encroachment Permit No. N2020-0366. Council Member Brenner stated Council approval does not mean the School District Board cannot review it and noted that Council does not know how the single entry will impact traffic. Mayor O'Neill clarified the item as Mayor Pro Tem Avery's appeal of the approval of an encroachment permit. The appeal is a de novo hearing regarding the findings found in Newport Beach Municipal Code Section 13.06.05 based on the evidence before the Council. The motion is to uphold the findings of the Public Works Director's decision to issue Encroachment Permit No. N2020-0366, but reluctantly. The Council's decision is whether the encroachment permit is exempt from CEQA. With Council Member Muldoon absent, the motion carried 6-0. ADJOURNMENT - 5:26 p.m. The special meeting agenda was posted on the City's website and on the City Hall electronic bulletin board located in the entrance of the City Council Chambers at 100 Civic Center Drive on June 24, 2020, at 11:00 a.m. Leilani I. Brown City Clerk L'9C1 FOR - " 4�� � �zl Will O Neill Mayor Volume 64 - Page 461