HomeMy WebLinkAbout01 - Minutes - AmendedAgenda Item No. 1
October 22, 2013
City Council Minutes
Study Session
October 8, 2013 — 5:00 p.m.
I. ROLL CALL - 5:00 p.m.
Present: Nancy Gardner, Tony Petros, Rush Hill, Keith Curry, Ed Selich,
II. CURRENT BUSINESS
1. CLARIFICATION OF ITEMS ON THE CONSENT
2. UPDATES TO THE MASTER FEE SCHEDULE
Deputy Finance Director Montano utilized a P w
proposed changes and consideration by Council of
Council meeting. He noted that non- fire.:fees will
(CPI) and that most fees will take effect 0,
- None
Daigle
FEES. [100 -20131
tiob ?to discuss the goals of the
ial at the October 22, 2013 City
?d on the Consumer Price Index
Planning and Development Fees
which become effective 60 days after adopAa i. He' Ir'ig 1 gH}ed the summary of the proposed fee
schedule, alignment of revenues With. direct `'land indirect costs for providing services to more
accurately reflect the cost of sev&e.;91e addreseed..fee categories along with the proposed changes
and reported that there are .no 6100 ges to emergency medical services due to pending regulatory
changes at the State and Fedgtal lev€4a He indicated that this will be reviewed by Council when the
regulatory changes take effect. Vdputy%nance;kirector Montano discussed the fire fees' background,
methodology for establishing the'== fees.cal`iv"i[1Wbri examples, and proposed changes per fee category.
He noted that some fees= =$ia,.�e increase&<�o e have decreased, some have no changes, and some have
been eliminated- Discussion 'enatd regarding a tiered fee schedule for Safety, Planning and
Development. Deeity..Finan .Direc`tor Montano reported on the categories and related fee changes.
He indicated that es i+Y W eliminated because of redundancy and combination with other fees. He
provided examples 'for eah'cte cry, the methodology used for calculations, and the resulting fee
change. Discussion d regarding the removal of expedite requests as an additional fee and
avoiding redundancy'nd duplicity related to personnel time for specific activities.
Deputy Finance Director Montano reported that the Finance Committee reviewed the proposed fee
schedule and that the proposed changes are inclusive of their recommendations.
In response to Council Member Petros' questions, Deputy Finance Director Montano reported that the
budget is reflective of the revenues obtained through fees for service and noted that the total budget
for the Fire Department is $37 million for 2013/2014. Revenue from fees for service for the fiscal year
ending in June 2013, was $1.3 million, equaling 3.7% of operating costs. He noted that all other Fire
Department operations are tax - supported.
Mayor Pro Tern Hill requested that the October 22 2013 staff report include detailed line items with
corresponding amounts.
Jim Mosher discussed the difference between services paid through taxes and those paid through fees
for special services requested by residents. He referenced Exhibit A of the staff report and
commented on fees charged for fire services and /or ambulance services. He requested clarification of
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City Council Study Session
October S, 2013
III.
IV
basic services that are provided out of tax levies.
Victor Cao, representing the Building Industry Association (BIA), thanked Assistant Fire Chief Kitch
and staff. He expressed concerns regarding comparisons used in the analysis with the Orange County
Fire Authority (OCFA) and suggested using municipal fire departments instead. He indicated that
the BIA wants to ensure that the public is ([not]) receiving redundancy in the bureaucracy and O
receiving] adequate services. Further, the BIA wants to focus on the customer service experience and
that their overarching message is they want to support more opportunity for economic freedom in
order to create jobs and housing. City Manager Kiff reported that Mr. Cao's presentation will be
made available to the public.
Jim Mosher noted that Council is about to enter into labor negotiatio.
He noted that the same matter was on several previous meeting ag
to the public to provide a clear explanation about the issues. A , il
job performance review and believed that City Attorney Harp has
hear rather than what it should hear. He referenced an art ..
to the City Clerk questioning the propriety of two Cc ffc T
publishing a comment regarding the financial advages of trs,
Attorney took it upon himself not to respond to ht leL as it v
meeting. He added that the Brown Act does not allow . in _ ity to
at a noticed public meeting.
City Attorney Harp reported that
listed under Closed Session in the
ADJOURNMENT - Adjourned
The agenda for the Stuc
website, on the City Hall
Chambers at 100 Civ'c CE
of the City Council Chit%
City Clerk
P.m.
40 differei# bargaining groups.
.n� eUeve +that Council owes it
he did d the Ci ty Attorney's
y to to ntil what it wants to
y Pilo egarding a letter he sent
th inane Committee jointly
'cing, believing that the City
ave required a notice of public
s their committee's issues except
Closed Session to discuss the items
i. —9d on October 3, 2013, at 4:00 p.m. on the City's
ion Board located in the entrance of the City Council
in the Meeting Agenda Binder located in the entrance
Center Drive.
Recording Secretary
Mayor
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October 8, 2013
confirming that the business can operate until 2:00 a.m. and reiterated that the application is not a
change to how the business is to be operated. He discussed the noise studies conducted by the
applicant and the City which resulted in the conclusion that Woody's Wharf is not the source of the
noise complaints. However, the applicant has voluntarily offered to cover the patio to ensure that
noise is not coming from Woody's Wharf. He believed that the Planning Commission made the
correct decision with one exception related to an additional night of operating until 2:00 a.m. during
the week and on holidays.
In response to Mr. Diamond's questions, City Attorney Harp reported that today is a de novo
hearing and the applicant would have the burden of proof. Further, the impact of tie votes will be
considered if one occurs.
Council Member Daigle wondered if the Planning Commission );eisio' ould stand unless a
majority of Council decided to the contrary. k
In response to Council Member Gardner's question, Mr. iJiamond ,.eported that the handout
provided was designed to illustrate the number of enterta' a perms hat iLave been issued by
the City and they want it to be part of the record. r g
In response to Council Member Henn's questn -Depay �omm� ty Development Director
Wisneski confirmed that the entertainment perma�is not an issue i_qy} stion.
Mr. Diamond addressed the hours of operation;iot' that hi client was always led to believe that
they could stay open until 2:00 a.m. and the Plang mm sion confirmed that they had a right
to do this. He reiterated that upholding lanniitg mroission's decision will not result in a
change in use and noted that the entertain 4yk pe linked to the dance issue. He stated that
there is no Code section that pro dancinn but it was included in the entertainment permit to
specify that entertainers could qt nce, and diot mention that the patrons could not dance.
In response to Council Me m G er's qu ion regarding an email from the Newport Beach
Police Department, Mr. Diam „�o ed at the correct email was provided which references
the outdoor patio be' en un '1 ,00 aFm. and distinguished the difference between the outdoor
deck and outdoor patio. _1
Council Member Hf:n"iPpq tedtut that there is no reference to dancing in the email.
Council Member Pekroconfii&ed with City Manager Kiff that the Police Department is not the
primary authority on ,se permits, but the Community Development Department is.
City Attorney Harp stafed that he reviewed the NBMC and confirmed this is a de novo hearing so it
is at Council's discretion to make a determination and, if there is a tie vote, the decision of the
Planning Commission will stand.
Council Member Petros briefly spoke on the standards used for the noise studies, noting it was done
at a threshold of 60 dB and pointed out that the threshold was not "no noise at all ".
Mark Serventi, one of the cc- owners of Woody's Wharf, noted the attendance of his partners,
thanked staff for their efforts and presented background on the matter He indicated that, when
they took over, the operation did not change. He stated that they are currently meeting City Codes
and commented on costs related to this matter. He requested that Council make its decision based
on the law and City Codes. He reported that they currently have the right to operate and entertain
until 2:00 a.m., and reiterated that Woody's Wharf has been operating for decades. He also reported
that, although the noise studies indicated no noise, they are offering to invest in a patio cover to
mitigate any possible noise issues. He requested approval to operate the patio from 11:00 p.m. until
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An owner of 28th Street Marina refuted Mr. Diamond's contention that there are only a few people in
the marina that object to Woody's Wharf and challenged Council to take a poll of the residents.. He
stated that he moved into the City knowing he was moving into a mixed -used area, but had
confidence that the City would enforce its ordinances. He urged Council to reverse the Planning
Commission's decision and deny the application.
Greg Pappas, co -owner of Woody's Wharf, stated that they operate Woody's Wharf the way they do
because they feel they have the legal right to do so. He reported doing their due diligence prior to
buying Woody's Wharf and addressed efforts to cooperate with neighbors, including paying for a
security guard. He reported that there was never an outdoor dining permit filed by Woody's Wharf,
but the Police and Planning Departments agreed to have the patio remain open until 2:00 a.m.
Drew Wetherholt spoke in opposition to Woody's WharFs applica ari � stated that one of the
biggest problems is that they cannot control their patrons once the leave thhacility. He indicated
that the area does not need intensification of problematic bars aiul, believedVlhat Woody's Wharf
continues to be in violation of ordinances and a drain on Poliye resour`'' s and t t it is incompatible
with the General Plan. He added that Woody's WharlLda -n to increase `rofits by increasing
alcohol sales and allowing' dancing, but they do this on`fbacks of resi s. He encouraged its
operators to make a better restaurant, not a bar and nitcluh and used t b Cannery Restaurant as
an example of what it can be. 1
Brian Park spoke in opposition to Woody'so�h ,fs applic lion Ynd believed that they are not
moving in a positive direction. He, out oken oholic bottles near his residence and,
property destruction, and urged Council,,�o reverse�he g Commission's decision.
Mr. Diamond believed that many of the 6ftTlaint94e##e do not apply directly to Woody's Wharf,
but are general complaints abo���_�b�ars. He re_erenced the results of the noise studies and stated
that it is not coming from his6�
Mark Serventi stated that the ad � for i At related to Woody's Wharf. He reiterated that they
are offering to pay f,r a sec ret guar dt the homeowners association did not think it was
necessary. He stated t they re as�mUr less than others have been granted and that they have
never been fined for occ p �or.daacing. Additionally, he reported that they do not distribute
flyers nor do the' ve pa v b's bringing people into the City. He stated that a permit is not
required for danco °er charged.
a.:
Hearing no furthefg estimony, Mayor Curry closed the public hearing.
In response to Counil Member Henn's questions, Deputy Community Development Director
Wisneski reported that cafe dance permits have an exception for dance halls which are facilities that
charge a cover and are not required to have a dance permit. She clarified that Woody's Wharf is
required to have a dance permit because they are seeking a modification to their floor plan. A use
permit amendment would be required and staff recommends including a requirement for a caf6
dance permit.
Council Member Henn indicated he generally respects the opinion of the Planning Commission, but
believed that they got it wrong in this case. He acknowledged comments from the public and noted
that he is not biased about this situation. He stated that he is not against nightclubs and indicated
that he likes Woody's Wharf, but this is not about whether the location should be technically called a
nightclub but rather it should be about whether Woody's Wharf should be allowed to extend its
hours of operation and allow dancing, the combination of which changes and intensifies the
nightclub -like operating characteristics of the business. He reported that he supports good - quality
restaurants on the Peninsula, including those that serve alcohol, as long as they focus on food and
being . a restaurant. He emphasized that he does not believe the issue of noise is germane to the
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decision, but what is germane is the intensification of what happens outside the venue when patrons
leave late at night and all at once. He noted that all similar operations in the area share the types
of problems reported, but that the issue tonight is not about other operations but rather what will be
allowed in the future for Woody's Wharfs operation. He addressed operator licenses and believed
that the imposition of the requirement for an operator's license administered by the Police
Department is not a reason to support their application, if it would not be a correct decision in the
first place.
Council Member Henn listed the factors influencing his decision, noting that it is a decision that
should be made based on compliance with laws and regulations in the General Plan and the City's
ordinances, as well as the public's welfare, safety, and well- being. He expressed support for
allowing Woody's Wharf to open at 10:00 a.m. and for the variance to allow the patio enclosure. He
noted that an intense public process was followed in adopting thQ06 e al Plan that changed
the designation of this and other areas to mixed -use, adding th he Gener l Plan makes it clear
that residential quality of life must trump other use consideration -�at are po`' ntially in conflict.
He read two of the General Plan policies and from the relevant secti1, of the unicipal Code that
are key in this situation and believed that, taken togetlp -,t make it , that the residential
quality of life must trump businesses that have con het' characteris and command the _
prohibition of nightclub characteristics in such close pr mitt' to residential uses. He added that, to
approve the Planning Commission's decision, wo�d= `e o" pro$e�policies�rthat are inconsistent with
the General Plan. He discussed crime statistic iirectly re ed4 W ody's Wharf and pointed out
ft
that they cannot be ignored. He addressed prki and in ' ated i at there is no justification for
relaxing the requirements since parking at that locaiion is de cient. He noted his efforts to improve
the quality of life for residents on the Peninsula d `ca d that the approval of the application
contradicts everything he believes is a an i ten d in the General Plan. He stressed the
need to respect the General Plan, the Municipal owe d the safety and quality of life of residents
and, therefore, must reject mortf elements the Planning Commission's approval of Woody's
Wharfs application. Council _e er Henn a hasized that he never makes final decisions on
Council agenda items prior he ng all the m o mation presented at the Council meeting for the
item.
Motion by Mike He" seconde , b Tor3 Petros to direct staff to bring back to the City Council
at its next regularly sch in et' tothe appropriate Resolution and findings to support: (1) that
Woody's request, xten o mg hour to 10:00 a.m. from the current 11:00 a.m. be approved;
(2) that the variance s need to allow for construction of the more permanent roof structure be
approved; (3) that fhe cube _ valet parking service be modified to require valet parking service from
6:00 p.m. to closingNog,+riday' and Saturday nights and Holidays; (4) that all other aspects of the
Planning Commissi 's decision be overturned, including, but not limited to: (i) the dance permit
request; (ii) the exten ` on of hours to 2:00 a.m. on the patio; (iii) the discretion as to the use of valet
services and to the ex nt appropriate in view of item number 3; (iv) the waiver of the six parking
spaces; and (v) the ability to remove tables and chairs from any section of the restaurant after 10:00
p.m.; and (5) the denial of the additional requests made by Woody's owners tonight.
Council Member Gardner requested Deputy Community Development Director Wisneski follow up
with staff regarding the permit allowing use of the patio until 2:00 a.m. She also commented on the
General Plan and noted the priority is to residents, businesses, and then to visitors.
In response to Council questions, Mr. Diamond indicated that it would not make sense for his client
to install a patio cover if there is no purpose to do so. He noted that Council Member Henn read
from a prepared motion and referenced the recent opinion of the Ninth Circuit Court. Council
Member Henn acknowledged preparing comments prior to the meeting based on careful diligence
and review of the information available prior to the meeting, but modify some of his preliminary
views based on information presented at the meeting, did not hear anything at the meeting to
fundamentally change his point of view, but did modify some of his initial thoughts about the matter
based on information presented at the meeting.
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XVIII.
9.
Council Member Selich indicated that he will not support the motion since Woody's Wharf has been
in the City since the 70's, has been operating in the same manner, the City has knowingly allowed
them to operate in this manner, that there is some liability for the City in doing so, and the City
should be working towards some sort of compromise rather than an outright denial of the project.
Police Captain Johnson referenced a memorandum dated July 22, 2013, noting that the Newport
Beach Police Department did not recommend support of the application. He noted that the area is
already heavily utilized by licensed establishments which provides a lot of challenges to the Police,
and believes that the expansion of Woody's Wharf would add to those challenges. He addressed calls
for service and noted that not all are to Woody's Wharf, however, so far this year, the Police
Department has responded to 47 calls for service, specifically for incidents occurring at Woody's
Wharf. In addition, he noted a lack of compliance by the operators oJf- "e v e.
Council Member Petros reported that his high school aged dauglifthave comae home from school
with handbills on their windshields advertising DJ nights at body's Wharf. Hd disagreed with Mr.
Diamond's statement that this is a noise issue since it ev many ii�ues,� He expressed hope
that these will be addressed when the item returns. He sta i hat the facf�irhat the operators have
offered to pay for a security guard indicates that theNcknowledg irhere is a hazard or
endangerment to the public.
Mayor Curry indicated that he will support
additional ideas when the matter returns.
The motion carried by the following roll is`Tl pst@;_
Ayes: Nancy Gardner,
Noes: Ed Selich
Absent: Leslie Daigle
Mayor Pro Tf
Attorney of i
Commodores.
the applicant could have
CHRISTMAS BOAT PARADE - 2014 -2017 (C- 5615).
ged himself from this item because he was informed by the City
conflict of interest related since he has membership in the
City Manager Kiff provided a report, noting the City's prior support of the parade. He reported that
the Chamber is interested in longer term commitments and noted recommendations as listed in the
staff report.
Motion by Ed Selich, seconded by Mike Henn to authorize the Mayor to execute the amended
Sponsorship ( "Grant ") Agreement with the Newport Beach Chamber of Commerce for support of the
Christmas Boat Parade at $50,000 per year for 2014, 2015, 2016, and 2017.
Steve Rosansky, President of the Newport Beach Chamber of Commerce reported on the number of
yearly visitors the Christmas Boat Parade attracts and reported that the funds will be used to
elevate the high stature of the parade. He noted that the parade generates a lot of business for the
City and explained the reason for the request to seek additional help in marketing and promotion of
the parade.
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Council Member Gardner requested and received confirmation from Mr. Rosansky that some of the
money will be used to perform an evaluation of the event.
Jim Mosher expressed concerns with the City giving public money to a private entity, and with the
way the money may be used.
The motion carried by the following roll call vote:
Ayes: Nancy Gardner, Tony Petros, Keith Curry, Ed Selich, Mike Henn
Absent: Leslie Daigle
10. CLOSE -OUT AND FINAL AMENDMENT TO THE CONSTRUCTION MANAGER AT RISK
CONTRACT FOR CIVIC CENTER AND PARK PROJECT WITIC: DRIVER (C- 4527).
[381100- 20131
City Manager Kiff referenced the staff report and noted an a admen to the re�ort.
Motion by Ed Selich, seconded by Rush Hill to authci z he Mayor ' the amended final
close -out amendment to the Construction Manager at R - Contract for, rvic Center and Park
Project with C. W. Driver.'
Jim Mosher commented on the City's webpage
related costs. He requested clarification aboua
costs and whether the webpage will continue to
The motion carried by the following roll
Ayes: Nancy Gardner, Tony
Absent: Leslie Daigle
11. RESPONSE TO RALPH
GOVERNMENT CODE S
noted eh E g pflwith finding the projects and
c items d wondered whether it includes staff
ces able er completion of the project.
;h Curry, Ed Selich, Mike Henn
EGATIONS PURSUANT TO CALIFORNIA
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City Attorney H r provN aff report and discussed the correspondence that alleges, among .
other allegations tSt vMlated the Brown Act at the September 19, 2013 meeting by not
referencing Cl oseS s prior to Closed Session. He stated that after reviewing the
allegations, his offi oe nod any merit to any of the allegations; however, in the interest of
avoiding litigation, pq recommending submitting a letter stating that prior to going into Closed
Session, the Closed Ssion agenda will be referenced.
Mayor Curry requested and received clarification from City Attorney Harp that prior to going into
Closed Session he did not read the title. He added that the City has spent approximately $1,500 in
addressing the concerns raised in the correspondence.
Jim Mosher commented on his letter dated September 17, 2013, and the need to let the public know
what Council will be considering in Closed Session. He. stated that he made four requests and took
issue that the letter was not distributed to Council. He suggested that all Closed Sessions be
preceded by the oral announcement, according to the Brown Act, that the oral and printed
announcement include enough specificity for the public to provide comment, that Council refrain
from negotiating with public employee groups other than at noticed public meetings or during
Closed Session through negotiators who are supposed to be orally announced before the meeting,
and that all labor and employment contracts receive final approval in public sessions.
Council Member Selich expressed appreciation for what the City Attorney is doing, but indicated
that he is tired of hearing bizarre interpretations of the Brown Act. He reported that he has
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