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HomeMy WebLinkAbout01 - 10-14-03City Council Meeting October 28, 2003 Agenda Item No. 1 CITY OF NEWPORT BEACH City Council Minutes Study Session October 14, 2003 - 4:00 p.m. ROLL CALL Present: Heffernan, Ridgeway, Adams, Webb, Nichols (arrived late), Mayor Bromberg Absent: District 2 (vacant) CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR. Council Member Webb confirmed with City Manager Bludau that Item No. 3, Municipal Code Addition — Sewer Manhole Frames and Covers, would be pulled from the Consent Calendar at the evening meeting. Council Member Heffernan stated that he would be pulling Item No. 10, Parkway Ficus Tree Maintenance, from the Consent Calendar to ask how the budget amendment under consideration for $60,000 was calculated and what effect the $50,000 that was spent in the 2002 -03 fiscal year had. Council Member Heffernan stated that he would also be pulling Item No. 13, Bayview Landing Coastal Commission Entitlement, to ask why the City is paying $100,000 for consultant fees and how such issues have been handled in the past. In regard to Item No. 14, Human Services Grants, Council Member Heffernan stated that he would be pulling the item for a report on how the Newport Harbor and Corona del Mar high schools plan to use their grant money. Lastly, Council Member Heffernan referred to Item No. 16, Tabak Residence Variance and Modification, and requested that the history of the City allowing a private homeowner to encroach without a fee into City -owned property be provided at the evening meeting. Regarding Item No. 16, Council Member Adams also requested that a report be provided on the differences between the Ensign approval and the Tabak variance. 2. AIR QUALITY MANAGEMENT DISTRICT (AQMD) ORAL PRESENTATION. Bill Craycraft, AQMD Governing Board Member, commended the City for its use of electric vehicles. Using a PowerPoint presentation, Mr. Craycraft stated that the AQMD's motto is "Cleaning the Air That We Breathe ". He stated that air pollution in California has a long history, and that Senate Bill 250 (SB250) created the South Coast Air Quality Management District (SCAQMD). He Volume 56 - Page 423 INDEX Air Quality Management District (AQMD) (61) City of Newport Beach Study Session Minutes October 14, 2003 INDEX stated that SCAQMD is responsible for keeping the air clean throughout Los Angeles, San Bernardino, Riverside and Orange counties. Using illustrations, he provided a brief background on how air pollution is produced, and stated that a critical issue faced today involves the fine particles that travel into our lungs and accumulate over time. He stated that the AQMD recently determined that 71% of cancer causing pollutants come from mobile sources, and that studies continue to link poor air quality with significant health risks. Mr. Craycraft stated that the AQMD Governing Board consists of twelve members, which include four County supervisors, five City Council members and three State appointees. He stated that the accomplishments of the AQMD include developing the Air Quality Management Plan and establishing baseline levels of air toxics, and noted that if the AQMD had not been addressing air pollution concerns, Orange County would not be enjoying the quality of life that it does. He also noted, however, that on July 11, 2003, the first Stage One alert in the past five years was issued. He displayed a graph which showed that the Southland's peak smog levels have declined 65 %, the number of unhealthful air days has been lowered by 75% and the amount of toxic air levels have been reduced dramatically since 1985. Mr. Craycraft stated that the AQMD's work is far from done and that Federal mandates must continue to be met in the future. He asked for the City's support in meeting these standards. He listed some of the initiatives and areas where the penalty money that the AQMD receives is spent. He asked that the City also make clean air a high priority when making decisions regarding operations, and to encourage those making complaints about smoke or odor to call 1- 800 - CUT -SMOG. Mr. Craycraft specifically asked that the City include an air quality element in its general plan and support more stringent controls on mobile sources of air pollution. He announced that the AQMD meets on the first Friday of each month. Council Member Heffernan asked how a person can report a vehicle that appears to be polluting the air. Mr. Craycraft stated that the violation can be reported by calling 1 -800- CUT -SMOG, and that the AQMD reports the information to the Department of Motor Vehicles (DMV). Council Member Heffernan stated that the Federal government is promoting the use of big vehicles with its tax policies. Mr. Craycraft stated that the AQMD is faced with many challenges regarding mobile sources and working with the Federal and State governments. Council Member Heffernan asked what can be done to allow hybrid cars in the carpool lanes. Mr. Craycraft stated that the AQMD continues to try to influence such regulations. Dolores Otting stated that a new house being built next door to her includes an outdoor fireplace. She stated that fireplaces in homes have higher chimneys, which prevents the smoke from going into nearby homes, but that the City is permitting outdoor fireplaces. She asked how the AQMD is dealing with the issue. Ms. Otting stated that the City might be liable for allowing the pollutants to affect people's health. Mayor Bromberg noted that he met with Ms. Otting regarding the issue and that he is looking into it. Mr. Craycraft suggested that anyone that notices a Volume 56 - Page 424 City of Newport Beach Study Session Minutes October 14, 2003 situation that appears to be unhealthful to call 1 -800- CUT - SMOG. He stated that an inspector will be sent out to investigate the concern. Council Member Heffernan asked what the AQMD's position is on fireplaces. Mr. Craycraft stated that he is not aware of any rule regarding indoor or outdoor fireplaces. 3. ENFORCEMENT OF THE UNIFORM FIRE CODE IN NEWPORT HARBOR. Assistant City Manager Riff stated that the Harbor Commission and many others have spent considerable time on the issue. He acknowledged the Harbor Commissioners present at the meeting and the many others who have been involved in the process. Using a PowerPoint presentation, Harbor Resources Manager Rossmiller stated a subcommittee of the Harbor Commission has developed a plan to address the issue of Fire Code enforcement in Newport Harbor, and that they recognized that full and immediate enforcement could impact the harbor and marine businesses. Mr. Rossmiller displayed a photo of a fire in the Seattle, Washington area where 31 vessels burnt and sunk in the marina. He explained that the problem exists countrywide, and that the issue involves vessels that are berthed in such a manner that if a fire were to occur, the vessel could not be removed from the dock and other vessels or structures might be involved. In addition, the vessels encroach into the navigation channels and exceed dock design criteria. Mr. Rossmiller provided a historical perspective on the issue and explained that the Harbor Commission has been very active in addressing the issue. He stated that the subcommittee that was formed included Commission members, as well as representatives of the commercial harbor activities, which included charter vessels, charter maintenance firms and owners of firms that sell vessels. He stated that the Harbor Commission adopted the recommended action plan in May of 2003. Mr. Rossmiller stated that the Newport Beach Municipal Code (NBMC) currently includes a provision that states that no person holding a permit issued under the terms of Chapter 17.24 shall permit or allow a vessel to be made fast to any other vessel. Another applicable code states that every vessel lying at any pier in Newport Harbor shall be fastened thereto with such lines, at least from bow and stern, and in such a manner as to assure the security of such vessel. He stated that some exceptions are allowed. Mr. Rossmiller stated that the Uniform Fire Code (UFC) also includes a standard that states that each berth shall be arranged such that a boat occupying a berth can be readily removed in an emergency without the necessity of removing other boats. He displayed an overhead photo, which was taken in Newport Harbor and provided an example of multiple vessels being berthed in a single slip and vessel rafting. In response to Council Member Heffernans question, Mr. Rossmiller stated that the N`MBC does not require pier permit holders to dock only vessels that they own. Assistant City Attorney Clausen agreed that the pier permits do not Volume 56 - Page 425 INDEX Uniform Fire Code (41) City of Newport Beach Study Session Minutes October 14, 2003 INDEX appear to specify what boats can be docked at the pier. Mayor Pro Tern Ridgeway stated that he doesn't believe that private residential pier permit holders can rent to other boat owners. Assistant City Manager Kiff added that the potential commercial use of a residential pier is not addressed in the NBMC, but can be interpreted through the tidelands trust which prohibits the commercial use of public property. He explained that in this case, the public property would be the harbor. Mayor Pro Tern Ridgeway agreed and stated that the issue also includes the question of whether the City should receive compensation for such rentals. Assistant City Attorney Clauson added that commercial pier permits do not prohibit the permit holders from renting their space. Mr. Rossmiller continued with his PowerPoint presentation and stated that the National Fire Protection Association (NFPA) developed the fire protection standards for marinas and boatyards. This standard has been adopted by the City as a part of the Fire Code. The purpose of the standard is to provide a minimum acceptable level of safety to life and property from fires and electrical hazards at marinas and related facilities. Mr. Rossmiller reported that in February of 2002, the Harbor Resources Division conducted a survey of the 63 commercial sites on City and County tidelands. He stated that the survey showed that 32 sites were in violation of the Fire Code, and it was estimated that if strict enforcement were done at that time, approximately 150 vessels would have been required to be moved from the harbor. Mr. Rossmiller stated that the action plan approved by the Harbor Commission begins by notifying all commercial permittees of the vessels that are berthed in violation of the code, outlining an enforcement plan, setting compliance dates and describing a compliance plan that is being referred to as the "6 + 6" plan, which provides the permittees with six months to develop and submit a compliance plan. If this is done, they will be given six months to comply. If not. enforcement will begin immediately. Mr. Rossmiller stated that the second part of the action plan is to prepare an enforcement plan that identifies the team members, items to be covered and the inspection schedule. He stated that the initial inspection and development of a strategic plan would be completed by a team that would include the office of the Harbor Resources Division, the Fire Marshal and the Orange County Sheriffs Harbor Patrol. Follow up inspections would be conducted by an abbreviated group. Mr. Rossmiller stated that the Harbor Commission is also recommending that a fee schedule be established to recover inspection and enforcement costs, and that a Best Management Practices (BMP) plan be prepared. Mr. Rossmiller stated that the establishment of a special circumstances review board is also recommended. This board would meet with commercial permittees on a case -by -case basis to discuss alternatives to compliance. It is also recommended that an interim strategy be implemented to alleviate as many fire code violation problems as possible. The action plan also includes the creation of a central clearing house /resource center at the Harbor Resources offices to provide information to permittees and the general public, as well as placement of the information on the City's website. Volume 56 - Page 426 City of Newport Beach Study Session Minutes October 14, 2003 INDEX Mr. Rossmiller stated that other issues include bringing residential piers into compliance, regulating commercial uses of residential piers, updating commercial dock standards, encouraging more vendors to work in the harbor, if needed, and possibly adding moorings that could also be temporarily used to help alleviate some of the overcrowding in the harbor. Lastly, Mr. Rossmiller displayed information on where more information can be obtained. Mayor Bromberg asked if a mitigation plan had been developed. Mr. Rossmiller stated that each of the permittees will receive a packet that will include a model plan and best management practices, and that it will be up to the permittees to develop a plan specific to their site. Mayor Bromberg expressed his concern about achieving compliance in a timely manner and asked if the Fire Chief was comfortable with the proposed plan. Fire Chief Riley stated that there is a problem and something needs to be done quickly. The problem, however, has developed over a long period of time and it will take some time to solve it. He stated that the plan is fair and reasonable, and will give an acceptable target for compliance. He likened it to the successful fuel management program that was recently completed in the Newport Coast area. Council Member Heffernan asked if there is an inherent conflict with the County having the fire boat in the harbor and the City enforcing the rules. Fire Chief Riley stated that both the County and the City would respond to a fire attached to a dock. Council Member Heffernan asked if the County should adopt the same rules. Fire Chief Riley explained that the County only enforces the rules within their areas of jurisdiction and the City is the enforcing authority for nearly all of the pier and dock regulations in Newport Harbor. Council Member Heffernan stated that the fuel management program in Newport Coast didn't affect the economic interests of the City like fire code enforcement in the harbor will, noting that there could be more resistance. Fire Chief Riley stated that the Fire Department deals with resistance every day, and that public safety doesn't always work in favor of economic interests. Mayor Bromberg complimented the Harbor Commission on the work they've done, and asked Harbor Commission Chairman Collins if he was comfortable with the Harbor Commission handling the new program or if a City Council committee would be needed. Chairman Collins stated that it's a two -part program, with the first part involving interim compliance and the second part addressing the long -term solutions. He stated that the City Council's assistance will be needed for the long -term solutions and the comprehensive efforts that will be required. Mayor Pro Tern Ridgeway stated that he owns a commercial pier and a residential pier, and asked if that would present a conflict of interest. Assistant City Attorney Clauson stated that if there is a potential for financial impact from the proposed actions, then there would be a conflict of interest. Mayor Pro Tern Ridgeway stated that he wasn't aware of any. He asked if boats in storage at the boatyards violate the intent of the Fire Code. Fire Chief Riley stated that boats on uplands property, upland of the bulkhead, do not violate the berthing regulations being discussed at the current meeting. He noted, however, that they do have other regulations that they have to comply with. In response to Volume 56 - Page 427 City of Newport Beach Study Session Minutes October 14, 2003 INDEX Mayor Pro Tem Ridgeway s question, Fire Chief Kiley stated that the City has total authority over all of the pier and dock fire regulations in the bay, except for a few areas that are County tidelands. Mayor Pro Tem Ridgeway confirmed that this would include the moorings. Fire Chief Riley added, however, that the Sheriffs Department does assist the City, by contract. In response to Mayor Pro Tem Ridgeway's question, Fire Chief Riley stated that the Harbor Patrol has both fire boats and patrol boats. Mayor Pro Tem Ridgeway suggested that the Fire Department inspect the fire boats to make sure that they're adequate. Additionally, he asked if the Harbor Master was included in any of the meetings when working on the proposed plan. Mr. Rossmiller responded in the affirmative. Mayor Pro Tem Ridgeway asked if all commercial marinas will be required to have fire hydrants. Fire Chief Riley stated that some are required to have more fire protection than others based on marina design. Mayor Pro Tem Ridgeway stated that an inventory of the moorings in the harbor needs to be done and that many of them are pathetic. He suggested that the City consider taking back jurisdiction of total administration of all of the moorings. In regard to the possibility of needing more vendors to perform the work that will be needed for compliance, Mayor Pro Tem Ridgeway stated that there are only two vendors in the harbor that are qualified. He suggested that some type of licensing requirement be considered. Chairman Collins stated that the Harbor Commission also feels that one of the greatest constraints to the process is the lack of qualified vendors in the harbor. Lastly, Mayor Pro Tem Ridgeway noted the need for more moorings and the yacht brokerages that have a difficult time finding a place to put their boats. Council Member Nichols stated that the NFPA develops standards that are typically applied to the City's codes, and that the City could begin the process of enforcement by making that clear to the commercial operators. Council Member Heffernan asked if the Harbor Commission had addressed the issue of the City taking over administration of the entire harbor. Secondly, he asked if there are standards that can be enforced regarding the size of boat that can be tied to a particular dock. Chairman Collins stated that the Harbor Commission is not currently planning to study who should perform various harbor duties. In response to the second question, he stated that there are standards about overhang, but that it is not a fire issue. Council Member Heffernan confirmed with Chairman Collins that it should be a part of the long- term strategic plan. In response to Council Member Webb's question, Mr. Rossmiller stated that the Harbor Commission is trying to find a short -term solution to the 150 vessels that may be misplaced. He explained that they are seeking improved use of the moorings and temporary locations for the vessels to tie up to. Mayor Pro Tem Ridgeway expressed his support for the Harbor Commission's ability to deal with the issue better than the City Council. J. R. Means, co -owner of Bayport Yachts, a local boat broker and dealer, stated that his company will be directly affected by the proposed plan. He explained that they don't know where they'll put their clients' boats. He asked how a balance can be reached while, at the same time, protecting public safety. Volume 56 - Page 428 City of Newport Beach Study Session Minutes October 14, 2003 INDEX Additionally, he asked if the fires mentioned earlier were the result of stacked boats or if they were boathouse fires. Council Member Heffernan asked what proportion of boat buyers take delivery offshore, thus bypassing the sales tax payment. Mr. Means stated that it is close to 40 %. Mayor Pro Tern Ridgeway asked how many boat buyers of boats over 40 feet take offshore delivery. Mr. Means stated that it is about the same percentage, adding that nearly all of their sales are of boats over 40 feet. Gordon Brock stated that he is in the boat business. Regarding the photo displayed earlier of the fire in Seattle, Mr. Brock stated that he was there and that it was a completely different situation than exists in Newport Harbor and not pertinent to the concerns being addressed at the current meeting. Mr. Brock stated that the proposed plan will have a negative impact on the boat business in the City. In regard to safety issues, Mr. Brock stated that the newer boats are safe and don't have people living on them. He stated that the boats on the water shouldn't have regulations different than those at the storage facilities. Mayor Pro Tern Ridgeway asked who does the enforcement of the fire suppression systems on the boats. He asked if there was a way to be less harsh on the diesel - powered boats with halon systems and adequate fire suppression equipment. He noted that the gas - powered boats are dangerous and comprise the majority of the boats in the harbor. Mayor Pro Tem Ridgeway stated that there should be a way to work with the brokerages. He stated that he is only aware of inspections being done when a boat is sold. Mayor Bromberg stated that he spoke to the Chamber of Commerce Government Affairs Committee earlier in the day and is always concerned when commerce in the City might be negatively affected. He noted, however, that the City is facing a safety issue and is mandated by law on the matter. He felt that a compromise could be reached. He stated that boats will be lost from the harbor, but that it shouldn't be 150. Mayor Bromberg stated that the talent is there to find a solution and that any plan will have to be signed off by the Fire Chief. Mayor Pro Tern Ridgway agreed that boats will be lost, but its the type and size that concerns him. He also agreed that a solution should be sought to help the commerce of the yacht brokerages and those that have the larger boats. He stated that the Harbor Element supports the harbor, as well as the recreation marine commercial zoning on the uplands. He stated that a compromise will be difficult, but encouraged solutions that will help the industry and the economy. Mayor Bromberg also suggested that the fire equipment be looked at, as well as the reconfiguration of docks. Council Member Heffernan stated that the City has priced itself above what many can afford. He noted that there is an intense demand on a finite resource, which is the dock space. He stated that it's a difficult problem. Volume 56 - Page 429 City of Newport Beach Study Session Minutes October 14, 2003 In regard to the Mayor suggesting that other options besides strict enforcement be looked at, Assistant City Manager Mff stated that the Harbor Commission is recommending that a special circumstances review board be established. He asked if the special circumstances that might be considered should be a part of the report that comes back to the City Council. Mayor Bromberg stated that it would be the time and, in addition, he would want to know if the Fire Chief supports those circumstances. Council Member Webb confirmed that the City Council is recommending that staff move forward with the "6 +6" plan. 4. STATUS REPORT ON SANTA ANA RIVER CROSSINGS (SARX) STUDY AND PRESENTATION BY ORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA). Dave Elbaum, Director of Strategic Planning, OCTA, stated that Huntington Beach and Costa Mesa are not in support of constructing two bridges across the Santa Ana River. He stated that OCTA is trying to find alternative projects that would alleviate the traffic congestion in the area, but that the alternatives under consideration are not supported by Newport Beach or Fountain Valley. Mr. Elbaum explained that OCTA has consistently taken the position that any changes to the Master Plan of Arterial Highways (MPAH) would not be supported, if the impacts of those alternatives were shifted to a city that wouldn't accept them. He stated that OCTA's recommendation is to not move forward with the Environmental Impact Report (EIR) until consensus from all four cities is reached. He stated that they're attempting to put together another meeting to hopefully find a strategy for addressing some of the traffic congestion, given that Huntington Beach and Costa Mesa will not build the bridges and OCTA does not have the authority to do so. Mayor Pro Tern Ridgeway stated that OCTA needs to involve other agencies, and let Huntington Beach and Costa Mesa know what might happen if they don't pick up their fair share of the regional growth and the impacts of that regional growth. He stated that OCTA needs to put some sanctions in place now, noting that the traffic congestion in the area will only get worse. Mayor Pro Tern Ridgeway stated that OCTA needs to make it clear that they mean business, and that Huntington Beach and Costa Mesa need to cooperate. Lastly, he stated that it isn't Newport Beach that's contributing to the regional growth. Mr. Elbaum stated that OCTA only has the power to do certain things under Measure M. Mayor Pro Tem Ridgeway stated that he understands that it will require a collective effort by all of the involved agencies. Mr. Elbaum stated that OCTA can allocate money to the cities if their general plan is consistent with the MPAH and if they've done nothing to preclude the possibility of building the bridges in the future. He pointed out that neither Huntington Beach or Costa Mesa have breached either requirement, so as much as OCTA would like to see the bridges built from a regional point of view, it can't deprive them of funding, Mayor Pro Tern Ridgeway stated that their lack of action does violate the requirements, noting that by their inaction, they have in effect, taken it off of their general plan. Volume 56 - Page 430 INDEX Santa Ana River Crossing (SARX) (61) City of Newport Beach Study Session Minutes October 14, 2003 INDEX Council Member Webb confirmed that 15,000 to 20,000 trips are expected on the new bridges per day, if they are built. He noted that Newport Beach and the other streets in the area will be impacted if the bridges are not built. He stated that the City should be supporting Fountain Valley's effort to apply for funding to do a bridge study, and not remain silent on the issue. Council Member Webb also noted that Costa Mesa continues to intensify uses within their City without providing sufficient access. He stated that Newport Beach needs to be more proactive in its statements to OCTA. Council Member Adams requested that whoever represents Newport Beach at the upcoming meetings with OCTA on the matter, represents the full City Council. He suggested that the City Council formulate their position. He stated that it's an important issue and the City needs to participate in it. Mayor Bromberg agreed and suggested that the Chair of the Environmental Quality Affairs Committee (EQAC) be invited to participate in the discussion with the City Council, noting that EQAC has spent a great deal of time on the SARX issue. City Manager Bludau stated that, at the City Manager level, he has supported the actions of Fountain Valley and the building of the bridges. Council Member Webb asked if staff should come back to the City Council with recommendations on a policy that the City Council might consider adopting. Mayor Bromberg stated that staff will most likely present the facts with various options to consider, and the City Council %vW set the policy. Council Member Webb thanked Mr. Elbaum and Glen Campbell of OCTA, who was also present at the meeting, for their efforts in trying to put a solution together. He confirmed that staff will formulate a policy position and present it at a future City Council meeting. Council Member Nichols stated that there is a heavy traffic burden in the area and he supports the position being taken by the City. PUBLIC COMMENTS Dolores Otting stated that, per the request of Council Member Adams, a future Study Session item was supposed to cover water quality and code enforcement. She stated that the public needs to know what the rules are. She suggested the item be placed on a future agenda. Mayor Bromberg announced that Comeast is running a tape on the issue. He stated that its hosted by Code & Water Quality Enforcement Division Manager Sinasek and is very instructive. ADJOURNMENT — at 5:55 p.m to Closed Session to discuss pending litigation issues and conduct a meeting with the City's real property negotiator. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** The agenda for the Study Session was posted on October 8, 2003, at Volume 56 - Page 431 City of Newport Beach Study Session Minutes October 14, 2003 2:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Secretary Mayor Volume 56 - Page 432 INDEX CITY OF NEWPORT BEACH City Council Minutes Regular Meeting October 14, 2003 - 7:00 p.m. STUDY SESSION - 4:00 p.m. CLOSED SESSION - 6:00 p.m cxxxxxxxxxxxxxxxxxxa A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Absent: District 2 (vacant) C. CLOSED SESSION REPORT- None. D. PLEDGE OF ALLEGIANCE - Council Member Heffernan. E. INVOCATION - Dr. John A. Huffman, Jr., Saint Andrews Presbyterian Church Mayor Bromberg reported that he will be taking Item 17 (Council Consideration of City Council Candidates' Interview and Selection Procedure) out of order because Mayor Pro Tem Ridgeway will be flying to Washington, D.C. on government business and he wants to ensure that all Council Members participate in the discussion. O. CONTINUED BUSINESS 17. COUNCIL CONSIDERATION OF CITY COUNCIL CANDIDATES' INTERVIEW AND SELECTION PROCEDURE. Mayor Bromberg referenced the eight questions in the staff report. He suggested that the interviews be conducted on Tuesday, October 21 at 7:00 p.m. in the Council Chambers and verified that all Council Members were available. He added that he is also suggesting that the interviews be televised; all seven candidates be sequestered; the interviews be about 20 minutes per candidate; and the order of the interview can either be done alphabetically or the names can be drawn from a hat. Council Member Webb offered the use of his hat to draw the names. Mayor Bromberg indicated that it is up to each Council Member whether they want to ask the same basic questions. He suggested that Council go through the process, appoint, swear in, and seat the District 2 Council Member that evening. He indicated that he does not feel having too few applicants is an issue at this point. He reported that the interviews will be an open hearing and, at the end of all the interviews, there will be an Volume 56 - Page 433 INDEX City Council Candidates Interview and Selection Procedure (33) City of Newport Beach Regular Meeting October 14, 2003 INDEX opportunity for the public to address Council. He indicated that a question arose as to whether the public should have the opportunity to ask questions of the candidates. He stated that he doubts this will happen, adding that he believed this does not fit with the time parameter. He pointed out that this is a City Council appointment. Council Member Heffernan reported that he prepared eight questions specific to District 2 that he intends to ask each applicant and proceeded to read the questions. He stated that he will give the questions to the City Clerk so the applicants can get them. He reported that each applicant can give a "yes" or "no" answer and then provide a one sentence reason to back up their answer. Mayor Bromberg indicated that each candidate will probably get two minutes after the interview to provide a closing statement. Mayor Pro Tem Ridgeway asked that the City Attorney, prior to next week, determine the propriety of the specific types of questions that Council Member Heffernan will be asking. Council Member Adams stated that Council Member Heffernan can ask any question he wants, but in fairness to the candidates and due process, he wouldn't want to be asked all those questions until he reads staff reports, hears public testimony, etc. Council Member Heffernan believed that this is no different than having the West Newport Association ask the same questions to Council. He stated that he expects the candidates to know these District 2 issues and asked how that person can fairly represent District 2 if he does not have a strong opinion. He added that Council will be making the decision that night. In response to Council Member Adams' question, Mayor Bromberg suggested that Council take 20 minutes for questioning if needed and then the candidate will be given two minutes to provide a closing statement. Council Member Webb asked if it is appropriate to allow them V/2 to 2 minutes in the beginning to state what makes them most qualified. Mayor Bromberg noted that their applications are detailed and is not sure if this is necessary. He indicated that he is curious how they respond to the questions. Mayor Pro Tem Ridgeway indicated that there are always introductions at any committee meeting. Council Member Adams suggested having a two minute introduction, conduct questions and answers, and then have a five minute closing by the candidate, which changes the total time to 25 minutes per candidate. Motion by Mayor Bromberg to have Council conduct interviews for District 2 on Tuesday, October 21 at 7:00 p.m. in the Council Chambers; the interviews will be televised; about 25 minutes will be allotted per Council candidate for questioning which will include a two minute opening statement and a five minute closing statement by the candidate; the order of the interviews will be determined by drawing names from a hat; the candidates will be sequestered and return to the sequester area after the interview; if the City Council accepts the candidates, they will appoint by a majority vote of the City Council, swear in, and seat the District 2 Council Member on October 21. Volume 56 - Page 434 City of Newport Beach Regular Meeting October 14, 2003 INDEX Mayor Bromberg reported that, if there was a tie, he has no intention of ending the meeting at that point and would bring it to a revote as many times as necessary. He indicated that, if it becomes obvious that there is a hung jury, then it can be brought back. Discussion ensued relative to whether the individuals that have the tie come back before Council for further interviews and if the low vote - getters will be dropped from consideration. Mayor Bromberg stated that this does not need to be decided tonight. Council Member Nichols believed that the rules should be set now. Mayor Bromberg reported that deliberations, voting, etc. will be public. Dolores Otting believed that the voting for commissioners has been confusing in the past and that there should be a plan. The motion carried by the following roll call vote-. Ayes: Heffernan, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: None Mayor Pro Tern Ridgeway left the meeting at 7:30 p.m. (excused). F. PRESENTATIONS — None. G. NOTICE TO THE PUBLIC H. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION OR REPORT (NON- DISCUSSION ITEM): Council Member Webb requested that staff check with Caltrans regarding the parking lot next to the Arches Restaurant and whether the City can enact "No Overnight Parking" restrictions. He stated that it is beginning to look like a limousine, bus, and used car storage area. City Manager Bludau reported that Caltrans is leasing out the property and the City does not have the authority to place those types of restrictions. Council Member Adams requested that the City Clerk place the Council's approval of his appointment to the Coastal/Bay Water Quality Committee on the Wednesday, November 12 agenda. Council Member Adams indicated that Mayor Pro Tem Ridgeway asked that the City have EQAC review the environmental documentations for the IBC transfers, conversions, and entitlements that are being pursued by the City of Irvine. Council Member Heffernan requested a status report regarding the Caltrans relinquishment, where the City stands, and what the open issues are. Council Member Nichols added that he believed that there is Volume 56 - Page 435 City of Newport Beach Regular Meeting October 14, 2003 INDEX a negotiated amount on Coast Highway. He asked what the ramifications are and what the cost data is regarding liability and maintenance. City Manager Bludau reported that the $3.5 million figure from local Caltrans may change based on an appeal and State Caltrans doing something different. Council Member Nichols asked how much of this money was going to be used for improvements and how much was going to be available for maintenance, etc. in the area. City Manager Bludau believed that, until that picture is mature, it may not be the best use of Council's time to delve into this issue. Mayor Bromberg suggested that City Manager Bludau get back with Council Members Heffernan and Nichols. I. CONSENT CALENDAR READING OF MINUTES/ORDINANCES AND RESOLUTIONS 1. Removed at the request of an audience member. 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. ORDINANCE FOR INTRODUCTION 3. Removed at the request of staff RESOLUTION FOR ADOPTION 4. GENERAL PLAN AMENDMENT INITIATIONS: 1) AMENDMENT Res 2003 -52 TO LAND USE ELEMENT TO CHANGE THE INTENSITY LIMIT GPI 2003 -006/ FOR PROPERTY LOCATED AT 707 EAST 13ALBOA BLVD. FROM GPI 2003 -007/ A FLOOR AREA RATIO TO ONE BASED ON THE NUMBER OF 707 E. Balboa Blvd./ SEATS [BALBOA THEATER); AND 2) AMENDMENT TO LAND 3450 Via Oporto USE ELEMENT TO CHANGE THE LAND USE DESIGNATION OF (45) PROPERTY LOCATED AT 3450 VIA OPORTO FROM GOVERNMENTAL, EDUCATIONAL AND INSTITUTIONAL FACILITIES TO RETAIL AND SERVICE COMMERCIAL, Adopt Resolution No. 2003 -52 initiating amendments to the General Plan (GPI 2003 -006 and GPI 2003 -007). CONTRACTS AND AGREEMENTS 5. NEWPORT CENTER DRIVE AND SAN NICOLAS DRIVE C -3561 RESURFACING — COMPLETION AND ACCEPTANCE OF Newport Center and CONTRACT (C- 3561). 1) Accept the work; 2) authorize the City Clerk San Nicolas Drive to file a Notice of Completion; 3) authorize the City Clerk to release the Resurfacing Labor and Materials bond 35 days after the Notice of Completion has (38) been recorded in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance Bond one (1) year after Council acceptance. Volume 56 - Page 436 City of Newport Beach Regular Meeting October 14, 2003 INDEX 6. IRVINE AVENUE FROM SANTIAGO TO UNIVERSITY AND JAMBOREE ROAD FROM SANTA BARBARA TO EASTBLUFF/FORD ROAD 24 -INCH WATER MAIN REPLACEMENT — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3412). 1) Accept the work; 2) authorize the City Clerk to file a Notice of Completion; 3) authorize the City Clerk to release the Labor and Materials bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance Bond one (1) year after Council acceptance. CITYWIDE SLURRY SEAL PROGRAM — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3559). 1) Accept the work; 2) authorize the City Clerk to file a Notice of Completion; 3) authorize the City Clerk to release the Labor and Materials bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance Bond one (1) year after Council acceptance. 8. Removed at the request of an audience member. MISCELLANEOUS ACTIONS 9. APPOINTMENT OF MAYOR BROMBERG TO FILL VACANT POSITION ON THE CITY COUNCIL AD HOC AIRPORT POLICY REVIEW COMMITTEE. Confirm the appointment of Mayor Bromberg to replace Council Member Proctor on the City Council Ad Hoc Airport Policy Review Committee. 10. Removed at the request of Council Member Heffernan. 11. APPROVAL OF PURCHASE OF REMITTANCE PROCESSING EQUIPMENT AND AUTHORIZATION OF BUDGET AMENDMENT APPROPRIATING FUNDS FOR THE PURCHASE. 1) Approve the purchase of new remittance processing equipment with hardware and software maintenance at a total first year cost of $45,000; and 2) authorize a budget amendment (BA -008) appropriating $28,973.84 from the unappropriated balance of the Water Fund to Account No. 7501 - 00620741, $4,527.16 from the unappropriated balance of the Wastewater Fund to 7531- C0620741, $3,169.02 from the unappropriated balance of the Tidelands Fund to 7231- C0620741, and $8,329.98 from the unappropriated balance of the General Fund to 7017- C0620741. 12. MANAGEMENT OF INCOME PRODUCING AGREEMENTS. Direct staff to complete an analysis (abstract) of leases, franchises, rentals, and other income producing agreements using in -house resources, create a new position responsible for management of income producing agreements and approve a budget amendment (BA -009) in the amount of $87,711.50 to fund same. 13. Removed at the request of Council Member Nichols. Volume 56 - Page 437 C -3412 Irvine Avenue and Jamboree Road 24 -inch Water Main Replacement (38) C -3559 Citywide Slurry Seal Program (38) Council Ad Hoc Airport Policy Review Committee Vacancy (24) BA -008 Remittance Processing Equipment Purchase (40) BA -009 Management of Income Producing Agreements (40/73) City of Newport Beach Regular Meeting October 14, 2003 INDEX 14. Removed at the request of Council Member Heffernan. 519. PROFESSIONAL SERVICES AGREEMENT TO PREPARE AN C -3668 ENVIRONMENTAL IMPACT REPORT FOR THE SOUTH COAST South Coast SHIPYARD AND DESIGN CENTER MIXED USE PROJECT. Shipyard and Approve and authorize the City Manager to execute a Professional Design Center Services Agreement with Hodge & Associate of Monarch Beach for Mixed Use EIR professional environmental services to prepare an Environmental Impact (38) Report for a not to exceed cost of $73,060. Motion by Council Member Adams to approve the Consent Calendar, except for those items removed (1, 3, 8, 10, 13 and 14). The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Does: None Abstain: None Absent: Ridgeway J. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE ADJOURNED REGULAR AND REGULAR MEETING OF SEPTEMBER 23, 2003. Referencing Volume 56, Page 402, Jim Hildreth requested corrections to the minutes pertaining to his comments about the property owner at 120 Grand Canal previously owning 118 Grand Canal, the property alignment, and the property owner who has the utility pole possibly allowing an easement on the property. He indicated that he also mentioned that denying access to property rights for a location on the Grand Canal is against the law and that he is trying to do a proposal using a PowerPoint presentation. Motion by Council Member Adams to waive reading of subject minutes. approve as written and order filed. The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway 3. MUNICIPAL CODE ADDITION — SEWER MANHOLE FRAMES Manhole Frames and AND COVERS. Covers (89) This item was continued by City Manager Bludau. 8. BALBOA ISLAND PAVEMENT RECONSTRUCTION PHASE III — C -3648 AWARD OF CONTRACT (C- 3648). Balboa Island Pavement Volume 56 - Page 438 City of Newport Beach Regular Meeting October 14, 2003 Jim Hildreth stated that this will occur on the little island. He indicated that, about two weeks ago, the City filled the cracks with asphalt. He believed that, since the City is scheduled to replace the streets on Balboa Island in nine years, it should not spend the money now to have the streets repaired. INDEX Motion by Council Member Adams to 1) approve the plans and specifications; 2) award the contract (C -3648) to Nobest, Inc. for the total bid price of $110,000 and authorize the Mayor and the City Clerk to execute the contract; and 3) establish an amount of $15,000 to cover the cost of unforeseen work and geotechnical and testing services. The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway 10. PARKWAY FICUS TREE MAINTENANCE. Council Member Heffernan stated that root intrusion from ficus trees is a continuing liability issue for the City. He asked how the City arrived at $50,000 last fiscal year and $60,000 this fiscal year, and what it intends to do with that money with regard to the 700 trees. He thought that this was a bigger problem that should have had more City money applied to it to fix it. City Manager Bludau reported that $60,000 was budgeted last year and Council Member Webb requested the same amount this year. He believed that this came out of discussions the City had regarding liability issues, and that the amount probably was set by Council Member Glover who wanted work done along Clay Street. Council Member Webb indicated that the $60,000 includes $30,000 for trimming 755 trees, root pruning 60 trees, and installing root barriers to 60 more trees. He stated that the staff report indicates that the installation of root barriers, tree trimming, and root pruning was completed in 2002 -2003 and has significantly reduced complaints, claims, intrusions, and property damage issues. However, staff does not know if this is temporary or permanent, but annual ficus tree trimming results in a significant reduction in growth and expansion of tree roots. He believed that this should not be an item that is approved on a year -by -year basis, but built into the budget. He expressed hope that there will be preventative maintenance that will allow some of the mature trees to be taken care of so they are kept around a little longer. Council Member Heffernan asked if there is ever a decision to remove the trees. Council Member Webb indicated that Council Policy G -1 answers this and that ficus trees will eventually be phased out. However, he stated that a tree would be removed and replaced with something else if it is doing significant damage. He expressed his hope that there will not be a program to take out a large number of ficus trees all at once because they provide some of the best streetscape. He stated that the parkway Volume 56 - Page 439 Reconstruction Phase III (38) BA -010 Parkway Ficus Tree Maintenance (40162) City of Newport Beach Regular Meeting October 14, 2003 INDEX trees need to be trimmed regularly so their roots are not as active. Council Member Heffernan asked how many ficus tree claims have been filed against the City. City Manager Bludau stated that he cannot really answer the question since people have contacted the City and negotiated tree removals, rather than file a claim against the City. He indicated that $60,000 is not going to cover all of the problematic trees and that the root barriers are only affective for three to five years. Jim Hildreth believed that Mayor Bromberg has a ficus tree in front of his house, has it trimmed every year, and sends the bill to the City; and indicated that Mayor Bromberg could say if he has had problems with the ficus tree or if he has filed a claim against the City. City Manager Bludau assured everyone that Mayor Bromberg does not send his tree trimming bills to the City. Motion by Council Member Webb to approve a budget amendment (BA -010) for $60,000 for the installation of root barriers, tree trimming, and root pruning of mature parkway ficus trees located throughout the City. City Manager Bludau asked if Council intends to have the $60,000 built into the budget each year. Council Member Adams believed that this should be taken up during budget discussions. The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway 13. APPROPRIATION OF $100,000 FROM THE AFFORDABLE HOUSING TRUST DEPOSIT TO ACCOUNT #0510 -8080 TO PAY VARIOUS LEGAL AND CONSULTING FEES RELATED TO BAYVIEW LANDING COASTAL COMMISSION ENTITLEMENT. Council Member Nichols indicated that the staff report states that the project had been passed by Council, but noted that it was passed as a different project. Mayor Bromberg explained that the staff report relates to costs that the City has expended on consulting fees and to go before the Coastal Commission. He reported that, as a result of what is happening with the Coastal Commission regarding this project, the City is now required to spend more money on consultants and attorneys. He suggested that Council Member Nichols contact Assistant City Manager Wood or Program Administrator Trimble for an update on the project. Council Member Nichols believed that the whole City should have an idea about the project. Assistant City Manager Wood reported that the project will go before the Coastal Commission either November 5, 6, or 7, She stated that, as a result of the concerns that the Coastal Commission had at their first hearing, the City has done some redesign work. She reported that the Volume 56 - Page 440 BA -011 Bayview Landing Coastal Commission Entitlement (40/68) City of Newport Beach Regular Meeting October 14, 2003 INDEX number of units has been reduced from 150 to 120; the units will be in two buildings instead of three; and the buildings will still have the same orientation and architecture, and will not be any higher than the buildings that were originally approved. She stated that the park size has not changed, there will be reduced grading, and there will be some grading at the former gas station so public views are improved. She added that more native landscaping will be incorporated and there will be a larger retention basin. She explained that the main reason for the change in the number of units is because the City needed to protect a couple of wetland areas. Council Member Adams asked if Council's approval is still valid given the changes to the project. Ms. Wood believed that the approval is valid, especially since the height has not changed and the orientation of the buildings does not create greater view impacts. She indicated that normally when there is a reduction in the number of units, it is in substantial conformance with what was originally approved. Council Member Webb believed that, after all the approvals have been obtained, this would go back to the Parks, Beaches & Recreation Commission. Council Member Nichols asked if the park has already been designed. Ms. Wood believed that the Coastal Commission will probably condition the park fairly specifically, but it can still go back to PB &R, noting that they received an update at a previous meeting. Motion by Council Member Adams to approve a budget amendment (BA -011) to appropriate $100,000 from the Affordable Housing Trust Deposit to City Attorney's Professional Services account. In response to Council Member Heffernan's questions, Ms. Wood reported that there is no other project comparable to this since it is the first affordable housing project in the coastal zone and it is a combined project with the City having the park and an interest in the affordable housing project. She reported that the developer has been paying all of the design costs and has even done it twice. She stated that the City has waived fees and paid the consultant costs to get the project through the Coastal Commission process. She pointed out that they are proposing that the money come from the affordable housing in lieu fund. not the general fund. The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway 14. HUMAN SERVICES GRANTS FOR 2003 -2004. Council Member Heffernan indicated that his questions have been resolved. Volume 56 - Page 441 Human Services Grants for 2003 -04 (40) City of Newport Beach Regular Meeting October 14, 2003 INDEX Motion by Council Member Heffernan to authorize the allocation of $25,000 in Human Services Grants in the amounts and to the agencies described in the staff report. The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway K. PUBLIC COMMENTS Jim Hildreth indicated that 120 Grand Canal is connected to the underground utilities via Utility Pole No. 404823 and Contorelli is scheduled to connect the utilities tomorrow. He noted that he saw the contractor do the conversion at 116 Grand Canal and the contractor told him that it could possibly take eight hours to do the work. He stated that he requested that the contractor bring him a generator so his perishables won't go bad He indicated that the contractor asked him where valuables are kept, noting that he is only supposed to do a connection and not go through and ransack the home. He stated that he will be calling the City if the contractor does not bring a generator. Council Member Heffernan emphasized that what Mr. Hildreth says is not privileged. He stated that Mr. Hildreth alleging that someone is going to ransack his home is close to crossing the line. Brian Clarkson, FreeNewport.com, stated that today he and Ron Winship of "Cutting Edge" interviewed Earl Miller and Mike Mte. He indicated that two more District 2 candidates will hopefully be interviewed tomorrow and extended an invitation to the remaining three. He stated that the interviews are posted on their website. Dr. Linda Orozco stated that her next door neighbor is a half -way house that advertises the property as having 32 beds and 34 staff on a residential lot. She indicated that the City has no permit requirements for half -way houses to operate; there is no limit on the number of addicts that can be placed in these residential properties; there are no inspections by any City official; the City does not know how many half- way houses are in the City; there have been no environmental impact studies done by the City; and any neighborhood can suffer by an unlimited number of half -way houses in their block. She noted that there are two half -way houses within three doors of her home. She reported that half -way houses are recruiting addicts from all over the world, make $20,000 a bed for a two to five month stay, and operate the property with 800 - numbers, fax machines, copy machines, etc. Dr. Orozco pointed out the noise that 70 people make daily and noted that industrial strength vacuums and washers /dryers are being operated all day. She added that carpet cleaning takes place weekly, plumbing repairs are being done constantly, trash trucks go by the property daily, and food delivery semi - refrigerated trucks are in their alleyway every day. She reported that Volume 56 - Page 442 City of Newport Beach Regular Meeting October 14, 2003 secondhand smoke and cigarette butts are also a problem, not to mention the fights, arguments, and vomit sounds that come from the property. INDEX Mayor Bromberg asked if there is anything the City can do about half- way houses. Assistant City Attorney Clauson stated that the City is looking at changes that might have occurred in laws or regulations as an option for the City. She noted that, in years past, their office has been advised that, between the State and Federal regulations, the City is very constrained on taking any action on these types of "businesses "; however, they are regarded by the State as having the same protection as any other residence. Mayor Bromberg asked if the City could look at the residences on a case -by -case basis and deal with it as any other residence. Ms. Clauson stated that the City can look at the property on a nuisance- basis, but it is restricted on a regulatory basis from treating it any different than other residences. Mayor Bromberg told Dr. Orozco that the City Manager or City Attorney will be getting back to her. Council Member Adams believed that the City needs to talk to its State and Federal representatives about sponsoring a bill. Ms. Clauson noted that the situation would be different if this was an apartment complex and may create problems that may not be anticipated by the legislature. Council Member Heffernan stated that there are limits to this presumed State exemption that overrides the City's local enforcement rights. Tom Hyans reported that half -way house problems have been an ongoing issue for ten years. He stated that he has discussed this with Revenue Manager Everroad and other City staff, but he has always been told that there is nothing anyone can do because of State preemption. He indicated that the people at the half -way houses are social terrors. He stated that other people from the neighborhood want to speak tonight but are afraid of retribution. He indicated that the Palms Apartment on Balboa Boulevard is going to have the same problems. He noted that the unit Dr. Orozco is talking about is a triplex and that Mr. Everroad told him that there were nine half -way houses on the peninsula. He stated that something needs to be done about this. Michael Bacus stated that he is a neighbor of Dr. Orozco. He indicated that Narc -anon operates the half -way house at 1810 W. Ocean Front via License No. VT02100703 and recently expanded operations into 1812 W. Balboa. He reported that neither property has a residential district land use permit on file with the City, the 66 people create enough garbage and refuse daily to necessitate daily waste management, 18- wheelers have delivered food twice today, the cigarette usage creates voluminous secondhand smoke, they toss lit cigarettes onto neighboring wood houses, and they throw the butts on the beach. Mr. Bacus pointed out that most insurance companies will pay for all or part of the Narc -anon program whose motto is "It takes as long as it takes'. He asked that the City put a stop to this business from ruining the residentially -zoned districts. Mayor Bromberg noted that the City created a party -house ordinance when problems arose and that this may be one way of looking at the problem. He indicated that the people need to conduct themselves to the Volume 56 - Page 443 City of Newport Beach Regular Meeting October 14, 2003 INDEX same standards that everyone else is held to. He stated that, if there is any way the City can get involved, it should. Laura Dietz began speaking about Council's process for the District 2 Council Member selection (Item 17). Mayor Bromberg noted that public comments are limited to non - agenda items. L. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Ad Hoc General Plan Update Committee (GPUC). No report. Local Coastal Program Certification Committee. Mayor Bromberg noted that they received additional comments from the Coastal Commission. Newport Coast Advisory Committee (NCAC). Council Member Heffernan reported that the NCAC met on October 6. He announced that there was a Town Hall meeting to discuss the community center on September 29 at the Newport Coast Elementary School which was attended by over 100 residents. He stated that he, Council Member Nichols, and City Manager Bludau were in attendance to listen to comments. He indicated that the residents provided input regarding the community centers location, what buildings it would have and its uses, and whether the residents even want it. He stated that the ATCAC will conduct more public outreach and then possibly come back with a recommendation to Council in November. Council Member Heffernan also announced that March 1 is when the paybacks will occur per the property maintenance agreement. He reported that the Fire Chief has told him that most of the homeowner associations are at or near fuel modification zone compliance. Council Member Webb stated that he was also in attendance at the Town Hall meeting. Mariners Joint Use Library Ad Hoc Steering Committee. Council Member Webb announced that they will meet on October 22 at 3:30 p.m, at the Mariners Elementary School Library. Other Committee Activities. Council Member Heffernan announced that the consultant made a recommendation to the Finance Committee relative to the selection of the insurance broker of record for property /casualty insurance (Item 18). He also announced that the City has a good plan on how it is going to proceed regarding the management of income producing property. He reported that they will soon address internet security issues related to transferring funds. M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 15. PLANNING COMMISSION AGENDA FOR OCTOBER 9, 2003. (Meeting cancelled due to lack of business). N. PUBLIC HEARING 16. TABAK RESIDENCE, 3431 OCEAN BOULEVARD, VARIANCE NO. 2003 -005 AND AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 (PA2003 -180). Volume 56 - Page 444 Planning (68) PA2003 -180 Variance 2003 -005 Modification 2002 -049 Tabak Residence/ 3431 Ocean Blvd. City of Newport Beach Regular Meeting October 14, 2003 INDEX Council Member Nichols stated that two of the houses on the bluff have been given permits and that most of the residences along the bluff are on double lots and come down to the beach. He believed that this implies that the houses should be moved to the front of the property as close as possible and, to give them buildable area, the City is allowing them to build down 30 to 35 feet into the side of the bluff. He stated that this essentially excavates the cliff. He noted that a plan had previously been approved by the Planning Commission without the huge excavation into the cliff, but was rejected by the Coastal Commission. He believed that this project does not protect the slope and the City should not be advocating it. He believed that the City should come up with a policy to save the bluff. Council Member Adams stated that he is unsure how this deals with the variance application because there is nothing in the public hearing notice that deals with a bluff policy. He clarified for Council Member Nichols that variances deal with building height and modifications deal with setbacks. Council Member Nichols believed that the house that was originally passed by the City should be reinstituted and brought back to the Coastal Commission. Mayor Bromberg noted that Council Member Nichols' concern is not before the City Council tonight and they do not have that jurisdiction. He confirmed that the variance was denied but the modification was approved. Council Member Heffernan indicated that he called this item up for a different reason than Council Member Nichols, and reported that his reason has been solved. He indicated that he wanted to find out why there is a different set of findings for a modification versus a variance. He stated that this is being handled now by the Planning Commission. Senior Planner Campbell displayed an aerial photo and reported that the Planning Commission reviewed this at their last meeting. He stated that the project would remove the existing home and build a four -level home into the bluff. He reported that Council is considering a variance tonight that the Planning Commission denied. Additionally, there is a modification amendment in which the applicant is requesting additional encroachment into the required 10 -foot front vard setback. He noted that the encroachment was approved by the Planning Commission. He stated that Council has the discretion to evaluate this decision, make changes, or reverse the decision if desired. Council Member Adams stated that he was trying to compare this with the findings of the Ensign appeal (PA2003 -006) which had a similar variance request granted, but he was not able to find the findings on the City's webpage since they are not in the minutes. Assistant City Manager Wood stated that the findings used to be included in the minutes, but now they are put in a resolution. She indicated that the draft findings should have been in the staff report. Council Member Adams stated that they were not in the staff report. He asked what the difference in the findings are and received confirmation from Mr. Campbell that, in order to make the findings, it must be shown that there is exceptional or extraordinary circumstances. He further asked Volume 56 - Page 445 (68) City of Newport Beach Regular Meeting October 14, 2003 INDEX what the exceptional or extraordinary circumstances were for the Ensign variance. Mr. Campbell stated that the topography of the site was a significant factor. Further, they wanted to preserve as much of the open space at the base of the bluff by forcing the development toward the top. Council Member Adams asked if the topography of the Ensign property significantly differs from the Tabak property. Mr. Campbell stated that the topography is not necessarily different, but how they determine the grade by which they measure the height is different. He noted that the municipal code gives the Planning Department guidance and they do not use excavated surfaces. Further, it provides guidance to use retaining walls or field surfaces that were used prior to 1972. He reported that the foundations in the original retaining structures for the Ensign and Tabak residences are different and are in different positions. Council Member Heffernan stated that he met with the applicant who said that the house was designed with less intrusion into the slope and more protrusion from the slope toward the ocean. He indicated that this was taken to the Coastal Commission who turned it down because they wanted less protrusion from the slope and wanted the applicant to dig further into the slope. He stated that this is before Council tonight because the second design is now excavating more of the slope than the first design. Mr. Campbell pointed out that the original plan was approved by the Coastal Commission last year, but the applicant chose to redesign the project so the face of the project is further away from the bluff which creates an area that is above the height limit. He added that the applicant has also chosen to cut the house deeper into the bluff which decreases the front yard setback. He stated that the modification permit that was previously approved is essentially different. Council Member Nichols believed that the Coastal Commission denied the plan that was approved by the Planning Department. Mr. Campbell stated that he has a letter in the file that indicates a notice of intent by the Coastal Commission to issue a coastal development permit with the same designs that the Planning Department and Modifications Committee approved early last year. Council Member Nichols indicated that Mr. Tabak told him that he would prefer the previous house design, but it was turned down. Mr. Campbell indicated that there is not much difference between the previously approved plan and the current plan in terms of the excavation of the bluff. He clarified that there was an original plan that went before the Coastal Commission prior to the modification permit request that was previously approved last year. He clarified that it was his understanding that this plan was denied by the Coastal Commission. He clarified that the current plan is the third design, but he is unsure how the first plan has any bearing on the case tonight. Mayor Bromberg opened the public hearing. Lawrence Tabak, property owner /applicant, stated that he received an approval in concept from the City about two or three years ago which stepped down the bluff within the 24 -foot height envelope and then it went to the Coastal Commission and was denied. He indicated that he Volume 56 - Page 446 City of Newport Beach Regular Meeting October 14, 2003 INDEX sat with Coastal Commission staff to see what they would approve, he redesigned the house, it was approved by the City, and was approved by the Coastal Commission: however, he did not lay the rooms out, realized he needed more space, and needed to come back to ask for the variance and modification. Mr. Tabak reported that his neighbor two doors down, Mr. Ensign, received approval on his variance and modification for almost the same thing, but he only received approval on the modification. Council Member Webb stated that Mr. Ensign did not have any encroachments into the front yard setback above grade. He noted that Mr. Tabak's modification that was originally approved showed about 50% of the frontage having a 5 -foot encroachment. Mr. Tabak indicated that the first modification that was approved was 5 -feet above grade and this current plan has an additional 3 -feet above grade. Council Member Webb noted that this is about 2`/2 times as much encroachment into the front yard setback as was originally approved in the modification. He expressed concern about going more into the front yard setback above grade. Mr. Tabak stated that he is only wanting to bring his property 4 -feet out to line up with the neighbors to the north of him since there is a stringline there. Ile noted that all the other houses that line up with his house break the 24 -foot height envelope. He reported that there is extreme topography on his lot since there is a 45' slope which makes it more challenging to build a house. Mr. Tabak believed that staff feels that everyone will ask for a height variance if he is granted one. He asked why staff granted the variance to Mr. Ensign if they had that concern. He believed that, if he does not get the variance, it will present a hardship for his family since his neighbors will be able to look into his house since he is 4 -feet back which will make them have to draw the curtains. Further, his neighbor's house will block his view of the ocean. He indicated that his current house lines up with the neighbors but the newer house will have to be 4 -feet back from where his existing house is located. Mr. Tabak presented Council with 3 -D printouts and indicated that the City uses the stringlines and that he is only asking to come up to, and not exceed, the stringline. He reported that the public view is significantly opened by the new structure but this was not mentioned in the staff report. He noted that the variance will not have an impact on anyone's view of the beach or ocean. Mr. Tabak stated that staff liked the placement of Mr. Ensign's basement, but did not like his basement, believing this was the determining factor in granting the variance to Mr. Ensign. He noted that Mr. Ensign has a living area above his entry space because of where he is in relation to the curb height; however, he cannot build above his entry level because his home comes up higher to the curb. He pointed out that the placement of his basement was approved by the Coastal Commission after two to three years of negotiation. Council Member Nichols stated that the variance would bring him out to the stringline but would also allow him to have a room behind the garage that is 14 -feet wide. He believed that the property can be built without the change in the front yard setback. He pointed out that the height of Volume 56 - Page 447 City of Newport Beach Regular Meeting October 14, 2003 INDEX his root is lower than his neighbors. He believed that allowing the small amount of extension at the middle of the house would make it much more usable. Council Member Heffernan stated that he and Council Member Nichols called this item up. Mr. Tabak confirmed for him that he was going to call up the item anyway to ask that the denial of the variance be overturned. He also confirmed that the height variance only affects the top two floors. Council Member Heffernan noted that Mr. Tabak has the widest pad which allows him to utilize the 24 -foot minimum turning radius in his garage. Council Member Adams stated that Mr. Tabak is using the stringline argument for the top of the house, but he is violating that argument on the lower floors because he is bulging out further than the adjacent properties. He indicated that Mr. Tabak's pictures are evidence to him that Council should not grant the variance. He added that the roof of the proposed house extends beyond the roofline of the adjoining houses, it is severely bulging out at the bottom of the house, and is increasing the mass. Mr. Tabak stated that the northerly side of his home is lined up with the neighbor's house; however, there is no home on the other side of him to continue the stringline and that is the reason for the bulging out. Council Member Adams noted that Council has to find that there is exceptional or extraordinary circumstances that justify the variance, but he has not heard Mr. Tabak articulate this. Mr. Tabak emphasized that his property is the only house set back from the stringline and that it is a hardship to have a neighbor look into his house and to have their house block their view. He added that all the other houses break the 24 -foot height envelope. Council Member Adams reported that the City does not use stringlines to define the building envelope, but uses existing slope and height requirements. He indicated that Mr. Tabak is trying to get a variance from the consequences of measurement from the natural slope and, because the bottom of the house is bulged out and cuts into the bluff, it enables Mr. Tabak to build a significant amount of square footage. He stated that he couldn't see a real hardship in adhering to the building envelope. Regarding Mr. Ensign's property, he indicated that Council and the Planning Commission made a finding that there were extraordinary circumstances. Don Kazarian stated that he lives directly across from the Ensign home. He indicated that he called the Planning Department to find out why they were recommending the encroachment and the variance, and was told that Mr. Ensign's roof slopes down and about one -third of the house is below top of curb. Additionally, it was kind of a trade off since he was opening up the view. Regarding the modification, he stated that Mr. Ensign's front yard encroachment is 10 -feet but is underground. Mr. Kazarian stated that he did not object when Mr. Tabak wanted a 5- foot encroachment, but now he wants 8 -feet. Further, Mr. Tabak's project would be above grade, not underground. Hearing no further testimony, Mayor Bromberg closed the public hearing. Volume 56 - Page 448 City of Newport Beach Regular Meeting October 14, 2003 INDEX Council Member Nichols stated that stringline was only considered to be valid on structures that were over 24 -feet above the natural grade and, therefore, the lower levels were not considered as stringline parts by the Planning Commission. He believed that the Planning Commission saw the first plan, knew he could get his entire home under the 24 -foot height limit, approved that plan, and didn't think he needed the variance. He indicated that it does not change his or the public's view and meets the stringline on the back. However, he does not believe that Mr. Tabak needs the above ground structure that is 2 -feet from the setback. Council Member Adams asked if Council Member Nichols supports denial of the variance and thinks Council should overturn the Planning Commission's modification approval. Council Member Nichols agreed with regard to the center portion of the building. He believed that the height variance does not cause any damage or view blockage, and makes his house more livable. He indicated that he would deny the front yard setback. Motion by Council Member Adams to uphold the decision of the Planning Commission to deny Variance No. 2003 -005 and approve the amendment to Modification Permit No. 2002 -049 (PA2003 -180) based on the findings and conditions of approval contained within the Planning Commission resolution. Substitute motion by Council Member Webb to modify the decision of the Planning Commission to deny both Variance No. 2003 -005 and the amendment to Modification Permit No. 2002 -049 (PA2003 -180). The applicant would be required to revise the plans and maintain the structure within the 24 -foot height limit and maintain the 5 -foot front yard setback as allowed in the original Modification Permit approval. Mr. Webb indicated that the house is 7,300 square feet and he does not see why the above grade front yard setback has to be amended to get closer to the front property line. He stated that he agrees with Mr. Kazarian that, when you look along the front of the houses, Mr. Tabak is already going to stick out 5 -feet further than the other houses. He believed that the Modification Committee made a good decision. The motion carried by the following roll call vote: Ayes: Heffernan, Webb, Nichols Noes: Adams, Mayor Bromberg Abstain: None Absent: Ridgeway P. CURRENT BUSINESS 18. SELECTION OF INSURANCE BROKER OF RECORD — PROPERTY /CASUALTY INSURANCE. Volume 56 - Page 449 Broker of Record for Property /Casualty Insurance (47) City of Newport Beach Regular Meeting October 14, 2003 INDEX Council Member Heffernan reported that the Finance Committee reviewed this in detail, heard Administrative Services Director Danner's recommendation, heard from the City's insurance consultant, and recommended that Council approve staffs recommendation. Motion by Council Member Heffernan to approve the selection of Brown & Brown (formerly CalSurance) as recommended by the Council Finance Committee and the Selection Committee as the City's Broker of Record for property /casualty insurance with annual broker fees not to exceed $91,500 annually and at a guaranteed rate for three years. The motion carried by the following roll call vote: Ayes: Heffernan, Adams, Webb, Nichols, Mayor Bromberg Noes: ?done Abstain: None Absent: Ridgeway Q. MOTION FOR RECONSIDERATION - None. R. ADJOURNMENT - adjourned at 9:11 p.m to an Adjourned Regular Meeting on Tuesday, October 21, 2003 at 7:00 p.m. ttttt�tttttrr,rrr:r:r:r The agenda for the Regular Meeting was posted on October 8, 2003, at 2:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. The supplemental agenda for the Regular Meeting was posted on October 10, 2003, at 2:50 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Secretary Mayor Volume 56 - Page 450