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HomeMy WebLinkAbout01 - 11-12-03November 25, 2003 Agenda Item No. 1 CITY OF NEWPORT BEACH City Council Minutes Regular Meeting November 12, 2003 - 7:00 p.m. STUDY SESSION — Cancelled. CLOSED SESSION — 6:00 p.m. -a. ff n-krf n- x+,rrffftt,eer A. RECESSED AND RECONVENED AT 7.00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Rosansky, Ridgeway, Adams, Webb, Mayor Bromberg Absent: Nichols (excused) C. CLOSED SESSION REPORT — None. D. PLEDGE OF ALLEGIANCE — Mayor Bromberg. E. INVOCATION — Reverend Lloyd H. Sellers, Hoag Memorial Hospital, Presbyterian F. PRESENTATIONS G. H. Proclamation recognizing and thanking Dan Marcheano for his contributions to the City of Newport Beach and for malting a difference in our community. Presentation of an American flag to the City by U.S. Marine Corp Reserve Staff Sergeant Charles (Cass) Spence, .Golf Company 2nd Battalion 23rd Marines, and Retired U.S. Marine Corp Gunnery Sergeant George Tepich. Retired Gunnery Sergeant Tepich announced that the flag was flown over Camp Commando in Kuwait. MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON- DISCUSSION ITEM): Mayor Bromberg announced that, on November 20, there will be a 20th anniversary screening of "A Christmas Story" at 6:00 p.m. at the Big Newport Theater at Fashion Island. He stated that people can meet the cast and director and noted that the cost of admission is a toy valued at about $10 for Toys- for -Tots. He stated that this event is the kick off for the Marine Corp Toys- for -Tots. Volume 56 - Page 486 INDEX City of Newport Beach Regular Meeting November 12, 2003 Mayor Bromberg announced that he was appointed to Governor -elect Schwarzenegger's Water Policy Advisory Task Force. He stated that the City has a lot of resources he can draw from, noting that he will be meeting with Nancy and Jack Skinner tomorrow morning and will be working with Assistant City Manager Kiff to make sure the City has the best representation. He indicated that most of the people on the task force are from Northern California and their interest is mostly focused on drinking water. Mayor Bromberg announced that he attended the UCI medal awards ceremony last week. He reported that the award goes to people who dedicate a good portion of their life to education and to UCI. lie stated that three of the four recipients were Newport Beach residents (Marian Bergeson, and John and Elizabeth Starr). I. CONSENT CALENDAR READING OF MINUTESiORDINANCES 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 RESOLUTIONS FOR ADOPTION 3. RESOLUTIONS FOR APPLICATION OF STATE PARK BOND FUNDS. 1) Adopt Resolution No. 2003 -55 for grant funds for the Per Capita Grant Fund in the amount of $319,000; and 2) adopt Resolution No. 2003 -56 for grant funds for the Roberti- Z'Berg- Harris Urban Open Space and Recreation Grant in the amount of $196,320. 4. Removed at the request of Mayor Bromberg. 5. MARINE AVENUE BUSINESS IMPROVEMENT DISTRICT RENEWAL:. ANNUAL REPORT FOR FISCAL YEAR 2003, AND ADOPTION OF RESOLUTION OF INTENTION TO LEVY FOR FISCAL YEA$ 2004. 1) Approve Marine Avenue Business Improvement District 2003 Annual Report; and 2) adopt Resolution of Intention No. 2003 -58 and set the public hearing for December 9, 2003. 6. RESTAURANT ASSOCIATION BUSINESS IMPROVEMENT DISTRICT RENEWAL: ANNUAL REPORT FOR FISCAL YEAR 2003, AND ADOPTION OF RESOLUTION OF INTENTION TO LEVY FOR FISCAL YEAR 2004. 1) Approve Restaurant Association Business Improvement District 2003 Annual Report; and 2) adopt Resolution of Intention No. 2003 -59 and set the public hearing for December 9, 2003. Volume 56 - Page 487 INDEX Res 2003 -55 Res 2003 -56 State Park Bond Funds (62) Res 2003 -58 Marine Avenue Business Improvement District (27) Res 2003 -59 Restaurant Association Business Improvement District (27) City of Newport Beach Regular Meeting November 12, 2003 CONTRACTS AND AGREEMENTS 7. THIS ITEM LEFT BLANK INTENTIONALLY. MISCELLANEOUS ACTIONS 8. APPOINTMENT BY THE MAYOR OF COUNCIL MEMBER ROSANSKY TO THE COUNCIL/CITIZENS AD HOC COMMITTEES AND THE JOINT GOVERNMENTAL COMMITTEES PREVIOUSLY HELD BY COUNCIL MEMBER PROCTOR. Confirm the appointment of Council Member RosinAjjto the committees listed in the staff report as recommended by l9ie Mayor ll 9. APPOINTMENT TO THE ENVIRONMENTAL QUAIJTY AFFAIRS CITIZENS ADVISORY COMMITTEE (EQAC). Confirm Council Member Nichols' appointment of Sandra Haskell as the District 6 at. large representative to EQAC. 10. BUDGET AMENDMENT — ADDITION OF $94,000 TO THE CITY S CONTRIBUTION TOWARDS NEWPORT HARBOR HIGH SCHOOL'S SWIMMING POOL REFURBISHMENTS PROJECT. Approve a budget amendment (BA -014) increasing the Newport Harbor High School Swimming Pool project account (7011- C5100716) by $94,000 from General Fund unappropriated reserves. 11. Removed at the request of Council Member Rosansky. S17. Removed at the request of an audience member. Motion bm Mayor Pro Tern Rid¢ewav to approve the Consent Calendar, except for those items removed (1, 4, 11 and S17). The motion carried by the following roll call vote: Ayes: .Heffernan, Rosansky, Ridgeway, Adams, Webb, Mayor Bromberg Noes: None Abstain: None Absent-.. Nichols J. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES_'OF THE ADJOURNED REGULAR MEETING OF OCTOBER 21, 2003 AND THE ADJOURNED REGULAR AND REGULAR MEETING OF OCTOBER 28, 2003. Council Member Heffernan apologized to Mr. Hildreth, stating that Mr. Hildreth's comments are privileged according to the City Attorney. City Attorney Burnham reported that there is a provision in the Civil Code that establishes a privilege for most communications made during proceedings that are required to be held by law, such as trials, depositions, council and committee meetings, etc. He stated that he is not sure of the parameters for "privilege" but the privilege that is being Volume 56 - Page 488 INDEX Council/Citizens Ad Hoc Committees & Joint Governmental Committees Appointment (24) EQAC Appointment (24) BA -014 NHHS Swimming Pool Refurbishment (40/78) City of Newport Beach Regular Meeting November 12, 2003 discussed is a privilege to say what you want to say without fear of being held responsible for damages. Jim Hildreth referenced the October 28, 2003 regular meeting minutes, volume 56, page 472, and took issue that what was said has been shortened down. He noted that Council Member Heffernan said a lot more and Mayor Bromberg said more than just the one sentence on page 473. He believed that it is a requirement that the minutes reflect what was actually said during the Council meetings. He stated that this should be revisited and believed that the shortened minutes mean nothing. He referenced page 474 and took issue that he was given "one sentence for five minutes of conversation. Motion by Mavor Pro Tern Ridgeway to waive reading of subject minutes, approve as written and order filed. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Webb, Mayor Bromberg Noes: None Abstain: Adams Absent: Nichols 4. RESOLUTION NO. 2003 -57 TO ESTABLISH THE SANTA ANA RIVER CROSSING (SARX) AD HOC COMMITTEE. Mayor Bromberg stated that people may recognize this as the 1901 Street Bridge and that this is the first time the City has publicly supported building a bridge over 19th Street near the Huntington Beach, Costa Mesa, and Newport Beach border to alleviate traffic on Coast Highway. He noted that Costa Mesa does not ;want this to happen. Mayor Bromberg took issue with last Sunday's editorial in the Daily Pilot which referred to Newport Beach as a selfish bully on this issue. He believed that this was an irresponsible editorial and is tabloid journal .. He stated'that a community newspaper has no business making iseaeapersonal.. Jim Hildreth` took issue with Mayor Bromberg complaining about a newspaper taking a personal jab, compared to the way he has been treated by Council. Mayor Bromberg believed that Mr. Hildreth is treated in the,same manner that he treats others. Motion. v Mayor Pro Tern Ridgeway to adopt Resolution No. 2003- 57 establishing the City Council Ad Hoc Committee for the Santa Ana River Crossing (SARX) and confirm the Mayor's appointment of Mayor Pro Tem Ridgeway and Council Members Rosansky and Webb to serve on the committee. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Mayor Bromberg Volume 56 - Page 489 INDEX Res 2003 -57 SARX Ad Hoc Committee (24) City of Newport Beach Regular Meeting November 12, 2003 Noes: None Abstain: None Absent: Nichols 11. NOTICE OF VIOLATION (MS4 PERMIT) — CITY S RESPONSE TO THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SANTA ANA REGION. Council Member Rosansky stated that the area that the Board questioned compliance with is within his district, but believed that, the City is doing an excellent job in trying to alleviate the storm drain runoff problem. He reported that he has seen a Code Enforcement Officer in his area writing tickets, but believed that a lot of the.proble'= come from contractors. He stated that he looks forward to the area - tieing as close to 100% in compliance as possible. He indicated that the Citq'inay need to do more community outreach and notify :contractors of the restrictions when they pull permits. He complimented Assistant City Manager Kiff and the City employees for handling this problem. Mayor Pro Tem Ridgeway stated that a Calt.ram drain pipe goes into the Santa Ana River and, because of what happened in Huntington Beach in 1999, the Board feels the drain could be contributing to the problem. He stated that the City has been equally aggressive with its best management practices (BMPs). He reported that the City is monitoring the water, there is low -flow during the off season, and the City is being as aggressive as it can be short ofdiverting the water.' ater He reported that the City is sending out doggy bag education information and conducting daily street sweeping.,-He believed that the City is leading the way with regard to trying to maintain the non - contamination of the near shore waters. Mayor Bromberg stated thathe went to a seminar hosted by the County on water quality issues. He noted. that the County representative said 1. that they are still trying to catch up to Newport Beach because there is no city iii.. Orange County zthat is so far ahead of the game. He emphasized, that the City takes water quality issues very seriously and noted that $5 million was put into the budget for this. Dolores Otting;.Newport Beach, referenced page 3 of Attachment A and stated that she'Aid not see anything in the City's letter that discusses the restaurant along Coast Highway and the City's irrigation of the 4" park'iJ*g Seashore Drive. Noting that she knows that the City is doing a lot, slie'indicated that she has noticed that many of the City parks and mediane"'have runoff due to over - irrigation. Ms. Otting indicated that Council Member Adams mentioned that his neighbor received a citation because they paid someone to wash their car and noted that he requested that this issue be brought back at a study session. She believed that it would be a good idea to have a study session regarding code enforcement of water issues. Council Member Heffernan stated that, since the City knows what the rules are, ten violations should be listed on the household bills. City Volume 56 - Page 490 INDEX MS4 Permit/ Water Quality Control Board (51) City of Newport Beach Regular Meeting November 12, 2003 INDEX Manager Bludau stated that they know what the current rules are, but they change from year -to -year and the restrictions get tighter. He indicated that code enforcement is starting with education rather than coming down hard, unless they really need to write citations immediately. Jim Hildreth stated that he does not see any citations to Edison. He noted that Edison has to clean out the underground vaults and the City has a requirement for the company to dump water straight into the sewer system and waterways. He indicated that he is not sure if the violations are retaliatory for a city not agreeing to a bridge /continualon of 19th Street. He stated that Edison has a lot of money and believed they cause the City a great deal of financial grief. He, ind"ted that water quality and the vaults should be looked into Robert Walchl, Corona del Mar, stated that contractors oftentimes wash . their concrete buckets into the gutters and streets. He'beheved that a person should sign that they understand the laws when they pull a permit. He added that Corona del Mar also has problems with construction dust and believed that the Police Department does not enforce the environmental laws regarding dust Mayor Pro Tem Ridgeway reported that permits state the rules and contractors do sign an agreement that they will not pollute the streets. He stated that contractors are notified and are fined if caught. Regarding Items 4 and 9 of the letter to the Board, Mayor Pro Tem Ridgeway announced that the City finished the' dog dispensers on August 29, 2003, has tuned up the sprinkler system in common areas and City parks, and is working with the Irvine Ranch Water District (IRWD) to test new evapotranspiration (ET) controllers. Motion by Mavor Pro Tem Ridkewav to authorize the City Manager to sign the letter to the Regional Board. Council Member Webb announced that people can call Code Enforcement at 644 -3215 or police dispatch if they see things are going down the guttei. The motion carried by the following roll call vote: Ayes: Hefferan, Rosansky, Ridgeway, Adams, Webb, Mayor ;:,,$mmberg Noes. None Abstain' None Absent: Nichols Mayor Bromberg stated that water quality has grown and that much of it is due to Assistant City Manager Kiff and the Coastal/Bay Water Quality Advisory Committee. He noted that Mayor Pro Tem Ridgeway and Council Member Webb currently sit on the committee. He asked that, at the next agenda, an item be brought before Council to consider adding a third Council Member to the committee. He stated that, at Volume 56 - Page 491 City of Newport Beach Regular Meeting November 12, 2003 some point, he would also like to see that the Council Members rotate on the committee every two or three years so Council Members have the opportunity to sit on the committee for at least two years. S17. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING PROCEDURES FOR ISSUANCE OF A SPECIAL CIRCUMSTANCE VARIANCE, Mayor Pro Tem Ridgeway announced that he will be recusing himself because Andrew Goetz did the design work on his house. City Attorney Burnham stated that staff received information that a local architect submitted false surveys and building permit applications for about 32 homes in Newport Beach. He reported that the City hae,•done some administrative reviews and the Police Department has conducted a criminal investigation. He stated that the surveys :.contained altered. elevations that made it appear that the lots were higher than they really were which resulted in the homes exceeding the City's height limit'. established in the zoning code. Building Director Elbettar utilized a PowerPoint presentation and reported that the architect was involved in 32 projects within the last three years. He noted that, of the 32 projects, construction wad completed on 12 of them and the buildings are now occupied; 13 projects are under construction; and seven are currently b4lan review an .no permits have been issued. He reported that, of the p projects under construction, atop orders were issued on eleven of them. However, since one of the projects was in the early stage, they revised and submitted new drawings, it was approved, and the'stop, work order was lifted. He noted that this leaves ten projects that are ' under constritetion and are currently stopped. Mr. Elbettar displayed' photos of projects to show various levels of completion and noted that most of the projects are single - family dwellings. Council__ Member Rosansky asked if Mr Elbettar can tell how much of a height problem each 4'the projects are undergoing. Mr. Elbettar stated that they really do n' k know because the owner needs to have the surveyor shoot .the building as -built to determine how high it is. He believed that the height limit is exceeded anywhere from three to four inches and two feet. In response to Council Member Heffernan s question, City Attorney Burnham believed that the height for the projects exceed the limit by 10kor less. Planning,Director Temple reported that they have been conducting an audit, _4ong with the Building Department, and that the principal violation of the zoning code is height which ranges from 4 to 22 inches for a 24 foot height limit. She stated that all but one of the projects has a 24 foot height limit, but the multi - family project has a higher height limit. Mr. Elbettar noted that the extent of construction ranges from almost completed buildings to buildings covered only in plaster and stucco. He stated that some of the projects are in the foundation stage, but one project has not been demolished yet even though the permit has been Volume 56 - Page 492 INDEX Ord 2003 -16 Special Circumstance Variance (26) City of Newport Beach Regular Meeting November 12, 2003 issued. INDEX Mr. Burnham reported that, if a person wants to seek a normal variance, evidence needs to be presented to the Planning Commission or City Council that supports the series of findings, including that the property has unusual shape, size, topography, and location; that granting the variance is essential to preserve a property right; and granting a variance would not constitute a special privilege. He stated that they do not think any of these projects would qualify for a normal variance. He noted that, since there were a number of properties that are under construction and stop work notices were issued, it was important to bring for6vard alternatives. He indicated that the first option was to'require ail properties to conform to the zoning code; however, it may be difficult to secure court orders to require a property owner who has constructed and lived in the home for a substantial time and was without fault to rye their residence to conform to the height limit. He stated that they are proposing that properties conform to the zoning;code if feasible and that a special process be created for the projects that are completed or so far along in construction that conforming to the zoning code is not feasible'.' Mr. Burnham reported that the ordinance would authorize. the Planning Director to grant a special circumstance variance that only applies to homes that are complete or virtually complete. He reported that, if the home is in the plan check stage, they need to redesign it; and if the home is in the foundation stage, they will need to redesign it and present plans that conform to the City's zoning code: He stated that the special variance can be granted by the Planning Director only if it is not feasible to conform the structure to the zoning code. .He noted that "feasible" is defined to mean that there will be no structural alteration unless the Planning Director determines tbat a structural alteration would not really impact the remaining structure.so that the alteration or replacement of the structural member would be in the vicinity where the height violation occurred. Mr. Burnham stated that the process for granting the variance includes that the Planning Director set a hearing date. He indicated that they expect that the Planning Director will give at least ten days notice for the hearing, but the ordinance does not contain a timeframe. He added that notices will be given td%wners within 300 feet of the affected residents, the hearing is limited to the issue of feasibility, there will be a time limit ou testimony. and the Planning Director's decision will be final. .t11) MayoiBm>ayberg asked how the City found out about this. Mr. Burnham emphasized that there is an ongoing police investigation so they are trying to jusVTocus on the ordinance and highlight the problems as they understand it. Mr. Elbettar stated that the Planning Department asked the Building Department to look at inconsistent elevations on one project since they had several different sealed and signed survey documents for that project. He reported that, when the surveyor was contacted, he told them that the signature on the document was not his. He stated that he then consulted with the City Attorney's office. Ms. Temple added that the project was just submitted into plan check and they received early survey information that was different than what was submitted with the building Volume 56 - Page 493 City of Newport Beach Regular Meeting November 12, 2003 INDEX permit uuormation. She reported that the zoning code does provide a process for staff to establish grade for the purpose of measuring height for excavated lots. She stated that the inconsistencies in the data were so dramatic that they felt they needed assistance from the Building Department and a Public Works Department surveyor. Mayor Bromberg stated that another question is whether this is something that should've been caught earlier. Ms. Temple reported that all of the plans with survey information have an original seal and signature on the survey data, similar to the type of certification they would receive from the architect and civil engineer. She stated that staff relies on the seals and liabilities that all professionals have that are associated with their state certifications to guarantee the eorreciness of the information. Mr. Elbettar added that they allow, ii certain level of trust otherwise they cannot perform their functions. Further, the Mate Department of Consumer Affairs regulates licensing, and professional conduct and standards. He assured everyone that the City has met ita standard of care. Mr. Burnham reported that the ordinance requires that, as .a condition to granting the variance, the owner record a covenant that would make it clear that the home was subject to a special circumstance variance, creates an obligation to bring the structure into conformance iii the future if the Planning Director determined it was feasible to do so during a subsequent remodel application, and requires the property owner to defend and indemnify the City with respect to any loss claim. Noting that the decision of the Planning Director is final, Council Member Adams asked if 'conducting an appeal was considered. Mr. Burnham stated that they considered it, but thought the criteria was fairly narrow. He noted that it is their intent to retain someone to assist the Planning Director so they are not relying exclusively on the information provided by an applicant. He added that they were trying to establish an expeditious procedure so people could begin construction or revise their plans. He indicated that there is a little subjectivity to the Planning Director's decision, but not much. He. noted that an appeal would take time, be an additional burden on the property owner, and an additional cost to staff. Council Member.lieffernan stated that these projects involved a number of plans and believed that it was strange that no homeowner picked up on this.' FurthcF4(tihe staff report indicates that none of the owners were alertea%_ this problem. Ms. Temple clarified that that the homes exceed the height limit not because the homes were not built to plan, but because the representation of existing or natural grade on the plans was inaccurately depicted. She explained that this is the point in which they measure compliance with the City's height limit. Mr. Burnham confirmed that they do not have any information that any owner had an idea that the survey data was inaccurate, forged, or false, or that the home exceeded the height limit. Further, in some cases, the structure exceeds the height limit not at the ridge line, but at a certain element of the structure. Volume 56 - Page 494 City of Newport Beach Regular Meeting November 12, 2003 INDEX Council Member Adams asked if the architect's professional liability insurance addresses this kind of problem. Mr. Burnham stated that he is not familiar with the standard provisions of a professional liability policy but he is not sure that a standard policy would cover criminal conduct. Further, he is not sure if the architect had professional liability insurance. Mayor Bromberg reported that it is illegal in California to insure against intentional acts. Council Member Rosansky asked if anyone knows what Mr. Goetzs motivation was in doing this. Mr. Burnham stated that staff assumes,that there is some advantage to an individual who can maximize the 900raiea and height of a structure. Noting that there is no indication that the homeowners had any active or passive involvement, Council Member Rosansky expressed concern that Council will be passing an ordinance on an issue that has just come to light in the last week or two. He asked if it was possible to include a provision in the variance and recorded document that basically states that the variance will be revoked if it is found in the future that any of the" homeowners did actively or passively participate in the fraud. Mr. Burnham believed that this could be included in the covenant as a requirement or a condition to the issuance of the variance. Kriss Gates stated that their home,is three inches too tall but can be remedied by taking a 2x6 and replacing it with a copper top at the ridge line. She stated that "existing grade" can mean many things and believed that the City should make this more definitive. She reported that her subcontractors were stopped and had to walk away from the project, they lost their subcontractors, they have to reschedule them, the subcontractors lost income,.they haveto gather them back up, they just put up scaffolding,,tlwy are staring materials,` ,they are within three weeks of their closing date which has not been changed, and they were part of a 1031 Exchange . that' has had ,.to.Ae turned around to be a Reverse Exchange. Ms. Gates reported that their mortgage interest is over $300Q,' the buyer's loan has gone up at least 1% which will cost them $600,000 over.the life ofa'30 year loan, they borrowed more money, and they will neWto pay the subcontractors extra to return. She stated that she lies in bed ail night trying to solve the problem and appreciates the GSty's concern. s. Gates asked that Council help them to move forward and let them getback to work. Robe'A*alchl' Corona del Mar, presented photos to Council and stated that his,mother has been sobbing over the loss of her ocean view because of one *T these houses, believing that they probably lost about $1 million in the value of their property. He stated that he was a contractor in Florida and always knew how high his buildings were. He indicated that, if there were story poles, this problem would not have happened. He asked that Council do something that is fair for those who are being victimized by excessively high construction. He believed that the City allows the mega -rich to get away with anything they want. He stated for the record that he is going to do whatever he wants and, if their neighbor builds the house that destroys their view, he will build a four Volume 56 - Page 495 City of Newport Beach Regular Meeting November 12, 2003 INDEX story house and the City can approve a variance for him. He indicated that these properties are building from the original height or bringing in fill to raise the grade. He believed that the properties need to be individually reviewed, especially if they are destroying views. He stated that his next door neighbor brought a lawsuit against the owners of 202 Fernleaf months ago and that this issue has not just popped up. Mayor Bromberg stated that the City will be looking at each property individually and considering everyone. Doug Cianfrocca stated that his property is about 85% complete. He indicated that he appreciates Ms. Temple and Mr. Elbettar for advising him as to where and what went wrong. He reported that he purchased his property in August 2002 from an individual who had the plans drawn up from the architect, he never met the architect until afier`the project started, the survey was conducted before he bought the property, he paid $25,000 for the plans, and then started the project. He indicated that problems arose during construction, he was shut down, and finally passed every inspection. He reported that he extended his construction loan three times and was told that his house is two inches over the height limit and ten inches over at the midpoint of the left side of the house. He stated that it would cost him an additional $60,000 to $100,000 to correct the home. He asked for'. compassion and understanding, and asked that the City look at the ten homes to see if it is feasible to make the changes.., He reported that, if it rains tonight, he will lose all the drywall since he has no roof on his house. He added that this is also costing him $350 a day in interest. Susan Hart stated that her house has been surveyed multiple times and they stopped construction four times. She noted that every time the surveyor came.out they were told they were within their 29 foot limit. She stated that they have lost.three months of construction so far and they are about 85% complete. She indicated that all the homeowners have lost so much time, the expense is enormous, and it would cost them over $500,000 to take it below 29 feet. She stated that they have all been victims, along with the City. Ms. Hart noted that she and her attorney are not aware of any lawsuit against them. Jim Hildreth stated that there is a house being constructed next to him ana .-he was ref led when he asked to look at the plans. He asked if the City '.19, at faLd for not checking the plans or if there was an error V. relativp1;io She ground level. He stated that the City is putting a lot of financial turden on the homeowners and believed they should not be held lia0e. He believed that the homeowners should have their houses built, but take everyone around them into consideration. He added that the City should allow neighbors to see plans. Bill Hanson, Corona del Mar, believed that the definition of "feasibility" relates to cost, but it is difficult to determine what feasible alterations means in terms of a specific structure. He believed that this should be better defined. He noted that all of the improvements are basically illegal at this point and correctable at a cost. He agreed that the case- Volume 56 - Page 496 City of Newport Beach Regular Meeting November 12, 2003 INDEX by -case basis is the way to go, but not relate it to a feasible alteration. Mayor Bromberg noted that every property will be looked at on a case - by -case basis and independent decisions will be made about each property. Mayor Bromberg asked whether the intent while drafting the proposed ordinance was to also compare hardship issues relative to cost. Mr. Burnham stated that this was an initial consideration; however, after giving it some thought, the cost of the modification was discarded in order to focus on what the modification might mean to the remainder of the structure and the structural integrity. He noted that he'is noun love with the definition of "feasible ". Mr. Elbettar stated that they realize that the alterations to bring the buildings into complieneq would involve significant changes to the building. He indicated that be taigd to look at a threshold where he felt changes could be made without major impacts to the whole structure, and also looked at the inspection, sequence and schedule. He reported that he suggested to the s department heads involved that the point of no return would be when the structure passed framing inspection and the City,accepted a certain' component (i.e. plaster, drywall, or any interior or exterior finishes). He noted that changes could be made easier if the building was still in the framing stage and the City had not signed off on it He asked, once the Planning Director has made the decision to bring the structure into compliance, at what threshold does.the City want to distinguish the buildings since there are varying stages of foundation. Mr. Burnham reiterated that Mr_ Elbettar is suggesting that, if the structure has proceeded to a certain level of construction, then it would be eligible for. the variance but, if it had not, it would not be eligible. However, if the structure is eligible for the variance, then the City needs to look at the issue of feasibility.. He' believed that cost is a difficult consideration. He added that he',is not sure how conformity will be achieved without making some. structural alteration. He clarified that there is a threshold 'nf construction in which the property owner would qualify. fb the variance, but to get the variance they have to prove there is no feaAle'way to conform the structure to the height limit. 'a tr Council Member Heffernan indicated that it sounds like the property LI owners are inn9cent and that this is fraud. He believed that for these circumstances, the property owners should not have a hearing if there is a 59G Farianm i the height limit. He stated that the rainy season is not the t'ime'ro _ e standing in line for a hearing when they did not have a part in tine problem. Mr. Burnham noted that a property owner would not be e' igible for the variance unless the structure had a roof. Council Member Heffernan asked, if a variance is needed, whether there is a de minimus issue. Mr. Burnham stated that Council could endorse the concept, but he believed that it would be helpful for the property owner to receive some sort of permit or variance from the City so the structure is legitimized. Mayor Bromberg indicated that he is hearing that Council Member Heffernan wants to cut the bureaucratic red tape. Volume 56 - Page 497 City of Newport Beach Regular Meeting November 12, 2003 INDEX Council Member Adams stated that the property owner needs a variance for a number of reasons. He expressed concern that the Planning Director's decision is going to be very subjective and the decision cannot be appealed. Mr. Burnham clarified that the definition for "feasible' is not fuzzy, but he was wrestling with whether the test for feasibility is too easy since it does not require enough effort by the property owner to bring the structure into conformance. He noted that the City has a strong interest in enforcing the code and making sure that structures are in compliance with the zoning code. In response to Council Member Webb's questions, Mr. ElbeW'ir 'stated that "feasible" means that the structure is past the framing stage, the City has accepted the framing, and some of the concealed work has been done. He believed that there are six houses in the advanced stage of construction. Ms. Temple reported that they have not completed all of the survey work; however, most of the violations., are in tbe. measurement to the mid - height of the sloping' `roof. She stated that heights are exceeded between one to two inches and 10 to 20 inches at'' the midpoint. Council Member Adams asked if the City is trying to take on too much in a hurry and if Council should have a special meeting in the next week to discuss all the projects and. make a decision. Mr-.Burnham agreed that this would cut through the red tape; however, there would not be an ordinance authorizing Council to grant'a permit. He, reported that, if Council introduces the ordinance, staff can start looking at the issue before the ordinance becomes effective. ' He stated that a de minimus threshold can be established. He clarified that 8'typical ordinance needs two readings and fico emes effective in 30 days, but he believed that staff could process` variances and lift the .stop notices in advance of the effective date. He stated that this woii1abe his recommendation. Council Member Rosansky askedif,it was possible to limit the ordinance to the six homes.. Mr. Burnham stated that it can be limited to the homes that, have bees issued stop work orders. Council Member Rosansky. reiterated that the 12 homes that are occupied are not a problem tonig and, of the 13 houses under construction, seven in plan review can be'reeised and brought into compliance. He pointed out that there are ten houses under construction, but only six of them have reached the pot in which they could qualify for the variance. Lester',Edelberg, Corona del Mar, believed that Mr. Goetz did not build the houses over the height limit for his own benefit. He stated that there a far more victims than the homeowners, noting that there are at least 12 residents on Goldenrod and Fernleaf that are impacted by 202 Fernleaf and have lost considerable market value because of the house. He believed that the house is over by more than 12 inches. He stated that even if the house was to code, the neighbors would still have a problem with it. He noted that they brought this to the City's attention in March. He stated that the entire top floor took up his view. He believed that, if the 12 inches were removed from the top of the building, the property owner could not build their third or fourth story Volume 56 - Page 498 City of Newport Beach Regular Meeting November 12, 2003 INDEX which would solve the problem for the 12 residents that are affected. Todd Schooler stated that he is an architect that was retained by one of the property owners. Noting that the clock is ticking, he asked if the property owners could provide the City with a bond so they could proceed with their projects. Council Member Adams asked if the property owner would proceed without needing the variance or finishing the project as currently designed. Mr. Schooler stated that they would finish as planned if they qualify for the variance. He noted that his clients are only over by a few inches at the roof ridge. He stated that this hurts all architects in the City because now they have to prove they are worthy, even though he has been here for more than 20 years Jim Hart stated that they went through five different surveys at the request of the City and did corrections to the house three times:;;: He believed that you have to look for evidence when 12 neighbors talk about: real estate values dropping because of their home. However, he noted that real estate values have not gone up dramatically in the area. He reported that, if they had to remove the 12 inches, they would need to redesign the entire house to be in compliance with the 29 foot height limit. He indicated that his neighbor's contention that the third floor would go away if one foot is taken off is incorrect. Martin Henrickson stated that he is the developer and property owner of the two duplexes and two single - family homes at 308 Carnation. He believed that he is in compliance with the topography and is working closely with Mr. Elbettar and Ms., Temple. He noted that three of his four homes have electrical, plumbing, heating, and structural steel beams. He pointed out the beams would need to be unwelded and then get special inspections, which would 'cost him at least $200,000 per pad. Further, it is costing him $1,000 a day in principal on interest, not to mention the displaced 'contractors. Doting that Mr. Elbettar stated that people can make the adjustments' if the projects are in the framing stage, he pointed that the houses would need to be structurally engineered again, the framers would need to come back, the electrical, plumbing, and heating would need to be torn out, and then it would all need to be pat.back together. He noted that it takes twice as long to do the work again than the first time. He stated that he is willing to do whatever is needed to comply and get his job moving again. He stated that Ahe condoniiinium next to his project is the same height and that this has been Affirmed by the Planning Department and surveyors. He believes that lis measurements show that he is at the height he is suppose .to be according to the permitted plans. Ms. Temple noted that the elevation discrepancy on the grade plans were as much as three feet. Don Kazarian, Corona del Mar, stated that it is odd that, in grading and building 30 homes, no one asked where the dirt was that was supposed to be taken away. Ed Gates, property owner, indicated that they are not at the site sometimes when the graders take the dirt away or put it back in. He stated that it is the midpoint that is causing his problems and believed Volume 56 - Page 499 City of Newport Beach Regular Meeting November 12, 2003 INDEX Newport Beach is one of the only cities that look at midpoints. He indicated that the property owners put their trust in an architect and in the City. He stated that, if he had a benchmark relative to back -of -curb for grade point, he could answer all these questions as a builder. John Morgan, Newport Beach, stated that he is a perspective buyer of one of the properties and was scheduled to close tomorrow. He expressed concern relative to the covenant that continues to leave the property open -ended and always subject to feasibility. He believed that the deed restriction would vastly affect the future selling price. of the house, especially the part that discusses that the homeowner, will lAve to indemnify, defend, and hold harmless the City for a variance. He emphasized that this would be detrimental to the" value and marketability of these houses. . .. Bob Anderson, Fernleaf resident, stated that he has lost a little of his view but the people behind him have lost a lot of their view. He noted that he discussed this with someone in the Planning Department who told him that he was not interested in views. He believed that thi� Planning Director should be given a formula by Council so the views can be evaluated. He believed that a brief meeting can simplify this so people can understand it and added that the Planning Director should not have the weight as proposed in the ordinance. Mayor Bromberg agreed that Council should show compassion, but this does not mean a 100% government bail out. He stated that it is reasonable to assume that none":of the homeowners knew what was going on with the architect. He indicated that he will be supporting this, but would like to add'Council Member Heffernan's 5% de minimus suggestion He emphasized that they. need to move on this and pointed out that the City can only do so much' the property owners have a remedy against the architect if they choose to do that. He noted that the City can start moving forward before the ordinance comes back for second reading. Council Member Webb stated that the maximum heights are only over by two to three inches, but the mid - height is over by one foot. He asked if it was possible ,to have them lower it to the maximum limit and then do the waiver on the mid - height. Ms. Temple believed that the basic form of the feasibility provision gives staff sufficient latitude to look at the 'piilraects case -by -case. She stated that there are a couple of projects that `adjust the ridge but have less success with the mid - height. Howe there may be projects that cannot bring the ridge down that far. Shc believed that leaving it open with the direction to make every effort to achieve that as a guiding principal would be helpful to her. She stated that she would hate to not approve a project when it really couldn't be done any other way. Council Member Heffernan emphasized that this was outright fraud and expressed concern if the property owners had to go through six weeks of uncertainty. He believed that it is de minimus if there is less than a 5% issue. He noted that it is unsure what a deed restriction will mean to Volume 56 - Page 500 City of Newport Beach Regular Meeting November 12, 2003 INDEX the next property owner. He emphasized that the property owners should get the benefit of the doubt and believed they should be allowed to move forward unless there are structural or safety issues, or if they conspired in the action. He believed that the ordinance does not address that the people were innocent and that they should be given what they would have had if the fraud did not occur. He noted that the people residing in their houses are currently out of code, but aren't red tagged, haven't been stopped in inclement weather, or aren't losing closing and loan commitments. Council Member Adams believed that the suggestion to add a provision regarding negating the variance if the owner was found to be involved should be included in the ordinance. Mr. Burnham believed that this is a good suggestion. He asked if Council wants to continue'svith the concept of the covenant, noting that one of the speakers made `a good point about the impact of some of the provisions on the ability to sell the. property. He believed that the covenant should be recorded, but he is persuaded that the requirement that the property owner defend and.' indemnify the City could be deleted, as well as the requirement that they bring the structure into conformance sometime in the future if a future Planning Director makes a determination. However, he reported that the covenant should have provisions that -state that a special variance was granted pursuant to the ordinance and the variance would terminate if there was evidence that the property owner had knowledge of the illegal activity. Council Member Adams added that the covenant should also cover instances when the house is destroyed or demolished. City Manager Bludau stated that the priority is the six properties and believed that, by the next meeting, they could run through the process and take care of them. Mr. Burnham confirmed for, Council Member Rosansky that the ordinance also covers the 'homes. that have already been built and occupied. He notes that staff would make it a priority to look at the )iome6. that are under construction first. Council Member Rosansky stated that�e.is not sure if Council needs to address the homes that are occupied to girt Mr. Burnham stated that the ordinance can be modified so it only applies to homes that meet the criteria and are under construction tle clarified that there are six homes that are under construction that meet the criteria for granting a variance, but they are not,' if there are any feasible modifications that would cause the hom'Y'w 6onf6rm. He indicated that the other four houses will need to be . redesigned. Motion by Mayor Bromberg to introduce Ordinance No. 2003 -16; add the 5% de minimus language; include that the covenant be recorded, include language requiring that the building be brought into conformity if it were demolished or destroyed, and include language to terminate the variance if there was substantial evidence that the property owner at the time the variance was granted had knowledge of the fraudulent conduct; and pass to second reading on November 25, 2003. Volume 56 - Page 501 City of Newport Beach Regular Meeting November 12, 2003 RI // Mr. Burnham requested and received confirmation that the 5% de minimus language means that, if the structure exceeds the height limit by 5% or less, there is no feasibility determination and the special variance will be granted. Mr. Temple indicated that she could reach a decision without. the 5% de minimus regulation but with it, some of the properties will have a lesser threshold to approve the variance and would make the decision cleaner and straightforward. Council Member Heffernan asked if the people in the de minimus range would receive the variance in less than six weeks. Mr. Burnham`stated that, if Council takes action tonight, he believed that staff w�li feel comfortable reviewing the six properties, removing the stop work orders, and allowing construction to proceed with the understanding that the special variance will not be granted until the ordinance was in effem He stated that construction could continue to completion. Mr. Elli 'ftar believed that an analysis would first need to be made with the Planning. Department to determine if there is a fix and that the stop work order can be removed afterward. Council Member Heffernan asked if this could be done in less than 13 days. Mr. Elbettar reported tha`fthe Planning and Building Department staff is placing high priority in responding to the applicants. He noted that the plans were approved in one day for the owner whose plan was redrawn and revised with structural changes. Mr. Bludau stated that, if staff goes through this prooess, they will know very quickly whether it works or not, and what type of problems the ordinance cannot deal with or overcome. Mr. Burham reported that he received a call from Barry Allen today who suggested that the .ordinance contain a provision that makes it clear that the ordinance does. not trump or supercede Covenants, Conditions and Restrictions (CC &Rs) or other contractual., obligations on the part of the property ownera. He noted that he previously mentioned a hearing requirement and a ton day notice to grant the variance; however, he stated that Counail may want to shorten the noticing period to three days. He stated that, in order to satisfy due process concerns, the notice primmon is probably needed,,and added that having a noticed hearing provides additional protection to the property owners and the City. Mayor Bromberg amended his motion to include a provision that ensures that the ordinance does not trump or supercede CC &Rs or other ewer ctual obligations on the part of the property owners; and to change the bring no ticing period from ten days to three days. The amended motion carried by the following roll call vote: 41 Ayes: Heffernan, Rosansky, Adams, Webb, Mayor Bromberg Noes: None Abstain: Ridgeway Absent: Nichols Mayor Bromberg announced that he was asked to allow a gentleman from the State Department of Alcohol and Drug Programs to speak on Item 16 (Recovery Facilities and Non - Conforming Density or Intensity). Volume 56 - Page 502 City of Newport Beach Regular Meeting November 12, 2003 INDEX He stated that, although he would like to bring this person up early, does not believe he will be able to. Mayor Bromberg recessed the meeting at 9:36 p.m. and reconvened the meeting at 9:49 p.m with all members of Council present. K. PUBLIC COMMENTS Louise Fundenberg, Balboa Boulevard, stated that people throughout the City should receive tickets for blocking street sweepers and.iiot just those in the older sections of town. She noted that the Port Streets, the Heights, and Newport Coast are not posted and do not get. adequate street sweeping because they do not move their cars or are ticketed. Mayor Pro Tem Ridgeway stated that the Coastal/Bay Water Quality Advisory Committee will be discussing this issue at a future meeting. Robert Walchl, Corona del Mar, stated that he thought one of his neighbors filed a lawsuit against 202 Fearnleaf but :believed they will now be doing that. He requested that the City create. a story pole ordinance for new construction in the City. Mr. Walchl expressed concern about actions during public comments that may intimidate people from speaking on issues.. He noted that a previous Council voted to allow Council Members to rebut statements, but sometimes people may feel berated. Mr. Walchl stated tbat he walked on Grand Canal and noticed that only two houses did not have docks and assumed one of the locations belonged to Mr. Hildreth'a. He asked if Council could give him his dock so three minutes of everyone's time is not wasted every meeting Mayor Bromberg reported that Mr. Hildreth does not own a house, his mother has an interest in the bouse,:he lives in the back of the house, and it has a dock. He pointed out that Mr. Hildreth built a dock on the other side of the Grand Canal in front of someone else's house. Jim Hildreth, Newport Beach, believed that City records show that the location at the southwest end of the Grand Canal is a pier permitted site and that access "Was granted when the mooring was issued in 1976. He believed that not allowing access to those locations is denying rights. He indicated that a City employee said it was classified as a shore mooring prior to 1994 %' He noted that he has asked for documents that he believes ahould not have been destroyed since records for pier permitted sites ar' supposed to be maintained. He indicated that Wes Armand told him that there are no moorings in the Grand Canal and asked if the locations will be removed since there is no documentation to substantiate their existence. He stated that he will be presenting documents in the future via PowerPoint. Dolores Otting, Newport Beach, presented Council with a handout relating to the Brown Act from the League of Cities and read portions of Sections 54954.3(c) and 54954.4(c). She stated that Mr. Hildreth, as well as any one else, has the right to say what he feels is important to him Volume 56 - Page 503 City of Newport Beach Regular Meeting November 12, 2003 without verbal the line. INDEX and believed that sometimes Council crosses Mayor Bromberg noted that people can address Council on a non - agenda item during public comments for three minutes and there is no debate. He stated that people can also discuss agenda items with Council for five minutes and there may be debate. He indicated that Council's policy conforms with the Brown Act for public comments and explained that it is Council's responsibility to clarify for the public what the true facts are since people sometimes misstate the truth when they are speaking. He noted that everything Ms. Otting read was correct and assured her 'that Council follows the Brown Act. Brian Clarkson, 351h Street(FreeNewport.com, pointed out the boxes used to hold the yellow cards and believed that Section'64954.3(a) of the Brown Act states that local governments must allow the public'to address the board and Section 54953.3 states that they must not require a sign -in. He stated that he assumes that filling out a yellow card is optional since it states "please "; however, ii does not state that filling it out is optional. He asked if the yellow card ia.a violation of the Brown Act and indicated that the Brown Act is available on FreeNewport.com. Mr. Clarkson noted that he asked City Manager Bludau three times to be linked to the City's website and, on Friday he received Mr. Bludau's denial of the request. He indicated that he then requested the City's policy or guideline that determinesi. vhich website is linked. He presented Council with a copy of Mr. Bludau's reply and a copy of the City's website links, which are all private websites. Mayor Bromberg clarified that oftentimes people will ask questions during public comments and they will most likely refer the matter to staff. He agreed with Mr. Clarkson's'drderstanding about the yellow cards, explaining that they ask for'thW ards but do not require people to fill them out in order to speak. Restated that the cards are important to help transcribe- the minutes and get the names correct. City Attorney Burnham`mdicated that the language on the cards may be changed to make it dear that fillingit put is optional Mr. Burnham reported that Council adopted a moratorium on any new links to the Cify p website in November 2000 and established a Website Policy Review Committee which needs to meet and formulate a policy. He believed that the ultimate outcome is to remove some of the links. L. ORAL REPOR" FROM CITY COUNCIL ON COMMITTEE ACTIVITIES d' Ad Hoc General Plan Update Committee (GPUC) — No report. Local Coastal Program Certification Committee — No report. Newport Coast Advisory Committee — Council Member Heffernan reported that they met last week. He stated that they will be conducting more community center outreach and will make a recommendation to Council at their first meeting in January. He recommended that people attend the next two Volume 56 - Page 504 City of Newport Beach Regular Meeting November 12, 2003 NCAC meetings to provide input about the community center. He reported that they also discussed maintenance reimbursement issues, assessment debt relief, and fire zone maintenance. Mariners Joint Use Library Ad Hoc Steering Committee — Council Member Webb stated that they met today, reviewed the architectural cost estimates, and made recommendations related to bid alternatives and adjustments so they are close to budget. He indicated that they are still scheduled to open in August 2005 and the next meeting will probably be February 11, 2004. Other Committee Activities — Council Member Adams indicated that he requested that the City Clerk distribute a meeting highlight notice from the Transportation Corridor Agencies. He stated that he sits on the San Joaquin Hills Corridor Agency Board and they are considering consolidating with the Foothill Eastern Corridor. He believed that the decision will be made in January 2004. M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 12. PLANNING COMMISSION AGENDA FOR NOVEMBER 6, 2003. Planning Director Temple reported that the item regarding the mapped land use designation for a single property in Lido !Marina Village was recommended for approval and will be before Council at the next meeting. Regarding Item 4 (1807 Irvine Avenue), Ms. Temple reported that the Planning Commission upheld the Modification Committee decision and denied the request Regarding Item 5 (amendment to Chapter 20.93), Ms. Temple noted that this is a modification to the modi5cation permit procedures, findings, and ..guiding principals. She 'stated that the Planning Commission recommended that tbe.item go before Council and noted that it will be on the next Council agenda. Mayor Pro Tem Ridgeway indicated that the vote states 5 ayes and 3 noes. Ms. Temple stated that the vote was supposed to be 5 ayes and 2 noes. N. PUBLIC HEARING 13. TABAH' :RESIDENCE, 3431 OCEAN BOULEVARD, VARIANCE NO. 200E-005 AND AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 (PA2003 -180). Council Member Heffernan noted that Council voted to deny the modification and deny the variance. However, after reading the Planning Commission minutes more carefully and seeing the discretion they used to deny the height variance and approve the front yard setback modification, he called up the item for reconsideration. He stated that the Planning Commission did a thorough job in looking at the structure, location of the lot, and its height when viewed from Volume 56 - Page 505 INDEX Planning (68) Res 2003 -60 PA2003.180 Tabak Residence/ 3431 Ocean Blvd/ Variance No. 2003 -005/ Amendment to Modification Permit No. 2002 -049 (68) City of Newport Beach Regular Meeting November 12, 2003 Inspiration Point and Ocean Boulevard. He believed that it would not be appropriate and fair to have this owner who has already done a few redesigns to further redesign the property because of a change at the Council level. Motion by Council Member Heffernan to deny the Variance and approve the Modification Permit (Planning Commission's previous action) by adopting Resolution No. 2003 -60. Mayor Bromberg opened the public hearing. Robert Walchl, Corona del Mar, stated that a couple of years ago th`e Planning Commission came before Council with an ordinance. to protect the bluffs in Corona del Mar and public views, but Council killed the bill. He believed that the building height on Ocean Boulevard should be curb height and no one should ask for anything else. He stated that every, property owner on Ocean Boulevard wants to get as much as they can with no regard for anyone who walks along the bluff and looks at the ocean. He noted that this is the only overlook that is not at sea level. He stated that he would appreciate Council denying any modification, noting that there is a public right -of -way that extends about 40 feet from Ocean Boulevard. He indicated that they can build down and it is up to Council to protect the public interest and property values Mayor Bromberg clarified that the ordinance Mr. Walchl mentioned went before Council about three years ago, Council did not kill it, but it was referred back to the Planning Commission for further review. Don Kazarian, Corona del Mar, stated that lately the City has been granting modifications on that side of Ocean Boulevard. He reported that the Ensign residence received a ten foot front yard modification which he did not object to because it was all below grade and the house would still be in line with the other houses. He stated that Mr. Tabak received a five foot set back modification that he didn't object to, but now he wants eight feet. He noted that Mr. Tabak's residence is above grade which will create a more massive roof for everyone to look at. He asked where does this stop. Hearing no further testimony, Mayor Bromberg closed the public hearing. The motionrarrried by the following roll call vote: Ayes: ri Heffernan, Ridgeway, Adams, Mayor Bromberg Noes: Webb Abstain: Rosansky Absent: Nichols 14. APPOINTMENT TO THE COASTAL/BAY WATER QUALITY CITIZENS ADVISORY COMMITTEE. Volume 56 - Page 506 INDEX Coastal/Bay Water Quality Citizens City of Newport Beach Regular Meeting November 12, 2003 Council Member Adams reported that he reviewed nine applications and believed that all of them were qualified. He stated that he interviewed three people and is recommending the appointment of Randy Seton to the committee. He encouraged those that applied to keep trying and look at other ways to serve the City. Mayor Bromberg reported that Mr. Seton attends all the committee meetings and is with CoastKeepers. Motion by Mayor Pro Tern RidYe_way to confirm the appointment of Randy Seton as Council Member Adams' appointment" to the Coastal/Bay Water Quality Citizens Advisory Committee. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Mayor Bromberg Noes: None Abstain: None Absent: Nichols P. CURRENT BUSINESS f. 15. ORDINANCE ON CABLE COMMUNICATIONS FRANCHISES. Assistant City Manager Kiff utilized a PowerPoini presentation and reported that the existing franchise ordinances and agreements were approved in 1966 _.and then amended several; times. He noted that changes in federal `law have preempted what is in the ordinance and agreements. ..He stated that the franchise agreements with Adelphia and Cox expire in January 2004. '. He explained that a franchise ordinance is a document that is not specific to any cable company but tries to reflect the regulatory environment that the City is in to describe the practices that auycable provider must follow when doing business in L66 City. He further explained that a franchise agreement is a separate document between the City `and a specific cable company that permits the compariy,to use the public rights -of -way to operate a cable system, and sets adequate compensation to the public for the private use of vublic land. 'ai, Mi•.;- Kiff reported that Council formed the Telecommunications Committee m November 2000 which was charged with updating the sr „p municip�l code relating to cable communications, wireless telecommunications, general right -of -way issues; adopting a policy on the use of City facilities for wireless telecommunication sites; revising/ renewing franchise agreements with the existing cable providers; and educating the public about what the City can and cannot do relating to cable television and internet service. He noted that the Telecommunications Committee consists of Council Member Heffernan as the chair, Council Member Nichols, Don Boortz, and Leslie Daigle. Volume 56 - Page 507 INDEX Advisory Committee Appointment (24) Cable Communications Franchises (42) City of Newport Beach Regular Meeting November 12, 2003 INDEX Mr. Kiff reported that the market controls the cable rates, not cities; however, cities do regulate the low tier of channels (channels 2 to 13). He stated that Congress deregulated all other tiers effective March 1999. He emphasized that cable television in the City is not a government controlled monopoly, the franchise agreements are nonexclusive, the cable companies own the cable in the ground, and denial of a renewal is extremely difficult, rare, and expensive. He added that internet service is not regulated by the Federal Communications Commission (FCC) or cities. Mr. Kiff stated that most cities don't have two cable companies, but noted that the companies don't directly compete. He added that the City is also dealing with Adelphia filing Chapter 11 in June 2002. He displayed a map of the territories and reported that' Adelphis'oovers about two - thirds of the City and Cox Cable covers one - third. Mr. Kiff reported that the cable communications ordinance is before Council for its first reading tonight, the Telecommunications Committee' completed the wireless telecommunications ordinances they will work on the City's right -of -way ordinance next; Council adopted'U, policy on the use of City facilities for wireless telecommunication sites; they are working on the renewal of the franchise agreements which includes completing a community needs assessment, completing a statement of minimum goals, and undergoing discussions with Adelphia and Cox; and they will continue to educate the public. He pointed out the slide that discusses what is in the proposed 45 -page ordinance, He stated that the City staff team includes Bill Marticorena of Rutan' & Tucker, Assistant City Attorney Clauson, Public Information Officer Jackson, and himself who met with Cox and Adelphia. in October after providing the ordinance to them in advance He stated that they amended the proposed ordinance to reflect some of their comments. He indicated that the version before Council did not receive any formal comments from Cox but did receive comments from Adelphia via a letter. He noted that Rutan.& Tucker have used a similar ordinance in many cities and stated that it reflects their understanding of federal laws. Mr. Mf reported that the ordinance can go through first reading tonight, it can l amended if necessary, the second reading and adoption can occur on November 25, and will go into effect 30 days after adoption. He stated that )1ey can then focus on the franchise agreement renewals based`on the,Aopted ordinance and the statement of minimum goals, ,.., have ipublic�'hearings with the Telecommunications Committee, and completthe agreements hopefully in spring 2004. He noted that the Telecommunications Committee's last task will be the right -of -way ordinance. He announced that people can get more information by logging onto www.fcc.eov, www.adelphia.net, www.cox.com, or www.city.newnort- beach.ca.us; or they can call or email the City's opinion line at 644 -3001 or opinions @city.newport- beach.ca.us. Phil Urbina, Adelphia Communications Government Affairs Manager, noted that they submitted a letter discussing their concerns. He believed that many of the items in the ordinance would be more properly Volume 56 - Page 508 City of Newport Beach Regular Meeting November 12, 2003 INDEX negotiated within the franchise agreement renewal process. He stated that their main concern is the time it will take Adelphia and staff to do many of the things requested. He indicated that, in order to dig a trench to replace cables, they currently apply for a permit; however, through the ordinance, they will need to go through an environmental review which would lengthen the process. He believed that the proposed ordinance would discourage any cable operator from rebuilding its system until it absolutely has to. He stated that, if they are to invest money, they will invest it where they see a return as quickly as possible. He added that the ordinance will also increase the cost for them to do business which would have an impact on rates. He noted t4it23% gf the customers who have video service statewide now x a&. a direct broadcast service, i.e. DishTV or DirectTV, and they are figliting this competition every day. Dolores Otting, Newport Beach, provided a copy. of a•handout she received from Cox regarding customer rights and asked why this item was not a public hearing to introduce the ordinance because it discusses money. She noted that, if the cable companies have to go through with the ordinance, they will bill the cost to the customers. She believed that there is supposed to be a public hearing if there is a' fee increase. Further, this is an important issue. In response. to Ms. Otting's question, Mr. Kiff stated that the City will get $1.08 million. Ms. Otting stated that she has a Cox cable box in her front yard and believed that there are many people in the City with.these boxes on their properties. She believed that many of Adelphia's concerns are justified. Brian Clarkson, 35th Street, asked if the ordinance covers recording the Council meeting. City'Manager Bludau explained that the franchise agreement, not the ordinance, deals "with recording Council meetings. Mr. Kiff reported that the statement of minimum goals suggested that the City was interested in'a more aggressive direct broadcasting of the Council meetings with better'.cameras, some web abilities, etc. He stated that this is something that will be negotiated with the franchise agreements. Council Member Webb stated that the ordinance is lengthy and believed v w. that the City'aeeds to `look at the installation of improvements within the City's public.'-rights-of-way more carefully. He indicated that it is well covered in4'one section but another section only glosses over it, belie T4 theAwo need to be coordinated. Regarding cable boxes, the currentfordinance has a policy which stresses that it is the City's intent to haver ;v much below ground as possible and that the grantee shall coordinate with all affected property owners to locate all newly installed above ground apparatus to minimize inconvenience and disruption to residents. He believed that as much of this existing section of the ordinance be included in the proposed ordinance because no one should be able to install a green box on someone's front yard without having a say about it. City Attorney Burnham indicated that, if Council Member Webb's changes are not just typographical changes, typically the ordinance requires another fast reading. Volume 56 - Page 509 City of Newport Beach Regular Meeting November 12, 2005 INDEX Motion by Council Member Webb to continue this item to a future Council meeting. Council Member Heffernan asked why a cable company gets to cross onto private property to install a device without an easement. Mr. Marticorena stated that a cable operator is given access to public rights -of -way and utility easements that are dedicated to the City or within the control of the City through the franchise; however, he emphasized that the City does not give them the right to access private property. He stated that a cable operator that wants to access private property has to negotiate some form of temporary or �erinanent agreement with the property owner. He reported that much of tti'a property that a cable operator installs on what appears to.l e. private property, is often actually installed in public righte -of -way because easements extend beyond the road and sidewalks in'many cased.- He added that most of the equipment that a cable operator installs is actually within either a utility easement or some other right -of -way that is controlled by the City. Council Member Heffernan asked if the other cities they've worked with have the same objections about the lengthiness, cumbersome nature, etc. of the federal preemption that already occurs with the cable companies. Mr. Marticorena stated that every cable operator he dealsicith would prefer the least amount of regulation possible and t40 'each have different viewpoints about the- amount of regulation =°that they are willing to accept. He reported ;that the ordinance " "was based on a combination of a number of ordinances that Cos and Adelphia are familiar with and operating pursuan ' Oto. He stated that the proposed ordinance is being used largely in south county cities that are currently negotiating a new franchise agreement with Cox. Further, it is similar to the Moreno Valley ordinance thae.Adelphia is currently operating under. He noted that a number bf the provisions that Adelphia has specifically objected to in the letfei -comes out of an ordinance that Santa Monica is currently using. He emphasized that they have tried not to reinvent the wheel "when they created the ordinance and looked at ordinancea: That are in effect in communities that are serviced by Adelphia and Cox. Council Member Heffernan noted that Council Member Webb is proposing speci$o public works and general changes to the ordinance. Mi. Kiff confirmed that the best process would be to provide the proposed changes to Mr. Marticorena and then bring back a revised version'to Council. v{ The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Mayor Bromberg Noes: None Abstain: None Absent: Nichols Volume 56 - Page 510 City of Newport Beach Regular Meeting November 12, 2003 16. APPROVAL OF A RESOLUTION INITIATING AMENDMENTS TO THE ZONING ORDINANCE PERTAINING TO RECOVERY FACILITIES AND NON - CONFORMING DENSITY OR INTENSITY. City Attorney Burnham clarified that the resolution only initiates a process that may or may not lead to proposed zoning ordinance amendments that would be submitted to the Planning Commission and then to Council. He added that there is no draft ordinance or specific issue in mind at this point relative to recovery facilities or their nonconforming density or intensity. Dolores Otting referenced the last page of her public comments handout and stated that she did not understand what the title meant and that it would be nice if the description told people what was happening. Mr. Burnham believed that people want more to happen then what is being proposed. He reported that the agenda item did exactly what the Brown Act suggests and that, if people wanted more, they could contact staff. He indicated that he told people today that the City would be talking to the interested parties once they understood what the City's options might be before an ordinance is formulated. He emphasized that this is the first step in a process that might lead nowhere. Linda Orozco, Newport Beach; believed that initiating the process is critically needed since halfway houses are supposed. to,serve local needs; however, they advertise internationally. She stated that other cities, like Irvine, require. conditional use permits for: these types of facilities and pointed out that the current zoning code has sufficient wording that requires a conditional use permit. She noted that the facilities near her house have 50 to 60 people in it and.lioped that Council would ask themselves if this is something they'd want next door to them. She added that another, halfway house application has been submitted that would be within six doors of an existing halfway house. She noted that, since'.ilr of the residential treatment centers currently exist on the peninsula, this process will be critical for the City to initiate planning, distribution, _appropriateness for local service, and the impact of the environment and nuisances to other properties. She presented a handout to Council. Jean ,,Gloss, property manager on 18th Street, asked if the City is plannuig og rezoning to commercial. Mr. Burnham stated that there has been'no thought at this time of rezoning. He pointed out that the only tiring they will be looking at are the regulations/permits that are necessary or could be required for recovery facilities. Ms. Gross noted that the facilities are supposed to have a conditional use permit but the City is not following this code. Mr. Burnham indicated that he is not aware of any facility that was established since the use permit requirement became a part of the code. Ms. Gross asked why nothing has been done about these facilities if the City has been getting complaints over the last 10 years. She hoped that the initiation goes forward so they can have a say about where everything goes. She stated Volume 56 - Page 511 I N117 D►:/ Res 2003 -61 Recovery Facilities and Non - conforming Density or Intensity (68) City of Newport Beach Regular Meeting November 12, 2003 tnat she is trying to rent an apartment that is five doors from the facility, she has to disclose that the rehabilitation facility is there, the facility is actually a detox center, and she cannot rent out the apartment. Brian Clarkson, 35th Street, stated that he read dozens of letters from families that have used these facilities; however, he noted that people reported that trucks were delivering at all hours of the night, and they had 32 beds and 34 staff members. He pointed out that 60 people have to park somewhere and that this is over capacity. He believed that something needs to be done and that this sounds like something everyone can support. �; Michael Bacus stated that residential recovery facilities are classified by the City as "specialty hospitals'. He referenced Chapter 20.05.040' of the municipal code and believed that the definitions should be considered with this item. He expressed the opinion that the language in the proposed resolution is ambiguous and requested that "area" be changed to "district" or "zoned properties" since that is what is`referred to in the municipal code. Mr. Burnham stated that lie agrees and that the resolution should reflect "districts" instead of "areas. Gerry Marshall, Narconon, indicated that he was on the dean's list but still got involved in drugs and went to Narconon five years ago. He reported that food delivery occurs once a week, not _twice daily, and lf noted that the truck stops a ha a block away and not in the alley. He indicated that their vacuums are not industrial sized vacuums and they do not vacuum during certain hours. He stated. that Narconon is a drug rehabilitation center and they are willing to work with their neighbors and be good neighbors as they have been for the past eight years. He noted he has not heard of any complaints to Council until recently. Motion by Coun 'f Member Web to adopt Resolution No. 2003.61; and change "areas "-(o "districts ". " Mr. Burnham stated that the next steps would be to look at existing statutory and decisional laws related to recovery facilities to determine what problems the City'is facing and what impacts the facilities have on the City, determine the scope of the City's ability to regulate, meet and get input from'° the residents and representatives of the recovery community, and then decide if anything should be presented to the Planning Commission and Council. He believed that it would take about three to�four months to go before the Planning Commission who may make recommendations to Council. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Mayor Bromberg Noes: None Abstain: None Absent: Nichols Volume 56 - Page 512 INDEX City of Newport Beach Regular Meeting November 12, 2003 21 - None. R. ADJOURNMENT - at 11:10 p.m. in memory of Bobby Hatfield, member of the Righteous Brothers, and local attorney David Shores. The agenda for the Regular Meeting was posted on November 5, 2003, at 2:20 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 November 7, 2003, at 3:15 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk ar r Recording Secretary Mayor Volume 56 - Page 513 INDEX