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HomeMy WebLinkAbout05 - 11-25-2003City Council Meeting December 9, 2003 Agenda Item No. 5 CITY OF NEWPORT BEACH City Council Minutes Regular Meeting November 25, 2003 - 7:00 p.m. RAFT INDEX STUDY SESSION — Cancelled CLOSED SESSION — 6:00 p.m A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Absent: None C. CLOSED SESSION REPORT — None D. PLEDGE OF ALLEGIANCE — Council Member Adams E. INVOCATION — The Reverend Praveen Bunyan, St. James Episcopal Church F. PRESENTATIONS Taste of Newport Grant Presentations. Richard Luehrs, Newport Beach Chamber of Commerce, stated that the Chamber of Commerce puts on the Taste of Newport each September to recognize the restaurant community in Newport Beach. Mr. Luehrs introduced Cara Stephens, Public Affairs Coordinator, and together they presented checks from the Taste of Newport proceeds to several community groups. Proclamation for Jim Jennings. Mayor Bromberg presented a proclamation to Jim Jennings for all of his years of caring and sharing with the folks on Balboa Island. Mr. Jennings thanked the City for the recognition. 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 Heffernan requested and received clarification from Chief Building Inspector Hook that the City requires a minimum Class C fire rating for shingles, except in areas that interface with wildlife. • Council Member Heffernan asked if the City is addressing exterior wood Volume 56 - Page 514 City of Newport Beach Regular Meeting November 25, 2003 I. burning fireplaces that are right at the lot line. City Manager Bludau indicated that staff is looking into this and will come back to the City Council. Council Member Heffernan requested an update regarding the telecommunications ordinance. City Manager Bludau reported that it will be agendized for the December 9, 2003, City Council meeting. CONSENT CALENDAR READING OF MINUTESIORDINANCES AND RESOL UTIONS 1. Item removed from the Consent Calendar at the request of a member of the audience. 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. CONTRACTS AND AGREEMENTS 3. NEWPORT BOULEVARD/BALBOA BOULEVARD — 26TH STREET TO 16TH STREET — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3373). 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; 4) release the Faithful Performance bond 1 year after Council acceptance; and 5) authorize a contract for $77,430 with Asbury Environmental Services (AES) to install the 58 Ultra Urban Filters that were deleted from this project through Change Order No. 4. 4. FIRE STATION NO. 3 PAVEMENT RECONSTRUCTION — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3605). 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 1 year after Council acceptance. 5. OCEAN FRONT BEACH ACCESS WALKWAYS — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3378). 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 1 year after Council acceptance. 6. HARBOR VIEW NATURE PARK — MISCELLANEOUS SLOPE REPAIRS — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3567). 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 Volume 56 - Page 515 .WT1 C -3373 Newport Boulevard/ Balboa Boulevard (38) C -3605 Fire Station No. 3 Pavement Reconstruction (38) C•3378 Ocean Front Beach Access Walkways (38) C -3567 Harbor View Nature Park — Slope Repairs E 0 • City of Newport Beach Regular Meeting November 25, 2003 Materials bona 3o aays aver the lNouce of Uompletion nas oeen recoraea in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance bond 1 year after Council acceptance. 7. Item removed from the Consent Calendar at the request of a member of audience. 8. Item removed from the Consent Calendar at the request of Council Member Rosansky. 9. Item removed from the Consent Calendar at the request of Council Member Heffernan. MISCELLANEOUS ACTIONS 10. Item removed from the Consent Calendar at the request of Council Member Rosansky. Motion by Mayor Pro Tem Ridgeway to approve the Consent Calendar, except for those items removed (1, 7, 8, 9 and 10). The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: None J. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE REGULAR MEETING OF NOVEMBER 12, 2003. Jim Hildreth referenced page 489 of the November 12, 2003, minutes and disagreed with the City accepting the minutes of October 28, 2003, noting that a correction he requested wasn't made. He further noted comments made by Mayor Bromberg that were not included in the minutes of November 12, 2003. Mr. Hildreth also referenced pages 491 and 503, and stated that his comments were incorrectly recorded. Motion by Mayor 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, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: None Volume 56 - Page 516 INDEX (38) City of Newport Beach Regular Meeting November 25, 2003 7. REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 87 (BIG BALBOA ISLAND). Jim Hildreth stated that the report doesn't include information regarding aesthetics and safety, as was done for the report on Assessment District No. 78. He expressed his hope that the residents of Big Balboa Island wouldn't suffer the same consequences as a resident on Little Balboa Island did as a result of the removal of the streetlights. He stated that if a resident doesn't grant an easement, safety should still be a requirement. Mr. Hildreth added that financial aide should be offered if a resident cannot afford to have the work done. He stated that the residents of Big Balboa Island should be made aware of all that is involved with the undergrounding of utilities. Motion by Mavor Pro Tem Ridgeway to 1) establish Assessment District No. 87, Account No. 7401- C5200742; 2) approve a budget amendment (BA -015) in the amount of $287,212 from Assessment District Fund Balance, Account No. 400 -3605 to Account No. 7401 - 05200742; 3) authorize the Mayor to execute a Professional Services Agreement with Harris & Associates in an amount not to exceed $98,000 for assessment engineering and district coordination services; 4) authorize the Mayor to execute a Professional Services Agreement with Bush & Associates, Inc. in an amount not to exceed $48,100 for aerial survey; and 5) authorize staff to proceed with design of underground utilities plans by remitting $51,112 to Southern California Edison and $90,000 to SBC. Council Member Webb pointed out that 61% of the residents on Big Balboa Island signed a petition requesting the formation of the assessment district. Mayor Bromberg congratulated those involved with moving the process forward so quickly. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: None 8. BACK BAY SCIENCE CENTER AGREEMENT. Council Member Rosansky asked for clarification on the City's financial contribution to the project. City Attorney Burnham stated that he is recommending two changes to the agreement. The first change is that the City's obligation to front the University of California at Irvine's (UCI) share of the site improvement costs should come out of the Upper Bay Restoration Fund, and not the General Fund. Council Member Rosansky confirmed that the $100,000 advance to UCI is included in the $311,578 that is being budgeted. Additionally, it was recommended to remove the Volume 56 - Page 517 INDEX Underground Assessment District 87/ BA -015/ Big Balboa Island (40189) C- 3481(E) Back Bay Science Center (38) 0 0 Ll u City of Newport Beach Regular Meeting November 25, 2003 requirement that the Phase I construction project include the Department of Fish & Game (DFG) administrative offices. Council Member Rosansky confirmed, and requested that it be made clearer in the agreement, that the wetland demonstration area takes priority over the DFG storage facility. Additionally, per Council Member Rosansky's question, City Attorney Burnham stated that two additional agreements will be needed for the use and occupancy of the property, and the ongoing maintenance and operation. City Attorney Burnham stated that there have been discussions regarding the agreements, but that the City will not commit to spending the $311,578 until those agreements have been executed. At the request of Mayor Pro Tem Ridgeway, City Attorney Burnham explained that the funding for the project includes $1.23 million from the County, $1.2 million through the DFG and $300,000 from the American Trader Oil Spill Fund that the City has already spent on design and planning. Per Council Member Rosansky's question, City Attorney Burnham stated that funding is short by approximately $118,000 for Phase 1, and $1.5 million for the entire project. Doug Cordoff thanked the City for keeping the Back Bay area so beautiful and stated that it is appreciated by the surrounding communities. Motion by Mayor Pro Tern Ridgewav to authorize the City Manager to approve a Cooperative Agreement between the City of Newport Beach, the County of Orange and the Department of Fish and Game pertaining to the Back Bay Science Center, amended to incorporate the City Attorney's two recommendations and Council Member Rosansky's request to add the priority for the wetlands. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: None 9. PROFESSIONAL SERVICES AGREEMENT WITH ENVIRONMENTAL ENGINEERING & CONTRACTING, INC. (EEC) FOR FATS, OIL & GREASE (FOG) CHARACTERIZATION. Council Member Heffernan asked what the City is expecting to learn from the study and what action might be taken as a result of it. Assistant City Manager Kiff stated that the City is under special waste discharge requirements issued by the Regional Water Quality Control Board, and that a part of the plan includes characterizing exactly where Newport Beach's sources of grease come from. In response to Council Member Heffernan's question, Assistant City Manager Kiff explained further that Volume 56 - Page 518 INDEX C -3672 BA -016 Fats, Oil & Grease (FOG) Characterization (38140) City of Newport Beach Regular Meeting November 25, 2003 it will deal with what's in the collection system and not what's in the treatment system. Assistant City Manager Kiff stated that the study could result in an ordinance requiring additional grease control measures throughout the community. Mayor Pro Tem Ridgeway added that the study will provide information on the more than 300 restaurants in the community and that currently, adequate information on the restaurants is not available and annual inspections are not being conducted. The study will help with both. Jim Hildreth stated that businesses should be allowed to thrive in the City and not be reprimanded for what they're doing. Doug Cordoff stated that the problem with grease and the restaurants is a serious one. He thanked the City for addressing the problem. Motion by Mayor Pro Tem Ridgewav to 1) approve Professional Services Agreement with EEC for the contract price of $47,000 and authorize the Mayor and the City Clerk to execute the agreement; and 2) approve a budget amendment (BA -016) appropriating $47,000 from the unappropriated balance of the Wastewater Enterprise Fund to Account No. 7531- C5600691. Mayor Pro Tem Ridgeway stated that most of the restaurants in the City are very cooperative in their efforts to lower grease content. Council Member Nichols asked how effective grease traps are. Assistant City Manager Kiff stated that they are exceptionally effective, and that grease interceptors are the most effective device when they are maintained properly. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: None 10. DRAFT EIR FOR PACIFIC CITY PROJECT, PACIFIC COAST HIGHWAY, HUNTINGTON BEACH. Council Member Rosansky stated that he's glad that the City is taking a position on the Environmental Impact Report (EIR) because there will be significant impacts on Newport Beach and Coast Highway from the project being contemplated by the City of Huntington Beach. Motion by Mavor Bromberg to approve and authorize the Mayor to send comments to the City of Huntington Beach, as modified to include an acknowledgement that the project was reviewed by the Environmental Quality Affairs Committee (EQAC). Volume 56 - Page 519 Pacific City Project (68) 0 City of Newport Beach Regular Meeting November 25, 2003 INDEX Mayor Pro Tem Ridgeway noted that the letter requests that the City of Huntington Beach also analyze the project as if the 19th Street Bridge were not being built, particularly since they oppose the bridge. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor K. PUBLIC COMMENTS Jayne Jones, Equestrian Coalition of Orange County Board and Back Bay Equestrians, stated that offensive signs have been placed in the Santa Ana Heights area regarding horse manure on the trails. She stated that studies have shown that horse manure does not adversely affect water quality. Ms. Jones stated that when the City of Newport Beach annexed the Santa Ana Heights area, the residents were told that nothing would change in their neighborhood. She objected to the signs and the fines that might be imposed, and offered to work with the City on the issue. • Sheila Ferguson, Back Bay Equestrians, also expressed her concern for the regulations and fines associated with the signs. She asked that the City reconsider the manure issue. She stated that horseback riding is one of the last non - regulated activities that children can participate in. She also cited the issue of safely picking up the manure along Irvine Boulevard. Ms. Ferguson also offered to work with the City on the issue. At the request of Mayor Bromberg, Assistant City Manager Kiff explained that the Newport Beach Municipal Code prohibits animal feces from remaining on public property and it was decided that signage in the newly- annexed Santa Ana Heights area would be beneficial in informing the public. Mayor Pro Tem Ridgeway also noted that the City is regulated by the National Pollution Discharge Elimination System (NPDES). Council Member Webb asked if the County of Orange has regulations in place regarding the same issue. Assistant City Manager Kiff stated that he would look into it. Council Member Adams requested that the item be agendized for a future Study Session. • Marianne Orr, representing residents of the Master Circle in Costa Mesa, stated that the residents are concerned about the possible annexation of the Santa Ana Country Club and their area not being included. She asked for a contact in the City to work with. . Jim Hildreth stated that his issue involves access rights to the Grand Volume 56 - Page 520 Bromberg Noes: None Abstain: None Absent: None K. PUBLIC COMMENTS Jayne Jones, Equestrian Coalition of Orange County Board and Back Bay Equestrians, stated that offensive signs have been placed in the Santa Ana Heights area regarding horse manure on the trails. She stated that studies have shown that horse manure does not adversely affect water quality. Ms. Jones stated that when the City of Newport Beach annexed the Santa Ana Heights area, the residents were told that nothing would change in their neighborhood. She objected to the signs and the fines that might be imposed, and offered to work with the City on the issue. • Sheila Ferguson, Back Bay Equestrians, also expressed her concern for the regulations and fines associated with the signs. She asked that the City reconsider the manure issue. She stated that horseback riding is one of the last non - regulated activities that children can participate in. She also cited the issue of safely picking up the manure along Irvine Boulevard. Ms. Ferguson also offered to work with the City on the issue. At the request of Mayor Bromberg, Assistant City Manager Kiff explained that the Newport Beach Municipal Code prohibits animal feces from remaining on public property and it was decided that signage in the newly- annexed Santa Ana Heights area would be beneficial in informing the public. Mayor Pro Tem Ridgeway also noted that the City is regulated by the National Pollution Discharge Elimination System (NPDES). Council Member Webb asked if the County of Orange has regulations in place regarding the same issue. Assistant City Manager Kiff stated that he would look into it. Council Member Adams requested that the item be agendized for a future Study Session. • Marianne Orr, representing residents of the Master Circle in Costa Mesa, stated that the residents are concerned about the possible annexation of the Santa Ana Country Club and their area not being included. She asked for a contact in the City to work with. . Jim Hildreth stated that his issue involves access rights to the Grand Volume 56 - Page 520 City of Newport Beach Regular Meeting November 25, 2003 INDEX Canal. He also expressed his concern for the vaults that are put in as a part of underground utility projects, and stated that the City has to realize that contaminants have been introduced into the Grand Canal. He added that the Edison Company is actually dumping the contaminants that are in the vaults into the waterways. • Jim Walker, Executive Director of Stop Tobacco Abuse of Minors Pronto (STAMP), asked that the City Council consider making the beaches in the City smoke free. He cited the dangers of tobacco smoke and noted that other cities have enacted similar ordinances. • Dolores Otting stated that the playground equipment at San Miguel Park was removed in September and hasn't been replaced. She expressed her concern for the project taking so long. Additionally, Ms. Otting stated the Mayor incorrectly calls some items on the agenda public hearings, when they are not. • Linda Nicholes, Earth Resources, asked that the City Council consider making the beaches in the City smoke free. She stated that the beaches are an asset to the City and noted that cigarette butts are not biodegradable. • Jane Brown, Southern California Edison, assured everyone that Edison is not dumping pollutants into the water system. • Doug Cordoff stated that the issue of cigarettes on the beach is about • population density versus quality of life. He stated that a smoking ban on the beaches is inevitable, but that enforcement of cigarette butts being discarded on the beach is difficult. He suggested that a ban be introduced gradually and that the property rights of the public be considered. • Nonie Melane, Youth Program Coordinator Earth Resources Foundation, stated that a smoking ban on piers and beaches is coming, and listed the cities in California that have smoking bans in parks and recreational areas. She asked that the City Council agendize the item for consideration. She stated that there were 165 participants for a recent beach clean -up at the Newport Beach Pier. She listed the groups involved, and noted that many of them were youth groups. • Ellie Urbenbeck, President of the Newport Harbor High School Earth Resources Foundation Club, Stacy Desbro, Vice President, and Amy Thomas, club member, introduced themselves. Ms. Urbenbeck stated that their club participated in the clean -up at the Newport Pier on November 15, 2003. She stated that approximately 10,000 cigarette butts were collected, that something needs to be done and that the club supports a smoking ban on the beaches and piers. Ms. Desbro stated that the cigarette butts were collected in a two -hour period and the pollution of the beaches needs to be stopped. Ms. Thomas expressed her surprise that the beach clean -up involved so many cigarette butts. • Laura Dietz invited everyone to the December 14, 2003, Corona del Mar Christmas Walk. She stated that it's a marvelous opportunity for the Volume 56 - Page 521 City of Newport Beach Regular Meeting November 25, 2003 . community to enjoy family activities, food and camaraderie. L. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report — Ad Hoc General Plan Update Committee (GPUC). Council Member Adams announced that the next GPUC meeting is scheduled for December 8, 2003. Status report — Local Coastal Program Certification Committee. Mayor Pro Tem Ridgeway reported that Chapters 2 and 3 of the Coastal Land Use Plan have been drafted. The committee will be meeting soon to review the drafts, with the intent to submit them to the California Coastal Commission as soon as possible. Mayor Pro Tem Ridgeway additionally noted that public comments will also be sought at future Planning Commission and City Council meetings. Status report — Newport Coast Advisory Committee (NCAC). Council Member Heffernan announced that the NCAC is scheduled to meet on December 1, 2003, at 5:30 p.m. He suggested that those with comments regarding the community center attend the meeting. Status report — Mariners Joint Use Library Ad Hoc Steering Committee. Council Member Webb stated that the committee has not met since the prior City Council meeting and is not expected to meet until again until January or February, 2004. • Status report — Other Committee Activities. Council Member Rosansky reported that he recently attended a meeting of the Santa Ana River Flood Control District board. He stated that they are moving forward with the dredging and clearing of the channel. Mayor Bromberg stated that he was honored when he was appointed to the Governor's Water Policy Advisory Task Force and that the goal of the task force is to make a recommendation to the Governor within six months on a water policy. He stated that the task force has already met several times and has drafted an action plan. Mayor Bromberg stated that he is utilizing local expertise to assist with his involvement on the task force. M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 11. PLANNING COMMISSION AGENDA FOR NOVEMBER 20, 2003. Planning Director Temple stated that the first item considered by the Planning Commission at their meeting of November 20, 2003, involved a call for review of a decision of the Modifications Committee to approve an amended sign program for Conexant. She stated that the Planning Commission reversed the decision of the Modifications Committee and denied the additional sign. Planning Director Temple stated that the applicant has appealed the decision of the Planning Commission and the item will come before the City Council at their meeting of December 9, 2003. iPlanning Director Temple stated that the Planning Commission also Volume 56 -Page 522 INDEX Planning Commission (68) City of Newport Beach Regular Meeting November 25, 2003 approved a use permit for the Mariposa Restaurant, and a general plan amendment, local coastal program amendment and code amendment were recommended for approval for the Balboa Theater property. Planning Director Temple stated that this item would also be agendized for the City Council meeting of December 9, 2003. Lastly, the Planning Commission recommended for approval the general plan and code amendments for the Area 7 annexation. The item will be agendized for the City Council meeting of January 13, 2004. Council Member Heffernan asked that additional information be provided regarding the Balboa Theater item. Planning Director Temple explained that the general plan amendment and the local coastal program amendment would change the intensity allocation for the property from a floor area ratio to a theater seat count. The code amendment would provide additional flexibility for the height of the building. She confirmed that the proposal from the Balboa Theater Foundation would increase the height of the building. Council Member Nichols asked if the amendments would also apply to the other landmark buildings in the City. Planning Director Temple confirmed that the code amendment would, but that the general plan and local coastal program amendments would only apply to the Balboa Theater. N. PUBLIC HEARING 12. CODE AMENDMENT NO. 2003 -003 — AMENDMENT TO CHAPTER 20.93 TO REVISE THE MODIFICATION PERMIT'S STANDARDS OF REVIEW (PA 2003 -080). Senior Planner Alford stated that the code amendment was initiated by the City Council in June 2003, in response to a Study Session in April on the modification permit process. Three major concerns with the modification permit process were identified. The first concern dealt with the apparent deviation from the original intent of the modification permit process, which was to provide relief from the strict and literal interpretations of the zoning regulations. Instead, the modification permit process is being used to accommodate individual project designs. The second concern was that the modification permit process was slowly reshaping the character of neighborhoods. Lastly, there was a concern that insufficient attention was being given to maintaining proper public access. Senior Planner Alford stated that the code amendment is intended to address these concerns by revising the required findings in order to approve a modification permit. Currently, the only finding required is that the granting of the modification permit would not be detrimental to persons or property in the surrounding area. He stated that the recommended code amendment would require three findings. The first finding states that the granting of the application is necessary due to the physical constraints of the property and that the strict application of the zoning code would result in hardships that are inconsistent with the Volume 56 - Page 523 INDEX Code Amendment No. 2003 -003 Modification Permit's Standards of Review (68) E • J City of Newport Beach Regular Meeting November 25, 2003 INDEX purpose and intent of the zoning code. The second finding states that the requested modification must be compatible with existing development in the neighborhood. The third finding states that the granting of an application must not adversely affect the health or safety of persons residing or working in the neighborhood, and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. In response to Mayor Bromberg's question, Senior Planner Alford stated that the Planning Commission approved the recommendation to amend the code by a vote of 4 to 3. Council Member Heffernan noted that in the staff report, it was reported that if the new findings had been in place, nearly half of prior modifications would not have been granted. He expressed his understanding that the Modifications Committee was established to handle properties with unique characteristics or unusual situations. Senior Planner Alford stated that the survey of the recent modifications isn't meant to imply that the applications would have been denied, only that sufficient information wasn't presented to make the findings. He further noted that in addition to providing additional direction to staff, the proposed amendment also provides additional direction to applicants. He stated that it should also provide for greater consistency in the process over time. Council Member Heffernan asked why it was determined that the process needed to be reviewed. Senior Planner Alford stated that there has been an increase in the number of applications and that the nature of them has changed over time, from finding relief from the zoning code to trying to accommodate particular designs. He added that the current finding is broad and subject to interpretation by a staff that changes over time. Additional direction through the findings would provide for greater consistency. Council Member Heffernan asked if the need to make the amendment is also due to residents wanting to build larger homes. Senior Planner Alford stated that it is a reflection of the increase in property values, resulting in more ownership turnovers and improvements. Mayor Bromberg asked how many modifications are reviewed per month. Senior Planner Alford stated that 26 applications were reviewed from July, 2003, to October, 2003. Mayor Bromberg expressed his concern regarding the recent modifications that wouldn't have been granted if the new procedure had been in place. He suggested that the item be continued for several months while a parallel review of modifications is conducted. Motion by Mayor Bromberg to continue the item for several months to conduct parallel reviews using the current method versus the proposed method. Mayor Pro Tem Ridgeway asked if modification requests are received for new homes. Senior Planner Alford responded in the affirmative, but . wasn't aware of how many of the 26 permits in the survey were for new construction. Mayor Pro Tem Ridgeway stated that possibly the parallel Volume 56 - Page 524 City of Newport Beach Regular Meeting November 25, 2003 INDEX review could include information on how many requests are for new _ construction and how many are for modifications to existing homes. He stated that the proposed findings might be best applied to new construction. Council Member Nichols stated that the first proposed finding seems to apply to properties that were divided or altered, and that these property owners appear to be receiving special privileges. He stated that new owners of such properties should be required to abide by the current regulations. Senior Planner Alford that the intent of the modification permit process is to grant relief for circumstances that were unforeseen in developing the code. Council Member Webb stated that the proposed findings appear to address the concerns that were expressed by the City Council. He noted that too many of the modification requests are for encroachments into setbacks. He stated that if these encroachments are continually allowed, it changes the character of a neighborhood and could have an effect on the health and safety in the area. Council Member Webb stated that the proposed findings provide better guidance to staff on the regulations and felt that they should be approved at the current meeting. Mayor Bromberg stated that by continuing the item, actual projects can be looked at. He agreed that changes to the process are needed, but felt that a comparison of the current and proposed findings should be performed. Council Member Adams asked if four months would be adequate. Mayor Bromberg agreed that four months would provide an adequate comparison. City Manager Bludau stated that the application form may need to be revised, so that additional information from the applicant can be obtained. Council Member Heffernan felt that modification permits have been granted on a random basis, or have being granted because similar requests in the neighborhood were granted in the past. He stated that the proposed findings help to insure that permits are issued only for unique circumstances. He asked how the comparison period would work. Mayor Bromberg stated that the existing process would be followed, while a comparison to a process using the proposed findings is made. Senior Planner Alford added that it would provide the opportunity to compare the processes by requiring the applicant to provide the additional information needed for the proposed findings, without actually applying the proposed findings. Council Member Adams stated that by using a revised application during the parallel review period, enough information would be obtained to make a true comparison of the two processes. Amended motion by Mayor Bromberg to continue the item for four Volume 56 - Page 525 0 City of Newport Beach Regular Meeting November 25, 2003 iiOT:3 months to conduct parallel reviews using the current method versus the proposed method. Council Member Heffernan asked if the City could require the applicant to provide information that may not be necessary in reviewing their modification request. City Attorney Burnham stated that staff could look at the modification applications for the past six months and obtain the information needed to make a comparison between the two processes. He added that the Planning Director has the authority to request additional information from the applicants under the existing code. Referring to modifications for existing structures versus new structures, City Attorney Burnham noted that the City Council might also want to consider what is an appropriate topic or subject for a modifications permit. Mayor Bromberg opened the public hearing. Robert Walchli stated that modifications are currently being allowed that are detrimental to surrounding properties. He cited some examples, and stated that these modifications also affect the property values of the surrounding properties, as well as all of the properties in the City. Mr. Walchli asked that the City Council move slowly on changing the process and allow time to receive public input. Mayor Bromberg stated that some of the examples provided by Mr. Walchli, such as the height issues, are subject to the City's process for approving variances and do not go through the modification permit process. Laura Dietz agreed with Mr. Walchli that the impact of changing the modification process will be felt for a long time. She noted that some neighborhoods are covered by homeowner association guidelines, and asked how many of the 26 properties reviewed in the staff report were under homeowner association guidelines. In regard to the additional information that may be asked of the applicants during the comparison period, Ms. Dietz suggested that possibly the information should be obtained voluntarily from the applicants. She also agreed that the issue should be looked at more closely and that public input should be sought. Jim Hildreth stated that he is glad to see the City taking public safety into consideration. He expressed his concern for the increase in the notification radius and the additional signage that might be required. He agreed that hardship should be a consideration when granting modification permits. Mr. Hildreth stated that the current process seems to be working fine and doesn't need changing. Hearing no further testimony, Mayor Bromberg closed the public hearing. The amended motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Mayor Bromberg • Noes: Webb, Nichols Abstain: None Volume 56 - Page 526 City of Newport Beach Regular Meeting November 25, 2003 Absent: None 13. 3450 VIA OPORTO (PA2003 -213) — GENERAL PLAN AMENDMENT NO. 2003 -010, LOCAL COASTAL PROGRAM AMENDMENT NO. 2003 -004, AND CODE AMENDMENT NO. 2003- 008 — REQUEST TO AMEND THE GENERAL PLAN AND LOCAL COASTAL PROGRAM LAND USE DESIGNATIONS FROM GOVERNMENTAL, EDUCATIONAL AND INSTITUTIONAL FACILITIES TO RETAIL & SERVICE COMMERCIAL AND TO CHANGE THE ZONING DISTRICT CLASSIFICATION FROM GEIF TO RSC. Planning Director Temple stated that the item is agendized to correct a mapping error that occurred in 1988 with the adoption of the current general plan. She stated that the property was inadvertently designated as governmental, educational and institutional, but should have remained as commercial. Mayor Bromberg opened the public hearing. Hearing no testimony, Mayor Bromberg closed the public hearing. Motion by Mayor Pro Tem RidEeway to approve the request by adopting Resolution No. 2003 -62; and by introducing Ordinance No. 2003 -17 and passing to second reading on December 9, 2003. The motion carried by the following roll call vote Ayes: Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Heffernan O. CONTINUED BUSINESS 14. UNSCHEDULED VACANCY ON THE PARKS, BEACHES & RECREATION COMMISSION. Mayor Pro Tem Ridgeway stated that the Ad Hoc Appointments Committee met and is recommending that Tim Brown and Michael Wade be nominated by the City Council. Motion by Mavor Pro Tem Ridgeway to confirm the nomination of Tim Brown and Michael Wade to fill the unscheduled vacancy as a result of the appointment of Steven Rosansky to the City Council. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Ridgeway, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Volume 56 - Page 527 INDEX Res 2003 -62 Ord 2003 -17 GPA 2003 -010 3450 Via Oporto (45) Parks, Beaches & Recreation Commission Unscheduled Vacancy (24) • u 0 E City of Newport Beach Regular Meeting November 25, 2003 Absent: None Mayor Bromberg recessed the meeting at 9:15 p.m and reconvened the meeting at 9:30 p.m., with all council members present. 15. ADOPTION OF AN ORDINANCE ESTABLISHING A PROCEDURE FOR GRANTING A "SPECIAL CIRCUMSTANCE VARIANCE" FOR PROJECTS THAT INVOLVE BUILDING PERMITS THAT WERE ISSUED BASED ON FALSE SURVEY DATA SUBMITTED BY ANDREW GOETZ. Mayor Pro Tem Ridgeway announced that he would be recusing himself from voting on the item because he hired Mr. Goetz for work on his home. Mayor Pro Tem Ridgeway left the Council Chambers. Council Member Heffernan asked why Mayor Pro Tem Ridgeway's recusal is necessary. City Attorney Burnham stated that there may not be a legal conflict, but Mayor Pro Tem Ridgeway feels that there could be the appearance of a conflict. City Attorney Burnham stated that at the City Council meeting of November 12, 2003, the proposed ordinance was discussed. The ordinance establishes a two -prong test for determining if a special circumstance variance should be issued. City Attorney Burnham noted that his supplemental report recommends an option for handling situations for structures that exceed 5% of the permitted height, but can be redesigned to fit within the requirement. Council Member Heffernan confirmed that the ordinance would only apply to permits issued prior to the discovery of the falsified surveys. Additionally, City Attorney Burnham stated that eligibility to apply for a special circumstance variance would also be based on the City having no evidence that the property owner had knowledge of a falsification. Council Member Heffernan asked if the property owner would be required to testify under penalty of perjury their knowledge of any falsification. City Attorney Burnham stated that such a requirement is not included in the ordinance, but that it could be added. Mayor Bromberg stated that the Mayor already has the authority to swear speakers in who testify at City Council meetings. Council Member Adams confirmed with City Attorney Burnham that the ordinance would need to be re- introduced if the option suggested in the supplemental report were to be included. City Attorney Burnham added that he didn't think there would be a significant impact on the property owners if the ordinance were modified and re- introduced at the current meeting. Council Member Heffernan asked what the authority of the Planning Director is in releasing stop work orders as if the ordinance had been adopted, prior to it being adopted. City Attorney Burnham stated that staff has the authority to issue and release stop work orders, at the discretion of Volume 56 - Page 528 INDEX Ord 2003 -16 Special Circumstance Variance (26) City of Newport Beach Regular Meeting November 25, 2003 INDEX the Building Director. He added that, in this instance, this has been done for the convenience of the property owners and that they have been notified that they are proceeding at their own risk. Planning Director Temple stated that following the introduction of the ordinance, staff developed an application form and a process for those projects under construction and affected by the issue. She stated that six projects were identified as qualifying for the special circumstance variance, with five of these being under the 5% de minimus provision. It was determined that the sixth property could be altered to make it more closely conforming to the height limit. The issued permits are conditional on the ordinance being adopted. Council Member Heffernan asked if there could be other errors, in addition to the falsified surveys, that have not been identified. Planning Director Temple stated that a review of the plans indicates that the surveys appear to be only enabling a higher building to be built, and that the buildings otherwise conform. Council Member Nichols stated that other deviations in the properties are possible. Ellen Counts expressed concern for the construction at 308 Carnation and the garage that encroaches into the alley, affecting access by emergency and trash pick up vehicles. She explained the construction taking place at the site, and noted that the home being built is four stories. She stated that it shouldn't be permitted, and listed the problems with having a four -story home in the neighborhood. Mayor Bromberg stated that 308 Carnation is not a property listed in the report from the Planning Director. Ms. Counts stated that it is a Goetz property. City Attorney Burnham stated that 308 Carnation has other issues associated with it. Planning Director Temple stated that the stop work order for the property has not been released. She stated that staff is still evaluating the project's compliance with the zoning code. Don Rothman referred to a memorandum he sent to the Planning Department on August 16, 2003, regarding construction at 505 d Street. Mr. Rothman stated that he asked if the construction conformed to code and if not, was a variance obtained by the builder. He stated that he submitted another memorandum to the Building Department on September 5, 2003, expressing his continued concern and the lack of response from his first memorandum. Mr. Rothman stated that he was informed by the City that the construction conforms to code, and that later he received notice about the hearing for the special circumstances variance being considered for the property. Mr. Rothman retained legal counsel and attended the hearing, where approximately sixteen objections were raised. He requested that the stop notice order not be released. Bill Hart, representing the owners of 202 Fernleaf Avenue, stated that there should be a 5% de minimus exception to the variance. As noted earlier by the Planning Director, five of the six properties that were Volume 56 - Page 529 City of Newport Beach Regular Meeting November 25, 2003 reviewed fell within the 5% exception to the variance. He stated that 202 Fernleaf fell outside of the exception at the front and back of the property, but is within the de minimus exception with regard to ridgeline and height. He asked that the City allow the affected homeowners to reconstruct and redesign their homes to come within the de minimus exception. He stated that this should apply to the property owners at 202 Fernleaf, as well as the other affected property owners, and that it should include the de minimus exception for all of the midpoints on the ridgeline. He provided a photo of the property at 202 Fernleaf, which included a line marking where the newly designed roofline would run. Council Member Adams confirmed with Mr. Hart that the top of the ridgeline wouldn't be changed. Council Member Adams stated that, if the property owners are allowed to redesign and reconstruct their properties, it needs to be made clear that they cannot take advantage of the envelope that would be created. Council Member Nichols asked if the porch at 202 Fernleaf has a roof. Mr. Hart stated that it would be removed in the proposed redesign. Council Member Nichols stated that the views from the homes in the area have been ruined by the current design, and that the homeowners must have been aware that they were out of compliance. Mr. Hart stated that four surveys were conducted during construction, and they all confirmed that the construction was legal in all respects. IsCouncil Member Heffernan asked if the property owners would be willing to sign an affidavit swearing that they had no knowledge that their construction was not legal. Mr. Hart responded in the affirmative, and stated that they were present at the current meeting and could be sworn in. Robert Walchli displayed photos of the 202 Fernleaf property. He stated that if the building had conformed to the legal height limit, his views would have been retained. He also provided letters from other neighbors who were in support of having the home comply with the code. He stated that the City was made aware of the problems with the elevation in March of 2003, but allowed construction to continue, and that the owners and builders were also aware of the problems and the building not complying with code. Mr. Walchli stated that the City is condoning the illegal acts through a variance process, and that the property was also subject to being overbuilt twenty years ago. He stated that stress and suffering is being experienced by the neighbors in the area, in addition to a loss in their property values. He stated that the City could be liable for not taking timely action on the matter and for having lack of oversight. City Attorney Burnham stated that the Building Director authorized painting to be done at 202 Fernleaf to preserve the wood. Chief Building Inspector Hook stated that he has not been able to confirm this. Bob Anderson asked to see the photo provided earlier by Mr. Hart. He was given the photo. William Beckman stated that the home at 202 Fernleaf is several feet Volume 56 - Page 530 City of Newport Beach Regular Meeting November 25, 2003 INDEX higher than it should be. He expressed his dissatisfaction that the Hart's are asking to reduce it by only inches. Ed Gates stated that he thought the home at 505 J Street was being built to code, based on drawings that he thought were correct. He thanked the City for working with them on trying to get the job done satisfactorily. Mrs. Gates thanked the City for understanding what they'd been through by trusting Mr. Goetz. She stated that the ridgeline at 505 J Street is at 29 feet. She stated that she didn't notice that they had a problem and noted that other homes in the neighborhood are taller than theirs. Mrs. Gates stated that they didn't know they were doing anything wrong or hurting their neighbors' views, but would be happy to bring the chimney into compliance and work with the City. Adrienne Brennan stated that the homeowners at 505 J Street complied with the requirements of the City from the beginning in the construction of their home. She stated that the improvements to the home actually help the property values in the area. Jim Hildreth stated that the City is setting precedence, but agreed that the issue should be handled on a case -by -case basis. He stated that the discrepancy appears to be the result of the incorrect determination of the original grade level. He suggested that the City audit other plans to make sure this hasn't happened elsewhere. Mr. Hildreth expressed his dissatisfaction that Mr. Goetz appears to have been convicted prior to going to trial. Mr. Hildreth stated that the performance of the City's inspectors should also be looked at. Lester Edelberg expressed his objection to the rules changing after the Planning Director had made her rulings. He stated that when the home at 202 Fernleaf was being framed in March of 2003, it was apparent that it was taller than the previous structure. Mr. Edelberg stated that he contacted Mr. Goetz at that time, and was told that he used an alternate measurement that allowed the home to be built three feet higher. Mr. Edelberg contacted the City and it was discovered that certain parts of the property were found to be in violation. He stated that the structure should be required to be brought into conformance with the zoning codes. Sandy Beckman stated that the home at 202 Fernleaf is too high and there shouldn't be any changes from what the Planning Director determined. Ms. Beckman stated that her own home was changed due to complaints from the neighbors, and the same should be required of the homeowners at 202 Fernleaf. Susan Hart stated that multiple surveys have been performed at the request of the City, and the adjustments made were to the midpoints on the roofline and not to the overall height. She stated that they were always told that they were within the height limit. Jean Bruton stated that the owners at 202 Fernleaf and their lawyers seem to be working with the City secretly. She stated that the home at 202 Volume 56 - Page 531 • City of Newport Beach Regular Meeting November 25, 2003 Fernleaf destroys the skyline, the ocean views and the property values in the area. Ms. Bruton cited examples of similar situations in previous years where she fought to retain views and property values. She stated that she talked with Mr. Goetz regarding the home at 202 Fernleaf and he knew that the grade had been raised. Mayor Bromberg stated that it's apparent that the neighbors don't like the home at 202 Fernleaf. Motion by Council Member Adams to adopt Ordinance No. 2003 -16. Council Member Adams stated that he is supporting the adoption of the ordinance as provided in the staff report without the addition of the option provided in the supplemental report. Council Member Heffernan confirmed that this would mean that the findings made by the Planning Director would stand. He specifically confirmed with the Planning Director that the removal of the third level patio cover and restroom would be required at 202 Fernleaf. City Attorney Burnham additionally confirmed that if there are no changes to the ordinance, it can be adopted at the current meeting. Further, the determinations made by the Planning Director would stand, and that the hearings were conducted in anticipation of the City Council adopting the ordinance, which is a valid exercise of the City's authority. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: Ridgeway Absent: None Council Member Webb requested that staff report back to the City Council on how the process to determine natural grade can be changed so that the same situation won't happen in the future. City Manager Bludau stated that staff has already taken action in that regard and feel that it's been taken care of. P. CURRENT BUSINESS 16. RESOLUTION RELATING TO ADDING A 3RD COUNCIL SEAT AND APPOINTMENT TO THE COASTALIBAY WATER QUALITY CITIZENS ADVISORY COMMITTEE AND APPOINTING A COUNCIL MEMBER TO THE 3RD SEAT. Mayor Bromberg stated that the water quality issues in the City have changed dramatically and that it would be beneficial to have every council member serve for two years on the Coastal/Bay Water Quality Citizens Advisory Committee. He stated that he intends to appoint Council Member Rosansky to the committee. Motion by Mavor Brombere to adopt Resolution No. 2003 -63 which Volume 56 - Page 532 INDEX Res 2003 -63 Coastal/Bay Water Quality Citizens Advisory Committee (24) City of Newport Beach Regular Meeting November 25, 2003 INDEX expands the Coastal/Bay Water Quality Citizens Advisory Committee to include three members from the City Council; and confirm the appointment of Council Member Rosansky as the Mayor's appointment to the Coastal/Bay Water Quality Citizens Advisory Committee. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway S17. REPORT FROM THE AIRPORT POLICY REVIEW COMMITTEE. Sphere Issues Committee/ City Attorney Burnham stated that the Airport Policy Review Committee Airport Policy met over a period of nine months to discuss several issues. He stated Review that the committee is recommending that the City Council consider the Committee formation of a successor committee to the Airport Policy Review (24154) Committee, and authorize the Mayor to transmit a letter to the Board of Supervisors asking them to meet with the successor committee to discuss sphere issues. City Attorney Burnham stated that the sphere issues include Coyote Canyon, Santa Ana Heights Redevelopment Agency, County tidelands and John Wayne Airport, and that the committee is also recommending that studies be conducted to evaluate the sphere issues and determine if there are others. Finally, the committee recommended that the successor committee report back to the City Council with the progress on any discussions with the County. Mayor Bromberg stated that the City owes it to the residents of the City to determine if any of the sphere issues are feasible. He stated that he intends to appoint Council Member Heffernan, Mayor Pro Tem Ridgeway and himself to the successor committee, and noted that the three are the same council members who served on the Aviation Issues Committee. Dolores Otting asked what types of consultants would be used for the studies, how much they would cost and how many would be hired. She noted a letter to the editor in the November 23, 2003, issue of the Daily Pilot regarding the City taking over the operations of the Harbor Patrol and the privatization of harbor services. Ms. Otting asked if the meetings of the committee would be open to the public and if the meetings of the Airport Policy Review Committee were open to the public. Regarding the Coyote Canyon landfill, she referred to the staff report and stated that it appears that the City is already in control of the landfill. She expressed her dissatisfaction with the information provided in the Newport Coast Preannexation Agreement documents and stated that no one was aware that the City annexed the Coyote Canyon landfill when it annexed the Newport Coast area. She stated that there was never a proper description of the property provided to the public in the documents. City Manager Bludau stated that the maps on display in the Council Chambers show the Coyote Canyon landfill and it was never hidden that the landfill was in the City limits. City Attorney Burnham added that Volume 56 - Page 533 E City of Newport Beach Regular Meeting November 25, 2003 the City could put those maps on the City's website. He stated that although the Coyote Canyon landfill has been annexed, the City has not assumed any obligation to maintain or monitor it. He stated that it's private property that is being managed and maintained by the County. Lastly, City Attorney Burnham stated that the Airport Policy Review Committee was of limited duration and did not have continuing subject matter jurisdiction, so it was not subject to the Brown Act, which would also be true of the successor committee. Madelene Arakelian stated that when she was running for a seat on the City Council, she never received answers to her questions about annexation of the Coyote Canyon landfill. She expressed her dissatisfaction that information is not being disseminated to the public. She added that it will not be possible for the City to own, or build on, the landfill. Ms. Arakelian asked why the City would want to assume management of the landfill, given that the liability would be horrendous. Mayor Bromberg stated that the City is only trying to find answers to some questions, and that the issues are more complicated than they appear. He stated that, at this point, the City is only looking at the issues and requesting that information be brought back to the City Council. Motion by Mayor Brombere to 1) create a "Sphere Issues Committee', confirm the Mayors appointment of Mayor Pro Tem Ridgeway, Council . Member Heffernan and himself to the Committee, and direct that Committee meet with the appropriate representatives of the Board of Supervisors to discuss issues of mutual interest to the City and County; 2) authorize the Mayor to transmit a letter to the Chair of Board of Supervisors requesting that the County (a) participate in a process with Newport Beach to review and discuss Sphere Issues and (b) designate appropriate representatives to meet with the Sphere Issues Committee; 3) authorize staff and consultants to conduct the studies and analyses that the "Sphere Issues Committee" considers necessary or appropriate to fully understand the opportunities presented by the Santa Ana Heights Redevelopment Area/Plan, the Coyote Canyon Landfill, County Tidelands and the John Wayne Airport, and/or to identify other properties/services that could be considered possible Sphere Issues; and 4) direct the Sphere Issues Committee to submit a status report to the City Council no later than six months after its formation. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Bromberg Noes: None Abstain: None Absent: Ridgeway Q. MOTION FOR RECONSIDERATION - None • R. ADJOURNMENT at 11:05 p.m. Volume 56 - Page 534 INDEX City of Newport Beach Regular Meeting November 25, 2003 + + + + + + + + + + + + + + + + + ++ The agenda for the Regular Meeting was posted on November 19, 2003, at 2:40 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 21, 2003, at 2:30 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 535 INDEX • •