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HomeMy WebLinkAbout04/08/1996 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting April 8, 1996 - 7:00 p.m. CLOSED SESSION - 5:00 p.m. [Refer to separate • CLOSED SESSION REPORT PRESENTED - None RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING ROLL CALL Present: O'Neil, Edwards, Debay, Cox, Glover, Waft and Mayor Hedges Absent: None Proclamation for National Library Week, April 14 -20, 1996 presented to Ben Jackson, Chairman of the Library Board of Trustees. Commendation for outstanding City services during the sewer spill was made to the City by Mayor Pro Tern Debay on behalf of the Orange County Sanitation District. Motion by Mayor Pro Tem Dabs v to waive reading of the minutes of the meeting of March 25, 1996, to approve as written and order filed. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Waft and Mayor Hedges Noes: None Absent: None • Abstain: None Motion by Mayor Pro Tern Debay to waive reading of the ordinances and resolutions under consideration, and direct the City Clerk to read by titles only. The motion carried by the following roll call vote: • Ayes: O'Neil, Edwards, Debay, Cox, Glover, Waft and Mayor Hedges Noes: None Absent: None Abstain: None MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON- DISCUSSION ITEM): Council Member Edwards requested that an item be placed on the April 22, 1996 agenda recognizing the sponsors, etc., of the Toshiba Classic. Mayor Pro Tern Debay requested that staff draft a resolution opposing the merger of the TCA and OCTA for consideration on April 22, 1996. Mayor Pro Tern Debay recognized the Newport Beach Fire Department, as well as the fire departments from Costa Mesa and Huntington Beach, for their involvement and response to a roof fire on Thursday, April 4, 1996 during the Santa Ana wind conditions. CONSENT CALENDAR Volume 50 - Page 113 INDEX City of Newport Beach City Council Minutes April 8, 1996 INDEX ORDINANCES FOR INTRODUCTION 1. INTRODUCE ORDINANCE NO. 96 -15 Approving an Amendment to Section Ord 96-15 20.06.070 of the Newport Beach Municipal Code to Revise Regulations for Zoning Illuminated Signs; PASS TO SECOND READING AND SCHEDULE FOR (94) HEARING ON APRIL 22, 1996. •PUBLIC ORDINANCES FOR ADOPTION 2. ADOPT ORDINANCE NO. 96 -13, Amending Chapter 12.24 (Special Speed Ord 96 -13 Zones) of the Newport Beach Municipal Code to Update Speed Limits on Traffic Various Roads Within the City of Newport Beach. (85) 3. ADOPT ORDINANCE NO. 96 -14, Amending Section 11.04.020 (Prohibited Ord 96 -14 Conduct) of the Newport Beach Municipal Code to Allow Parking of Cars Pkg /Public Parks in Public Parks for Activities Authorized by Special Event Permits. (27/85) RESOLUTIONS FOR ADOPTION 4. Removed from Consent Calendar. 5. ADOPT RESOLUTION NO. 96 -32 Requesting that the Saddleback College Council Student Governments, Faculty and Deans Reinstate the Pledge of Res 96 -32 Allegiance as an Agendized Item for Their Public Meetings. (33) CONTRACTS AND AGREEMENTS S. BALBOA PENINSULA BEACH ACCESS WALK REPLACEMENTS AT 12TH Bal Peninsula Beach/ STREET AND ISLAND AVENUE (CONTRACT NO. 3070) - AWARD OF 12th St & Island Ave CONTRACT. Approve plans and specifications; affirm the categorical C -3070 exemption of environmental impact; award the contract to LGT Enterprises in (38) • the amount of $46,768; authorize the Mayor and City Clerk to execute the contract; and provide a construction contingency amount of $4,232. 7. COMPLETION AND ACCEPTANCE OF OCEAN FRONT STREET END Ocean Front St End IMPROVEMENTS FROM 47TH STREET TO 50 ?H STREET (CONTRACT Improvements NO. 3001) - ACCEPTANCE OF WORK. Accept the work; authorize the City 47th - 50th Sts. Clerk to file a Notice of Completion; authorize the City Clerk to release the C -3001 bonds 35 days after the Notice of Completion has been recorded in accordance (38) with applicable portions of the Civil Code. MISCELLANEOUS ACTIONS 8. PLANNING COMMISSION AGENDA - April 4, 1996. 9. Removed from Consent Calendar. 10. SCHEDULE HEARING TO CONSIDER ONE YEAR ACTION PLAN CDBG ALLOCATING FY 1996 -97 COMMUNITY DEVELOPMENT BLOCK GRANT FY 1996 -97 (CDBG) FUNDS. Schedule public hearing for April 22, 1996. (87) 11. FINAL APPROVAL OF THE RESIDENTIAL SUBDIVISION OF UPPER Castaways Final CASTAWAYS (900 DOVER DRIVE), FINAL TRACT MAP NO. 15012. Tract Map 15012 Approve Final Map of Tract No. 15012 with the finding and subject to the condition set forth in Exhibit A of report. • 12. Removed from Consent Calendar. 13. Removed from Consent Calendar. 14. BICYCLE TRAILS CITIZENS ADVISORY COMMITTEE VACANCIES. Accept BT /CAC with regrets the letters of resignation from Robert Settler and Jerry Boyle and (24) Volume 50 - Page 114 City of Newport Beach City Council Minutes April 8, 1996 schedule the appointments to be made on April 22, 1996. 15. ENVIRONMENTAL QUALITY AFFAIRS CITIZENS ADVISORY COMMITTEE. Accept with regrets the letter of resignation from Tina Siemons and schedule the appointment to be made on April 22, 1996. •MOTION BY MAYOR PRO TEM DEBAY TO APPROVE THE CONSENT CALENDAR, EXCEPT FOR THOSE ITEMS REMOVED (4, 9,12 and 13). The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges Noes: None Absent: None Abstain: None ITEMS REMOVED FROM THE CONSENT CALENDAR 4. ADOPT RESOLUTION NO. 96-31 Extending the Term of the Balboa Peninsula Planning Advisory Committee ( BPPAC) to August 31, 1996. Mayor Pro Tern Debay reported that the Council received a letter from John Noyes, President of the Balboa Island Business Association, requesting that Balboa Island be included in the area studied, and she asked if it had been discussed. Mayor Hedges indicated that it has not been discussed and it is a new issue and City Manager Murphy stated that Central Balboa is included in the area to be studied. Mayor Hedges explained that the focus of BPPAC has been on the peninsula with the idea that any ordinances and planning solutions that come out of the • study will likely be applicable to other older areas of the City. Mr. Murphy said that the letter also addressed tenant mix and an outside individual has been in contact with the Balboa Island merchants regarding this issue. Motion by Mayor Pro Tern Debay to adopt Resolution No. 96 -31 extending the tens of the Balboa Peninsula Planning Advisory Committee to August 31, 1996. Council Member Edwards questioned why BPPAC is not part of the Economic Development Committee. Mayor Hedges said there have been discussions between the two groups, however BPPAC is focused just on the peninsula and the Economic Development Committee is focused city -wide, and not necessarily on just planning issues. Mr. Murphy stressed the importance of open lines of communication within the different districts, with EDC, the Planning Commission and the Council during the next phase of the work and said staff will make sure there is an outreach to all of the different groups involved. Council Member Glover explained that there are representatives from Central • Balboa, Cannery Village, the pier area, and harbor area on the EDC. Council Member Edwards said he would like to see greater cooperation and suggested that BPPAC get involved with the EDC. He spoke in support of the motion, however said it should be considered in the future. Council Member Watt said she sees the groups as separate and supports the Volume 50 - Page 115 INDEX EQA/CAC (24) BPPAC /Adv Cmte Res 96 -31 (24) City of Newport Beach City Council Minutes April 8, 1996 concept of BPPAC and their focus. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges • Noes: None Absent: None Abstain: None 9. PROPOSAL FOR A WEEKLY CERTIFIED FARMERS MARKET IN THE MUNICIPAL PARKING LOT AT MARGUERITE AVENUE AND BAYSIDE DRIVE ON SATURDAYS FROM 9:00 A.M. TO 1:00 P.M. City Clerk Harkless reported that the following items were received in support of the proposal: 1) a letter dated 4/4/96 from Friends of Oasis; 2) a phone call on 4/8/96 from Shirley Conger, 3003 Bayside; and 3) a letter dated 4/8/96 from the Corona Del Mar Chamber of Commerce. She also noted that the following items were received in opposition to the proposal: 1) a letter dated 4/6196 from Robert Stanton; and 2) a phone call on 4/8/96 from Mary Helen Doran, Manager at Albertsons. Council Member O'Neil explained that if Council approves the staff recommendation tonight, this matter will come back to Council for final approval. He explained that initially he had concems regarding excessive traffic congestion, trash and parking problems, however after discussing the proposal with the applicant and Ms. Talbot, he is supportive of the proposal. He stressed the importance of providing adequate parking and suggested that staff consider setting aside customer parking in the City lots and also consider closing the facility at noon during the summer in order to accommodate beach goers. • Former Mayor Jackie Heather spoke in support of the proposed Farmer's Market and invited the Council to attend a State Board of Agriculture meeting scheduled for May 2 and 3, 1996 in the Council Chambers. Motion by Council Member O'Neil to authorize staff to negotiate an agreement (including a lease fee for use of public property) for the proposed Farmers Market on the public right of way and to submit the agreement to the City Council for final approval. In response to Council Member Glover's concerns voiced about the impact this would have on the Health Emporium, Council Member O'Neil said he was advised that the owners of the Health Emporium are supportive of the proposal. He reported that notices were circulated regarding the proposal and it has also received a lot of media attention. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges Noes: None Absent: None Abstain: None 12. OPPOSITION TO AB 2109 - CONSOLIDATION OF SPECIAL DISTRICTS IN ORANGE COUNTY. • Mayor Pro Tern Debay reported that the Utilities Committee voted to support sending a letter indicating that the City opposes the bill in its present form unless it is amended. Motion by Mayor Pro Tem Debay to authorize the Mayor to send a letter indicating that the City opposes AB 2109 unless the bill is amended. Volume 50 - Page 116 INDEX Cert Farmers Mrkt (65) AB2109 (48) City of Newport Beach City Council Minutes April 8, 1996 Council Member Glover said that it is important that the letter reflect that the City is not opposed to the concept, however has to protect itself. It was clarified that staff would write the letter for the Mayor's signature. The motion carried by the following roll call vote: • Ayes. O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges Noes: None Absent: None Abstain: None 13. RECOMMENDATIONS FROM THE BICYCLE TRAILS CITIZENS ADVISORY COMMITTEE ON NIGHTTIME BICYCLE RIDING AND SIDEWALK RAMPS ON NEWPORT BOULEVARD BRIDGE OVER COAST HIGHWAY. Mayor Pro Tem Debay reported that this was discussed at the Utilities Meeting because two members drove down the boulevard and had bicyclists in front of them in the traffic lane at the narrowest part. She reported that during the meeting, Public Works Director Webb advised the committee that staff talked to Caltrans about constructing ramp connections on the sidewalks over the Arches Bridges. Caltrans pointed out that the sidewalk is narrower than it should be and if a bicyclist is up on the sidewalk, loses his balance and falls down into the traffic lane, it is a much more serious problem than if he is in the traffic lane and the cars are negotiating around him. Mayor Hedges concurred with Mayor Pro Tem Debay's comments and stated that the interchange project should address this situation. Public Works Director Webb reported that on April 22, 1996, staff will have an Item on the agenda to begin the design of the arches interchange project. He • said the concept provides for twelve -foot wide sidewalks on both sides of the bridges to allow for bicycle riding on the sidewalks and the lanes will be wider on Newport Boulevard going over Coast Highway. In the interim, if Council directs, staff will work with Caltrans to see if they will accept the City's recommendation. He said he is not optimistic because the request has been made before and denied. Council Member Glover questioned whether Caltrans would pay for these improvements. Mr. Webb explained that this is a state highway and that will be staffs initial approach, however if Caltrans denies the request, staff will determine if it can be funded through the sidewalk program at an estimated cost of $2,00043,000. Motion by Mayor Pro Tem Debay to request the City Manager to have the Police Department increase enforcement of Vehicle Code violations for night time bicycle riding without lights; and authorize the Mayor to send a letter to Caltrans requesting the construction of ramp connections. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges Noes: None Absent: None Abstain: None •PUBLIC HEARINGS - None PUBLIC COMMENTS George Grupe, Box 834, Corona del Mar, asked when the Council would be discussing Item 5 (Pledge of Allegiance). Mayor Hedges reported that it was approved with the Consent Calendar, however if he would like to wait it could Volume 50 - Page 117 INDEX BT /CAC (24/70) City of Newport Beach City Council Minutes April 8, 1996 be reconsidered at the appropriate time on the agenda (under Motions for Reconsideration). CONTINUED BUSINESS • 16. BALBOA PENINSULA PLANNING ADVISORY COMMITTEE VACANCY: Motion by Mayor Hedges to continue the appointment indefinitely and instructed staff to bring it back to Council when there are applicants for the position. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges Noes: None Absent: None Abstain: None 17. DISCUSSION AND CONSIDERATION OF MAYOR'S FISCAL POLICY RESOLUTION. Mayor Hedges stated that he changed some of the proposed language and hopefully the changes under the second "resolved" make it more clear as to what his intent, goals and time frame are. He distributed copies of the revised resolution and explained that the fiscal policy resolution establishes a "layman's" performance -based functional budget, a review of services and expenditures to determine how they are to be funded or provided, and evaluates all of the income property with respect to return on assets, legal status and retention. He said the substantive change from what is contained in the Council packet is that if the City achieves all of its fiscal goals, especially the commitment to restoration of reserves and improvement of infrastucture, then the Council shall formally consider refunding some portion of the property tax to the people of Newport Beach. He explained that the date was removed • in an attempt to be more realistic with the time frame and he is more concerned with the process changes that are included in the resolution. Motion by Mayor Hedges to adopt Resolution No. 96 -33 as amended. Mayor Pro Tem Debay stated that adopting a resolution rather than a policy gives her some reservation because a resolution puts a sense of urgency to it. She voiced her appreciation for deletion of the date, however said there are a lot of things that will have to be accomplished before a tax rebate can be considered. She said the City received a letter from the City of San Jose asking for support of AB 2828 which, if passed, will require the state to return property tax revenues. She said she would like to see an increase in sales tax revenue and salaries and benefits scaled to some sort of fiscal soundness, before any action is taken. Council Member Watt spoke in support of the first four points, however voiced concerns about the definition of "achieving all of its fiscal goals." She said that by adopting this resolution the Council may be committing themselves to goals which are problematic and cannot be accomplished. Mayor Hedges reiterated that most of the resolution is a restatement of what has already been said but has never been pulled together. He indicated that his goal is to establish a healthy balanced budget and if there is a surplus, a decision will need to be made about what to do with it. • Council Member Glover read sections of the proposed ordinance and explained that the resolution outlines the fiduciary responsibilities they have as council members. She said the residents want firm prudent fiscal policies and this resolution may help to insure that. She indicated that a tax refund may be a symbolic act, however the number one priority is to restore the reserves and improve the infrastructure. Volume 50 - Page 118 INDEX BPPAC /Adv Cmte Council (33) City of Newport Beach City Council Minutes April 8, 1996 Council Member O'Neil said he believes the resolution is specific in some aspects as it sets forth the goals the Council wants to achieve (types of services and how they are paid for, etc.). He said it is a good idea to get a handle on the City's assets, how they are managed, if the City gets a fair return on them, what the City owns, what the City is getting paid for them, etc. He said he has no • problem with putting the goals in resolution form and concurred that a refund may be more symbolic than anything. He said he would not have a problem with a tax refund if the City were able to balance the budget each year, build reserves to match the policy and provide funding for capital improvements. Council Member Edwards said he feels the resolution is symbolic, therefore won't support it. He said he feels it would be irresponsible to adopt it at this time and pointed out that a number of these items have already been addressed in the Council's goals. Mayor Hedges explained that the thrust of the resolution is to put the City in a position of being fiscally responsible and once these goals are accomplished, the Council will be in a position to decide what to do with the surplus funds. Council Member O'Neil said his sense is that there is not total support for adoption of the proposed resolution, and if there is support for the concept, however not enough votes to adopt it, that it may do more harm than good and suggested it be referred to a committee. Mayor Hedges questioned when the Council would be prepared to adopt such a resolution if they are not prepared to do so at this time. He said he is willing to step up to the plate and say that he will be responsible for the financial stewardship of the City. He reiterated that he feels the financial goals can be achieved and then the question will be what to do with the surplus funds once the goals are met. Mayor Pro Tern Debay said she doesn't want the residents to think that the • Council isn't responsible or willing to step up to the plate on fiscal responsibility, however this sends a mixed message to the bargaining units that are currently in meet and confer and it isn't timely. Mayor Hedges said he has heard a lot of reasons why this resolution shouldn't be adopted, however hasn't heard any other ideas and he is ready to entertain any other ideas. Council Member Watt voiced concerns with formalizing this and explained that if such an occasion occurred where there would be a debate about the use of the money, it could be put to a vote of the people. Mayor Hedges explained that Council would always have that ability under the formal consideration clause. Council Member Edwards made a motion to call for a vote. Mayor Hedges explained that the motion shuts off debate and requires a two - thirds vote. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt Noes: Hedges Absent: None Abstain: None The main motion failed by the following roll call vote: Ayes: O'Neil, Glover, and Mayor Hedges Noes: • Edwards, Debay, Cox and Watt Absent: None Abstain: None CURRENT BUSINESS Volume 50 - Page 119 INDEX City of Newport Beach City Council Minutes April 8, 1996 18. REPORT OF RESIDENTIAL BUILDING RECORDS (RBR'S). City Manager Murphy pointed out that the staff report outlines the background of the Residential Building Records (RBR) program, outlines the pros and cons • of the program and its benefits, and includes a survey of other Orange County jurisdictions to determine if they have similiar programs. He explained that Mayor Hedges requested that the Council discuss the merits of the program and the future of it. He advised the Council that the current fee is $69.00 and the preliminary Peat Marwick study results show that the actual cost is $167.00. He said if Council decides to continue the program, staff will come back at a future time with a recommendation to increase the fee for full cost recovery. City Clerk Harkless reported that letters were received on April 6, 1996 in support of retaining the program from Fritz Duda, representing BPPAC, and from Prudential Jon Douglas. Motion by Council Member Glover to continue the program and increase the fee to $167.00. Mayor Pro Tern Debay questioned whether there would be any consideration to eliminate re- inspections and just maintain the initial inspection. Dolores Otting, Newport Beach, spoke in support of continuing the program, however privatizing it or putting it out to bid. Gil Foerster, 2011 Kings Rd., stated that the number of illegal units and problems that were discovered proves that the program works. He spoke in support of modifying the program to include only one inspection, which would serve to put the buyer and the seller on notice, and to raise the fees so it is a break -even program. • Doug Hockett, 401 Newport Blvd., Orange Coast Association of Realtors, reported that the association discussed the program and documented their continued support of it in a letter to Council. He said he feels the program is very valuable. He spoke in support of the maintenance of the program, however stated that it should be revenue neutral and suggested that the fee be based on the square footage of the home. Mayor Hedges asked Mr. Hockett what the association's position is on the sale of properties with illegal units and if they would provide the multiple listing book to the City to assist in the abatement of illegal units. Mr. Hockett reported that realtors are required by law to disclose the status of the property, the condition of the property and whether it conforms to permits, etc. He said the association has never taken a policy of anything other than full disclosure of the actual condition of properties. He said that the realtors support the City in trying to ferret out illegal units, however giving the City the multiple listing book is a different issue and a matter of policy. He said that the information contained in the book is not public information, it is not merely the status of the units, and there is information in the book that is considered privy to the principals involved, therefore they would not release the listing. Mayor Hedges asked if that meant the realtors would not be willing to take a pro-active approach with a prospective seller by stating that before the property is listed the illegal unit must be abated or the City notified of its existence. Mr. Hockett said the realtors do support the City's goal to eliminate illegal or bootleg • units in philosophy, but before he can speak for the organization on whether they would decline a listing with an illegal unit, it would require seeking legal counsel to determine what position it would put the realtors in. He said he feels the realtors have the same philosophical goal as the City - to make sure the housing stock is as it is presented. Mayor Hedges asked if there would be any reason that realtors would use illegal units as positive selling points in the listing and sale of properties and Mr. Hockett responded that he did not know of any Volume 50 - Page 120 INDEX RBR (26) City of Newport Beach City Council Minutes April 8, 1996 INDEX such reasons. Robert Berg, 325 Alvarado PI., Balboa, spoke in support of discontinuing the program. He said that the program has been inconsistent over the years and is redundant with other required inspections. He said he believes there are as • many illegal units today as there were in 1972 when the program was initiated, and questioned the wisdom of sustaining a program that costs the City money. Mayor Hedges explained that there are two components to the ordinance. The first component is the original intent of the ordinance, a requirement that a report of residential building records be obtained. The second component is a physical inspection by an agent of the City of Newport Beach as a condition of sale. He said the physical inspection is purported to include evidence of building or zoning code violations observed during the inspection. The penalty for failure to comply with this ordinance is a misdemeanor, therefore an individual would be subject to arrest if they did not allow an agent of the City of Newport Beach to inspect their property. He said this is one of the more noxious things about the ordinance, in addition to the fad that it really doesn't accomplish a whole lot especially in light of the rather lengthy disclosure statements used by realtors. City Attorney Burnham stated that the Mayor accurately described the ordinance and that in the past the City has not prosecuted anyone for violating the ordinance, or to his knowledge, initiated any civil action to seek an order requiring that an individual consent to inspection. He explained that the City has received voluntary compliance from the vast majority of persons interested in selling their property. Mayor Hedges noted that the three things that must be met to have an effective ordinance are that it is understandable, enforceable and accomplishes what it was intended to accomplish. He said that on a de facto basis the City has a • voluntary program, although it may be represented by the parties involved that it is a requirement of the City of Newport Beach. Mr. Burnham indicated that the program is not voluntary since it is a provision of the municipal code. He reiterated that compliance has been obtained apparently because it is a force of law and the City has not been asked to enforce the code against any individual seller. He pointed out that if a seller or buyer does not wish to comply they can enter into a transaction of which the City is unaware. Council Member Edwards stated that the original intent was that a report was required and the inspection requirement was added later. He said that Civil Code now requires disclosures on the part of the seller with regard to the property and asked what the cost would be just for a property report. Council Member Edwards said that if you go with the original intent to provide at least the reports and there are still CAR disclosure requirements, perhaps the inspection requirement and penalty clause can be eliminated, therefore only requiring a property report on each and every piece of property. Mayor Hedges made a substitute motion to modify the program to delete the inspection requirements and penalties, therefore only require that a public report be provided which would provide adequate notice to buyer and seller. Council Member Glover and Mayor Pro Tern Debay gave personal accounts of their experiences with the program, and Council Member Edwards concurred • with their assessment and support of the program. Mr. Hockett explained that the purpose of the program is to have experts inspect the house and advise whether it meets code. In response to Council Member Edwards, Mr. Hockett stated that he doesn't have a problem with eliminating the penalties or increasing the fees for full cost recovery. Volume 60 - Page 121 City of Newport Beach City Council Minutes April 8, 1996 INDEX Council Member O'Neil said that when the ordinance was dratted illegal rental bootleg units was the biggest issue in the City. He said that some of the by- products of the ordinance are that there has been an increase in fire safety and a lowering of insurance premiums, etc. He questioned what good the ordinance would be if there weren't re-inspections. • Mayor Hedges changed his motion to state that the report program shall be mandatory, the inspection program purely voluntary, the penalty would be deleted and the fee increased to cover the cost of the program. Council Member Edwards said that the statute says, that a report is required and an inspection is made and then it is up to the buyer and seller. He made a substitute motion to keep the program intact, get full reimbursement for the cost and delete the penalty clause. City Attorney Burnham reported that under Council Member Edwards motion if the Council wanted to enforce the ordinance the City would have to go directly to the Superior Court to obtain an order of the court in the form of a mandatory injunction directing the property owner to comply with the ordinance. He said that a judge would most likely not issue the order because it would be difficult for the City to prove irreparable injury under the circumstances. Council Member Edwards withdrew his substitute motion and indicated he would support the original motion. Mayor Hedges explained that the motion under consideration is to make the inspection voluntary and to delete the penalty. He said this needs to be done because the ordinance, as it is presently written, raises some constitutional issues because the City would be getting "coercive consent" by requiring an inspection of property under the threat of losing personal liberties. He said the City can inspect a property now by obtaining an inspection warrant from the • court or the police can search a property upon obtaining a search warrant from the court. Based on the way this ordinance is written, he noted that a property owner can go to jail if the City is not allowed to inspect their property just because it is for sale. He asked the city attorney if the District Attorney would prosecute someone on a criminal complaint, and if so, would it be upheld either at a jury trial or on appeal. Mr. Burnham reported that the District Attorney has the discretion to prosecute or not prosecute the City's ordinances and whether a jury would find someone guilty, is unknown. The substitute motion failed by the following roil call vote: Ayes: Mayor Hedges Noes: O'Neil, Edwards, Debay, Cox, Glover and Watt Absent: None Abstain: None Mayor Hedges indicated that he will invite legal review of this ordinance because it is noxious. Council Member Watt said she feels this is an important part of the community's self respect effort and it is needed for the health, safety and welfare of the bulk of the residents in the City. Mayor Hedges said the goals are well- intentioned, however the administration and execution of it leaves a lot to be desired. • Mayor Pro Tem Debay asked if there would be any consideration for waiting on the fee structure until it is determined if the re- inspection is required. After it was clarified that the ordinance does not require a re- inspection, she questioned whether the $167.00 fee is accurate and Mr. Murphy indicated that it was. The original motion carried by the following roll call vote: Volume 50 - Page 122 • • City of Newport Beach City Council Minutes April 8, 1996 Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt Noes: Mayor Hedges Absent: None Abstain: None 19. REPORT ON TELECOMMUTING. City Manager Murphy reported that staff drafted a policy on telecommuting for Council consideration, however Council Member Cox has more information to be included, therefore requested that this item be continued. Motion by Council Member Cox to continue this item for four weeks (May 13, 1996). The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Debay, Cox, Glover, Watt and Mayor Hedges Noes: None Absent: None Abstain: None MOTION FOR RECONSIDERATION - None ADJOURNMENT - 9:00 P.M. The agenda for this meeting was posted on April 3, 1996 at 3:00 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administrative Building. Attest: City Clerk —yo Mayor Volume 50 - Page 123 INDEX PW (74)