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HomeMy WebLinkAbout02/23/1998 - Regular Meeting0 CITY OF NEWPORT BEACH City Council Minutes Regular Meeting February 23, 1998 - 7:00 p.m. INDEX CLOSED SESSION - 6 :00 p.m. CLOSED SESSION REPORT PRESENTED - None RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING ROLL CALL Present: Thomson, Debay, O'Neil, Hedges, Glover, Noyes, Mayor Edwards Absent: None Pledge of Allegiance - Council Member Thomson Invocation by Reverend Dr. George Crisp, Christ Church by the Sea, United Methodist. MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON - DISCUSSION ITEM): • Council Member Noyes reported that the agenda can be accessed over the internet. • Council Member Noyes announced that the first edition of the City newsletter was inserted into the Navigator and will be mailed to the public this week. • Council Member Glover reported that the Aviation Committee will be conducting its first meeting at 7 p.m. on Monday, March 2, at the Central Library. The Committee's intent is to make people more aware of the status of the El Toro and John Wayne Airports. She announced that the first speaker will be Supervisor Silva. • Council Member Hedges requested that an ad hoc committee be formed to develop guidelines regarding how Council can bring back items for reconsideration. Mayor Edwards suggested that this item be referred to the Legislative Committee and have a report brought back in 30 days. • Council Member Thomson reported that the City Attorney is close to creating an ordinance that deals with solicitors in the City. , o Mayor Edwards announced that last Friday was the first of a series by the • Library Foundation of the Martin W. Witte Distinguished Speaker Lecture Series. The first speaker was Michael Jackson and the second speaker will be the lady who was one of the masterminds behind the Mars probe. Volume 61- Page 623 City of Newport Beach City Council Minutes February 23, 1998 • CONSENT CALENDAR READING OF MINUTES /ORDINANCES AND RESOLUTIONS 1. MINUTES OF THE REGULAR MEETING OF FEBRUARY 9, 1998. Waive reading of subject minutes, approve as written and order filed. 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. ORDINANCES FOR ADOPTION 4. ORDINANCE NO. 98 -2 AMENDING SECTION 12.32.020(b) OF THE NBMC TO PROHIBIT COMMERCIAL VEHICLES EXCEEDING 6,000 POUNDS FROM OPERATING ON CERTAIN STREETS WITHIN THE CITY LIMITS. Adopt ordinance amending Section 12.32.020 of the Municipal Code to add Marguerite Avenue between Coast Highway and San Joaquin Hills Road to the list of streets with a three ton weight limit. 5. ORDINANCE NO. 98 -8 AMENDING THE KOLL CENTER NEWPORT PLANNED COMMUNITY DEVELOPMENT STANDARDS TO INCREASE THE PERMITTED HEIGHT WITHIN LIGHT • INDUSTRIAL SITE 1, FROM 75 FEET TO 90 FEET FOR A SINGLE VERTICAL COLUMN ON THE PROPERTY LOCATED AT 4311 JAMBOREE ROAD (PLANNING COMMISSION AMENDMENT NO. 867). Adopt ordinance approving Planning Commission Amendment No. 867. RESOLUTION FOR ADOPTION 6. BALBOA VILLAGE BUSINESS IMPROVEMENT DISTRICT, ANNUAL REPORT FOR 1998 -99 FISCAL YEAR, DISTRICT RENEWAL, AND INTRODUCTION OF ORDINANCE TO MODIFY THE BASIS FOR LEVYING ASSESSMENTS. Adopt Resolution of Intention No. 98 -16 and set public hearing for March 23, 1998; and introduce Ordinance No. 98 -4 to modify the basis for levying assessments. CONTRACTS AND AGREEMENTS 7. ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE HAZEL DRIVE PUBLIC RIGHT -OF -WAY ADJACENT TO 216 POPPY AVENUE, CORONA DEL MAR (EP -98 -028). 1) Approve the application subject to execution of an Encroachment Agreement for non - standard improvements, issuance of an Encroachment Permit by the Public Works Department, issuance of a Building Permit by the Building Department, approval from all affected/adjacent property owners, and compliance with the . Encroachment Permit conditions for all encroachments; 2) authorize the Mayor and City Clerk to execute the agreement; and 3) authorize and direct the City Clerk to have the agreement recorded with the Orange County Recorder. Volume 61 - Page 624 INDEX Ord 98 -2 Commercial Vehicle Weight Limit (85) Ord 98 -3 Planning Commission Amendment 867 (94) Ord 98 -4 Res 98 -16 Balboa Village BID (27) Encroachment/ 216 Poppy Avenue EP -98 -028 (65) City of Newport Beach City Council Minutes February 23, 1998 MISCELLANEOUS ACTIONS 8. Removed from the Consent Calendar at the request of Council Member Noyes. 9. EMPLOYMENT OF FORMER CITY EMPLOYEE. Authorize the City Clerk's Department to hire retiree, Patty Mao, as a temporary administrative clerk for a period of three days. 10. APPROVE BUDGET AMENDMENT (BA -045) TO APPROPRIATE $5,500 FROM THE SENIOR CITIZEN SITE RESERVE FOR EQUIPMENT REPLACEMENT AND REFURBISHMENT OF THE MULTI - PURPOSE ROOM. 11. APPROVE BUDGET AMENDMENT (BA -046) TO APPROPRIATE $1,695 GRANT FUNDS ABOVE THE $10,000 EXPECTED FROM CALIFORNIA STATE LIBRARY, CA LITERACY CAMPAIGN TO PART -TIME SERVICES. 12. UPDATE ON UPPER NEWPORT BAY DREDGING PROJECT Receive and file. 13. LIQUIDATED DAMAGES COUNCIL POLICY. Adopt City Council • Policy L -11 on liquidated damages. 14. GENERAL PLAN AMENDMENT 98 -1 — REQUEST TO INITIATE AMENDMENTS TO THE NEWPORT BEACH GENERAL PLAN AND LOCAL COASTAL PROGRAM, LAND USE PLAN, AS FOLLOWS: A) 1800 -1806 WEST BALBOA BLVD. (BEST WESTERN BAY SHORES INN); B) 1401 DOVE STREET (NEWPORT PLACE PLANNED COMMUNITY); C) 1301 QUAIL STREET AND 895 DOVE STREET (NEWPORT PLACE PLANNED COMMUNITY); AND D) 4700 SURREY DRIVE, CORONA DEL MAR (SHELTON RESIDENCE). Sustain the action of the Planning Commission to initiate the amendments; direct staff to proceed with the preparation of any necessary environmental documents and set for public hearing before the Planning Commission. Motion by Council Member O'Neil to approve the Consent Calendar, except for the item removed (8). Without objection, the motion carried by acclamation. ITEM REMOVED FROM THE CONSENT CALENDAR 8. PLANNING COMMISSION AGENDA FOR FEBRUARY 19, 1998. In response to Council Member Noyes' question, Assistant City Manager Wood reported that all the continued items were at the request of the applicants. • Motion by Council Member Noyes to receive and file the report. In response to Council Member Noyes' concern regarding absenteeism, City Volume 51 - Page 625 INDEX Personnel (66) BA -045 Equipment Replacement (40/62) BA -046 Library (40/50) Bay Dredging (51) Council Policy/ Liquidated Damages (74) General Plan Amendment 98 -1 (45) Planning (68) 0 City of Newport Beach City Council Minutes February 23, 1995 Manager Murphy indicated that staff can get back with Council with more information. Without objection, the motion carried by acclamation. PUBLIC COMMENTS Al Willinger, 11 Seahaven, Newport Coast, representing the homeowners' associations, expressed opposition to the annexation of Newport Coast. He indicated that they were not afforded the opportunity to address their concerns and requested a meeting with staff and Council. Mr. Willinger stated that he collected more than 600 signatures of opposition, emphasizing that Newport Coast residents want equal treatment with Newport Beach's residents. He expressed the opinion that Newport Coast's evaluations over the next 10 years are much higher than the City's. In response to Council Member Debay's question, Mr. Willinger stated that staff met with the community in January but that it generated more questions for the residents. He indicated that he would like more time to work with staff. • Robert Saunder, 25 Clermont, Newport Coast, presented Council with 141 signatures of residents who oppose the annexation. He stated that the City needs to address the relief from bonded indebtedness; assumption of maintenance of the parks, slopes, and medians; and full participation on Council. He added that Newport Coast residents will force an election unless the City modifies its proposal to accommodate their concerns. PUBLIC HEARINGS 15. PUBLIC HEARING TO RECONSIDER PREVIOUS ACTION (APPEAL OF THE DECISION OF THE PLANNING COMMISSION) ON THE APPLICATION OF WINDOWS ON THE BAY RESTAURANT (SCOTT SHUTTLEWORTH, APPLICANT) FOR USE PERMIT NO. 3293 (AMENDED). THE PROPERTY IS LOCATED AT 2241 WEST COAST HIGHWAY. THE CITY COUNCIL'S RECONSIDERATION MOTION WAS APPROVED TO REVIEW ONLY ITEMS RELATED TO THE FOLLOWING CONDITIONS: 4. That when regular meal service ceases, a portion of the dining room shall be cordoned off and closed to the public, to provide adequate security and to ensure that occupancy of the entire premises does not exceed the total that would occur when the dining room and outdoor patio are used for dining. The final plan of the area to be closed and the method used shall be submitted for review and approval by the Planning Department and the Police Department within ten days of approval. • 32. That physical barriers be designed, installed, and maintained around the patio area for the purpose of minimizing the potential for noise to be heard at residences on Lido Isle, and that such barriers be designed Volume 51- Page 626 INDEX Windows on the Bay/Use Permit 3293 (88) City of Newport Beach City Council Minutes February 23, 1998 INDEX to insure compliance with the Noise 33. That no bar, either permanent or portable, shall be allowed on the patio. 34. That the patio shall be closed to use by patrons or employees of the business at 9:00 p.m., Sunday through Thursday, and 10:00 p.m., Friday and Saturday. 35. That the patio shall be closed for the evening upon verification of non- compliance with any conditions of this Use Permit and, if the patio is not closed, that matter shall be referred to the Planning Department for action on the Use Permit. 36. That no special events which make use of the outdoor patio shall be allowed after 9:00 p.m. daily. Council Member Glover reported that she attended several meetings with the applicant and representatives of the Lido Isle Community Association to discuss this issue. She expressed the opinion that most issues have been agreed upon and thanked everyone for their hard work. She indicated that she intends to work with staff, the residents, and the business community to ensure that noise from bayfront businesses does not interfere with resident's • quality of life. Council Member Glover reported that Council will consider regulations for bayfront businesses at the March 9 meeting and that she intends to ask Council to form a committee that includes members of Council, residents, and the business community to assess issues related to noise and, if necessary, obtain noise measurements on residential property and retain a noise consultant to advise on feasible methods of controlling noise without undue impact on businesses. Motion by Council Member Glover to delete Condition 4; modify Condition 32 to read, "Existing physical barriers around the patio shall be maintained and, in addition, a glass door shall be installed on the bay side of the patio if permissible pursuant to the Americans with Disabilities Act;" modify Condition 33 to read, "Subject to conditions relative to hours of operation, a single bar shall be permitted on the patio. No bar stools or other seating shall be permitted at the bar," modify Condition 34 to read, "On Sunday night through Thursday, night the patio will be cleared of persons on or before 11 p.m. On Friday night/Saturday morning and Saturday night/Sunday morning, the patio will be cleared of all persons by 12:30 a.m. The hours of operation must be posted on the patio at all times. Music shall cease at 10 p.m.;" modify Condition 35 to read, "The patio shall be closed for the evening in the event of any violation of the Community Noise Control Ordinance;" and modify Condition 36 to read, "Special event permits issued by the City shall be consistent with the terms and conditions of this Use Permit." • Council Member Glover reassured residents that existing conditions for Windows on the Bay require the patio speakers to be lowered and allow only background music on the patio. She pointed out that City codes limit Volume 51- Page 627 City of Newport Beach City Council Minutes February 23, 1998 • occupancy on the patio and require occupancy limits to be posted. She stated that the Police Department will respond to noise complaints and will take appropriate action and that Police Chief Bob McDonell will speak to this issue. Council Member Debay indicated that her and Council Member Hedges were also at the meetings and noted the residents' concern relative to setting precedence for future applications. She reported that there are no standards regarding noise control and requested that staff determine standards for new applicants. Council Member Debay requested a staff report relative to the feasibility of having a code enforcement official on duty during evening hours who is familiar with the code, can check businesses for compliance, and report back to the Planning Director the next day to ensure immediate action. Mayor Edwards requested that Council give a sense regarding the proposed motion. Council Member Noyes expressed support of the motion. However, he requested that the bar close at either 11 p.m. or midnight. Mayor Pro Tern O'Neil supported the motion. Council Member Debay expressed support of the motion but preferred that the bar close at 12:30 a.m. This will allow patrons to finish their drinks by 1 a.m. • Council Member Thomson expressed his general support of the motion, with closing at 11 p.m. on weekdays and midnight on weekend. He suggested eliminating music on the patio entirely. Council Member Glover indicated that she made her motion public so that Mr. Pence (President of the Lido Isle Community Association) could distribute it to residents and also give a copy to Mr. Shuttleworth. Mayor Edwards opened the public hearing. Vicki Bowers, 3064 Corte Marin, read a letter from Evelyn Hart on behalf of the Residents' Advocacy Committee which supported the Lido Isle Community Association objections; expressed the opinion that residents need to have a voice in City matters that affect the quality of life and property values, that this issue should be addressed on a citywide basis, that Windows on the Bay is an example of a policy issue that directly affects Harbor residents; stated that restaurants, tour boats, party boats, pleasure boats, and waterfront residents and visitors all deserve a reasonable level of peace and quiet with no late evening disturbances; expressed the opinion that granting this exception will establish precedence for all present and future restaurants to establish noisy and late hours of operation throughout the City; stated that nothing new was brought forward from the January 26 and February 9 meetings to warrant reconsideration of the Council's unanimous decision; suggested studying the is impact of the proposed changes and notify potentially impacted residents before acting; stated that noise standards are needed based on full summertime population loads, with separate standards for water - echoed noise and inland generated noise; and expressed the opinion that the January 26 Volume 51 - Page 628 ` I1��51�K1 City of Newport Beach City Council Minutes February 23, 1998 isconditions should be maintained, as is, until a City wide study and notification process is completed. Paul James Baldwin, 326 Via Lido Nord, commended Council on its unanimous vote on January 26. He stated that he is now disturbed with the potential reconsideration. He expressed the opinion that noise over water is a whole harbor issue and invited Council to visit his house and listen to the noise from Windows on the Bay. Harry Crowell, 554 Harbor Island Drive, expressed the opinion that he has never found Windows on the Bay to be noisy as he frequents there often. Further, that there are similar restaurants all over Newport Beach and that this is what makes the City great. He suggested that Council handle the situation so that it does not place too many restrictions that the business cannot survive and prosper. Marcia Dossey presented a letter from a local appraiser. She commended Council Members Debay, Hedges, and Glover for meeting with everyone and agreed that standards need to be set. She stated that she has heard the noise but that Windows on the Bay has been consistent in helping to reduce the noise. She expressed the opinion that property owners have the right to have quiet enjoyment of their property. She believed that property values will diminish since realtor's will have to disclose the noise issue to potential buyers. • Chris MacDuff, 1304 Park Avenue, stated that he refers guests to Windows on the Bay because the patio is a good venue. He indicated that Council needs to consider the amount of tax dollars generated and that the revenue needs to stay within the City. He expressed the opinion that the music on the patio is merely background music to allow patrons the ability to enjoy the patio. He added that Windows on the Bay should not be made an example, that they should be allowed to operate as they have been, and that the motion is harsh. Joe Rosener, 125 Via Venezia, suggested that Council not take action until they have all the facts. He indicated that the conditions to decrease the noise are architectural and recommended conducting noise measurements at the properties. He stated that he has background in this field and would be pleased to meet with staff. Mr. Rosener expressed the opinion that the City needs a uniform plan to deal with this issue. Faye Eccles, 1527 Dorothy Lane, expressed the opinion that natural resources have been made out of reach and indicated that she brings guests to Windows on the Bay for a nice evening and to enjoy the outdoor atmosphere of the patio. She expressed support of extended hours and her preference to background music. Lynda MacDonald, 1918 Holiday Road, stated that no one noticed the background music during the Saturday meeting and expressed her admiration of Mr. Shuttleworth's work ethics and morals. She took issue with the • constant threats of litigation and with Council Member Hedges' statement at the last meeting regarding the lease. She indicated that Windows on the Bay does not have a 30 day lease. Volume 51 • Page 629 I` 1 ' City of Newport Beach City Council Minutes February 23, 1998 INDEX Patrick Glennon, 3010 San Joaquin Hills Road, stated that he is the Executive Chef at Windows on the Bay. He expressed the opinion that every effort is made to control large crowds and that they do not conduct business like their neighboring restaurants. Mr. Glennon emphasized that the music on the patio is strictly background music that can barely be heard. He agreed that a noise ordinance should be established and that, whatever the restrictions, Windows on the Bay will comply. Wendy Flotow, 240 Nice Lane, expressed the opinion that the restrictions are unfair and that the noise level will not decrease if bar tending were not allowed on the patio. She stated that a control area, such as the patio, is needed to mitigate the noise and crowd control burdens. She also expressed the opinion that restrictions will hurt Windows on the Bay and send a message to potential restaurants that the City has an unfriendly climate for any restaurant with entertainment. Steve Alford, 74 Baycrest Court, expressed the opinion that Council is taking a reactionary approach to an issue that affects everyone and that the residents on the bay do not want to see businesses thrive. He stated that businesses and residents always have noise issues and cannot seem to resolve them. He expressed the opinion that using Windows on the Bay as an example is not right, that it is an example of a properly operated business, and that the owners have always followed the rules. He recommended getting more • information and conducting studies since measuring noise is inexpensive. He suggested allowing Windows on the Bay to operate as it has been until the study is complete. Jim Helfrich, 3166 Corte Hermosa, expressed support of Windows on the Bay. He stated that the restaurant is better operated, more professional, and management is more concerned about the quality of the food, its presentation, and its environment. He expressed the opinion that it would be a disservice to the community to not approve their application. Dwight Belden, 1130 Somerset Lane, expressed the opinion that 11 p.m. is a reasonable hour for a noise mitigated area (patio), with later hours for Friday and Saturday nights. Further, that there is no evidence that merits Mr. Shuttleworth's treatment as being guilty of a noise offense. He noted that the Planning Commission approved the use permit. He believed that the Planning Commission's appeal stems from a small group of residents who are opposed to the patio hours on the basis of noise. Mr. Belden expressed the opinion that Windows on the Bay is not a noise nuisance and that Council should feel compelled to approve the use permit until evidence shows that any noise generated by the business is above what has been generated by the Mariner's Mile over the years. He expressed disbelief that anyone buying property would back out of a real estate transaction because of the 900 square foot patio. Further, that decreased property value is subjective. He suggested also looking at the charter boats regarding noise issues. • Robert Swanson, 23 Curl Drive, agreed that residents deserve the quiet enjoyment of their properties. However, he expressed the opinion that Mr. Shuttleworth should be permitted to operate. He suggested allowing Mr. Volume 51 - Page 630 City of Newport Beach City Council Minutes February 23, 1998 • INDEX Shuttleworth to operate as he has been and make an objective noise measurement. Further, note any Lido Isle complaint and give Mr. Shuttleworth the opportunity to fix it. Leha Shuttleworth, 1918 Holiday Road, expressed the opinion that there is an understanding that if you choose to live near the water in Newport Beach that there will always be an influx of people that will be enjoying the water. She stated that the 36 conditions will only memorialize the current operational standards and that these conditions will be in effect no matter who operates the restaurant. She noted that Windows on the Bay has a positive track record of complying with the noise ordinance. Ms. Shuttleworth indicated that the Police Department has had no complaints in about two years and indicated that Mr. Shuttleworth went to the City and received no objections to building the patio. Three years later, on his own accord, he noticed discrepancies and went to City Hall to update the permit. She pointed out that the Planning Commission unanimously approved the request and found that Windows on the Bay was below the allowed noise level. She expressed the opinion that placing conditions on a restaurant that has been in compliance with noise ordinances does not make sense and that they should be given the latitude to operate until the July hearing. Dan Luxenberg, 416 Via Lido Nord, expressed the opinion that this issue does not only deal with Windows on the Bay but any noise from across the bay. He • expressed the opinion that the patio noise is amplified off the water and urged Council to uphold its January 26 vote. Martin Weinberg, 100 Via Lido Nord, stated that he does not have any real criticism with Windows on the Bay; that he went by the restaurant Saturday night at about 11 p.m.; and that the restaurant was packed even though it was raining. He noted that the real issue is noise. He expressed the opinion that not enough value has been given to the property owners and that Windows on the Bay's ability to profit is at the expense of the property owners. Mr. Weinberg noted that no other restaurant, except the Balboa Bay Club, has a patio along Pacific Coast Highway and believed that the patio was not built in the specified timeframe or in the location indicated on the permit. He stated that Mr. Shuttleworth agreed at that time to not having a bar or music on the patio and to the patio closing at 11 p.m. He suggested that the City look into a uniform plan and expressed the opinion that anything open past 10 p.m. would be offensive to residents that live on the water and that summertime will pose additional problems. Bill Klein, 101 Via Lido Soud, stated that this is an issue that deals with standards and enforcement and that Council will be setting standards for the future of the entire City. He noted that Council will also have to deal with the smoking ban driving people out to the patios. Mr. Klein expressed the opinion that the current standards have not been enforced and that the standard of life in the community is in jeopardy if they are not set. He recommended upholding the January 26 unanimous vote and conducting a study. • Greg Brown, Craig and Brown Law Firm, 38 Corporate Park, Irvine, reviewed affirmative staff recommendations in a October 23 staff report. He requested Volume 51 - Page 631 • City of Newport Beach City Council Minutes February 23, 1998 INDEX that Council approve the recommendations in tonight's staff report, allow a bar on the patio, and permit the patio to remain open until 1 a.m. He noted that the Balboa Bay Club allows drinking on the patio until 2 a.m. and expressed the opinion that the conditions violate fundamental fairness. Dee Higby, 218 Via Lido Nord, stated that she is just requesting that the restaurant close at an hour that allows residents the ability to go to bed without being awakened. She expressed the opinion that the proposed hours are unjust to the residents and noted that other areas in the City have time restraints. She pointed out that Mr. Shuttleworth previously agreed to closing at 9 p.m. Ms. Higby suggested that Mr. Shuttleworth not close down 50 percent of its restaurant to setup for the next day to accommodate those that want to use the patio. Robert Baker expressed the opinion that Council would not like the restaurant in their backyard and stated that his wife complained about the noise to the restaurant but not to the Police Department. He urged Council to side with the homeowners. Peter Helfrich, 1912 Holiday Road, agreed that the main issue is noise, that the Lido Isle residents have valid points, and that quality of life is important. However, he expressed the opinion that there is no evidence that Windows on the Bay is the source of all the noise. He noted the noise level at Joe's Crab • Shack and expressed hope that Council will approve this and allow Windows on the Bay to operate during the hours needed. Joe Baker expressed the opinion that whatever action is taken with Windows on the Bay will set precedence and that the noise ordinance is unenforceable. He stated that the decision will affect residents, not businesses, and that the restaurant should be able to keep things under control at a reasonable time. Police Chief McDonell indicated that noise complaints are also grouped with disturbances by people under the influence of alcohol. He explained that, if someone calls with a noise complaint, the dispatcher will ask where they feel the. noise is emanating from and if they want to be contacted when the situation is under control. He stated that it is his experience that most residents just want the noise to dissipate and not be contacted. He explained that the officer determines the origin of the noise, but uses his best judgment regarding the noise level since the officer does not have a noise measuring device. If the noise is generated from a business, the business is asked to close windows or lower the music. He affirmed that the officer does have the ability to issue a citation, but must have someone to testify. Chief McDonell reported that, in the past 12 months, Windows on the Bay received four complaints, Joe's Crab Shack received 9 complaints, and the Lido Isle area received 45 complaints. He also reported that the reporting district which contains Joe's Crab Shack received 211 complaints and that the Windows on the Bay reporting district received 86 calls. • In response to Council Member Glover's question, Chief McDonell reported that, if Vice and Intelligence notices patterns of complaints with businesses that possess ABC Licenses, they will contact the Planning Department. Volume 51 - Page 632 • City of Newport Beach City Council Minutes February 23, 1998 INDEX However, the Planning Department is not contacted if the complaints are just noise related. Council Member Glover expressed the opinion that Joe's Crab Shack created problems for Windows on the Bay and future businesses since their noise issues have not been dealt with in a satisfactory manner. In response to Council Member Noyes' question, Chief McDonell speculated that "disturbance calls" have decreased because the Police Department has already dealt with a lot of issues in the West Newport area. Elaine Weinberg, 100 Via Lido Nord, asked why Council is conducting so many meetings if there is no noise issue. She stated that the issue is the patio area since the City has never had a patio area that had a bar and played music. She expressed the opinion that this would set precedence and change the shape of the City. Ms. Weinberg recommended conducting a noise study and continuing this item until the study is completed. She stated that an attorney friend of hers presented her with an El Toro noise study that is different than what was agreed upon. Paul Weinberg, 138 Via Xanthe, stated that the main issue is privacy and noise. He expressed the opinion that privacy is a fundamental right and that emotions should not be used when voting. Tom Hyans, President of the Central Newport Beach Community Association, • stated that the Association supports the position of the Residents' Advisory Committee and noted that Council took the side of the residents two meetings ago. He expressed the opinion that residents do not complain about restaurants to the Police Department, but to the restaurant itself. Further, that the City makes residents uptight when they are overly permissive with restaurants. He believed that the City should give Windows on the Bay a six month review period. Scott Shuttleworth, applicant, understands that the issue is about noise. He stated that the only thing he can do as a restaurant owner is operate within compliance of the noise ordinances. He expressed the opinion that the noise issue should not relate to the hours of operation since they will be able to comply while using the facility they have. Mr. Shuttleworth expressed understanding toward the residents' views but pointed out that there would not be a problem if everyone complied as Windows on the Bay is complying. He stated that they would rather be a leader in compliance and in helping other restaurants adhere to the noise ordinances than to be the ones setting precedence. He believed that the standards need to be across the board and not limit the hours of operation. Further, that Windows on the Bay should not be singled out. He expressed the opinion that Windows on the Bay has the right to prove that they can comply and operate with the same hours. He requested that Council support the hours that they need. Council Member Debay asked if Mr. Shuttleworth understands the motion and . is willing to comply with all conditions in the motion. Mr. Shuttleworth concurred, stating that he understands that the motion will take away things. He noted that there is a four month timeframe and that they will continue to abide by the laws. He urged for Council approval. Volume 51 - Page 633 • City of Newport Beach City Council Minutes February 23, 1998 INDEX Lawrence Higby, 218 Via Lido Nord, expressed the opinion that the City will not be taking away anything since the patio was built without a use permit and now the owners are trying to ratify their construction. He indicated that, at their Saturday meeting, Mr. Shuttleworth did not have a problem with closing at 9:30 p.m. He stated that there is a noise problem and that the residents are asking for a reasonable kind of consideration. Mr. Higby expressed the opinion that a study would be advantageous for the City as this will set a long term precedence and since other restaurants with longer operating hours will soon want what Windows on the Bay has. Mayor Edwards clarified that, if the City held off from conducting any action, Windows on the Bay would operate under its previous conditions from the past three years until July or August. Mr. Higby expressed the opinion that it should be cut back. He also noted that the time of year that the noise issues will be prevalent is during summer. He suggested either setting standards now or hold off. Kathryn Helfrich, 3166 Corte Hermosa, stated that she has never had any noise trouble or been awaken by noise in her 29.5 years in the bay area and expressed the opinion that anyone purchasing property on the water will have noise issues that will not go away. • Carolyn Klein, 101 Via Lido Soud, stated that all she wants is peace and quiet. She noted that she has nothing against the restaurant, but believes that the property owner has a right to peace. Ms. Klein expressed the opinion that the health, safety, peace, comfort, and general welfare of her property is imposed upon by this issue. Further, that no one wants to live across from a bar that is open until 1 a.m. as it is detrimental to property values. She disagreed with the staff report indicating that Windows on the Bay will not be detrimental and believed that it would be a violation of her property rights. She stated that Council needs to make some sort of compromise like those made during the January 26 meeting. Jim Baur, partner, 5509 West Seashore Drive, stated that experts set standards, studies have been conducted, and Windows on the Bay has abided with all the standards. He indicated that the patio is generally closed at 11 p.m. on Sunday through Thursday and occasionally at midnight on Friday. However, he expressed the opinion that closing before 12:30 a.m. on Saturday nights would be a "death sentence;.' noting that Balboa Bay Club remains open until 2 a.m. He stated that Windows on the Bay tries to accommodate the City and residents by closing early even when they are allowed to serve drinks until 1:45 - 2 a.m. He requested that the City set standards and guidelines and affirmed that Windows on the Bay will be more than happy to comply. He stated that the City is setting standards based on a 900 square foot area with a capacity for only 45 people. Marge Lessinger, 416 Via Lido Nord, stated that she is upset that everyone is • talking about the time issue and that there was never a patio before. She expressed the opinion that it is not fair for a patio to be open until 12:30 a.m., especially since the noise enters her bedroom. She stated that the patrons should be moved to the front of the restaurant during late hours. Volume 61 - Page 634 • City of Newport Beach City Council Minutes February 23,1998 INDEX Hearing no further testimony, Mayor Edwards closed the public hearing. Substitute motion by Council Member Hedges to defer action until Council establishes standards governing bayfront restaurant uses. Mayor Edwards asked whether Windows on the Bay will continue to operate under its current conditions if the motion was approved. City Attorney Burnham expressed the opinion that the use permit that the Planning Commission recommended approving is no longer in effect and that Windows on the Bay would not be entitled to operate legally as he did before. Further, the City would be required to either take no enforcement action or require Mr. Shuttleworth to bring Windows on the Bay into conformance with the use permit. Council Member Hedges clarified that he offered the motion because the testimony, both pro and con, has indicated that there needs to be a level playing field with a clearly definable set of standards, especially in light of the no smoking law and future applications. He stated that Council needs to respond and anticipate potential problems rather than react to individual applications. Mayor Edwards requested and received clarification from Mr. Burnham and Mr. Murphy that noise reduction after 10 p.m. in commercial areas goes from • 65 to 60 decibels and 55 to 50 decibels in residential areas. In response to Council Member Thomson's question relative to noise testing, Ms. Wood indicated that measurements would be taken at both the restaurant and residential area. Mr. Murphy reiterated that the Police Department does not measure noise but relies on the officer's judgment. He also noted that noise standards are included in the staff report. Council Member Noyes stated that he understands the motion, but asked how a study can be conducted unless the restaurant is operating. He also stated that it was his understanding that the residents came to some type of agreement on Saturday. Council Member Noyes suggested having the restaurant open until 10 p.m. during the weeknights, 11 p.m. or midnight on Friday, and 1 a.m. on Saturday. He noted that the issue will be brought back in July and agreed that the study will give something definitive to make a decision. Mayor Edwards recessed the meeting at 9:20 p.m. and reconvened at 9:30 p.m. with all members present. The substitute motion failed due to a lack of a second. Council Member Hedges took issue that the motion did not receive a second since the motion was to develop universal standards and hold this application • until Council is able to develop them and apply them equally across the board. He expressed the opinion that Council is singling out a business for special treatment. He pointed out that Mr. Shuttleworth understood and agreed to all the conditions set during the Planning Commission meeting of September 10, Volume 51 - Page 635 City of Newport Beach City Council Minutes February 23, 1998 INDEX 1992, and noted that at least 2 Council Members were Planning Commissioners at that time. He also read a letter from Mr. Shuttleworth to the Planning Commission regarding an inspection in April 1997, expressing the opinion that the conditions were willfully ignored by the applicant. Council Member Hedges stated that this is a lesson as to the representation residents hope to receive in the future regarding how the balance between residents and businesses is conducted. He indicated that Council is not anti - business and that the Chamber of Commerce is looking at bigger issues for businesses, such as the traffic phasing ordinance. He noted that there is already opposition to this issue. He warned that Windows on the Bay might have won the battle tonight but stand to lose the war on important business issues. Council Member Hedges also apologized to the residents in attendance, expressing the opinion that the decision was probably made prior to any testimony, as indicated by the Mayor's request for Council to express sentiments regarding the written and distributed motion. He expressed the opinion that residents will not get any legislative relief tonight, otherwise the decision of January 26 would have been upheld. At Council Member Noyes' request so he could second the substitute motion, Council Member Hedges reiterated the first portion of the substitute motion, stating that Council will take no action on the application pending the establishment of uniform standards governing bayfront businesses and restaurants. • Motion by Council Member Noyes to establish universal standards for bayfront restaurants. In response to Mayor Edwards' question, Mr. Burnham clarified that Council has not agendized the issue of bayfront business standards this evening. He pointed out that it is up for discussion at the March 9 meeting. The motion failed due to a lack of a second. Council Member Glover clarified that she distributed her motion prior to the meeting because she had been working with Mr. Pence who was with her during Saturday's meeting and who received six to eight requests from the residents. She stated that she generated her motion and tried to accommodate the residents' requests. However, she sent the motion to Mr. Pence so that he could make the residents aware that she was making a motion that differed from their requests for hours of operation. Council Member Glover expressed her belief that this was fair to send the motion to Mr. Pence so that the residents in attendance would not be surprised when they heard the differing motion. She stated that they had an opportunity to discuss the motion with her today and emphasized that she was trying to be honest and open with the citizens. She indicated that Mr. Pence received the motion even before Council received it over the fax late this afternoon. Amended motion by Council Member Hedges to change the hours of • operation for patio closure to 10 p.m, on Sunday through Thursday and midnight on Friday and Saturday. Volume 51 - Page 636 • City of Newport Beach City Council Minutes February 23, 1998 Without objection, the amended motion carried by the following roll call vote: Ayes Thomson, Debay, Hedges, Noyes, Mayor Edwards Noes: Glover, O'Neil Abstain: None Absent: None Without objection, the main motion, as amended, carried by the following roll call vote: Ayes Thomson, Debay, Hedges, Noyes, Mayor Edwards Noes: Glover, O'Neil Abstain: None Absent: None 16. STATUS REPORT ON DEVELOPMENT AGREEMENTS NOS. 4 AND 6 (contd. from 1/26/98). Mayor Edwards opened the public hearing. Hearing no testimony, Mayor Edwards closed the public hearing. Motion by Council Member O'Neil to determine that Development • Agreement No. 4 (The Irvine Company, Library Exchange Agreement) and Development Agreement No. 6 (The Irvine Company, Circulation Improvement and Open Space Agreement (CIOSA)) are in compliance. Without objection, the motion carried by acclamation. 17. APPOINTMENTS BY THE CITY COUNCIL TO THE CITIZENS ADVISORY COMMITTEES FOR A ONE -YEAR TERM ENDING DECEMBER 31, 1998 (appointed by Council upon recommendation of each Council Member). Motion by Council Member O'Neil to confirm the following appointments: Bicycle Trails Citizens Advisory Conunittee (District 1) Council Member Hedges' appointment of and (Left vacant pending potential sunsetting of committee) (District 2) Council Member Debay's re- appointment of Paul Watkins and vacant. • (District 3) Council Member Glover's re- appointment of Edward Rice and appointment of (vacant). (District 4) Mayor Edwards' appointment of Sandra Glaser and (vacant). Volume 51 - Page 637 INDEX Development Agreements C- 2823AIC2920A (38) Citizens Advisory Committees (24) City of Newport Beach City Council Minutes February 23, 1998 • INDEX (District 5) Council Member Noyes' re- appointment of Donald Harvey and appointment of (vacant). (District 6) Mayor Pro Tem O'Neil's re- appointment of Douglas Or and Norman Mover. (District 7) Council Member Thomson's appointment of vacant and (vacant). Harbor Quality Citizens Affairs Committee (District 1) Council Member Hedges' re- appointment of Leonard Miller. (District 2) Council Member Debay's re- appointment of Susan Leifer. (District 3) Council Member Glover's re- appointment of George Drayton. (District 4) Mayor Edwards' appointment of Bud Frenzel. (District 5) Council Member Noyes' re- appointment of Tom Houston. (District 6) Mayor Pro Tem O'Neil's re- appointment of Miriam Mayell. (District 7) Council Member Thomson's re- appointment of Nancy Skinner. • Without objection, the motion carried by acclamation. 18. ACTION PLAN TO RESOLVE LIGHTING ISSUES AT FLETCHER Fletcher Jones JONES MOTORCARS. Motorcars C -3067 (38) Mayor Edwards pointed out that Fletcher Jones brought in a lighting expert who determined that the contractor installed the incorrect series of interior lights. He reported that the situation is being resolved. City Manager Murphy stated that the interior lights will be changed this week and reviewed the recommendations outlined in the staff report. Carol Hartman, 414 Plata, stated that she was aware of the lighting expert's findings. Further, that the residents are pleased to see that the lighting issue has moved forward, but not pleased about the length of time it has taken. She expressed concern relative to the consistency of the lights and expressed the desire to have all the lights turned off when the business is closed. She also noted that the service bay lights are always on. Ms. Hartman expressed support of the recommendation and her belief that the landscaping issue is mitigation not beautification. She asked about the enforcement process after Fletcher Jones Motorcars receives its certificate of occupancy. • Garth Blumenthal, Fletcher Motor Motorcars, 3300 Jamboree Road, reported that the interior lights were changed to incandescent spotlights and the lights in the showroom were dimmed as of 5:30 p.m. He stated that about seven cars Volume 51 - Page 638 CJ City of Newport Beach City Council Minutes February 23, 1995 were spotlighted and expressed the opinion that the neighbors would be pleased. Mr. Blumenthal expressed current lighting issue concerns: safety for employees, customers, and guests when they leave the facility or drop off their vehicles at 10 p.m.; general security for the vehicles that remain on the lot after hours as their outside security company is having difficulty viewing the facility; and the ability to merchandise the vehicles on Jamboree Boulevard. He stated that the dealership agreed to close at 6 p.m. even though no dealership closes that early on Saturdays or Sundays. He expressed the opinion that Fletcher Jones Motorcars has met or exceeded all the conditions of original approval, that the landscaping area is not on the property site, and that they should be granted their certificate of occupancy. In response to Council Member Debay's questions, Mr. Murphy confirmed that the landscaping area is off site of the property. Further, that all the mitigation measures were presented in order to judge where the City is in the process and then make a final action. He stated that it was staffs intent to give Fletcher Jones Motorcars a 30 -day period to verify that all the conditions were met. She expressed the opinion that it may not be fair to withhold the certificate if there is trouble with the landscaping. Motion by Council Member Hedges to approve the plans; direct staff to report to Council when the plan implementation is complete, at which time, Council will make a determination as to whether to start the 30 -day review • period; and direct staff to withhold final certificate of occupancy until Council establishes that, at the end of the 30 -day period, mitigation measures and conditions are satisfactory. • Without objection, the motion carried by acclamation. CURRENT BUSINESS 19. UPDATE REGARDING NEWPORT COAST ANNEXATION. Al Willinger, 11 Seahaven, Newport Coast, stated that Deputy City Manager Ducey and Assistant to the City Manager Kiff met with him in the lobby during the meeting. He stated that residents of Newport Coast are concerned with equal treatment regarding park maintenance, trash issues, and the landscape median maintenance. He believes that substantial surplus will be generated and that they should be able to share in the surplus. He noted that, at the end of the build out period, $5.5 billion would be generated and $10 billion over 15 years based on appreciation and normal price increasing. Mr. Willinger expressed concern that a disproportional amount of the tax revenue will be used for the existing City needs, not for Newport Coast, and that they will not receive an adequate return of tax dollars into the community. He requested to see the agreement with The Irvine Company prior to any action and requested clarification relative to density and zone change situations. He also expressed concern relative to bonded indebtedness to the Irvine Ranch Water District; the El Toro Airport situation in the event of a westerly takeoff, and the Orange County Sheriffs Department's response time. Volume 51 - Page 639 INDEX Newport Coast Annexation (21) • u • City of Newport Beach City Council Minutes February 23, 1998 Regarding Mr. Willinger's concern relative to a westerly takeoff at El Toro Airport, Council Member Hedges stated that the Board of Supervisors resolved that no westerly takeoffs will occur. Council Member Noyes also gave him a copy of the City's newsletter. Council Member Glover requested to meet with Newport Coast residents. Mr. Willinger welcomed the opportunity and stated that an organized group has been formed that represents a majority of the homeowners' associations. Daniel Wampole, 27 Bridgeport Road, Newport Coast, requested that Council slow down and noted that he has over 600 signatures opposing the annexation. He stated that residents are receiving information that the Council district will be divided and that Newport Coast residents will be paying for trash pickup when no one else in the City does. He clarified that residents want to be a part of Newport Beach but want more information first. Council Member Hedges suggested conducting a special meeting with Newport Coast residents and staff to provide a public forum to ask questions. Motion by Mayor Edwards to receive the report and continue action on the filing of a LAFCO application and Plan of Services to March 9, 1998. Without objection, the motion carried by acclamation. 20. ALL SPHERES OF INFLUENCE REPORT (Request of Council Member Glover). Council Member Glover explained that it is important to discuss the potential growth of the City including all the spheres of influence and at total build out. City Manager Murphy reported that the staff report is trying to show a long term count which is already in the General Plan. In 1988, the General Plan looked at the maximum numbers if every lot in the City were built out, which would probably never happen. He stated that the calculations were also factored into the land use element and circulation element. Council Member Glover reported that, if all the spheres of influence were built out, the population would increase to 89,500. She reviewed the spheres of influences individually and questioned how big the City wants to be. Motion by Council Member Hedges to receive report and form an ad hoc committee, consisting of Council Members Glover and Noyes, to review the issues and bring back a report to Council. Without objection, the motion carried by acclamation. 21. UNSCHEDULED VACANCY ON THE CITY ARTS COMMISSION Motion by Mayor Edwards to confirm the nominations of Arlene Volume 51- Page 640 110111 �1:1 Spheres of Influence (21) Arts Commission (24) City of Newport Beach City Council Minutes February 23, 1998 • INDEX Cartozian and Amy Veith; and make an appointment on March 9, 1998 (1 vacancy). Without objection, the motion carried by acclamation. 22. APPOINTMENT OF CHAIRMAN TO THE ECONOMIC EDC Appointment DEVELOPMENT COMMITTEE (EDC). (24) Motion by Mayor Edwards to appoint Ed Selich to serve as Chairman of the EDC. Mayor Edwards requested that Former EDC Chairman Rush Hill be presented with a certificate at a future date. Without objection, the motion carried by acclamation. 23. ADOPT RESOLUTION NO. 98 -17 APPROVING THE RESTRUCTURING OF THE ENVIRONMENTAL QUALITY AFFAIRS CITIZENS ADVISORY COMMITTEE. Council Member Glover reviewed the staff report, stating that there was discussion with residents relative to each Council Member appointing either two or three members. She stated that the reason it was decided that a • chairman should be named to the Committee was because the residents felt that EDC had been successful and that EQAC should be modeled after EDC. Council Member Hedges questioned whether the Mayor will be able to appoint a current member as Chairman, which would create a vacancy. Mayor Edwards stated that the intent was not to appoint the Chairman from the existing committee, but it is possible. Motion by Council Member Glover to adopt Resolution No. 98 -17 approving the restructuring; and confirm the nominations. Council Member Noyes stated that he served on EQAC for two years and emphasized the need for a good EQAC. He expressed the opinion that he would like to see a broader committee. Substitute motion by Council Member Noves to expand the Committee to consist of two appointees from each Council Member in the district and one appointee at large; to have the staff liaison be the same as the EDC liaison; and to amend the third bullet of duties to read, "Receive, review, and transmit to COAs/HOAs all the City's notices of public hearings via the bi- monthly Council Agenda (1 copy)." Mayor Edwards stated that the residents want a responsive committee that communicates with the homeowners' associations. • Council Member Debay stated that the at large member could be the person who is active on a subcommittee. Council Member Noyes explained that there is not enough manpower with just two members per Council to do all Volume 51 - Page 641 Res 98 -17 EQAC (24) City of Newport Beach City Council Minutes February 23, 1998 I0 0 ` Council Member Hedges stated that EDC is a good model since EQAC will be talking about quality of life issues. He agreed that having three members has merit, but they would need to set their own scope of work. He suggested starting with two members and later expand, if necessary. Council Member Glover stated that it was concluded that the Committee would create their own scope of work and bring it back to Council. Following discussion, the substitute motion carried by the following roll call vote: Ayes Thomson, Debay, O'Neil, Noyes Noes: Hedges, Glover, Mayor Edwards Abstain: None Absent: None Without objection, the following nominations were confirmed: Environmental Quality Affairs Citizens Advisory Committee (District 1) Council Member Hedges' appointment of Tom Hvans, Don • Gregory, and (at large). (District 2) Council Member Debay's appointment of and (at large). (District 3) Council Member Glover's appointment of Sean Walsh, and (at large). (District 4) Mayor Edwards' appointment of Mike Bigi, Bonnie O'Neil, and (at large). (District 5) Council Member Noyes' appointment of Jack Callahan, Brent Jacobsen, and (at large). (District 6) Mayor Pro Tem O Neil's appointment of Pat Michaels, John Robertson, and (at large). (District 7) Council Member Thomson's appointment of Judy Ware, and (at large). Appointed to serve as Chairman of the EQAC. MOTION FOR RECONSIDERATION - None ADJOURNMENT - 10:57 p.m. Adjourned in memory of Former Supervisor Tom • Riley. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Volume 51 - Page 642 City of Newport Beach City Council Minutes February 23, 1998 is The agenda for the Regular Meeting was posted on February 18, 1998, at 3:00 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Recording SA etar,.� Mayor City Clerk • Volume 51 - Page 643 INDEX