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HomeMy WebLinkAbout11/09/2004 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting November 9, 2004 - 7:00 p.m. STUDY SESSION - 4:30 p.m. CLOSED SESSION - 5:45 p.m. INDEX A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Rosansky, Bromberg, Webb (arrived at 7:05 p.m.), Daigle, Nichols, Mayor Ridgeway Absent: None C. CLOSED SESSION REPORT - None. D. PLEDGE OF ALLEGIANCE - Mayor Pro Tem Bromberg E. INVOCATION - Pastor Eric Heard, Small Groups Ministry, Mariners Church F. PRESENTATIONS Sister Cities Presentation and Introduction of Contingent from Okazaki Following the playing of the United States and Japanese National Anthems, Mayor Ridgeway provided a welcome and greeting. Sister City International Board Director McLeod introduced Okazaki Mayor Koichi Shibata, his wife, Hisa, and the Okazaki delegation (Shinzo Ota, Masao Kato, Shozo Ando, Asami Furusama, Hisako Hachisuka, Hattori Hideo, Yoshiko Ichikawa, Kazuhiro Isogai, Hiroko Ito, Remi Kajimura, Naozo Kamiya, Sumiko Kaneuchi, Hideaki Kataoka, Yuto Kitamura, Yaeko Masuda, Shogo and Seiko Okubo, Yoshio Ota, Yukiko Ozaki, Matsushige and Kazuyo Sakai, Eiko Sato, and Akihiro Yamanaka). Sister City Association President Skibba introduced the Newport Beach Sister City Association Members. Following remarks from Mayor Shibata, Mayor Ridgeway presented him with a proclamation. Mayor Shibata and Mayor Ridgeway reaffirmed the cities' relationship and signed the Covenant. The Mayors exchanged gifts and introduced Kazuhiro Isogai who is the artist of the sculpture that will be placed at Mariners Library. Mayor Ridgeway recessed the meeting at 7:40 p.m so Council could take photos with the Okazaki delegation. The meeting was reconvened at 7:50 p.m. with all members of Council present. Volume 56 - Page 1310 City of Newport Beach City Council Minutes November 9, 2004 INDEX Grand Jury Presentation — Chuck Luce stated that he is on the 2004.2005 Orange County Grand Jury. He discussed what the Grand Jury does and how they are selected, and reported that the deadline to be on the 2005 -2006 Grand Jury is January 14, 2005. He indicated that applications can be obtained by calling the Grand Jury Hotline (714 -834 -6747) or by going to www.ocgrandjury.org. He provided brochures to be placed at City Hall. G. NOTICE TO THE PUBLIC H. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON- DISCUSSION ITEM): • Council Member Webb requested a study session regarding the Marinapark issue with options regarding the potential closure of the mobilehome park and how the City will receive public input. Mayor Pro Tem Bromberg added that the language in the Land Use Element should also be looked at. • Mayor Pro Tern Bromberg reported that Mess Night was sold out and that there is now $40,000 in the fund for the Marines' families. He thanked the 1/1 Committee and the Balboa Bay Club for their work on Mess Night. He stated that people can contact 644 -3202 if they want to donate money or have ideas about the fund. • Mayor Pro Tern Bromberg reported that the 47 Southern California Edison alley plates on Little Balboa Island will eventually be fixed by Edison. • Council Member Rosansky announced that the contractor for the Santa Ana River dredging project has located a dredge and will begin the project around Thanksgiving time. • Council Member Heffernan announced that he and his wife will donate $100 to the 1/1 Fund for every one of his election signs people bring into City Hall. • Mayor Ridgeway stated that the citizens have spoken with regard to Measure L. He indicated that the study session regarding Marinapark does need to look at the current language in the Land Use Element; the key provisions, including terms of the existing mobilehome park leases and options available pursuant to the Mobilehome Park Residency Law; and issues that Council and the community may want resolved before any serious planning process commences, primarily the location of the tidelands boundary. Further, Council will need to process alternatives, such as forming a committee that consists of the General Plan Advisory Committee, the Planning Commission, the Parks, Beaches & Recreation Commission, the Central Balboa Homeowners Association, and Protect Our Parks representatives, or any other person who feels they need to be included now or after the resolution of the tidelands and other issues. He stated that Council will also need to study criteria, including the impact of costs on other park development, such as Sunset Ridge and Newport Village. Further, Council needs to identify harbor needs, be sensitive to Volume 56 - Page 1311 City of Newport Beach City Council Minutes November 9, 2004 the residential uses nearby, and be consistent with the tidelands grant. Mayor Pro Tern Bromberg believed that the Harbor Commission and PB &R Commission should be invited to the study session. 1. CONSENT CALENDAR READING OF MINUTESIORDINANCES AND RESOLUTIONS 1. Removed at the request of an audience member. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. ORDINANCE FOR ADOPTION 3. PROPOSED ORDINANCE REVISIONS: INCREASED TIME LIMITS ON ALL PUBLIC PIERS IN NEWPORT HARBOR. Adopt Ordinance No. 2004 -24 amending Section 17.28.010 of the NBMC to increase the time limits on all public piers in Newport Harbor. CONTRACTS AND AGREEMENTS 4. GREEN ACRES RETROFIT SWIVEL ELL CONSTRUCTION - COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3698). 1) Accept the work; 2) authorize the City Clerk to file a Notice of Completion; 3) authorize the City Clerk to release the Labor and Materials bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance Bond one (1) year after Council acceptance. 5. DONNA & JOHN CREAN MARINERS BRANCH LIBRARY (C -3496) - REJECT BIDS. Reject the bid received for Donna & John Crean Mariners Branch Library (C -3496) and authorize staff to re- advertise the pre - qualification process to obtain qualified bidders and re- bid the project. 6. Removed at the request of an audience member. Removed at the request of Council Member Nichols. MISCELLANEOUS ACTIONS 8. BUDGET TRANSFER - ABLE. Authorize the Administrative Services Director to transfer $90,777 (05BA -024) from the Newport Beach Police Department budget to the Airborne Law Enforcement (ABLE.) Joint Powers Authority effective January 1, 2005. 9. Removed at the request of an audience member. 10. Removed at the request of an audience member. 11. Removed at the request of an audience member. Volume 56 - Page 1312 11013 D/Y (100 -2004) C -3698 Green Acres Retrofit Swivel Ell (38/100 -2004) C -3496 Mariners Branch Library (38/100 -2004) (100 -2004) City of Newport Beach City Council Minutes November 9, 2004 519. BIG CANYON CREEK RESTORATION PROJECT - PHASE II (STATE COASTAL CONSERVANCY GRANT PORTION). 1) Direct the staff to accept a grant from the State Coastal Conservancy (SCC) in the amount of $500,000 for the Big Canyon Restoration Project, Phase II (Planning, Engineering, and Construction Drawings); and 2) authorize the City Manager to amend an existing Professional Services Agreement with Community Conservancy International (CCI) to reflect the SCC grant and the Phase II Scope of Work. Motion by Mayor Pro Tern Bromber¢ to approve the Consent Calendar, except for the items removed (l, 6, 7, 9, 10 and 11). The motion carried by the following roll call vote: Ayes: Heffernan; Rosansky, Bromberg. Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Without objection, Mayor Ridgeway requested that Items 6 and 7 be discussed at this time. 6. NEWPORT COAST ELEMENTARY SCHOOL LOOP ROAD LANDSCAPE AND IRRIGATION - AWARD OF CONTRACT (C- 3731). NEWPORT COAST ELEMENTARY SCHOOL LOOP ROAD - COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3684). Public Works Director Badum reported that Item 6 is to approve a landscaping contract and Item 7 is confirmation of all the costs and an acceptance of work. He indicated that the staff report contains a summary of the other costs that were incurred. He reported that the GCI contract totaled $535,753, but noted that there were additional costs related to project management and the landscape architect, as well as soils, surveying, and miscellaneous costs. He stated that, in order to get the project started, the City awarded it at a somewhat lesser amount without knowing the total ramifications of the Division of State Architect (DSA) approvals. He stated that the original bid amount was $364.552. but the additional change orders due to DSA changes increased it to $535,753. He added that they also made quite a few modifications to the existing parking lot which allowed for better traffic flow. Mr. Badum stated that the Tesoro community was concerned about the affects of the loop road on their property. He indicated that they met with them and negotiated the installation of rubberized asphalt on the roadway surface and adding $160,000 worth of landscaping. He reported that the grand total to build the loop road was $842,283 which also included an automatic gate to ensure that the loop road was only used during pick -up and drop -off times. Mr. Badum reported that all the costs were funded by the Bonita Canyon Bond which has a school improvement component and a park Volume 56 - Page 1313 u�7 C -3594 (38/2004) C -3731 (38 /100 -2004) C -3684 (38/100 -2004) City of Newport Beach City Council Minutes November 9, 2004 18013 �/1 improvement component. He stated that, after the sports park was constructed, $920,000 of interest was accumulated in the account and transferred to the school improvement fund. He confirmed that the money could only be used for this type of project and noted that the Newport Coast Elementary School was listed as an eligible improvement site. Mr. Badum indicated that he spoke with the Police Chief who reported that he has not heard about many problems lately and the Traffic Engineer has reviewed the area and indicated that it is running very well. Further, the school district, principal, and parents have all adapted to the roadway. He believed that this has been one big group effort and that it was a successful cooperative project. Further, he feels that the mission to reduce congestion and improve safety has been accomplished. Council Member Heffernan asked what the nexus is between the bond holders and the loop road. City Manager Bludau pointed out that the school was identified as one of the eligible school sites for using the bond money. Mr. Badum added that some of the children attending the school live in the Bonita Canyon community. Council Member Heffernan asked if the City would've undertaken this project if it knew there was going to be such cost overruns. City. Manager Bludau believed that the private sector might not have undertaken this project based on how the project turned out; however, he emphasized that the issue was brought to the City's attention because of the unsafe conditions. Council Member Heffernan stated that, the next time the City does this, it needs to put up signs early to let the residents know about the project. Council Member Nichols believed that there are still problems getting people through the loop road. Mr. Badum reported that many of the curbs in front of the school were revised to accommodate two lanes. He stated that the principal has done a good job in having an orderly process and that it is working very well. Council Member Nichols indicated that he has received letters regarding parents going into Tesoro, parking, and then walking their children down the fire road to the school. Also, people are parking in the shopping center and walking their children across the highway. He added that a Tesoro resident is claiming that it takes ten minutes to get from Tesoro to Newport Coast Drive. City Manager Bludau noted that there is no perfect solution and agreed that there are a lot of parents who park at the shopping center; however, they hope they will use the loop road in time. He indicated that the Police Department has been to Tesoro on many occasions, but has never found anyone who doesn't live in Tesoro since they cannot get in due to the security. Council Member Nichols took issue with starting the project before the State reviewed it. Mr. Badum stated that DSA was very busy and confirmed that most of the work was completed prior to their approval; however, if the project was to be finished before school opened, they needed to begin right away. He reported that DSA worked with the City the best it could because they understood the urgency. He pointed out that, if they waited for State approval, they'd still be working on the project today. Volume 56 - Page 1314 City of Newport Beach City Council Minutes November 9, 2004 " "'' — INDEX Mayor Kidgeway agreed that the project is expensive and the process was inefficient; however, he noted that, although Tesoro was part of the outreach, there was non - communication between many of the Tesoro residents with the other residents. He emphasized that the bottom line is, to date, there have been no accidents or deaths. He stated that without the loop road they were headed on a collision course. Dolores Otting stated that this project was done because there was supposed to be an influx of a couple hundred children, but that never materialized. She took issue with the costs not adding up correctly. Mayor Ridgeway asked Mr. Badum to work with the Administrative Services Director and present a revised document to Ms. Otting and Council. City Manager Bludau indicated that this will occur if a revised document is necessary. Jim Hildreth believed that the project should have no left turns and that warning signs should be installed to warn people coming down the hill that there are people making right turns out of the parking lot. Motion by Mayor Pro Tom Brombere to 1) approve the plans and specifications; 2) award the contract (C -3731) to FYR Landscaping, Inc., dba Pierre Sprinkler and Landscape, for the total bid price of $145,460 and authorize the Mayor and the City Clerk to execute the contract; 3) establish an amount of $15,000 to cover the cost of unforeseen work; and 4) approve a budget amendment (05BA -028) increasing revenue estimates by $160,460 from the Newport Mesa Unified School District reimbursement agreement and appropriating this amount to the Contributions Fund, account 7251- C5100745. The motion for Item 6 carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Motion by Mayor Pro Tern Bromber¢ to 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 one year after Council acceptance; and 5) approve a budget amendment (05BA -027) appropriating a transfer of $196,609 from Bonita Canyon surplus bond proceeds to Newport Mesa Unified School District (NMUSD) per the memorandum of understanding approved by City Council on June 22, 2004, increasing revenue estimates in the Contributions Fund by $196,609, appropriating $181,361 to the Contributions Fund, account 7251- C5100745, and appropriating $15,248 to the General Fund, account 5100 -7020. The motion for Item 7 carried by the following roll call vote: Volume 56 - Page 1315 City of Newport Beach City Council Minutes November 9, 2004 Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None J. PUBLIC HEARINGS 12. APPEAL OF A STAFF DENIAL FOR ENCROACHMENT PERMIT NUMBER N2004 -0369 TO ALLOW A CURB CUT IN FIRST AVENUE ADJACENT TO 425 BEGONIA AVENUE. Public Works Director Badum reported that staff felt that the requested curb cut violates Council Policy L -2 which requires that, if a property abuts an alley, there must be access from that alley. He noted that exceptions include projects that have physical difficulties accessing off the alley or projects that add additional parking. He confirmed that this did not go to the Planning Commission because appealed encroachment permits come before Council. Mr. Badum read Policy L -2.0 and explained that one of the exceptions deals with structures that prevent full alley access but there is still access off the side street. He noted that the proposed project does not meet this condition because it will be a stacked duplex. Council Member Nichols reported that he toured Corona del Mar with the General Services Director. He noted that the lot at Seaview and Marguerite was allowed a side curb cut and to remove a pine tree, but they did not have divided structures. He stated that he also reviewed other corner curb cuts in Corona del Mar that didn't have to come before Council. Mr. Badum stated that the project at Seaview and Marguerite was approved before he worked for the City and his department did not approve the tree removal. He noted that they are following Council policy and that it is Council's discretion to change the policy or make an exception. Council Member Nichols stated that the number of curb cuts in Corona del Mar approaches 50 %; however, the appellant was denied a curb cut. Mayor Ridgeway opened the public hearing. John Loomis, Thirtieth Street Architect, stated that he is the architect for the project and that the property owner, developer, and occupant, Norm Abell, is also present. He presented an exhibit that showed locations of existing curb cuts on corner lots in Corona del Mar which total 60 %. He indicated that adjacent to the property in the alley to the west, the development was different because the lots are rotated 90 degrees and they run north /south, so the alley becomes a side yard. Further, directly across the alley, there is a raised planter with two large palm trees in the setback. He expressed concern about the vehicular circulation. He stated that when that project was approved, in 1989, a variance was granted with a condition that prohibited landscaping higher than six inches in the five foot side yard setback adjacent to the alley. Volume 56 - Page 1316 INDEX (100 -2004) City of Newport Beach City Council Minutes November 9, 2004 Mr, Loomis reported that they tried to develop a project that was very open, had separation between units, and had a unique, organic design. He stated that they want to develop two residential units with a two car garage at the alley located five feet from the property line and two open spaces on First Street. He referenced Policy L -2.0 and believed that the conditions on the lot meet the special circumstances and the policy's intent. He pointed out that the curb opening is less than one -half depth of lot. He agreed that the proposal does not meet the condition which provides an additional space; however, he referenced the August 26, 2003 minutes where this provision came up for 28 Orchid and believed that his plans show that the two units are separated by two open parking spaces on the lower level and a deck and a common vertical wall on the second level. Mayor Ridgeway pointed out that Council does not have the plans. Mr. Loomis provided a reduced plan and noted that it was submitted with their application. Mr. Loomis stated that parking is stacked at the rear unit so that each of the units has a space in the garage. He believed that Council wanted to encourage projects to get away from tandem parking. Mayor Ridgeway suggested continuing this for one meeting. Mr. Loomis indicated that he and Mr. Abell would support this, but reported that they provided staff with photographs, full plans, and project documents. Council Member Webb noted that he and Mr. Loomis share grandparents in the 1700s. Motion by Mayor Pro Tern Bromber¢ to continue the item to November 23, 2004. Mayor Pro Tem Bromberg asked the appellant to contact him so he could be walked through the project. Council Member Rosansky requested that staff bring back more information about the adjoining property, the planter, and whether the planter is illegal. Council Member Nichols noted that "full access" does not mean giving up a foot of your property to make it full. Hearing no further testimony, Mayor Ridgeway closed the public hearing The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 13. CODE AMENDMENT NO. 2003 -003 — AMENDMENT TO MODIFICATION PERMIT PROCEDURES (PA 2003 -080). Volume 56 - Page 1317 INDEX (100 -2004) City of Newport Beach City Council Minutes November 9, 2004 INDEX City Manager Bludau noted that the two issues before Council are whether Council wants to require additional findings that would replace the existing Modifications Committee finding and whether Council wants to use a Zoning Administrator as opposed to using the three staff members. Mayor Ridgeway reported that this was continued about a year ago on a motion by Mayor Pro Tem Bromberg to see how it works. He noted that they received a report at a study session and now the issue is whether Council wants to change the finding and to consider having a Zoning Administrator. Council Member Nichols believed that a report should be given about what the Modifications Committee does, what they discuss, and when their items go to the Planning Commission. Mayor Ridgeway noted that this was discussed at the October 12 study session. In response to Council Member Heffernan's questions, Planning Director Temple reported that the current requirement for modification permit notices is that the City publishes a public hearing notice in the newspaper of general circulation, the Daily Pilot; each property is posted a minimum of ten days in advance of the hearing; and all property owners within 300 feet of the property receives a notice by mail. She clarified that, in residential areas, the 300 foot radius excludes the width of streets. She noted that the noticing requirement is the standard mandated requirement set by California Planning Law, and is the same requirement used for Planning Commission and City Council notices. She believed that the noticing requirement is adequate particularly because all decisions by the Modifications Committee or the proposed Zoning Administrator can be appealed to the Planning Commission and /or the City Council. Council Member Heffernan requested that the Modifications Committee weekly report includes what the neighbors think. Mayor Ridgeway noted that the report always has a summary of who showed up in favor or opposition to the project. Council Member Heffernan requested that the letters be included with the report. Senior Planner Garcia, acting Chairman of the Modifications Committee, confirmed that, at the end of the approval letter, they routinely list the people and their addresses that appeared in opposition and in favor of the item. Further, they include copies of any letter submitted. In response to Council questions, Ms. Temple indicated that they handle no more than four appeals a year to the Planning Commission, noting that the Committee sees about 200 modification requests. She reported that, with the new structure, any individual Planning Commissioner or Council Member on majority can appeal an item. Further, the applicant, any interested citizen, or aggrieved party may appeal by paying the $975 appeal fee. Ms. Temple reported that this was started to address and review the findings that needed to be made to approve modification permits. She stated that the new findings would require the applicant or property owner to justify why a modification is necessary. She added that they also discovered that the current structure doesn't facilitate the most Volume 56 - Page 1318 City of Newport Beach City Council Minutes November 9, 2004 INDEX effective participation in the review process by the Public Works and Building Departments. Further, the three departments that serve on the Committee agree that the change to a Zoning Administrator structure would make decision making and staff evaluation more effective. Ms. Temple stated that the change is more form than function since most applications that are subject to the modification process are usually planning - related and the Planning Department member tends to lead the decision making under the existing structure. She believed that a change to a Zoning Administrator will resolve issues that have arisen related to the Brown Act and will be a more efficient use of staff resources. She reported that the amended findings are the most important issue and if that is the only action Council takes, Council can introduce the ordinance and the exhibit. However, if Council also wants to pursue having a Zoning Administrator, there is an alternate exhibit. Ms. Temple indicated that Council Member Webb raised issues related to the investigation and function of the Zoning Administrator. She stated that they prepared revisions to the ordinance to address concerns about the consultation requirements with the Building and Public Works Departments, and other City departments that may be affected by the application. Further, it requires the departments to provide written recommendations about the findings and/or conditions. She noted that the revision was placed at Council's seat prior to the meeting. Mayor Pro Tern Bromberg asked what type of oversight the Zoning Administrator will have. Ms. Temple reported that the Zoning Administrator would be a designee of the Planning Director and would be an employee of the Planning Department and, therefore, a person who directly reports to the Planning Director, which is how it is today. She confirmed that she currently and still will conduct direct oversight and review on a regular basis of what the Zoning Administrator is doing. Council Member Nichols stated that there are three proposed findings and referenced the third finding. He noted that physical hardship is often due to the lot orientation, the design of the lot, or there being a partial lot, and they end up with a house that has higher density than anyone else. He believed that this is not something that should be granted and added that there could be a physical handicap on a big lot the same as on a small lot. Ms. Temple reported that consideration of an encroachment into a setback can occur during the modification process, but clarified that this does not address the physical size of the structure because, if an increase in floor area is desired, a variance is needed and that can only be considered by the Planning Commission. She read the purpose and intent of the Zoning Code in the code book. City Manager Bludau noted that the second page of Exhibit A lists the extent of the authority. Council Member Heffernan stated that he looked at his Modifications Committee packet and, as an example, noted that the homeowners association that deals with Port Harwick was opposed to the project but no letter was included. He requested that letters be included in the future in the event Council wants to raise an issue and since Council may be giving more authority to a single person and potentially requiring Volume 56 - Page 1319 City of Newport Beach City Council Minutes November 9, 2004 different findings. INDEX Mayor Ridgeway reported that there are currently three staff members on the Committee making a discretionary approval; however, when Council or the Planning Commission is making a discretionary approval, there is no prohibition against any of the departments discussing the project. Ms. Temple agreed and stated that the Committee is not violating the Brown Act currently; however, by complying with the Brown Act, it has created a more difficult path to identify and resolve problems in an efficient manner because they cannot consult with each other prior to the hearing. She noted that this would be considered a meeting outside the public forum. Mayor Ridgeway opened the public hearing. Dolores Otting thanked the 15,000+ people who voted for her and noted that she received a lot of emails from people who hoped that she would still go to Council meetings. She stated that, in meeting people over the months, no one wanted the Modifications Committee process changed. She indicated that she received the public hearing notice, but her name was incorrect and it was sent to an old P.O. Box. She stated that the agenda title is supposed to describe an item in 25 words or less in accordance with the Brown Act so the public understands what the item is. She took issue with this item's title and believed that Council has failed in its fiduciary responsibility to inform the public what is going on tonight. She believed that this creates a zoning czar and changes the modification permit process. She indicated that she wants to have a cable show just for this type of stuff and stated that she will be reporting this violation tomorrow. Mayor Ridgeway requested that the Acting City Attorney provide Council with a report at the next meeting relative to Ms. Otting's comments regarding subject matter description of agenda items. Jim Hildreth agreed that this should not be changed. He believed that this is so the City could make it difficult for somebody that already has a house. Further, it will encourage them to get rid of their house or deal with structures that they did not hear about. He asked if the opposition letters have to be accompanied with $975 checks. He stated that people living in older homes still want to live here without having to pay extra taxes. He believed that the City should not go out of its way to make their lives more difficult and to generate revenue just because someone wants to redo their house. He stated that he knows about a new house that is causing water damage to the neighbor's house. He stated that the City needs to look at what is being proposed, its aftermath, and how it will affect other people's homes. Phillip Lugar stated that he supports the measure and believed that 'a Zoning Administrator will expedite all of the actions through the Planning Department very well. He added that he does not feel that anyone's rights are abridged, noting that there is a full appeal process. He stated that he has personal experience with this mechanism through the City of San Diego where he sat on the zoning appeals board. He Volume 56 - Page 1320 City of Newport Beach City Council Minutes November 9, 2004 INDEX indicated that it worked very well there for years and no one ever argued against it. He encouraged Council to support this. Todd Schooler stated that he was one of the architects invited to provide input on this issue and strongly supports it. He indicated that the change makes a good idea better, explaining that the Modifications Committee is able to handle issues that aren't covered under a variance but there is no other mechanism to deal with them. He stated that simplifying this and allowing the departments to communicate with each other will make it better for the public. He believed that the findings will make it easier for architects to communicate to their clients that they cannot have something. Council Member Heffernan referenced "practical difficulty" in Finding 1 and stated that his concern is why a person with a rectangular lot gets a modification when there is nothing unique about the property except that everyone else has a modification. However, he agreed that, if there is something unique about the land, then a modification is proper. He asked why the City won't just redo the Zoning Code or setbacks rather than doing it piece meal through the modification process. Mr. Schooler stated that Finding 1 was the only finding that the architects wrestled with, but he is reasonably happy with the way it came out. Council Member Heffernan noted that tonight's version is the looser version and is what the architects were in favor of. Mr. Schooler indicated that the architects felt that the first version was too close to what a variance requires. Council Member Heffernan reported that people are concerned about mansionization and that a looser version will mean that ultimately houses will get bigger. Assistant City Manager Wood clarified that the modification permit does not handle the size of the home. Mr. Schooler stated that the Committee is not making buildings bigger and emphasized that saying the buildings will be bigger because they're closer to the streets does not meet the findings. Ms. Temple indicated that Council Member Heffernan's points are why they want to modify the findings. She noted that proposed Finding 1 is stronger than the finding that is on the books today and should significantly reduce modifications. She reported that modifications are not considered to be precedential actions and the mere fact that there was a prior modification approval is not a reason to approve similar modifications. Further, if through the modifications process, it is discovered that a type, style, or desired architectural feature is commonly approved by the Modifications Committee then the follow -up action is to amend the code. She believed that "practical difficulty" is suitable and greatly improves the level of information. She added that the proposed finding is the right step. Council Member Daigle asked how many variances are approved in the City. Ms. Temple reported that variances are less common and the Planning Commission deals with three to five a year. She stated that height variances are for properties with extreme sloping conditions and floor area variances are for small lots in which the setbacks could eliminate the potential for any new development. Volume 56 - Page 1321 City of Newport Beach City Council Minutes November 9, 2004 INDEX Council Member Nichols stated that, if a bathroom was allowed to encroach into the side yard setback, it cuts down the public view or fire access. He believed that this is becoming more common. Ms. Temple indicated that it is not uncommon for a structural setback encroachment in the side yard to be approved. She noted that the third finding deals with public safety. Council Member Nichols stated that the issue of swimming pools in the front yard gets reviewed by the Modifications Committee, but believed that this category should be looked at Citywide by the Planning Commission. Hearing no further testimony, Mayor Ridgeway closed the public hearing. Council Member Webb stated that he will support the attachment which creates a Zoning Administrator. He explained that the Modifications Committee members from Planning, Public Works, and the Building Departments, prior to the Brown Act changing it, were able to go to the site together, discuss it, figure out what conditions were appropriate, and generate a coordinated staff report. He stated that the applicant would then have an idea of what was going to happen at the hearing, concerned residents would be able to attend the hearing, the Committee would modify the conditions, and then they would make a decision. However, with the Brown Act, the three representatives on the Committee can't talk to each other about the project. He stated that they could bring their conditions to the meeting and then discuss them or they could have a separate set of staff members from each department get together to discuss the item, generate conditions, and then submit it to the Committee members. He believed that this is inefficient and reported that the proposed change will allow the Zoning Administrator to receive information from Building, Public Works, and other related departments prior to the hearing so there is a more coordinated effort to make a decision at the hearing. Motion by Council Member Webb to introduce amended Ordinance No. 2004 -25 with Alternate Exhibit A approving Code Amendment No. 2003 -003 and pass to second reading on November 23, 2004. Mayor Pro Tem Bromberg stated that, when this was discussed at the study session, he had concerns about having one Zoning Administrator make the decisions. He indicated that he spoke to architects and the Planning Director, and reported that he is now comfortable that oversight will be there. Further, he noted that if this becomes a problem, Council will hear about it. Mayor Ridgeway stated that he was on the Planning Commission for six years and that the goal of the Modifications Committee was to take simple matters and not bring them up to the formality of a hearing before the Planning Commission. He indicated that this came before Council years ago and he felt that it wasn't broken so why fix it. However, he stated that what is before Council tonight is a better system. He reminded everyone that the older finding just dealt with health, safety, and welfare, and not the physical hardships of a property. Mayor Ridgeway stated that this should be a question of need versus want, not what is right for the property. He believed that the new findings are Volume 56 - Page 1322 City of Newport Beach City Council Minutes November 9, 2004 INDEX excellent and may slow down the onslaught of some of the housing developments. He stated that zoning administrators work well in larger cities. He noted that about 95% of what happens at the Modifications Committee meetings is handled by the Planning Department. He agreed about having better dialogue and noted that a representative from another department will be present if something important happens during the process that dictates that. He reported that there is a zoning administrator in Laguna Beach who basically approves the modification if there is support and no opposition. However, if there is opposition, she tells them to work it out, otherwise she will probably deny it. He emphasized that the City has added safety valves in the new findings so the Zoning Administrator cannot just give a person what they want. He stated that he likes the findings but he also likes the attitude in Laguna Beach. He agreed that the City has been loosy - goosy, but believed that the City is better for it. Council Member Rosansky stated that he supports the motion but asked if it could be amended to require that the Zoning Administrator consult with or inform the other departments. Council Member Webb pointed out that the amended ordinance does this. Ms. Temple stated that she discussed this with the Public Works Director and they believe that all applications should be referred for review to the Building and Public Works Departments. She noted that the Public Works Department knows the issues that may be raised by General Services and Utilities, and the Building Department has familiarity with issues that might be a concern to the Fire Department. She indicated that the Building and Public Works Departments can advise the Zoning Administrator that further circulation of the application to other departments is needed. Council Member Daigle stated that she will also be supporting the motion because there will now be findings with some teeth, there will be a better use of staff resources, and this improves dialogue between departments. Further, people are going to want to remodel since the economy is good. She emphasized that there are checks in place with the Planning Commission and City Council, so the power of the Zoning Administrator doesn't go unchecked. She asked that the number of appeals be tracked, noting that there are very few appeals which means there is a high level of public confidence. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None K. PUBLIC COMMENTS Jim Hildreth thanked everyone who voted. He stated that he appreciates the attorneys and lawyers because they remind Council and the residents that they have a right to speak, as well as himself. He believed that the City encourages its hourly employees not to talk to him. He stated that a Volume 56 - Page 1323 City of Newport Beach City Council Minutes November 9, 2004 INDEX visitor from Poland told him that other countries are not like the United States because the United States has a government, not because of a government but because we have one. He stated that it's an honor to take an oath to the United States flag and to honor everything that it stands for. He indicated that he sees himself in the United States flag. He stated that he took an oath to uphold the United States Constitution and the Constitution of California. He believed that we should do more for our troops and find out what they need. He stated that he was told that, because of the sand, troops need Q -tips, handy wipes, and Red Bull. Julia Nash provided a videotape in which she requested a lawyer three times, but was denied. She also provided a toxicology report which states she only had Sudafed in her system at the time of the arrest. She explained that a hit and drop scam is when a person makes you think you hit them from the back and then they file against you with their insurance. She reported that, a month later, the person she hit was back to work as a dental hygienist and got $50,000. She believed that there was no investigation by her Geico Insurance and that this will go to the Ninth Circuit Court of Appeals. She stated that she lost her registered nursing license over this. She emphasized that she did not have any illicit drugs in her system nor alcohol because she never drinks. Further, she was not given any choice of tests. She displayed drugs that contain Sudafed and stated that she would really not like to be arrested again for only having Sudafed in her system. Tom Billings, Protect Our Parks, stated that he is delighted to speak as one of the 67% who voted "no" on Measure L which preserves eight acres of public land for recreation and open space. He indicated that Marinapark will now remain public parkland for all to enjoy. He noted that 66% of the residents surveyed for the 2002 visioning survey did not want a hotel at Marinapark or the Newport Dunes. Further, the election confirmed what 97% of the Central Newport and Balboa Homeowners Association wanted and what over 67% of the voters wanted when they passed Measure S. He believed this meant that the citizens will never let this property be commercialized and that the vote proved that the residents were on the right side of this issue despite being outspent 6 to 1. He thanked Mayor Ridgeway for initiating the public planning process and stated that he looks forward to participating on the committee with the PB &R Commission, the Harbor Commission, and Council to develop a park design and plan for Marinapark. He also thanked all the residents who voted "no" on Measure L. Dolores Otting provided a handout and stated that the following are items that the public wants to know about that she found out while campaigning: 1) the price of a pedestrian walkway bridge at Newport Coast and Ridge Road; 2) if there could be more town hall meetings; 3) updated information about the nuclear reactor at UCI; 4) information on the City's website about emergency preparedness; 5) Santa Ana Heights want to make sure they are included in the General Plan Update process to ensure they can keep their horses; 6) an ordinance that prohibits political campaign signs from being placed within 300 feet of polling places; and 7) 1555 Superior has huge vans, trucks, and mobilehomes that park on the street for two weeks at a time. Council Member Volume 56 - Page 1324 City of Newport Beach City Council Minutes November 9, 2004 Rosansky indicated that he already spoke with them about this issue. Mayor Ridgeway recessed the meeting at 10:15 p.m and reconvened the meeting at 10:25 p.m. with all members of Council present. L. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Ad Hoc General Plan Update Committee (GPUC) — Mayor Pro Tem Bromberg reported that their next meeting will be on November 15 at 4 p.m. in the Friends Room at the Central Library. M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 14. PLANNING COMMISSION AGENDA FOR NOVEMBER 4, 2004. Planning Director Temple reported that the meeting lasted about 20 minutes. She stated that the Gates residence appeal (Item 2) was continued to November 18; the Planning Commission discussed, reviewed, and received and filed the Housing Element Implementation Annual Progress Report (Item 3); and staff issued a new determination of grade for the Sweeney residence (Item 4) for the purpose of measuring height. She indicated that this was accepted by the appellant and the item was removed from the Planning Commission's calendar. N. CONTINUED BUSINESS 15. TELECOMMUNICATIONS FACILITY PERMIT NO. 2003 -003 (PA2003 -255); TELECOMMUNICATIONS FACILITY PERMIT NO. 2004 -002 (PA2004 -057) — 4600 WEST COAST HIGHWAY (APPLICANTS — CINGULAR WIRELESS AND SPRINT PCS) [contd. from 10/12/041. Mayor Ridgeway noted that Council received a new exhibit tonight with poles that have been reduced from 35 feet to 32 feet, and Public Works has reviewed this and determined that the light will be adequate for Superior Avenue. Frank Jenes, President of the Villa Balboa Community Association, stated that he was opposed to this the last time he was at the meeting; however, he supports it fully now. Ross Ribaudo agreed with Mr. Jenes and thanked Gil Gonzalez of Infranext (representing Cingular) who cooperated to make this work and Assistant Planner Brown who responded efficiently and quickly to his emails from May until a couple of weeks ago. Council Member Rosansky stated that he is happy to see the final result, noting that this started out being a 50 foot high, 2 foot wide flag pole. He applauded the efforts of staff, Cingular, and Sprint for recognizing that there was some objections and dealing with it. He stated that he is now in favor of the proposal. Volume 56 - Page 1325 INDEX (100 -2004) C -3706 Telecommunications Facility Permits (38/100 -2004) City of Newport Beach City Council Minutes November 9, 2004 Motion by Council Member Rosanskv to 1) approve Telecom Permit No. 2003 -003 and Telecom Permit No. 2004 -002 subject to the Findings and Conditions of Approval attached to the staff report; and 2) authorize the City Manager to execute the Telecommunications License Agreements. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Mayor Ridgeway thanked the two applicants for working as hard as they did. 16. UNSCHEDULED VACANCY ON THE PLANNING COMMISSION Using paper ballots, Council voted on either Robert Hawkins, Michael Henn, or Roberta Jorgensen for the Planning Commission appointment. Council Member Heffernan stated that he is not going to vote for Robert Hawkins because he represented two people who have claims against the City relative to ficus tree root intrusion. He noted that Mr. Hawkins is the Chair of EQAC and believed that appointing him to the Planning Commission or any other position is an adverse interest. Further, Mr. Hawkins has a peculiar relationship with City staff and an obligation to uphold the City's rules and regulations. He believed that Mr. Hawkins should not have taken a position adverse to the City. He believed that, on an ethical basis, those areas should be excluded so it eliminates any appearance of a conflict of interest. Council Member Rosansky stated that, although Mr. Hawkins may have represented clients in the past, he did not have claims against the City himself. Further, Mr. Hawkins does not have any clients with active claims against the City. He applauded Mr. Hawkins' work on EQAC, and believed he is an excellent and qualified candidate. Mayor Pro Tern Bromberg agreed that it is a delicate situation when someone who, in some form, represents the City but becomes adverse to the City on claims. However, he noted that EQAC is not a City board or commission. He stated that he is confident that, if Mr. Hawkins is appointed to the Planning Commission, the City will not see him handling cases that are adverse to the City. He added that Mr. Hawkins represented this to him and stated that Mr. Hawkins recognizes the difference between an ad hoc committee and a board or commission. Council Member Heffernan stated that Mayor Pro Tem Bromberg provided a good clarification and reported that he will be abstaining from the vote. Volume 56 - Page 1326 INDEX (100 -2004) City of Newport Beach City Council Minutes November 9, 2004 Noting Council Member Heffernan's abstention, Deputy City Clerk Brown read the votes as follows: Robert Hawkins (Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway) Deputy City Clerk Brown announced that Robert Hawkins has been appointed to fill the vacancy on the Planning Commission with a term ending June 30, 2008. Mayor Ridgeway congratulated all the candidates. He stated that Mr. Hawkins has been on EQAC for five years, has been Chairman, and has written numerous letters regarding environmental impact reports for projects in and outside the City. Dolores Otting stated that she is on EQAC and reported that the City received money from the Scholle project because of Mr. Hawkins. She indicated that Mr. Hawkins will be sorely missed on EQAC, but applauded Council for promoting him to the Planning Commission. She stated that Mr. Hawkins has always been very balanced and fair, and has always found a point in the middle. Robert Hawkins stated that he will foreswear adverse representation to the City as long as he sits on a commission or body, such as the Planning Commission. Mayor Ridgeway reported that Mr. Hawkins did an excellent job on the Scholle project letter, but assured everyone that staff was ahead of the curve on that one. Council Member Nichols stated that he has been on EQAC for as long as he's been on Council and indicated that he is very impressed by Mr. Hawkins. Council Member Rosansky reported that there will now be a vacancy on EQAC and there is possibly one or two others. He encouraged any resident interested in serving on EQAC to submit an application to the City Clerk's office. Mayor Ridgeway added that people can call the City Clerk's office at 644 -3005 for an application or they can get it off of the City's website. He reported that the District 3 at -large and the District 1 representative appointments will be made at the next meeting. O. CURRENT BUSINESS 17. NEW NBMC CHAPTER 11.04 — PARK FACILITIES — RULES AND REGULATIONS. Motion by Mayor Pro Tern Bromberg to introduce Ordinance No. 2004 -26 to provide expanded enforcement capabilities in City parks; and pass to second reading on November 23, 2004. Jim Hildreth expressed hope that the City will allow the residents to be knowledgeable of these laws, rules and regulations, as well as the other Volume 56 - Page 1327 INDEX (100 -2004) City of Newport Beach City Council Minutes November 9, 2004 laws of the City. He believed that this should happen when they get the permit. Further, people should have access to them at the libraries. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 18. REFILLING OF VACANCIES ON GENERAL PLAN ADVISORY COMMITTEE. Assistant City Manager Wood stated that, because they had to postpone the GPAC meeting to November 15, she is requesting that this item be continued to the November 23 Council meeting. Motion by Mayor Pro Tern Brombere to continue the item. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None P. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE SPECIAL MEETING OF OCTOBER 26, 2004. Jim Hildreth stated that he wished copies of the draft would be more readily available. He referenced volume 56, page 1296 and stated that he mentioned Council Member Nichols' PhD and that, if it was in psychology, the City Manager would be crying for his head to be examined. He believed that he also referenced election signs and that must have been a reason to put more signs up. He believed that he said Council Member Heffernan said in the past that the Police officer was there for him. He agreed that he said something about violating the Brown Act, but he also mentioned other structures that were voted on, like the walking bridge in Corona del Mar and the Lido Island bridge. Motion by Council Member Webb to waive reading of subject minutes, approve as written and order filed. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Volume 56 - Page 1328 INDEX (100 -2004) City of Newport Beach City Council Minutes November 9, 2004 Without objection, Items 9, 10 and 11 were discussed concurrently. 9. REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 92 (AREA BOUNDED BY RIVERSIDE AVENUE /CLIFF DRIVE, TUSTIN AVENUE AND WEST COAST HIGHWAY). 10. REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 103 (AREA BOUNDED BY "G" STREET, EAST BALBOA BOULEVARD, "L" STREET AND OCEAN BOULEVARD). 11. BALBOA ISLAND AND LITTLE ISLAND BULKHEAD INSPECTION AND COLLINS ISLE BRIDGE INSPECTION - APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH CASH & ASSOCIATES ENGINEERS AND ARCHITECTS. Jim Hildreth stated that he hopes that residents know that the present streetlights will be removed from underground districts. He indicated that his experience has shown that, without street lighting, property damage, vandalism, and undesirables tend to end up in areas where there is not good lighting, like in his area and in Corona del Mar. Regarding Item 11, he indicated that the report states "Little Island" but it should be "Little Balboa Island" or "Zone 5 ". Further, "Collins Isle" should be "Collins Island ". He stated that granite has been repositioned a few times, especially at the south end of the Grand Canal, and the bulkhead has been redone quite a few times. He indicated that some of the concrete is falling off near the bridge that is leading onto Little Balboa Island. He stated that global warming is going on and he is not sure that raising the seawall bulkhead is a viable situation, but he is not sure about replacing it entirely. He indicated that he was told that there will be construction so people could walk around the Island when it's raining and not high tide. He asked that this be taken into consideration when the bulkhead is being looked at. Motion by Council Member Webb to [Item 91 1) authorize an advance from the General Fund (05BA -025) in the amount of $84,470 to Assessment District No. 92 and appropriate $41,500 to 74092 -9810 for electric design, $20,000 to 74092 -9811 for phone design, and $22,970 to 74092 -9812 for assessment engineering services; and 2) authorize the City Manager to execute a Professional Services Agreement with Hall & Foreman, Inc. in the not to exceed amount of $22,970 for assessment engineering services; [Item 10] 1) authorize an advance (05BA -026) from the General Fund in the amount of $96,270 to Assessment District No. 103 and appropriate $55,300 to 74103 -9810 for electric design, $18,000 to 74103 -9811 for phone design, and $22,970 to 74103 -9812 for assessment engineering services; and 2) authorize the City Manager to execute a Professional Services Agreement with Hall & Foreman, Inc. in the not to exceed amount of $22,970 for assessment engineering services; and [Item 111 approve a Professional Services Agreement for $48,760 with Cash & Associates Engineers and Architects for Balboa Island and Little Island Bulkhead Inspection and Collins Isle Bridge Inspection, and authorize the Mayor and City Clerk to execute the agreement. Volume 56 - Page 1329 INDEX Assessment District 92 (89/100 -2004) Assessment District 103 (89/100 -2004) C -3639 (38/100 -2004) City of Newport Beach City Council Minutes November 9, 2004 INDEX The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Q. MOTION FOR RECONSIDERATION - None. R. ADJOURNMENT - at 10:45 p.m. in memory of Bruce Butler. The agenda for the Regular Meeting was posted on November 3, 2004, at 2:35 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 5, 2004, at 2:50 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. 1: Recording Secretary Mayor i City Clerk Volume 56 - Page 1330 City of Newport Beach City Council Minutes November 9, 2004 INDEX THIS PAGE LEFT BLANK INTENTIONALLY Volume 56 - Page 1331