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HomeMy WebLinkAbout10/27/2009 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting October 27, 2009 — 7:00 p.nL I. STUDY SESSION - 4:00 p.m II. CLOSED SESSION - 5:46 p.m 1. Conference with Legal Counsel _- _Existin¢ Litigation (Government Code §54956.9(a)): Eighteen matters: A. IBC Litigation Matters: Four matters, all arising out of the IBC Litigation against the City of Irvine: 1. Newport BeachlPustin v. City of Irvine (Martin Street), Orange County Superior Court Case No. 07CCO1264 2. Newport BeachlTustin v. City of Irvine (2861 Alton), Orange County Superior Court Case No. 07CCO1265 8. Newport BeachlTustin v. City of Irvine (HCG), Orange County Superior Court Case No. 30- 2008 - 0022885- CU- WM -CXC 4. Newport Beachllustin v. City of Irvine (Accessory Retail Business Regulations), Orange County Superior Court Case No. 30- 2009 - 00264696 B. Group Homes Matters: Five matters all arising out of the Group Homes litigation brought against the City, as follows: L Concerned Citizen's v. City of Newport Beach, U.S. District Court Case No. SACV 08- 00192 -JVS (RNBx) 2. Sober Living By The Sea v. City of Newport Beach, U.S. District Court Case No. SACV 08 -00200 JVS (RNBx) 3. City of Newport Beach v. Morningside Recovery, Orange County Superior Court Case No.07CC11694 4. Pacific Shores v. Newport Beach, U.S. District Court Case No. &ACV 08 -00467 AG (PLAx) 5. Newport Coast Recovery v. City of Newport Beach, U.S. District Court Case No. SACV 09 -0701 DOC (ANx) C. Group'Homes Matters: Six matters all arising out of the Group Homes investigation brought against the City, as follows: Volume 59 - Page 295 City of Newport Beach City Council Minutes October 27, 2009 1. Pacific Shores v. Newport Beach, U.S. Dept. of Housing & Urban Development Investigation No. 09 -08- 0592 -8 2. Newport Coast Recovery v. City of Newport Beach, U.S. Dept. of Housing & Urban Development Investigation No. 09 -09- 0713 -8 3. Paul Murdoch v. City of Newport Beach, U.S. Dept. of Housing & Urban Development Investigation No. 09- 09- 0831 -8 4. The Kramer Center v. City of Newport Beach, U.S. Dept. of Housing & Urban Development Investigation No. 09- 09- 0833 -8 5. Oxford House v. City of Newport Beach, U.S. Dept. of Housing & Urban Development Investigation No. 09- 09- 0830 -8 6. Yellowstone v. City of Newport Beach, U.S. Dept. of Housing & Urban Development Investigation No. 09- 09- 0834 -8 D. McCollum v. Newport Beach, Orange County Superior Court Case No. 30- 2009- 00309287. 2. Conference with Labor Negotiators (Government Code §64957_6 Agency Designated Representatives: Bill Avery of Avery & Associates and Terri Cassidy, Human Resources Director Employee Organization: Multiple - Lifeguard Management Association; Police Management Association; and Police Employees Association a. Conference with Real Property Negotiator (Government Code §54956.8) Property: 608 E. Balboa Boulevard City Negotiator: Sharon Wood Negotiating Parties: Levon Gugasian Under Negotiation: Consideration of acquisition of property III. RECESS IV. RECONVENED AT 7:00 P.M. FOR REGULAR MEETING V. ROLL CALL Present: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Gardner, Council Member Daigle Excused: Council Member Webb VI. CLOSED SESSION REPORT City Attorney Hunt reported that Council authorized outside counsel to defend litigation regarding McCollum v. Newport Beach. VII. PLEDGE OF ALLEGIANCE - Mayor Pro Tern Curry Volume 59 - Page 296 City of Newport Beach City Council Minutes October 27 , 2009 VIII. INVOCATION - Mr. Frank Carpenter DL PRESENTATION Presentation from Goodwill Industries of Orange County for E -Waste Partnership - Goodwill Community Development Manager Doug Woolie presented Mayor Selich with a certificate of appreciation. X. NOTICE TO THE PUBLIC XI. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH CQ T-UNCIL MEMBERS WOULD._LIKE PLACED _ON A FUTURE AGENDA FOR DISCUSSION, ACTION OR REPORT (NON- DISCUSSION ITEM) Council Member Daigle noted the success of Public Safety Day and complimented the Public Safety Departments for a job well done, discussed the ecological goals of the Southern California Water Committee, noted that community member Monica Florian was honored at that meeting, and discussed the need for a Sacramento -San Joaquin Delta solution. Council Member Rosansky noted that the Barrett - Jackson Auction Company will be coming to the Orange County Fairgrounds from June 25 -27, many hotels will be needed for this event, and this is an opportunity to work with the City of Costa Mesa. Mayor Pro Tem Curry congratulated the Restaurant Association for another successful Restaurant Week. XII. CONSENT CALENDAR A. READING OF MINUTESIORDINANCES AND RESOLUTIONS 1. MINUTES OF THE REGULAR MEETING AND ADJOURNED REGULAR MEETING OF OCTOBER 18, 2009. 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. B. ORDINANCE FOR ADOPTION 3. AMENDMENT TO MUNICIPAL CODE CHAPTER 9.04.080, SUBSECTION 807.4.2.1 (FIRE RING POLICY UPDATE). [100 - 2009] Adopt Ordinance No. 2009 -23 amending Municipal Code Section 9.04.030, Subsection 307.4.2.1, to clarify the public use of fire rings at any beach, park, or other public place. C. CONTRACTS AND AGREEMENTS 4. AVOCADO AVENUE AND WESTCLIFF DRIVE MEDIAN IMPROVEMENTS - AWARD OF CONTRACT (C -8967). [381100 -20091 a) Approve the project drawings; b) award contract (C -3967) to Tal Cal Engineering, Inc. for the total bid price of $197,565.00 and authorize the Mayor and the City Clerk to execute the contract; and c) establish an Volume 59 - Page 297 City of Newport Beach City Council Minutes October 27, 2009 amount of $20,000 to cover the cost of unforeseen work. City Manager Kiff noted that bids for the project came in 24% lower than engineer estimates. 5. RHINE WHARF REPAIRS & PUBLIC DOCK - AWARD OF CONTRACT (C- 8821). [281100 -2009] a) Approve the project drawings and specifications; b) award contract (C -3821) to Associated Pacific Constructors, Inc. for the total bid price of $430,539.84 including the base bid price of $374,539.84, and an additive bid item 1 of $56,000, and authorize the Mayor and the City Clerk to execute the contract; and c) establish an amount of $64,580.00 (15 %) to cover the cost of unforeseen work. City Manager Kiff noted that bids for the project came in 25% lower than engineer estimates. 6. MCFADDEN SQUARE PHASE II - AWARD OF CONTRACT (C- 4865). (881100 -2009) a) Approve the project drawings and specifications; b) declare the apparent low bid submitted by C.A. Odell Contractor as nonresponsive; c) declare the 2nd low bid submitted by EBS Concrete, Inc. as the low responsive bid; d) award (C -4365) to EBS Concrete, Inc. for the total bid price of $32,150.00 and authorize the Mayor and the City Clerk to execute the contract; and e) establish an amount of $5,850.00 to cover the cost of unforeseen work. City Manager Kiff noted that bids for the project came in 20% lower than engineer estimates. Motion by Mayor Pro Tem Curry, seconded by Council Member Rosanskv to approve the Consent Calendar, except for the items removed (7 and 8). The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Gardner, Council Member Daigle Absent: Council Member Webb XIII. ITEMS REMOVED FROM THE CONSENT CALENDAR 7. APPOINTMENTS TO THE TASK FORCE ON CYCLING SAFETY. (100 -2009] Mayor Selich recommended appointing Council Member Daigle to the Task Force, in addition to the candidates listed in the staff report. Motion by-Mayor Pro Tem Curry. seconded by Council Member _Gardner to a) adopt amended Resolution No. 2009 -74, amending Resolution No. 2009 -67 regarding the membership of the Task Force on Cycling Safety; and b) confirm the Mayors appointments to the Task Force on Cycling Safety - Council Member Daigle; Daniel Murphy (Balboa Peninsula or West Newport Beach Area); Francis (Frank) Peters (Corona del Mar Area); Jim Sweet (Newport Coast Area); and Sean Matsler, Tony Petros, and John Tzinberg (At -large Residents). The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Volume 59 - Page 298 City of Newport Beach City Council Minutes October 27, 2009 8. REVISION TO COUNCIL 'PERTAINS TO THE MEETINGS. [100 -20091 POLICY A-6 (OPEN MEETING POLICIES) AS IT ORDER OF BUSINESS FOR COUNCIL In response to Council Member Gardner's question, City Manager Kiff explained that the Planning Commission Report will be placed on the consent calendar and can be pulled in the event an oral report is needed. Motion by Council Member Gardner, seconded by Council Member Rosanskv to approve the revisions to Council Policy A -6. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Gardner, Council Member Daigle Absent: Council Member Webb )UV. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES As a member of the Citizen's Aviation Committee, Council Member Daigle reported on RNAV Procedures, that the FAA will be at the next Citizen's Aviation Committee meeting on December 7, and that the City will be providing a chart of all the different flight patterns for concerned residents. Council Member Gardner reported on CoastalBay Water Quality Committee findings and the importance of street sweeping in reducing bacteria in the water supply. Council Member Henn reported items considered at the most recent Economic Development Committee Meeting, including the new Harbor Cruising Guide produced by the Harbor Resources Department and the Harbor Commission, and discussed presentations by the Orange County Business Service Center and the One Stop Center. XV. PUBLIC COMMENTS - None XVII. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT XVIII. 11. . PLANNING COMMISSION AGENDA FOR OCTOBER 22,2009.[100-20091 Planning Manager Alford reported on the following Planning Commission items: North Newport Center Planned Community Amendment (PA2009 -111) - Newport Center Drive; ONG Parking Waiver (2009 -059) - 333 Old Newport Boulevard; and Megonigal Residence (PA2007 -133) - 2333 Pacific Drive. 12. WATER CONSERVATION ORDINANCE. [100 -20091 Utilities Director Murdoch reported on changes to the amended ordinance in regards to water leaks, zoning irrigation, the appeal process, construction sites, and smart - controllers. Council Member Gardner requested and received clarification from Utilities Director Murdoch on the wording in Section 14.16.040 H and on approval systems in Section Volume 59 - Page 299 City of Newport Beach City Council Minutes October 27, 2009 M. Motion by Council Member Gardner, second-gd -by. Council Member Daigle to a) introduce Ordinance No. 2009 -24 amending Chapter 14.16 of the Newport Beach Municipal Code; and b) set a public hearing relative to the Ordinance for Tuesday, November 10, 2009, at which time additional public testimony will be taken and the Ordinance will be heard for a second time. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Gardner, Council Member Daigle Absent: Council Member Webb 13. COUNCIL PRIORITIES STATUS REPORT. [100 -2009] City Manager Kiff provided a staff report to discuss the following six Council priorities: adverse impacts of John Wayne Airport (JWA), performance improvement and benchmarking, FY09 -10 budget, the Facilities Replacement Plan, the Group Homes Ordinance, and the fire hazard in Lower Buck Gully. Assistant City Manager Wood reported on the Zoning Code update which is tentatively scheduled for February 2010 and the Inclusionary Housing Ordinance. Council Member Henn suggested conducting another Citizen's Survey to assist with the performance improvement and benchmarking process. S14. CONSTRUCTION AND MAINTENANCE PROJECTS IN RESIDENTIAL DISTRICTS CODE AMENDMENT. [100 -2009) Assistant City Manager Wood clarified a change in the code amendment language. Mike Lugo expressed concern for the magnitude of the project being built next door to him. Motion by Mayor Pro Tem Curry, seconded by Council Member Rosansky to continue the item to the November 10, 2009 meeting. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Gardner, Council Member Daigle Absent: Council Member Webb XVI. PUBLIC HEARINGS 9. APPEAL OF HEARING OFFICER'S DENIAL OF USE PERMIT AND REASONABLE ACCOMMODATION - 1216 WEST BALBOA BOULEVARD (NEWPORT COAST RECOVERY, LP) (PA2008 -104). [68/100 -2009] Mayor Selich stated that the appellant withdrew the appeal, so no action is necessary. City Attorney Hunt verified that the appeal was canceled and noted that Code Enforcement reported that the facility has been relocated to Costa Mesa. In Volume 59 - Page 300 City of Newport Beach City Council Minutes October 27, 2009 response to Council Member Henn's questions, he clarified that any rehabilitation center wanting to move to 1216 West Balboa would have to apply for a use permit or reasonable accommodation and that our Group Homes Ordinance prohibits location of new group homes in R -1 and R -2 Districts. 10. APPEAL OF HEARING OFFICER'S DENIAL OF REASONABLE ACCOMMODATION - 492 AND 492'% ORANGE AVENUE, 8809 CLAY STREET (PACIFIC SHORES PROPERTIES, LLC). (681100 -2009] City Attorney Hunt framed the issues for Council in regards to changes to the original application and advised Council on their options as outlined in the staff report. He also discussed the fire code and noted conditions that would allow Council to grant the reasonable accommodation. Associate Planner Brown utilized a PowerPoint presentation to discuss facility locations, Pacific Shores Properties' request for five accommodations, findings required to grant a reasonable accommodation, the Hearing Officer's determinations, and the amended request for reasonable accommodation that was submitted on October 23. Deputy City Attorney Wolcott discussed substantial evidence, reasonable accommodations, the five separate application requests made by the appellant, recommendations, conditional approval, exit door size and occupancy, and lack of verifiable evidence showing financial necessity. Chris Brancart, representing Pacific Shores Properties, utilized a presentation to discuss facility locations, "sober environment" requirements, their good neighbor policy, national surveys on drug use and health, government funding, past City goals in regards to funding for substance abuse treatment, the need for a single housekeeping unit, California landlord tenant law conflicts, enforcement issues, dwelling statistics, community complaints, and observations relative to the staff report. He further noted that this is an administrative proceeding and requested the reasonable accommodation to be treated as a single housekeeping unit. In response to Council questions, he clarified funding for housing elements and the 12 -12 -6 proposed solution. Assistant City Manager Wood discussed the Community Development Block Grant (CDGB) program and the consolidated plan. Mayor Selich opened the public hearing. Denys Oberman discussed citizen complaints and the over - concentration of group homes on the Peninsula. She supported denying the request. Cindy Koller expressed her reasons for supporting the denial of the request. James Wilcox discussed his experience living at Pacific Shores and expressed his support for the facility. Lori Morris agreed that there is an over - concentration of group homes in the area and expressed support for denying the request. Larry Mathena discussed evidence from neighbors and expressed support Volume 59 - Page 301 City of Newport Beach City Council Minutes October 27, 2009 for upholding the denial. David Obbage, Casa San Miguel and Casa Santa Rosa HOA Representative, discussed his opposition for the over - concentration of group homes in the area and expressed the opinion that Pacific Shores represents a pursuit of profit at the expense of the neighborhood. Laura Curran noted that financial viability has not been demonstrated. Kit Bobko, outside counsel, discussed statistics on licensed and unlicensed facilities in the County versus the City, the definition of an appellant body, resident testimony about facilities, direct substantial evidence, the housing element, and reasonable accommodations. Hearing no further testimony, Mayor Selich closed the public hearing. In response to Council Member Henn 's request for clarification, City Attorney Hunt clarified that, based upon the amendment to the application, Council can consider and conditionally grant a reasonable accommodation for 12 residents in each Orange Avenue address and six residents at the Clay Street address, conditioned upon sufficient evidence of financial viability provided by Pacific Shores Properties, LLC within ten days of the Council's decision. The financial information will be forwarded to the City's Administrative Services Department for analysis and the matter will be heard by the Hearing Officer to determine whether financial viability exists. He also clarified that the number of occupants entitled to live on the premises is based on the fire code and that this will need to be identified, recommended against waiving any fire code requirements, and noted that Council's action on the appeal is final and not subject to negotiation. Deputy City Attorney Wolcott requested and received clarification from Council relative to upholding the denial of the first four reasonable accommodation requests. Motion by Council Member Henn seconded by Moor Pro Tem Curry to consider and conditionally grant a reasonable accommodation for 12 residents in each Orange Avenue address and six residents at the Clay Street address, conditioned upon sufficient evidence of financial viability provided by Pacific Shores Properties, LLC within ten days of the Council's decision to the City's Administrative Services Department for analysis and determination by the Hearing Officer to whether financial viability exists, determine the appropriate number of occupants entitled to live on the premises based on the fire code, and not waive any fire code requirements. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Gardner, Council Member Daigle Absent: Council Member Webb City Attorney Hunt indicated that a resolution will be brought back at the next meeting to set forth the conditions. XIX. MOTION FOR RECONSIDERATION - None Volume 59 - Page 802 City of Newport Beach City Council Minutes October 27, 2009 XX. ADJOURNMENT, 9:09 p.m. The agenda for the Regular Meeting was posted on October 21, 2009 at 8:05 p.m. and the Supplemental Agenda for the Regular Meeting was posted on October 23, 2009 at 3:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Mayor tN v1/� � • r �1 �'U I � City Clerk Volume 59 - Page 303