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HomeMy WebLinkAbout05/22/2001 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting May 22, 2001 - 7:00 p.m. INDEX STUDY SESSION (Special Meeting) - 3:40 p.m. CLOSED SESSION - 6:00 p.m. CLOSED SESSION REPORT -None. A. RECESSED AND RECONVENED AT 7:05 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, O'Neil, Ridgeway, Glover, Bromberg, Proctor, Mayor Adams Absent: None C. PLEDGE OF ALLEGIANCE - Mayor Pro Tern Ridgeway. D. INVOCATION - Reverend Monsignor Daniel Murray, Our Lady of Mt. Carmel Catholic Church. E. Presentation to Dr. Brian Chesnie and John Montgomery by Fire Chief Tim Riley. Fire Chief Riley announced the strategic partnership in public safety between the Newport Beach Fire Department, Hoag Hospital, Hoag Heart Institute and Dr. Brian Chesnie, and the donation of an automatic external defibrillator (AED) to the Fire Department by Dr. Chesnie and another one by John Montgomery. Fire Chief Riley presented plaques of appreciation to Mr. Montgomery, Steve Moreau, Senior Vice President of Hoag Hospital, Dr. Joel Manchester, Medical Director of Hoag Heart Institute, and Dr. Chesnie. Dr. Chesnie stated that heart disease is the number one cause of death and requires a quick response to aid survival. F. NOTICE TO THE PUBLIC G. 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 Bromberg requested a report on the situation with the Newport Harbor High and Corona del Mar High swimming pools, which are open to the public. He specifically asked for information on Volume 54 - Page 266 City of Newport Beach City Council Minutes May 22, 2001 the amount of usage at the pools and if it was expected that they would have to be closed down. • Council Member Bromberg congratulated the supporters of the Balboa Theater on the groundbreaking earlier in the day and the presentation of the `Bulldozer Ballet ". • Council Member Bromberg asked if the funds for CalTrans West had been set aside. City Manager Bludau stated that half of the funds had been set aside in the upcoming budget. • Mayor Pro Tern Ridgeway announced the Balboa Merchant and Owners Association sunset concert on the beach, Swing into Summer with Swingtown, to be held on May 24, 2001, at 6:30 p.m. in the gazebo at the base of the Balboa Pier. • Council Member Heffernan requested that a future agenda include association height restrictions. He stated that bigger homes are being built and some associations are disregarding height limits. • Council Member Heffernan announced that a special showing of Pearl Harbor would take place at the Big Edwards Cinemas in Newport Center on May 26, 2001, at 8:00 a.m. He stated that a $20.00 donation would cover the movie and also help the veterans. • City Manager Bludau announced that Steve Badum has been selected to replace Public Works Director Webb, who would be retiring in June. City Manager Bludau introduced Mr. Badum and stated that he would begin his employment with the City on June 18, 2001. CONSENT CALENDAR READING OF MINUTES /ORDINANCES AND RESOLUTIONS 1. Item removed from the Consent Calendar by a member of the audience. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. ORDINANCES FOR INTRODUCTION 3. Item removed from the Consent Calendar by Mayor Pro Tern Ridgeway. RESOLUTIONS FOR ADOPTION 4. RECYCLING SERVICE FEE. Adopt Resolution No. 2001 -32 authorizing the recycling service fee to be set at $2.36 per month per residential unit effective July 1, 2001. Volume 54 - Page 267 INDEX Res 2001 -32 Recycling Service Fee (40/44) City of Newport Beach City Council Minutes May 22, 2001 INDEX 5. AWARD OF NON - EXCLUSIVE SOLID WASTE COLLECTION Ord 2001 -5 FRANCHISE TO OCEAN WASTE AND RECYCLING. 1) Adopt Res 2001 -33 Resolution of Intention No. 2001 -33 to award a Non - exclusive Solid Non - Exclusive Waste Franchise to Ocean Waste and Recycling and set a public Solid Waste hearing for June 12, 2001; and 2) introduce Ordinance No. 2001 -5 Collection granting a Non - exclusive Solid Waste Franchise to Ocean Waste and Franchise Recycling, and pass to second reading on June 12, 2001. (44) 6. RESOLUTION SUPPORTING COMMUNITY CONSERVANCY Res 2001 -34 INTERNATIONAL'S GRANT REQUEST FOR UPPER Upper Newport NEWPORT BAY RESTORATION. Adopt Resolution No. 2001 -34 Bay Restoration stating the City's support for a grant request to the State Coastal Grant Request Conservancy for a restoration project in Upper Newport Bay to be (51) conducted by Community Conservancy International (CCI). 7. PROPOSED ASSESSMENT DISTRICT NO. 74 (ISLAND Res 2001 -35 AVENUE FROM EDGEWATER AVENUE TO BAY AVENUE Res 2001 -36 AND WEST BAY AVENUE FROM ISLAND AVENUE TO 7TH Res 2001 -37 STREET ON THE BALBOA PENINSULA) FOR Assessment UNDERGROUNDING UTILITIES. 1) Adopt Resolution District 74 No. 2001 -35 making findings on a petition for, adopting a map (89) showing the proposed boundaries of, and making appointments for Assessment District No. 74; 2) adopt Resolution No. 2001 -36 declaring intention to order the construction of certain improvements in proposed Assessment District No. 74, declaring the improvements to be of special benefit, describing the district to be assessed to pay the costs and expenses thereof, and providing for the issuance of bonds; 3) adopt Resolution No. 2001 -37 giving preliminary approval to the report of the assessment engineer, setting the time and place for a public hearing as July 10, 2001 and ordering the intention of assessment ballot procedure for Assessment District No. 74; and 4) approve the Special Counsel agreement with Robert Hessell. CONTRACTS AND AGREEMENTS 8. LEASE AGREEMENT FOR BALBOA YACHT BASIN WITH [No Report] BASIN MARINE, INC. (contd. from 3/27/01, 4/10/01, 4/24/01 & 5/8/01). Continue to June 12, 2001, 9. WEST NEWPORT SOUND WALL REPLACEMENT (C -3358) — C -3358 ACCEPTANCE AND COMPLETION. 1) Accept the work; 2) BA -049 authorize the City Clerk to file a Notice of Completion; 3) authorize West Newport the City Clerk to release the Labor and Materials bond 35 days after Sound Wall the Notice of Completion has been recorded in accordance with Replacement applicable portions of the Civil Code; 4) release the Faithful (38/40) Performance Bond one (1) year after Council acceptance; and 5) authorize a budget amendment (BA -049) transferring $1,690 from unappropriated Gas Tax Fund balance to Account No. 7181- C5100563. 10. 32nd STREET/BALBOA BOULEVARD REHABILITATION AND C -3245 Volume 54 - Page 268 City of Newport Beach City Council Minutes May 22, 2001 INDEX Volume 54 - Page 269 30TH STREET/ NEWPORT BOULEVARD STORM DRAIN 32nd St/Balboa Blvd IMPROVEMENTS (C -3245) — COMPLETION AND Rehabilitation and ACCEPTANCE. 1) Accept the work; 2) authorize the City Clerk to 30th St/Newport Blvd file a Notice of Completion; 3) authorize the City Clerk to release the Storm Drain Labor and Materials bond 35 days after the Notice of Completion has Improvements been recorded in accordance with applicable portions of the Civil Code; (38) and 4) release the Faithful Performance Bond one (1) year after Council acceptance. 11. CITY S SUPPORT FOR ORANGE COUNTY COASTKEEPER'S C -3421 CAULERPA TAXIFOLIA NEWPORT BAY SURVEY AND BA -050 EDUCATION PROJECT (BUDGET AMENDMENT AND Caulerpa Taxifolia AGREEMENT AUTHORIZATION). 1) Approve a budget Newport Bay amendment (BA -050) authorizing the expenditure of $8,100 to support Survey and Orange County CoastKeeper's Caulerpa taxijolia Newport Bay Survey Education Project and Education Project; and 2) authorize the City Manager to execute (38/40) an Agreement with CoastKeeper to complete the Scope of Work associated with the Caulerpa Survey and Education Project. 12. APPROVAL OF PROFESSIONAL SERVICES AGREEMENT C -3379 WITH EMMET BERKERY FOR BALBOA VILLAGE PROJECT Balboa Village MANAGEMENT SERVICES. Item continued. Project (38) 13. USE OF THE CHANGE KIOSK AT THE NEWPORT PIER. C -3422 1) Authorize the Mayor to execute an agreement with the Newport ATM/Newport Pier/ Beach City Employees Federal Credit Union that authorizes the NB Employees NBCEFCU to install and operate an automatic teller machine at the Federal Credit kiosk near the Newport Pier; and 2) authorize the Director of Public Union Works to execute an encroachment permit for restaurant menu (38) display at the kiosk. MISCELLANEOUS ACTIONS 14. APPOINTMENT TO THE AD HOC CITY COUNCIL AIRPORT Ad Hoc City ISSUES COMMITTEE. Confirm Mayor Adams' appointment of Council Airport Council Member Bromberg to the Ad Hoc City Council Airport Issues Issues Committee Committee (replacement for Council Member Heffernan). (24) 15. LEGAL PUBLICATIONS FOR ONE -YEAR CONTRACT Legal COVERING FISCAL YEAR JULY 1, 2001 TO JUNE 30, 2002. Publications Authorize the City Clerk to publish a notice advertising for bids to be (32) received on or before the hour of 4:00 p.m., on Thursday, June 14, 2001 for a one -year contract covering the publishing and printing of legal notices, or other material required to be published and circulated in the City of Newport Beach. 16. SUPPORT FOR THE GREEN RESTAURANT ASSOCIATION. Green 1) Authorize Mayor Adams to issue a letter to Newport Beach's Restaurant restaurants recommending membership in the Green Restaurant Association (GRA) Association; and 2) authorize the City to join the GRA for one year at (61) $950. Volume 54 - Page 269 City of Newport Beach City Council Minutes May 22, 2001 17. GOVERNMENTAL ACCOUNTING STANDARD BOARD (GASB) STATEMENT NO. 34. Approve a budget amendment (BA -047) in the amount of $40,000 to provide various clerical, accounting, and engineering valuation services related to the implementation of GASB Statement No. 34, which will utilize General Fund, unappropriated surplus fund balance. 18. APPROVAL OF BUDGET AMENDMENT TO TRANSFER $1,020 FROM THE SURFING RESERVE FUND AND $18,500 FROM THE TENNIS RESERVE FUND TO AN EXPENDITURE ACCOUNT PER COUNCIL POLICY I -2 WHICH PROVIDES THAT 20% OF THE REGISTRATION FEES FROM TENNIS INSTRUCTIONAL CLASSES BE SET ASIDE ANNUALLY FOR THE PURPOSE OF PURCHASE OF EQUIPMENT, REFURBISHMENT OF COURTS OR DEVELOPMENT OF NEW RECREATIONAL PROGRAMS OR FACILITIES. Approve BA -048. 19. NEW COUNCIL POLICY ON DISCRETIONARY GRANTS (A -12). Adopt amended Council Policy A -12 ( "Discretionary Grants "). 20. BUDGET AMENDMENT, CIOSA REIMBURSEMENTS FOR CASTAWAYS TRACT NO. 15012. Approve a budget amendment (BA -051) authorizing an appropriation in the amount of $699,186 for the reimbursement of CIOSA Improvements for Tract 15012, Taylor Woodrow Castaways in Account Nos. 7431- C5100605 and 7432 - 05100605. 21. Item removed from the Consent Calendar by Council Member Glover. S26. 2001 -02 PROPOSED BUDGET HEARING; 2001 -02 APPROPRIATION LIMIT HEARING. Schedule a public hearing on the City's proposed budget and appropriation limit for the 2001 -02 fiscal year on June 12, 2001; and direct the City Clerk to publish a notice of said hearings. S27. REQUEST FOR AN ENDORSEMENT LETTER FROM THE MAX COMPANY FOR PUBLICATION OF A NEWPORT BEACH LIFESTYLE BOOK. Authorize staff to prepare an endorsement letter for the City Manager's signature. Motion by Mayor Pro Tern Ridgeway to approve the Consent Calendar, except for those items removed (1, 3 and 21), and noting the continuance of Item No. 12. The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Volume 54 - Page 270 INDEX BA -047 Governmental Accounting Standard Board (GASB) (40) BA -048 Tennis Court Refurbishment/ Recreational Programs/ Facilities (40/62) Discretionary Grants/ Policy A -12 (69) BA -051 Tract 15012 CIOSA Reimbursements/ Castaways (40 /TT 15012) Budget Hearing/ Appropriation Limit Hearing (40) Newport Beach Lifestyle Book (52) City of Newport Beach City Council Minutes May 22, 2001 Noes: None Abstain: None Absent: None I. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE ADJOURNED REGULAR AND REGULAR MEETING OF MAY 8, 2001. Jim Hildreth, 120 The Grand Canal, requested that more of his speech, as read from his letter, be included in the regular meeting minutes of May 8, 2001. Mayor Adams stated that the letter will be referenced in the minutes, if it is not already, but a verbatim of his speech will not be done. Motion by Mayor Pro Tem Ridgeway to waive reading of subject minutes, approve as amended and order filed. The motion carried by the following roll call vote Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: None Abstain: None Absent: None 3. MODIFICATIONS TO CHAPTER 10.28 OF THE NBMC - LOUD AND UNREASONABLE NOISE. Deputy City Attorney Ohl stated that staff has submitted recommendations for changes and modifications to Section 10.28 of the Newport Beach Municipal Code. He stated that the major change is a requirement that police officers give suspected violators a warning. He explained that this has been added to assist the City in providing the District Attorney's office with evidence of the willful element of the crime. He stated that a provision has also been added at the end to indicate that violations are misdemeanors. Council Member Glover asked for an explanation of what happens when the police are called out to a property due to an excessive noise complaint. Deputy City Attorney Ohl stated that the police will first attempt to contact the property owner, or the responsible party, and obtain voluntary compliance. He stated that if voluntary compliance is not obtained, the police officer can decide whether to issue an administrative citation, issue an infraction or make an arrest for a misdemeanor. Mayor Adams noted the newest revision to the ordinance that was distributed at the current meeting. Deputy City Attorney Ohl confirmed that a typographical error was corrected and a provision Volume 54 - Page 271 INDEX Ord 2001 -4 Noise Ordinance (68/70) City of Newport Beach City Council Minutes May 22, 2001 INDEX was added that allows Code Enforcement Officers to also enforce the provision. Council Member Glover asked how the recommended changes strengthen the current ordinance. Deputy City Attorney Ohl stated that it requires that the police officers give a warning first, which should provide sufficient evidence for the District Attorney's office to proceed forward with criminal charges. Mayor Pro Tern Ridgeway received confirmation from Deputy City Attorney Ohl that it is expected that law- abiding citizens would receive the warning and provide voluntary compliance. Council Member Bromberg asked if it is the police who will decide on the parameters to use when determining whether to issue an administrative citation, issue an infraction or make an arrest for a misdemeanor. Deputy City Attorney Ohl stated that it is up to the police to make the decision and that it currently exists in the code this way also. In response to Mayor Pro Tom Ridgeway's question, Deputy City Attorney Ohl stated that besides willful intent, the loud and unreasonable element must also be proven. Jim Hildreth, 120 The Grand Canal, stated that the police already issue warnings. He disagreed with the recommended changes. Pastor Muzic Martin, His Way Ministries, Santa Ana, stated that he ministers at the Newport pier area and at one point was singled out by the police, called a black man and frisked. He stated that his students sing and are proud of their faith. He stated that some individuals might be prejudiced and shouldn't be given the power to cause someone to be arrested for unreasonable noise. Charles Griffin, 732 Bison Avenue, stated that there are circumstances when a gathering will occur through word -of -mouth and it may not be the fault of the property owner. He stated that the police officers need to be trained. Pastor Katheryn Martin, His Way Ministries, stated that His Way Ministries is licensed by the City and obeys the ordinances. She stated that they have conducted research on acceptable decibel levels in the McFadden Square area, and feel that they have the right to do what they're doing. She stated that the police have harassed them and singled them out, and that Orange County News (OCN) also did a spot on them associating them with the loud noise in the City. She stated that their only intent is to send out a positive message and provide a good deed. Phyllis Sandoval stated that a lot of people enjoy listening to the singing and music of the students from His Way Ministries. She Volume 54 - Page 272 City of Newport Beach City Council Minutes May 22, 2001 INDEX stated that it's a positive message that's needed and is helping people improve their lives. Russell Niewiarowski, Santa Ana Heights, stated that he supports the ordinance, but thinks that "loud and unreasonable" needs to be defined. He stated that what is loud and unreasonable to one person may not be to another person. He also mentioned natural sounds, such as birds. Don Kazarian, 3412 Ocean Blvd., stated that the City Council should be careful with the power it passes out. He noted that a contractor on his property recently received an unnecessary citation. Mr. Kazarian stated that common sense needs to be used. Dennis Rodman, 4009 Seashore Drive, stated that the modifications to the ordinance are being done because of him. He asked for a definition of unreasonable noise, and referred to the noise and the people on the streets during the Fourth of July weekend. Mr. Rodman stated that he gets harassed every day, both at home and at his restaurant, and suggested that the police need proper training. Mr. Rodman stated that he shouldn't be liable for the people in the streets and the noise they make. Michael Molfetta, Mr. Rodman's attorney, stated that Mr. Rodman is frustrated by the way he feels he's been singled out. Mr. Molfetta stated that as a former prosecutor and defense attorney in the City's jurisdiction, he has dealt with the wording of the ordinance. He stated that the ordinance needs to provide more guidance to the police on what should be considered unreasonable noise and how disturbances should be handled. Mr. Molfetta stated that Mr. Rodman's celebrity status attracts people. Council Member Proctor stated that he has known Mr. Molfetta for some time and that they both work in the same field. He stated that the law for disturbing the peace, California Penal Code 415, is not much different than the proposed ordinance, but the ordinance attempts to tie in the property owner and requires a warning be issued first. He asked Mr. Molfetta how he thinks the ordinance could be improved. Mr. Molfetta stated that the ordinance is reactionary to things that have occurred in the recent past and such words as "reasonable" and "willfull3�' need to be further defined. Mayor Pro Tom Ridgeway stated that he also has worked as a criminal defense attorney. He read from Section 10.28.007 of the proposed ordinance and stated that it would be difficult to improve the definition of loud and unreasonable. Mayor Pro Tem Ridgeway stated that the proposed ordinance has several standards and he's satisfied that they're legitimate. He added that the proposed ordinance is written for law- abiding citizens, he is in support of it and agrees with the warning system. Volume 54 - Page 273 City of Newport Beach City Council Minutes May 22, 2001 INDEX Council Member Bromberg stated that he has also worked as a defense attorney and referring to comments made earlier by Mr. Molfetta, stated that with celebrity status comes a certain amount of responsibility. Council Member Bromberg stated that every circumstance is unique and Mr. Rodman, based on the location of his home on the peninsula and his celebrity status, needs to provide some control and reasonableness. Council Member Bromberg stated that the proposed ordinance is solid and has been needed for a long time. Mr. Molfetta stated that his mention of celebrity status was only in regards to the people that may gather outside of Mr. Rodman's home when he has a party. He stated that the police may come, they may issue a warning, Mr. Rodman may comply but he shouldn't be held willfully responsible for the uninvited people that may continue to gather in the streets outside his home. Mr. Molfetta stated that it needs to be defined as to when the property owner's responsibility ends. Council Member Bromberg stated that there can be a problem with the invited guests and those invited by word of mouth. The property owner needs to bear the responsibility. Council Member Proctor stated that it would be inappropriate and unlawful to hold a property owner accountable if he has complied with the police. Mr. Molfetta stated that the ordinance still needs to be fine- tuned. Council Member Bromberg stated that the ordinance will not be perfect, but the City needs to address the problems with party houses. He stated that common sense and caring are needed. Mayor Pro Tern Ridgeway stated that the City has an alcoholic beverage ordinance and the issue of when the responsibility of restaurants and commercial entities ends was debated when adopting the ordinance. He stated that it was decided that when the restaurant had done everything within its power, then responsibility has been met. Mayor Pro Tem Ridgeway stated that both ordinances are only trying to maintain peace and quiet in the community. Council Member Heffernan stated his concern about the lack of objective standards, although feels that the proposed ordinance is as close as the City is going to get. He explained that he's concerned about enforcement and consistency in applying the law. Council Member Heffernan stressed that the police must be properly prepared and enforce the ordinance without bias. Council Member Glover asked if playing a musical instrument would be considered as loud and unreasonable noise. Deputy City Attorney Ohl stated that it is assumed that the police will use proper discretion when applying the law, and take into account volume and time of day. Per Council Member Glover's comment, Deputy City Attorney Ohl Volume 54 - Page 274 City of Newport Beach City Council Minutes May 22, 2001 INDEX added that noise complaint calls made by neighbors with personal vendettas is also taken into account. Mayor Adams confirmed with Deputy City Attorney Ohl that the current ordinance is also subject to the same subjectivity. Council Member Proctor confirmed with Deputy City Attorney Ohl that the standard for loud and unreasonable noise is that which annoys a reasonable person. Deputy City Attorney Ohl added that the loud and unreasonable section has already been held to be constitutional. Council Member Glover stated her concern for people being allowed to continue leading their daily lives. Mayor Adams stated that no new dilemma is being added to the decisions already being made by the police. City Manager Bludau noted that the person calling in a noise compliant does not establish the loud and unreasonable factor, it's the police who establish it. Council Member Proctor stated that it needs to be clear that the only changes being proposed are to make the property owner responsible after receiving a notice and making the violation a misdemeanor. Bob Small, 39th Street, stated that the voice of reason is important and disagreed with a property owner being subject to arrest for actions taken by the renters of his property. Mr. Small suggested that continuous complaints of noise should result in fines, which could be a profit center for the City. He stated that people should be allowed to party from time to time. Regarding the Fourth of July, Mr. Small stated that little is done other than rerouting people. In conclusion, Mr. Small stated that the problems in the peninsula area have long been trash, traffic and noise, and suggested that the focus be shifted to these problems. Motion by Council Member Proctor to introduce Ordinance No. 2001 -4 and pass to second reading on June 12, 2001. Mayor Pro Tern Ridgeway stated that he is satisfied that the police respect freedom of speech and are well trained at maintaining citizens rights. Council Member Proctor stated that the proposed ordinance is aimed at trying to improve enforcement without infringing on the public's rights. He stated that the changes are minor and fair. Council Member Heffernan stated heavy- handed and is not the tool He stated that it'll just be another that the proposed ordinance is too needed to solve the noise problem. layer and that what is already on Volume 54 - Page 275 City of Newport Beach City Council Minutes May 22, 2001 the books is enforceable. Council Member Heffernan noted that the City is in the limelight over the issue and must treat everyone equally. Mayor Pro Tern Ridgeway stated that the ordinance does comply with the equal protection clause of the Constitution. The motion carried by the following roll call vote Ayes: O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: Heffernan Abstain: None Absent: None 21. ENVIRONMENTAL QUALITY AFFAIRS COMMITTEE (EQAC) COMMENTS ON DRAFT ENVIRONMENTAL IMPACT REPORT FOR CRYSTAL COVE HISTORIC DISTRICT INVESTIGATIONS & INTERIM PROTECTION PLAN. Council Member Glover stated that she didn't have time to read the comments from the Environmental Quality Affairs Committee (EQAC). Assistant City Manager Wood explained that the comments weren't available until earlier in the day because EQAC only met the night before. Council Member Glover stated her concern for comments being sent from the City when the City Council hasn't had the time to conduct a public review. Motion by Council Member Glover not to authorize EQAC to transmit comments to the State Department of Parks & Recreation. Mayor Adams stated that comments are due June 11, 2001, which is prior to the next City Council meeting. He noted that the comments from EQAC are consistent with the comments already made by the City in regards to the notice of preparation, but agreed that Council Member Glover brought up an important procedural issue that needs to be addressed. Council Member Proctor stated that oftentimes there's a bigger picture to look at that a committee might miss. He explained that in this situation, he has learned that the City is attempting to negotiate on the CalTrans West property and there might be a conflict by sending the comments. Robert Hawkins, EQAC Chairman, stated that the committee debated long and hard the night before in preparing the report for City Council review. He stated that the comments would not be transmitted to any agency without the City Council's approval. He noted that EQAC is acting under its authority, but questioned commenting on an extra City project. Mayor Adams stated that the timing issue should not be interpreted by EQAC as the City not being grateful for what they're doing. Volume 54 - Page 276 INDEX EIR/Crystal Cove Historical District (62) City of Newport Beach City Council Minutes May 22, 2001 INDEX Mr. Hawkins noted that the comments are not critical of the project and are fairly neutral. Laura Dietz, EQAC member, stated that the members are aware of the process problem. She stated that it's a matter of timing and possibly the EQAC meetings should be held on a different night. Phillip Lugar, EQAC member, stated that all comments and recommendations made by EQAC go to the City Council first. He stated that EQAC serves at the pleasure of the City Council and that a lot of time is spent by the members in performing their duties. Council Member Glover stated that it's the City Council that hasn't been clear in defining EQAC's responsibilities. She added that the Crystal Cove item is a regional issue and the City Council has to look at the overall picture when making its decisions. The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: None Abstain: None Absent: None J. PUBLIC COMMENTS • Jim Hildreth, 120 The Grand Canal, stated that the City - installed ladder at the southwest end of the Grand Canal is placed there out of spite, and is inadequate for recreational use and unsafe for the partially - disabled. He stated that due to an accident, he has had limited mobility since 1978 and is concerned that the structure will cause him further injury. He added that the City has drawings for two other access structures and requested that one of these be used instead. Mr. Hildreth read from Section 6250 from the California Public Records Act, and requested that he be provided with the documents he has been asking for. City Manager Bludau stated that copies of all of the records that Mr. Hildreth has requested from the City have been provided to him, with the exception of the records that the City does not have possession of. • Michael Safran, 36 Rockingham Drive, presented the City Council with a token of appreciation from the Newport Beach Theater Company for their assistance in introducing children's theater to Newport Beach. • Jay Taylor, Santa Ana Heights, suggested that financial consequences be linked to unreasonable uses of the John Wayne Airport (JWA). He stated that he is concerned about the Federal Aviation Administration Volume 54 - Page 277 City of Newport Beach City Council Minutes May 22, 2001 (FAA) regulation that discusses limiting the use of an airport and if flight restrictions being sought by the City would still be enforceable. He suggested that the City propose to the County that a penalty be considered that would be charged regardless of Federal law for unreasonable flights. Mr. Taylor stated that this might also be of interest to the South County cities and the acceptance of an airport at El Toro. • Russell Niewiarowski, Santa Ana Heights, stated that he has always been a strong advocate of an airport at El Toro and thinks that everyone should be flexible in making sure that an airport at El Toro happens. He stated that a new initiative will be proposed that will amend Measure A to insure that the safest, quietest, most efficient and most modern airport at El Toro be implemented. Mr. Niewiarowski asked that a future agenda item include a presentation of the initiative, which combines adding an open space corridor and plans for a better airport. K. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES — None. L. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 22. PLANNING COMMISSION AGENDA FOR MAY 17, 2001. Planning Director Temple stated that the Planning Commission agenda consisted of six items, one which was continued and two which were minor informational reports. She stated that one item included a clean -up amendment to a district, which would be agendized for the City Council meeting of June 12, 2001. Planning Director Temple stated that the other three items on the agenda were policy oriented and included a review of the capital improvement program, which was found to be consistent with the General Plan. The Planning Commission also reviewed the proposed Harbor and Bay Element of the General Plan and will also make a recommendation for approval at one of the June City Council meetings. Planning Director Temple stated that the final item on the Planning Commission agenda was a preliminary discussion of a new draft subdivision code. She stated that a consultant was hired to prepare the new regulations, and that a public hearing will be held on the matter at the Planning Commission's meeting of June 21, 2001. Motion by Mayor Pro Tem Ridgeway to receive the oral report on the most recent Planning Commission actions; and receive and file the written report. The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Volume 54 - Page 278 INDEX Planning (68) City of Newport Beach City Council Minutes May 22, 2001 M. N. Noes: None Abstain: None Absent: None 23. AD HOC COMMITTEE DEVELOPMENT COMMITTEE QUALITY AFFAIRS COMMITT. TO REVIEW ECONOMIC (EDC) AND ENVIRONMENTAL 'E (EQAC). Mayor Adams made the following appointments Gary Proctor (Council Member) Steve Bromberg (Council Member) John Heffernan (Council Member) Chairman Ed Selich (EDC Representative) Chairman Robert Hawkins (EQAC Representative) Council Member Bromberg confirmed that Assistant City Manager Wood would be the staff liaison. Council Member Heffernan suggested that Council Member Proctor act as Chairman of the committee. Council Member Proctor accepted. Motion by Mayor Pro Tern Ridgeway to adopt Resolution No. 2001 -38 establishing the ad hoc committee, confirm the Mayor's appointments and designate Council Member Proctor as the Chairman. The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: None Abstain: None Absent: None 24. NEWPORT THEATER ARTS CENTER - AMENDMENT OF COUNCIL POLICY I -6, SPECIAL EVENT AND LICENSE AGREEMENT, HOUSE RULES, FEE SCHEDULE, AND REQUEST FOR USE BY NEWPORT BEACH THEATRE COMPANY. City Attorney Burnham stated that at the City Council meeting of April 10, 2001, a management agreement was approved that gave the Friends of the Newport Theater Arts Center the exclusive right to use the theater 46 weeks of the year. It also required that the Friends designate three two -week periods when the theater could be used by third parties. City Attorney Burnham stated that four documents Volume 54 - Page 279 INDEX Res 2001 -38 EDC and EQAC (24) C -3409 Policy I -6/ Newport Theater Arts Center/ Newport Beach Theater Company (38/62/69) City of Newport Beach City Council Minutes May 22, 2001 INDEX have been prepared that deal with the reserved periods. Motion by Council Member Glover to approve the modifications to Council Policy I -6 with an amendment to delegate the authority to designate Third Party use of the NTAC to the Friends of the NTAC, the Permit, the House Rules and the Fee Schedule; and determine that the Newport Beach Theatre Company meets the selection criteria in Council Policy I -6 and approve their request to use the Theatre during the first three (3) Reserved Periods. Council Member Bromberg stated his concern for designating the Friends such authority when it was represented to the Newport Beach Theater Company, early in the process, that the City would participate in the selection process. He stated that this commitment should be kept. Council Member Glover stated that the current obligations to the Newport Beach Theater Company will be kept and that her recommendation is only for future uses of the theater by third parties. Council Member Bromberg stated that the commitment to have City - involvement should be kept. Council Member Glover stated that the theater is within a residential district and is a small community theater. She stated that the City Council should not have to look at the issue of who uses the theater three times per year. She added that the Friends have standards that they will apply and it is appropriate for them to make the selection. Substitute Motion by Mayor Pro Tem Ridgeway to approve the modifications to Council Policy I -6 with an amendment to delegate the authority to designate Third Party use of the NTAC to the City Manager, the Permit, the House Rules and the Fee Schedule; and determine that the Newport Beach Theatre Company meets the selection criteria in Council Policy I -6 and approve their request to use the Theatre during the first three (3) Reserved Periods. Mayor Pro Tem Ridgeway stated that this would provide for a fair and reasonable compromise. Mayor Adams stated that its good to have the authority with the City Council, but delegating that authority doesn't limit it. He suggested that possibly the delegation should be made to a department, however, instead of the City Manager. City Attorney Burnham stated that the policy is currently setup to have the Community Services Director make the selection, with a provision that the City Council can make the designation. Amended Substitute Motion by Mayor Pro Tem Ridgeway to approve the modifications to Council Policy I -6 with an amendment to Volume 54 - Page 280 City of Newport Beach City Council Minutes May 22, 2001 delegate the authority to designate Third Party use of the NTAC to the Community Services Director, the Permit, the House Rules and the Fee Schedule; and determine that the Newport Beach Theatre Company meets the selection criteria in Council Policy I -6 and approve their request to use the Theatre during the first three (3) Reserved Periods. City Attorney Burnham stated that he doesn't believe he gave the Newport Beach Theater Company any representations as to what the result would be regarding the selection process. Council Member Glover stated that she could support the amended substitute motion and asked what criteria the Community Services Director would use. City Attorney Burnham stated that the criteria is specified in the policy. Mayor Adams stated that anyone who disagrees with a selection can approach the City Council, since the City Council maintains the ultimate authority. The amended substitute motion carried by the following roll call vote Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: None Abstain: None Absent: None 25. ENTITLEMENT STATUS OF THE NEWPORT VILLAGE SITE (REQUESTED BY COUNCIL MEMBER BROMBERG). Planning Director Temple stated that the staff report clarifies the current General Plan and zoning designations for the Newport Village site. She stated that the current zoning does designate the site for open space, but amendments may need to be made to be consistent with the development of a park at the site. Jan Vandersloot, Stop Polluting Our Newport (SPON), stated that SPON has spent about ten years trying to get a park at the site and feels that the staff recommendations support this endeavor. He asked if the library exchange agreement wasn't already a General Plan Amendment, however, designating the site as recreational/ environmental open space in the General Plan. He suggested that a General Plan Amendment at this time may not be needed. Dr. Vandersloot added that the City Attorney and the Planning Director have indicated that it was only the zoning that was changed in the library exchange agreement, but that he has since learned that the library exchange agreement was a General Plan Amendment itself. He concluded by stating that he supports the site remaining as open space with a park created on it. Volume 54 - Page 281 INDEX Res 2001 -39 GPA 2001 -2 Res 2001 -40 Newport Village Site (45) City of Newport Beach City Council Minutes May 22, 2001 Per Council Member Bromberg's request, Planning Director Temple stated that the library exchange agreement was a development agreement with a zoning amendment, but no action was taken in regards to the General Plan. She stated that it would be helpful to have the Land Use Element clearly reflect the multiple uses of the site. Motion by Council Member Brombere to adopt Resolution No. 2001 -39 initiating General Plan Amendment 2001 -2 for the Newport Village Site and that the language include that the portion of the Site between the Central Library and San Miguel Drive be designated as a combination passive view park and restored environmental open space with improvements limited to those necessary to serve park visitors and parking for park and/or library purposes; adopt Resolution No. 2001 -40 initiating an amendment to the Newport Village Planned Community District Regulations; direct staff to return to Council with plans, specifications and a budget amendment for the improvement of a park on the Newport Village site; and that the actions be completed within the next four months. Council Member Heffernan confirmed that the council members were clear that the parking would be jointly used by the library and the users of the park. The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: None Abstain: None Absent: None S28. REPORT FROM THE CITY MANAGER AND CITY ATTORNEY REGARDING THE PROPOSED EXTENSION OF THE JOHN WAYNE AIRPORT SETTLEMENT AGREEMENT. City Attorney Burnham stated that the item involves a Memorandum of Understanding (MOU) between the City and the County, which establishes the ground rules for the preparation of an environmental document that will evaluate the impacts of the proposed extension of the John Wayne Airport (JWA) settlement agreement. The City needs the consent of the County Board of Supervisors to extend the settlement agreement and the City Council has worked hard to get to this point in the process. Using a PowerPoint presentation, City Attorney Burnham stated that the JWA settlement agreement came out of a lawsuit that was filed by the County. The County was asking the court to validate the Environmental Impact Report (EIR) for the JWA Master Plan. The settlement agreement was approved by the City, the County, the Airport Working Group (AWG) and Stop Polluting Our Newport Volume 54 - Page 282 INDEX C -3424 BA -053 JWA Settlement Agreement/ Environmental Impact Report (38/40/54) City of Newport Beach City Council Minutes May 22, 2001 1965. INDEX City Attorney Burnham stated that the settlement agreement, which expires on December 31, 2005, limits the number of noise - regulated flights to 73 average daily departures, limits the number of gates to 14, limits the size of the terminal to approximately 338,000 square feet and limits the number of passengers to 8.4 million annually. City Attorney Burnham described some of the actions taken by the City and the County to date, leading to a unanimous vote by the County Board of Supervisors earlier in the day to approve the MOU and three airport expansion alternatives. City Attorney Burnham stated that the first alternative, Alternative A, was submitted by the City and provides for no change in the curfew until 2026, but permits 4 new gates on January 1, 2005, an increase in the average daily departures to 85 and an increase in the number of annual passengers to 9.8 million. He stated that it also, like the current settlement agreement, prohibits any change in the general aviation facilities at the airport or the general aviation noise ordinance. City Attorney Burnham stated that the County proposed the other two alternatives, with Alternative B adding 4 new gates, and increasing the annual passengers to 10.8 million and the number of average daily flights to 85, all permitted on April 1, 2002. City Attorney Burnham explained that Alternative B would also permit 2 additional cargo flights on January 6, 2006, and would be less restrictive regarding noise limits and master planning. Alternative C represents more facility improvements and further removes restrictions in place in both Alternatives A and B. City Attorney Burnham stated that Alternative C would permit 4 new gates on April 1, 2002, six new gates on January 1, 2006, would allow for an increase in the number of average daily flights to 85 on April 1, 2002, and to 100 on January 1, 2006, and would have no cap on the number of annual passengers. City Attorney Burnham stated that EIR 573 was prepared by the County to evaluate the impacts of a commercial airport at El Toro. He added that the California Environmental Quality Act (CEQA) requires the County to evaluate an expansion of JWA in EIR 573, in case E1 Toro is not developed into a commercial airport. City Attorney Burnham explained that the County developed two JWA expansion alternatives to meet this requirement and they are known as Alternatives F & G. Alternative F would allow 14 million annual passengers in 2020, 29 air carrier gates and 8 commuter gates, a terminal three times larger than the existing facility, and approximately 75,000 additional flights per year. Alternative G would increase the number of gates to 52, the terminal would be six times larger, two runways would be utilized, the annual passengers would increase to 25 million, 700 acres of land around the airport would be condemned and 200,000 additional flights per year would be allowed. City Attorney Burnham stated that the next step in the process to Volume 54 - Page 283 City of Newport Beach City Council Minutes May 22, 2001 INDEX extend the JWA settlement agreement is for the County to begin preparation of the environmental document, with input from the City. He stated that the process is expected to include meetings with the interested parties, such as the FAA, air carriers, and JWA corridor cities. Although the EIR will be complicated to prepare, City Attorney Burnham stated that it is hoped that the draft EIR will be completed by November 1, 2001. He added that a 45 -day comment period would follow, and hopefully board certification and approval would occur by January 15, 2002, with City Council approval on January 22, 2002. Mayor Adams pointed out that Alternatives F & G are the alternatives that may happen if the JWA settlement agreement is not extended and an airport at El Toro does not happen. Council Member Glover stated that she serves as Chairman on the JWA Settlement Extension Ad Hoc Committee and that Council Members Proctor and O'Neil also serve on the committee. She stated that although the County is the lead agency on the EIR, the City is paying for it and would also pay for any litigation that might occur. Council Member Glover stated that the City is supporting Alternative A and will need to be very prudent as the EIR phase is entered. Council Member Proctor stated that it needs to be clear that Alternatives F & G in the El Toro EIR could be devastating to Newport Beach, which is why extending the settlement agreement and getting an airport at El Toro is so important. He stated that the law requires that three alternatives be studied in the JWA EIR, explaining why there are Alternatives A, B and C. Council Member O'Neil stated that the City Council understands that another airport needs to be built to satisfy the future air transportation and air cargo needs in the region. He stated that the City has limited control over the issue, and has done what it can to support Alternative A. He stated that the unanimous vote earlier in the day by the five County supervisors was a great achievement, and is encouraged that the City will be successful in its efforts. Council Member Bromberg noted that some people who live in Newport Beach don't care about the settlement agreement because they feel that they aren't impacted by the flights out of JWA. Council Member Bromberg stated that if an appropriate settlement agreement and an airport at El Toro are not accomplished, that JWA will be expanded and everyone will be impacted. Council Member Heffernan stated that the citizens in Newport Beach are generally uninformed on the problem. He stated that the citizens should be motivated to get involved, that the issue will have a huge impact on Newport Beach and that the City has reached a critical time in the process. Like the previous speakers, Mayor Adams commended the three Volume 54 - Page 284 City of Newport Beach City Council Minutes May 22, 2001 INDEX council members on the committee. He stated that the amount of time spent on the issue has been extraordinary. Jay Taylor, Santa Ana Heights, requested that his comments made during the Public Comments section of the agenda be incorporated into this item as well (Volume 54, Page 277). He added that he feels that his neighborhood faces a real air traffic disaster problem. He complimented the time and effort that has been spent by the City, but again suggested that financial consequences be tied to the use of JWA. Council Member Proctor requested that City Attorney Burnham discuss the legal issues of applying financial consequences with Mr. Taylor. Laura Dietz announced that on June 4, 2001, there will be a discussion about El Toro, sponsored by the Corona del Mar Residents Association. The meeting will take place at 7:00 p.m. at the Oasis Senior Center. Charles Griffin pointed out that CEQA requires that a no project alternative be looked at when reviewing an EIR. He stated that a no project alternative in this situation would be an extension of the existing settlement agreement. He stated that with any of the three alternatives, the noise will be increased. George Margolin, 1701 Irvine Avenue, displayed an aerial shot of the region and noted the no housing zone over El Toro. He stated that it's a large area and asked that it be compared to the area around JWA. He noted how devastating a larger airport at JWA would be for the region. Russell Niewiarowski, Santa Ana Heights, noted that Don Bren, an influential celebrity in Newport Beach, is not involved in the airport issue and should be. Mr. Niewiarowski stated that the City is advocating an expansion of JWA by supporting Alternative A. He stated that the current settlement agreement should be extended, as is. He stated that there should not be an expansion of JWA and the City should not be funding an EIR for an expansion. He stated that, instead, the City should be supporting a runway alternative for E1 Toro. He stated that an airport at E1 Toro is needed, but disagrees with the City pursuing a two - airport system. Council Member Glover stated that the committee has been meeting with the other corridor cities and keeping them updated on the progress being made with the extension of the settlement agreement. She stated that the parties involved with the approval of the settlement agreement also need to approve its extension, and someone has to take the leadership to have this done. Council Member Glover noted the past efforts of the Airport Working Group (AWG) and their leadership in stopping JWA from being expanded previously. She stated that the City is taking the leadership this time. She stated Volume 54 - Page 285 City of Newport Beach City Council Minutes May 22, 2001 INDEX that, like AWG, this involves protecting the corridor cities. Referring to the comments made earlier by Mr. Niewiarowski, Council Member Bromberg stated that anyone who thinks that the settlement agreement wouldn't be changed after 20 years is being unrealistic. Council Member Bromberg stated that Mr. Niewiarowski isn't supporting the efforts of the City. Marcella Niewiarowski, Santa Ana Heights, stated that she is under the flight path and that JWA has no buffer zone. She stated that her brother, Russell, has spent a lot of time on an alternative runway for El Toro that utilizes an existing buffer zone. Ms. Niewiarowski stated that she would offer her time to fight for no expansion at JWA. She stated that the City should not be pursuing an expansion of JWA. Motion by Council Member Proctor to authorize the City Manager to execute a Memorandum of Understanding (MOU) regarding preparation of the Environmental Impact Report (EIR); authorize the City Manager to execute agreements with consultants to prepare portions of the environmental document so long as the expenditures are within budgetary authority; and approve a budget amendment (BA -053) designating $400,000 for purposes of completing the environmental document on the project. Explaining why Alternative A is being supported, Council Member Heffernan stated that the City is standing alone on the issue and has to give a little in order to reach its goals. He added that the citizens in Newport Beach must recognize that the options are limited. He noted that the City has spent over $10 million since 1981 on the airport issue and is planning to spend another $4 million in the next twelve months. He stated the issue is expensive, but important. Mayor Adams stated that people have the right to criticize what the City is doing, but complaints are usually the result of the City not getting the full message out about the constraints and realities, noting that it's a complex issue. Mayor Adams additionally pointed out that it's the County, and not the City, that is responsible for a potential airport at El Toro and the current JWA. He stated that the one thing the City has is the settlement agreement and added that due to the increased demand for air travel in the County, no one should think that the settlement agreement wouldn't be changed when extended. Mayor Adams stated his support for the compromise being recommended in Alternative A. Council Member Proctor added that Mr. Niewiarowski and Mr. Griffin have done a disservice to the citizens in Santa Ana Heights. He stated that what they fail to understand is that if an airport at El Toro doesn't happen, JWA will expand into Alternatives F or G. He stated that El Toro will be lost if the EIR process is delayed, which is what Mr. Niewiarowski and Mr. Griffin are doing. Volume 54 - Page 286 City of Newport Beach City Council Minutes May 22, 2001 The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: None Abstain: None Absent: None S29. PROPOSED GRANT AGREEMENT BETWEEN THE CITY AND THE AIRPORT WORKING GROUP (AWG) WITH REPORT FROM THE CITY MANAGER AND THE CITY ATTORNEY. City Attorney Burnham stated that at the City Council meeting on March 27, 2001, grant agreements with Citizens for Jobs and the Economy (CJE) and the Airport Working Group (AWG) were approved. These funds were to be used to conduct a public education program related to possible solutions to the current and future air transportation needs of the County. He stated that staff is recommending that the process be modified to terminate the grant with CJE and grant the funds solely to AWG. Motion by Council Member Glover to approve the following recommendations of the Airport Issues Committee: authorize the Mayor to execute the proposed grant agreement between AWG and the City of Newport Beach, as amended; terminate the Grant Agreement between CJE and the City of Newport Beach that is dated March 28, 2001; and retain Dana Reed of Reed and Davidson and Fred Woocher of Strumwasser and Woocher to act as special counsel pursuant to the grant agreement and direct staff to notify AWG that special counsel has been retained. Laura Dietz, 325 Cameo Shores Road, asked what the funds could be used for, given that they can't be used for any political ballot measure. City Attorney Burnham stated that a statute prohibits the use of taxpayer dollars to support or oppose the qualification, passage or defeat of a ballot measure. The funds, however, can be used to educate the public on various issues. He stated that the grant agreement requires two attorneys to review any material before it is duplicated and disseminated to the public. Ms. Dietz asked if the two attorneys and the City Council would be the only ones to look at the material. City Attorney Burnham stated that the two attorneys would only be reviewing the material to determine if it can be funded with taxpayer dollars. Council Member Heffernan stated that he opposes the City funding AWG, but supports the expenditure of money for public education. The motion carried by the following roll call vote: Ayes: O'Neil, Ridgeway, Glover, Proctor, Bromberg, Mayor Adams Noes: Heffernan Volume 54 - Page 287 INDEX C -3425 Grant Agreement/ Special Counsel/ Airport Issues (38) City of Newport Beach City Council Minutes May 22, 2001 Abstain: None Absent: None O. MOTION FOR RECONSIDERATION - None. P. ADJOURNMENT - 10:20 p.m. The agenda for the Regular Meeting was posted on May 16, 2001, at 2:15 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 May 18, 2001, at 2:30 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Secretary Mayor Volume 54 - Page 288 INDEX