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HomeMy WebLinkAbout10/08/2013 - Regular MeetingCity Council Minutes City Council Regular Meeting October 8, 2013 — 7:00 p.m. I. STUDY SESSION - 5:00 p.m. II. CLOSED SESSION - 5:84 p.m. A. CONFERENCE WITH LABOR NEGOTIATORS (Government Code § 54957.6): Heading Agency Designated Representatives: Dave Kiff, City Manager, and Terri Cassidy, Deputy City Manager; Negotiators Employee Organizations: All Labor Associations: Association of Newport Beach Ocean Lifeguards (ANBOL); Newport Beach City Employees Association (NBCEA); Newport Beach Employees League (NBEL); Newport Beach Firefighters Association (NBFA); Newport Beach Fire Management Association (NBFMA); Newport Beach Lifeguard Management Association (NBLMA); Part -Time Employees Association of Newport Beach (PTEANB); Newport Beach Police Association (NBPA); Newport Beach Police Management Association (NBPMA); and Newport Beach Professional and Technical Association (NBPTEA) B. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code § 54957): Title: Aaron C. Harp, City Attorney III. RECESS IV. RECONVENED AT 7:00 P.M. FOR REGULAR MEETING V. ROLL CALL Present: Nancy Gardner, Tony Petros, Rush Hill, Keith Curry, Ed Selich, Mike Henn, Leslie Daigle VI. CLOSED SESSION REPORT City Attorney Harp announced that there are no reportable actions. VII. PLEDGE OF ALLEGIANCE - Council Member Petros VIII. INVOCATION - Mayor Curry Council Member Daigle spoke on her recent bike -on -bike accident and expressed her appreciation to everyone for their wishes for a quick recovery. IX. PRESENTATION Volume 61 - Page 307 City of Newport Beach City Council Minutes October 8, 2013 Proclamation Recognizing Wyatt Robertson for His Accomplishments in Academics and Commitment to Serving the Community Mayor Curry invited Wyatt Robertson to the podium and presented him with a proclamation for his accomplishments in academics and his commitment to serving the community. Wyatt Robertson expressed his appreciation for the acknowledgement and stated his commitment to serving the community. X. NOTICE TO THE PUBLIC XL CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA (NON- DISCUSSION ITEM) Council Member Gardner announced that members of the City's Fire, Police and Recreation Departments have formed a Blackball Working Group to review surfing regulations for City beaches, including specific areas, dates and times. She reported that the current rules have been in place for almost two decades and believed that it is time to review them and solicit input from the community to see if they are working. She encouraged those interested to attend a community forum which will be held on Monday, October 21, 2013, at 6:00 p.m. in the Civic Center Community Room. She stated that additional information can be obtained at www .newportbeachea.gov/blackball. In addition, Council Member Gardner reported that the Harbor Commission is working on a concept plan for Lower Castaways and asked the City Manager to bring back an item for Council to determine if they would like an item placed on the agenda to open the area, inexpensively, for paddleboards and kayaks, prior to the concept plan. Council Member Petros reported that he regularly swims at Big Corona and commented negatively on the beach condition as a result of Saturday night visitors. He reported witnessing a group of young people picking up trash from the beach and indicated that they are the youth group from the Santa Ana Broadway Seventh Day Adventist Church who attends services on the beach and, prior to the service, they remove litter from the beach. He expressed his appreciation to the group for their service. Council Member Petros reported that he, Mayor Pro Tern Hill, and City staff met with the Newport -Mesa Unified School District, to discuss parking near Corona del Mar High School. He stated that the members of the School District were receptive, there was consensus to work together on a range of solutions, they offered changes that they are willing to implement at both Corona del Mar and Newport Harbor High Schools, and requested some changes from the City. He requested Council's consent in directing staff to return with a range of alternatives to address neighborhood parking around Corona del Mar High School, Council Member Henn reported that the Balboa Village Advisory Committee (BVAC) will meet on October 9, 2013, at 4:00 p.m. at ExplorOcean and addressed items to be considered at the meeting. In addition, he and Mayor Pro Tern Hill have been meeting with Southern California Edison (SCE) regarding electric service on the Peninsula and West Newport and reported that the SCE representative has been proactive and presented ideas regarding improving service reliability and the possibility of a sump pump pilot program to test its feasibility and other opportunities for improved service. Council Member Selich reported that on October 9, 2013, at 5:30 p,m„ Speak Up Newport will be holding a forum in the Civic Center Community Room where Council Members Daigle and Petros will speak regarding outsourcing trash service. Mayor Curry reported attending an open house at the Santa Ana Heights Fire Station on Sunday, October 6, and commented positively on the event. In addition, he participated in the ribbon cutting ceremony for the West Marine Store on the Peninsula and welcomed a delegation of students from Okazaki, Japan. Volume 61 - Page 308 City of Newport Beach City Council Minutes October 8, 2013 XIL PUBLIC: COMMENTS ON CONSENT CALENDAR John Kinsey referenced Item 5 (Amendment No. I to Professional Services Agreement with RBF Consulting for the Park Avenue Bridge Replacement Project - C -5128) and expressed concerns with safety access to Balboa Island during construction and requested that Council consider the concept of a temporary bridge. He asked who decided on the elimination. He encouraged Council to require that, as a first phase, a study be conducted for having one -way controlled access versus a temporary bridge, as well as a cost analysis of both. Deputy Public Works Director Thomas reported that they considered having a temporary bridge, but the consultant recommended rebuilding the existing bridge one -half at a time. He added that alternatives were discussed at various homeowner association meetings and that this is the preferred method. He noted that traffic issues were also discussed and that staff will make its best efforts to mitigate them, He stated that emergency services will be provided and that staff will continue to address traffic, emergency, and other environmental impacts X11I. CONSENT CALENDAR A. READING OF MINUTES AND ORDINANCES 1. MINUTES FOR THE SEPTEMBER 24, 2013 STUDY SESSION AND REGULAR MEETING. [100 -20131 Waive reading of subject minutes, approve as amended, and order filed. Council Member Daigle abstained on this item. 2. READING OF ORDINANCES. Waive reading in full of all ordinances under consideration, and direct the City Clerk to read by title only. C. CONTRACTS AND AGREEMENTS 4. PROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR ENVIRONMENTAL SERVICES FOR THE REDEVELOPMENT OF THE FORMER CITY HALL COMPLEX AT 3300 NEWPORT BOULEVARD (PA2012 -031) (C- 5567). [381100 -20131 Approve the Professional Services Agreement, and authorize the Mayor and City Clerk to execute the Agreement. Council Member Henn recused himself on this item since he has a business relationship with a business in the Via Lido Plaza which might be construed as a potential conflict of interest. 5. AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR THE PARK AVENUE BRIDGE REPLACEMENT PROJECT - CONTRACT NO. 5128. [381100 -2013] Approve Amendment No_ 1 to Professional Services Agreement with RBIs` Consulting (RBF) for environmental documentation, permitting and final engineering services not to exceed $766,000.00, and authorize the Mayor and City Clerk to execute the Amendment. D. MISCELLANEOUS 6. PLANNING COMMISSION AGENDA FOR OCTOBER 3, 2013. [100 -20131 Receive and Volume 61 - Page 309 City of Newport Beach City Council Minutes October 8, 2013 file. RECREATION CONTRACT REPORTING. [100 -20131 a) Provide input, as needed; and b) receive and file the report. Motion by Rush Hill, seconded by Ed Selich to approve the Consent Calendar, except for the item removed (3); and noting the abstention by Council Member Daigle on Item 1 and the recusal by Council Member Henn on Item 4. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Tony Petros, Rush Hill, Keith Curry, Ed Selich, Mike Henn, Leslie Daigle XIV. ITEMS REMOVED FROM THE CONSENT CALENDAR 3. ADOPTION OF ORDINANCE NO. 2413 -15 AMENDING SECTION 17.60.060 OF THE NEWPORT BEACH MUNICIPAL CODE TO REQUIRE COMMERCIAL TIDELANDS USERS TO DEFEND AND INDEMNIFY THE CITY OF NEWPORT BEACH. [100 -20131 In response to Council Member Gardner's concern relative to Subsection E, City Attorney Harp noted that the only item for consideration is Subsection F. He stated that any issues specific to Subsection E can come back before Council at another time. Motion by Nancy Gardner, seconded by Ed Selich to conduct second reading and adopt Ordinance No. 2013.15, An Ordinance of the City Council of City of Newport Beach Amending Section 17.60.060 of the Newport Beach Municipal Code to Require Commercial Tidelands Users to Defend and Indemnify the City of Newport Beach. Jim Mosher believed that, although the staff report indicates the ordinance is going before Council for a second reading, it should be a first reading since it has gone through many iterations. He indicated that the new title and the body of Subsection F refer to commercial tideland uses and asked why the City would not want to indemnify itself in all cases. He referenced Subsection E and suggested that Council consider repealing the section that was adopted in January and removing the word "commercial" from the title. If done, he noted that it would require that the item be returned to Council for a first reading at its next meeting, City Attorney Harp stated that there is no validity to the issues raised by Mr. Mosher. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Tony Petros, Rush Hill, Keith Curry, Ed Selich, Mike Henn, Leslie Daigle XV. PUBLIC COMMENTS ON NON - AGENDA ITEMS - None XVL ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Council Member Selich reported on a meeting of the Land Use Element Amendment Advisory Committee meeting on October 1, 2013, where it finalized the quantitative changes being proposed for the Land Use Element, Council Member Petros reported on the Aviation Committee meeting of September 30 where the discussion focused on levels of activity at John Wayne Airport (JWA) and the initiation of the environmental process recommended for continuing the Settlement Agreement. In addition, be reported on the October 7, 2013 meeting of the Bicycle Master Plan Committee, noting that Caltrans was in attendance and listened to the Volume 61 - Page 310 City of Newport Beach City Council Minutes October 8, 2013 public's concerns regarding bicycle routes and safety throughout the City. Also, he noted that the Southern California Association of Governments (SLAG) reported on bicycle mobility, regional plans and promoting safe cycling in the City. XVIL PUBLIC HEARING 8. WOODY S WHARF USE PERMIT APPEAL - 2318 NEWPORT BOULEVARD -USE PERMIT NO. UP2011 -010 AND VARIANCE NO. VA2013 -006 (PA2011 -055). [100 -20131 Mayor Pro Tem Hill recused himself from this item since he owns property within 500 feet of the subject property. Deputy Community Development Director Wisneski utilized a PowerPoint presentation to address location, current hours of operation, lave entertainment, surrounding properties and uses, details of the application and variances requested, concerns related to noise from the outdoor patio area, review and recommendations by the Planning Commission, background of the business and entitlements, issues related to valet parking service, and surrounding parking spaces. In response to Council Member Henn's questions, Deputy Community Development Director Wisneski reported that the applicant has 40 required parking spaces. Currently, 26 are on site, 10 are across the street on the municipal lot, and 4 parking spaces are calculated based on Woody's Wharf offering 8 boat slips, which was approved with previous entitlements. Deputy Community Development Director Wisneski discussed hours of operation, patron dancing, the modification of the floor plan, closure of the outdoor dining area, the outdoor patio on the adjacent property and related restrictions, alignment of the bulkhead, relation of the proposed patio cover to limitations on the hours of operation, results of noise studies, public comments relative to the noise studies, variance findings, and recommendations. In response to Council Member Petros' question, Deputy Community Development Director Wisneski reported that the 10 parking spaces are not guaranteed parking spaces in the municipal lot. Roger Diamond, Attorney for Woody's Wharf noted that the Planning Commission voted in favor of the applicant and that the decision was appealed. He referenced the Newport Beach Municipal Code (NBMC), noting that appeals may be initiated by any interested parties, but no parties to the proceeding did so. He stated that Council Member Henn appealed the decision, yet there is no provision in the NBMC for having a Council Member do so. He objected to the jurisdiction of Council to entertain an appeal and believed that Council Member Henn has no standing to appeal the issue. He added that, if he did, Council Member Henn would need, to be disqualified and recuse himself. City Attorney Harp reported that the NBMC provides that a Council Member can call up an item for review and that Council Member Henn has not expressed any bias for or against the project, so it is appropriate for him to hear the item. He added that he finds no merit to either of the points raised by Mr. Diamond. Mr. Diamond disagreed and objected to the matter. He referenced a recent Court of Appeals decision regarding Pacific Shores Properties vs. the City of Newport Beach and noted the high litigation costs, He indicated that he desires to avoid litigation over this project. Mr. Diamond stated that the restaurant has been in operation for many years in a mixed -used zone and believed that Council Member Henn is not neutral. He noted that the applicant is not asking for any change in the use of the property and the City has issued many entertainment permits to businesses in the area, which he distributed. He referenced an email from the Newport Beach Police Department Volume 61 - Page 311 City of Newport Beach City Council Minutes October 8, 2013 confirming that the business can operate until 2:00 a.m. and reiterated that the application is not a change to how the business is to be operated. He discussed the noise studies conducted by the applicant and the City which resulted in the conclusion that Woody's Wharf is not the source of the noise complaints. However, the applicant has voluntarily offered to cover the patio to ensure that noise is not coming from Woody's Wharf. He believed that the Planning Commission made the correct decision with one exception related to an additional night of operating until 2:00 a.m, during the week and on holidays. In response to Mr. Diamond's questions, City Attorney Harp reported that today is a de n000 hearing and the applicant would have the burden of proof. Further, the impact of tie votes will be considered if one occurs. Council Member Daigle wondered if the Planning Commission decision would stand unless a majority of Council decided to the contrary. In response to Council Member Gardner's question, Mr. Diamond reported that the handout provided was designed to illustrate the number of entertainment permits that have been issued by the City and they want it to be part of the record. In response to Council Member Henn's question, Deputy Community Development Director Wisneski confirmed that the entertainment permit is not an issue in question. Mr. Diamond addressed the hours of operation, noting that his client was always led to believe that they could stay open until 2:00 a.m. and the Planning Commission confirmed that they had a right to do this. He reiterated that upholding the Planning Commission's decision will not result in a change in use and noted that the entertainment permit is linked to the dance issue. He stated that there is no Code section that prohibits dancing, but it was included in the entertainment permit to specify that entertainers could not dance, and did not mention that the patrons could not dance. In response to Council Member Gardner's question regarding an email from the Newport Beach Police Department, Mr. Diamond confirmed that the correct email was provided which references the outdoor patio being open until 2:00 a.m. and distinguished the difference between the outdoor deck and,outdoor patio. Council Member Henn pointed out that there is no reference to dancing in the email. Council Member Petros confirmed with City Manager Kiff that the Police Department is not the primary authority on use permits, but the Community Development Department is. City Attorney Harp stated that he reviewed the NBMC and confirmed this is a de cove hearing so it is at Council's discretion to make a determination and, if there is a tie vote, the decision of the Planning Commission will stand. Council Member Petros briefly spoke on the standards used for the noise studies, noting it was done at a threshold of 60 dB and pointed out that the threshold was not "no noise at all" Mark 8erventi, one of the co- owners of Woody's Wharf, noted the attendance of his partners, thanked staff for their efforts and presented background on the matter. He indicated that, when they took over, the operation did not change. He stated that they are currently meeting City Codes and commented on costs related to this matter. He requested that Council make its decision based on the law and City Codes. He reported that they currently have the right to operate and entertain until 2:00 a.m., and reiterated that Woody's Wharf has been operating for decades. He also reported that, although the noise studies indicated no noise, they are offering to invest in a patio cover to mitigate any possible noise issues. He requested approval to operate the patio from 11:00 p.m. until Volume 61 - Page 312 City of Newport Beach City Council Minutes October 3, 2013 2:00 a.m., three days a week and holidays, as well as recognition of dancing as a legal use. Mr. Serventi provided a brief history, noted they cater to the people in the neighborhood, went over various reasons identifying Woody's Wharf as being a responsible business, addressed previous consideration by the Planning Commission, and discussed noise studies. He requested that Council also allow them to move tables and chairs, keep the cover charge, have the same dance permit that other establishments have, and approve the variance for the retractable roof construction. In response to Council Member Gardner's question, Mr. Serventi confirmed they are requesting to continue to keep the patio open until 2:00 a.m. Council Member Gardner pointed out that the Police report suggests that the patio remain open until 11:00 p.m.; however, Mr. Serventi reiterated the request to continue their current operation as they have in the past. Council Members Gardner and Henn requested clarification from staff relative to the dancing permits. Deputy Community Development Director Wisneski reported that live entertainment permits are different than cafe dance permits. She added that the live entertainment permit clearly states that dancing is prohibited and that the outdoor dining permit specifies closure at 11:00 p.m. Council Member Henn commented on the difference between removal and rearranging of tables and chairs, and requested clarification on what they are requesting. Mr. Serventi confirmed, that they would remove tables and chairs to allow an unobstructed area for people to stand and talk. Council Member Henn commented on problems with the operation of their parking lot. Mr. Serventi indicated that they have valet service anytime they are busy. Council Member Henn noted there are congestion problems beyond the ability to park cars. In response to Council Member Henn's questions, Deputy Community Development Director Wisneski reported that a valet is required during all hours of operation. Council Member Daigle excused herself from the dais at 3:30 p.m, Gary McKitterick, Attorney with Allen Matkins representing MPB Marina, LLC, commented on the revitalization of the Balboa Peninsula. He presented illustrations of a project currently under construction near Woody's Wharf, including their site plan and the adjacency of their mixed -use project to Woody's Wharf. He expressed the opinion that the operational characteristics approved by the Planning Commission for Woody's Wharf are inconsistent with the residential character of the area and inconsistent with the relevant Policies of the 2006 General Plan. He urged Council to reverse the decision of the Planning Commission, addressed the distance between his client's residential units to Woody's Wharf, and read from the Zoning Code that compatibility among uses must be ensured. He expressed concerns about Woody's Wharf being under - parked, and pointed out that there are no buffers to mitigate Woody's Wharf from his client's projects. He took issue with the extended hours and dancing, and discussed the importance of past behavior as being an indicator of future behavior, urged Council to not create additional conflicts, and believed that the history is to disregard the CUP. He stated that his clients relied on the General Plan when they purchased the property and stated that the expansion of use by Woody's Wharf is not consistent with the residential character of the area and believed that, if the Planning Commission's decision stands, it will result in substantial negative impacts on his client's project. In response to Council Member Selich's question on the buffering and the Planning Commission's requirement that the second and third floors of Building H of his client's project be used for office space, Mr. McKitterick believed that the Planning Commission did not take into account immediate adjacencies. Mr. McKitterick responded to Council Member Gardner, stating that Woody's Wharf has 26 parking spaces. He expressed opposition to relieving them of the requirement to have valet services, adding Volume 61 - Page 313 City of Newport Beach City Council Minutes October 8, 2013 that, the more parking Woody's Wharf has, the less impact it will have on his client's project - Mayor Curry noted Council Member Daigle's necessity to leave the meeting. Mayor Curry opened the public hearing. Lori Morris believed that the applicant is stating that Woody's Wharf has always had bad behavior and that they now want Council to codify their bad behavior. She noted that, if Council does not approve what they want, they will sue the City but the residents on the Peninsula are tired of pushing back against all the alcohol establishments. She believes, if Council allows dancing, every other bar in the City will want the same thing. Kent Stoddard urged Council to reverse the Planning Commission's decision and deny Woody's application. He reported on Police Department responses at Woody's Wharf, stated it is operating as a bar and nightclub, not a restaurant, and that there is a pattern of violations which is a drain on Police Department resources. He reported that it is often at maximum capacity, offers no food after 10;00 p.m. and, if they operated responsibly as a restaurant there would be no negative impact. He referenced Planning Commission Vice Chair Tucker's position and requested that Council deny their application. Joe Blazer commented positively on the City's diversity of lifestyle and believed that some residents are trying to change the character that the area has always had. He addressed the walk - ability of the area, spoke in support of the existing lifestyle, and felt that parking issues could be easily resolved, by requiring valet during busy times. Larry Edwards spoke in support of Woody's Wharf, commented positively on the adjacent project, and believed that Woody's Wharf has good operators. He noted that they have been in the City since 1965. Norm Eichorn reported that Woody's Wharf has been operating illegally for over 10 years and that he cannot understand how their application is being considered. He complained of noise and fights, and noted the drain on Police Department resources. He urged Council to deny their application. Joe Reiss discussed the practices from these types of establishments and referenced ads from Rudy's and El Ranchito. He stated that Woody's Wharf is not complying with the rules under which they applied for permits and reported meeting with Woody's Wharfs owners and believes that they are blatantly ignoring their permit restrictions. In addition, he believed that the City's denial should be because it was not following the General Plan. Michael Lam, M.D., invited Council Members to spend a night in his condo to observe what happens at Woody's Wharf. He spoke in opposition to the City being intimidated by the applicant's attorney and encouraged Council to act in accordance to what is best for residents. Dennis Halloran discussed the walk - ability of the area, but complained about noise, urination, and vomit issues related to Woody's Wharf patrons. He urged Council to not add to the existing problems by approving their application. He believed that the nightclub operation is inappropriate and not conducive to residents' quality of life. Tom Durant stated that 28th Street Marina residents do not have a problem with Woody's Wharf when they operate as restaurant, but they do have a problem with their illegal nightclub operation. He reported that, according to the General Plan, a mixed-used area is supposed to be highly livable and stated that this is no longer so. He complained about the noise, public urination, and vomiting from patrons of the establishment and urged Council to deny their application. Volume 61 - Page 314 City of Newport Beach City Council Minutes October 8, 2013 An owner of 28�b Street Marina refuted Mr. Diamond's contention that there are only a few people in the marina that object to Woody's Wharf and challenged Council to take a poll of the residents. He stated that he moved into the City knowing he was moving into a mixed -used area, but had confidence that the City would enforce its ordinances. He urged Council to reverse the Planning Commission's decision and deny the application, Greg Pappas, co-owner of Woody's Wharf, stated that they operate Woody's Wharf the way they do because they feel they have the legal right to do so. He reported doing their due diligence prior to buying Woody's Wharf and addressed efforts to cooperate with neighbors, including paying for a security guard. He reported that there was never an outdoor dining permit filed by Woody's Wharf, but the Police and Planning Departments agreed to have the patio remain open until 2:00 a.m. Drew Wetherholt spoke in opposition to Woody's Wharfs application and stated that one of the biggest problems is that they cannot control their patrons once they leave the facility. He indicated . that the area does not need intensification of problematic bars and believed that Woody's Wharf continues to be in violation of ordinances and a drain on Police resources and that it is incompatible with the General Plan. He added that Woody's Wharf wants to increase profits by increasing alcohol sales and allowing dancing, but they do this on the backs of residents. He encouraged its operators to make a better restaurant, not a bar and nightclub, and used the Cannery Restaurant as an example of what it can be. Brian Park spoke in opposition to Woody's Wharfs application and believed that they are not moving in a positive direction. He complained about broken alcoholic bottles near his residence and, property destruction, and urged Council to reverse the Planning Commission's decision. Mr. Diamond believed that many of the complaints made do not apply directly to Woody's Wharf, but are general complaints about bars. He referenced the results of the noise studies and stated that it is not coming from his client. Mark Serventi stated that the bad behavior is not related to Woody's Wharf. He reiterated that they are offering to pay for a security guard, but the homeowners association did not think it was necessary. He stated that they are asking for less than others have been granted and that they have never been fined for occupancy or dancing. Additionally, he reported that they do not distribute flyers nor do they have party buses bringing people into the City. He stated that a permit is not required for dancing if a cover is charged. Hearing no further testimony, Mayor Curry closed the public hearing. In response to Council Member Henn's questions, Deputy Community Development Director Wisneski reported that cafe dance permits have an exception for dance halls which are facilities that charge a cover and are not required to have a dance permit. She clarified that Woody's Wharf is required to have a dance permit because they are seeking a modification to their floor plan. A use permit amendment would be required and staff recommends including a requirement for a cafe dance permit. Council Member Henn indicated he generally respects the opinion of the Planning Commission, but believed that they got it wrong in this case. He acknowledged comments from the public and noted that he is not biased about this situation. He stated that he is not against nightclubs and indicated that he likes Woody's Wharf, but this is not about whether the location should be technically called a nightclub but rather it should be about whether Woody's Wharf should be allowed to extend its hours of operation and allow dancing, the combination of which changes and intensifies the nightclub -like operating characteristics of the business. He reported that he supports good - quality restaurants on the Peninsula, including those that serve alcohol, as long as they focus on food and being a restaurant. He emphasized that he does not believe the issue of noise is germane to the Volume 61 - Page 315 City of Newport Beach City Council Minutes October 8, 2013 decision, but what is germane is the intensification of what happens outside the venue when patrons leave late at night and all at once. He noted that all similar operations in the area share the types of problems reported, but that the issue tonight is not about other operations but rather what will be allowed in the future for Woody's Wharfs operation. He addressed operator licenses and believed that the imposition of the requirement for an operator's license administered by the Police Department is not a reason to support their application, if it would not be a correct decision in the first place. Council Member Henn listed the factors influencing his decision, noting that it is a decision that should be made based on compliance with laws and regulations in the General Plan and the City's ordinances, as well as the public's welfare, safety, and well - being. He expressed support for allowing Woody's Wharf to open at 10:00 a.m. and for the variance to allow the patio enclosure. He noted that an intense public process was followed in adopting the 2006 General Plan that changed the designation of this and other areas to mixed -use, adding that the General Plan makes it clear that residential quality of life must trump other use considerations that are potentially in conflict. He read two of the General, Plan policies and from the relevant section of the Municipal Code that are key in this situation and believed that, taken together, they make it clear that the residential quality of life must trump businesses that have conflicting characteristics, and command the prohibition of nightclub characteristics in such close proximity to residential uses. He added that, to approve the Planning Commission's decision, would be to approve policies that are inconsistent with the General Plan. He discussed crime statistics directly related to Woody's Wharf and pointed out that they cannot be ignored. He addressed parking and indicated that there is no justification for relaxing the requirements since parking at that location is deficient. He noted his efforts to improve the quality of life for residents on the Peninsula and indicated that the approval of the application contradicts everything he believes is appropriate and intended in the General Plan. He stressed the need to respect the General Plan, the Municipal Code, and the safety and quality of life of residents and, therefore, must reject most elements of the Planning Commission's approval of Woody's Wharf's application. Council Member Henn emphasized that he never makes final decisions on Council agenda items prior to hearing all the information presented at the Council meeting for the item, Motion by Mike Henn, seconded by Tony Petros to direct staff to bring back to the City Council at its next regularly scheduled meeting the appropriate Resolution and findings to support: (1) that Woody's request to extend the opening hour to 10:00 a.m. from the current 11:00 a.m. be approved; (2) that the variance that's needed to allow for construction of the more permanent roof structure be approved; (3) that the current valet parking service be modified to require valet parking service from 6:00 p.m. to closing on Friday and Saturday nights and Holidays; (4) that all other aspects of the Planning Commission's decision be overturned, including, but not limited to: (i) the dance permit request; (ii) the extension of hours to 2:00 a.m. on the patio; (iii) the discretion as to the use of valet services and to the extent appropriate in view of item number 3; (iv) the waiver of the six parking spaces; and (v) the ability to remove tables and chairs from any section of the restaurant after 10:00 p.m,; and (5) the denial of the additional requests made by Woody's owners tonight. Council Member Gardner requested Deputy Community Development Director Wisneski follow up with staff regarding the permit allowing use of the patio until 2:00 a.m. She also commented on the General Plan and noted the priority is to residents, businesses, and then to visitors. In response to Council questions, Mr. Diamond indicated that it would not make sense for his client to install a patio cover if there is no purpose to do so. He noted that Council Member Henn read from a prepared motion and referenced the recent opinion of the Ninth Circuit Court. Council Member Henn acknowledged preparing comments prior to the meeting based on careful diligence and review of the information available prior to the meeting, but modify some of his preliminary views based on information presented at the meeting, did not hear anything at the meeting to fundamentally change his point of view, but did modify some of his initial thoughts about the matter based on information presented at the meeting. Volume 61 - Page 316 City of Newport Beach City Council Minutes October 8, 2013 Council Member Selich indicated that he will not support the motion since Woody's Wharf has been in the City since the 70's, has been operating in the same manner, the City has knowingly allowed them to operate in this manner, that there is some Iiability for the City in doing so, and the City should be working towards some sort of compromise rather than an outright denial of the project. Police Captain Johnson referenced a memorandum dated July 22, 2013, noting that the Newport Beach Police Department did not recommend support of the application. He noted that the area is already heavily utilized by licensed establishments which provides a lot of challenges to the Police, and believes that the expansion of Woody's Wharf would add to those challenges. He addressed calls for service and noted that not all are to Woody's Wharf, however, so far this year, the Police Department has responded to 47 calls for service, specifically for incidents occurring at Woody's Wharf. In addition, he noted a lack of compliance by the operators of the venue. Council Member Pettus reported that his high school aged daughters have come home from school with handbills on their windshields advertising DJ nights at Woody's Wharf. He disagreed with Mr. Diamond's statement that this is a noise issue since it involves many issues. He expressed hope that these will be addressed when the item returns. He stated that the fact that the operators have offered to pay for a security guard indicates that they acknowledge there is a hazard or endangerment to the public. Mayor Curry indicated that he will support the motion and hoped that the applicant could have additional ideas when the matter returns. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Tony Petros, Keith Curry, Mike Henn Noes: Ed Selich Absent: Leslie Daigle Recused: Hill XVIII. CURRENT BUSINESS 8. SPONSORSHIP AGREEMENT: CHRISTMAS BOAT PARADE - 2014 -2017 (C- 5615). [381100 -20131 Mayor Pro Tem Hill recused himself from this item because he was informed by the City Attorney of a potential conflict of interest related since he has membership in the Commodores. City Manager Kiff provided a report, noting the City's prior support of the parade. He reported that the Chamber is interested in longer term commitments and noted recommendations as listed in the staff report. Motion by Ed Selich, seconded by Mike Henn to authorize the Mayor to execute the amended Sponsorship ( "Grant ") Agreement with the Newport Beach Chamber of Commerce for support of the Christmas Boat Parade at $60,000 per year for 2014, 2015, 2016, and 2017. Steve Rosansky, President of the Newport Beach Chamber of Commerce reported on the number of yearly visitors the Christmas Boat Parade attracts and reported that the funds will be used to elevate the high stature of the parade. He noted that the parade generates a lot of business for the City and explained the reason for the request to seek additional help in marketing and promotion of the parade. Volume 61 - Page 317 City of Newport Beach City Council Minutes October 8, 2013 Council Member Gardner requested and received confirmation from Mr. Rosansky that some of the money will be used to perform an evaluation of the event. Jim Mosher expressed concerns with the City giving public money to a private entity, and with the way the money may be used. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Tony Petros, Keith Curry, Ed Selich, Mike Henn Absent: Leslie Daigle 10. CLOSE -OUT AND FINAL AMENDMENT TO THE CONSTRUCTION MANAGER AT RISK CONTRACT FOR CIVIC CENTER AND PARK PROJECT WITH C. W. DRIVER (C- 4527). 1381100 -2014 City Manager Kiff referenced the staff report and noted an amendment to the report Motion by Ed Selich, seconded by Rush Hill to authorize the Mayor to sign the amended final close -out amendment to the Construction Manager at Risk Contract for Civic Center and Park Project with C. W. Driver. Jim Mosher commented on the City's webpage and noted challenges with finding the projects and related costs. He requested clarification about specific items and wondered whether it includes staff costs and whether the webpage will continue to be accessible after completion of the project. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Tony Petros, Rush Hill, Keith Curry, Ed Selich, Mike Henn Absent: Leslie Daigle 11. RESPONSE TO RALPH M. BROWN ACT ALLEGATIONS PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 54960.2(C)(1). 1100 -2014 City Attorney Harp provided the staff report and discussed the correspondence that alleges, among other allegations, that the City violated the Brown Act at the September 19, 2013 meeting by not referencing Closed Session items prior to Closed Session. He stated that after reviewing the allegations, his office did not find any merit to any of the allegations; however, in the interest of avoiding litigation, is recommending submitting a letter stating that prior to going into Closed Session, the Closed Session agenda will be referenced. Mayor Curry requested and received clarification from City Attorney Harp that prior to going into Closed Session he did not read the title. He added that the City has spent approximately $1,500 in addressing the concerns raised in the correspondence. Jim Mosher commented on his letter dated September 17, 2013, and the need to let the public know what Council will be considering in Closed Session. He stated that he made four requests and took issue that the letter was not distributed to Council. He suggested that all Closed Sessions be preceded by the oral announcement, according to the Brown Act, that the oral and printed announcement include enough specificity for the public to provide comment, that Council refrain from negotiating with public employee groups other than at noticed public meetings or during Closed Session through negotiators who are supposed to be orally announced before the meeting, and that all labor and employment contracts receive final approval in public sessions. Council Member Selich expressed appreciation for what the City Attorney is doing, but indicated that he is tired of hearing bizarre interpretations of the Brown Act. He reported that he has Volume 61 - Page 318 City of Newport Beach City Council Minutes October 8, 2013 reviewed the situation and believed that there is no actionable violation of the Brown Act. Council Member Petros stated that he will not support authorizing the Mayor to sign a letter. He agreed that good public policy is good open policy; however, Council should not act on opinions or pressure, but act in accordance to the letter of the law. Mayor Curry agreed that this is a waste of time and a waste of money, but believed that the motion would serve to avoid the future wasting of time and money. He concurred with Council Members Petros and Selich's comments. Motion by Keith Curry, seconded by Nancy Gardner to authorize the Mayor to sign the proposed unconditional commitment letter pursuant to California Government Code Section 54960.2 to conserve public resources and avoid unnecessary litigation. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Rush Hill, Keith Curry, Mike Henn Noes: Tony Petros, Ed Selich Absent: Leslie Daigle XiX. MOTIONS FOR RECONSIDERATION - None XX. ADJOURNMENT - Adjourned at 10:12 p.m. in memory of Pastor Chuck Smith of Calvary Chapel The agenda for the Regular Meeting was posted on October 3, 2013, at 4 :00 p.m. on the City's website, on the City Hall Electronic Bulletin Board located in the entrance of the City Council Chambers at 100 Civic Center Drive, and in the Meeting Agenda Binder located in the entrance of the City Council Chambers at 100 Civic Center Drive. ��Y�YWVW Recording Secretary Mayor • fly City Clerk w 1. Volume 61- Page 319