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HomeMy WebLinkAbout01 - Minutes - 2-10-2004City Council Meeting February 24, 2004 Agenda Item No. 1 0 CITY OF NEWPORT BEACH City Council Minutes Study Session February 10, 2004 - 4:00 p.m. ROLL CALL Present: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols (arrived 4:10 p.m.), Mayor Ridgeway Absent: None CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR. Regarding item #7, Big Canyon Reservoir, Council Member Heffernan requested information on the current City cost based on the revised numbers versus grant money (state & federal). On Item #12, General Plan Update, he requested information on how much has been spent to date, when the target completion date is for issuing the General Plan Update, and what is the total budget for the whole thing. • 2. JOINT MEETING WITH PARKS, BEACHES & RECREATION COMMISSION REGARDING PARK PRIORITIES. Commissioners Present: Chair Debra Allen, Val Skoro, Gregory Ruzicka and Tim Brown (arrived 4:26 p.m.) Commissioners Absent: Vice Chair Thomas Tobin, William Garrett and Roy Englebrecht Utilizing a PowerPoint presentation, City Manager Bludau highlighted the issues that were discussed two years ago. The parks under discussion are Upper Bayview Landing, Newport Village and Sunset Ridge. He reported that the new issues since the last joint meeting are: 1) the state budget crisis that has increased which raises the need to finalize the lease with the State Parks for Sunset Ridge and most likely will limit new funding streams for park development grants; 2) Council Member Rosansky has requested that the park priorities be revisted; and 3) the current City budget will only allow limited development funds for future parks for probably the next 3 -5 years. From staffs perspective the purpose of this Study Session is to revisit the priorities and to provide direction to staff on priority implementation. Mr. Bludau provided a park site description for Upper Bayview Landing (12 acres) and noted that the current status is that it has gone to the Coastal Commission and received conditional approval, however the City is still in the process of getting the coastal permit issued. There is a 120 unit affordable senior housing project on the lower portion and the passive park is planned on • the upper portion. He said the site grading is projected to begin in March 2004, construction projected to begin in the summer with completion in the summer of Volume 56 - Page 652 EfZilT�li (100 -2004) City of Newport Beach Study Session Minutes February 10, 2004 2005. INDEX Mr. Bludau provided a site description of Newport Village (12 acres) and noted that the southern portion has been graded and is highly disturbed. As far as Sunset Ridge (15 acres), Mr. Bludau noted that it is graded and highly disturbed and had some oil wells on it in the past, as well as has ingress and egress problems. Reporting on the budget status of the three parks, Mr. Bludau pointed out that $680,000 is currently budgeted for park completion for Bayview Landing; $120,000 has been budgeted for design plan for Newport Village and none of that money has been expended. The cost of the Sunset Ridge site based upon the appraisal is $1.356 million. The City currently has $680,000 budgeted, which leaves another $676,000 needed to complete the lease. He said staff feels like there is $537,000 available in park in -lieu fees, which leaves a shortfall of just under $140,000. There is no budget for planning and construction and since it has been so long since there has been any discussion of what the park would look like and what activities would be conducted, there would need to be some community outreach done in order to come up with a conceptual design. In response to Mayor Ridgeway, Mr. Bludau explained the process for changing the priorities on the development of the three parks and further explained that the Sunset Ridge park legislation did not set time limits for closing the deal, however based upon the state budget situation the City shouldn't take anything • for granted. Since Caltrans is short of money someone else could make an offer on the property. Council Member Heffernan reported that he rents space across the street from Newport Village and questioned whether it was a conflict. City Attorney Burnham said he does not see how the project would have a material impact on the rent, so there's no conflict. Mayor Ridgeway reported a similar situation and noted that his is a long -term lease. Mayor Ridgeway welcomed the Parks, Beaches and Recreation Commissioners and opened the item for discussion. Chair Allen said that she sees the commissions' role in the process as representatives of the public. She said they are the ones that go out into the neighborhoods to find out what people are thinking and then forward the identified public issues to the Council. She said the Commission is here to get direction from the Council. Commissioner Skoro, head of the Park Development sub - committee, stated that he was the chair of the commission during the time when there were extensive outreach hearings on Newport Village. From the outreach program the commission came up with a lot of recommendations and The Irvine Company (TIC) was magnanimous enough to hire EPT Landscape Associates to develop a conceptual plan. One of the key items identified from the outreach program was the need for more parking for the library. He said everyone agrees there is a shortage of parking for the library and Corona del Mar Plaza. He said he would • recommend that the City proceed with the $125,000 that is currently in the Volume 56 - Page 653 • i • City of Newport Beach Study Session Minutes February 10, 2004 budget for a conceptual plan and costs for various elements that can be phased in at a later date. He said it would be a shame to lose the work and body of knowledge that already exists relative to that. Regarding Sunset Ridge he said he agrees that the City should proceed and capture it from the land aspect and noted that it is an ideal spot for some active playgrounds. He noted that that part of the City is in dire need of an active sports park. During the General Plan outreach program he said that one of the key things the residents asked for was parks. He said he believes the City should fund the completion of the concept development for Newport Village and then come back to the City Council so they can make some funding decisions, and also purchase the land at Sunset Ridge. Council Member Rosansky explained that as the new representative for West Newport he has taken the Sunset Ridge Park under his wing and talked to people about it, hopefully raising the profile of the park and the issue that the City has not closed the deal on the park. In light of the state budget problems and other priorities, the park may be in jeopardy if the City doesn't move forward quickly. As far as prioritization of the parks, he said the history of how that was set up needs to be reviewed. He said from reviewing the minutes from two years ago, it is clear that it was a different time. At that time there was talk about significant development at the Banning Ranch property, which is contiguous to Sunset Ridge park. At the time there was thought that as that property was developed the Sunset Ridge park would come along and perhaps there would be funds from the developer and/or the access issues may have been solved by the Banning Ranch development. Today Banning Ranch is on hold and according to the consultant they are searching for a new development partner. If the development of the Sunset Ridge property is tied to the Banning Ranch property, the City may never see a park developed there, therefore that relationship needs to be de- coupled. He noted that the west area of town is poorly served by active parks and a lot has been spent on parks in the east side of town. He indicated that the Newport Village Park is a great idea and the library does need parking, however the priorities need to be revisited and some decisions made. He noted that if the money that is budgeted for design for Newport Village is reallocated to make up the shortfall for the purchase of the Sunset Ridge Park, than the funding will be complete. He indicated a need to look further down the road due to budgetary issues over the next 4 -5 years and noted that he can't see that the City will be developing two parks at the same time. He questioned whether the City would be proceeding with the development plans for Newport Village and then put them on a shelf and go forward with Sunset Ridge, or is the City going to go forward with Sunset Ridge. Mayor Pro Tem Adams said he believes the first priority should be closing the deal on the purchase of Sunset Ridge followed by the Commission giving Council recommendations on the uses. Regarding the use as an active sports park, he noted that he has some concerns about the access issues. He said the Commission should take a complete look at it and bring a recommendation back to the Council. The second priority would be to bring closure on the concept for Newport Village and once that is done to develop a phased development plan and move as quickly as possible with the first phase which would include library parking. He said Upper Bayview is tied to the development of Lower Bayview. Council Member Bromberg noted that two of the three parks are in his District, and Upper Bayview is pretty much a done deal. He said when he was first Volume 56 - Page 654 INDEX City of Newport Beach Study Session Minutes February 10, 2004 ► elected the whole idea for that site was for it to be a view park with benches, an amphitheater, and used for docent guided environmental walks. Since that time he noted that Council Member Rosansky was appointed to the Council and noted that he agrees with him that the west side of town doesn't have a sports park and they need one. He said his sense is that two years ago when the Council dealt with the Newport Village site it wasn't so much that the people were excited about having a park, it was that they didn't want to have something else there. He said if the general direction is for a sports park at Sunset Ridge and Banning Ranch is in a different position than it was 2 -1/2 years ago, he could support this and would ask the Commission to determine the best uses for the park. He noted that the only caveat is that if the Council were going to change the priority order he would like to have the City approach The Irvine Company, who owns the Newport Village property, to see if they would be willing to put a deed restriction on the property to assure that in perpetuity the site will be a park and it won't be changed by a Council in the future. Regarding Sunset Ridge, Commissioner Ruzicka questioned whether the two acres east of Superior are an asset or a liability. Mayor Ridgeway indicated that he believes this area is a "park -n- ride ". Council Member Webb indicated that those two acres could possibly be used to expand the parking and noted that it has been used a number of times for construction storage sites. He indicated that the City needs to buy the property and get the lease finalized, but also needs funds to put together conceptual plans for the commission to review. He said there are a number of ways to go — from a full sports park to a full natural park. He said he would like the park to have at least one or two baseball diamonds, a soccer field and a play area incorporated into it. He noted that the City has been working towards that end and putting money aside for it for 14 -15 years. As far as Newport Village, he said he would want to make sure that any deed restrictions would allow for parking that could be jointly used by the library. Depending on the need for parking at the library, the City needs to consider a first phase which would look at parking but necessarily using park funds. Perhaps the Friends of the Library could to do some fundraising with matching funds from the City to put in the parking. Regarding Newport Village, Council Member Nichols noted that it is located between two large streets and unless the terrain is flattened, it can't really be used too well as a park. He said use parks are necessary, not view parks, in his opinion and there hasn't been a new use park in his area for a long time. He pointed out that Bonita Canyon Sports Park is about four miles away and further than most kids under the age of 12 -13 can get to. As far as Sunset Ridge, he said he would like to see it as an active park site. He noted that it presently slopes toward the coast pretty rapidly so only about 50% is useable for nature and that kind of thing. Phillip Bettencourt, speaking on behalf of the multiple owners of the Banning Ranch property, said that regardless of the status of the entitlement efforts of the owners, they want to assure the Council that they will cooperate with the City in any park planning studies that the City may have in mind. Despite the fact that a good portion of the property is in unincorporated territory, there are common interests in a comprehensive transportation access solution, water • quality management and flood control issues. To the extent that the City makes Volume 56 - Page 655 0 City of Newport Beach Study Session Minutes February 10, 2004 INDEX a choice on amenities and looks at any comprehensive planning studies they will be ready on day one to meet the City's needs and requirements. In response to Mayor Ridgeway, Mr. Bettencourt reported that the initial environmental schematic was done in concert with what was known about the City's plans at the time, which assumed that the optimum location as far west of Balboa Boulevard as was possible would meet Caltrans and the City's requirements as well, so that material is available. Council Member Webb asked Mr. Bettencourt whether his client would consider the possibility of the City, at its expense at least initially, putting in some sort of access from where the future arterial highway might go into the park. Mr. Bettencourt said that they have said before that there have been other incursions on other issues all around the boundaries which can be expected when you have a 400 acre property, however they have indicated that they want to look at the road network on a comprehensive master plan basis. He said he believes that the City's studies would lead to the conclusion that where the road is on the master plan of arterial highways would best serve Sunset Ridge. Mayor Ridgeway noted that the Council does not take action at Study Sessions and said he believes the next step is with the Parks, Beaches R Recreation Commission. He noted that he's offered no opinion other than what he has expressed in the past, which is that he supports an active park at Sunset Ridge. He noted that he's received calls from the president of the Newport Harbor Baseball Association, as well as the soccer people, in support of having fields at the Sunset Ridge location. As far as City parks that are actively used for • baseball or soccer, they don't exist west of the bridge. He noted that it was suggested that the City purchase the Sunset Ridge property first, plan the Newport Village site to see if parking can be attained, and provide funding for planning at Sunset Ridge. City Manager Bludau questioned whether the $120,000 allocated for Newport Village should be shifted over to support the purchase of Sunset Ridge. Mayor Ridgeway indicated that this is a separate discussion and the focus today is to plan and prioritize. As far as the budget goes, that is up to the City Manager at a later time and date. Mayor Ridgeway indicated that the reason for planning and spending $120,000 at Newport Village is to provide parking for the library. He noted that even though Dr. Vandersloot didn't like it, he was supportive of parking for the library. He said that needs to be looked at in the overall context of where the City is headed, however today is only a planning session. Chair Allen asked the Council if they would like the commission to pursue with The Irvine Company the deed restriction on Newport Village. Mayor Ridgeway explained that there is an irrevocable offer to dedicate the property to the City and it is probably beyond a deed restriction at this time. It is a recorded map and it exists on the map. He said this is a function for the Council to take up in the future and noted that the City Attorney and City Engineer are aware of the offer. Council Member Bromberg suggested that the city attorney look at that and if it irrevocable then it does take care of the problem, however if there's any hole in • it, perhaps the City should pursue a deed restriction. Volume 56 - Page 656 City of Newport Beach Study Session Minutes February 10, 2004 Commissioner Ruzicka questioned whether there is anything else the commission can do regarding specific aspects of the proposal. Council Member Nichols stated that earlier when the City was looking at Lower Bayview Landing, the question of a location for elderly housing came up and the upper portion was considered as a possible site and it was considered by the elderly as a preferable site. He said he would like to not preclude that at this point. Mayor Ridgeway noted that Senior Affordable Housing on that site has already been decided and it won't happen on the Newport Village site. 3. GROUP HOMES /RECOVERY FACILITIES. City Attorney Burnham introduced Jeff Goldfarb, Rutan & Tucker, who also worked with the City on the Mermaid issue. Mr. Goldfarb has two specialties - adult businesses and group homes, and also serves as the Assistant City Attorney for the City of Irvine. He noted that Mr. Goldfarb will summarize the staff report and will provide some insight into what other communities in the area do relative to group homes. He stated that he may comment briefly on a letter received today from Catherine Martin Wolcott that analyzes and critiques Mr. Goldfarb's memo and will also briefly explain his recommendations relative to changes to the City's regulatory structure which he believes will help the City comply with the Fair Housing Act Amendments of 1988. Referring to the federal regulations, Mr. Goldfarb explained that the federal Fair Housing Acts Amendment (FHAA) prohibits two kinds of discrimination. It prohibits intentionally discriminating against handicapped persons in housing. The term "handicapped" includes people who are abstinent in recovery in alcohol or drug treatment programs. It also prohibits adopting or enforcing regulations which have a discriminatory affect on handicapped opportunities for the housing unless the City can show that the practice furthers a legitimate governmental interest and that governmental interest can't be served in any other less restrictive way. Finally, the FHAA also says that you have to provide what is called reasonable accommodation to persons who are handicapped in the area of housing when some rule or regulation that is being enforced by the City interferes with or restricts their ability to obtain housing in the city. The City has to provide that reasonable accommodation in the form of waiving the requirement that is restricting or prohibiting the housing unless it can demonstrate that the reasonable accommodation would in essence undermine the City's zoning scheme. He noted that it also important to understand the basic regulatory scheme that the City has established for housing in the residential zones. He clarified that in his memo he did not mean to suggest that the City's housing scheme or regulations as they are adopted are in any way grossly invalid. He said his point is that he believes that through certain changes to definitions and the way the matrix is put together, the scheme will be much more defensible because it will more clearly show the City's legitimate interest in the way it regulates residential housing through the various residential zones. He noted that the City refers to its residential zones and defines them with reference to two very different criteria. One criterion is the number of residential dwelling units that can be located on any particular property. It also defines housing in the housing zones with reference to the number of families that can live in each dwelling unit on the property. In the R- 1 zone it appears that the zoning scheme is designed so that you have one Volume 56 - Page 657 INDEX (100/2004) • 1] L� LJ City of Newport Beach Study Session Minutes February 10, 2004 dwelling unit on the property and one tamily living in that dwelling unit. In the R -2 zone you have two dwelling units on the property with one family living in each dwelling unit. The multi - family zone has multiple dwelling units on the property with one family living in each residential unit. Family is defined not by reference to blood or relationship, but rather by reference to the way people live together within the family units. Family is defined as people who live together as a single housekeeping unit, which cases have defined as being sort of the generic character of a quality — it's not a transient living group — it's a living group that has it's roots together and it lives, breathes, works, sleeps, and eats together in what we would typically consider to be a family. The State has also taken some liberties in defining family. One of the things the State has done in the Health & Safety Code is said that with regard to licensed residential alcohol and drug treatment programs the individuals in that residential program, if there are six or fewer, have to be deemed to be living together as a single housekeeping unit and thus have to be deemed to be a "family" as most zoning codes and the City uses the term "family ". Whenever you have a licensed recovery facility operating in the City that serves six or fewer that would be considered a single family use and would be allowed in the R -1, R -2 & R -3 zones as any other family would be. He noted that the essence of the regulations, which is what is currently established in the City code, is that you can't discriminate against living groups because they are living groups comprised of people who are handicapped, which includes people who are in recovery. If the City code discriminates in terms of the zones against group housing for non - handicapped persons (you don't allow sororities, fraternities, boarding houses, etc.), then the same rules can be applied to other forms of group housing, including group housing for the handicapped, except insofar as it relates to groups that have six or fewer. Groups of six or fewer are operating as a family under state law. Mr. Goldfarb explained that the recommendations he has proposed in the staff report are an effort to clarify the definitions contained in the City's code to clearly express that the City has a significant interest in preserving the residential character of the most restrictive residential neighborhoods in the City. He noted that in the City's code certain words are defined in a couple of different ways which does create some ambiguity. If the City does ever get into court and there is a challenge based on a regulation which would prohibit group homes of the generic variety but also prohibit a group home for someone that is handicapped, the City would have a much better chance of surviving such a challenge. In conclusion, he noted that the City's zoning scheme as a whole is relatively sound, but needs "tuning up" to clarify the City's interests and demonstrate that the City does have a strong interest in its residential zones. Mr. Goldfarb noted that the City of Irvine defines "sober living facilities" and allows sober living facilities in every one of its residential zones as a permitted use, which includes everything from low- density residential to multi -use zones. Costa Mesa allows both residential service facilities, which are unlicensed facilities, and residential care facilities, which are licensed facilities, in all of its zones if they serve six or fewer and if they serve seven or more they are prohibited in the R -1 zones and conditionally permitted in the R -2 and R -3 zones. Mayor Ridgeway indicated that he would like to approach this from the side of Volume 56 - Page 658 INDEX City of Newport Beach Study Session Minutes February 10, 2004 INDEX forwarding a substantial City interest. In the case Association for Advancement of the Mentallv Handicapped vs. the City of Elizabeth the court affirmed that protecting the residential character of a surrounding neighborhood was a legitimate government interest. He noted that Costa Mesa has an ordinance that says that in an R -1 zone as long as you treat everyone the same, that they can prohibit group or handicapped homes from operating or licensing in that zone. Mr. Goldfarb indicated that to the extent that they serve seven or more people, he would agree, however he clarified that Costa Mesa prohibits handicapped housing whether they are providing services or not providing services when they serve seven or more. If they don't serve seven or more they are permitted uses and the reason they are permitted is because of the scheme that distinguishes whether groups are living together as a single housekeeping unit (a family) or whether they're not living together as a family. Mayor Ridgeway asked if the federal government pre-empts the ability for the City to ask for a conditional use permit if they are a permitted use (six or less). Mr. Goldfarb replied that it does and explained that if the City does not ask that any other group that is living together as a single housekeeping unit obtain a conditional use permit before they set up residency than the City would be discriminating against the handicapped household by requiring that they get a conditional use permit to set up residency since under state law they are defined as a "single housekeeping unit ". In addition, the City references the R -1 zone as being housing for single families. To the extent that a group would be living together as a single housekeeping unit, then regardless it would be permitted, however under state law to the extent that they are defined as a single housekeeping unit then it would be discriminatory to discriminate against them. Mr. Goldfarb clarified that the regulatory scheme changes for more than six and a conditional use permit can be required with the caveat that conditional use permits are required for other groups that are not living together as single housekeeping unit or you prohibit other groups that are not living together as a single housekeeping unit. For example, if you prohibit fraternities from the R -2 zone then requiring a conditional use permit for a group home serving seven or more would not be discriminatory. Mayor Ridgeway reported that the majority of the homes are on the peninsula, in his district, and he has a keen interest in creating a regulatory scheme that provides for the health, safety and welfare of the community on the peninsula and maintains the residential family life that exists. He said there is a certain incompatibility with these homes in the R -1 zone. In response to Council Member Bromberg's question regarding case law that would allow the City, if it chose to, to prohibit a group home because of significant problems with police or illegal activities, Mr. Goldfarb stated that the FHAA provides that when individuals are in fact a demonstrable risk to the health or safety of their neighbors then the mere fact that they are handicapped does not require the City to allow them to endanger the lives of the people around them. The FHAA has said that if there is really a significant problem than the City would be in a position to take action. He further explained that there are some cases that speak about this but don't speak about it in terms of prospective regulation — it is only spoken about in terms of individuals who actually have brought claims against their landlords and in most cases deals with people who are violent and in some cases with people who are actively engaged in the use and sale of drugs. In those situations the court has said that Volume 56 - Page 659 E City of Newport Beach Study Session Minutes February 10, 2004 INDEX under the FHAA it is not discrimination against the handicapped — it is a reaction to the fact that the individual is dangerous and it doesn't have to be tolerated. Regarding the nuisance issue, Mr. Goldfarb noted that the City has the ability to enforce nuisance regulations however he has not seen a case where it has been done prospectively to indicate that this category of land uses is a nuisance when it is housing for the handicapped. As far as penalties, if the City decided to exclude group homes there would be an injunction issued against the City, as well as damages and attorney fees. In response to a hypothetical question raised by Mayor Ridgeway about the activities of residents of a group home in an R -1 zone, Mr. Goldfarb indicated that you could potentially get an injunction against the specific activities that constitute the nuisance. In response to Council Member Rosansky's questions about requiring business licenses, limiting the number of occupants based upon bedrooms, and other types of regulatory schemes other than conditional use permits to regulate the facilities, Mr. Goldfarb stated that generally he doesn't believe they would stand up. He explained that the regulations would have to be applied across the board to other similarly situated groups that are not living together as a single housekeeping unit in order for it not to be considered intentional discrimination. Whether the City would have to waive those rules as a reasonable accommodation would depend on whether those rules impacted the ability of the handicapped residents to live in the unit or for the unit to serve the needs of the handicapped residents. • In reference to the licensing issues raised by Council Member Nichols, Mr. Goldfarb explained that a state licensed recovery facility is considered a family and to the extent it is considered a family they can't be treated any differently than any other family that wants to live in the City. He further clarified that they get their family status by being state licensed. If they are not state licensed and they are not considered a family, they have no justification for six or under group living. Council Member Nichols asked whether a group home that is rented as an occupancy can qualify as a group home without being licensed by the state, and if there are seven or more can they automatically be gotten rid of. He noted that in the present laws even with handicapped people, who are treated special, there cannot be more than six or more in a residential unit. Mr. Goldfarb noted that the current City code considers handicapped groups of six or fewer to be considered a family. He further explained that the City standard says that six handicapped people living together in essence are a family for purposes of the City's zoning ordinances. State law says that six people in recovery in a state licensed alcohol facility are also considered a family. City Attorney Burnham stated that his understanding of the law is that there is a provision in the Health and Safety Code that prevents the City from applying land use regulations to a group home housing six or fewer people and they use the term alcoholism or drug abuse recovery or treatment facility and he doesn't believe that state law requires a state license for a group home serving six or fewer to be exempt from any regulation that is distinct from those applicable to any other single family uses. You do not have to have a state license to be considered a group home as long as you're serving six or fewer and if you are considered the same as a single family use. He further clarified for Council Member Nichols that state law specifically prevents the City from . requiring a business license for a group home serving six or fewer individuals. If the Council were to consider a regulatory business license scheme in order to Volume 56 - Page 660 City of Newport Beach Study Session Minutes February 10, 2004 INDEX require a business license for a facility serving seven or more it would require a very significant change to the way the City does business. The current business license structure is revenue raising and it is not regulatory, so an ordinance would have to be adopted that changes the business license scheme. With more than six, the City could require a business license as long as other types of living groups are treated the same. Council Member Webb questioned whether the counselors, etc. that do not live in the facility but come in during the day would affect the number (six or fewer) or would it put them in a different category. Mr. Goldfarb indicated that day service workers would not eliminate them from the category of being a single housekeeping unit. As far as how the supervisors are counted, Mr. Goldfarb indicated that the law (Health & Safety Code) refers to the facility serving six or fewer persons and does not specifically reference service people who also live in the facility. Mr. Burnham noted that the report focuses on federal law as it relates to group homes and it may be appropriate to have another study session to evaluate the state regulatory system before final recommendations are made to the Council. Mr. Goldfarb reported that there are significant differences between the federal and state regulatory schemes and there are some provisions that state law would allow the City to take advantage of that would violate the FHAA. He noted that one of the problems with these types of homes is that there hasn't been close coordination between the state and federal regulations. Mr. Goldfarb reported that Irvine's and Newport's zoning codes are similar in so far as both Irvine and Newport Beach allow group homes serving six or fewer to be considered a family and reside in any residential zone in the City. They are dissimilar in so far that Irvine allows group homes serving more, depending on the type of people they serve to live in other residential zones, as a matter of right or to live in residential zones with a conditional use permit. He indicated that based upon his conversations with the Chief of Police in Irvine he is aware that there are some drug and rehabilitation homes in Irvine. In response to Council Member Nichols, Mr. Goldfarb reported that when he did the memo his charge wasn't to evaluate any specific group home in the City, so as a result he can't address his questions. With Council Member Nichols objecting, the speaker time limit was set at three minutes. Mayor Ridgeway indicated that based on what he has heard it appears there will be another study session to look at the state regulations before it's brought back for formal action at a regular meeting. Michael Backus referenced page 9 of the report which states "because abstinent drug or alcohol addicted persons are "handicapped" persons under the FHAA... ", and then read the definition of handicapped in the FHAA, which does not include current illegal use of or addiction to a controlled substance. If it doesn't include addiction to a controlled substance, then addicts of illegal substances are not handicapped. Mayor Ridgeway pointed out that the case law is really the definitive answer on this issue. He noted that the FHAA goes on to draw some distinction between alcoholism and illegal substance abusers and it's pretty clear that alcoholism is defined by the FHAA as handicapped, however they allow quite a bit of leeway in the type of questions that property owners and managers can ask of their perspective tenants about the use of illegal drugs. For clarification he noted that the recovery center that initiated this issue is in an MFR zoned area and have expanded into an R -2 facility. He said that maybe Volume 56 - Page 661 E 0 0 City of Newport Beach Study Session Minutes February 10, 2004 INDEX there is some business density parking scheme that could be brought out with respect to the business licensing. Rev. George Crisp, Pastor, Christ Church by the Sea, spoke to the character of the residents he has encountered which relates to the discussion about who these people are who are living in the facilities. He said his experience goes back about 2 -1/2 years with some of the residents when they began to come to worship at his parish. He indicated that he has visited with residents from a facility on West Oceanfront when they requested a pastoral call. He said this group home reminded him of the living circumstances that he's seen with the young adults that are part of the Campus Crusade for Christ program that is hosted at his church every summer and also find residential facilities in Newport Beach. He noted that they spoke freely about the personal benefits received from being part of the program and for the first time the students were taking responsibility for their lives and beginning to see relationships with family and friends in a healthier light, as well as discovering that life has a spiritual dimension. He noted that some of the residents participate in their church activities. He said the key is to understand how important spiritual development is in the recovery process and he said he believes that a spiritually based life is a thirteenth step. He said he's been impressed with the commitment to drug abuse education and the support they've received from law enforcement agencies, as well as the recognition they've received from various communities in southern California and the success rate speaks for itself. Volume 56 - Page 662 Catherine Wolcott, attorney for owners of 1824 W. Oceanfront and member of . the family that owns the property, asked for clarification from Mr. Goldfarb that programs with seven or more residents per unit should be confined to the multi- family zone. She indicated that she read the report, however disagreed with some of the conclusions and analysis and noted that there are some factual errors as to the character of the neighborhood in the multi - family zone. She noted that they would be concerned if the recommendations were adopted as submitted by staff. She noted that Mr. Goldfarb is correct and the law holds residential care facilities as a protected group and they cannot be discriminated against and it also holds that such facilities are subject to the controls of legitimate government interests. It has held that character, neighborhood issues, nuisance, health and safety, are all legitimate government issues and you can control through that, which supports the requirement of a conditional use permit. She noted that the law says you can't exhibit discriminatory intent towards the handicapped, you cannot have discriminatory impact on handicapped housing and you must provide reasonable accommodations for handicapped. She said the City's existing laws are absolutely compliant with these requirements and the handicapped can live anywhere they want in groups of six or fewer. If they want to exceed six per unit they can apply for a conditional use permit. She noted that a conditional use permit is granted subject to health, safety and character of the neighborhood issues and the City can protect residents, meet the needs of the handicapped residents as well and not run afoul of the FHAA, by enforcing its existing laws. She noted that Narcanon can apply for a conditional use permit and if it is denied they can chose to place six or less residents in each of their existing units, or rent more units. She said that for large residences the conditional use permit is an essential tool to maintain city control and to insure that the living conditions of its handicapped residents are adequate. Volume 56 - Page 662 City of Newport Beach Study Session Minutes February 10, 2004 INDEX Phil Allen, Palomar Foundation, stated that in order to have a six or less treatment facility, you are required to have a license from the state of California to provide any treatment services whatsoever. Licensed facilities answer to the state and are required to have a good neighbor policy, keep up the facilities, etc. He said he believes the problems come from unstructured unlicensed facilities since they don't have a higher authority to answer to. He noted that they have to work within the City and State guidelines and to provide services legally within the state, the facilities must have a state license and a state certification, which separate an "alcohol and other drug" program from the typical group home. Carol Martin noted that on page 9 of the report Mr. Goldfarb suggests that the City is probably not enforcing the requirement that occupants of each dwelling unit in the multi -family zone live together as a single housekeeping unit. Mr. Goldfarb describes a multi - family zone as more likely a multiple dwelling unit zone where groups of roommates such as young adults, college students, etc. live together as roommates rather than single housekeeping units. For this reason she said they recommend changing the name of the zone from multi -family residential to multi -unit residential. She distributed copies of statistics of a multi - family zone in the 1800 block of West Oceanfront. She noted that there are 14 lots, 9 parcels are owner- occupied or if all of the lots are counted 11 are owner- occupied because of the nature of the construction on one of the lots. In the whole block described by Mr. Goldfarb there are only 3 lots that are not owner- occupied. Referring to comments made by Mr. Goldfarb on page 12 that • deal with an assumption that young adults typically live in multi- family zones, excluding 1810 W. Oceanfront, of the 14 properties surveyed the group occupying the property are best described by age. The median age is over 65 and the mean age is 56. She noted that three lots are utilized together as a single family residence, one lot is a single lot and is a single family residence, seven lots have two units per lot, two lots have three units and one lot has two non - rental condos. Statistically almost all of them do have an owner occupying the property and the majority are older people. The length of ownership is significant because of the issue of the transient nature of the neighborhood. Excluding the condo, which was not included because there's no public record of the ownership date, the median ownership is 22 years. She pointed out that Mr. Goldfarb's memo does not refer to any specific area of multi - family residential, therefore all the areas are painted with a broad brush that this is where the fraternity boys live. She distributed pictures of the Westcliff area. John Miller noted that there is a large elementary school and a couple of church daycare centers in the area and because of the cost of the use of the school bus a lot of kids either walk or bike to school and pass by the rehab centers. Based on the police blotter printed in the local paper, he stated that burglaries and drug arrests are up in these areas. According to the statistics he reads the permanent cure rate for these addicts is less than 10 %. He said these facilities cause their property values to go down and suggested that the drug rehab centers should be near the hospitals for better and easier access. He said he thinks these "criminal- type" people should be moved out of their area. David Hooker, Newport -Mesa Christian Center, stated that it has been their • privilege to host several of the residents from the home in question for the past Volume 56 - Page 663 • City of Newport Beach Study Session Minutes February 10, 2004 INDEX couple of years as participants in their congregation. He noted that they are people who want to improve their lives and are making substantial efforts to apply the disciplines that are required to recover from substance abuse. He said he's familiar with the road they are on and noted that it requires people surrounding you that are supportive and helpful. Referencing a proclamation from a couple of years ago in support of "National Alcohol Health and Drug Recovery Month ", he noted that in the past there has been support from the City. He noted that in the materials he received from Narcanon they speak of a 70% success rate after one year and southern California has a 76% success rate. Dr. Jack Atkinson stated that they live near the Warner Springs Narcanon facility and noted that the facility has demonstrated an attitude of helpfulness and responsibility. He noted that their clients attend neighboring churches and are an asset to the community. He stated that he and his wife are both licensed professional counselors and university professors, and in their experience they have noted that professional people come to rehab centers for help. He noted that the clients are not criminals and one was the wife of a former U.S. President, Betty Ford. He pointed out that Narcanon has the lowest recidivism rate in the U.S. Pat Botnick said she can't provide any direction to all the explanations and rules and regulations that have to be sorted through, however relayed her experience in living on the peninsula for the last 1.1/2 years. She spoke to the demonstrative risk to the health and safety of the neighborhood and private enjoyment of one's home. She explained the situation when twice she was Is approached on her porch by a "falling down drunk ". She stated that she would not have her 9 year old girl walk to school past these recovery houses because of the smoking and other issues. Carl Mosen stated that Dennis Rodman does not have a recovery home, however he disrupts the neighborhood and the police have been there over 200 times. He said the biggest problem they've had living here is the people that rent to the college kids that party. He noted that this has cleaned up over the last 16.17 years and stated that the homes he's been involved with have 11:00 p.m. curfews. He stated that thirty of their residents are in college being tutored and they are friendly with the Fire and Police Departments. He noted that this is a rental area. Jim Brierly, Orange County Sober Living Coalition, stated that they have 63 houses that are certified in the County of Orange, including one in Newport Beach. He spoke about a Sheriffs certification program to certify sober living homes that was presented to the Board of Supervisors in January of 2001 and has been adopted by 17 cities in the County. Newport Beach did not adopt the program. The program has very strict regulations and guidelines as far as square footage and the types of persons who are prohibited from living there because of certain criminal offenses. The County Counsel issued an opinion and it was followed by these cities because it could only be a voluntary certification process. He noted that the opinion was that a state or local government entity may not regulate sober living homes through dispersal or distance requirements, conditional use permits, business licenses or zoning restrictions • which would prohibit locating these homes in the area zoned for residential use unless the regulations benefit that protected class or responds to legitimate Volume 56 - Page 664 City of Newport Beach Study Session Minutes February 10, 2004 INDEX safety concerns raised by the individuals affected rather than being based on stereotype. He said he inspected 200 homes in 2002 and 2003 and has provided technical assistance to over ten members that are here today. He stated that they are quality homes, the residents are in bed at 11:00 as testified to by Mr. Mosen, they possess no drugs, they are not drunk, they don't possess weapons, and are not breaking any laws. Regarding the one property, none of the 27 permitted residents under state licensure has an automobile, so there can be no effect on the property in that area. He strongly urged the Council to look at County Counsel's opinion regarding regulation of sober living facilities and also noted that the State of California is the sole authority to regulate licensed drug and alcohol treatment programs in the state. Dr. Robbie Atkinson provided her educational background and certifications, and noted that sometimes it was difficult to assess her students and get them the help they needed. She said she had a list of the places that were good and sometimes there were problems getting people into good facilities because of space limitations. She recommended that this facility be accepted and said she is unaware of any problems with the Narcanon group in Warner Springs. She stated that these programs help people re- evaluate and recover to become good citizens. Honey Thames, 305 Columbia, professor of literature and language at Goldenwest College, director of Yellowstone, a member of the National Drug Council, and an alcoholic, stated that in 1984 because Newport Beach embraced and supported recovery she had a chance to get sober and clean and is not a . "falling down drunk" today. She thanked the Council for that and noted that she currently lives by people she doesn't like and has to accept the fact that if she's going to live in that community she will have to live with people she didn't chose. On the other hand, at Yellowstone she is aware that the neighbors expect them to behave better than any other neighbors and they do. She urged the Council to support recovery in the community. She pointed out that there are major leaders of recovery in the room and that it is that recovery that improves the quality of all of our lives. Mayor Ridgeway closed the public comments and asked for direction from Council. Mayor Bromberg said he feels there has been a pretty balanced group of speakers therefore he's not sure that continuing this will add anything. He spoke in favor of moving on to something that can be voted on since people can speak at that time as well. In response to Mayor Ridgeway's question about the state regulatory scheme, City Attorney Burnham said that additional and more specific information will be brought back on what constitutes a state licensed facility, and what rules, if any, the City could apply to a state licensed facility. He said staff can bring back a resolution of intention to initiate amendments, which would be the next step in the process, and from that resolution the Council can pick and chose the amendments to initiate. There would be a number of options available to the Council. Council Member Nichols said he would like to see that done as a Study Session item so that when it is brought back for a hearing the Council would have a • pretty widespread knowledge of what it's talking about. He said he does not Volume 56 - Page 665 • CJ City of Newport Beach Study Session Minutes February 10, 2004 fully understand the problem. Mr. Burnham said that another option would be to have a Study Session that would go beyond what was discussed today and would deal with the state licensing issues, more specific land use issues and a more specific analysis of the City's code, as well as a review of what other communities are doing, At the evening session the Council could have a resolution on the agenda that would allow them to select whatever option is appropriate, as well as allow additional opportunities for public comment. Mayor Ridgeway spoke in support of that approach and said that the Council needs to know the state regulation scheme and needs to understand the City's zoning code. Council Member Bromberg spoke in support of hearing both on the same evening. City Manager Bludau confirmed that it would be on February 24th. PUBLIC COMMENTS - None. ADJOURNMENT - at 6:06 p.m. * * *xx *x * *x *x * *xxxx * * *xx * * * * * * ** The agenda for the Study Session was posted on February 4, 2004, at 3:10 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Secretary Mayor Volume 56 - Page 666 INDEX City of Newport Beach Study Session Minutes February 10, 2004 INDEX THIS PAGE LEFT BLANK INTENTIONALLY 0 0 Volume 56 - Page 667 0 CITY OF NEWPORT BEACH City Council Minutes Regular Meeting c February 10, 2004 - 7:00 p.m. RAFT INDEX STUDY SESSION - 4:00 p.m CLOSED SESSION - 6:00 p.m. * * * * * * * * * * * * * * * * * ** A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Absent: None C. CLOSED SESSION REPORT - Mayor Ridgeway reported that the City Council met with, and gave direction to, their labor negotiators relative to the upcoming meet and confer process with the Marine Safety Officers Association, the Police Employees Association and the Association of Newport Beach Ocean Lifeguards. Mayor Ridgeway also reported that the City Council concluded its evaluation of the City Manager and requested that an ad hoc committee consisting of Mayor Ridgeway and Council Members Heffernan and Webb meet with the City Manager to discuss modifications to his compensation and make a recommendation to the City Council at its meeting of February 24, 2004. D. PLEDGE OF ALLEGIANCE - Council Member Nichols E. INVOCATION - Reverend Dr. George R. Crisp, Christ Church by the Sea United Methodist F. PRESENTATIONS - None G. NOTICE TO THE PUBLIC H. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION OR REPORT (NON- DISCUSSION ITEM): • Council Member Nichols stated that the raised easement at Dahlia Avenue and Coast Highway is causing some problems. He requested that a picture be provided on the City's website to show where the raised easements would be placed in Corona del Mar, so that the public would have the opportunity to comment on them. . Council Member Webb complimented the General Services Department on the sidewalk that was installed next to the Environmental Nature Volume 56 - Page 668 City of Newport Beach Regular Meeting February 10, 2004 Center. Council Member Webb requested that the City Attorney's office review Chapter 10.52, Abandoned and Wrecked Vehicles, of the Newport Beach Municipal Code and consider a recommendation that would provide the City with the ability to have such vehicles removed if they become a public nuisance. Council Member Bromberg announced that this year's Newport Beach Relay for Life would be taking place in May. It's a fundraising and awareness event that is sponsored by the American Cancer Society, and this will be the third year that the City of Newport Beach has participated. The event will take place at Newport Harbor High School during a 24 -hour period from May 14 to May 15, 2004. Council Member Bromberg stated that additional information can be obtained by contacting Stephanie Taylor with the American Cancer Society at 949- 567 -0611. • Council Member Rosansky thanked the West Newport Beach Homeowners Association for sponsoring the Water Quality Forum, which is being televised this month on Adelphia and Cox Communications on Wednesdays at 9:00 p.m. and Saturdays at 8:00 p.m. • Council Member Heffernan asked when the issue regarding the CalTrans relinquishment of Coast Highway in Corona del Mar would be agendized. City Manager Bludau stated that the item would be agendized for a Citv Council meeting in March. • Council Member Heffernan also asked when the Newport Coast Community Center matter would be agendized. City Manager Bludau reported that it would be agendized for the meeting of February 24, 2004. • Mayor Ridgeway announced that a public workshop on potential revisions to the Citv's Sign Code would be taking place on February 26, 2004, at 6:30 p.m., at the Central Library Friends Meeting Room. Additional information can be obtained by contacting Senior Planner Tamara Campbell at 949- 644 -3200. I. CONSENT CALENDAR READING OF MINUTESIORDINANCES 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. CONTRACTS AND AGREEMENTS 3. PROFESSIONAL SERVICES AGREEMENT FOR LCP Volume 56 - Page 669 INDEX C -3684 • City of Newport Beach Regular Meeting February 10, 2004 INDEX BIOLOGICAL CONSULTANT. Approve the Professional Services LCP Biological Agreement (C -3684) with Merkel & Associates, Inc., for biological Consulting consulting services associated with the Local Coastal Program (LCP) Services certification process. (38/100 -2004) 4. PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM C -3075 AVERY ASSOCIATES, INC. FOR LABOR RELATIONS SERVICES. Labor Relations Approve and authorize the Mayor to execute a two -year agreement Services (C -3075) with monthly compensation of $4,750. (38/100 -2004) 5. PURCHASE OF 2004 JUNIOR LIFEGUARD PROGRAM C -3685 UNIFORMS. Award the 2004 Junior Lifeguard Program Uniform Junior Lifeguard contract (C -3685) to Hawaiian Island Creations for the total cost of Uniforms $144,977.63 (including tax). (38/100 -2004) 6. PLAYGROUND IMPROVEMENTS AT BONITA CREEK, C -3588 CHANNEL PLACE, SAN MIGUEL & GRANT HOWALD PARKS — Playground COMPLETION AND ACCEPTANCE OF CONTRACT NO. 3588. Improvements 1) Accept the work; 2) authorize the City Clerk to file a Notice of (38/100 -2004) Completion; 3) authorize the City Clerk to release the Labor & Materials bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance Bond one (1) year after Council acceptance. 7. Item removed from the Consent Calendar by Council Member Heffernan. S. Item removed from the Consent Calendar by Council Member Bromberg. MISCELLANEOUS ACTIONS 9. DISTRICT 2 APPOINTMENT TO ENVIRONMENTAL QUALITY (100 -2004) AFFAIRS COMMITTEE. Confirm Council Member Rosansky's appointment of Ryan Dwight. 10. Item removed from the Consent Calendar by Council Member Nichols. 11. BUDGET AMENDMENT TO ACCEPT A CHECK FROM THE (100 -2004) FRIENDS OF THE NEWPORT BEACH LIBRARY AND APPROPRIATE FUNDS TO MAINTENANCE & OPERATIONS BUDGET ACCOUNT FOR FY 2003/04. Approve a Budget Amendment (BA -032) in the amount of $20,000. 12. Item removed from the Consent Calendar by Council Member Heffernan. 520. Item removed from the Consent Calendar by a member of the audience. • 521. RESOLUTION NO. 2004 -12 — FEDERAL SUPPORT FOR THE (100 -2004) Volume 56 - Page 670 City of Newport Beach Regular Meeting February 10, 2004 NEWPORT BAY ECOSYSTEM RESTORATION PROJECT. Adopt Resolution No. 2004 -12 asking Congress to add funding for the Newport Bay Ecosystem Restoration Project into the FY'05 Federal Budget. Motion by Mayor Pro Tern Adams to approve the Consent Calendar, except for those items removed (1, 7, 8, 10, 12 and S20). The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None J. PUBLIC HEARINGS 13. APPEAL OF DETERMINATION THAT PROPERTY AT 1918 DOVER DRIVE IS A PUBLIC NUISANCE AND ORDER OF ABATEMENT. Deputy City Attorney Ohl stated that the staff report includes information on when the homeowners at 1918 Dover Drive were notified of the problems at their property. Photos and other supporting documentation is also included. He reported that Dr. Thomassen will not be in attendance at the current meeting and has asked for the matter to be continued to provide him the opportunity to bring the property into compliance. Deputy City Attorney Ohl stated that staff is not recommending that the matter be continued. He explained that the property owners have already had ample opportunity to bring the property into compliance and that the problem has been ongoing since September, 2003. Mayor Ridgeway asked the City Council if the request for a continuance should be granted. Council Member Webb stated that although Dr. Thomassen has reported that he is ill, he has continually asked for a continuance of the matter and has not made any effort to comply with the City's requests. Council Member Webb stated that it's just another delaying tactic on the part of Dr. Thomassen to postpone the matter. He recommended that the request for a continuance not be granted. Council Member Bromberg concurred with the statements made by Deputy City Attorney Ohl and Council Member Webb. He stated that it is unfair to the residents in the area to delay the matter any further. Motion by Council Member Webb to proceed with the Public Hearing at the current meeting. The motion carried by the following roll call vote: Volume 56 - Page 671 INDEX (100 -2004) • E 0 0 Ll City of Newport Beach Regular Meeting February 10, 2004 Ayes: Heffernan, Rosansky, Ridgeway Noes: None Abstain: None Absent: None Bromberg, Webb, Nichols, Mayor Deputy City Attorney Ohl reported that after the matter was brought to the public's attention, Terry Debay and Bud Potter contacted the City and offered to assist Dr. Thomassen in cleaning up the property. The City has worked with both parties and it is hoped that within the next 30 to 45 days, the property can be brought to an acceptable condition. Deputy City Attorney Ohl recommended that the appeal be denied. Mayor Ridgeway opened the public hearing. Jim Hildreth asked why the matter is being opened for public comments when the City Council has already determined that the matter is not going to be continued. Terry Debay stated that "Go and Do Likewise" is a group of volunteers that believe in reaching out and touching neighbors. He complimented Bud Potter who puts the program together through church groups. Mr. Debay stated that the group plans to paint the house, obtain a dumpster for the trash and that they're excited for the opportunity to clean the place up and make it a place that the community can be proud of. Bud Potter, President, "Go and Do Likewise ", stated that his seven years of experience with gathering people together to reach out and touch people's lives has been very positive. He stated that his group is anxious for the opportunity and hopes that the City Council will allow them to do so. Tom Johnston wished the "Go and Do Likewise' group luck in accomplishing their goal. He stated that he's opposed to any further delays in remedying the problem at the property, noting that it's been occurring for decades and has even gotten worse since the last public hearing. Mr. Johnston listed some of the specific problems with the property. He spoke in support of the staff recommendation. Kurt Kalanz stated that he first noticed the problems at the property when he was seven years old. His mother contacted the City and a local news station, and told her son that he would see local government in action. Mr. Kalanz stated that he is now seventeen years old, and is still waiting to see any action taken on the property. He stated that Dr. Thomassen's right to surround himself in garbage ends where the rights of others begin. Mr. Kalanz asked the City Council to take action on the matter. Thomas Mushegain Jr. stated that the definition of garbage includes food waste, and that there's a difference between garbage and refuse. Volume 56 - Page 672 INDEX City of Newport Beach Regular Meeting February 10, 2004 INDEX Hearing no further testimony, Mayor Ridgeway closed the public hearing. Council Member Webb read from the Newport Beach Municipal Code on what constitutes a public nuisance, and stated that the Thomassen property easily falls within the conditions. Motion by Council Member Webb to deny the appeal and uphold the determination that the property is a public nuisance and order of abatement; adopt Resolution No. 2004 -13 ordering the owners of 1918 Dover Drive to abate public nuisance within 30 days; and direct staff to pursue abatement if owners fail to comply. Council Member Webb thanked Fire Chief Riley, Deputy City Attorney Ohl and Code & Water Quality Enforcement Division Manager Sinasek for their efforts. To Mr. Debay and Mr. Potter, he offered to pay for the dumpster, that would be needed, from his discretionary funds. Mr. Debay announced that the first three Saturdays in March have been set aside for the cleanup. Council Member Heffernan asked what criteria the City will use to determine if the property is brought into compliance. City Attorney Burnham stated that the City will abate whatever nuisance remains after the 30 days has passed. He noted that the work planned by "Go and Do Likewise" will improve the property beyond the abatement order, but that the abatement order is still necessary. Council Member Webb stated that the staff report includes a list of the violations that need to be corrected. Council Member Heffernan asked what the abatement order allows the City to do. City Attorney Burnham stated that it has not been determined if it would allow the City the right to go onto the property, or if it would require action by the Superior Court. He noted, however, that staff is confident that "Go and Do Likewise' will be able to abate the nuisance. Council Member Heffernan asked what the City will do if Dr. Thomassen doesn't cooperate with the cleanup effort. City Attorney Burnham stated that the recommended action at the current meeting directs the City Attorney's office to take whatever action is deemed necessary and that the matter wouldn't need to be readdressed by the City Council. Council Member Rosansky asked if the process could include an injunction to insure that the City doesn't have to go through this same process again. Deputy City Attorney Ohl stated that an injunctive order is in place, but that the Superior Court requires personal service of the order on Dr. Thomassen. He stated that the City's previous attempts have failed. Deputy City Attorney Ohl stated that, if necessary, the City will seek a warrant to go onto the property and abate the warrant. If that effort fails, a second injunctive order would be sought or criminal penalties would be pursued. Council Member Rosansky suggested that the process server remain on the property until the order can be served. Volume 56 - Page 673 r] 0 C� City of Newport Beach Regular Meeting February 10, 2004 Council Member Bromberg asked how long the order is good for and if the process would have to be started over again if, for example, after six months, the property returns to a public nuisance state. Deputy City Attorney Ohl stated that the process would have to be started over again. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None K. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE ADJOURNED REGULAR OR REGULAR MEETING OF JANUARY 27, 2004. Jim Hildreth referred to page 639 of the regular meeting minutes and what he said during Public Comments, and stated that some of his comments were left out and that the paragraph is confusing. He suggested that the videotapes of the City Council meetings be made a part of the City record. Motion by Mayor Pro Tern Adams to waive reading of subject minutes, approve as written and order filed. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 7. BIG CANYON RESERVOIR FLOATING COVER AND DISINFECTION SYSTEM - AWARD OF CONTRACT NO. 3037. Council Member Heffernan asked why the cost of the project increased from $5.5 million to $6.5 million. Additionally, he asked how the project is being funded. City Manager Bludau stated that the Environmental Protection Agency (EPA) grant is for $867,000 and that the rest of the money would come from utility reserves that have been set aside for the project. Council Member Heffernan confirmed that the money will not be coming from the general fund and that the City's share will be approximately $5.6 million. He further confirmed that the project is expected to be completed by the end of 2004. City Manager Bludau stated that the previous estimates for the project were perfected, based upon the specifications that went out to bid. Council Member Heffernan noted that the total cost also includes consultants that are employed by the City to oversee specific parts of the work. Volume 56 - Page 674 INDEX C -3037 Big Canyon Reservoir Floating Cover and Disinfection System (38/100 -2004) City of Newport Beach Regular Meeting February 10, 2004 Dolores Otting thanked Principal Civil Engineer Sinacori for his efforts on the project and, specifically, for the wall that was installed. She noted that a considerable amount of public outreach was sought and that the community should be proud. Jim Hildreth noted that Council Member Bromberg has previously stated that he doesn't drink the City's water. Mr. Hildreth stated that it would be reassuring to see him drink the water after the project is completed. Motion by Council Member Heffernan to 1) approve the plans and specifications; 2) award Contract No. 3037 to Banshee Construction Company of Colton, California for the Total Bid Price of $5,664,015, and authorize the Mayor and the City Clerk to execute the contract; 3) establish an amount of $450,000 to cover the cost of unforeseen work and estimated bonus for early completion; 4) approve a Professional Services Agreement with Tetra Tech, Inc. for Construction Support Services for a fee of $54,500; 5) approve a Professional Services Agreement with PBS &J for Construction Inspection Services for a fee of $229,108; 6) approve a Professional Services Agreement with Hilts Consulting Group, Inc. for Floating Cover Advisor Services for a fee of $84,000; 7) approve a Professional Services Agreement with URS Corporation for Geotechnical Services for a fee of $24,480; and 8) approve a Budget Amendment (BA -031) in the amount of $1,962,587 from Unappropriated Vaster Enterprise Fund Reserves and $17,300 from Grant Fund Contributions to Account No. 7503- C5500690 and increase revenue estimates in Account No. 500 -4841, EPA Grant. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 8. CONTRACT EXTENSION FOR TREE TRIMMING SERVICES. Council Member Bromberg confirmed that the contract was not sent out to bid and that a ten -year contract is unusual. City Manager Bludau explained that the extension to the contract is at the request of West Coast Arborist and that the City was pleased with the price that they offered. He additionally explained that the City will often not go out to bid when extending a contract under the same terms and conditions. City Manager Bludau couldn't recall another ten -year service agreement that had been done, but noted that there are provisions for canceling the contract with West Coast Arborists. Council Member Rosansky confirmed that the existing contract is for ten - years, due to a five -year extension of the original five -year contract, and can be canceled by either party with thirty days notice. Volume 56 - Page 675 INDEX C -2966 Tree Trimming Services (381100 -2004) 0 0 City of Newport Beach Regular Meeting February 10, 2004 Mayor Ridgeway confirmed that the contract is for a fixed amount for ten years and that the Consumer Price Index (CPI) is not built in. Dolores Otting stated that the item never went out to bid. She explained that West Coast Arborists was used by the County, and that the other cities in the County started using them also. Ms. Otting further stated that the agreement with West Coast Arborists was supposed to include a provision that they were not to chip the tree trimmings in the streets, due to the noise, but that they are doing this and it should be considered when extending their contract. Brian Clarkson, FreeNewport.com, asked how much the contract is worth over the life of the contract. He stated that competitive bids should have been sought. Thomas Mushegain Jr. stated that the use of leaf blowers and the pickup of rubbish by franchised waste haulers can only occur in the City during certain hours. He stated that chippers also have to comply with City regulations. He offered alternatives to using chippers. Jim Hildreth stated that the problem with the chippers can be controlled by implementing and enforcing the laws that regulate noise. Mayor Bromberg interrupted the speaker and stated that the issue before the City Council is whether the contract with West Coast Arborists should be extended. City Attorney Burnham stated that if the speaker is addressing a provision of the contract, the testimony would be appropriate. Mr. Hildreth stated that the agreement should address the issue of noise. In response to the length of the contract with West Coast Arborists, General Services Director Niederhaus stated that he is aware of a trash contract that is automatically renewed. The contract with West Coast Arborists includes provisions for compliance with City codes. He further noted that chipping is done in the field to enable the trash trucks to maximize their load. He stated that it can only be done during certain hours and that the City has received no noise complaints regarding West Coast Arborists. Council Member Rosanskv confirmed that the contract can be terminated with thirty days notice. He asked if the City could terminate its contract with West Coast Arborists, if it received a better proposal from another contractor. City Attorney Burnham responded in the affirmative. Council Member Rosanskv asked if there was a particular reason why the contract wasn't put out to bid. General Services Director Niederhaus stated that the City stays aware of what other cities are paving and that Newport Beach has the lower rate in the County. City Manager Bludau added that West Coast Arborists has also maintained the quality in their service that the City expects. Council Member Heffernan asked if there's any legal requirements for Volume 56 - Page 676 INDEX City of Newport Beach Regular Meeting February 10, 2004 the City to go out to bid. City Attorney Burnham stated that the City is required to go out to bid for public improvement projects that exceed $30,000. City Manager Bludau added that the decision on such contracts are made by the City Council. Council Member Bromberg stated that approving a ten -year contract sends the wrong message, and that proposals from other contractors should have been received. He stated that unless the City receives other proposals, it won't know what other rates and services are available. Motion by Council Member Adarns to approve an amendment to the current tree trimming contract with West Coast Arborists, Incorporated (C -2966) that would extend the term of the contract an additional ten years at the current rates. Mayor Ridgeway stated that "sole source" contracts are regularly renewed by the Orange County Sanitation District. He stated that its done because the contractors are familiar with the work that needs to be done, their quality of work is good and the service is the best. Mayor Ridgeway stated that he can't imagine that the City would receive a better bid for tree trimming services. Council Member Bromberg stated that other contractors should be given the chance to be competitive. Council Member Heffernan agreed that it's difficult to test the market without going out to bid. The motion carried by the following roll call vote: Ayes: Rosansky, Adams, Webb, Nichols, Mayor Ridgeway Noes: Heffernan, Bromberg Abstain: None Absent: None 10. PURCHASE OF WARD "NO SMOKE" EXHAUST FILTRATION SYSTEMS FOR FIRE APPARATUS (PHASE 2). In response to an earlier question by Council Member Nichols, City Manager Bludau stated that the equipment is detached. Council Member Nichols confirmed that this means that it's a part of the mobile piece of equipment. Motion by Ceuncil Member Nichols to approve the purchase of five Ward "No Smoke" Exhaust Filtration Systems for fire apparatus. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Volume 56 - Page 677 INDEX (100 -2004) 0 E City of Newport Beach Regular Meeting February 10, 2004 Absent: None 12. BUDGET ADJUSTMENT TO APPROPRIATE ADDITIONAL FUNDS FOR AN EXPANDED TRAFFIC ANALYSIS FOR THE GENERAL PLAN UPDATE. Council Member Heffernan stated that although the budget adjustment is small, it is part of the larger general plan update project. At Council Member Heffernan's request, City Manager Bludau reported that, so far, the City has budgeted $1.452 million for the general plan update. To date, $488,241 has been spent. An additional $153,000 has been spent on studies, which were also a part of the Local Coastal Program (LCP) project, and $166,000 has been spent on consultants for the general plan update. Lastly, City Manager Bludau reported that the expected completion date for the general plan update is December 2005. Motion by Council Member Bromber¢ to approve a Budget Amendment (BA -030) to appropriate $8,940 from the General Fund unappropriated reserves to pay for the additional traffic analysis of John Wayne Airport daily traffic volumes and inclusion of relevant data in the Newport Beach Traffic Model as part of the General Plan Update Technical Background Report and Environmental Impact Report. Council Member Nichols asked for the status of a previous traffic analysis that was supposed to have been done. He explained that it was intended to analyze some specific problem areas in the City. Mayor Ridgeway stated that the traffic analysis that Council Member Nichols is speaking of is a separate report and is intended to coordinate traffic phasing. City Manager Bludau added that a report on the analysis should be available in early March, 2004. Jim Hildreth stated that he heard that Newport Beach is considering installing cameras at some of the intersections. He asked if this analysis is a preamble to that. The motion carried by the following roll call vote Aves: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 520. RECOMMENDATION FROM ECONOMIC DEVELOPMENT COMMITTEE TO FILL ED VACANCY. Motion by Council Member Bromberg to fill the current EDC vacancy by appointing Jane Brown as the "Utility" representative. 0 The motion carried by the following roll call vote: Volume 56 - Page 678 INDEX (100 -2004) (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 INDEX Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Mayor Ridgeway congratulated Jane Brown, who was in attendance at the meeting. L. PUBLIC COMMENTS • Chris Gates stated that her home was designed by Andrew Goetz and is slightly different than how it was approved, but was protected by the variance because it was expected to close on November Gth. Late in October, however, she was served with a Stop Order and despite considerable contact with the City, has still been unable to close on the home. She stated that she has done everything that the City has requested and only wants to know what else is expected. • Ed Gates continued with the comments made by Ms. Gates. He stated that new requests are continuously being made by the City, and that he has continued to comply with each of them. He stated that he is only asking what else needs to be done so that he can finish his home, and that he is prepared to do whatever the City asks. Mayor Ridgeway requested that the City Manager look into the matter as soon as possible. Council Member Heffernan asked if Mr. Goetz is still licensed to do business in the City. City Attorney Burnham stated that the City cannot take action against a license that has been issued by the State, but that the City did file a complaint with the licensing authority. He added that the initial analysis of the structure, indicated that it was built according to the plans submitted, but that it was later found out that it wasn't. He offered to provide a report to the City Council on the matter. Council Member Heffernan requested that it include information on the other plans that Mr. Goetz is working on. • Robert Walchli stated that he heard that Mr. Goetz is not going to be prosecuted for his actions and that the homeowners at 202 Fernleaf are being allowed to do whatever they want to do. Additionally, Mr. Walchli referred to comments made at the previous City Council meeting and stated that it was not his intention to offend anyone, but that the issue of the right for freedom of speech has come up on several occasions at City Council meetings. Lastly, he stated that the council members shouldn't necessarily see themselves as policymakers, but as implementers of the desires of their constituents. He stated that, for the most part, the council members make good decisions and aren't afraid to change their opinions once all the facts have been weighed. City Attorney Burnham noted that he has followed up on the complaints from Mr. Walchli about 202 Fernleaf and has responded promptly on Volume 56 - Page 679 • C-A City of Newport Beach Regular Meeting February 10, 2004 each occasion. City Attorney Burnham reassured Mr. Walchli that the City is watching 202 Fernleaf very closely and has requested that the homeowners make some changes to the structure to insure that it complies with City codes. Dolores Otting referred to an incident that occurred at the Study Session earlier in the day, and stated that signs indicating that cell phones are not allowed in the Council Chambers should be installed. City Manager Bludau reported that a request to have the signs installed has already been made. Jim Hildreth referred to an article dated January 25, 2004, about a vehicle accident in San Jose and presented it to Council Member Nichols. He also referred to an article dated February 8, 2004, and expressed his surprise that residents on Balboa Island are having difficulties building taller homes. Thomas Mushegain Jr. stated that he sweeps the alley, street, sidewalk and gutters near his residence. He asked for the Citv Council's permission to pick up the trash on the beach that the skimmer misses and deposit it into the City bins. He stated that he would do this at no charge and that he respects Newport Beach. John Dowden stated that he wanted to make some comments regarding Item No. 19. Mayor Ridgeway pointed out that Public Comments are for non- agenda items only. M. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report — Newport Coast Advisory Committee (NCAC). Council Member Heffernan reported that the NCAC met on February 2, 2004, and recommended that the City Council proceed with a community center and that it be located at the corner of San Joaquin Hills Road and Newport Coast Drive. He also corrected a report in the newspaper that stated that he and Council Member Nichols voted on the recommendation, which they did not. He noted that the matter will be considered by the City Council at its meeting on February 24, 2004. Status report — Other Committee Activities. Council Member Heffernan reported that the Finance Committee met on February 9, 2004, and discussed the 2004/05 budget, and procedures for wire transfers and electronic transfer of funds. He stated that the Citv's 2004/05 budget is expected to be flat, but that the actions of the State and the two bond measures before the voters could affect that. He noted that the City will budget to pay the California Public Employee Retirement System (CalPERB) nearly $13.5 million. N. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 14. PLANNING COMMISSION AGENDA FOR FEBRUARY 5, 2004 Volume 56 - Page 680 INDEX (100.2004) City of Newport Beach Regular Meeting February 10, 2004 Senior Planner Alford reported that both items on the Planning Commission agenda dealt with height limits. The first item was initiated by the City Council on January 13, 2004, and involved the modification of the exception for height limits for elevator shaft enclosures. He stated that the amendment will be agendized for the City Council meeting on February 24, 2004. The second item was a discussion item on the definition of grade and how the heights of buildings are measured. The Planning Commission concluded that a simpler, more straightforward system is needed, but wants concurrence by the City Council before staff time is spent on the matter. Jim Hildreth expressed his hope that the elevators are for hospitals and not private residences. O. CURRENT BUSINESS 15. RECOMMENDATION FROM ECONOMIC DEVELOPMENT COMMITTEE TO RESTRUCTURE COMMITTEE POSITIONS, AND TO FILL EDC VACANCY. Economic Development Program Manager Berger stated that the Economic Development Committee (EDC) is a 28- member committee appointed by the City Council. The restructuring recommendation helps to insure that the committee remains reflective of the needs of the City and the City Council. He stated that the specific changes are listed in the staff report. Additionally, the committee is recommending that Mike McNamara be appointed to the committee. Dolores Otting expressed her concern for replacing the Community Marketing position with a Medical Industry position. She explained that the City has no jurisdiction over Hoag Hospital, the State rehabilitation facilities or Mr. Goetz. She stated that adding the position will be misleading. Mayor Ridgeway stated that the Medical Industry position is related to the private medical office buildings in Fashion Island and around Hoag Hospital, and the expansion of the medical industry. Motion by Council Member Brombere to adopt Resolution No. 2004- 14 amending Resolution No. 2001 -80, which revises the EDC membership structure; and fill current EDC vacancy by appointing Mike McNamara as the Public/Private Financing representative. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Volume 56 - Page 681 INDEX (100 -2004) • u 1] 0 City of Newport Beach Regular Meeting February 10, 2004 16. NEWPORT HILLS/HARBOR VIEW NEIGHBORHOOD TRAFFIC MANAGEMENT PROGRAM — APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY -HORN AND ASSOCIATES. Public Works Director Badum stated that after discussions with the community associations and schools in the area, staff is recommending that the program be expanded to take a more comprehensive look at the neighborhood and possible traffic calming devices. He stated that proposals from three consultants were received and staff is recommending that an agreement with Kimley -Horn and Associates be approved. He noted that the program will also include several neighborhood workshops to determine what the issues are and what alternatives are available to mitigate those concerns. Mayor Pro Tern Adams asked if Herman Basmaciyan will actually work on the project. Public Works Director Badum stated that staff would desire to have his expertise and involvement in the project. Mayor Pro Tern Adams asked who the principal staff member from Kimley -Horn would be. Public Works Director Badum stated that he would find out. Council Member Nichols asked for a verbal sketch of the area that would be included in the program. Public Works Director Badum stated that the area is bounded by the Newport Hills streets and does not go across San Miguel Drive. He stated that it's essentially the residential Port streets. In response to Mayor Pro Tem Adams' earlier question, City Manager Bludau stated that the Project Manager from Kimley -Horn would be Serine Ciandella. Council Member Heffernan stated that he originally asked for a couple of speed bumps to be considered at a cost of $10,000, but that $100,000 ended up being budgeted for the project. He confirmed with Public Works Director Badum that the formal study has to be done before anything else can be done. Public Works Director Badum added that it's important to identify and prioritize the different alternatives and improvements. Council Member Heffernan expressed his concern with the cost of the study. City Manager Bludau stated that City Council policy requires that other measures be looked at before speed bumps are installed. Dolores Otting stated that she's a firm believer in the competitive bid process. Referring to the staff report, she asked why the City had to negotiate with Kimley -Horn after they were selected. She expressed her frustration that Kimley -Horn wouldn't have known the scope of services prior to submitting their proposal and why their proposal wouldn't have included the fee that they would charge. City Manager Bludau stated that State law precludes the City from following any other process. It does not allow the City to competitively bid for professional consulting services. Volume 56 - Page 682 INDEX 0-3686 Traffic Management Program (38/100 -2004) City of Newport Beach Regular Meeting February 10, 2004 Mayor Ridgeway added that the scope of services are provided prior to requesting for proposals. Additionally, Public Works Director Badum noted that the State's requirement insures that the best possible designs are performed. He expressed his confidence that staff negotiates the appropriate work scope and the appropriate cost. Council Member Bromberg agreed with the reasons why professional consulting contracts don't go out to bid. He explained that the City doesn't want to get something second rate because its at a lower rate, and the City must also follow the State law. Motion by Council Member Bromber¢ to approve a Professional Services Agreement (C -3686) with Kimley -Horn and Associates, of Orange, California, for preparing the Newport Hills/Harbor View Neighborhood Traffic Management Program (NTMP) at a contract price of $87,784; and Authorize the Mayor and City Clerk to execute the Agreement. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Mayor Ridgeway Noes: Nichols Abstain: None Absent: None 17. BIG CANYON CREEK RESTORATION PROJECT — PHASE II (WATER QUALITY IMPROVEMENT COMPONENTS). Assistant City Manager Kiff stated that the City is fortunate to be receiving an additional State grant in the amount of $200,000 for the water quality component of the project. He stated that the staff report includes the restoration alternative that is being pursued, and that it's been accepted by all the resources agencies and is a good concept. Council Member Webb stated that he heard a concern that the design may not have taken into consideration some of the impacts that a flood would have. He asked if a flood routing study was being done. Assistant City Manager Kiff reported that a third grant being sought from the State Coastal Conservancy would provide a component to study the flood control aspect. Motion by Council Member Webb to 1) direct staff to accept a grant from the State Water Resources Control Board (SWRCB) in the amount of $200,000 for the Big Canyon Restoration Project, Phase II (Water Quality Improvements); 2) authorize the City Manager to execute an existing Professional Services Agreement (C -3594) with Community Conservancy International (CCI) to reflect the $200,000 grant and a revised Scope of Work; 3) authorize the City Manager to include in the proposed 2004 -05 Capital Improvement Program a match in the amount of $30,000 to match the $200,000 grant; and 4) authorize the City Manager to make changes as necessary to the Phase II scope of work and Volume 56 - Page 683 INDEX C -3594 • Big Canyon Creek Restoration Project (38/100 -2004) • 0 • City of Newport Beach Regular Meeting February 10, 2004 budget provided that the terms and deliverables remain similar to the document attached to the staff report. Council Member Nichols asked where the money would come from to do the job, noting the amount of money that is being spent on the planning. Assistant City Manager Kiff stated that the process to apply for grants requires that the planning has been done, and additionally noted that the City has been successful in obtaining grant money for the planning. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Mayor Ridgeway Noes: None Abstain: Nichols Absent: None Referring to Item No. S21, Mayor Ridgeway noted that he would be meeting with Congressman Cox on the dredging issue. 18. AMENDMENTS TO THE NEWPORT BEACH MUNICIPAL CODE REQUIRING USE OF FRANCHISED SOLID WASTE HAULERS FOR DEMOLITION ACTIVITIES. Motion by Council Member Webb to 1) introduce Ordinance No. 2004- 2 amending Section 15.02.035 pertaining to the Uniform Administrative Code; and 2) pass to second reading on February 24, 2004. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Ridgeway Does: None Abstain: None Absent: Bromberg 19. MARINAPARK RESORT AND COMMUNITY PLAN. City Attorney Burnham stated that in 1997, the State Lands Commission advised the City that the Marinapark parcel is on tidelands and that a permanent mobile home use would be inappropriate. The City Council commissioned a study, which concluded that a hotel use would provide the City with the highest economic return for the parcel. Two years later, a Request for Proposals (RFP) was submitted to anyone that would be interested in a redevelopment of the site. After an evaluation of the proposals, the City selected Sutherland Talla Hospitality (STH) as the entity that the City would work with. After documents were prepared and public input was received, STH submitted a final project description for a 110 -room resort. At that time, the City Council approved an agreement with STH and committed to put the project on the ballot in November of 2004. City Attorney Burnham reported that a Notice of Preparation for the Environmental Impact Report (EIR) was released in October of 2003 and a Notice of Completion for the Draft EIR will be Volume 56 - Page 684 INDEX (100 -2004) (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 released in April of 2004. INDEX City Attorney Burnham stated that there will be public input opportunities at two City Council meetings, one to determine the best or most appropriate lease terms and conditions for the project if it goes forward, and another to consider a fiscal impact report. The Planning Commission will also be conducting public hearings and the Environmental Quality Citizens Advisory Committee (EQAC) will be reviewing the Draft EIR. City Attorney Burnham stated that after these opportunities, the project will be agendized for a City Council meeting, which provides another opportunity for public input. City Attorney Burnham stated that the vote would be to consider changes to the general plan designation for the site. The current designation is recreation and environmental open space, and the amendment would most likely change that to recreation and service /commercial. Council Member Heffernan stated that his concern is for the detail that will take place during the review process. He referred to the Kell project that went through a detailed analysis and then was turned down by the voters. City Attorney Burnham stated that the review process will be the same as it was for the Kell project, and that the Planning Commission and the City Council will look at the project, the site plan and all of the information that would normally be present for any general plan amendment. He stated that the difference will be that a fiscal impact report will be prepared and the lease terms and conditions will be reviewed, since the site is owned by the City. City Attorney Burnham stated that it was determined to put the project on the ballot because it is located on public property, is on a fairly large parcel on the bay and it exceeds the Greenlight threshold of 40,000 square feet. Council Member Heffernan asked what the next step would be if the voters approve the project. City Attorney Burnham stated that STH would then need to obtain a coastal development permit and a ground lease with the City. The City would also need to take action to close the mobile home park, which would include the approval of a relocation impact report. Council Member Heffernan asked if the project could be changed after the voters have voted on it. City Attorney Burnham stated that the vote would authorize the general plan to be amended to allow for a 110 -room resort. If STH wanted a smaller hotel, it would be up to the City Council to approve a ground lease for the project. Council Member Webb asked what would happen if the voters rejected the project. City Attorney Burnham stated that the general plan designation would remain the same and the City Council would then need to determine if the mobile home park should be closed. Council Member Webb asked if the City Council had that discretion, based on the advice of the State Lands Commission that a mobile home park on tidelands is inappropriate. City Attorney Burnham agreed that the mobile home park could not stay in perpetuity on the site, but that the City Council would still need to take action to close the park. The environmental document and the relocation impact report would provide the City Council with the necessary documentation. Volume 56 - Page 685 • 0 City of Newport Beach Regular Meeting February 10, 2004 Council Member Nichols asked if a new mobile home park lease could be renegotiated. City Attorney Burnham stated that the current use is not consistent with the current general plan designation. John Dowden expressed his appreciation for receiving the report at the current meeting, noting that the issue is confusing. He asked if the voters will be voting on the STH project or an amendment to the general plan. lie confirmed with the City Attorney that the land use designation change would be to recreation and marine /commercial. Mr. Dowden asked if it was the State Lands Commission or the State Lands Commission staff that advised the City on the tidelands issue. He expressed his concern that the proposed project is being considered because it is expected to raise revenues for the City, and noted that the mobile home park provides the City with over $800,000 per year. He asked the City to seriously examine the financial aspects of the proposed project and to consider the possibility that the resort could fail. Mr. Dowden stated that the highest and best use of the site for the community would be a park. Philip Arst, Greenlight, stated that Greenlight believes that the voters should decide what is the highest and best use of the parcel, and that the public needs full information prior to casting their vote. He stated that there are some impediments to the dissemination of the information and noted the City's website, which expresses the City's viewpoint that the project would not need to be voted on if the general plan amendment is approved. He stated that the law is clear that this is a Greenlight election and that certain information needs to be provided. He listed this information as including a report on the fair market value of the ground lease for the project, the lease terms, who bears the liability and cost for relocating the mobile homes, who bears the responsibility of injuries that could occur at the resort, the guaranteed annual lease payment to be paid by the developer, and how the City Council would vote on the project. Mr. Arst stated that the project description on the City's website shows favoritism. City Attorney Burnham stated that Mr. Arst's questions and requests for information should be answered in the coming months. He stated that having a fair and unbiased description of the project on the website is a start at providing the information to the public that Mr. Arst is requesting. Mr. Arst stated that he hasn't seen it done for other projects and to be fair, space should be provided for the opposition. Mayor Ridgeway stated that Mr. Arst has misstated a number of facts, that the information he is asking for is in the staff report and that it is clear that Greenlight does not want to support the project. He stated that the information on the website is appropriate since the project is on public property. He assured Mr. Arst that the project will be given scrutiny and that the information requested will be provided. He hoped that Greenlight would cooperate with this effort. City Manager Bludau noted that the description of the project on the website is the same description that the EIR is being done on. Volume 56 - Page 686 INDEX City of Newport Beach Regular Meeting February 10, 2004 INDEX Steve Sutherland, STH, applicant for the project, stated that it is disturbing to hear someone state that the public should be provided with information on the project, and yet be upset when the City is providing the information. Mayor Ridgeway stated that Mr. Arst knows that in March of 2003, it was agreed to put the project out to the public for a vote. Steve Sutherland announced that his website, www.marinaparkresort.com, also has information on the project. Brian Clarkson asked if it will be clear to the voters if they're voting on a hotel versus a park, or if they're voting on a change to the land use designation. He agreed with Mr. Arst that possibly it would be fairer to provide website publicity for the alternatives to a resort, and stated that the idea of a park on the peninsula would be refreshing. City Attorney Burnham stated that the ballot language will describe the project and make it clear that it's an amendment to the general plan. He stated that the voters will be told that if the amendment is approved, it would allow a 110 -room resort to be constructed on the site. He stated that the park alternative is included in the environmental document, and that a traffic analysis would determine the trip counts for both a resort and a park. Council Member Bromberg stated that when he ran for City Council, he. was originally a Greenlight candidate, but he moved away from the position after a closer review of Measure S. He stated that what caused him to change his position is that the Greenlight measure called for ballot box planning and showed a distrust for the City Council. He stated that Greenlight is now criticizing the City Council for letting the people vote and for putting the project description on the City's website as a way of informing the voters. Council Member Bromberg stated that an environmental impact report will be available and reviewed by a number of organizations, a number of open meetings will be conducted and all of the information needed by the voters will be provided. He expressed his frustration with the comments made by Mr. Arst, and assured the public that the information they need will be provided. Council Member Nichols stated that it was mentioned earlier that 40,000 square feet triggers a Greenlight vote, and that Mr. Arst is objecting to it not being a Greenlight vote because it doesn't allow Greenlight the opportunity to include a rebuttal statement in the pamphlet that is sent to the voters. Council Member Nichols stated that the City is taking the position that it is not a Greenlight vote. City Attorney Burnham stated that the decision to allow rebuttal arguments is one that the City Council is authorized to make, whether it's a Greenlight vote or not. Council Member Nichols asked who would provide the rebuttal argument if it were a Greenlight vote and who would provide it if it weren't. City Attorney Burnham stated that the Elections Code establishes the order for when more than one argument is submitted, against or in favor of a measure. He added that the Measure S guidelines would be looked at Volume 56 - Page 687 1] City of Newport Beach Regular Meeting February 10, 2004 again at a future Study Session. Additionally, City Attorney Burnham stated that the 40,000 square -foot threshold was included as a factor when determining that the issue should go to the voters. P. MOTION FOR RECONSIDERATION - None Q. ADJOURNMENT at 9:55 p.m. ................... The agenda for the Regular Meeting was posted on February 4, 2004, at 3:10 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 February 6, 2004, at 1:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. s City Clerk Recording Secretary Mayor Volume 56 - Page 688 INDEX