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HomeMy WebLinkAbout12 - Measure S GuidelinesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 12 July 13, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 -3131, rburnham(aDcitV.newport- beach.ca.us SUBJECT: Measure S Guidelines Minor Amendment ISSUE: Should the City Council amend one provision of the current Measure S Guidelines to correct a formatting error? . RECOMMENDATION: Adopt the proposed amendment to the Measure S Guidelines that accompanies this memo (Exhibit A). DISCUSSION: On June 8, 2004, the City Council, by unanimous vote, adopted amendments to the Measure S Guidelines. Subsequent to adoption, the Greenlight Steering Committee noted, correctly, that the "Exclusive Procedures" section contained a reference to a "Section E" that, after formatting changes, ceased to exist. The intent of the language in the "Exclusive Procedures" section of the Measure S Guidelines was to enable the City to honor its obligations pursuant to the agreement with Sutherland Talla (with respect to the November 2004) and to establish uniform procedures for all general plan amendments that will be considered by the Planning Commission and City Council in the future. The provisions of Exhibit A are intended to correct the error resulting from the reWFnatting of the amended Measure S Guidelines. Robert Burnham City Attorney EXHIBIT A E. Exclusive Method. The City Council has determined that, except for an election conducted pursuant to any agreement referenced in the second to last sentence of subSsection 2E and in the absence of a mandatory duty arising from an initiative petition, referendum petition, court order or other mandatory legal obligation, Section 423 and the procedures outlined in these Guidelines represent the sole and exclusive method by wluch the City Council considers, approves and submits for voter approval an Amendment that is subject to Section 423. The City Council has also determined that nothing in Section 423 prevents the City Council from submitting any matter other than an Amendment to the voters as an advisory measure. Greenlight P.O. Box 3362 Newport Beach, CA 92659 July 12, 2004 "RECEIV.D {AFTER AGENDA PRINTED:" 3 0 - Mayor Tod Ridgeway and Members of the Newport Beach City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Staff Report "Measure S Guidelines July 13, 2004, Agenda Item # 12 Dear Mayor Ridgeway and Members of the City Council: Following review of the modified guidelines, this is to follow up on our objection to what appears to be a clerical error, which has to be corrected prior to the parties moving forward as it has caused a great deal of confusion. The error references in subparagraph "E "Exclusive Method" in the PROCEDURES SECTION. Upon closer review, you will note that the referenced section "Except for any agreement referenced in subsection "E" leads nowhere, i.e. there is no subsection "E ". When we initially reviewed the document, we were confused and believe that subsection "E" would have named the exception and obviously because there were none submitted in print, we felt there were no exceptions hence no further action was required. The understanding reached between the parties reinforces this line of thought. The contract between the city and Marina Park would stay in force and be given full legal effect, despite Greenlight's concerns, in exchange for the designation by the city that the exclusive method for all future GPA approvals would require the use of Measure S guidelines per Charter Section 423. Our concern obviously is that the parties could interpret this paragraph as leaving Marina Park Hotel permanently outside the Exclusive Method, i.e. there never being an additional vote on it no matter how large its future GPAs might be. That obviously would fly in the face of the intent of the parties and would go to the very core of Greenlight's lawsuit. Mayor Tod Ridgeway City of Newport Beach RE: Staff Report "Measure S Guidelines as modified on June 8, 2004 July 12, 2004 Page 2 This is clearly a typographical error and does not appear to represent the meeting of the minds between the parties. As such, I would request that prior to moving forward, we correct the document to reflect the parties' true intent. As such, the City's proposed correction of this error and Greenlight's suggested changes are contained in the Enclosure to this letter. Greenlight believes that its solution is superior to the City Staff s because It is clearer and less subject to errors. It sets a specific date for the effectivity of PROCEDURES E. Exclusive Method vs.e. Staffs suggested change that refers to operative steps contained in the Definitions Section that are subject to interpretation and possible modification by changes in the Agreement with Sutherland - Tala.. It does not depend upon interpretations of the Agreement with Sutherland -Tala. That Agreement does not specify its termination if the voters reject the project. That Agreement can be modified and extended at will by the City. The suggested change frilly supports the intent of both parties. Inasmuch as this clearly reflects the intent of the parties I am certain you will have no problems with these corrections. Thank you in advance for your kind consideration to this request. Respectfully, Philip Arst (Original Signed) Greenlight Steering Committee cc: Greenlight Steering Committee Douglas Carstens /CB and Associates Robert Burnham / Lavonne Harkless ENCLOSURE GREENLIGHT SUGGESTION E. Exclusive Method. Effective November 2004, in the absence of a mandatory duty arising from an initiative petition, referendum petition, court order or other mandatory legal obligation, Section 423 and the procedures outlined in these Guidelines represent the sole and exclusive method by which the City Council considers, approves and submits for voter approval an Amendment that is subject to Section 423. The City Council has also determined that nothing in Section 423 prevents the City Council from submitting any matter other than an Amendment to the voters as an advisory measure. CITY STAFF SUGGESTION E. Exclusive Method. The City Council has determined that, except for an election conducted pursuant to an agreement referenced in the second to last sentence of Section 2C and in the absence of a mandatory duty arising from an initiative petition, referendum petition, court order or other mandatory legal obligation, Section 423 and the procedures outlined in these Guidelines represent the sole and exclusive method by which the City Council considers, approves and submits for voter approval an Amendment that is subject to Section 423. The City Council has also determined that nothing in Section 423 prevents the City Council from submitting any matter other than an Amendment to the voters as an advisory measure.