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Home My WebLink About01 - Minutes - 10-12-2004October 26, 2004 Agenda Item No. 1 CITY OF NEWPORT BEACH City Council Minutes Study Session October 12, 2004 - 4:00 p.m INDEX ROLL CALL Present: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols (arrived at 4:12 p.m.), Mayor Ridgeway Absent: None CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT CALE \DAR. Council Member Heffernan indicated that he will be pulling Item 9 (Professional Services Agreement to Prepare a Mitigated Negative Declaration for the Santa Barbara Condominiums Project) to get more detail about the project. City Manager Bludau requested that Item 3 be taken before Item 2 because the notice that was mailed to over 6,000 people indicated that this issue would be discussed at 4:10 p.m. Assistant City Manager Iiiff noted that the Daily Pilot stated that the item would start at 4:45 p.m. Mayor Ridgeway believed that, since it is not 4:10 p.m., Council could not open discussions. Mr. Bludau noted that the notice was not an official public hearing notice. Acting City Attorney Clauson stated that Council can discuss the item a little early. 3. BUCK GULLY/MORNING CANYONINEWPORT COAST WATERSHEDS GRANT PROGRAM LORAL REPORT]. Principal Civil Engineer Stein utilized a PowerPoint presentation. He reported that the Newport Coast. Watershed encompasses 10 square miles and includes eight canyons (Buck Gully, Morning Canyon, the Pelican Hills Canyons, Los Trancos. Muddy' Creek, and Moro Canyon). He stated that parts of Buck Gully and Morning Canyon have too much fuel too close to the homes, erosion and slope failures. and exotic and invasive vegetation that are exacerbating some of the fire and erosion problems He indicated that there is contaminated runoff in all the canyons. He emphasized that the priority is the extreme fire hazard in Buck Gully and Morning Canyon. He stated that there is high density fuel adjacent to homes and there really isn't a defensible space for the Fire Department to fight a fire. He indicated that they want to propose developing a Fuel Modification Zone (FMZ) to help alleviate the hazard in the canyons. He displayed photos of Buck Gully in 1972 and the fire hazard that exists today. Mr. Stein reported that the City currently has a hazard reduction program to clear dead and dying material 100' behind homes in Buck Gully and Morning Canyon. He pointed out that the high density could be a hazard for any house in Cameo Highlands, Corona Highlands, etc., not just the immediate homes. He stated that Newport Coast has an enhanced FMZ in which there are no trees around the development, irrigated low -lying shrubs, thinned native vegetation, and 170' of defensible space around the developments. Volume 56 - Page 1256 1 (100 -2004) City of Newport Beach Study Session Minutes October 12, 2004 1 F1TO: W7 Mr. Stein pointed out that Laguna Beach did not have a history of fires, but they had the huge fire in 1993. He displayed Laguna's fire footprint which encroached close to Newport Beach. He noted that the Fire Department was able to suppress the fire using Newport Coast Drive as the firebreak. Mr. Stein displayed a photo of an area in Morning Canyon in which Arundo was cleared. He reported that there is a 6' drop in the center of the channel. He also displayed where the ground was four years ago, but stated that it has dropped 8' and undermining of the bank has started. He reported that, once it goes, the 2:1 slope will be at risk, noting that there is a property at the top of the slope. He displayed the 12' Buck Gully Waterfall that has migrated about 50' upstream towards Coast Highway. He reported that, at the Coast Highway culvert crossing at Buck Gully, there are three 24" lines that drain surface runoff from Coast Highway and is full of sediment. Mr. Stein reported that the City could thank Surfriders and the Orange County Coastkeepers for alerting them about the contaminated runoff problems coming down across the beaches and into the ocean. He noted that there are Areas of Special Biological Significance (ASBS) that run offshore from Corona del Mar to El Morro. He emphasized that State law prohibits nuisance flow down the canyons during the summer; however, 350 gallons per minute of flow regularly go down Buck Gully. He reported that there is a history of steady degradation, loss of kelp beds, and tidepool ratings in the interdial zones. Mr. Stein reported that evasive materials, like Arundo, and a lot of ornamental and exotic plants have come into the canyon and are snuffng out the more native vegetation. He stated that these types of vegetation are high water users and people overwater them. He displayed where the Arundo was removed in Morning Canyon. He reported that°'Arundo grows in the middle of the stream, forcing the waters to the toe of 'slopes. He noted that slope failure occurs when there is erosion at the toe of slopes Mr. Stein stated that possible solutions include developing a plant palette that meets Fire. Department :requirements and are drought- resistant plants; encouraging homeowners to remove exotic plants and replant with the new plant palette; encouraging the installation of controllers that sense the water moisture in the soil and meter the water so there is no runoff going into the canyons; considering establishing an FMZ in Morning Canyon and Buck Gully; and stabilizing the canyons with detention basins and drop structures. Mayor Ridgeway asked if the City only has an easement right at the bottom of Buck Gully and Morning Canyon. Mr. Stein reported that there is an easement in Morning Canyon, but not tracing the canyon flow. He noted that the easement in Morning Canyon is 22' and tends to be on one side of the slope. He stated that the easement is about 50' in Buck Gully. Fire Chief Riley added that most of the properties in Buck Gully and Morning Canyon are privately owned almost all the way down the gully. Mr. Stein confirmed for Council Member Nichols that Buck Gully splits into three streams and the easement does not cover the flood flows. Chief Riley reported that fuel modification is really a changing of the plant landscaping to reduce fuel spread from a wild area to an urban area. He noted Volume 56 - Page 1257 City of Newport Beach Study Session Minutes October 12, 2004 INDEX that there are four zones. He stated that they really don't require too much landscape change in the 20' Setback Zone (Zone A). In the 50' Modification Zone (Zone B), he reported that they remove all combustible, non - native vegetation and replace it with fire resistive plant material. He noted that this area does require some irrigation to maintain the plant's health and fire resistive capabilities. He reported that Zone C and Zone D are also 50'. He stated that they would remove about 50% of the live vegetation and all of the dead and dying vegetation in Zone C, and remove about 30% of the live vegetation and all of the dead and dying vegetation in Zone D. He explained that, if a large fire occurs in the canyons, it would reach less and less fuel as it climbs up the slopes. He added that they also want to change the plant palette in Zone B so it is also drought - tolerant to try to help with the erosion and the runoff problems. Regarding jurisdiction, Chief Riley stated that the City could adopt an. ordinance that required property owners to conform to a new fire regulation, noting that this was done in Newport Coast. He indicated that the City could also look at grant funding to do the initial conversion from a brush clearance program to a fuel modification program, and then work with the property,. owners on how to maintain it. He added that a third option is to create an assessment district to pay for the installation and maintenance. Mr. Stein reported that, in Morning Canyon, the toe of slope falls in Zones B and C. lie stated that there would need to be a compromise to protect the toe of slope from being denuded of vegetation, which actually has a stabilizing influence in the canyons. Mr. Stein reported that the City is engaged in a stabilization project in Morning Canyon, the Arundo was cleared last month, they will conduct a survey proceeded with engineering studies, and provide recommendations for a final design with the potential of constructing a stabilization project. He stated that, in Buck Gully, they are conducting a study to possibly construct a detention facility to capture the peak storm flows. He indicated that this would allow them to construct a series of drop structures so the flow would be controlled through this area to the ocean. He stated that this would also provide them with the opportunity to replant the area with wetlands -type species. He reported that MiOcean has expressed an interest in helping the. City fund the project. He believed that, once this is implemented, the City will have a nice attraction for citizens and tourists. He added that part of the Buck Gully project will include access for the community. Mr. Stein reported that other projects are with the Surfriders, IRWD, and the Regional Board to clean up the, water in Buck Gully and improve habitat. He indicated that the $1.1 million grant for, the Newport Coast Watershed Program is to install stabilization projects, remove Arundo, and cut down nuisance flows. He stated that a big component jif this is to get public input, noting that they have received positive communication from the public. Mr. Stein reported that, in Morning Canyon, property owners have been supportive once they understood the motivations. He added that the residents also want to see restoration in the canyons. Mr. Stein reported that the Coastkeepers and Surfrider have offered a lot of assistance with monitoring, education, and intergovernmental coordination. He noted that this watershed is actually going to attract Statewide and National attention because it's a small watershed, but the City will be achieving results in a short amount of time. He believed that this will also help the City receive future grant funding. He stated that they have draft ordinances from Santa Monica and Malibu for landscaping and irrigation. He indicated that they have outlines for Volume 56 - Page 1258 City of Newport Beach Study Session Minutes October 12, 2004 INDEX additional grant funds, received offers from the community to help write the grants, and received offers from other agencies to partner with the City on these efforts. Mr. Stein stated that people can get more information by visiting the City's website (www.city.newport- beach.ca.us) or calling him (644- 3311), Fire Prevention (644- 3106), or Code and Water Quality (644- 3215). Mayor Ridgeway asked how wide Buck Gully and Morning Canyon are at the narrowest point. Mr. Stein reported that Morning Canyon from top to top is less than 200' and the slope is sometimes steeper than 2:1. Council Member-W- ebb stated that most of the slopes were originally constructed at 1.51. Mr. Stein stated that Buck Gully is about 10 times wider with 2:1 slopes. Mayor Ridgeway noted that, if there was a fire in Morning Canyon, it could move rapidly up the slope to the homes. Council Member Nichols noted that there are several storm sewers coming down into Morning Canyon, particularly closest to the highway, that have no energy dissipation. He asked if the City is going to try. to do something temporarily to dissipate some of the energy. He noted that there is also a major slope failure at that point. He asked if something can be placed there. Mr. Stein reported that any actions that involve motorized equipment will require permission from the permitting agency, noting that they consider an emergency to be a house falling into the canyon. He stated that it would probably be a year before the proposed stabilization project can be implemented. He indicated that, at that time, they would put in energy dissipaters and stabilize the slopes. He noted that the City does not have easement agreements with any of the property owners. City Manager Bludau indicated that we need a master plan and anything that is done, needs to be in accordance with that master plan. Public Works Director Badum explained that they have not removed the root structure of the Arundo because they don't want to make the area more unstable. He stated that the reason for getting rid of the green part of the Arundo is so they could go in and assess what they have. He noted that most of the properties are private property and they've been sending, notices for the property owners to inspect their property or hire someone to assess their property. He stated that, at this point, without a General Plan or an overall master plan, the City doesn't have any options to do work since they're still assessing the situation. Council Member Nichols indicated that the residents are arguing they cannot get permits. Mr. Badum reported that several property owners are moving forward with their projects. He added that the slope failure incident is in plan check and they're moving forward. He stated that his staff is ready to assist anyone that requests help in processing permits. Mayor Ridgeway asked what agencies are involved jurisdictionally with Buck Gully and Morning Canyon. Mr. Stein indicated that the co- applicant on the grant application is the County. However, the jurisdictional agencies include the Corps of Army Engineers, the Regional Water Quality Control Board, the State Department of Fish and Game, the Coastal Commission, and the County (Buck Gully only). Mayor Ridgeway asked if the drainage from the houses was designed to drain into the streets, curbs, and gutter where the City captures and channels it, or was it Volume 56 - Page 1259 City of Newport Beach Study Session Minutes October 12, 2004 INDEX designed to drain into the gullies. Mr. Stein indicated that this is a gray area. He noted that the new homes still drain into the canyon and they are not sure why this is happening. Mayor Ridgeway indicated that, one way or the other, the flow is going to the canyon regardless if it's captured in the City's system or going directly in. Mr. Stein agreed; however, their goal is to eliminate all nuisance summer flows and only use the storm drain system for the storm flows. Council Member Nichols stated that the City used to have easements in the gullies that allowed them to have a road at the bottom to fix things. Mr. Badum reported that the current easement in Morning Canyon was probably put in place `after the realization that at some point in time, if there was development upstream; they'd have to construct some type of drainage facility. He indicated that this is only above the highway. He stated that the City never really had control over the drainage, noting that this was a paper easement probably to' construct a future facility. He indicated that he does not believe that the City has ever had had easements in Buck Gully. Further, there were roadway right -of -ways that were vacated for whatever reason. He emphasized that the key issue is that the people who live along these drainage areas don't have the ability tobuild a facility thats going to work for everyone and that the City is probably the best equipped to be the leader to come up with a solution that works for everyone. He stated that this ultimately may mean that the City gets some type of easement or control of the drainage courses in order to put in control structures. water quality facilities, etc. because the City will have to build the facilities and maintain them to make sure they're operating properly. In response to Mayor Ridgeway's questions, Mr. Badum indicated that, in Morning Canyon, RBF is assessing all the information they can gather. He noted that all the current developments were approved under codes that were in place at the time. He agreed that more research needs to be done and consideration of all the issues needs to be formulated into the solution. Mr. Stein stated that the RBF study is ongoing, but they will be coming back to Council with specific engineering design recommendations in November and to ask for funding for the final design. He explained that this study is to stabilize the channels so there won't be further erosion, adding that the long term goal is to cut off the nuisance flow. Council Member Nichols stated that the homeowners' storm drains flow into Morning Canyon, but noted that the flow also comes from the golf course. He indicated that the homeowners having total responsibility for their property is different than controlling the storm flow from the whole subdivision. Everett Daly stated that he owns a home at the top of Buck Gully. He believed that, if a fire were to come down from the Pelican Hills Golf Course, his house would be the first one that the fire would reach. He stated that The Irvine Company owned Evening Canyon, turned it over to the County three years ago, and the County cleared the brush. He stated that this eliminated critter noise for about a year, noting that the crickets are back but not the frogs. He believed that there is less water in Buck Gully than what has been reported. He expressed the opinion that the City's proposal would kill Evening Canyon, even though it is very well meaning. He stated that he is not concerned with fire, noting that there has historically not been a fire in that area. He indicated that he had a geological survey done before he bought his house and was told that his house would only fall down the hill if all of Corona Highlands disappeared into the sea. Volume 56 - Page 1260 City of Newport Beach Study Session Minutes October 12, 2004 R u 7x7 Mr. Stein agreed that the City is not an expert in some of the new types of habitat restoration and modification procedures, so they have formed a technical advisory committee composed of university professors and local marine biologists and geologists. Laura Curran believed that this is an opportunity to restore habitat in Buck Gully, but noted that there are a lot of plants that are native -like, i.e. drought - tolerant or from Northern California. She stated that it is also important to put in habitat that is consistent with the Crystal Cove area. She reported that, if the plant habitat is replaced with habitat that is consistent with the environment, the food supply for the animals will increase. She stated that, if the City looks at the educational opportunity and makes this a pilot project for habitat restoration; it can be a model for doing this in other communities in the City. She stated that native species will help reduce the amount of water that's required, runoff.will be reduced, and the use of pesticides will also be reduced. Mayor Ridgeway.noted that everything that Ms. Korin said is what is being proposed. Ms. Korin commended staff for putting all the staff reports online. Robert Butnik encouraged doing the landscaping with drought - tolerant and native plants that are suitable to Southern California. He noted that there are a number of large trees in the middle of the slopes that could catch fire and asked if there is a way to expedite that part of the plan so those fire hazards could be eliminated from the canyons first. Herb Lee expressed concern about the proposed FMZ because he has planted over 200 fruit trees and 150 grape vines that are not indigenous to the area. He stated that he filed for a special exemption from the Fire Department to exempt the fruit trees when they cleaned the area. He noted that he kept all his plants out of the City's 22' easement. He stated that he already intended to fence off the face of the canyon, but he held off doing this because of the activity regarding the drainage. He indicated that transients sleep in his backyard and kids smoke in the canyon. He believed that it would be better if people weren't allowed in the canyon. Kevin Klein stated that the water table needs to be studied more because some of the demand on Buck Gully comes from the golf course and from people irrigating the front lawns. He agreed that there has been an increase of water. He stated that, when he bought his house, he cleared the slope, planted more tropical landscaping, and elevated the irrigation up to 4'. He reported that Buck Gully's landscapting provides a noise buffer from Coast Highway. He noted that there is a plan to put.up a soundwall on Coast Highway; however, the soundwall will stop before Buck Gully staris. Philip Bettencourt, President of the Newport Coast Community Association, reported that they believe that they are in full compliance with all of the City's fuel modification guidelines and have had an intensive inspection of their slopes. Further, their association has an aggressive inspection program of their storm drain system. Jim McDonald stated that the increase of water is not from the homeowners on the canyon, but from what has happened in Newport Coast. Mayor Ridgeway indicated that they are researching this. Volume 56 - Page 1261 City of Newport Beach Study Session Minutes October 12, 2004 gyRITON David Michael stated that he lives in Morning Canyon and that, prior to purchasing the home, there was slope failure. He expressed concern that there will be additional slope failure because of this plan. He believed that the City has neglected its obligation to maintain its easement as stated on his deed. He believed that, since the City has not maintained its obligation, the City shouldn't use this to drive a political, social, and environmental agenda down the neighbors' throats. He stated that the City cannot tell him what he can and cannot plant on his property. He indicated that he is almost resentful that the City has allowed this gaping hole and is using this as a way to push FMZs and proper habitat. He believed that, now that the residents along Morning Canyon know what the agenda is, they might not be so unanimous. Jack Butefish, Newport Coast Advisory Committee member, stated that it was their understanding that the residents had a 10' to 12' space, and then the FMZ began. Further, they believed that, from that point to Buck Gully, it was the County's responsibility. He stated that some of these problems need to be shared with the County. He indicated that there are five runoff drains from Newport Ridge Vistas that pick up all of the service water and runs it into Buck Gully. He believed that the runoff should be distributed rather than have., it go down those limited pathways. Mr. Butefish indicated that there are several reas in the FMZ that are barren and there has been no effort to replace the vegetation. Council Member Nichols reported that, when The Irvine Company turned over the property to the County, the County declared it wilderness and basically has no budget for maintenance. Assistant City Manager liiff displayed where private property begins and where the County -owned area (Coastal Greenbelt Authority) is located. He noted that the Coastal Greenbelt Authority is a joint powers agency between the County and other land - owning agencies that hold land in the reserve. He reported that the: City is not a voting member of the Coastal Greenbelt Authority because it does not own land in the Authority. He agreed that they have a fairly small budget for maintenance. He added that the County has told the City that the budget is what it is, but said that the City could fund the extra maintenance if it was willing to. Chief Riley reported that the portion of Buck Gully that is owned by the County and is below Newport Coast falls under the Hazard Reduction Ordinance which requires that the fuel be reduced to a manageable size based on the design criteria for the first 100' adjacent to the properties. He stated that the County's money is principally used to meet the requirements of the Hazard Reduction Program and they annually clear their areas up to 100'. However, the vegetation below that falls outside of the jurisdiction of the ordinance. He pointed out that they do not have any enforcement capability and there is no obligation for the County in the basic fire code to do anything different. Council Member Nichols asked if it was possible to make a road that can be used for maintenance or inspecting the area. Chief Riley reported that they are not required to maintain that area nor do they require any fire access roads in the base of the canyon. He stated that their principal fire protection is for structural protection as it abuts wild land areas. He indicated that there used to be a road or maintenance easement at the base of upper Buck Gully; however, the County stopped maintaining it. Council Member Webb asked who pays for all these improvements, noting that most of them are on private property. He pointed out that someone was concerned Volume 56 - Page 1262 City of Newport Beach Study Session Minutes October 12, 2004 that, if the area was opened up, people may go into those areas. However, he asked why the City would spend public money if it wasn't going to give the public access. Mayor Ridgeway emphasized that this is about safety and that the City is ultimately the entity responsible for the ASBS. He believed that the initial study and a master plan with solutions should be the City's responsibility; however, he is unsure how payment after that should be handled. Council Member Webb agreed, but wanted to make sure people know that the City is not saying it will be paying for all the improvements in the future and may be looking for private contributions to help protect their properties. Council Member Nichols agreed that the drainage also comes from all of Cameo Shores, Corona Highlands, the golf course, and upstream. He statedthat the City has responsibility, but needs to have easement roads in order keep up the area. He agreed that the City also needs some relief from the County. Mayor Pro Tern Bromberg commended the residents for coming out and staff for their work on the issue. He agreed that the County needs to get involved. He stated that he is comfortable with having staff move forward with the action plan and requested that staff talk to the County to see if they could provide some financial relief. Mr. Riff requested that, if people would like to be placed on a more routine email distribution list for information, they leave a business card or respond to opinions@city.newport-beach.ca.us. 2. POTENTIAL REVISIONS TO MODIFICATION PERMIT PROCEDURES. Senior Planner Alford stated that they are reporting back regarding a survey of modification procedures'th at, were brought about through an amendment that Council reviewed in late 2003. He reported that the amendment addressed a number of concerns Council had regarding the Modifications Committee process. He stated that there were concerns that the modification process deviated from its original intent to provide relief from a strict and literal application of zoning code regulations, it. was being used to accommodate individual project designs, it was slowly reshaping the character of neighborhoods, and insufficient attention was being given to maintaining adequate public safety access. Mr. Alford reported that currently the only finding required to approve a modification permit was that it is not detrimental to persons or property in the surrounding. area. However, the proposed amended three findings requires that the applicant- 1) demonstrate that physical aspects of the property create the need to deviaie from the code; 2) demonstrate that it is compatible with the existing developments in the neighborhood; and 3) demonstrate that there is no negative impact to public safety. Mr. Alford reported that staff was directed to conduct a parallel review of the modification process using the proposed findings. He stated that 47% of the applications would've been denied using the proposed findings versus less than 3% under the current finding. He reported that they met with three architects, Brion Jeannette, Todd Schooler, and Barry Walker, who regularly represent applications for modification permits who stated that they are generally supportive of the amendment. However, they did express concerns with Finding 1 because it requires the property to be unique and would preclude a number of Volume 56 - Page 1263 INDEX (100 -2004) City of Newport Beach Study Session Minutes October 12, 2004 INDEX modification applications. Mr. Alford indicated that they included a revised Finding 1 in the staff report which removes all references to size, shape, and other unique physical aspects of the property. Mr. Alford reported that, since the Modifications Committee is subject to the Brown Act, members of the committee are prohibited from discussing the applications outside of the open meeting. He stated that this varies from other types of applications where they distribute them to other departments to receive input prior to decision making. He indicated that staff feels that a solution to this is to replace the Modifications Committee with a single staff member, i Zoning Administrator, so this person could consult with other departments prior to . the modification hearing. He stated that this method allows interaction without violating the Brown Act. In response to Mayor Pro Tem Bromberg's questions, Senior Planner Garcia stated that, if the three new findings were utilized and the Committee's makeup was the same, there would still be a concern about meeting and discussing the application with other departments prior to the hearing. He indicated that the Administrator would have the ability to meet with whomever they needed to depending on the application. He believed that they still would be able to have an in depth hearing with the applicant because the Administrator could ask the representative from Public Works or the Building Department to be present at the meeting if there was an issue or they needed to answer questions. He stated that the Administrator would be one person from the Planning Department. In response to City Manager Bludau's question about the use of "practical" in revised Finding 1, Mr. Garcia stated that it could mean. that the building is non- conforming, the property is odd shaped, or it was not practical to make an addition to a garage and make it conform because the lot is not wide enough. Mr. Bludau noted that, under the revised language, Finding 1 is a lot more flexible. Acting City Attorney Clauson stated that the concept deals with physical difficulties as opposed to economic difficulties or the desires of an applicant for something they would like to have. Mr. Alford indicated that the amendment before Council last year included guidelines, examples, and parameters on how each finding would be administered. Council Member Heffernan asked about a previous request regarding a rectangular lot on the Peninsula in which the owner wanted to reduce the front yard setback since everyone else did it. Mr. Garcia indicated that they treat new buildings. differently than remodels to existing buildings. Council Member Heffernan stated that, if the modifications are allowed, the City might as well rezone the whole area and cut the setback to 3'. Mr. Garcia indicated that they would probably deny the request because of the inability to meet the first finding. He stated that the only types of encroachments they have been approving is for architectural -type features, like patios, porches, and balconies, not living areas. Mayor Ridgeway emphasized that they are talking about minor modifications, not rezoning. He added that the City has worked on exception forever. Mr. Alford indicated that the reason for the amendment is to get away from people requesting anything as long as it did not cause a problem. He stated that the amendment requires the applicant to demonstrate the need based on physical practicability of the property. He reported that, if there were standards that deviated from the purpose and intent of the zoning code, those should be properly Volume 56 - Page 1264 City of Newport Beach Study Session Minutes October 12, 2004 18011 �1:1 addressed through a zoning code amendment that would be reviewed by the Planning Commission and the City Council. Council Member Heffernan referenced his previous example and asked, since the neighbors have already come out 3', would that be justification for granting the modification. Mr. Clauson reported that just because the neighbors come out Xis not a basis for approving the modification, and added that this is exactly why staff is proposing additional findings. Council Member Webb expressed concern about setbacks, particularly in areas that only have 3' setbacks because, if they are not clear, there wont be fire access between buildings. He hoped that the new finding would not make it easier to place improvements in any setback. Ms. Clauson indicated that Finding 3 addresses the concern about safety. Mayor Pro Tern Bromberg stated that he likes the idea of the three findings, but is unsure about having a Zoning Administrator versus a full committee. He requested that this come back with at least the three findings. Planning Director Temple reported that having a Zoning Administrator, not a multiple person committee, is probably the most common 'type of review in the State. Further, most agencies use this format for the reasons that staff mentioned. She believed that there will be more and better participation from the other departments because a whole host of people, including those who currently sit on the Modifications Committee, can be %66risulted. She added that it is also more efficient with regard to staff resources. In response to Council Member Rosansky's questions, :GIs. Temple stated that the Administrator will prepare an informal report that is adapted from the planning review process used to consult with other departments. She stated that the interchange would be written and could cause the Zoning Administrator to consult directly with affected staff to in sure they were clear about the project and, if important, suggest that the person attend the hearing in order to give testimony. She emphasized that it is the applicant's responsibility to justify whether the three findings were met. She added that the meetings will still be noticed just as they are today. She stated that the appeal process would also still be the same in which it could be appealed by the Planning Commission, appealed by the applicant to the Planning Commission, or appealed to Council. Council Member Daigle stated that she has been before a Zoning Administrator in the City of Los Angeles, noting that they have six Zoning Administrators. She agreed that they are powerful; however, they do consult with other departments to formulate conditions and this method reduces their workload. She indicated that Long Beach has one Zoning Administrator. In response to Council Member Daigle's question, Ms. Temple reported that the Modifications Committee and its procedures were established in the mid- 1960s. She stated that the committee makeup has not changed until this recommendation. Mr. Bludau suggested that the examples /interpretations that Mr. Alford mentioned be brought back when this comes before Council. Mayor Ridgeway believed that Council will consider the alternative findings. Mayor Pro Tern Volume 56 - Page 1265 City of Newport Beach Study Session Minutes October 12, 2004 Bromberg suggested that this come back with the three findings and leave the discussions about the Zoning Administrator open. Ms. Temple noted that this issue has been reviewed by the Planning Commission. She stated that the study on the findings was done at the request of Council, so this would come back to Council as a public hearing. PUBLIC COMMENTS — None. Acting City Attorney Clausen reported that a settlement proposal just arrived as she came to the Study Session relative to Wetlands Action Network vs. the City of Newport Beach (San Francisco Superior Court Case No. SPF03503862). She stated that, since the need to take action arose after the posting of the agenda, a motion is needed to add this to the Closed Session agenda. Motion by Council Member Webb to add this item to the Closed Session agenda. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Vlayor Ridgeway Noes: None Abstain: None Absent: None ADJOURNMENT — at 5:50 p.m. to Closed Session. The agenda for the Study Session was posted on October 6, 2004, at 2:45 p.rrL on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Secretary Mayor Volume 56 - Page 1266 INDEX City of Newport Beach Study Session Minutes October 12, 2004 INDEX THIS PAGE LEFT BLANK INTENTIONALLY. Volume 56 - Page 1267 CITY OF NEWPORT BEACH City Council Minutes DRAFT Regular Meeting October 12, 2004 - 7:00 p.m. INDEX — 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, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Absent: None C. CLOSED SESSION REPORT - None D. PLEDGE OF ALLEGIANCE — Council Member Nichols E. INVOCATION — Jim de Boom Executive Director, Newport Mesa Irvine Interfaith Council. F. PRESENTATIONS Orange County Tobacco Use Coalition Presentation. Jim Walker, Vice Chair of the Orange County Tobacco Use Coalition, presented a plaque recognizing the City's vision and leadership in promoting a safe and healthy smoke -free beach and pier environment. Linda Nichols, Earth Resource, thanked the City for working with Earth Resource. She announced that beach clean -up entitled "Hold Onto Your Butt' would be taking place on October 16, 2004. Herm Perlmutter, Orange County Health Care Agency, commended and congratulated the City for adopting the important health measure, and stated that the agency will be available to provide assistance. 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 Daigle requested that at a future Study Session, the design of the Santa Ana Heights fire station and training tower be agendized. She specifically requested that the information include how an institutional use can be blended into a the area, the functional needs that will drive the design and the estimated budget for the project. Volume 56 - Page 1268 City of Newport Beach City Council Minutes October 12, 2004 Council Member Webb announced that the Newport Beach Centennial Committee met on October 7, 2004, and that the possibility of the City sponsoring a Rose Parade float was discussed. He stated that the matter will be agendized at a future City Council meeting for consideration. Mayor Pro Tern Bromberg announced that a Marine Corps Mess Night will take place on October 26, 2004, as a part of the City's adoption of the 1st Battalion, 18t Marines at Camp Pendleton. He explained that the 1 -1 is being deployed to Iraq in December 2004, and the Mess Night will be an opportunity to support the troops. Mayor Pro Tern Bromberg stated that the event will take place at the Balboa Bay Club at 6:00 p.m. and the cost per ticket is $200, which includes the sponsorship of a Marine to attend the event. The extra money will go to the families of the 1 -1. More information can be obtained by calling the City at 949- 644.3202. Mayor Pro Tern Bromberg acknowledged the Mom's Club in Newport Coast. He explained that the Mom's Club is a national organization that adopts families during the holidays, and that the Newport Coast Mom's Club has offered to be a part of the support for the 1 -1 families. Council Member Heffernan announced that early voting is taking place from October 5 - 29, 2004, throughout the County. He stated that the most convenient place for Newport Beach residents to vote early is at the Orange County Airport from 6:00 a.m. to 10:00 p.m. Mayor Ridgeway apologized to John Buttolph for comments he made at the City Council meeting of September 28, 2004. Mayor Ridgeway explained that his comments were in error. I. CONSENT CALENDAR READING OF MINUTES/ORDINANCES AND RESOL UTIONS 1. MINUTES OF THE ADJOURNED REGULAR MEETING OF SEPTEMBER 21, 2004 AND REGULAR MEETING OF SEPTEMBER 28, 2004. Waive reading of subject minutes, approve as written and order filed. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. ORDINANCES FOR ADOPTION ORDINANCE TO APPROVE AN AMENDMENT TO PERS CONTRACT (C -563) TO PROVIDE PRE - RETIREMENT OPTIONAL SETTLEMENT DEATH BENEFIT TO MISCELLANEOUS EMPLOYEES. Adopt Ordinance No. 2004 -21 authorizing an amendment to the contract between the City Council of Volume 56 - Page 1269 INDEX C -563 Public Employees Retirement System (PERS) Contract City of Newport Beach City Council Minutes October 12, 2004 the City of Newport Beach and the Board of Administration of the California Public Employees' Retirement System. 4. TRAFFIC CONTROL ON VIA FIRENZE. Adopt Ordinance No. 2004- 22 amending Section 12.52.070 of the NBMC to designate Via Firenze between Via Lido Send and Piazza Lido as one -way, northeast bound traffic only. CONTRACTS AND AGREEMENTS 5. MARINERS, CHINA COVE AND 62ND STREET WASTEWATER PUMP STATION REHABILITATION, INCLUDING FERNLEAF AVENUE STREET IMPROVEMENTS — AWARD OF CONTRACT (C- 3585). Item continued to the City Council meeting of October 26, 2004. 6. OCEAN PIER INSPECTIONS: APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH HARBOR OFFSHORE, INC. 1) Approve a Professional Services Agreement with Harbor Offshore, Inc. and authorize the Mayor and the City Clerk to execute the Agreement; and 2) approve a budget amendment (05BA -019) to appropriate an additional $11,580 from the Tide and Submerged Lands unappropriated reserve into Account No. 7231- C5100153 for Ocean Pier Inspections. Item removed from the Consent Calendar by Council Member Nichols. 8. SIDEWALK, CURB AND GUTTER PHASE 2 (FY03 -04) — COMPLETION AND ACCEPTANCE OF CONTRACT (C- 3693). 1) Accept the work; 2) authorize the City Clerk to file a Notice of Completion; 3) authorize the City Clerk to release the Labor and 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. 9. PROFESSIONAL SERVICES AGREEMENT (PSA) TO PREPARE A MITIGATED NEGATIVE DECLARATION FOR THE SANTA BARBARA CONDOMINIUMS PROJECT. Approve a PSA with David Evans and Associates, Inc. for professional environmental services to prepare an Initial Study, Mitigated Negative Declaration, and air quality and noise studies not to exceed cost of $43,963 and authorize the City Manager to sign the agreement. MISCELLANEOUS ACTIONS 10. HOUSING ELEMENT IMPLEMENTATION — ANNUAL PROGRESS REPORT. 1) Review, file and forward the Annual Housing Element Implementation Report to the State Department of Housing and Community Development; and 2) review and approve the proposed letter for submittal to the State of California's Office of Planning and Research. Volume 56 - Page 1270 INDEX (38/100 -2004) (100 -2004) C -3585 Wastewater Pump Station Rehabilitation (38/100 -2004) C -3716 Ocean Pier Inspections (38/100 -2004) C -3693 Sidewalk, Curb and Gutter Phase 2 (38/100 -2004) C -3736 Santa Barbara Condominiums (38/100 -2004) (100 -2004) City of Newport Beach City Council Minutes October 12, 2004 11. BUDGET AMENDMENT TO ACCEPT A CHECK FROM CALIFORNIA STATE LIBRARY AND APPROPRIATE FUNDS FOR LITERACY SERVICES. Approve a budget amendment (05BA- 016) to increase expenditure appropriations by $20,000 in Division 4060, Literacy, and to increase revenue estimates for the same amount in Account No. 4010 -4832, California Library Literacy Services. 12. BUDGET AMENDMENT TO ACCEPT A CHECK FROM THE NEWPORT BEACH LIBRARY FOUNDATION AND APPROPRIATE FUNDS FOR MAINTENANCE AND OPERATIONS BUDGET FOR FY 2004/05. Approve a budget amendment (05BA -017) to increase revenue estimates by $135,000 in Account No. 4010 -5901 and increase maintenance and operation expenditure estimates by the same amount in Division 4090, Foundation. Motion by Mayor Pro Tern Bromberg to approve the Consent Calendar, except for the item removed (7); and noting the continuance of Item No. 5. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None J. PUBLIC HEARINGS 13. ST. MARK PRESBYTERIAN CHURCH (PA2003 -085) — GENERAL PLAN AMENDMENT NO. 2003 -002, PLANNED COMMUNITY TEXT AMENDMENT NO. 2003 -001, USE PERMIT NO. 2003 -015, TRAFFIC STUDY NO. 2004 -004, PARCEL MAP NO. 2004 -036 — 2200 SAN JOAQUIN HILLS ROAD. Mayor Ridgeway noted that the staff report was complete and comprehensive. John Benner, member of St. Mark Presbyterian Church and head of the building committee, stated that St. Mark has been at the corner of Eastbluff Drive and Jamboree Road for over 40 years. He listed the many activities that take place at the church and serve the congregation and the community. He stated that the opportunity to develop the property at the corner of San Joaquin Hills Road and MacArthur Boulevard will actually provide a greater open space character to the property than currently exists. He explained that it's an environmentally sensitive area and that St. Mark has been involved in environmental issues for a number of years. Scott Barnard, project manager, displayed the parcel map/land use diagram for the proposed project, which showed the various zones on the Volume 56 - Page 1271 INDEX (100 -2004) (100 -2004) (100 -2004) City of Newport Beach City Council Minutes October 12, 2004 INDEX property. He noted that 62% of the site will be landscaped. Mr. Barnard also displayed the landscape plan for the proposed project, which showed an overview of the property and the location of the buildings. Eric Katzmaier, landscape architect, used the same landscape plan and explained that the property has three zones, which include the perimeter zone, the interior zone and the canyon/natural zone. He explained the plant material that would be used in each of the zones. Mr. Katzmaier displayed artist renderings of the view over the canyon, a cross section of the landscaping from MacArthur Boulevard, the view from MacArthur Boulevard, and views of the gathering and environmental plazas. Belly Nolan, civil engineer, displayed the drainage plan, which included a composite of the hydrology and water quality items for the project. He showed water flows and runoff at the site, and the use of detention basins to maintain the peak runoff from the site at existing levels and landscape swales that would intercept flows from the parking lots and act to improve water quality. He displayed artist renderings of a bio- swale and a catch basin, and explained how they would work. Council Member Rosansky asked if there would be significant excavation at the property. Mr. Benner stated that the elevations will be reduced eight to twelve feet to maintain the setbacks from the street and not end up with big retaining walls next to the canyon. He confirmed that most of the material would be exported from the site. In response to Mayor Ridgeway's question, Mr. Benner stated that there are 47,000 yards of material that will be exported. Mayor Ridgeway opened the public hearing. Dr. Jan Vandersloot stated that his main concern with the project is that it converts a recreation /environmental open space designation in the general plan to a development use. He stated that the City is losing its open space designations and they aren't being replaced, and added that the recreation and open space element of the general plan states that there's a deficiency of parkland in the area of the proposed project. He requested that the Irvine Company be required to replace the lost open space acreage. Dr. Vandersloot stated that the visioning process showed that open space is a high priority to the residents, and yet eight acres at Marinapark, ten acres for St. Mark's and 3.5 acres at San Miguel Drive and MacArthur Boulevard are potentially being lost. Allan Beek stated that St. Mark can't execute their proposal until the land is theirs, which won't happen until The Irvine Company sells it. Mr. Beek stated that open space on a map means open space. He urged the City Council to require that The Irvine Company replace the open space elsewhere in the City if the change is made. John Buttolph stated that he is in favor of open space. He urged the City Council to value open space also. He stated that open space has Volume 56 - Page 1272 City of Newport Beach City Council Minutes October 12, 2004 Q181 value and needs to be preserved. He stated that if St. Mark is allowed to develop their project, mitigation should be required. Bernie Roam, Big Canyon Community Association board member, referred to a letter that he submitted and stated that there should be a landscaping mandate for the area on MacArthur Boulevard that is currently not landscaped. Secondly, he stated that the project is for neither residential or golf course use as designated in the Big Canyon Planned Community Text. Additionally, if there is to be a religious use on the site, it should be available to all religions. Hearing no further testimony, Mayor Ridgeway closed the public hearing. Mayor Pro Tern Bromberg stated that the Circulation Improvement and Open Space Agreement (CIOSA) does not designate the property as an open space dedication site. He further noted that the City has 47 parks and that there is a lot of open space. Mayor Pro Tern Bromberg stated that the project is pristine, and noted that St. Mark subscribes to the Ecophilian philosophy, which means that part of the church's ministry is to be stewards and shepherds of the environment. He stated that the nature center and the amphitheater will be open to the public, and that 62% of the final project will be open space. Motion by Mayor Pro Tern Bromberg to approve the project by taking the following actions: 1) adopt Resolution No. 2004 -88 certifying the EIR; 2) adopt Resolution No. 2004 -89 approving the General Plan Amendment, Use Permit, Traffic Study and Parcel Map; and 3) introduce Ordinance No. 2004 -23 amending the Big Canyon Planned Community District Regulations and passed to second reading on October 26, 2004. Mayor Ridgeway asked if the motion could include the requirement to landscape the golf course parcel, as recommended by Mr. Roam. Planning Director Temple stated that it is a condition of approval in Resolution No. 2004 -89. Mayor Pro Tern Bromberg noted that the people involved with the project have been very cooperative and considerate. Council Member Webb noted that the parcel was created to be a cloverleaf interchange for the Corona del Mar freeway extension. He also felt that the church did an excellent job of looking at the environment and working with it, and asked what development can occur on private recreation and open space. Assistant City Manager Wood stated that permitted uses would include commercial recreation facilities. Council Member Webb pointed out that since the property is private, the owner has the right within the zoning to build something other than a park. Additionally, he noted that the property is adjacent to a bicycle trail. He requested that this be taken into consideration by the Public Works Department when the trail is relocated for the entranceway. Volume 56 - Page 1273 City of Newport Beach City Council Minutes October 12, 2004 Council Member Nichols remembered when the property was designed to improve circulation into Fashion Island. He also felt that the church proposal was a better use of the property. Council Member Daigle stated that the proposal is a net plus for the community, and expressed her appreciation for the programs and services that St. Mark's provides. Council Member Daigle stated that she is mindful of the loss of open space but feels that there will be opportunities in the future to replenish the City's inventory. Mayor Ridgeway reminded everyone that with the annexation of Newport Coast came 1250 acres of developed property on 7200 acres. He stated that approximately 1800 acres is under water and the rest is permanently dedicated to open space. He stated that the City has adequate open space and The Irvine Company has met its responsibility in that regard. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 14. ORDER OF CONSTRUCTION OF PUBLIC IMPROVEMENTS ALONG GRANT STREET AND HIGHLAND STREET FRONTAGES — 7000 AND 7012 WEST COAST HIGHWAY. Jim Joffe, Newport Sands Property Manager, stated that Newport Sands is a mobile home park and comes under the jurisdiction of the State Housing and Community Development Department (HCD) in terms of the interior of the property. The City can place requirements on the perimeter of the property, but to make the perimeter work, Mr. Joffe stated that he needs a plan for the interior also. Mr. Joffe further explained that the property is over 50 years old and was a trailer park with a density of approximately 25 units. He stated that the density has been changed to 17 units and that more on -site parking will be provided, but that he's waiting to hear from the HCD on his plans. Mr. Joffe stated that the plans will improve the area and mitigate the parking problems. Council Member Webb asked Mr. Joffe when he thinks construction could begin. Mr. Joffe stated that an additional sixty days would probably work. He stated that as soon as his map is approved by the HCD, he will have an engineer draw up the plans and then construction can begin. He additionally noted that the area is scheduled to have the utilities undergrounded and that a power pole on Highland Street could have an impact on the curb and gutter improvements. He suggested that the improvements to Highland Street not be done until the undergrounding is completed. Public Works Director Badum confirmed Volume 56 - Page 1274 INDEX (100 -2004) City of Newport Beach City Council Minutes October 12, 2004 INDEX for Council Member Webb that as long as there is a commitment to do the work, the additional sixty days would be satisfactory. Mayor Ridgeway opened the public hearing. T. K. Brimer stated that the decrease from 25 units to 17 units is deceiving. He explained that the 25 units were mostly one - bedroom small trailers and the 17 units are three - bedroom homes, which has actually resulted in an increase in bedrooms on the site. He stated that parking is a problem and that the residents tend to use the off -site parking first to improve the living conditions around their properties. Mr. Brimer stated that he'd like to see the area improved and beautified, and that the construction of curbs, gutters and sidewalks would help. Joe Krueger, Newport Sands resident, stated that his parking space was taken from him two years ago and that he hasn't been offered another one. He stated that he has refused to sign the lot change form, which means that Mr. Joffe can't promise that the improvements will be made. Howard Rich stated that the increase in density at the site has had a tremendous impact on the parking in the area. He questioned if there would be room for a sidewalk on Highland Street, due to the narrowness of the street. Hearing no further testimony, Mayor Ridgeway closed the public hearing. Mayor Ridgeway stated that the improvements to the area will be made and that the only question is if the owner will make the improvements or if the City will do so and place a lien on the property. He stated that the owner has not cooperated. In response to Council Member Rosansky's question, Public Works Director Badum stated that plans have not been prepared for the work, because it was hoped that the property owner would initiate the process. He stated that the City is aware of the lack of parking in the area and that the right -of -way on Grant Street is narrower than the other streets in the area. He stated that curbs and gutters on Grant Street, and curbs, gutters and sidewalks on Highland Street will improve the area without taking away from the existing parking. Council Member Rosansky stated that the matter was brought to his attention by residents in the area and agreed that the property has increased in density. He asked if the undergrounding was an issue, as described by Mr. Joffe. Public Works Director Badum stated that it shouldn't be an issue to repair the pole location after the other work is done. Motion by Council Member Rosansky to 1) order the construction of public improvements on Grant and Highland Streets, adjacent to 7000 and 7012 West Coast Highway, to be paid for by the property owner; and 2) direct the Superintendent of Streets to cause the construction of the public improvements if the owner has not begun construction by February 15, 2005. In case of nonpayment by owner for the work, Volume 56 - Page 1275 City of Newport Beach City Council Minutes October 12, 2004 1011 authorize staff to place a lien on the properties to recover the administrative, engineering and construction costs. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None K. PUBLIC COMMENTS Stephen Sutherland referred to Item No. 18, Ad Hoc Marinapark Lease Negotiation Committee Report, and stated that he knows that his character will again be attacked during the discussion of the item by a small group of people who have no vision for the future of Newport Beach. He stated that at the City Council meeting on September 28, 2004, many responsible residents spoke in favor of Measure L and were shouted down by personal insults. He suggested that they not bother to endure that treatment again at the current meeting. Mr. Sutherland stated that he believes in the Marinapark Resort and Community Plan, the public planning process that produced it and the vast majority of residents who will fairly sort facts from propaganda. He thanked the City Council for their attention to the Marinapark issue and hoped that he would be working with them to bring the plan to fruition. Jim Hildreth displayed a chest x -ray, which he stated shows that his heart is in the right place. He stated that his issue continues to be the access site in the Grand Canal and noted that he first brought the matter to the City Council's attention on August 13, 1999. Mr. Hildreth stated that Council Member Nichols and Dolores Otting also have their hearts in the right place. Robert Walchli stated that the comments at the City Council meeting on September 28, 2004, that were considered mean spirited were due to the fact that many people are fed up with public lands being converted to private control and the City Council not listening. He stated that it's not just Marinapark. He displayed a photo taken at the Balboa Bay Club, which stated, "absolutely no public access ". Mr. Walchli stated that he is in opposition to a soccer field at the Marinapark site, but could support a hotel if public access were maintained. Wendy Kaiser thanked the City Council for outlawing smoking on the beaches and piers. She stated that she has asthma and that it will make a difference to her. Ann Watt, ocmil.com, stated that the biggest public land grab in the County is the privatization of the El Toro Marine Air Station, but that she is pleased to announce that a private developer may purchase the base housing units and lease them to the military at a low cost. She asked the public to support ocmil.com. Volume 56 - Page 1276 City of Newport Beach City Council Minutes October 12, 2004 Lindsey Lear stated that Measure L will only hurt Newport Beach and not help it. She stated that building the Marinapark resort will cause more cars to park on the peninsula and that there's already not enough parking. Ms. Lear stated that a park would be a positive for the City. Mayor Ridgeway confirmed with Acting City Attorney Clauson that it would be appropriate to have public comments on Measure L take place during the discussion of Item No. 18. L. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report - Ad Hoc General Plan Update Committee (GPUC). Mayor Pro Tem Bromberg stated that GPUC helped to form the 38- member General Plan Advisory Committee (GPAC), and that GPUC only meets as needed. Status report - Local Coastal Program Certification Committee. No report. Status report - Newport Coast Advisory Committee (NCAC). Council Member Heffernan stated that the NCAC met on October 4, 2004, and that the floor plan for the proposed community center was approved by the committee at the meeting. He stated that the landscaping issue on Newport Coast Drive up from the toll road was also discussed, and explained that it's an environmental zone and there's a restriction on what plants can be planted. Council Member Heffernan stated that the City is working with The Irvine Company on the matter. The NCAC meets on the first Mondays of the month at 5:30 p.m. at Newport Coast Elementary School. Status report - Mariners Joint Use Library Ad Hoc Steering Committee. Council Member Webb reported that the plans have been completed and are out to bid. The Committee will meet next on October 27, 2004, at 4:00 p.m. at Mariners School, to review the bids. Status report - Other Committee Activities. No other reports. M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 15. PLANNING COMMISSION AGENDA FOR OCTOBER 7, 2004. Planning Director Temple stated that two of the items on the Planning Commission agenda were continued at the request of the appellants. The other two items were approved, and included the request for a condominium conversion, a tentative tract map and a coastal residential development permit to allow the conversion of a 7 -unit apartment project at 329 Marguerite Avenue. The second item was a variance request at 520 Larkspur Avenue, which was approved with a reduction in the size of the project by eliminating the basement. Council Member Nichols asked if 317 Marguerite Avenue was a similar multi -unit project as the condominium conversion. Planning Director Temple stated that she wasn't familiar with the project that Council Volume 56 - Page 1277 Wro) (100 -2004) City of Newport Beach City Council Minutes October 12, 2004 Member Nichols was speaking of Council Member Nichols stated that he is concerned with the upkeep of properties that have multi - ownership. Planning Director Temple stated that there can be problems with split ownerships, but that the project at 329 Marguerite Avenue will be required to have Covenants, Conditions & Restrictions (CC &R's). Mayor Ridgeway requested that the condominium conversion approved by the Planning Commission be called up for review by the City Council. He explained that the building is over 50 years old and is nonconforming. He specifically requested that the applicable laws and timeframes that apply to the building be addressed. Planning Director Temple stated that the ramifications of various interpretations will also be presented. N. CONTINUED BUSINESS 16. TELECOMMUNICATIONS FACILITY PERMIT NO. 2003 -003 (PA2003 -255); TELECOMMUNICATIONS FACILITY PERMIT NO. 2004 -002 (PA2004 -057) — 4600 WEST COAST HIGHWAY (APPLICANTS — CINGULAR WIRELESS AND SPRINT PCS). Assistant Planner Brown stated that the City Council reviewed Cingular Wireless's application at the City Council meeting of May 11, 2004. Since that meeting, Cingular has explored alternative design proposals that might be more acceptable to the community and the City Council. In the meantime, Sprint PCS also submitted an application to co- locate at the site with Cingular. In July 2004, staff retained the services of Jonathan Kramer to help provide technical advice to the City. Staff met with Mr. Kramer and the applicants, and the result is the proposal before the City Council at the current meeting, which is for each applicant to install antennas on four streetlight poles on Superior Avenue. The overall height would be 35 feet. Assistant Planner Brown noted that the existing height of the streetlights is 32 feet. She stated that the support equipment would be located in a block wall enclosure within the nearby parking lot in a landscaped area. She noted that if this was a new application of the same design, it would not have been agendized because it complies with the requirements of the telecommunications ordinance. Council Member Rosansky asked why the streetlight poles couldn't remain at 32 feet and how different from the existing poles they would be. Assistant City Planner Brown stated that the poles themselves will be similar to the existing poles. The difference will be the antennas attached above the light standard. Council Member Rosansky noted that the lights will also extend out from the poles at a lower height and don't really look similar. Gil Gonzalez, Infranext, stated that he's representing Cingular on the project. He displayed maps showing the existing coverage in the area, coverage with 35 -foot poles and coverage with 32 -foot poles. Council Member Rosansky stated that the additional coverage with the Volume 56 - Page 1278 QZ"s (100 -2004) City of Newport Beach City Council Minutes October 12, 2004 INDEX 35 -foot poles seems negligible. Mr. Gonzalez explained that the difference is more significant to a Radio Frequency (RF) engineer and that the initial objective was for a 50 -foot pole and the coverage that it would provide. Council Member Webb asked if the light could be placed above the antennas. Mr. Gonzalez stated that it's possible, but could interfere with coverage. Council Member Webb stated that lowering the light could have an effect on the light distribution on Superior Avenue. Council Member Daigle stated that the impact on aesthetics is a concern, and asked if research was done on how the 32 -foot poles would look in comparison to the 35 -foot poles. Mr. Gonzalez stated that they only learned of the concern for the 32 -foot poles the day prior and did not have the time to conduct research. He noted, however, that the 35- foot poles do comply with the height and design requirements, and that another carrier has already been approved for 35 feet. Council Member Daigle asked if the facility would provide 911 service, and noted that Superior Avenue and Coast Highway is a busy intersection. Jason Kozora, Sprint, stated that Sprint does have 911 coverage on its antennas. Council Member Daigle referred to the Federal mandate to provide E -911 service, which is enhanced 911 service with locator technology, and asked if this is also being provided. Mr. Kozora stated that it is. Mr. Gonzalez confirmed that Cingular also has the capability on the site. Council Member Rosansky asked if alternative locations had been looked at and specifically if Hoag Hospital had been approached. Mr. Gonzalez stated that Hoag was contacted before the initial proposal was submitted and they weren't interested. In addition, the City stated that Hoag had already exceeded its height limitations. Council Member Rosansky stated that he spoke with a representative from Hoag and they indicated that they had not been contacted. Council Member Daigle confirmed with Mr. Gonzalez that antenna facilities can also be placed too high Council Member Heffernan reminded everyone that if the facilities are installed at Hoag, the City won't receive the revenue for leasing the sites. He asked if the rate had been determined and if it would be separate leases with Cingular and Sprint. Acting City Attorney Clauson stated that there would be two leases and they would total approximately $4000 per month for five years. Mr. Gonzalez stated that when Cingular looks for a site, the factors that are considered include the RF engineer's target objectives, leasing possibilities and compliance with the City's ordinance and development standards. Council Member Daigle asked if the proposal at the current meeting was the second alternative, with the first being the flagpole. Mr. Gonzalez stated that it's actually the fourth alternative that was looked at, and that they also considered a lower flagpole and another alternative involving the streetlights. Volume 56 - Page 1279 City of Newport Beach City Council Minutes October 12, 2004 INDEX Spiro Stameson expressed his opposition, and that of the Villa Balboa residents, to putting telecommunication antennas on streetlight poles along Superior Avenue. He stated that there are other alternatives that should be considered first, such as palm trees, high rise buildings or vacant land, and that it is inappropriate to put the antennas on a busy street with the possibility of radiation. Joe Rozecho stated that he's a dentist, takes x -rays everyday and has to meet certain rules and restrictions in terms of safety. He stated that it is unknown how much exposure he would face everyday from the antennas on Superior Avenue, and that the matter is serious and needs to be studied further. He stated that it is not just a matter of coverage and revenue, and urged the City Council to study the matter further and determine what the radiation exposure would be. Acting City Attorney Clausen stated that in 1996, the Federal government enacted the Telecommunications Act, which preempts cities from being able to regulate or deny cellular antennas based on radiation concerns as long as the installations comply with Federal Communications Commission (FCC) standards. Council Member Heffernan stated that the City began exploring cellular antennas on public property four years ago with the reasoning that the antennas are going to be installed anyway. He explained that installations are driven by market, Newport Beach is a high cell phone use area, installations can enhance service coverage and the City might as well get the revenue for the installations. He further explained that City ordinances were rewritten to deal with the installations. Jim Hildreth stated that if there are no problems with the antennas, they should be installed on City Hall. Ed Sherman stated that there are 750 to 800 units in Villa Balboa and Versailles, and that these taxpayers supply the City with more than $4,000 per month. He stated that they do not want the antennas in their front yard. Council Member Nichols asked if placing the antennas on Hoag Hospital would be better. Mr. Sherman stated that it would not and that they would be better on City Hall or across Coast Highway on the commercial development. He stated that there are other viable alternatives and the City Council should listen to the residents. Wendy kaiser stated that she has concerns for the casting of the light on Superior Avenue if the height of the bulbs is changed. Additionally, she asked if the streetlight poles would be breakaway poles, in the case of a vehicle accident. Ms. Kaiser stated that she'd like to see a depiction of what the proposal would look like. She stated that other locations and alternatives should also be looked at, although she does agree with using public property when possible for the revenue benefits. Volume 56 - Page 1280 City of Newport Beach City Council Minutes October 12, 2004 INDEX Mr. Gonzalez displayed several renderings showing what the proposal would look like. Council Member Rosansky confirmed with Mr. Gonzalez that the bulbs would be lowered from 32 feet to 30 feet with the proposal. Mr. Gonzalez stated that the antennas are 56 inches long by eight inches wide, and would be placed at the top of the poles. He further clarified that the bottom of the antennas would be at 30.5 feet. Mr. Gonzalez stated that Cingular has done a lot of compromising and that the proposed design is compatible with the surrounding area, complies with the wireless code and has been modeled after a site that has already been approved by the City. Holly Gerguss stated that installing the antennas in commercial and manufacturing zones should be considered. She specifically suggested that the Hoag Hospital site be considered. Ms. Gerguss asked if Coastal Commission approval was received for the proposed installation. Lastly, she stated that it is difficult to see how the proposal will look and she can understand the residents' frustration. Jeff Davis suggested that the use of the 300 -foot tower at the City's maintenance yard be considered. Monique Butrose stated that her main concerns are for the health and safety of the Villa Balboa residents. Additionally, she urged the City Council to look at the Coastal Commission guidelines and determine if a permit is needed for the installation of the antennas. Assistant Planner Brown introduced Jonathan Kramer, the technical adviser retained by the City. At the request of Mayor Ridgeway, Mr. Gonzalez confirmed that the antennas would be four feet eight inches tall by eight inches wide by four inches thick. Acting City Attorney Clauson added that City standards would have to be met in regards to the construction of the poles. She stated, however, that there may be an issue with the lighting that wasn't considered and that this would have to be addressed by the Public Works Department. Mr. Kramer, RF Engineer, stated that he evaluated the proposals from both of the carriers, singularly and cumulatively, and has determined that the projects fully comply with FCC rules. In response to comments made by Mr. Rozecho, Mr. Kramer stated that cellular antennas involve non - ionizing radiation whereas x -rays involve ionizing radiation, which is a substantial difference, that the FCC preempts in this area anyway and that any exposure would occur directly in front of an antenna. He concluded that the radiation impact is a non - issue. Mr. Kramer further noted that both cellular companies are not looking to provide new coverage, but to enhance their network capacities, which is very location and height specific. He explained that the coverage with the current proposal is similar to the coverage with the 50 -foot flagpole alternative because the streetlights are further up the hill on Superior Avenue. Volume 56 - Page 1281 City of Newport Beach City Council Minutes October 12, 2004 100 y►i Council Member Rosansky asked if the streetlight poles could be lowered and located farther up the hill, and still provide similar coverage. Mr. Kramer stated that there are limitations on how far away the antennas can be from the base station equipment, and that they are probably close to their limit with the current proposal. Council Member Rosansky asked if the same poles could be used, but lowered to 32 feet. Mr. Kramer stated that the coverage change would probably not be dramatic, but noted that he would also expect requests for poles farther up the hill at some point in the future. Council Member Daigle asked Mr. Kramer to address the benefits of 911 and how the Federal mandates are being phased in. Mr. Kramer stated that E -911 service is a requirement of the FCC for carriers to identify to 911 operators the approximate location of a caller. He noted that the addition of sites enhances a carrier's ability to determine location. In response to earlier comments, Assistant City Manager Kiff stated that the Council's policy actually prioritizes the installation of cellular antennas on City buildings. He added that the policy also discourages the use of mono poles, such as fake palm trees. Linda Janowsky stated that there are so many unknowns with the proposal and that the residents are concerned for their safety. She specifically noted the Hoag Hospital methane gas tower and the lighting on Superior Avenue, and stated that these issues need to be addressed properly. Mr. Gonzalez stated that the proposal falls within the requirements of the FCC. In response to the lighting on Superior Avenue, he noted that the proposal actually adds one streetlight and that the plans have been routed to the Public Works Department for their review. Mr. Gonzalez stated that moving the antennas farther up the hill would affect the spacing of the streetlight poles, which is a concern of the Public Works Department. Council Member Webb asked if the antennas could be installed on Superior Avenue closer to Placentia Avenue. Mr. Gonzalez stated that the bluff would cause some of the coverage to be blocked. Carol Roth stated that she is concerned for the precedence that would be set by approving the current proposal and the possibility of antennas being installed farther up the hill in the future. Assistant Planner Brown stated that the telecommunications ordinance does limit the number of carriers that can be allowed at a specific site to three. Ross Ribaudo stated that the residents of Villa Balboa have been subjected to construction since 1991 on two sides of the complex, and that the proposal would cause construction on a third side. He stated that the residents want to make sure that they're protected and that Volume 56 - Page 1282 City of Newport Beach City Council Minutes October 12, 2004 safety tactors have been considered. tie asked the Uity Uouncil to consider their frustration and concerns. Council Member Nichols stated that the public will learn that many antennas already exist in the community, such as at churches and schools, and that radiation is not a problem. Secondly, he stated that the gas plant at Hoag Hospital provides one of the safest and cleanest types of fuel available. Motion by Council Member Rosansky to continue the item to November 9, 2004, to allow the applicant time to study whether they can make the project work at 32 feet, to provide plans showing actual dimensions of where the light standards will be, to coordinate the lighting with the Public Works Department and to explore the possibility of installing the antennas at Hoag Hospital. Mayor Pro Tem Bromberg agreed that additional study should be required. Mr. Gonzalez confirmed that four weeks would provide adequate time for Cingular to do the additional study. Council Member Daigle stated that the aesthetics of the project design are good for a cellular antenna installation and that the reasons for providing the service should be taken into consideration. She explained that these include instantaneous communication, constant connectivity and a lifeline for public safety. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Mayor Ridgeway Noes: Nichols Abstain: None Absent: None 17. UPDATE — SANTA ANA RIVER SAND PROJECT. Assistant City Manager Kiff stated that the Santa Ana River Project was discussed at the City Council meeting on August 24, 2004. At the direction of the City Council, staff worked with the Army Corps of Engineers and the contractor in an attempt to find an alternative method for disposing of the sand. He reported that an alternative method has been agreed upon and a dredging company will work with the contractor. Assistant City Manager Kiff displayed a schematic showing where the pipe and the proposed fill area will be located. Council Member Rosansky commended staff on finding an alternative method and the residents for bringing the matter to the City's attention. Assistant City Manager Kiff stated that the environmental assessment is available, and that copies can be obtained by calling his office at 949 - 644 -3002. Volume 56 -Page 1283 INDEX (100 -2004) City of Newport Beach City Council Minutes October 12, 2004 Council Member Nichols expressed his dissatisfaction with the alternative method that was selected and stated that the sand will not go where the City wants it to go. He stated that placing the sand on sand would have made it useful, and that it is unknown how much of it will now reach the beach. He noted that sand was placed around some fire rings recently and it was acceptable to everyone. Additionally, he stated that sand from the river won't be available again because the Santa Ana River will be dry, Council Member Nichols stated that the beaches need to be built up and protected in case of storms. Mayor Pro Tern Bromberg stated that he has faith in the Army Corps and their experience. He complimented Council Member Rosansky for his involvement. Mayor Ridgeway recessed the meeting at 10:00 p.m. and reconvened the meeting at 10:10 p.m. with all Council Members present. 18. MARINAPARK RESORT & COMMUNITY PLAN AD HOC MARINAPARK LEASE NEGOTIATION COMMITTEE REPORT (contd. from 9/28/04). Former City Attorney Burnham stated that in 2003, the City Council authorized the Ad Hoc Marinapark Lease Negotiation Committee to enter into pre - election discussions with proponents of the Marinapark Resort about possible terms and conditions of a lease that might be approved for the property. He explained that this was done to give voters additional information prior to voting. Mr. Burnham stated that agreement was reached on a number of issues. He introduced Kim Thompson of Rutan and Tucker, a real estate attorney, who advised the committee and staff on ground lease issues, and Cal Hollis of Keyser Marston who evaluated the economics of the project and advised on economic terms and conditions. Mr. Thompson stated that in 2000, the original agreement was entered into in response to the request for proposals. He stated that there was an amendment to the 2000 agreement and then an agreement in 2003, which is currently the operative agreement since the 2000 agreement had a three-year term and has expired. Mr. Thompson stated that the first issue that has been raised is the use of the acronym "LLP ", Limited Liability Partnership, after "Sutherland Talla Hospitality ". Mr. Thompson explained that when Sutherland Talla Hospitality responded to the request for proposals, they referred to their entity as a joint venture general partnership. The agreement that was prepared by the City in 2000, used the acronym "LLP ". It has been determined that the source of the error related to a typing error by the City Attorney's office. He noted that the agreement that was executed in 2003 did not include the acronym 'LLP ". Mr. Thompson stated that the use of "LLP" has no legal significance in this situation. Mr. Thompson stated that another issue that has been raised relates to compliance of the City Charter with regard to the signing of the 2003 Volume 56 - Page 1284 i u lysq C -3389 Marinapark (38/100 -2004) City of Newport Beach City Council Minutes October 12, 2004 INDEX agreement. He explained that the City Charter requires that any agreement that the City enters into must be signed by the Mayor, by the City Clerk or by an officer or officers designated by the City Council to sign the agreement. Mr. Thompson stated that the facts in this situation and the determination of any violations would have to be made by a judge. Mr. Thompson stated that another issue that was addressed relates to the assignment provision and if it has been violated. He stated that the request for proposals was responded to by Sutherland Talla Hospitality, which was described as a joint venture between Stephen Sutherland and Michael Talla. In July of 2004, Mr. Talla resigned from the project and the partnership. Mr. Thompson stated that it could have resulted in a violation of the assignment provision, but it's at the sole discretion of the City Council to approve the assignment. Mr. Thompson stated that the agreement is an exclusive right to negotiate and only gives the developer a framework to work with. He stated that the negotiation of a ground lease would require that any issues be resolved. John Buttolph stated that the City entered into a series of agreements with a nonexisting entity, and that the 2003 agreement was altered and not attested to by the City Clerk. He stated that these are major issues and there's a problem with the documents and the City's actions in entering into these agreements with the developer. Mr. Buttolph stated that the errors go to the heart of the enforceability of the contract and that there is no contract with Mr. Sutherland. Secondly, he referred to the resolution that approved the ballot measure and stated that a public vote is only required after the City Council has approved a project. In this case, the project has not been approved by the City Council and Measure S is not being complied with. Mr. Buttolph suggested that independent counsel be appointed to look into the contract matters and the manner in which the measure was placed on the ballot. Mr. Burnham stated that the Measure S guidelines have been complied with and Mr. Buttolph should be aware of this, since he helped draft the guidelines. Allan Beek referred to the cost estimates for a passive park at the Marinapark site that was included with the staff report and the other alternatives being proposed by some members of the community. Mr. Beek stated that the opponents to Measure L aren't looking at any specific alternatives for the site, they're only looking to involve the community in determining what the best use of the parcel would be. He stated that it has been frustrating that the City Council has refused to enter into such a process. Council Member Heffernan explained that he was the one that asked the City Manager to present the cost estimates for a park and that he did so out of fairness to the voters. He stated that the voters should know that a park will cost money and they should understand both sides of the Volume 56 - Page 1285 City of Newport Beach City Council Minutes October 12, 2004 INDEX issue before casting their vote. Mr. Beek thanked Council Member Heffernan for the clarification, because he had assumed that the cost estimates were presented at the request of the proponents to Measure L. Council Member Nichols stated that a park will cost money and he felt that a cost estimate was appropriate to present. Geoff Davis stated that opponents to Measure L are using a frivolous legal maneuver and intimidating tactics in an attempt to disrupt and /or overturn the popular public vote. Mr. Davis noted that signs in support of Measure L have been stolen from residents lawns. Additionally, he stated that the campaign statements for the Protect Our Parks group reveal that 83% of the funds have come from the owners of the mobile homes at Marinapark and their businesses. Mr. Davis stated that he only wants the vote to be conducted fairly and that residents are hesitant to put Yes on L signs on their front lawns for fear of vandalism. Mayor Ridgeway stated that there is a tremendous responsibility for all the voters in the City to review the project and not be swayed by sentiment, hatred, dislike or character assassination. He expressed his frustration that a respect for the process has been lost. Tom Billings stated that the opponents to Measure L are also being harassed. He stated that some of the comments by the opponents that are seen as personal attacks are, in his mind, due diligence on the qualifications of the hotel proponent. Mr. Billings stated that Protect Our Parks has a plan to preserve public parkland from becoming a private commercial hotel. He stated that a wide range of park concepts have been discussed and the ultimate design should be decided in a community planning process. He stated that residents in all parts of the City should be concerned that other parks could also be developed. He urged all residents to vote No on Measure L. Chester Salisbury stated that his main concern with the proposed project is the timeshare aspect. He stated that there's a huge amount of profit to be made in the timeshare business, but it's a flawed industry and the people who own the land don't make the profit. He stated that the timeshare industry is driven by greed and high pressure sales, and 35% to 50% of the profits go to the developers. The land owner, which in this case is the City, only receives money for the land lease. Louise Fundenberg, President of the Central Newport Beach Community Association (CNBCA), stated that the Marinapark site is the last open beach on Balboa Bay and it should remain public. She reported that 97% of the CNBCA members who attended their meeting want a No vote on Measure L. Craig Rager stated that the council members have a difficult job because they have to do what's in the best interest of the City while also doing what's in the best interest of the citizens. He stated that giving the land away on a 50 -year lease wouldn't be in the best interest of the City because of the value of the land. He stated that selling the land would Volume 56 - Page 1286 City of Newport Beach City Council Minutes October 12, 2004 INDEX be in the best interest of the City. Mr. Hager stated that he and the opponents to Measure L are in support of open land. He stated that bay access is limited and should be preserved for future generations. Jim Hildreth stated that he doesn't like change and that he likes things the way they are. He questioned who would have the amount of money needed to rent rooms at the proposed hotel. Dr. Patricia Frostholm stated that Mayor Ridgeway doesn't represent the wishes of the citizens of Newport Beach by supporting the proposed hotel project. She explained that in the vision workshops, the majority of the citizens voted against more hotels. Dr. Frostholm stated that the City Council believes that development is progress, but she urged them to listen to the young people in the community who are not motivated by money and only want to beautify Newport Beach. Dr. Jan Vandersloot expressed his opposition to Measure L. He stated that the Marinapark site is eight acres of land that is zoned for park land, but that this would be changed to hotel use if Measure L passes. He stated that opponents to Measure L are trying to bring to light the facts of the matter. As examples, he stated that he only learned at the current meeting that Mr. Talla submitted his resignation in July of 2004, that the use of "LLF was a clerical error and that the City is dealing with an individual, Mr. Sutherland. Dr. Vandersloot added that the finance sources of the proposed resort are still unknown. Lastly, Dr. Vandersloot objected to a community center being included in the cost estimates for a park. He stated that if it is removed from the estimates, it cuts the total cost in half. Joe Rybus stated that proponents of Measure L have stated that over 50 years, the hotel will generate $100 million. Citizens of Marinapark offered $1.7 million per year, which would equate to $146 million over 50 years. Mr. Rybus presented other figures, which showed that the Marinapark mobile home park would generate more revenue than the proposed resort. Secondly, Mr. Rybus calculated that the proposed resort would generate 900 cars on weekend days, which would create more traffic in the area. In response to Mayor Ridgeway's questions, Mr. Burnham stated that the State Lands Commission staff has determined that a substantial portion of the Marinapark site is tidelands, which means that the mobile home park is a prohibited use. Secondly, he stated that the mobile home park tenants submitted a proposal in response to the request for proposals that proposed increases to their rents. City Manager Bludau recalled that the rent offered was approximately $1.1 million per year. Stewart Berkshire stated that he was the one that made an offer to the City Council to negotiate a long -term lease with the mobile home park residents. He stated that he was aware of market rent and was able to present solid numbers. Mr. Berkshire stated that the residents also hired their own lawyer and it was determined that the mobile home park was on uplands, not tidelands. He stated that the State Lands Volume 56 - Page 1287 City of Newport Beach City Council Minutes October 12, 2004 INDEX Commission has not made a decision on the matter and there is no order to remove the mobile home park. Council Member Heffernan questioned how the opponents to Measure L will react if Measure L is defeated and they have to make a choice between a mobile home park and a park. John Rettberg, mobile home park resident, stated that the mobile home park proposal is in the best interest of the City. He added, however, that if the City decides to have the mobile home park removed, it will have to do so in accordance with the law. Additionally, Mr. Rettberg noted that when he signed his lease, it was clear that the City intended to convert the site to a public recreation area. Phil Arst stated that the City Council has misinterpreted Measure S by placing the Marinapark matter on the ballot. He stated that the project would have to have been approved by the City Council prior to it being submitted to the voters and that the election is, therefore, illegal. He agreed with Mr. Buttolph's previous comments about the 2003 contract being altered and suggested that outside counsel look into the matter. Secondly, Mr. Arst stated that the facts were supposed to be presented to the people in order for them to vote intelligently, but noted that absentee ballots have already gone out and the City has not met its obligation to provide full disclosure to the voters. Craig Morissette stated that the planning process that was used for determining what should be placed on the Marinapark site started with the City making a decision to place a hotel on the site, and not by asking the community what they'd like to see. He stated that the general plan update process involved the community and was an outstanding achievement, but it came two years after the decision was made to sign the exclusive agreement for a hotel. Secondly, Mr. Morissette stated that the "personal attacks" mentioned earlier were really a part of sound business practice and an evaluation of the professional and financial qualifications of the party that the City has entered into an agreement with. He stated that this should have been done by the City beforehand. Lastly, Mr. Morissette noted that Mr. Sutherland didn't strike through the "LLP" when signing the contracts. Mr. Burnham stated that the process prior to the signing of the 2000 agreement involved a request for proposals, the receipt and evaluation of eight proposals, a narrowing down of those proposals to four, further evaluation and the selection of the hotel proposal. He noted that these activities took place at public meetings and there was a lack of public support for a recreation use consistent with the Parks, Beaches & Recreation Commission's proposal. Mayor Pro Tern Bromberg expressed his disappointment with Mr. Buttolph's comments and his attack on the integrity of the City Council. He encouraged the public to learn the issues and to cast their votes based on the facts. Volume 56 - Page 1288 City of Newport Beach City Council Minutes October 12, 2004 INDEX Mayor Ridgeway thanked everyone for attending. O. CURRENT BUSINESS 19. CONSIDERATION OF OCTOBER 26, 2004 MEETING TIME. (100 -2004) In response to Mayor Ridgeway's question, City Manager Bludau stated that he would be discussing the agenda for the meeting with staff and would attempt to keep the items to a minimum. He would also propose that there be no Study Session and no Closed Session, unless necessary. Jim Hildreth agreed that the Marines should be supported. Motion by Council Member Webb to hold a Special Council meeting on October 26th starting at 4:00 p.m., with the intention that the meeting would last no later than 6:15 p.m. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None P. ITEMS REMOVED FROM THE CONSENT CALENDAR 7. 2004 -2005 SIDEWALK, CURB & GUTTER REPLACEMENT — C -3718 AWARD OF CONTRACT (C- 3718). 2004 -2005 Sidewalk, Curb, Council Member Nichols stated that the map included in the staff report Gutter doesn't clearly depict where the work will take place. He asked for a Replacement clarification. (38/100 -2004) Mayor Ridgeway suggested that council members contact staff prior to the meeting for such simple questions. Council Member Webb stated that the annual sidewalk replacement project establishes a number of projects that need to be performed, and that the map shows the project area. Motion by Council Member Webb to 1) approve the plans and specifications; 2) award the contract (C -3718) to Damon Construction Co. for the total bid price of $304,525 and authorize the Mayor and the City Clerk to execute the contract; and 3) establish an amount of $30,500 to cover the cost of unforeseen work. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, ?Nichols, Mayor Ridgeway Noes: None Volume 56 - Page 1289 City of Newport Beach City Council Minutes October 12, 2004 Abstain: None Absent: None Q. MOTION FOR RECONSIDERATION - None R. ADJOURNMENT - at 11:50 p.m. to October 26, 2004 at 4:00 p.m. * * * * * * * * * * * * * * * * * ** The agenda for the Regular Meeting was posted on October 6, 2004, at 2:45 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 1290 INDEX City of Newport Beach City Council Minutes October 12, 2004 INDEX THIS PAGE LEFT BLANK INTENTIONALLY Volume 56 - Page 1291