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HomeMy WebLinkAbout03/22/1993 - Regular MeetingCITY OF NEWPORT BEACH COUNCIL MEMBERS V ik�O� REGULAR COUNCIL MEETING PLACE: Council Chambers %\A \S TIME: 7:00 P.M. DATE: March 22, 1993 Present Ix Ix Ix Ix Ix Ix J x J ROLL CALL Motion x All Ayes Ayes x • • Reading of Minutes of Regular Meeting of March 8, 1993, was waived, approved as written, and ordered filed. Reading in full of all ordinances and resolutions under consideration was waived and the City Clerk was directed to read by titles only. PUBLIC HEARINGS Mayor Turner opened the public hearing concerning USE PERMIT NO. 3476 - REQUEST TO PERMIT THE CONTINUED OPERATION OF AN EXISTING INDEPENDENT MASSAGE ESTABLISHMENT on property located in the M -1 -A District. The proposal also includes a request to waive the location requirement which requires that independent massage establishments be at least 500 feet from another independent massage establishment; located at 4301 Birch Street on the northwesterly side of Birch Street, between Dove Street and MacArthur Boulevard, across from the Newport Place Planned Community. Report from the Planning Department with attachments and appeal application of Candice H. Nguyen. Robin Flory, Assistant City Attorney, in response to issues raised in the subject appeal, summarized as follows: "With regard to proper notification of hearing prior to enactment of Ordinance No. 92 -2, the notice that was provided, other than the published notice that was required by the Municipal Code, was given to each of the individual operators prior to the time the Planning Commission met. In that same notice, the operators were also advised of a meeting to be held with staff to discuss the proposed ordinance. In addition, copies of the ordinance were mailed to all operators who had requested same. Both the Planning Commission and City Council held public hearings on the ordinance and many of the massage operators were represented by Counsel at those hearings. "Chapter 20.68 of the Municipal Code which requires the use permit provisions, was adopted on February 24, 1992 and effective March 25, 1992. The ordinance provides certain zoning districts where massage establishments can operate and a location restriction that they cannot be within 500 feet of one another without approval of a waiver. The ordinance also provides one year for all of the existing businesses to terminate or come in compliance with the ordinance. Volume 47 - Page 41 MINUTES INDEX U/P 3476 Massage Appeal/ 4301 Birch (88) — CITY OF NEWPORT BEACH COUNCIL MEMBERS March 22, 1993 ROLL CRLL s MINUTES T\RICY "Pursuant to Municipal Code 4301 Birch provisions contained in Chapter 20.68, the City is not required to provide notice to the current owner of prior acts, but it should be noted that the applicant under consideration in this hearing, was • on notice for the use permit requirement as well as the one year requirement to come into compliance. "It has been raised that the purpose of the ordinance is to put massage establishments out of business; however this is not true, and Section 20.68.005 clearly sets forth the intent of the ordinance. Information regarding prior activities at a massage establishment is available for the asking from the License Division or the Police Department, and anyone who is going to purchase a massage business would want to exercise due diligence. "It is up to the City Council to determine the extent to which the information provided constitutes sufficient notice to the applicant and whether or not those prior activities affect the current operation of the business." George Grove, Attorney for the • Applicant, 7095 Hollywood Boulevard, Suite 773, Hollywood, stated that the principle issue which he is concerned about deals with proper notification. It is true that there is no Code requirement which states that the City must give an operator notice of prior activities in a particular location, however, he felt the City is attempting to impose strict liability on the applicant that that party must know what happened before. The applicant under consideration (as well the the applicant in public hearing No. 2) was not involved in any prior commission of act, had no knowledge of any prior commission of act and do not condone such acts. The City was aware at the time this particular applicant applied for a license that there were prior acts at this location, and if the City wanted to deny the application at that time, they could have done so. With respect to the current technicians who work for the subject applicant, he stated that they are all permitted and licensed. He referenced a letter written to Revenue Manager Glen Everroad dated February 11, 1992 regarding notification, and stated that if the City is going to allow • businesses, but require that the applicants of those businesses have knowledge of prior activities conducted at those establishments, he felt that was an overburden on the part of the applicant. Volume 47 - Page 42 CITY OF NEUORT BEACH COUNCIL MEMBERS C� CRLL s' March 22, 1993 ROLL MINUTES TNTIFY Mr. Grove further stated that if the 4301 Birch City does not want the business because of prior conduct, then why does the City allow the applicant to obtain a business license to operate the establishment, and then deny the applicantion at a later date because the operator is • attempting to comply with the new law relating to use permit application. To deny the subject applicant a privilege to operate would be a violation of constitutional rights in his opinion. With respect to Asiatic applications, Mr. Grove commented that out of 23 applications, there were 12 of Western descent and 11 of Asiatic descent, and that no Western applications were denied, but 3 Asiatic's were denied. The denials of the Asiatics were based upon alleged acts similar to acts which occured in Western applications as well, and he would question the Planning Commission's approval of the Western applications. With regard to the SP -6 zone which came into effect at the same time Chapter 20.68 became effective, he stated there were 3 Asiatic massage establishments in operation, but as a result of the SP -6 zone, they are now out of business, as well as more than 50% of the Asiatic operators are out of business. Mr. Grove stated that until January 1993, the City provided massage tests in • a translated version to Asiatics. Nov, a translator must be hired by the massage applicant, and it is his understanding that this change in testing came as a directive from the Police Department. He suggested that if there are translated versions of the massage test available, they should be given to the Asiatics, thus saving the applicant the expense of a translator. It is also his understanding that the Clerk's office has been calling some of the operators requesting proof of malpractice insurance as a requirement of the Municipal Code which, in his opinion, is not the case after reading the ordinance. Assistant City Attorney stated that when a new massage operator comes in to apply for a license, the City cannot deny that permit under the Code regulations, unless it is based upon one of the enumerated provisions in the Code. The activities that occurred before that with regard to the regulatory ordinance are not one of those reasons. In response to inquiry by Council Member De ay, Mr. Grove stated that if an • applicant were being brought before the City Council with a violation of 647(b) (prostitution), and there was a conviction, the Council has every right to revoke that applicant's license and use permit; however, he does not feel this is the situation in the application under consideration. Volume 47 - Page 43 COUNCIL MEMBERS MWO' N\\CqL • • CITY OF NEWPORT BEACH March 22, 1993 In reply to question raised by Council Member Hedges, Mr. Grove stated that the subject applicant took over the massage business at 4301 Birch Street in July 1992, and that no one has been convicted of prostitution since that July 1992 date; however, he does not deny that there were parties arrested for prostitution prior to that date under a different ownership. The present employees are all permitted and licensed and none of those employees have ever been convicted of prostitution. Revenue Manager Glen Everroad, addressed the Council and stated that to his knowledge, following a criminal history investigation, none of the current massage technicians employed by the subject applicant have ever been convicted of prior prostitution. Paul Ingels, 2405 Glendale Boulevard, #217, Los Angeles, addressed the Council and stated that he was a private investigator hired by Mr. Grove to do a preliminary investigation of the massage establishments in the SP -6 zone (portion of Cannery Village). He stated that following his survey of the massage businesses which were zoned -out, it was his feeling the City is targeting against Asiatics. Also, following a record search of certain Council Members, it was indicated there could be some Council Members who may have a business or financial interest in the zoned -out area. In addition, regarding the massage technician test given by the City, he received information from the Revenue Department that the instructions to give the test in English only was ordered by the Police Department. The Revenue Manager advised that the testing conducted by their office for massage technicians since 1987, provided that an applicant could bring a court certified translator to the testing process. In 1987 when they began the testing, the intent was to confirm that an applicant for massage had received the training they represented they had received by way of diploma and transcript from a State certified school. There are currently three State certified schools of massage that are under investigation for selling diplomas, and as a result, about six months ago, his office began revisions to the test which was prepared by a national certification examination committee. The reason the new test was not provided in Vietnamese or Korean is because the previous test cost the City $1200 for translation into Korean, and translation into Vietnamese was somewhat higher. They have not precluded access to translators by the massage applicant's. He also noted that the Police Department has absolutely nothing to do with the testing process. Volume 47 - Page 44 MINUTES 4301 Birch COUNCIL MEMBERS MR0\1 VM*\k • CITY OF NEWPORT BEACH March 22, 1993 With regard to the Revenue Division producing documentation to applicants for massage operator permits, the Revenue Manager stated this is done freely, and pursuant to the Public Records Act. In November 1991, their office did transmit to 43 massage establishments thoughout the City, notification of proposed revisions to Chapter 5.50 (Massage) and that a new chapter to Title 20 was going to be discussed. Several meetings were held with the industry, as well as their counsel, in the development of Title 20 regulations. With regard to malpractice insurance as referenced by Mr. Grove, he stated it is the Revenue Division who collects insurance requirements (not the City Clerk's office), and since 1986 they have required evidence of liability insurance covering acts conducted by massage service and not malpractice insurance. In response to question raised by Council Member Hedges regarding Finding for Denial No. 4, the Assistant City Attorney advised that there had been a typographical error and that the Finding should read: "On June 11, 1992, nine months subsequent to the warrant, and three months subsequent to the effective date of Ordinance No. 92 -5, another undercover operation resulted in arrest for solicitation of prostitution." Regarding Finding for Denial No. 8, the Assistant City Attorney stated that the technician license referenced in this Finding expired in July 1992 and is not currently employed by the current applicant. Sgt. Doug Thomas, Newport Beach Police Department, addressed the Council and stated that Asians are not being targeted against as alluded to in previous testimony, and that most of the 22 massage parlors within the City that they are concerned about are Asian staffed. He stated that everytime there is trouble, massage operators change. They have not been in the subject business since June 1992; also, the Police Department has nothing to do with the massage testing process. Hearing no others wishing to address the Council, the public hearing was closed. The Assistant City Attorney stated that the report from the Planning Department shows that 30 of the massage establishments in the City are required to obtain a Use Permit under the new Ordinance No. 92 -5. As of this date, 23 Use Permit applications have been filed; 19 have been approved; 2 have been denied and 2 are pending. Of the 23 applications filed, 12 of those approved Volume 47 - Page 45 MINUTES INDEX 4301 Birch CITY OF NEWP0RT BEACH [� o 1ll[1Ji =W1dWyl:l:[:�.� S' March 22, 1993 ROLL CRLL MINUTES INDEX are of Asian descent. The Planning 4301 Birch Commission also approved a one -year extension for each of the three massage establishments located in the SP -6 zone. The purpose for the SP -6 zoning was because the area is a mixed - residential use. on x Mayor Turner stated that this particular massage establishment is in his Councilmanic District; he has seen it grow over the past few years, and he does not buy the allegation that the City is targeting Asians. There is also no question that this business has had a history of arrests for prostitution, and as a result, he will not support the appeal for a Use Permit. Therefore, he moved to sustain the decision of the Planning Commission and deny the appeal, based on the Findings for Denial as revised In the foregoing. Council Member Debay stated that having been on the Planning Commission when the subject ordinance was developed, it was her understanding that the reason the Commission went through this procedure was so that a Use Permit could be put in place, and if a massage technician or operator were convicted of prostitution, the City could revoke the Use Permit and put the establishment out of business. She stated she felt she must vote to grant the Use Permit, but she must caution the applicant that if the Use • Permit is violated and the applicant is convicted of prostitution, that Use Permit will be revoked. Motion x Council Member Hedges moved a substitute motion to defer action on this item until additional information is received relative to the transfer of ownership of this subject business. The City Attorney stated that the City Council is limited to the information in the record and of any testimony presented this evening, and he would encourage the Council to not speculate as to the nature of the transaction which caused the present applicant to come into ownership of the business, unless the City were able to prove there was some connection between the current owner and prior owner which has not been done. In view of the foregoing, the substitute motion was withdrawn. Ayes x x x x x x The motion made by Mayor Turner was Noes x voted on and carried. • 2. Mayor Turner opened the public hearing U/P 3478 concerning USE PERMIT NO. 3478 - REQUEST Massage TO PERMIT THE CONTINUED OPERATION OF AN Appeal/ EXISTING INDEPENDENT MASSAGE 4222 Campus ESTABLISHMENT on property located in the (88) M -1 -A District. The proposal also includes a request to waive the location requirement which requires that Volume 47 - Page 46 COUNCIL MEMBERS O, :WILW L 1 CITY OF NEWPORT BEACH March 22, 1993 MINUTES Volume 47 - Page 47 INDEX 4222 Campus independent massage establishments be at least 500 feet from another independent massage establishment; on property located at 4222 Campus Drive, on the southeasterly side of Campus Drive between Dove Street and MacArthur Boulevard, across from the John Wayne • Airport. Report from the Planning Department with attachments and appeal application of Myong Cha Drake. Assistant City Attorney Robin Flory requested the record show that her introductory comments made in the foregoing hearing will also apply to this public hearing. George Grove, Attorney for the Applicant, 7095 Hollywood Boulevard, Suite 773, Hollywood, stated that in the previous hearing, it was mentioned that the SP -6 zone implementation was made to keep massage establishments out of residential areas, which he felt was not entirely accurate, inasmuch as there is a western massage establishment in the APF zone which also includes residential properties. He stated the comments he would make regarding the subject applicant are the same as set forth in the previous public hearing where the applicant is being charged with the liability of acts which occurred prior to the applicant taking over the • operation of the business. To deny this applicant a Use Permit based on previous conduct not under her jurisdiction is nobnoxious" to the Constitution and to him. In response to question raised by Council Member Hedges, Mr. Grove indicated that possibly some massage establishments could be fronts for prostitution, but he did not feel these types of businesses should all be lumped into one category, but rather dealt with on a fact -by -fact determination. If in fact this particular location were a front for prostitution prior to the time the new owner took over the business, then the operation should have been shut down by the City at that time. He reiterated that he felt his client should not be punished for prior improper activies conducted at this location. Council Member Debay noted for the record that when this subject matter was considered by the Planning Commission, there was no discrimination against Asians from the Commission's standpoint. • Hearing no others wishing to address the Council, the public hearing was closed. The Assistant City Attorney pointed out that two massage technicians who worked for the previous owner at this location still have active permits which have not been returned to the City, and the City Volume 47 - Page 47 INDEX 4222 Campus CITY OF NEWPORT BEACH COUNCIL MEMBERS Rill l ( R \ \�� \\ �o� \\ March 22, 1993 MINUTES TNTIFY has not received notice from the 4222 Campus operator that they have been terminated and no longer work at this location. Mr. Grove stated that the above referenced technicians do not work for the applicant under consideration; the applicant does not have their permits, nor does she intend to ever hire them back. Motion x Hearing no additional remarks, Mayor Turner moved to sustain the action of the Planning Commission and deny the subject appeal, based on the Findings for Denial contained in the staff report, and requested the record reflect his same comments for opposing this appeal as enumerated in the previous hearing. Council Member Debay stated she will also vote against this motion for the same reasons as stated in the foregoing hearing. Ayes x x x x x x The motion was voted on and carried. Noes x PUBLIC COMMENTS 1. The following persons addressed the NOW /Sexual Council regarding sexual harassment in Harassment the workplace and violence against women, particularly in the Newport Beach • Police Department: Lisa McClanahan, Coordinator of Bayview NOW Helena Roberts, resident of Santa Ana Billie Jean Thompson, member of Bayview NOW Tamara Mason, Chairman of NOW Richard Riggs, resident of Newport Beach Anita Astorga, 28001 Via Del Agua, Laguna Niguel Some of the concerns of the above speakers were; 1) their desire for freedom from discrimination, violence and sexist terrorism, 2) how long it took the City to implement an anti - sexual harassment training program, 3) Council Members' comments regarding the sexual harassment issue for the past seven months to the media, 4) the fact that no fair offers have been made to the plaintiffs, 5) the_ need for a comprehensive sexual harassment policy, and the importance to respond in a proper manner to claims of sexual harassment, and 6) that women be actively recruited in the search for the new Police Chief, and that the interview panel that selects the new Chief include • even numbers of men and women. Capt. Jim Jacobs, Acting Chief of Police, spoke in response to this issue, and said the Newport Beach Police Department met with NOW and thought they had reached an agreement on most issues; Volume 47 - Page 48 COUNCIL MEMBERS CITY OF NEWPORT BEACH MINUTES March 22, 1993 Volume 47 - Page 49 and therefore, he was surprised at the speakers' comments. He said that he and the Police Department are committed to a workplace free of discrimination. Mayor Turner commented that he has been • very much involved in this issue since it broke in September 1992, and he has followed it very closely. However, because of the lawsuits pending, he is not in a position to disclose everything that has taken place. The City has gone out of its way to find out what the facts are and it will continue to do so. The City also has a sexual harassment policy that was adopted in 1987 and an anti - sexual harassment training program is coming to all employees. Council Member Sansone commented that the day the sexual harassment allegations appeared in the newspaper, he contacted staff at City Hall to see the complaints, but found that the women involved had chosen to contact the media first. Council Member Debay commented that as soon as she was seated on the City Council in November 1992, she was informed in full of this issue, and since that time, it has been the No. 1 priority for the Council. She stated they have all spent a great deal of time reading up on this matter, as well as a vast amount of hours discussing the • subject in closed session. She also felt that the comments quoted earlier by Ms. Thompson were taken out of context by the newspapers. The City Manager gave a brief overview of this issue for the benefit of those not familiar with this case, noting that in late August 1992, he received a request for an independent investigation by two female members of the Police Department into allegations of sexual harassment. An investigator was hired and authorized to proceed within days after this request. With respect to the comments he made to the newspaper regarding this issue, he felt they have been taken out of context. He finds the subject of sexual harassment very disturbing, and no woman or man should have to put up with it in the workplace. With respect to the training program, our first session will be on April 6. Regarding the recruitment of a new Police Chief, the Civil Service Board is actively involved in this process and he has met with them to discuss the qualities the City is looking for in the candidates. • Council Member Hedges stated he felt the Council's actions on this matter speaks loud and clear, and from his standpoint, he is not going to "rant or rave" about an issue that is in litigation. Volume 47 - Page 49 COUNCIL MEMBERS • Motion All Ayes • • x CITY OF NEUORT BEACH March 22, 1993 Dolores A. Otting, representing 5 Star Rubbish, Costa Mesa, addressed the Council and announced that tomorrow the Board of Supervisors will be considering the General Aviation Master Plan Study for the Redevelopment of the General Aviation Facility at John Wayne Airport. She also distributed a copy of a map depicting Works of Improvements - Assessment District No. 92 -1 (Newport Ridge), which was approved by the County last week, and is an area which she felt would sometime be annexed by either Newport Beach or Laguna Beach. She stated the area of concern is that the County is proposing to build a wall that backs up to Coyote Canyon to help alleviate odor and the methane gas. She felt that if Newport Beach were to annex this land, she would suggest the liability issue be investigated thoroughly. CONSENT CALENDAR The following items were approved except for those items removed. ORDINANCES FOR 11MODUCTION Pass to 2nd reading on April 12, 1993: Removed from the Consent Calendar. RESOLUTIONS FOR ADOPTION Resolution No. 93 -12 requesting LAFCO TO APPROVE THE SEAWARD 17 ANNEXATION AND DESIGNATING THE TERRITORY AS UNDEVELOPED PROPERTY PURSUANT TO THE MASTER PROPERTY TAX TRANSFER AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF NEWPORT BEACH. [Report from the Deputy City Manager] 5. Resolution No. 93 -13 supporting FEDERAL LEGISLATION ENDING THE PRACTICE OF IMPOSING UNFUNDED FEDERAL MANDATES ON LOCAL AND STATE GOVERNMENTS and to ensure that the Federal Government pays the costs incurred by those governments in complying with certain requirements under Federal Statutes and regulations. [Report from the Deputy City Manager] 6. Resolution No. 93 -14 authorizing the submittal of an application to CALTRANS AND THE CALIFORNIA TRANSPORTATION COMMISSION FOR THE FUNDING OF THE PACIFIC COAST HIGHWAY/NEWPORT BOULEVARD nMMCHANGE LANDSCAPING, BICYCLE AND PEDESTRIAN FACILITIES PROJECT /1993 -94 TRANSPORTATION ENHANCEMENT ACTIVITIES FUNDING PROGRAM in accordance with the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). [Report from the Public Works Department] CONTRACTSLAGREEMENTS 7. Removed from the Consent Calendar. Volume 47 - Page 50 MINUTES INDEX Wayne Annexation/ Seaward 17 Res 93 -12 (21) Legislation Res 93 -13 (48) CalTrans/ PCH -Npt Intrchug Lndscpg Res 93 -14 (74) COUNCIL MEMBERS 6"N CITY OF NEWPORT BEACH March 22, 1993 MINUTES Volume 47 - Page 51 8. Authorize execution of cooperative OCTA /Bal B1 agreement with ORANGE COUNTY TRANSIT Rehab /23rd AUTHORITY for BALBOA BOULEVARD to 32nd/ REHABILITATION FROM 23RD TO 32ND STREETS; PLACENTIA AND SUPERIOR AVENUES Placentia ' REHABILITATION (CONTRACT N0. 2910). & Superior [Report from the Public Works C -2910 • Department] (38) 9. CLAIMS - For Denial by the City Manager: (36) David Carlos alleging property damage to Carlos his truck on March 3, 1993 (between 7 a.m. and 2 p.m.) from explosion of a transformer or electrical wires where his truck was parked on Short Avenue and Newport Boulevard. Tom and Wanda Flynn alleging that on Flynn January 1, 1993, branches from Eucalyptus tree on City median near 901 Sandcastle Drive in front of their house fell and caused damage to parked car belonging to Lene McKee. Joaquin Garcia alleging claimant's Garcia vehicle was struck in the rear by Newport Beach Police employee at intersection of South Market Street and Pierce Avenue in San Jose, Santa Clara County on September 6, 1992. Jake Patrick Malloy seeking Malloy indemnification from City as a result of claim filed by Barbara Wright regarding bicycle accident near Jamboree Road and • Bristol on August 22, 1991. Kim McClusky alleging damage to vehicle McClusky as a result of gate dropping onto car when motorcycle Police Officer came on right side of automobile at the parking area near Balboa Pier on February 21, 1993. Jennifer Pearlstein alleging her vehicle Pearlstein was damaged by City Police vehicle on Pacific Coast Highway on February 19, 1993. Peter James Piper alleging property Piper damage as a result of raw sewage flooding into home at 1521 Kings Road on December 20, 1992. Michael Pule alleging City failed to Pule monitor the rising water level on December 12, 1992 at intersection of Grand Canal and Balboa, resulting in property damage to his vehicle as the rising water level (high tide) came up above the hubs of his vehicle and entered through the car door seams, causing electrical shorts throughout the vehicle. • Ray Stubbs seeking reimbursement beyond Stubbs impound fee as a result of his vehicle towed in error on September 11, 1992. Volume 47 - Page 51 COUNCIL MEMBERS 1% kX.kXXXX1 • • • CITY OF NEWPORT BEACH March 22, 1993 The following represent claims for reimbursement of back pay allegedly as a result of having to report for duty 30 minutes earlier than regular Police Department shift time for: Don Richard Burdsall, Heil Harvey, Paul K. Henisey, Richard T. Long, and Charles "Todd" Wilkinson. 10. PERSONNEL VACANCIES - For approval: [Memorandum from the Personnel Department] Removed from the Consent Calendar. STAFF AND COMMISSION REPORTS For Council information and approval: 11. Removed from the Consent Calendar. 12. Memorandum from Public Works/Traffic Engineering, regarding amendment to Council Policy S -1, ADMINISTRATIVE PROCEDURES FOR IMPLEMENTING THE TRAFFIC PHASING ORDINANCE. 13. Removed from the Consent Calendar. 14. Memorandum from the Deputy City Manager regarding authorizing the Mayor and City Clerk to execute leases for CITY -OWNED TIDELANDS ABUTTING RESIDENTIAL TATS AT 16 HARBOR ISLAND AND 36 HARBOR ISLAND. For Council information and filing: 15. Removed from the Consent Calendar. 16. RESUBDIVISION NO. 989 - Accept the offer to release and relinquish all access rights to Avocado Avenue to the City of Newport Beach; located at 7 Corporate Plaza, on the northwesterly side of Avocado Avenue, between East Coast Highway and Farallon Drive, in the Corporate Plaza Planned Community. [Report from . the Public Works Department] 17. NEWPORT PIER AND BALBOA PIER REPAIR AND ELECTRICAL SYSTEM REPLACEMENTS (CONTRACT Ho. 2877) - Approve the plans and specifications; and authorize the City Clerk to advertise for bids to be opened at 11:00 A.M. on April 14, 1993. [Report from the Public Works Department] 18. ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE SECOND AVENUE PUBLIC RIGHTS - OF- WAY ADJACENT TO 500 AVOCADO AVENUE, CORONA DEL MAR - Approve the application subject to conditions in the staff report; and City Clerk to have the agreement recorded with the Orange County Recorder. [Report from the Public Works Department] Volume 47 - Page 52 MINUTES PD Council Policy S -1 (69) 16/36 Har- bor Is/ Tidelnds Leases (73) Resub 989 (84) Npt /Balboa Pier Rpr C -2877 (38) Permit /500 Avocado (65) COUNCIL MEMBERS • • IN CITY OF NEWPORT BEACH March 22, 1993 19. ADOPTION OF PLAN PREPARATION AND PLAN CHECK GUIDELINES - Approve the use of ASCE Plan Preparation and Plan Check Guidelines in processing plans and specifications for public works improvements. [Report from the Public Works Department] 20. HARBOR PERMIT APPLICATION 113 -503 - Approve, subject to conditions in the staff report, request by Bud's Landing at 503 Edgewater for an exception to the Harbor Permit Policies regarding signs. [Report from the Marine Department] SPECIAL EVENTS APPLICATIONS - Uphold staff's recommendation to approve the following applications (attached with reports from the Revenue Manager), subject to conditions in the staff report: 21. Application 93 -046 by the Rancho del mar District of the Boy Scouts of America for use of amplified sound at the Castaways site, between Dover Drive and Upper Newport Bay, Saturday, April 17, 1993 from 7:00 - 9:00 p.m. 22. Application 93 -051 by the Newport Mesa YMCA Indian Guides for use of amplified sound at Buffalo Hills Park, Sunday, March 28, 1993, from 12 Noon - 3:00 p.m. 23. Application 93 -079 by David Schultz of D 6 D Farms to operate a strawberry produce stand at the corner of Dover Drive and 16th Street, from March 25 - July 15, 1993, seven days a week, from 8:00 a.m. - 5:00 p.m. 24. COUNCIL TRAVEL AND EXPENSE CLAIM - Approve travel expense claim for Council Member Hart in the amount of $235, to attend Governor Wilson's meeting in Sacramento, March 8, 1993. 25. RA-022, $4,500 - Increase Budget Appropriations to provide for the completion of the R/UDAT STUDY; Planning Department /Professional Technical Services account fund. BA -023, $2,835 - Increase Budget Appropriations to provide for special refuse collection for HARBOR VIEW HOMES; General Services Refuse Collection fund. [Memorandum from the General Services Director] BA -024, $46,000 - Increase Budget Appropriations to INSTALL METERS in the median of Balboa Boulevard between Alvarado and 15th Streets; Public Works - Capital Projects fund. [Memorandum from Offstreet Parking Committee] BA -025, $50,000 - Increase Budget Appropriations to provide for the AIRPORT CONTROL GROWTH FOND; Non - Departmental fund. Volume 47 - Page 53 MINUTES PW /Plan Prep -Plan Check Guide lines (74) Harbor Permit Apl 113 -503 (51) Revenue/ License Spcl Evnts Apl (27) Apl 93 -046 Apl 93 -051 Apl 93 -079 Council/ Trvl /Expns (33) (40) GS /Spcl Trash P/U (44) Offstreet Parking Meters (85) COUNCIL MEMBERS I : so XL% • Motion All Ayes • • go WE CITY OF NEWPORT BEACH March 22, 1993 ITEMS REMOVED FROM THE CONSENT CALENDAR Agenda Item No. 3. Report from the Revenue Manager /Finance Department & Supplemental report after the agenda was printed regarding introduction of proposed ORDINANCE, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 5.13.020, 5.13.040, 5.13.070, 5.13.100 AND 5.13.150 OF CHAPTER 15.13 AND SECTIONS 5.15.020, 5.15.040, 5.15.070, 5.15.100, 5.15.110 AND 5.15.120 OF CHAPTER 5.15 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO OPERATION OF TOW TRUCES AHD OFFICIAL POLICE TOW SERVICES. Council Member Hedges moved to refer this item to the Budget Committee for report back on April 12, 1993. Jody Campbell of Harbor Towing, addressed the Council and stated he had no objection to postponing this item for three weeks. The motion was voted on and carried. 13. Memorandum from the Parks, Beaches and Recreation Director recommending that PARRS, BEACHES AND RECREATION COMMISSION decision be upheld to remove the Star Pine planted in the public right -of -way street end at M Street, together with copy of letter from DuWayne and Elma Ringstad in support of the Lindsays appeal. The City Clerk advised that after the agenda was printed, the following letters were received: Lou Enriquez, 2105 Miramar Drive, in support of the appeal. Mrs. Annette Lindsay, appellant, requesting this item be continued to April 12, so that she can be represented by her attorney. Mr. & Mrs. Connolly, 2061 Ocean Boulevard, requesting this matter be acted upon at this time, inasmuch as their legal counsel will be present. Cynthia Beck Paulsen, Attorney for the Connollys, 2061 Ocean Boulevard, appeared before the Council in favor of removing the star pine tree planted in the right -of -way at the street end of M Street and Ocean Avenue. She stated that Ms. Lindsay, her client's neighbor, installed and maintained all the landscaping at the subject street without a City permit and are in Volume 47 - Page 54 MINUTES INDEX Tow Truck Ordinance (27) PB &R /M St Star Pine (62) COUNCIL MEMBERS I I N. WE %. VE 0 Motion All Ayes • is X CITY OF NEWPORT BEACH MINUTES March 22, 1993 violation of the City's Local Coastal PB &R /M St„ Program. Further, Council Policy L -10 Star Pine requires that any improvement in a public right -of -way must be made pursuant to a City permit. Lastly, the star pine tree interferes with her client's view, as well as the view of the public. As a result, she urged that the Council uphold the decision of the Parks, Beaches 6 Recreation Commission and direct that the star. pine tree be removed. Leonard Connolly, 2061 Ocean Boulevard, addressed the Council and stated that when he purchased his home five years ago, the star pine tree had not been planted, so in essence, it was not already there when he moved in. In view of the request for continuance by Ms. Lindsay, motion was made by Mayor Turner to continue this item to the April 12, 1993 Council meeting. 10. Report from the Personnel Department Personnel recommending approval of One Internal Vacancy Review Technician to fill a new position (66) in the Finance Department. Frank H. Clarke III, Purchasing Manager for the City, addressed the Council and stated that during his employment he has attempted to save tax payer dollars in the purchasing of items for the City; however, he was notified a few weeks ago that he is one of the employees on the layoff list. He has a 4 -year Bachelor's Degree and completed a Purchasing Executive Program at UCLA, and does not think the proposed Internal Review Technician in the Finance Department is needed. He stated he also learned last week that the City is proposing to add a Purchasing Clerk to his office, but at the same time eliminate his position. In essence, two positions are being added and one position deleted; the net cost to the City being $16,000 per year. He recommended that the Internal Review Technician position be put on hold for at least three to four months until the projected budgetary situation is solidified; thereby giving the employees who are being laid off the opportunity to apply for these new positions. Mayor Turner advised Mr. Clarke that City employees will be given the opportunity to compete for the above position. Dennis Danner, Finance Director, stated that the City is beginning its budget review process and there will be a great deal of difficult decisions to make over the next month for the staff, as well as for the City Council. In attempting to reduce City expenditures, he has looked at a lot of areas; one of them being the reorganization of the department to become more efficient. Purchasing is a disbursed function at a number of Volume 47 - Page 55 CITY OF NEWPORT BEACH COUNCIL MEMBERS ROLL CfL s' \\J March 22, 1992 MINUTES TNr FY locations and he felt it was the Personnel opportune time to combine several Vacancy functions and make more efficient use of that time. With regard to the proposed Internal Review Technician, he felt that inasmuch as the City has been vunerable to fraud and waste, the intention of this position is to alleviate some of that. This position has already been approved in the current fiscal year budget, but he has left the position unfilled until now in order to achieve some salary savings to help the City's finances. The position will be open internally to all City employees, and he felt there were qualified applicants on board who could fill the post. The City Manager also added that the City Council will be facing a lot of very difficult decisions in the next few months as to the future, size, shape, and style of this organization. With regard to what is being envisioned in the Finance Department, it is being recognized as a 90 million dollar corporation, and due to the revenue and expenditures handled and disbursed from within this department, there are risks involved. He is, therefore, attempting to address those risks and believes this particular position is a key to do that. Motion x In view of the foregoing comments, A.Ayes motion was made to approve the recommendation to recruit for one Internal Review Technician. 7. Report from the Public Works Department Npt Central recommending approval of additional Library/ ARCHITECTURAL SERVICES FOR CENTRAL Arch Sry LIBRARY (Simon -Vegue Winkelstein Moris C -2778 (SMWM)) - (38) Council Member Hedges referenced the $5,576 being requested for inspection of slate at quarry, and indicated he felt the City should not be responsible for this additional charge. Further, he did not feel that the Council should approve the request for $14,000 as an allowance for anticipated additional services through end of construction, but instead, the staff should come to the Council when the funds are needed and not before the fact. Motion x In view of the above comments, Council Member Hedges moved to approve additional architectural services in the amount of $100,000. Motion x Mayor Turner moved a substitute motion to approve this request as presented, • stating that having been in construction most of his life, he knows that no matter how hard one tries, there are those additional items that come along which are not always anticipated, but in view of the fact that this is an 8 to 10 million dollar project, and it is moving along, he will support the staff's recommendation. Volume 47 - Page 56 CITY OF NEWPORT BEACH COUNCIL MEMBERS March 22, 1993 ROLL CRLL 0 Motion All Ayes Motion All Ayes i Motion All Ayes • MINUTES INDEX Council Policy F -28 (69) Planning_ (68) PCA 777 Drd 93 -2 rrfc /Veh (85) PW/1993 -94 CTFndg Prg (74) With regard to the $14,000 requested for allowance for additional services, the Public Works Director noted that those funds will not be disbursed unless authorized through his department. x x x x x The substitute motion was voted on and x x carried. 11. Report from the Deputy City Manager regarding proposed draft Council Policy,F -28, ECONOMIC DEVELOPMENT POLICY. x Motion was made by Council Member Hart to revise paragraph D on Page 3 to read as follows: "Consider a public relations plan including advertising and editorial placement, partipation In conferences and trade shows, media campaign, direct mail and special events." 15. Report to the City Manager regarding PLANNING COMMISSION ACTIONS OF MARCH 4, 1993. x Motion was made to schedule public hearing on April 12, 1993 for Planning Commission Amendment No. 777 relative to fence heights, etc., and to receive and file remaining reports. NOTE: PCA 777 scheduled for study session discussion on April 12, 1993; legal noticing has therefore been postponed for public hearing before the City Council. ORDINANCES FOR ADOPTION 26. PROPOSED ORDINANCE N0. 93 -2, being, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADDING SECTION 12.24.130 OF THE NEWPORT BEACH MUNICIPAL CODE ESTABLISHING 15 MILES PER HOUR AS THE SPEED I T FOR BACK BAY DRIVE. Recycled report dated March 8, 1993, from the Traffic Affairs Committee. x Notion was made to adopt Ordinance No. 93 -2. CURRENT BUSINESS 27. Report from the Public Works Department concerning the 1993 /94 COMBINED TRANSPORTATION FUNDING PROGRAM APPLICATION. The Public Works Director stated that tonight's Council action represents the start of the first full cycle of the Measure M, non - freeway, non - transit transportation funding program, dealing with local and regional arterial highway improvements. The application process envisions a 5 -year planning time frame Volume 47 - Page 57 INDEX Council Policy F -28 (69) Planning_ (68) PCA 777 Drd 93 -2 rrfc /Veh (85) PW/1993 -94 CTFndg Prg (74) CITY OF NEWPORT BEACH COUNCIL MEMBERS S March 22, 1993 ROLL CRLL MINUTES Twry broken into Tier I and Tier II levels. CTFndg Prg With Tier I incorporating the first two year's projects of specific funding applications and specific funding commitments, if approved. Each project must have completed the bulk of the preliminary planning and environmental • work and essentially be ready to complete the final engineering work followed by construction. Tier II is essentially a planning program in which projects are proposed for the latter three years of the five -year program. The Tier II project concepts are more flexible than are the Tier I. In future years, the Tier II projects would be expected to and be eligible to advance into Tier I to compete for specific funding commitments. The application process does include a new cycle of applications for an updated five -year program every two years rather than yearly. Steve Badum, Civil Engineer in the Public Works Department, addressed the Council and gave an overview of the portions of Measure M program that the City is concerned with, and detailed some of the arterial I project applications. Motion is Motion was made by Council Member Hedges to (1) Adopt Resolution No. 93 -15 Res 93 -15 approving the submittal of the CITY'S 1993/94 PROGRAM APPLICATION TO THE • ORANGE COUNTY TRANSPORTATION AUTHORITY for funding under the Orange County Combined Transportation Funding Program; (2) Adopt Resolution No. 93 -16 Res 93 -16 supporting the submittal of the SR- 55/SR-73 Freeway Interchange Improvement Projects to Orange County Transportation Authority under the ORANGE COUNTY COMBINED TRANSPORTATION FOLDING PROGRAM AND THE REGIONAL SURFACE TRANSPORTATION PROGRAM; and (3) Direct staff to apply for funding the Orange under County Combined Transportation Funding Programs for the various projects as included in the City's application package. In response to question raised by Council Member Sansone, Mr. Badum stated that the proposed project, MacArthur Boulevard /PCH to Ford Road, does include, as an eligible item, pedestrian bridge; however, as stipulated by the EIR, that issue is to be resolved at the City Council level. Regarding the MacArthur Boulevard /PCH to San Joaquin Hills Road project, he stated the design being proposed in the next fiscal year includes all of MacArthur Boulevard from PCH to the Transportation Corridor, and that this • project would be a co -op with the City of Irvine since Ford Road to the Corridor is in their jurisdiction. The plan is to finance the construction of the first segment, which would be from PCH to San Joaquin Hills Road, in the second year of the Tier I program. Volume 47 - Page 58 COUNCIL MEMBERS NOVA\Ik`�\& • • All Ayes • CITY OF NEWPORT BEACH March 22, 1993 In reply to inquiry of Mayor Pro Tem Watt, regarding funding program No. 4, SR- 55/SR -73 Connector Roads, it was stated that the CIOSA agreement contemplates that the funds The Irvine Company is committed to under that agreement will be programmed in large measure determined by the City. That particular project was one that was mentioned as being one for which funding is needed. The incentive for this particular set of improvements however, relates primarily to concerns of the cities of Costa Mesa and Newport Beach and regional needs as well. The most appropriate funding is regional funding (RSTP), but it is felt that the real responsibility belongs to CalTrans, and it is hoped that by providing some early money for both planning and design this will cause that project to happen. The other participants in this program are the City of Irvine, TCA and the County of Orange, with the bulk of the money from the RSTP. Pertaining to MacArthur Boulevard /Smart Street, the Public Works Director commented that MacArthur Boulevard is already designated as a super street /smart street, but this program is dramatically underfunded by the portion of Measure M that is directed to the super streets. Four other super streets in the County had advanced the programs and projects in earlier years ahead of MacArthur Boulevard, The OCTA has now adopted a policy whereby there is a priority for the super street program and will be given to those four streets (Imperial Highway, Beach Boulevard, Golden Lantern, and Moulton Parkway), which means that MacArthur Boulevard will not be able to compete in the super street program, but will be competing in the MPAH program. Even if MacArthur Boulevard would have been found to qualify as a super street, the frontage contributions of The Irvine Company and others would have stil been required to be paid. Hearing no other comments, the motion was voted on and carried. 28. Report from the Public Works Department concerning ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE SANTA ANA AVENUE PUBLIC RIGHTS -OF -WAY ADJACENT TO 3000 CLIFF DRIVE, NEWPORT HEIGHTS. The City Clerk advised that after the agenda was printed, a letter was received from Brion S. Jeannette, Architect for the applicant, requesting this item be continued to April 12, 1993. Volume 47 - Page 59 MINUTES CTFndg Prg Encroachmt Santa Ana/ Cliff Dr (65) COUNCIL MEMBERS Motion All Ayes • • x CITY OF NEWPORT BEACH MINUTES March 22, 1993 INDEX Hearing no objections, motion was made by Council Member Hart to defer action on this matter to April 12, 1993. NOTE: The foregoing item has been resolved in the interim; therefore it will not be brought back on April 12, 1993. 29. Report from the Offstreet Parking Balboa Pier Committee regarding SCHEDULED PARKING Pkg Lot/ PEE INCREASE AT BALBOA PIER PARKING LOT. Fees The City Clerk noted that after the (40) agenda was printed, a response to the above recommendations was received from the Marine Department, as well as a letter from Salisbury Enterprises, Inc., representing Newport Landing. Richard M. Edmonston, Traffic Engineer, noted in his report that the City Council approved a resolution in September 1992 which raised the daily maximum on parking fees for the Balboa Pier Parking Lot. The approved resolution calls for increasing the daily maximum from $6 to $8, effective 3- 27 -93. The proposed increase has been questioned by some business owners and three options are presented for Council action: Leave fee increase in place as currently scheduled; 2. Postpone increase to allow staff to prepare validation proposal; or Rescind scheduled increase and leave fee unchanged. Council Member Debay, member of the Offstreet Parking Committee, indicated she was in favor of Option 2 (validation program) because she did not want to punish the surrounding businesses; however, she was supportive of having the beachgoers pay the $8 fee if they parked all day in the lot. In response to concern raised by Council Member Hart regarding all night parking in the lot, Mr. Edmonton stated that the date is stamped on the parking ticket and there is a maximum seven day stay allowed which is enforced by the Police Department. Also, overnight permits can be purchased for $120 a year. If the Council wants to discourage overnight parking, then the higher rate might accomplish this, as well as free up more spaces in the lot for other users. The City Manager stated that if the Council selects Option No. 2 (validation program), he would suggest that the fee of 6 remain in place for the Corona del Mar lot. To implement a validation program, it would have to be determined what would be the threshold which Volume 47 - Page 60 CITY OF NEWPORT BEACH COUNCIL MEMBERS ROLL CALL S March 22, 1993 MINUTES IM1 9A entitles someone to validation, and it Balboa Pier is something the Council would have to Pkg Lot/ take a "hard" look at. Fees Phil Tozer, owner of Balboa Pavilion, addressed the Council and stated there are 50 merchants in the Central Balboa • area and they are the largest users of the Balboa Parking lot. There is also some misunderstanding as to how much of that lot is used by Marine recreation, and in a study completed by the City in 1985, it was indicated the use as follows: (1) two sport fishing landings - 17 -1/28 (2) beachgoers - 478 (3) residents - 2.88 (4) Catalina boat - 17.28 (5) shoppers - 15.58 Mr. Tozer stated he completed a similar study just a few years ago and came up with almost the same figures. He also felt it was not equitible to leave the Corona del Mar lot at $6 with only one merchant, and increase the Balboa lot to $8 with 50 merchants. The merchants in Balboa probably had the worse year ever economically, and January and February of this year was even worse than last • year, and because of this, he felt it was not the appropriate time to increase the parking fee to $8. Doug Ferrell, representing Davey's Locker, stated that the price for a half -day fishing trip is $20, and a whale watch excursion is $12 and these fees have not been raised in three years. He felt the proposed $8 parking fee would definitely have an adverse effect on their business, as well as the merchants. Bob Black, President of Catalina Passenger Service, stated that with respect to overnight parking for persons going to Catalina, they usually have around 50 cars (sometimes 60 to 70) in the lot, which still leaves approximately 150 cars from somewhere else. The overnight use of that lot is primarily Catalina, the Balboa Inn and the residents in the area, and the only one that the rate increase is really impacting is the Catalina users because the residents can purchase a sticker and the Balboa Inn has an agreement with the City to pay a certain amount every year. The proposed rate increase will not • "kill" them; however, it could effect their business inasmuch as it is already down from last year. They do produce a lot of income for the City from that lot because they are a large user and a lot of that income is in the off season when the lot doesn't fill up as rapidly. He also noted that Dana Point will now be offering trips to Catalina which could Volume 47 - Page 61 CITY OF NEWPORT BEACH COUNCIL MEMBERS s' t March 22, 1993 ROLL C LL Motio n • • MINUTES alboa Pier kg Lot ees effect their business. With regard to B the validation program, he does not feel P it would work because of the F complexities involved. x The City Manager recommended that the X x x x x x Council leave the rate of $5 winter and X $6 summer for the Corona del Mar lot, but that the Balboa lot be changed to $6 for the winter and $7 for the summer. Following discussion, motion was made by Council Member Sansone to approve the City Manager's recommendation as set forth in the foregoing. Meeting adjourned at 9:55 p.m., in memory of former Mayor and Council Member Donald A. McIunis, who passed away on Saturday, March 13, 1993. The Council went into closed session, and adjourned at 11:00 p.m., with no action taken. * * *tt *t!r * *itiryrer The agenda for this meeting was posted on March 18, 1993, at 8:30 a.m., on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Mayor ATTEST: - SEW PC)V °' City Clerk p PP Volume 47 - Page 62 alboa Pier kg Lot ees