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HomeMy WebLinkAbout03/24/2009 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting March 24, 2009 — 7:00 p.m. 1. STUDY SESSION - 4:00 p.m. II. CLOSED SESSION - 5:05 p.m. A. CONFERENCE WITH LEGAL COUNSEL - EX15TING,- LITIGATION. CODE.§ 54956.9(A)): 1. Status Report on Pending Litigation: We will report on a global basis on all pending litigation involving the City. This is an informational item only. No action, however, may be taken on any item unless it is specifically noticed below. 2. Harvey v. City of Newport Beach., Orange County Superior Court Case No. 07CC6400 B. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION - EIFO$URE TO LITIGATION (GOVERNME NT CODE § 04956.9 Two matters: 1. Potential exposure to litigation on two matters based upon facts and circumstances that might result in litigation against the City but which are not yet known to a potential plaintiff or plaintiffs and disclosure of the facts or circumstances would jeopardize the City's ability to resolve the matter. C. CONFERENCE WITH LEGAL COUNSEL _z— ANTICIPATED LITIGATION..= INITIATION OF LITIGATION (GOVERNMENT CODE § 54956.9(C)): One matter: 1. Potential initiation of litigation on one matter in which disclosure of its underlying existing facts and circumstances would jeopardize the City's ability to conclude existing settlement negotiations to the City's advantage. D. PUBLIC .EMPLOYEE PERFORMANCE EVALUATION Gl OVERNMENT --CODE § 64957(B )(I ) Title: City Attorney E. C_.ONFERENCE WITH REAL PROPERTY NEGOTIATOR (Government Code 54956.5): Property: Marina Park Mobile Home Park, 1770 W. Balboa Blvd., Newport Beach. City Negotiator: Assistant City Manager David Kiff. Negotiating Parties: City and tenant interests. Under Negotiation: Terms and conditions of rentals at Marina Park. Volume 59 - Page 114 City of Newport Beach City Council Minutes March 24, 2009 III. IV. V. VI. VII. VIII. DI. x XI. RECESS RECONVENED AT 7:00 P.M. FOR REGULAR MEETING ROLL CALL Present: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Webb, Council Member Gardner, Council Member Daigle CLOSED SESSION, REPORT Regarding Harvey v. City of Newport Beach, City Attorney Hunt reported that Council voted to authorize trial counsel to file post trial motions and instructed staff to bring back the issue of an appeal should those post trial motions not be successful. Council also authorized the Office of the City Attorney to file a tolling action against the Coastal Commission to protect the statute of limitations with respect to the amendments to the Coastal Land Use Plan (CLUP), hold that action pending the Coastal Commission action at their April meeting, and not serve it unless directed by Council. PLEDGE OF ALLEGL4,NCE - Council Member Gardner INVOCATION - Reverend Martha Korienek, Saint Michael and All Angels Episcopal Church PRESENTATION Proclamation for National Library Week proclamation to Library Services Director Pirtle and the City Manager for their support. NOTICE TO THE PUBLIC at Your Library - Mayor Selich presented the Library Services Director Pirtle thanked Council CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCII, MEMBERS WOULD LIKE PLACED ON A FUTURE A .GK"A FOR DISCUSSION ACTION OR REPORT NON - DISCUSSION ITEM): Council Member Daigle reported that the Boys and Girls Club in Eastbluff completed their remodel. She also reported that at Newport Harbor High School on April 21 at 6:30 p.m., the Police Department and the School District will present "Keep Your Teen Safe" to provide resources for parents of teenagers. Council Member Gardner announced that Saturday, May 9, is the ECO Fabulous Fashion Show at the Newport Coast Community Center and that information can be found at http: / /ito.00de.us. Council Member Henn announced that he is impressed by the number of activities in the City that are free to the public and announced that there will be a presentation on the wildcats of Orange County on April 2 at 6:30 p.m., at the Peter and Mary Muth Interpretive Center. Mayor Pro Tem Curry announced that he and Council Member Daigle attended the opening of the little league season and he attended the Newport Beach Jaycees annual installation binquet. He asked staff to come back with a report on potential funding sources applicable for City use offered by the stimulus package and the recently enacted Federal spending bill. Volume 59 - Page 115 City of Newport Beach City Council Minutes March 24, 2009 XII. CONSENT CALENDAR A. READING OFMINUTESIORDINANCES.AND RESOLUTIONS 1. MINUTES OF THE REGULAR MEETING AND ADJOURNED REGULAR MEETING OF MARCH 10, 2009. [100 -20091 Waive reading of subject minutes, approve as written and order filed. 2. READING OF ORDINANCES AND RESOLUTIONS. [100 -20091 Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. B. ORDINANCE FOR ADOPTION 3. AMENDMENT TO NUISANCE ABATEMENT ORDINANCE TO PROVIDE FOR RECOVERY OF ATTORNEYS' FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS. [100 -20091 Adopt Ordinance No. 2009 -9 amending Section 10.50.160 of the Newport Beach Municipal Code. C. CONTRACTS AND AGREEMENTS 4. AMENDMENT NO. 2 TO A COOPERATIVE AGREEMENT FOR THE ADMINISTRATION OF TOTAL MAXIMUM DAILY LOADS (TMDLs) IN NEWPORT BAY (C- 8621). [381100 -20091 Authorize the Mayor and City Clerk to sign and execute Amendment no. 2 to the 2003 cooperative Agreement to fund Nutrient, Fecal Coliform, and Toxic Total Maximum Daily Load (TMDL) Studies and Programs in the Newport Bay Watershed. 5. OIL WELL SERVICE REPAIRS - APPROVAL OF AMENDMENT NO. 8 TO ON -CALL PROFESSIONAL SERVICES AGREEMENT (C-4002).1381100-20091 Approve Amendment No. 3 to Professional Services Agreement with oil well Service Company for on -call oil well repair services and authorize the Mayor and City Clerk to execute the amendment. D., AHS LAAEOUS 7. PROPOSED STAFFING AUGMENTATION IN THE OFFICE OF THE CITY ATTORNEY. [100-20091 a) Approve the request to staff the vacant part -time Deputy City Attorney position at the full-time level by establishing a new full-time Deputy City Attorney classification in the Key and Management unit; and b) approve the request to continue the use of the temporary part -time contract attorney who was filling the gap of that vacancy in order to assist in the legal work of the City as an additional legal resource to the Office of the City Attorney. Motion by Mayor Pro Tern Curr y to approve the Consent Calendar, except for the item removed (6), The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Webb, Council Member Gardner, Council Member Daigle Volume 59 - Page 116 City of Newport Beach City Council Minutes March 24, 2009 XIII. ITEMS.REMQVED. FROM THE CONSENT CALENDAR 6. BUDGET AMENDMENT - SURFING/SAILING/TENNIS RESERVE ACCOUNTS. [100- 2009) In response to Laura Curran's questions, City Manager Bludau stated that the sum of money is based on gross annual revenues that are derived from the programs and is not necessarily 20% of the reserves. He explained that the reserves can be used to replace equipment and when major projects are needed as part of the Capital Improvement Program (CIP). He stated that this request comes to Council around the same time each year. Council Member Henn added that if all questions were not answered, staff can call Ms. Curran and provide the information she needs. Motion by Mayor Pro Tem Curav to approve a budget amendment (09BA -043) in the amount of $49,310 to transfer funds from the surfing, sailing, and tennis reserve accounts into the General Fund. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Webb, Council Member Gardner, Council Member Daigle XV. PUBLIC HEA -RINGS S. PROPOSED UNDERGROUND UTILITIES DISTRICT NO. 19 SANTA ANA HEIGHTS - MESA DRIVE, CYPRESS STREET AND A PORTION OF ORCHARD DRIVE (continued from the 3/10109 meeting). [891100 -2009) City Attorney Hunt stated that this item was continued from the March 10 meeting to allow staff time to work with the County and make amendments that Council requested. He noted that changes to the staff report and minor changes to the Memorandum of Agreement (MOA) were distributed today as requested by the County of Orange. Mario Mainero, County Supervisor Moorlach's Chief of Staff, thanked City staff for their work on this issue. Motion by Council Member Rosansky to a) adopt Resolution No. 2009 -15 approving the Amended Engineer's Report and Revised Boundary Map; b) adopt Resolution No. 2009 -16 approving the expenditure of RDA funds; and c) approve the Third Amendment to the Memorandum of Agreement with the County of Orange with changes. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Webb, Council Member Gardner, Council Member Daigle 9. APPEAL OF HEARING OFFICER'S CONTINUANCE OF USE PERMIT HEARING (UP2008 -080) - 1115 WEST BALBOA BOULEVARD (OCEAN RECOVERY) (PA2008- 101). [100 -2009] City Attorney Hunt stated that this is the first appeal under the use permit ordinance and reported that the Hearing Officer continued the matter for six months. He also reported that the appeal was filed by an interested third party, there is a question as to whether the appeal is appealable, and noted that the ordinance states that the Hearing Officer only has the right to approve, conditionally approve, or disapprove a use permit application. Volume 59 - Page 117 City of Newport Beach City Council Minutes March 24, 2009 Assistant City Manager Miff utilized a PowerPoint presentation that included information from the previous bearings, maps, a findings chart, and deliberation information. He stated that the idea to defer the issue for six months was originated by staff. Mayor Selich opened the public hearing. Deputy City Attorney Wolcott reported that staff consulted with outside counsel prior to considering a continuance and stated that staff became more concerned about the situation after hearing the testimony from the neighbors. She believed that a continuance was the right approach in this case. Larry Mathena, appellant, provided Council with a handout and stated that the evidence presented at the hearing was exclusive to 1115 Ocean Boulevard. He expressed concern about the enforcement of the ordinance, the proximity to other facilities and schools, violations of zoning codes, secondhand smoke, and the public meetings held. He urged Council to reject the six month probationary period and apply the City's law in a rational manner. In response to Council questions, Mr. Mathena believed that the ordinance is not clear and is not being properly enforced. Sean O'Connor, counsel for Ocean Recovery, stated that the staff report explained the issue correctly, contended that the Hearing Officer did not provide a final decision, and believed that only a final decision can be appealed. He also stated that the Hearing Officer continued the matter after receiving the recommendation from City staff. City Attorney Hunt stated that this is a unique standard of appeal and that the issue of whether the Hearing Officer's decision constituted an abuse of discretion needed to be considered by Council. He pointed out that the determination is subject to only matters that were presented at tonight's hearing. In response to Dolores Otting's question, City Attorney Hunt stated that the time allotted for residents to speak is at the discretion of the Chair. Paul Lopez stated that neighbors provided specific examples and pictures relative Ocean Recovery. He believed that the operator misrepresented several facts by stating that no clients have cars, they discourage smoking, and they have a full-time manager onsite. He also stated that garages are being used as meeting rooms, storage rooms, and living rooms, and urged Council to enforce the law. Colleen Darling urged Council to deny the use permit because of the burden it has placed on the residents. She stated that the location is noisy, has second -hand smoke, and has a massive amount of people in and out. Dick Nichols believed that the facility is not zoned for the area and urged Council to enforce the rules. Denys Oberman referenced the map to articulate the conditions and to show the overconcentration of group homes in the area. She believed that the Hearing Officer was presented with compelling information that he may not have had in advance and also believed that it was not appropriate for the Hearing Officer to grant a use permit. She urged Council to deny the use permit. Laura Curran believed that the use permit should either be approved or denied, and expressed concern that the ordinance failed to provide clear and measurable enforcement. Volume 59 - Page 118 City of Newport Beach City Council Minutes March 24, 2009 Mr. Mathena stated that there was no confusion as to where the nuisance originated and the evidence is reason enough to deny the use permit. He believed that the ordinance is not being applied, it is inappropriate to grant the six month probation period, and the Hearing Officer's decision was not independent. Sean O'Connor stated that they are doing their beat to be a good neighbor and agreed that the Hearing Officer did not make a complete decision. After hearing no further testimony from the public, Mayor Selich closed the public hearing. Council Member Henn stated that the question before Council is if there was a decision, and if so, was there an abuse of discretion. He believed that a clear decision was made to grant a temporary use permit and it is his belief that there was an abuse of discretion. He pointed out that a hearing was held and closed without granting the public an opportunity to comment, the use permit conferred rights that were not defined, and there is no basis under the ordinance that allows the granting of a temporary use permit. He suggested that the issue be remanded back to the Hearing Officer for a prompt decision. Council Member Rosansky supported Council Member Henn's suggestion and stated that he would like a quick resolution. City Attorney Hunt suggested that the phrase "without substantial evidence" be added to the motion. In response to Council questions, City Attorney Hunt stated that he believed that it is a standard condition to have a review and suggested that the Hearing Officers decision be independent of recommendations from Council. Assistant City Manager Kiff clarified that there wasn't an agreement that guaranteed an approval if conditions were met; however, there was discussion at the end of the hearing relative to granting the continuance. City Attorney Hunt stated that the ordinance would need to be interpreted in order to characterize this as a temporary use permit or a continuance. He believed that a change of relief can be considered an abuse of discretion. He added that there is no maximum time limit for continuances. Motion by Council Member Henn to a) find that a decision was made and that the granting of a temporary use permit constituted an abuse of discretion, made without substantial evidence; b) remand the matter to the Hearing Officer to make a prompt decision on the merits of the.matter; and c) in considering the merits, request that the Hearing Officer review whether false or misleading statements have been made and to consider including the smoking regulations consistent with the ordinance as one of the conditions if a use permit is granted. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Rosansky, Mayor Selich, Council Member Webb, Council Member Gardner, Council Member Daigle Noes: Mayor Pro Tem Curry 10. APPEAL OF HEARING OFFICER'S DENIAL OF USE PERMIT (UP2008 -083) - 1216 WEST BALBOA BOULEVARD (NEWPORT COAST RECOVERS) (PA2008 -104). (100- 20091 Motion by Mayor Pr_o Tem Curry to a) at the request of the applicant, continue this item to the April 14, 2009 meeting due to a non - reconcilable conflict in the applicant's attorney's calendar; and b) continue this item to the April 14, 2009 meeting with no further continuances to be allowed. The motion carried by -the following roll call vote: Volume 59 - Page 119 City of Newport Beach City Council Minutes March 24, 2009 Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Webb, Council Member Gardner, Council Member Daigle XIV. ORAL REPORTS FROM CITY COUNCIL ON COIVIMITTEE ACTIVITIES Mayor Selich announced that the City Hall in the Park Concept Plan will be discussed at the April 14 Council meeting. Council Member Daigle thanked Council for their support in electing her to represent the City on the Southern California Association of Governments (SCAG) and clarified that the air quality item that was pulled at the Aviation Committee will be going back to the committee and then to Council. Council Member Henn reported that at the Economic Development Committee (EDC) meeting, they received a presentation about the future of the Daily Pilot and believed it opened communications between the City and the Daily Pilot. He recommended that the presentation be conducted at a Council meeting or at Speak Up Newport. It was the consensus of Council that the presentation be presented at Speak Up Newport. He also reported that the group homes Hearing Officer considered the Yellowstone use permit and reasonable accommodations applications, and based on staff recommendations, all four locations were denied subject to the preparation of the resolution. He stated that the permit for 900 West Balboa Boulevard was approved, the Newport Coast appeal will be heard by Council at the next meeting, and the Pacific Shores hearing will be heard by the Hearing Officer on March 25 at 2:00 p.m. He concluded by announcing that the Environmental Quality Affairs Committee (EQAC) tabled indefinitely any recommendation to Council as to whether leaf blowers be banned in the City. Mayor Pro Tern Curry reported that the Finance Committee heard a report from staff regarding water rates and potential adjustments, and also took a first look at the Facilities Finance Plan which will be discussed in conjunction with budget considerations. XVL PUBLIC COMMENTS John Dowden stated that he attended the Marina Park meeting and learned that the project is scheduled to extend to the year 2013 or 2014. He urged Council to allow the Marina Park tenants to occupy and enjoy the area until permits are granted and the project is ready to begin. Herbert Williams asked Council to allow the Marina Park tenants to stay until the end of 2010 and noted that doing this would generate additional lease funds for the City. Dolores Otting announced that April 4 is Testicular Cancer Day and explained the side effects contributing to the condition and the importance of early detection. - XVII. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 11. PLANNING COMMISSION AGENDA FOR MARCH 19,2009.1100-20091 Planning Director Lepo reported on the following items: Balboa Island Village Inn (PA2009- 014) - 127 Marine Avenue; Balboa Inn Hotel /Sienna Restaurant (PA2008 -197) - 105 Main Street; and Spatique Massage Establishment (PA2009 -005) - 120 Tustin Road Suites C & D. XVIII. CONTINUED BUSINES 12. BUDGET PRIORITY UPDATE. 1100-20091 Administrative Services Director Danner provided an update on the current fiscal year. He reported that he and City Manager Bludau met with the Department Directors to discuss their budgets and will be presenting the information to Council in May. He reported on the Volume 59 - Page 120 City of Newport Beach City Council Minutes March 24, 2009 three largest revenue sources for the City (sales tax, Transient Occupancy Tax (TOT), and property tax) and stated that there has not been a significant increase in delinquencies or assessment appeals in the City. He discussed Proposition 13, SBA 13, supplemental taxes, and budget revisions, and stated that he is comfortable with the estimates that he provided. In response to Council questions, Administrative Services Director Danner stated that the TOT estimate has not been reduced, car sales tax revenue is significantly down, and the funds needed for outside counsel will be taken out of the operating reserves (Item 14). He projected a General Fund shortfall of $3.3. million and the City has addressed the shortfall by implementing a soft hiring freeze, 2% budget reductions in each department, and a capital projects reduction in the amount of $1.9 million_ He indicated that relative to the next fiscal year, all departments were asked to reduce their budgets another 2% and reduce capital expenditures by $2 million. He stated that the budget review will begin early May. 13. COUNCIL REVIEW OF STAFF STATUS PROGRESS REPORT ON SEVEN OF THE CITY COUNCIL'S 2009 PRIORITIES. 1100-20091 City Manager Bludau utilized a PowerPoint presentation to show the objectives, targets, and actions of seven of the 13 Council priorities. Assistant City Manager Kiff supplied information regarding the enforcement and abatement of group homes; and Assistant City Manager Wood provided information about the alignment of the City's codes, regulations, and policies with the General Plan. She confirmed that a revised Housing Element letter will be presented to Council prior to sending it to the State Department of Housing and Community Development (HCD). XDL CURRENT BUSINESS 14. PROPOSED BUDGET AMENDMENT REGARDING OUTSIDE COUNSEL EXPENSE. 1100 -20091 City Attorney Hunt reviewed the staff report and explained the line items that are needed to be transferred from the General Fund. He also stated that the augmented budget for his office will show a 2% decrease next year. Motion by Council Member Webb to a) approve a budget amendment (09BA -044) to transfer a total of $742,000 from General Fund unappropriated operating reserves to cover forecasted outside counsel expense for the balance of the fiscal year; specifically allocating: (1) $292,000 to the Office of the City Attorney's ("OCA') budget line item 0510 -8080 to cover expenses and fees forecast for eelgrass mitigation program issues, IBC litigation, Beek litigation (CEQA and Election issues) and outside counsel assistance for Civil Service/Personnel System review; (2) an additional $150,000 to OCA budget line items 0510- 0884 to cover forecasted additional code enforcement outside counsel expenses; and (3) an additional $300,000 to the Internal Services budget line item 0605 -6021 for outside counsel expenses with respect to group homes issues. XX. MOTION FOR RECONSIDERATION - None XXI. ADJOURNMENT - 9 ;45 p.m The agenda for the Regular Meeting was posted on March 18, 2009, at 3:30 p.m on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. The amended agenda for the Regular Meeting was posted on March 20, 2009, at 11:38 a.m on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Volume 59 - Page 121 City of Newport Beach City Council Minutes March 24, 2009 Mayor �! MIA , City Clerk Volume 59 - Page 122