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HomeMy WebLinkAbout01 - Minutes - AmendedAgenda Item No. 1 October 22, 2013 City Council Minutes Study Session October 8, 2013 — 5:00 p.m. I. ROLL CALL - 5:00 p.m. Present: Nancy Gardner, Tony Petros, Rush Hill, Keith Curry, Ed Selich, II. CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT 2. UPDATES TO THE MASTER FEE SCHEDULE Deputy Finance Director Montano utilized a P w proposed changes and consideration by Council of Council meeting. He noted that non- fire.:fees will (CPI) and that most fees will take effect 0, - None Daigle FEES. [100 -20131 tiob ?to discuss the goals of the ial at the October 22, 2013 City ?d on the Consumer Price Index Planning and Development Fees which become effective 60 days after adopAa i. He' Ir'ig 1 gH}ed the summary of the proposed fee schedule, alignment of revenues With. direct `'land indirect costs for providing services to more accurately reflect the cost of sev&e.;91e addreseed..fee categories along with the proposed changes and reported that there are .no 6100 ges to emergency medical services due to pending regulatory changes at the State and Fedgtal lev€4a He indicated that this will be reviewed by Council when the regulatory changes take effect. Vdputy%nance;kirector Montano discussed the fire fees' background, methodology for establishing the'== fees.cal`iv"i[1Wbri examples, and proposed changes per fee category. He noted that some fees= =$ia,.�e increase&<�o e have decreased, some have no changes, and some have been eliminated- Discussion 'enatd regarding a tiered fee schedule for Safety, Planning and Development. Deeity..Finan .Direc`tor Montano reported on the categories and related fee changes. He indicated that es i+Y W eliminated because of redundancy and combination with other fees. He provided examples 'for eah'cte cry, the methodology used for calculations, and the resulting fee change. Discussion d regarding the removal of expedite requests as an additional fee and avoiding redundancy'nd duplicity related to personnel time for specific activities. Deputy Finance Director Montano reported that the Finance Committee reviewed the proposed fee schedule and that the proposed changes are inclusive of their recommendations. In response to Council Member Petros' questions, Deputy Finance Director Montano reported that the budget is reflective of the revenues obtained through fees for service and noted that the total budget for the Fire Department is $37 million for 2013/2014. Revenue from fees for service for the fiscal year ending in June 2013, was $1.3 million, equaling 3.7% of operating costs. He noted that all other Fire Department operations are tax - supported. Mayor Pro Tern Hill requested that the October 22 2013 staff report include detailed line items with corresponding amounts. Jim Mosher discussed the difference between services paid through taxes and those paid through fees for special services requested by residents. He referenced Exhibit A of the staff report and commented on fees charged for fire services and /or ambulance services. He requested clarification of Volume 61 - Page 305 City of Newport Beach City Council Study Session October S, 2013 III. IV basic services that are provided out of tax levies. Victor Cao, representing the Building Industry Association (BIA), thanked Assistant Fire Chief Kitch and staff. He expressed concerns regarding comparisons used in the analysis with the Orange County Fire Authority (OCFA) and suggested using municipal fire departments instead. He indicated that the BIA wants to ensure that the public is ([not]) receiving redundancy in the bureaucracy and O receiving] adequate services. Further, the BIA wants to focus on the customer service experience and that their overarching message is they want to support more opportunity for economic freedom in order to create jobs and housing. City Manager Kiff reported that Mr. Cao's presentation will be made available to the public. Jim Mosher noted that Council is about to enter into labor negotiatio. He noted that the same matter was on several previous meeting ag to the public to provide a clear explanation about the issues. A , il job performance review and believed that City Attorney Harp has hear rather than what it should hear. He referenced an art .. to the City Clerk questioning the propriety of two Cc ffc T publishing a comment regarding the financial advages of trs, Attorney took it upon himself not to respond to ht leL as it v meeting. He added that the Brown Act does not allow . in _ ity to at a noticed public meeting. City Attorney Harp reported that listed under Closed Session in the ADJOURNMENT - Adjourned The agenda for the Stuc website, on the City Hall Chambers at 100 Civ'c CE of the City Council Chit% City Clerk P.m. 40 differei# bargaining groups. .n� eUeve +that Council owes it he did d the Ci ty Attorney's y to to ntil what it wants to y Pilo egarding a letter he sent th inane Committee jointly 'cing, believing that the City ave required a notice of public s their committee's issues except Closed Session to discuss the items i. —9d on October 3, 2013, at 4:00 p.m. on the City's ion Board located in the entrance of the City Council in the Meeting Agenda Binder located in the entrance Center Drive. Recording Secretary Mayor Volume 61 - Page 306 City of Newport Beach City Council Minutes October 8, 2013 confirming that the business can operate until 2:00 a.m. and reiterated that the application is not a change to how the business is to be operated. He discussed the noise studies conducted by the applicant and the City which resulted in the conclusion that Woody's Wharf is not the source of the noise complaints. However, the applicant has voluntarily offered to cover the patio to ensure that noise is not coming from Woody's Wharf. He believed that the Planning Commission made the correct decision with one exception related to an additional night of operating until 2:00 a.m. during the week and on holidays. In response to Mr. Diamond's questions, City Attorney Harp reported that today is a de novo hearing and the applicant would have the burden of proof. Further, the impact of tie votes will be considered if one occurs. Council Member Daigle wondered if the Planning Commission );eisio' ould stand unless a majority of Council decided to the contrary. k In response to Council Member Gardner's question, Mr. iJiamond ,.eported that the handout provided was designed to illustrate the number of enterta' a perms hat iLave been issued by the City and they want it to be part of the record. r g In response to Council Member Henn's questn -Depay �omm� ty Development Director Wisneski confirmed that the entertainment perma�is not an issue i_qy} stion. Mr. Diamond addressed the hours of operation;iot' that hi client was always led to believe that they could stay open until 2:00 a.m. and the Plang mm sion confirmed that they had a right to do this. He reiterated that upholding lanniitg mroission's decision will not result in a change in use and noted that the entertain 4yk pe linked to the dance issue. He stated that there is no Code section that pro dancinn but it was included in the entertainment permit to specify that entertainers could qt nce, and diot mention that the patrons could not dance. In response to Council Me m G er's qu ion regarding an email from the Newport Beach Police Department, Mr. Diam „�o ed at the correct email was provided which references the outdoor patio be' en un '1 ,00 aFm. and distinguished the difference between the outdoor deck and outdoor patio. _1 Council Member Hf:n"iPpq tedtut that there is no reference to dancing in the email. Council Member Pekroconfii&ed with City Manager Kiff that the Police Department is not the primary authority on ,se permits, but the Community Development Department is. City Attorney Harp stafed that he reviewed the NBMC and confirmed this is a de novo hearing so it is at Council's discretion to make a determination and, if there is a tie vote, the decision of the Planning Commission will stand. Council Member Petros briefly spoke on the standards used for the noise studies, noting it was done at a threshold of 60 dB and pointed out that the threshold was not "no noise at all ". Mark Serventi, one of the cc- owners of Woody's Wharf, noted the attendance of his partners, thanked staff for their efforts and presented background on the matter He indicated that, when they took over, the operation did not change. He stated that they are currently meeting City Codes and commented on costs related to this matter. He requested that Council make its decision based on the law and City Codes. He reported that they currently have the right to operate and entertain until 2:00 a.m., and reiterated that Woody's Wharf has been operating for decades. He also reported that, although the noise studies indicated no noise, they are offering to invest in a patio cover to mitigate any possible noise issues. He requested approval to operate the patio from 11:00 p.m. until Volume 61- Page 312 City of Newport Beach City Council Minutes October 8, 2013 An owner of 28th Street Marina refuted Mr. Diamond's contention that there are only a few people in the marina that object to Woody's Wharf and challenged Council to take a poll of the residents.. He stated that he moved into the City knowing he was moving into a mixed -used area, but had confidence that the City would enforce its ordinances. He urged Council to reverse the Planning Commission's decision and deny the application. Greg Pappas, co -owner of Woody's Wharf, stated that they operate Woody's Wharf the way they do because they feel they have the legal right to do so. He reported doing their due diligence prior to buying Woody's Wharf and addressed efforts to cooperate with neighbors, including paying for a security guard. He reported that there was never an outdoor dining permit filed by Woody's Wharf, but the Police and Planning Departments agreed to have the patio remain open until 2:00 a.m. Drew Wetherholt spoke in opposition to Woody's WharFs applica ari � stated that one of the biggest problems is that they cannot control their patrons once the leave thhacility. He indicated that the area does not need intensification of problematic bars aiul, believedVlhat Woody's Wharf continues to be in violation of ordinances and a drain on Poliye resour`'' s and t t it is incompatible with the General Plan. He added that Woody's WharlLda -n to increase `rofits by increasing alcohol sales and allowing' dancing, but they do this on`fbacks of resi s. He encouraged its operators to make a better restaurant, not a bar and nitcluh and used t b Cannery Restaurant as an example of what it can be. 1 Brian Park spoke in opposition to Woody'so�h ,fs applic lion Ynd believed that they are not moving in a positive direction. He, out oken oholic bottles near his residence and, property destruction, and urged Council,,�o reverse�he g Commission's decision. Mr. Diamond believed that many of the 6ftTlaint94e##e do not apply directly to Woody's Wharf, but are general complaints abo���_�b�ars. He re_erenced the results of the noise studies and stated that it is not coming from his6� Mark Serventi stated that the ad � for i At related to Woody's Wharf. He reiterated that they are offering to pay f,r a sec ret guar dt the homeowners association did not think it was necessary. He stated t they re as�mUr less than others have been granted and that they have never been fined for occ p �or.daacing. Additionally, he reported that they do not distribute flyers nor do the' ve pa v b's bringing people into the City. He stated that a permit is not required for danco °er charged. a.: Hearing no furthefg estimony, Mayor Curry closed the public hearing. In response to Counil Member Henn's questions, Deputy Community Development Director Wisneski reported that cafe dance permits have an exception for dance halls which are facilities that charge a cover and are not required to have a dance permit. She clarified that Woody's Wharf is required to have a dance permit because they are seeking a modification to their floor plan. A use permit amendment would be required and staff recommends including a requirement for a caf6 dance permit. Council Member Henn indicated he generally respects the opinion of the Planning Commission, but believed that they got it wrong in this case. He acknowledged comments from the public and noted that he is not biased about this situation. He stated that he is not against nightclubs and indicated that he likes Woody's Wharf, but this is not about whether the location should be technically called a nightclub but rather it should be about whether Woody's Wharf should be allowed to extend its hours of operation and allow dancing, the combination of which changes and intensifies the nightclub -like operating characteristics of the business. He reported that he supports good - quality restaurants on the Peninsula, including those that serve alcohol, as long as they focus on food and being . a restaurant. He emphasized that he does not believe the issue of noise is germane to the Volume 61 - Page 315 City'of Newport Beach City Council Minutes October S, 2013 decision, but what is germane is the intensification of what happens outside the venue when patrons leave late at night and all at once. He noted that all similar operations in the area share the types of problems reported, but that the issue tonight is not about other operations but rather what will be allowed in the future for Woody's Wharfs operation. He addressed operator licenses and believed that the imposition of the requirement for an operator's license administered by the Police Department is not a reason to support their application, if it would not be a correct decision in the first place. Council Member Henn listed the factors influencing his decision, noting that it is a decision that should be made based on compliance with laws and regulations in the General Plan and the City's ordinances, as well as the public's welfare, safety, and well- being. He expressed support for allowing Woody's Wharf to open at 10:00 a.m. and for the variance to allow the patio enclosure. He noted that an intense public process was followed in adopting thQ06 e al Plan that changed the designation of this and other areas to mixed -use, adding th he Gener l Plan makes it clear that residential quality of life must trump other use consideration -�at are po`' ntially in conflict. He read two of the General Plan policies and from the relevant secti1, of the unicipal Code that are key in this situation and believed that, taken togetlp -,t make it , that the residential quality of life must trump businesses that have con het' characteris and command the _ prohibition of nightclub characteristics in such close pr mitt' to residential uses. He added that, to approve the Planning Commission's decision, wo�d= `e o" pro$e�policies�rthat are inconsistent with the General Plan. He discussed crime statistic iirectly re ed4 W ody's Wharf and pointed out ft that they cannot be ignored. He addressed prki and in ' ated i at there is no justification for relaxing the requirements since parking at that locaiion is de cient. He noted his efforts to improve the quality of life for residents on the Peninsula d `ca d that the approval of the application contradicts everything he believes is a an i ten d in the General Plan. He stressed the need to respect the General Plan, the Municipal owe d the safety and quality of life of residents and, therefore, must reject mortf elements the Planning Commission's approval of Woody's Wharfs application. Council _e er Henn a hasized that he never makes final decisions on Council agenda items prior he ng all the m o mation presented at the Council meeting for the item. Motion by Mike He" seconde , b Tor3 Petros to direct staff to bring back to the City Council at its next regularly sch in et' tothe appropriate Resolution and findings to support: (1) that Woody's request, xten o mg hour to 10:00 a.m. from the current 11:00 a.m. be approved; (2) that the variance s need to allow for construction of the more permanent roof structure be approved; (3) that fhe cube _ valet parking service be modified to require valet parking service from 6:00 p.m. to closingNog,+riday' and Saturday nights and Holidays; (4) that all other aspects of the Planning Commissi 's decision be overturned, including, but not limited to: (i) the dance permit request; (ii) the exten ` on of hours to 2:00 a.m. on the patio; (iii) the discretion as to the use of valet services and to the ex nt appropriate in view of item number 3; (iv) the waiver of the six parking spaces; and (v) the ability to remove tables and chairs from any section of the restaurant after 10:00 p.m.; and (5) the denial of the additional requests made by Woody's owners tonight. Council Member Gardner requested Deputy Community Development Director Wisneski follow up with staff regarding the permit allowing use of the patio until 2:00 a.m. She also commented on the General Plan and noted the priority is to residents, businesses, and then to visitors. In response to Council questions, Mr. Diamond indicated that it would not make sense for his client to install a patio cover if there is no purpose to do so. He noted that Council Member Henn read from a prepared motion and referenced the recent opinion of the Ninth Circuit Court. Council Member Henn acknowledged preparing comments prior to the meeting based on careful diligence and review of the information available prior to the meeting, but modify some of his preliminary views based on information presented at the meeting, did not hear anything at the meeting to fundamentally change his point of view, but did modify some of his initial thoughts about the matter based on information presented at the meeting. Volume 61 - Page 316 City of Newport Beach City Council Minutes October 8, 2013 XVIII. 9. Council Member Selich indicated that he will not support the motion since Woody's Wharf has been in the City since the 70's, has been operating in the same manner, the City has knowingly allowed them to operate in this manner, that there is some liability for the City in doing so, and the City should be working towards some sort of compromise rather than an outright denial of the project. Police Captain Johnson referenced a memorandum dated July 22, 2013, noting that the Newport Beach Police Department did not recommend support of the application. He noted that the area is already heavily utilized by licensed establishments which provides a lot of challenges to the Police, and believes that the expansion of Woody's Wharf would add to those challenges. He addressed calls for service and noted that not all are to Woody's Wharf, however, so far this year, the Police Department has responded to 47 calls for service, specifically for incidents occurring at Woody's Wharf. In addition, he noted a lack of compliance by the operators oJf- "e v e. Council Member Petros reported that his high school aged dauglifthave comae home from school with handbills on their windshields advertising DJ nights at body's Wharf. Hd disagreed with Mr. Diamond's statement that this is a noise issue since it ev many ii�ues,� He expressed hope that these will be addressed when the item returns. He sta i hat the facf�irhat the operators have offered to pay for a security guard indicates that theNcknowledg irhere is a hazard or endangerment to the public. Mayor Curry indicated that he will support additional ideas when the matter returns. The motion carried by the following roll is`Tl pst@;_ Ayes: Nancy Gardner, Noes: Ed Selich Absent: Leslie Daigle Mayor Pro Tf Attorney of i Commodores. the applicant could have CHRISTMAS BOAT PARADE - 2014 -2017 (C- 5615). ged himself from this item because he was informed by the City conflict of interest related since he has membership in the City Manager Kiff provided a report, noting the City's prior support of the parade. He reported that the Chamber is interested in longer term commitments and noted recommendations as listed in the staff report. Motion by Ed Selich, seconded by Mike Henn to authorize the Mayor to execute the amended Sponsorship ( "Grant ") Agreement with the Newport Beach Chamber of Commerce for support of the Christmas Boat Parade at $50,000 per year for 2014, 2015, 2016, and 2017. Steve Rosansky, President of the Newport Beach Chamber of Commerce reported on the number of yearly visitors the Christmas Boat Parade attracts and reported that the funds will be used to elevate the high stature of the parade. He noted that the parade generates a lot of business for the City and explained the reason for the request to seek additional help in marketing and promotion of the parade. Volume 61 - Page 317 City of Newport Beach City Council Minutes October 8, 2013 Council Member Gardner requested and received confirmation from Mr. Rosansky that some of the money will be used to perform an evaluation of the event. Jim Mosher expressed concerns with the City giving public money to a private entity, and with the way the money may be used. The motion carried by the following roll call vote: Ayes: Nancy Gardner, Tony Petros, Keith Curry, Ed Selich, Mike Henn Absent: Leslie Daigle 10. CLOSE -OUT AND FINAL AMENDMENT TO THE CONSTRUCTION MANAGER AT RISK CONTRACT FOR CIVIC CENTER AND PARK PROJECT WITIC: DRIVER (C- 4527). [381100- 20131 City Manager Kiff referenced the staff report and noted an a admen to the re�ort. Motion by Ed Selich, seconded by Rush Hill to authci z he Mayor ' the amended final close -out amendment to the Construction Manager at R - Contract for, rvic Center and Park Project with C. W. Driver.' Jim Mosher commented on the City's webpage related costs. He requested clarification aboua costs and whether the webpage will continue to The motion carried by the following roll Ayes: Nancy Gardner, Tony Absent: Leslie Daigle 11. RESPONSE TO RALPH GOVERNMENT CODE S noted eh E g pflwith finding the projects and c items d wondered whether it includes staff ces able er completion of the project. ;h Curry, Ed Selich, Mike Henn EGATIONS PURSUANT TO CALIFORNIA [100 -20131 City Attorney H r provN aff report and discussed the correspondence that alleges, among . other allegations tSt vMlated the Brown Act at the September 19, 2013 meeting by not referencing Cl oseS s prior to Closed Session. He stated that after reviewing the allegations, his offi oe nod any merit to any of the allegations; however, in the interest of avoiding litigation, pq recommending submitting a letter stating that prior to going into Closed Session, the Closed Ssion agenda will be referenced. Mayor Curry requested and received clarification from City Attorney Harp that prior to going into Closed Session he did not read the title. He added that the City has spent approximately $1,500 in addressing the concerns raised in the correspondence. Jim Mosher commented on his letter dated September 17, 2013, and the need to let the public know what Council will be considering in Closed Session. He. stated that he made four requests and took issue that the letter was not distributed to Council. He suggested that all Closed Sessions be preceded by the oral announcement, according to the Brown Act, that the oral and printed announcement include enough specificity for the public to provide comment, that Council refrain from negotiating with public employee groups other than at noticed public meetings or during Closed Session through negotiators who are supposed to be orally announced before the meeting, and that all labor and employment contracts receive final approval in public sessions. Council Member Selich expressed appreciation for what the City Attorney is doing, but indicated that he is tired of hearing bizarre interpretations of the Brown Act. He reported that he has Volume 61 - Page 318