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HomeMy WebLinkAboutCC Min 2002-10-14 9-23-02 / 10-14-02 CLOSED SESSION No Closed Session was held. I ADJOURNMENT It was the consensus of the Council to adjourn the meeting until October 14th at 5:30 p.m. for a Code revision workshop and Closed Session if necessary. By unanimous consent, the meeting was adjourned at 10:00 p.m. clerk Approved: ~t:hJ~ ~,,:'h{ ~ Ci ty Clerk ~o Attest: Seal Beach, California October 14, 2002 I The City Council of the City of Seal Beach met in regular adjourned session at 5:30 p.m. with Mayor Larson calling the meeting to order. ROLL CALL Present: Mayor Larson Counci1members Antos, Campbell, Yost Absent: Counci1member Doane Councilman Doane was present in the Conference Room awaiting the Council workshop. I Also present: Mr. Bahorski, City Manager Mr. Barrow, City Attorney Mr. Whittenberg, Director of Development Services Mr. Dancs, Director of Public Works/City . Engineer Ms. Arends-King, Director of Administrative Services Ms. Yeo, City Clerk By unanimous consent, at 5:31 p.m. the Council adjourned to the Conference Room to hold a workshop session relating to Municipal Code revisions. COUNCIL WORKSHOP The City Manager announced that the revisions for review at this session are proposed Title 5 relating to Business Licenses and Regulations, a side-by-side comparison of the existing and proposed regulations, a proposed Title 5A 10-14-02 pertaining to grading regulations, and if Title 5A appears to be acceptable to Council it will be presented to Council for adoption earlier than the remainder of the Code revisions. It was confirmed to Councilman Doane that the provisions of Title 5 that had been previously considered were included with the entire packet for that Title. * The City Attorney mentioned that the newly const'ituted Ti tle 5 were Chapter 5 and 5.05, primarily defin'i tions, no substantive change, the intent was to revise .'and simplify some of the language and make it consis'tent; I * There are no changes to the Tax Rate Schedule of, any of the business licenses; * It was noted that staff met this date and it has been determined to add regulations relating to cyber cafes; * with regard to Alarm Systems which the Council reviewed in recent past it has been determined that violations will be an administrative penalty; * There is no change to Ambulance Services, the Fire Authority adopted the most recent regulations in 1996; * with regard to Food Handling, Chapter 5.35, which the Council saw previously, there was communication with the County this date, all of their existing ref~rences are to repealed statutes, therefore references will ei ther be generic so that the Code does not have' to be constantly revised or cite the current statutes, this Chapter may just make reference to the Health and Safety Code; I * Mobile X-Ray Units can now be deleted as it adds nothing to the State regulations; * Oil and Gas production, Chapter 5.50, there is no change; * Chapter 5.65, Miscellaneous Business Regulations, this is in the existing Code and there are no changes other than an effort to simplify the language; I I whereas the existing Code has appeal sections t~at are inconsistent and appear throughout the Code, the appeal sections have been consolidated and now exist iri the beginning of Title 5 as Chapter 5.00, Section 5.00.15; * * Definitions, it is recommended that the, Council :expand the definition of arcade to include video games :and others, the existing language is rather archaic;: * Question was if a Board of Appeals is still part of the organization, the response was yes, they rarely meet, suggestion was that it should be called Building Code Board of Appeals, this generally relates to something that is new in the building industry however is not yet in the Building Codes, this type of Board has been seen used in other cities recently with regard to tur,ning radius for fire vehicles, and it was clarified that the Board of Appeals provision appears in the Build~ng Code; I I I I 10-14-02 * Section 5.05.005 contains definitions of various types of contractors, there are exceptions, salaried employees, owners working on their own home, staff will try to make those provisions consistent if possible so that the exceptions also apply to the various contractors, at present they are inconsistent, the attempt will be to make them uniform; * Section 5.05.010, Business License Tax Requirement, there are no changes; * A definition for vendors may be added, current Code has no definition for vendor, treated in the past as a peddler, vendor may need a separate definition; * Upon reviewing this Title through Chapter 5.05 the changes recommended by the Council and staff have been incorporated; * with regard to the Appeal section it was noted that no cost was included, question, does this apply to appeals of Planning Commission decisions or what types, the response was that the appeals of Planning Commission decisions will be contained in the Zoning Ordinance, these relate to appeals for business licenses, also, the cost should be included in the Fee Resolution, staff then advised that a section would be added to make reference to the City Council approved fee resolution, a suggestion was also made that such reference could be under the 'Time For Filing' section; Yost moved, second by Antos, to concur with the revisions thus far. Unanimously approved. * The City Attorney advised that all revisions to the Code will come back to the Council at a public meeting in the future, with the City Manager adding that this is merely a concept; * The City Attorney noted that the chapters of Title 5 reviewed thus far have been Adult Entertainment, Alarm Systems, Ambulance Services, Charitable Solicitation, Filming Activities, Food Handling, Mobile X-Ray Units deleted, Oil and Gas Production, Public and Club Dances, and Taxicabs; * Commencing review of the Miscellaneous Business License Regulations, reference to Fortune Telling, the City Attorney referred to page 287 of 302, the side by side comparison, that shows how staff tried to I simplify Fortune Telling, the substance of this Chapter is not changed merely consolidated and simplified, tried to bring up to date the typical things the City requires for an application, to the question if the psychic falls under this Chapter the response was yes however that will be confirmed; * The second Miscellaneous Regulation is Second Hand Aircraft Parts, no change was made to that, the same with Circus, a circus will need a permit, and to the question if the circus is held on the Weapons Station the response was there is always a question as to whether the City laws are applicable on federal property; 10-14-02 * Collection Agencies, that was merely simplified;' * Entertainment Cafes, it is believed that was addpted sometime in the 1990's, clarified too that they ,need to obtain a conditional use permit, and to a question responded that Papi11ions was required to have a CUP for their piano bar; I * Following were provisions for Miniature Trains, 'Shooting Galleries, Peddling and Soliciting; Antos moved, second by Campbell, to accept the revis~ons to this point. Unanimously approved. * Grading Ordinance - The City Manager noted that the Grading Ordinance is new, there has not been one in the past, it is tentatively titled 5A, there are , definitions, made reference to 5A-2, staff made 'a determination to have a Storm Water Prevention Manual prepared, the City Engineer said there will be a Grading Manual and a Storm Water Prevention Manual, thei will be provided to contractors for guidance and regulation on the detail of grading, details that would normally be placed into the ordinance, and as the storm water regulations are revised and passed the Manuals will be updated; * Attention was directed to Section 5A-6, Grade Elevation Permit, which states that 'no person shall raise the existing grade of a residential lot without first obtaining a minor plan review for a grade elevation permit from the Planning Commission,' explained 'that people are allowed to grade under this ordinance on a single family residence if it is under FEMA to raise the property out of the flood level or a grade change to allow drainage to work, other than those two exceptions the ordinance basically says no grade changes or otherwise make application for a minor plan rev~ew, in the case of someone wanting to change soil, staff has taken the position that they would need to take :the existing dirt out and replace it with new soil at existing grade, the ordinance does not provide much flexibility, there is nothing that would prohibit lowering the grade; I * Clarification was that current Code does allow basements and cellars, generally the grade does not change in those instances with the exception of a garage which might require some grade change at the approach near the sidewalk area, in the case of someone removing all existing soil and replacing it with new, that would be approved administratively provided there is no grade change; I * , with regard to lots that have a slope and the desire is to flatten the yard, staff stated that would be . considered a grade change under the new ordinance, current Code allows that; . I * In that regard it was noted that some properties have built small retaining walls to allow flattening of the grade, noted that there are sloped frontages on :the Hill that may differ up to thirty inches down to the · sidewalk, if that were to be raised it could be considerably higher than a neighboring property" I I I 10-14-02 therefore under the minor plan review process there is a noticing requirement of one hundred feet, and it was clarified that walls less than thirty inches in height do not require Planning Commission approval; * Clarification - if a retaining wall is constructed and soil is filled in behind it that is a change of grade and needs Planning Commission review, if the grade behind the wall is not filled in it does not, and it was pointed out that by filling the grade it changes the drainage on a lot; * Suggestion was made that it would be within the discretion of the Council to possibly consider a leeway of maybe a foot above existing grade; * The City Attorney reported having recently received a copy of the revisions to the County Model Grading Ordinance in response to the NPDES therefore some minor changes may need to be made to the draft ordinance to incorporate some of the things the County is recommending, noted also that the Ordinance is numbered the same as existing Code in the event the Council would like to see this Ordinance adopted in the next month or so, it would not be necessary to wait for the revisions to the remainder of the Code; * It was clarified that what the County is looking at is an assurance that grading is going to be in compliance with the Storm Water Runoff Permit, the Manuals that will be prepared will take care of about ninety percent of the problems and dictate what needs to be done and when; * Question was if this is to solve problems at the Bixby location - the response was it is not, this is basically directed at a change of grade for an existing lot that is already developed, when talking about raw land the grading has to change because there needs to be drainage flows that meet engineering requirements that did not exist on the land to begin with, the same with the Hellman property, the reason for the large berms along Seal Beach Boulevard where the lots need to be high is to drain to the street or west to the basin, now when you get into large developments you will see changes in grades, this would also address a future change on a Centex or Hellman project where they could not do certain types of things later on, Boeing too because there would need to be mass grading for drainage purposes; * Pointed out that Section 5A-10 is basic grading standards, it was desirable to have something in the Ordinance to address haul routes, hours of operation, those kinds of issues; Yost moved, second by Antos, to approve the concept of the draft Ordinance and that it be brought to Council as soon as it is completed. Unanimously approved. * It was noted that this is similar to what the Hill residents wanted with regard to a lot in question, the house could not be demolished, the foundation raised, and then a structure built to twenty-five feet; 10-14-02 * To a question relating to that property, it was ,noted that it is a two story dwelling, will not exceed twenty- five feet, has a flat roof, therefore likely will be massive looking; I * In response to a question as to whether some pages were missing, staff explained that some of the BMP' s,: Best Management Practices, that were felt to be most. appropriate were taken from a manual and meant ~o be a representative sampling of some of the material that will be in the grading manuals, explained also that the County manuals will be written for all cities in the County therefore there will be things that do not apply. I At 6:09 p.m. it was the order of the Chair, with consent of the Council, to recess the meeting until 6:15 p.m. at which time the Council' would reconvene to meet in Closed Se'ssion to , confer with the City's real property negotiator pursuant to Government Code Section 54956.8 relating to Ruby's ' Restaurant, confer with the labor negotiator pursuan~ to Government Code Section 54957.6, and to confer with legal counsel pursuant to Government Code Sections 54956.9(b) and (c) pertaining to initiation of litigation. The Council reconvened at 7:00 p.m. with Mayor Larson calling the meeting to order. No action was reported on the previously identified items. ADJOURNMENT By unanimous consent, the meeting was adjourned at 7 :.00 p.m. I clerk Approved: ~ Mayor Attest: Seal Beach, California October 14, 2002 The City Council of the City of Seal Beach met in regular session at 7:01 p.m. with Mayor Larson calling the meeting to order with the Salute to the Flag. I ROLL CALL Present: Mayor Larson Councilmembers Antos, Campbell, Doane, Yost Absent: None 10-14-02 I Also present: Mr. Bahorski, City Manager Mr. Barrow, City Attorney Mr. Whittenberg, Director of Development Services Mr. Dancs, Director of Public Works/City Engineer Chief Sellers, Police Department Ms. Arends-King, Director of Administrative Services Mr. Vukojevic, Deputy City Engineer Mr. Cummins, Associate Planner Ms. Yotsuya, Assistant City Manager Ms. Yeo, City Clerk APPROVAL OF AGENDA Councilman Yost requested that Item "J" be removed from the Consent Calendar for separate consideration, and Councilman Antos requested that Item "L" be removed. Doane moved, second by Yost, to approve the order of the agenda as revised. AYES: NOES: Antos, Campbell, Doane, Larson, Yost None Motion carried I ANNOUNCEMENTS Councilmember Campbell announced the upcoming College Park East Neighborhood Association Halloween Haunt on Sunday, October 27th, noon to 2:00 p.m. at Heather park, games, a costume parade, pumpkins to paint, etc. Councilmember Campbell also reminded all of Clean-Up Week from October 22nd through October 26th where excess goods can be disposed of in the bins near the Public Works Yard, no building materials or hazardous waste. PRESENTATION I WOMANS CLUB OF SEAL BEACH Ms. Barbara Ciaffardini, representing the Garden Section of the Woman's Club of Seal Beach, said on behalf of her group she wished to announce the installation of a statue at the Mary Wilson Library Senior Center as a gift to the City. Ms. Ciaffardini explained that the three foot high statue depicts a gardener tending the grounds of the atrium, it adds to the beauty of the facility, and it is hoped all who visit the Center will enjoy it. She noted that funds for this project and several other charitable contributions were raised at the annual Seal Beach Arts and Crafts Faire where appreciative attendees purchased plants and flower specimens grown by Club members. Ms. Ciaffardini expressed appreciation to Mr. Bob Eagle who, with a limited staff, did a professional job of installing the statue and improving the landscaping in the Senior Center atrium, and invited all to visit the Center and its garden area. Mayor Larson accepted this gift on behalf of the City and the library with appreciation and requested the City Clerk to forward a letter to the Womans Club expressing same on behalf of the City Council. Antos moved, second by Yost, to approve the request for a letter to be sent. AYES: NOES: Antos, Campbell, Doane, Larson, Yost None Motion carried 10-14-02 PROCLAMATION Chief Sellers noted that for the past fourteen years 'the County of Orange law enforcement agencies have the third week in October as "Red Ribbon Week" in recognition of the partnership that has been established with the youth 'of the community, the business community, and the Police Department. The Chief expressed pleasure at bringing forth the ' proclamation recognizing the upcoming "Red Ribbon Week" as people go forward with the children of this community and help them through drug, gang, etc. educational programs, his belief is that these programs as well as ongoing communication has helped to avoid that type of activity in this community. Doane moved, second by Antos, to pr~claim October 21st through October 27th, 2002 as "Red Ribbon Week" and authorized the Mayor to sign same. I AYES: NOES: Antos, Campbell, Doane, Larson, Yost None Motion carried PUBLIC COMMENTS Mayor Larson declared the Public Comment period to be open. Mr. Doug Korthof, Seal Beach, said his comments were to the housing tract on the Hellman mesa being shut down, the settlement agreement for the Hellman lawsuit saved the wetlands but allowed seventy houses on the mesa, Native American sacred sites, graves and/or artifacts were to be detected and mitigated before any construction started and section 19-H of the permit special conditions allowed the archaeological investigation to proceed in advance o~ compliance with other conditions. Mr. Korthof stated however that bulldozing uncovered what the investigation did :not, significant human remains and other resources, the permit stated it is possible that testing may miss cultural resources that are then discovered during development activities, that a Native American monitor shall be present during construction activities to ensure sensitive treatment of Native American cultural resources, and, should human remains be found special condition 19F requires that: construction be temporarily halted in the vicinity o~ the discovery site, and that Native American groups or persons shall participate in the identification process. Mr. Korthof claimed there were apparent permit violations and read excerpts of special conditions 19E and 19G, that grading shall be monitored on-site by a qualified archaeolog~st and Native American monitor, and that these conditions shall be incorporated in entirety into all construction documents used by construction workers during the course of their work as well as all construction bid documents. He said according to testimony of the Native American monitor early on the first day of grading the construction supervisor notified the two archaeologists on site that there would be no grading in any culturally sensitive areas that day and they could leave early, the monitor found that the supervisor had deceived the archaeologists and grading was actually being done in a culturally sensitive area, burials had been partiall~ cut up and destroyed by the machines. Mr. Korthof stated this violates condition 19E, the violation shows willful ' disregard, and perhaps enough to void the Coastal Development Permit. He then referred to condition 19F which he said provides that should human remains be found, construction temporarily halts, to which he further claimed that on September 10th the monitors were threatened with being run over by tractors when they stopped the construction workers from digging next to burials still in the ground, that being one day after the vice President of operations for John Laing , I I 10-14-02 I Homes told the most likely descendant that they would not dig in that area. To that Mr. Korthof said this apparent violation seems to attack the very basis of the Coastal Permit, if the monitors were not allowed to do their job then why were they required, the actions seem to be careless, willful, and malicious, and after a warning letter failed to elicit compliance the Coastal Commission enforcement team stopped all further work on the project and the project is shut down. Mr. Korthof stated also that this is not an infill project, the backers of the project claimed that all infrastructure necessary existed in the area yet the developer is proposing a $5 million Mello-Roos bond issue for new infrastructure and a new gas line has been run for the exclusive use of the development. Mr. Korthof questioned how a Coastal Permit is enforced, the City does not have a certified Local Coastal Plan so enforcement of the Permit is not necessarily required by the City, the City process is only valid for the City permit, therefore the Coastal Permit is only enforceable by the Coastal Commission staff, by NGO's or people, there is a liability in that the archaeologist is supposed to be working under the supervision of the City, and stated the Coastal Permit must be revoked and the project re- evaluated. It is necessary to talk to the Coastal Commission, do something with the Native American monitor, and speak to the Native American Heritage Commission to find some way to stop this transgression, this is an independent Native American nation, they have rights and dignity. Mr. Gene Stegman, 13th Street, said for some time the residents have been told that a financial crisis is at hand, he was not present to speak to whether this crisis exists rather another crisis that involves the trust of the City Council, they are elected by the people of the community with one purpose, to act in the best interest of its citizens. Mr. Stegman said the decision that this Council has made to pay the legal expenses of a former member of the Council arising from the pending litigation involving the Trailer Park residents versus Linc Housing, the former councilman, and Richard Hall is a moral outrage and an offensive waste of the taxpayers money, the former councilman was voted out of office by the constituents because it was felt he was not acting in their or the City's best interest, those same citizens are now being told that they must pay for the cost of his legal expenses, his contention is that neither the City of Seal Beach or the taxpayers have any moral or legal obligation to aid the former councilman in any way. He stated he wanted to bring to the attention of the Council and the citizens the terms of the settlement that this Council agreed to on behalf of the City which arose from the original suit filed by Linc Housing and Richard Hall against the Redevelopment Agency, legal fees paid by the taxpayers amounted to $111,499, the suit was settled February 28, 2001, the terms of the agreement signed off by the then Mayor Campbell and Agency Chairman Yost, and he read in part 'owner Linc and Hall further represent and warrant that it and he have not created or given rise to any lien or other right by which any other party may claim all or any part of this lawsuit, owner meaning Linc and Hall agree to indemnify and defend and hold harmless the City from any claim by any third party to all portions of said claims.' Mr. Stegman said with this being part of the settlement he wished to ask the officials how they can possibly justify the decision to insult the residents of Seal Beach by asking them to pay for the legal expenses of the ex-councilman, it is not the City that is being sued, it is the former councilman that is being sued for his employment relationship with RiChard Hall, the City I I 10-14-02 , has no duty to defend, and reiterated that pursuant to the settlement agreement Linc and Hall are required to pay the defense of any third party and hold the City harmles~ from such claim, why is the City not abiding by the settlement agreement, he demands that the settlement agreement must be adhered to and that any current and future fees incurred on behalf of the defense of the former councilman be stdpped immediately, and in addition, for the blatant disreg~rd by the Council of the aforementioned settlement, which was agreed to by affixing their signatures, he would ask 'that those signators submit their resignations. Mr. Jorddn David, identified himself as the Native American monitor on the Hellman Ranch site, was present to speak to how the , Gabrieleno Tonga people are viewed, how they consider this site to be spiritually and culturally significant, the treatment in which their ancestors and artifacts have been destroyed by Laing Homes and the construction company. Mr. Jordan noted that the archaeologist was hired by the City who in turn is being reimbursed by John Laing Homes, a number of times Laing Homes has been putting pressure on the : archaeologist to make decisions, to say how many monftors need to be on site, that is a decision for the archa~ologist and then bring that to the City. He mentioned that Laing Homes had a meeting with the field director on September 10th when the incident happened that a previous speaker made reference to, said he was there standing in front of :the bulldozers when the construction wo~kers were trying to dig in the area'where the Vice President of Operations for Laing Homes had said they would not be digging pending the making of a reasonable decision as to what should be done with regard to testing, to that they stood in front of the tractors as they were being threatened to be run over, this is what has been dealt with nearly on a daily basis on the construction site. Mr. Jordan stated that their job 'is to. make sure that the construction company, the land owner and the archaeologist are being sensitive to the Native American issues, the remains of their ancestors have been destroyed, there have been twenty different burials discovered, 'Laing Homes have said in the press and to the Coastal Commission that they do not consider the burials to be culturally significant. Mr. Jordan said he does not represent the government of Tonga people, he speaks only for himse~f, and twenty burials is considered significant to any Native American, the way this landowner has cut the Native American representatives out of the process is not right, they have lied in the press as well, the incident was described as a falsehood being spread by one of the monitors who does not agree with any development, yet there were ten people on-site when it happened, a letter was sent to the City reporting the incident, the landowner continues to disrespect their ancestors and the sensitivity of the issue, they want to cut out the burials and the monitors out of the process, they feel they have the money and power to do so, he is present to say that will not happen, if he is the only person tq stop them he will. Mr. Jordan asked that the Council look into this issue, look at the correspondence that has been 'going back and forth between the Native American community,: copies of all provided the City, he asked also for a peer review, when the permit was put together there was no consultation with the Native Americans, they were brought in after the fact, they are trying to say they have done a mitigation plan and they have not, that is required by the permit, tqe peer review would bring in different archaeological firms Ito review what has been done, they would also propose that the site be capped and change the proposed park from one side of I I I 10-14-02 I the site to the other side for reburial of their ancestors. Ms. Lisa Rosen, Seal Beach, spoke to the construction of Heron pointe homes, she recently observed the area which has been dramatically reconfigured, across the street is the submarine monument, a site considered an area where one would go with some reverence to honor the dead yet there is no one buried there, in stark contrast to that is the area which is being uprooted, more or less with City consent, where remains of honored ancestors who were buried long ago with ceremony are being unburied, in most any culture that would signify a profound sort of disrespect and she would hope that everyone in the City that is in a position to do so is willing to rethink the part of the City, at the least the project should do what the Coastal Permit said it should and take into consideration the Native burials and artifacts. Ms. Rosen said she was present at the Archaeological Commission meeting, the members had some interesting questions, and were informed that the most likely ancestor had been involved in the process from the beginning, she has heard that is not true, in fact it is said Mr. Anthony Morales was notified about the time the project came to a halt, it is known that his son has been present at a number of demonstrations and is present at this meeting. Ms. Rosen reminded that feelings regarding ones ancestors run deep, and she would hope that the Council and others who care will step forward and make their feeling heard. Mr. Andy Morales, said he was present to speak for and. represent the Tonga Nation, he is the son of the Chief of the Tonga Nation, Anthony Morales. Mr. Morales stated that the Hellman Ranch sits on burial grounds, this is a personal issue, sensitive, the human remains that were found on sacred sites of the Hellman Ranch were his Tonga ancestors, his family, relatives. Mr. Morales offered that the Tonga Nation has always been discriminated, especially by the federal government who does not recognize them as a tribe, now there are land developers who come and destroy the burials which makes matters worse, and asked that the City look into these problems and sensitive issues. I I Mr. Stan Anderson, Seal Beach, noted that last month Mr. Bill Ward appeared before the Council and donated $500 in honor of former Seal Beach resident Paul Eugene Sweigart, Jr., a pilot missing in action during the Vietnam conflict, to that some people have been gathered together, they are moving forward towards having a plaque in his honor placed in Eisenhower Park. Ms. Joyce Parque, 6th Street, said she wanted to let the taxpayers know that she attended all of the budget meetings, there was a Police Captain that left the City to go elsewhere which was a $183,000 reduction, there was another $100,000 and some dollars that the Council cut, there was another budget workshop date but it was canceled yet the Council was voted on a two year budget, even before the budget meetings the Manager was given a pay raise, even then the Council knew they were going in the hole. The City Manager in turn moved the Recreation Department out of City Hall, then moved them back, placed measures on the ballot to increase taxes for tree trimming and twice a week street sweeping, people asked why so much money was needed, the Building Department was contracted, for that there needs to be an accounting of how much money is coming in and going out and are they getting an extra ten percent cut, why is that not going into the City coffers, then there was 1119 Ocean, that was for Section 8 housing in Old Town, there is no police protection on Main Street, there is yet no newspaper rack ordinance, the City Council is supposed to represent the whole City, maybe an election like Huntington Beach is needed 10-14-02 where they run citywide, there is no enforcement of ~he sandwich board signs or sidewalk sales. Ms. parque said now there is a questionnaire that will be distributed to Main Street businesses by an intern relating to sidewalk encroachments, why are the people on Main Street being asked about trees, there is a tree committee and they have 'paid for many of the trees and the work, they paid for the trees on Seal Beach Boulevard through grants and the money raised through the beach event, bike racks are not necessary on Main Street, and the proposal is to charge $2 to $3.50 per square foot for the business owners to use the right-of-way,~ she sees this as stalling, just enforce the Code now. Then there are parking meters for Main Street, Electric, Central and Ocean, there is a dead pine tree at Electric and Seal Way because it was not watered for a year, now the proposal is to buy the wetlands for Laing Homes, when one mentions grants that has to be matched with taxpayer money. With regard to the Trailer Park lawsuit, Ms. parque agreed with a prior speaker, the signed agreement stated that the proceeds go to Linc Housing, who is the purchaser, also that Richard Hall should pay for any third party legal fees, and made reference to the conversation between the City Attorney and former member of the Council as reported to the office of the District Attorney. Ms. Reva Olson, Seal Beach, said'a recent news article reported that if the Redevelopment Agen~y were disbanded the Los Alamitos school would lose money, it is just the opposite, the last thing that the advocates to abolish the Agency would do is take money from the schools, they are trying to get the taxpayers money back in City coffers where it belongs rather than being diverted to the Agency for a slush fund so that the Council can spend it the way it wants without the people having anything to say about it, the reason the advocates want to reform redevelopment is because their services are not being taken care of with the redevelopment money. She is also concerned about the budget, that is because the taxes are not going where they should go, the Council is responsible for the taxpayers money, something has to be done to clean up this town, there are too many legal fees, that is because there is continued violation of laws, there was an illegal in-lieu parking program, people paid in but no one knows where the money is, her feeling is that that money has to be returned, and according to. Jarvis and the La Habra case she feels the utility tax is illegal as well, the court case said there was no statutory limit and the people needed to vote on it, but Seal Beach did not do that, it is time the Council took care of the taxpayers, they deserve better. Ms. Olson offered that the tribal people have known Hellman was a burial ground since the 1950's, there was the Redwine report, they found burials then, there are twenty more, and more will be found, the archaeofogist appointed by Councilman Antos is aware that it was a,burial ground, and said she knows the Council will respect the tribal people. I I Mr. Adrian Morales stated he is a Native American consultant on the Heron Pointe project, also a son of the tribal Chief Anthony Morales. Mr. Morales requested the assistance of Seal Beach to put an end to the demolition and destruction of their ancestors by the large machines, there are other ways of doing development while saving the ancestors, the; Native Americans and professional archaeologists on the sit~ know that there are many more to come, with the power of the City Council it is hoped that Laing Homes can be swayed tb cap their area and make things easier for all parties inVolved. Mr. Wes Rose', a Tonga tribal nation dancer, said helwas I 10-14-02 I appalled at the digging up of burial grounds, the bones of their ancestors are being destroyed by bulldozers, their sacred artifacts, never meant to be viewed by anyone, are being thrown in boxes, the native people are not being allowed to see their people or to rebury them, this is taking away their right to be dead, and to be buried where their ancestors lived for eight thousand years. Ms. Rita Brenner, Trailer Park, reported having copies of several newspaper articles that mayor may not be of interest to the Council and staff, one reports that a landowner may be charged in a fraud case, another reports a retired planner to be charged, as others in that city, with lying about documents, making deals, etc. With regard to redevelopment agencies and money, an article reports a judges ruling that a certain city had to pay over $240 million to a school district over a period of thirty years, that due to mismanagement of their agency, money, etc. Ms. Brenner referred to legislation that the Governor has signed with regard to housing affordability, recalled discussions relating to homes that will be built on land that they should not be built on, to which she offered that it would be nice to show respect to the Native Americans as well as low and moderate income persons, stating that all of these things are so important to everyone that they should be working together, just like the right to speak at meetings has been taken away, and suggested that the Council come together, the Council represents the people, make them proud. Mr. Thomas Rogers asked why it takes four months to get minutes done. Ms. Sue Corbin, Seal Beach, said she too attended the budget meetings, the City could be close to bankruptcy by July 2002, there were to be more meetings, when it was realized there would not be State money the indication was that discussions would start again, there would need to be cuts, yet she has heard nothing about cuts and very little about bringing money in or collecting money that should be collected, she reviewed the warrants before this meeting, there are twice as many as before, the Council is pretending nothing is happening, spending needs to stop, more meetings need to be held, this is an emergency. Ms. Corbin blamed staff for what is going on with the Hellman land, it has been known for fifteen years that the area is a ten thousand year old cemetery, said this is east Pavunga, where the god of the Tonga tribe was born, this is important to them, they are special people, it is told that they have a sacred site in Laguna, Seal Beach is also a sacred site, the world knows this. Ms. Corbin claimed that the Archaeological Committee was interested in what has taken place, they inquired about the amount of testing, why tests were done away from the sensitive site, she said the City determined that additional testing would be redundant, this is pretending to follow the law while helping the developer, the archaeologist was sent away when the developer said they were not going to do the sensitive site, then the monitors came in and saw what happened, the Council knew all along that this would happen, Dr. Dixon of the Committee wanted to know why there was limited testing, why the grading started so early. Ms. Corbin again said the Council needs to face the financial crisis now, not later. There being no further comments, the Public Comment period was closed. I I COUNCIL ITEMS Councilman Antos said his understanding is that City staff is quite busy and can not prepare the news rack ordinance at this time, given his experience in writing portions of the zoning ordinance, he asked that staff provide him with the information, he will prepare a draft ordinance and return it 10-14-02 to staff. with regard to some of the information heard relative to the Hellman property, Councilman Antos suggested, unless the City Attorney has a problem with it, that staff contact Dr. Dixon to obtain a copy of the current laws relative to Native American remains and burials to make certain that there is compliance with the law, irrespective of the Coastal Commission conditions, State and federal laws must be adhered to in this case. CONSENT CALENDAR - ITEMS "c" thru "L" Doane moved, second by Yost, to approve the recommended action for items on the Consent Calendar as presented, except Items "J" and "L" removed for separate consideration. I C. Approved the waiver of reading in full of all ordinances and resolutions and that consent to the waiver of reading shall be deemed to be given by all Councilmembers after the reading of the title unless specific request is made at that time for the reading of such ordinance or resolution. D. Approved regular demands numbered 39196 through 39529 in the amount of $1,626,799.35, payroll demands numbered 17694 through 17842 and 927732 in the amount of $181,019.02, and authorized warrants to be drawn on the Treasury for same. E. Approved the Agreement with the Orange County Sanitation District relating to the Fats, Oil, and Grease Control Study as required by the Regional Water Quality Control Board Order Number R8-2002-0014, the City's portion of the study cost being $3,000 for phase one. I F. Authorized the City Manager to enter into a lease agreement for three new motorcycles, funds for said lease budgeted in the Fleet Maintenance account. G. Authorized the City Manager to enter into a lease/purchase agreement for four new Ford Crown Victoria Police sedans, funds for said lease/purchase budgeted in the Fleet Maintenance account. H. Received and filed the status report relating to grant applications. 1. Adopted Resolution Number 5068 entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH, CALIFORNIA, AUTHORIZING A BUDGET AMENDMENT, NO. 03-08, FOR SENIOR BUS PROGRAM." By unanimous consent, full reading of Resolution Number 5068 was waived. I K. Approved the minutes of the August 12, 2002 regular adjourned and regular meetings, the August 26th regular adjourned and regular meetings, and the September 9th regular adjourned and regular meetings. AYES: NOES: Antos, Campbell, Doane, Larson, Yost None Motion carried 10-14-02 ITEMS REMOVED FROM THE CONSENT CALENDAR I ITEM "J" - ORDINANCE NUMBER 1490 - ESTABLISHING COMMUNITY FACILITIES DISTRICT NO. 2002-1 - HERON POINTE Ordinance Number 1490 was presented to Council for second reading entitled "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH, CALIFORNIA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF CITY OF SEAL BEACH COMMUNITY FACILITIES DISTRICT NO. 2002-1 (HERON POINTE) AUTHORIZING THE LEVY OF A SPECIAL TAX WITHIN THAT DISTRICT." By unanimous consent, full reading of Ordinance Number 1490 was waived. The City Attorney pointed out that the blank spaces for a Resolution numbers will be filled in by the City Clerk, the Resolutions having been adopted at the last meeting. Campbell moved, second by Doane, to approve second reading and adopt Ordinance Number 1490 as presented. Councilman Antos said if the Heron pointe project is stalled and does not go forward would the City have any liability. The response of the City Attorney was that there would be none with the adoption of this Ordinance. Councilman Yost said he was not voting for approval in that he has some issues with what is transpiring on this property. AYES: NOES: Antos, Campbell, Doane, Larson Yost Motion carried I Counc~lmember Campbell mentioned that if the project did not have this assessment district the City would be paying for the infrastructure, this is a common practice in California where the developer floats the bonds and the new residents are assessed to pay for that infrastructure. ITEM "L" - RESOLUTION NUMBER 5069 - BUDGET AMENDMENT - INTERN Councilman Antos inquired if there was no one on staff that could accomplish the additional projects. The City Manager responded that existing staff are working on a variety of projects, it felt to be important to catalog the contracts, build a data base for the purpose of bidding, renewal, etc. prior to expiration, there is not current manpower to do that but it is felt to be a critical project. Campbell moved, second by Doane, to adopt Resolution Number 5069 entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH, CALIFORNIA, AUTHORIZING A BUDGET AMENDMENT, NO. 03-09, GRADUATE SCHOOL INTERN PROGRAM." By unanimous consent, full reading of Resolution Number 5069 was waived. AYES: NOES: Campbell, Doane, Larson, Yost Antos Motion carried It was the order of the Chair, with consent of the Council, to declare a recess at 8:01 p.m. The Council reconvened at 8:14 p.m. with Mayor Larson calling the meeting to order. I PUBLIC HEARING - APPEAL - PLANNING COMMISSION DENIAL - CONDITIONAL USE PERMIT 01-9 - RIVERS END RESTAURANT Mayor Larson declared the public hearing open to consider an appeal of Planning Commission denial of Conditional Use Permit No. 01-9. The Associate Planner presented the staff report, acknowledged that this item is an appeal of the Planning Commission denial of Conditional Use Permit 01-9, a request of the owner of River's End Restaurant to serve beer and wine for on-sale consumption only. He noted the options of the Council are to deny the appeal and sustain the decision of the Planning Commission, sustain the appeal of the appeal of the applicant thus revising the decision of the 10-14-02 Planning Commission in accordance with the appeal, or sustain the appeal, revising the decision of the Planning Commission in accordance with terms and conditions other than those requested by the appellant. The Planner reported that in August of this year the Planning commission denied the request on a four to one vote. Some of the issues were the restaurant's close proximity to the beach and the floor plan of the facility, the predominant area of the floor plan being an open-air patio, a concern also was noise and the potential to pass alcoholic beverages to persons on the beach. He noted that the Code sets forth three specific areas that should be looked at when reviewing these types of applications, the first is whether the use is conditionally permitted within the zone, and secondly is it compatible with the peneral Plan, the answer in both cases is that the use is conditionally permitted and it is consistent with other land uses that have been entitled in the public land use zone, and last, is the use compatible with rather than detrimental to surrounding uses and the community in general, this will likely be the issue that the Council will look at, this is an issue the Commission looked at and came to resolution on a four to one vote to deny the application. The Planner noted that there is limited fiscal impact yet pursuant to the amended lease with Rivers End the City realize seven percent of any sales generated by beer and wine if the CUP were to be approved. The Planner presented photos of the restaurant and general facility, one showing the building at the rear of Rivers End to the property line of the closest residential property, five hundred thirty-six feet is the nearest residential structure, all of the Gold Coast structures are required to have ninety-six foot setbacks, that is just a little bit less than two football fields of distance between the actual patio seating area and the closest residential structure, the building itself is forty to fifty feet to the actual patio, a photo was shown of the cement walkway coming to the patio area and the structure that houses Rivers End, a photo looking towards the beach, another from the beach looking at the restaurant, the patio to the left with the houses seen in the background to the right, given the concern of the Commission with regard to passing of alcohol over the wall, a photo was taken showing the wall, the cement base eighteen inches to two feet with a three foot high wall on top of that for a height of about five feet from the beach level to the top of a wooden guardrail, and other photos showing distances. I I Councilman Yost noted there have been several questions raised by persons in the community, one has to do with entitlements, an example being the former wine and cheese market on the current Hennessey's site, the original CUP was for a delicatessen, then a nice restaurant, and then an Irish bar where a progression of intensification of use was seen, this being a City owned property is it different in any way, would it be a taking to remove the CUP in the save sense of it being a private property. The City Attorney responded that a CUP runs with the land, that is basic land use principal, for a private property once the City has made the findings that that particular property is entitled to a CUP it does not matter who the owner is, with regard to the issue of City ownership of the property, the City has more control of the property, there is control over the tenants therefore should this tenant be issued a CUP the terms of the lease would control where that CUP can go eventually, should there be a successor in interest to the current lessee, at that point presumably the City would negotiate with them, the CUP I 10-14-02 I would be one of the issues, whether they can continue to use the CUP for that property, the City has the power at that time to decline such use to sell alcohol on that City property. Councilman Yost noted that it has been said by some that it is against the City ordinance to have alcohol on the beach, therefore why would the City permit something that is against the law, would this be considered to be on the beach, how could it be permitted given its close proximity, what types of barriers are in place and what is the comfort level that those would prevent alcohol from going onto the beach. The City Attorney stated that in terms of the property issue he could not consider that, from a legal perspective, the structure is not part of the beach, the other issues are more a planning perspective in terms of enforceability and other issues. The Planner added that to the issue of whether alcohol is going to be passed onto the beach, typically whenever there is an outdoor patio situation that may serve beer there is a standard condition for a forty-two inch guardrail, if the Council was more concerned with this particular location given the floor plan the height of the fenced area could be raised to assure that alcohol does not go onto the beach, with regard to being at or near the beach with alcohol the Planner pointed out that Ruby's does have a valid CUP to serve beer and wine, although they are located at the end of the pier with no direct sand access they too are within the Public Land Use Zone. Councilman Yost said if it is City owned land, and a patron consumes too much alcohol, goes into the water and drowns, to what degree would the City be liable. The City Attorney said at first hand he could not see exposure, however as is well known people can always file lawsuits, in terms of the fact that the City leases the property he has not specifically addressed that issue, he is aware that there are a number of cities that have many establishments that sell alcohol that are adjacent to or on the beach or on the pier, he would suspect that there would be no liability. Councilmember Campbell inquired as to who would own the alcohol license, the lessee or the City. The Planner responded that the CUP would run with the land so it would give the property owner of 15 - 1st Street the ability to sell beer and wine for on- site consumption, the current lessee is Rivers End. For clarification, the City Attorney noted that it becomes complicated when there is an ABC license and a CUP, ABC has its own rules about the transfer of licenses, that changed in recent years in terms of the noticing requirements for transferring a license, then the City CUP runs with the land, in this case the City has control over the CUP by virtue of having control as to who goes onto that property, any successor in interest would need to enter into a lease with the City, at that point the City can make a decision as to whether the applicant or use is appropriate for the sale of beer and wine, if the City determines it is not then the CUP is gone. I I The City Clerk certified that notice of the public hearing was advertised as required by law, as of this date seven hundred sixty-one signed letters in support of the appeal had been received, one letter in opposition, copies of which were provided the Council, and it was believed that the Council received two additional personalized communications relating to this matter. Mayor Larson to this item themselves. invited members of the public to come to the microphone and Mr. Mike Balchin, stated that wishing to identify he and his speak wife 10-14-02 are the owners of Rivers End, that Rivers End will never be more than the quality community service that it is now, it is felt to be an existing benefit to the City, the request is for beer and wine which will only be served with food, the ratio will be seventy-five percent food, twenty-five percent beverage, Rivers End will not be a bar. He believes that the Council has read his appeal to the Planning Commission denial, he feels they were uninformed, making their reasons unacceptable for denial of the Conditional Use Permit. Mr. Balchin said if he did have a twenty-five percent increase in customers during the week that would mean that First Street and Ocean would have an increase of traffic of ten cars a day, to him that does not seem to be much of a traffic impact. He pointed out that he has completely rebuilt and maintained the restaurant area at the First Street beach complex at no cost to the City, this unlike other City rental properties where the City maintains the operations, Rivers End has improved the quality for those who come to the site and will continue to do so, monitoring customers is mandatory for a restaurant with alcohol and they will be especially aware to protect the privacy of their neighbors. Mr. Balchin stated he is trying to bring revenue to the City in a reasonable manner, they have struggled to stay open for the last five years and having beer and wine in a reasonably controlled manner with meals will make their operation more complete with beverages of choice. He mentioned that they plan to raise the patio railings with windbreaks to stop any possibility of passing alcohol over the wall, that by means of glass or plexiglass over the railings. Mr. Balchin expressed appreciation for the clarification of the transfer of the CUP for that facility, it is the Council that approves the lease and its restrictions, any change requires approval by the Council, his understanding is that this would be a probationary permit that will require reapproval after a year. Mr. Balchin said if the Council would support his request the Council has his commitment that he will continue to represent the City in the quality manner that he feels they have, also thanked those who have offered their confidence and support. I I Ms. Mary Horowitz, 12th Street, stated she is a walker, walks her dog, and walks with her husband to Rivers End, one of the things she enjoys about that area is that it is well run, and the public restrooms receive much more frequent cleaning and attention thanks to Rivers End, that is a service to the City and should be rewarded, that type of responsibility should be rewarded, the CUP is not permanent, if there is a problem it can be looked at. Ms. Horowitz suggested that the Council look at the City from the viewpoint of people trying to use local facilities and items, frequent the stores, the restaurants, walk the sidewalks, she would ask that the Council not ban something because of a potential for abuse, ban the abuse and allow the people to use things responsibly. She stated that this is a good example, these are responsible people asking for Council support to do something in a responsible manner, it should help the City with a bit of income, it will help the owner run a profitable business, she would like this restaurant to remain for a while, do not say no simple because of being scared that there might be problems, there are youths that bring beer to the rocks, throw beer cans, have a party, that is because there is no one responsible that can see the area and call the police to report people abusing the beach, with Rivers End in operation for a few more hours, overseeing, there will be someone in the area that can make such reports, that will be an asset. I 10-14-02 I Ms. Horowitz asked that the Council support this request, reward them for their responsibility. A member of the audience stated he was not a resident of Seal Beach, lives in Belmont Shore, yet spends considerable time and money in this town, he had submitted about seventy-five of the support letters from the area in which he lives. The gentleman questioned how many remember what that specific area was like seven years ago, it was a blight on this City, his wife, a runner, would not frequent the area in the afternoons because of things that were going on in the area, when Mr. Balchin proposed to open the restaurant there were the same concerns, the same arguments voiced, traffic, noise, etc., look at that facility today, they are very responsible owners. . Having thirty-two years in law enforcement the gentleman said he knows the laws pertaining to the responsibility of bars and restaurants, not serving someone under the influence, Mr. Balchin knows those laws as well, he is only asking for the opportunity to add beer and wine to his menu, this would allow a family to have lunch at the restaurant, the children could play on the beach while the adults enjoy their food with possibly a glass of wine, this is not a bar, it is a restaurant with a serving bar as supplemental. The Planning Commission talked about the distance from residential of about five hundred eighty feet, to that he asked how far the Council Chambers are from two or three bars, it is much closer than five hundred eighty feet. The gentleman asked that the Council look at this person, at what he is asking, and look at the use, and even though a nonresident stated he has grown up in the area, frequents Seal Beach, and urged approval of the CUP. Mr. Joseph Polagra stated his agreement with the comments of the prior speakers, how the Balchins have improved the area, a few years ago he too came to the Council seeking a beer and wine license for the Blackboard Bistro, most of this Council were here then and did grant that license, it has helped his business and he feels it has contributed to the community, he would ask for the same opportunity for the Balchins as was afforded him. Mr. John Hermstad, Seal Beach, submitted an additional forty-nine letters of support for Rivers End, stated that the Balchins have been good for the City and they should receive support of their request. Ms. Seretta Fielding, Seal Beach, said she has frequented Rivers End for a number of years, the Balchins are not only good community people as far as their restaurant and quality are concerned but they also support the community and sports and youth organizations, they deserve this chance like other restaurants in town. Mr. Bob Thornberg, Seal Beach, asked for the support of the Council for the Balchins, stated they have a quality product, a creative menu, it is clearly a restaurant and not a bar, they have cleaned up the area, it is something that the community can be proud of, his feeling is that the Planning Commission made an error, and made mention of the amount of money the Balchins had to spend to just ask for consideration of their appeal. Mr. Dennis pollman, Seal Beach, said this is a vote on a persons livelihood, this is a beer and wine license, there are people who will not frequent a restaurant where they can not enjoy a beer or wine with their meal, if Rivers End does not have such service there are those who will not go there, and offered that there are a number of fine establishments in this City, and upon checking he did not find one that does not have beer and wine. Mr. Pollman pointed out that the Balchins have provided a quality operation for a period of five years, they are not absentee owners, they are there every day, whatever rules or conditions that are set by the City or the ABC he would assure that they will be followed, I I 10-14-02 they will not serve beer or wine unless the customer is sitting down and ordering food, they will certainly not allow someone to take that beverage and walk out onto the beach, if this was an under age person who wanted to purchase a beer they would just go to Main Street to buy it, not pay the price for a beer at a restaurant, and noted that at present Rivers End has a posted rule for no smoking in the restaurant or on the patio, if someone does not comply they asked to leave and not return. Mr. Pollman offered that the property itself is located close to residences but unlike Main Street they are nearly two football fields apart, the Balchins have respected their neighbors, at planning Commission it was mentioned that in the case of a problem they have addressed it, also, two things were stated at the Commission, that this would set a precedent to allow other City properties to have beer and wine licenses, yet at that time one Commissioner did not know that Ruby's has had such license since they opened, another reason was that this would be an increase in traffic, in his opinion he did not feel there would be such increase except for those who come for dinner, as said, if there are ten additional people going for dinner that is not much of an impact, and since there was no traffic study performed that reason for denial does not seem to be reasonable, there was also no opposition to the use from the Police Department or the planning staff. Mr. Pollman mentioned that if this use is granted the ABC rules state that there needs to be seventy-five percent food sales to twenty-five percent beverage sales, if the owner fails to file a report stating that then ABC can come and look at his records, where he purchased the alcohol, and could shut down the business immediately, they merely pull the license, the City too can stop the operation if there are a number of complaints, with facts presented, that he allowed beer to be taken to the beach, and his right to sell alcohol can be pulled. Mr. Pollman asked that the Council grant the Balchins the right to continue to operate a great restaurant, they have cleaned up the area, there is no longer a policing problem, they have been good tenants, they will abide by all rules and conditions imposed, they have made the community a better place, and again urged that they be granted the CUP so they can be successful. Mr. Stan Anderson, Seal Beach, said he has been friends with the Balchins for years, they operate a good family restaurant, has been a good neighbor for the City, he is active with the Surfrider Foundation, the surfing contest, and other activities, since taking over the facility they have cleaned the restrooms, there is no longer graffiti, the homeless and vagrants have left. After five years of taking over a restaurant that was left open for many years, the Balchins have made the business a success, he can now stay open until 8:00 p.m., the beer and wine license will enhance the business with people enjoying their dinner watching the sunset, the police and planning department support this request. Mr. Anderson urged support for the Balchins and their CUP request. Mr. Bob Herron, Pacific Coast Highway, said he too supports this request, his belief is that the Planning Commission was laboring under some misinformation, the area has been cleaned up, the police can take care of any problems that may arise, and he would encourage approval of the CUP request. Mr. Bob Heenan, President of the Chamber and resident, spoke on behalf of Rivers End Restaurant and their beer and wine license request, said this business will generate a seven percent revenue increase to the City, operating until 8:00 p.m. will not cause an impact, this facility is not a bar, it is not felt that sounds will travel, this request is basically for I I I 10-14-02 I dinner with beer and wine. Mr. Heenan said he would support approval based on past history of performance and support for the community of Seal Beach. Mr. Bob Driscoll, Regatta Way, spoke for granting the conditional CUP for Rivers End, he and his wife enjoy breakfasts with a cup of coffee, would also like the opportunity to have dinner with a glass of wine, this is a low key operation, is operated by a responsible couple, they have been active in improving the First Street parking lot, and have provided a quality facility at which to relax with friends, it seems only fair to give a restaurant that has made the community a better place a probationary chance, the permit must be reapproved in twelve months so should there be a problem it can be dealt with then, this operation should be given a chance. Mr. Driscoll said he has a vested interest in the area as he is the one that spearheaded the group of citizens that put in the grass area, then came Rivers End, both being improvements, granting the CUP will also be an improvement. Mr. Jim Duncan, Bluebell Street, recalled that recently he was at Rivers End the second night they were open, he was given the opportunity to sign a letter of support, he overheard discussions of others who could not understand why they would not be allowed to have beer and wine, he too thought how nice it would be to be able to have a glass of wine with his meal. Mr. Duncan pointed out that precedent was set with Ruby's, other than for political reasons he could see no reason for them not to have beer and wine, in College Park East the people have Islands and Macaroni Grill but nothing has the unique atmosphere that there is at Rivers End, the Balchins have done a great job, they will control their operation, and urged that Rivers End be given the opportunity to make their restaurant even more successful with a unique dining atmosphere. Mr. Steve Masoner, Ocean Avenue, spoke in support of the Balchins, they have supported the beach cleanups since they started as well, said these people have put their passion behind their business, these are the kind of people that are needed in the community, this will bring in a bit of tax revenue while also bringing a flavor to the City. Mr. Masoner asked that the CUP be approved. Michael Narz Cottonwood Lane, mentioned that he only has to cross one street to get to Rivers End, things have gotten so much better since they have been there he could not imagine why anyone would want to stop them, and spoke in support of allowing the CUP. I I Mr. Roger West, Electric Avenue, expressed his opposition to this application to sell alcohol on the public beach, it is a wrong use, it is on the sand, the Planning Commission voted four to one against this request, they should not be overturned. Mr. West reminded that alcohol is prohibited on public beaches, if this Long Beach resident is allowed to do this how can the City control the rest of the people from drinking alcohol on the beach, the lessee just received a five year extension so he is making money, he does not need alcohol to survive, just make more money, he can sell the CUP for big money, unlike other restaurants he does not have to provide restrooms or parking as there is public restrooms and parking, he does not even have to meet building codes, this was a place for beachgoers to get hot dogs and soft drinks, thousands of dollars are being spent to bring sand in to save the beach, it can not be said that part of the beach is for rent so the appellant can sell beer and wine, there has to be more respect for the beach than that. Mr. Frank Comunale, Ocean Avenue, said he feels that the Balchins do a great job, but he feels that serving alcohol at Rivers End as compared 10-14-02 to Main Street or where Finbars is located is totally inappropriate. He said he hoped that the Council had read his letter in which he had outlined all of his objections. Mr. Comunale said there is a deserted dock, beach, and parking lot between the houses on Ocean and the beach, not a well traveled street, no lights, no patrols, the issue is not the noise in the restaurant, the issue is noise, the potential vandalism, violence, and crime that will occur after Rivers End closes and the owners leave, an 8:00 o'clock closing means that people will order a drink at 7:30 or 7:45, they will not finish until 9:00 or 9:30, they will stroll the beach and by the time they get back to the parking lot to leave the people at Rivers End will have gone home for the night, and the people along Ocean will be left unprotected. He said he disagrees with staff on their recommendation, he did so at the Commission hearing, the use for the serving of alcohol has not been established within the plan of the use of that public land, the first lease said explicitly no beer, alcohol, or other intoxicating beverages are to be sold at that site, the second lease does not permit the sale of alcohol but allows Rivers End to apply for a CUP which is then conditioned upon a public hearing and Planning Commission approval, the CUP was disapproved four to nothing, then denied by four to one. The issue at the public hearing was not the noise, it was vandalism and potential crime, also, the fact that beer and wine is as intoxicating as any ninety proof drink in drink equivalents, people will be leaving the parking lot with alcohol levels above the level which is legal to drive. Dr. Comunale said he disagreed with the City Attorney, the City as the owner, the landlord, and sharing in the receipts is going to be liable for anything that happens. As Commissioner for Health and Hospitals for the City of Cambridge he was responsible for the licensing of taverns and code enforcement and from that experience he claimed that the City will be liable, also, the greatest amount of the health care dollars that are spent in this State are alcohol related, motor vehicle and non-motor vehicle accidents following the ingestion of alcohol, beer being the leader, and he can attest to that from his professional experience. Dr. Comunale said he understands that the City needs money, but is it needed so badly that the City needs to get seven percent of a mind altering, addicting drug that causes more health care problems than tobacco, marijuana, cocaine, more crime after ingestion than anything else, including drugs, the only time drugs cause higher crime is when someone is trying to steal, otherwise it is the ingestion of alcohol, beer again is the leader, where are the owners and the police going to be at 11:00 o'clock at night, they will not be in that area, they have other things to do. Dr. Comunale said this will turn a low impact residential area which staff pointed out is low crime into a high crime neighborhood, experts have said that crime is related to the amount of alcohol sales in a neighborhood, to this he could see no value. He claimed there are twenty on-site alcohol serving facilities in the 1.7 square miles between 1st Street, Main Street, Ocean, and Pacific Coast Highway, if one takes the two census tracts there are twenty-four, ABC allows seven, there are another three or four just .3 miles away at Alamitos Landing. Dr. Comunale said he could not see why this City has to prostitute itself for seven percent, increase crime in an area that has been low crime, and how can selling alcohol to a pregnant woman that may not know she is pregnant be justified, the Council has to protect the City, protect against liability, protect all of the citizens. Ms. Joyce Parque, 6th Street, asked if the City is going to I I I 10-14-02 I be paying for half of the parking for Rivers End, will the City be sued because it paid for patrons to drink and drive, there will be meters on Main Street, does that mean the City will pay the parking for people to drink and drive, why is the City paying for the customers to park, she disagreed with that. Mr. C. M. Carson, Ocean Avenue, congratulated the present and past Councils and Commissions for making Seal Beach one of the pristine beach communities, the property values are reflective of that. His belief is that Seal Beach is different from Huntington Beach and other beach cities, this is a bedroom community, everyone in Old Town lives on or near the beach therefore what happens on the beach actually happens in their backyard, unlike Huntington Beach, selling alcohol not on but in the middle of the beach is a step in the wrong direction, when alcohol was taken off of the beach, when people were stopped from spending the night on the beach, building bonfires on the beach, with that the City has come a long way and he feels that CUP approval would be a big step in the wrong direction, therefore he would recommend that the Council uphold the decision of the Planning Commission. Mr. Balchin declined the opportunity to make a closing statement. There being no further comments, Mayor Larson declared the public hearing closed. I Councilman Doane said he wished to reflect back, one of the Mexican restaurants was for sale, BJ's Pizza wanted to come into that location, the public cry was another bar on Main Street, all BJ's wanted to do was to have the ability to serve beer or wine with a pizza, one did not have to have beer or wine to get a pizza, it was the early 1990's before they were allowed to come in with a beer and wine license, in checking with the Police Department he was informed that there has never been an incident of drunk and disorderly conduct, the Balchins want to do the same type of thing, the same thing was done for the Blackboard Bistro, there have been no problems there either, he can see a magnification of supposed problems by granting this CUP. Councilman Doane moved to sustain the appeal of Mr. Balchin, revising the decision of the Planning Commission in accordance with the appeal. Councilmember Campbell seconded the motion. I Councilman Antos said all of downtown is a high concentration area for alcohol, that is an issue that has come up time and again, this particular property is Public Land Use, it is on the beach, even though there is concrete it is still on the beach. Based upon the opinion of the City Attorney in the past, which he has a problem with, that the City can not grant a conditional use permit to an individual and have it run with the land with the specific individual for the use and then when another individual comes forward they would be required to start over again. He said there have been some court cases that have ruled that CUP's run with the land, he could not see why the City wrote the CUP reference into the lease, he knows that Ruby's has alcohol but it is totally enclosed and at the end of the pier, not on the beach. Councilman Antos noted that if there is a situation where people are saying there are people who bring beer and drink out on the rocks, that indicates that the Police Department is not doing its job properly, not patrolling often enough or someone is not reporting such incidents, he also can not see how the City can grant a permit for the consumption of beer 10-14-02 and wine in a building on the beach, then turn around and have people consuming beer and wine out on the beach cited. His feeling is that this is too close to the beach, the question is whether it is appropriate or inappropriate, yet some time ago the City made the decision to not allow alcohol on the beach, the same as the signs that say no fires on the beach, it is unfortunate that the provision to allow the applicant to go before the Planning Commission to apply for a use permit was written into the lease. Councilman Antos said he could not see that an argument has been made for the overwhelming need and the appropriateness to allow this use in this location, it is basically a public beach and should not be permitted. I Councilman Yost offered that this is a difficult and challenging decision for him, it is he who appealed the Blackboard Bistro CUP request for some of the reasons cited, that CUP's tend to run with the land, his concern in that case was with having a sports bar sell alcohol while sharing a parking lot with a day care center, he did not get much support, when he appealed that issue he did not see those present complaining about that, he was alone in making the appeal of that CUP, there were actually two alcohol licenses issued, the Main Street Cafe and Blackboard Bistro, he did not appeal the Cafe. This situation is frustrating in that. people he is seeing now he did not have their support at the time of the Bistro appeal. He said he is torn also because he knows Mr. Balchin, he frequents the First Street parking lot several times a week, it is a so much nicer and safer area now from what it used to be, Mr. Ba1chin has served on the Friends of the San Gabriel River Committee for him, has helped clean up the 1st Street area, helps sponsor the beach cleanups, he has taken ownership over an area that was blighted, dangerous, scary, filled with graffiti and vandalism prior to entering the area which is now a nicer place, yet he also sees the problems that alcohol brings as well, it is frustrating to be put in the spot of possibly voting for something that would contribute to that, yet it is something that is also legal, there are eight hundred ten correspondences a great many of which are constituents, it is difficult to make a decision under these circumstances. He mentioned being concerned with the CUP running with the land, somewhat comforted by the fact that the City owns the property therefore controls the CUP therefore does not necessarily mean that the CUP transfers from one business to another, that is a key factor. Councilman Yost said he is interested to know what type of barriers will be put in place to ensure that if this is approved that alcohol will not end up on the beach, he believes that the parking lot is lighted and if there are issues the Police Department will patrol more frequently if that is required, the Police Chief does not have a problem with this request. I Councilmember Campbell said she has gone back and forth on this item, first thought was beer on the beach, yet there is beer on the pier, beer at another City-owned property at Blackboard Bistro, beer at BJ's where it couid be handed to someone on the street, comment was made about someone being drunk and running into the surf but what if someone is in that state and falls off the pier, the surf would be preferable to the pier, the City says no alcohol on the beach because it can not be monitored, yet people probably do bring beer onto the beach but they are wise enough to not be abusive because they know they will be cited or arrested, with the Balchins there it will be monitored, he is not going I 10-14-02 I to take a chance with something he has worked so hard for. With regard to transfer of ownership the City has the ability to review that, if this would create a huge financial increase there would have been other operators seeking the site long before now to lease the facility, this restaurant is out of the way, one of the things that makes Seal Beach special, he will not be selling liquor just beer and wine, if this does not work out the CUP will be pulled, if there is a problem it will be known as soon as it happens, in fact if there was a problem that Mr. Balchin felt he could not handle he would likely be the first to come to the City. Everyone knows the Balchins, they know what he has done for that area, no one can dispute that what he has done is positive for the City, has anyone given thought to what it would be if he does not have this facility, if he were to leave and no one else came in the building would likely be boarded up, it could likely be torn down, there would be vandalism, there would be nothing there and that is not positive for the City. Councilmember Campbell acknowledged that there are all kinds of ills that occur with alcoholism, but this could be shooting the messenger and not the message, if someone has that problem they will have it no matter where they are, stated she does not have a problem with this CUP, someone asked if she would be voting for the person or the principal, in this case it is for the person as it is known how responsible Mr. Balchin is, he has a proven track record, if another person comes in it will be reviewed, possibly deny an alcohol CUP until that person proves themself. I Councilman Antos said if this use permit is granted and runs with the land, how can it be stopped from running with the land. The City Attorney explained that CUP's do run with the land but in this case the City owns the property and has control over who it leases the building to, most people know that when you assign the assignment clause in a lease typically the standard provision is that the lessor can not unreasonably withhold consent to an assignee, but the lease contains a clause that totally protects the City with respect to assignment which states that 'there shall be no mortgage, pledge, encumbrance, transfer, sublease, assignment, without the prior approval of the City, the City may withhold its approval at the City's sole discretion', therefore the current operator can not assign his interest in this lease to another person without the City'S consent, that covers the situation of assignment. Should the lease expire, which goes to 2007, a new tenant comes in and wants to sell beer and wine, the City can simply say no to leasing the property to that person, whatever rights there are with the CUP would lapse through non-use, the CUP would then be gone, therefore indirectly because the City owns the property the City has total control over what happens to the property. Councilman Antos said then what is being said is that if the City does not want to allow a subsequent tenant to sell beer and wine, and although there is a CUP on the property, then the City has to let the property remain vacant for one hundred eighty days until it becomes an abandoned use, or on the other hand as the owner the City can say no, and why can not the City say no on other properties where there is CUP and not allow that CUP to be exercised. With respect to the first question the City Attorney advised that the City does not have to leave the property abandoned, that would be true if this particular use, not the sale of beer and wine, but the underlying use required a CUP, there would have to be a period of time to lapse, with beer and wine it is the sale of beer and wine, if the Council were to issue the CUP to this I 10-14-02 particular owner and for whatever reason stopped selling beer and wine for a period of time, the rights to the CUP. would' lapse. Again, the City has the power both with the assignment issue and any subsequent proposed tenant to have a lease such as the original lease which said very clearly no beer, wine, alcohol, or other intoxicating beverages, therefore the Council can decide in 2007 that this did or did not work, or it does not like the new applicant, it is not an appropriate use, whatever basis is desired, the new lease could say no beer or wine. Councilman Yost asked how that is different from Hennessey's. The City Attorney responded that the key difference is that the City does not have control of that property as it is not the owner, that is the major difference, the City has no say as to who goes there, and Councilman Antos is totally correct, once a CUP is issued on private property for any particular use it runs with the land regardless of the operator. Councilmember Campbell noted that the property in question has so many exceptions and the City has control over it that if there is any problem it can be corrected immediately. Mayor Larson said he is again in between, another time there was an application for something someone called and said they could have a number of people call him in support of it, his response was that with the fourth call he would guarantee a vote just the opposite, he does not appreciate phone calls all night, he received a call from West Virginia this evening who informed him as to how other people were voting and they were wrong. Mayor Larson stated that he does not know Mr. Balchin, he does not eat at his facility, this is not a popularity contest, it is a land use matter, he concurred that there are too many liquor establishments in Seal Beach yet this is such a minor issue and there is so much control if there are problems, he is willing to vote for it and see what happens. I I Vote on the motion to sustain the appeal of Mr. Balchin, revising the decision of the Planning Commission in accordance with the appeal: AYES: NOES: Campbell, Doane, Larson, Yost Antos Motion carried The City Attorney advised that staff will bring back a Resolution to Council for consideration to approve the CUP with all of the conditions mentioned and in the staff report, and it is believed the direction of the Council is to make sure there is no alcohol that could be transferred out of that property, the other issue is that there is a twelve month review period. CITY ATTORNEY REPORT No report was presented. CITY MANAGER REPORT No report was presented. I COUNCIL COMMENTS With regard to the CUP for Rivers End, Councilmember Campbell stated that had there been a concern at all for the personal safety of the neighborhood she would have voted against that request. To an earlier comment, Councilman Yost noted the speaker who had asked for his resignation given the Council action to pay legal fees of a former member of the Council, and clarified that the City will not be paying all of those expenses only what is required by law under these circumstances, the City is in no way assuming any expenses 10-14-02 I relating to any potential criminal activity. Councilman Yost expressed appreciation to Steve and Kim Masoner for the river cleanup, they did their usual wonderful job, many interesting things were removed from the River. Councilman Yost mentioned that he hoped his vote was correct on the CUP request, he understands the implications, it was a difficult vote. In response to questions raised relating to the budget, Councilman Antos said one of the things the Council did at the time the budget was passed was to agree that sometime around the end of the year the budget would be brought back, after the November election, at that point it may be known what the legislature and governor is going to do with the State budget and how that will impact the Seal Beach budget. To the City Attorney, Mayor Larson inquired if it were true that the City has a legal obligation in the defense of the former member of the Council in the lawsuit relating to the Trailer Park. The City Attorney responded that that provision is in the Government Code, the City has the responsibility and obligation to pay for all defense costs associated with acts within the course and scope of employment, the complaint as drafted alleged that the former member of the Council took certain votes in his capacity and made certain statements in his capacity as a councilmember also as an Agency board member. Mayor Larson mentioned that he felt the Council did an excellent job with the adoption of the budget, having study sessions to allow any member of the public to comment on the budget and the items being considered to be cut, he does not recall closing a meeting without allowing people to talk, there continues to be concern with the finances of the City and the budget, the adopted two year budget indicates there will be a shortage of funds, expenditures are being monitored, and there is a hiring freeze. The Mayor emphasized that there is great concern, it is not being ignored, expenditures are in accordance with policies, contracts, and other matters that have been approved by Council. Relative to the budget, Councilman Doane noted that the supplemental sample ballots for the November election have just been received, people are asking him about the Transient Occupancy Tax measure for hotels, the three percent increase brings Seal Beach up to a comparable range of percentages charged in surrounding cities, an example, Anaheim charges fifteen percent, San Jose charges eighteen percent, this too was approved during the budget process however since it is a tax it must be approved by the voters, this is a tax that will be paid by visitors to the City, and he would urge approval of Measure EE. Councilmember Campbell noted the comments of many as to where certain monies are used, to that she explained that in a great number of instances monies are earmarked for special funds, those monies can not be commingled or pulled out at will, if funds are received for a particular use they have to go for that use only, they can not be diverted to another use. I I CLOSED SESSION No Closed Session was held. ADJOURNMENT It was the consensus of the Council to adjourn the meeting until October 28th at 6:30 p.m. to meet in Closed Session if necessary. By unanimous consent, the meeting was adjourned at 9:48 p.m. 10-14-02 / 10-28-02 Uh erk and ex-offic'o e City of Seal Beach Approved: ~IW L~ Mayor I Attest: Seal Beach, California October 28, 2002 The City Council of the City of Seal Beach met in regular adjourned session at 6:30 p.m. with Mayor Larson calling the meeting to order with the Salute to the Flag. ROLL CALL Present: Mayor Larson Councilmembers Antos, Campbell, Doane, Yost Absent: None Also present: Mr. Bahorski, City Manager Mr. Barrow, City Attorney Ms. Yeo, City Clerk I The City Attorney offered that any member of the public wishing to speak to the item on the agenda could do so at this time. No comments were made. CLOSED SESSION The City Attorney announced that pursuant to the Brown Act the Council would meet in Closed Session to discuss the item identified on the agenda, to confer with legal counsel with regard to one item of anticipated litigation, Government Code Section 54956.9(b). By unanimous consent, the Council adjourned to Closed Session at 6:31 p.m. and reconvened at 6:47 p.m. with Mayor Larson calling the meeting to order. The City Attorney reported that the Council had discussed the item previously identified, no reportable action was taken. ADJOURNMENT It was the order of the Chair, with consent of the Council, to adjourn the meeting at 6:48 p.m. I Approved: ~~ Mayor -