HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
December 11, 2018
Written Comments
December 11, 2018, Council Consent Calendar Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 1. Minutes for the November 13, 2018 City Council Meeting
The passage shown in italics below is from the draft minutes with suggested corrections
indicated in cr°�4, �ut underline format. The page numbers refer to Volume 63.
Page 643, Item XII, Dixon, first bullet: "Announced the United Way of Orange County's 34th
Walk with Sue Parks on December 1, 2018, at 8:00 a.m., ..." [As Council member Dixon
explained, Sue Parks is the Director of United Way of OC. The correct name of the event series seems to
be "Walks with Parks"]
Page 643, Item XII, Herdman, second bullet: "Attended the weekly Aviation Strategy and
Messaging meeting, the Corona del Mar Resident Residents Association monthly meeting,
the Newport Beach Chamber of Commerce Government Relations Affairs meeting, ..."
["Government Affairs Committee" is not only the correct name, but also, according to the video, what
Council member Herdman said. It is a mystery how "Affairs" became "Relations" in the minutes.]
Page 644, Item XIII, paragraph 2: "He in Hoiyin Ip, utilizing a PowerPoint, discussed her
reasons for not supportin concerns about sidewalk vending in the City and suggested..."
[To the best of my knowledge, Ms. Ip did not say she did not support street vending. She did comment on
the potential it had to generate trash, and the opportunity it presented for public education.]
Page 646, paragraph 2: "Mayor Pro Tem O'Neill abstained on Item 8." [note: Under a strange
provision of Council Policy A-1, an abstention without a disqualifying interest is counted as a vote with the
majority. As a result, an abstention on the consent calendar is essentially of no effect.]
Page 650, Item XVI, paragraph 2, sentence 2: "She indicated Mr. Moriarty should have been
the was a successful appellant for this AIC, ..." [per video]
Page 650, Item XVI, paragraph 3: "Kevin Moriarty expressed his views regarding the Newport
Marina Development development plan AIC appeal."
Page 651, Item 22, paragraph 2: "Jim Mosher questioned what the new U.S. Army Corps of
Engineers funds federal funding would be used for and if the work the City does will be
acceptable to the Corps." [The reference was to major new funding for the dredging, mentioned in the
PowerPoint, that the ACOE received after the staff report was prepared.]
Page 651, Item 22, paragraph 4: "Public Works Director Webb thanked Mayor Duffield and
Council Member Avery for their support and noted the City might need to make a 20% match
which is also what the Army Corp of Engineers funs would be used for probably credit the
City expenditures toward." [The Director's comment was that an up -front expenditure of City funds
would not be wasted if the ACOE counted it toward the eventual dollar match required from the City.]
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 2 of 7
Item 3. Second Reading and Adoption of Ordinance No. 2018-17 -
Amending Newport Beach Municipal Code Titles 1 and 17 Related to
the Harbor Department
I am pleased to see City staff has corrected the obsolete reference to the "California
Administrative Code" that appeared in Section 1.12.020(B) of this ordinance when it was re-
introduced for first reading on November 27. Since I think that change in wording somewhat
stretches the concept of "correction of typographical or clerical errors" allowed at the second
reading of an ordinance under City Charter Section 412, 1 do think the correction should have
been made at the first reading, but it is good to see the changed language publicly (if somewhat
obliquely) acknowledged at the end of the Discussion on page 3-2 the staff report. In addition, if
a redline of the intended changes to Title 17 is sent to Code Publishing, I hope it will include this
additional change (in this connection, City staff recently sent the Coastal Commission a redline
of revised regulations that did not include last minute changes directed by the Council, and the
Commission has done the same to the City, sending it a redline that did not include last minute
changes).
That said, please note that Section 62 of the ordinance (staff report page 3-35) continues to
contain a (true) typographical error that should be corrected before adoption: 17.65.010 is a
Section of the NBMC, not a Subsection.
Although typos in staff reports are of less importance, an earlier paragraph on page 3-2 refers to
a change from "working days" to "calendar days" in "Section 17.40.140(A)" which (unlike the
above) is a change that has been part of the ordinance from the start. However, the change
described is actually in Section 17.40.150.
More generally, it should be understood the Discussion in the staff report does not describe all
the changes being made to Title 17 by the ordinance that are unrelated to deploying the
nomenclature changes necessary to create a Harbor Department. And even of those, some
seem problematic to me. In particular, while dividing the existing duties of the Harbor
Resources Manager and the OC Sheriff, between the City's Harbormaster and the City's Public
Works Director may seem a necessary goal, the insertion of "Public Works Director" into Title 17
seems to me to actually reduce transparency. Since it seems unlikely to me that the Public
Works Director will personally perform most of the duties assigned by this ordinance, I have to
guess the equivalent of a Harbor Resources Manager position will continue to exist (perhaps by
some other name?) within the Public Works Department. But as a result of the present
ordinance it will be less apparent to those reading the Harbor Code who that person is.
Finally, as I indicated in my written comments when the revised Ordinance No. 2018-17 was
introduced on November 27, 1 am pleased that Section 62 of the new ordinance revises the Title
17 appeals procedure by updating the entirety of NBMC Section 17.65.010 ("Authorization"),
and not just pieces of it: making it clear, as has always been the case, that staff decisions on
Title 17 matters can be appealed or called for review to the Harbor Commission, and Harbor
Commission decisions can be appealed or called for review to the Council.
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 3 of 7
As I further indicated then, the Council should be concerned that City staff has recently been
asserting the notion that the Council does not have the right to review Harbor Commission
decisions in matters such as mooring revocations, even though the section under which the
Harbor Commission hearings are held (Sec. 17.70.020) explicitly says the Council does have
that right (see Subsection E). Staff bases its bizarre interpretation on a poorly -written passage
added to a different chapter of Title 17 in 2013. The problem is the Council at the time was told
the new passage had only one function: to provide a simple, impartial and inexpensive (with a
$100 charge, refundable if the City is wrong) mechanism for dock owners to challenge City
staff's calculation of the dollar amount of annual rent due on their particular dock configuration
under the newly imposed "dock tax."
The Council may wish to know that since the Harbor Commissioners were startled to learn their
decisions could not be appealed to or called for review by the Council, as Item 11.2 at the
Commission's Wednesday, December 12, meeting, City staff will be providing a memo
instructing the Commission on what City staff continues to believe is the correct reading of the
Harbor Code: namely, that the Council has, in certain cases, barred itself from reviewing Harbor
Commission decisions.
Since the absence of a mechanism for Council review of Harbor Commission decisions
was, in fact, never the intention of the Council, and since staff insists their strange
reading of the code is correct, this is clearly something that needs attention.
Item 5. City Council L-6 Policy Update - Encroachments in Public
Rights -of -Way
As with Item 3, 1 am appreciative of the changes that have been made to this item, at the
Council's direction, since its first consideration. In particular, the new requirement for onsite
public posting of notice of meetings at which permission to encroach into the public realm may
be granted (the new subsection "2" on staff report page 5-6, and shown in redline on page 5-
18).
In considering this newly proposed language, I think it's important for the Council to understand
our Community Development Department's strange interpretation of the similar public posting
requirements in Title 20 (the Zoning Code) and Title 21 (the Local Coastal Program
Implementation Plan). In several recent cases, it has been pointed out to the Planning
Commission, or observed by the Commissioners themselves, that the required signs notifying
the public of the hearing could not be found. City staff has opined that the hearing could
proceed if staff or the applicant could produce evidence a sign was posted 10 days before the
hearing. In other words, the sign has to be in place long enough to have its photo taken. There
is no obligation for it to remain up.
In my view, and I think the view of many, that was not the intent of the posting requirement, and
it does not provide the public with the required chance to learn about the hearing.
To avoid inadequately noticed meetings from proceeding, I would suggest adding at a minimum
the following clarifying language to C.2.b on staff report page 5-6:
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 4 of 7
b. Posted on or close to the subject property in a prominent location for at least ten (10)
calendar days before the scheduled hearing by the Planning Commission in the
following manner. -
i. One or more sign(s) shall be posted as determined by the Public Works
Director.
ii. The size and location of the sign(s) shall be as determined by the Public Works
Director.
iii. The applicant for the encroachment permit/ waiver shall be responsible for
maintaining the sign(s) in a satisfactory condition throughout the required
posting period.
iv. The applicant for the encroachment permit/waiver shall remove all sign(s) at
the end of the appeal period.
At the top of the next page (5-7), 1 notice there are a couple of typos: the "i" should be deleted,
and the word "a" inserted into "where a sidewalk exists." I suspect there are many other typos
elsewhere in the proposed policy.
More generally, while I appreciate the addition of the posting requirement, I now feel the
entire policy needs to revisited.
As indicated in the staff report, Policy L-6, in its current form was adopted as part of a 215 page
Council consent calendar Item 5 on August 14, 2018, based on recommendations from the
Planning Commission. Not only was L-6 revised but it was combined with several other existing
"L policies."
Under our City Charter, proper use of the public realm, and encroachments into it, is much more
the province of the Parks, Beaches and Recreation Commission than of the Planning
Commission. Yet the Planning Commission recommended, and the Council accepted, deleting
entire policies such as the former Policy L-3 (City Landscaping Restoration) and the former
Policy L-13 (McFadden Plaza and Pier Use Policy) without consulting PB&R — and
recommended placing themselves in charge of hearing requests for encroachments (forgetting
that under our Charter such new authority would have to be established by ordinance).
This came home to me at the December 4, 2018, PB&R meeting, where, as Item VI.B the PB&R
Commissioners were asked to consider replacement of a City tree that was damaging private
concrete paving and raised planters installed in the public parkway without City authorization
(see staff report and attachments). PB&R was not asked to consider the encroachments, but
only the tree, even though under City Charter Section 709 everything about City parkways is
their province, not the Planning Commission's.
In reviewing Policy L-6 as revised by the Planning Commission and presented, again, in the
current agenda item, I was particularly intrigued by its provisions for private "improvement" of
the public street ends fronting on the ocean and harbor. This was of particular interest to me
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 5 of 7
because even the City's Zoning Administrator, when approving a coastal development permit for
replacement of a house of Lido Isle was surprised to learn the City had allowed the public street
end adjacent to the house to be developed as a "private" (homeowner's only) park. When this
was brought to the attention of the PB&R Commissioners, they were equally startled, yet none
of the L -policies, include the parts about parkways and trees have been reviewed by them.
Had PB&R reviewed the changes recommended by the Planning Commission, I think they
would have been concerned about the deletion of some of the foundational language that was
found in the former Policy L-8 (Private Encroachments in Public Rights -Of -Way Ending at the
Ocean Front or at Newport Bay), now supposedly subsumed into the new Policy L-6, but not
found in it. Such as that "The improvements do not create an impression in the mind of the
average member of the public that any portion of the public way is private property."
Since so much of it has to do with landscaping, parkways and access to recreational
opportunities, I believe our Charter requires that the entire revision to L policies that took
place on August 14, 2018, be revisited by PB&R.
Item 6. Resolution to Amend the Recycled Water Commodity Charge
If I am reading the staff report correctly, the City passes through a commodity charge to
recycled water consumers.
On March 20, 2018, the City received notice that the rate the City pays was going to increase
starting July 1, 2018 (Attachment B to the staff report).
If the present action is approved, the City will start charging the increased rate on February 1,
2019.
By my reading, that means the City will have been selling water for less than its cost from July
1, 2018, to February 1, 2019, a period of seven months, at a loss, if one believes the "Funding
Requirements" section of $36,000/yr x 7/12 yr = $21,000.
While that may not seem like much in terms of the overall City water budget, one has to wonder
why this could not have been handled in a more timely fashion?
One also has to ask if the City shouldn't increase the cost by larger amount to recover its loss
on the water supplied at less than cost?
I see the same questions arose when the City last increased the commodity charge (for
calendar year 2018) with Resolution No. 2017-69 as Item 3 on November 14, 2017. The letter
sent after that meeting indicates the City does not correct for the undercharging that occurs from
July 1 until it corrects the rates on January 1 or later.
One has to wonder if it would offer a refund if the rates went down (as I seem to recall it did to
settle claims of overcharging in the past)?
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 6 of 7
Item 7. Approval of Professional Services Agreement with Utility
Systems Science & Software, Inc. for Flow Monitoring Services
The staff report does not make clear if this has anything to do with the recently announced
settlement with California River Watch (Contract C-8576-1, the News for which has already
been deleted from the City website). The staff report indicates the contractor will be obtaining
data necessary to quantify "inflow" (typically though manholes) and "infiltration" (typically
through leaky pipe joints) of storm and ground water into the sewer (and storm drain) system.
One of River Watch's concerns was "exfiltration," or leakage of contaminated water out of the
pipes. In that connection, since the entire point of storm drains is to handle inflow, I would think
the main question in connection with them would be how much exfiltration (losses before getting
to the intended destination) there is.
Both the staff report and the Scope of Services are vague, at best, on how the three-year
program is expected to operate. At a total contract cost of $150,000, it appears the City will be
able to collect very limited sets of data from at most 64 points in its 300 miles of pipes. In
addition to the logistics of figuring out where to effectively deploy that limited number of sensors,
I would assume inflow testing would have to be coordinated with rain events, which may be
difficult to predict.
In this connection, I know the Costa Mesa Sanitary District (of which I am a sewer customer)
claims to have achieved sizable reductions in inflow by the simple expedient of putting
removable plastic plugs in the "pick holes" of sewer manholes in low-lying areas subject to
storm flooding. Prior to that, the rainwater drained through the holes into the sewer. I do not
know if Newport Beach has done the same. I also don't know if the City has considered "smoke
testing" its system, which can make some leaks and illegal connections visible.
Item 17. Setting City Council Regular Meeting Dates for Calendar Year
2019
The staff report does not explain that one of the oldest and most fundamental provisions of the
Brown Act, found in Government Code Sec. 5954(a), is the requirement for local governmental
bodies to "provide, by ordinance, resolution, bylaws, or by whatever other rule is required for the
conduct of business by that body, the time and place for holding regular meetings."
As to the "time" part, until it was consolidated into the present Policy A-1, the statement that
"The City Council shall hold regular meetings on the second and fourth Tuesdays of each month
except in December and August when there shall be at least one regular meeting held on the
second Tuesday"was the opening clause of former Council Policy A-6 (which was, indeed,
adopted by resolution).
Although the Council was not told any substantive changes were being made, that essential
Brown Act compliance sentence seems to have been lost from our "Open Meeting Policies"
when they were consolidated into the new Council Policy A-1, approved as part of the 338 -page
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 7 of 7
agenda Item 18 on August 8, 2017. That policy continues to mention the hour at which the
meetings are normally held, but fails to mention the day.
Although it doesn't say so, the present agenda item appears to be a work -around to fix that
oversight by adopting a separate resolution setting a schedule of meeting dates good for 2019
only. One might think correcting Policy A-1 (that is, restoring the language of the former Policy
A-1) would be a better and more permanent solution.
For those wondering about the other fundamental requirement of the Brown Act -- the question
of where the regular Newport Beach City Council meetings are held -- the solution to that
mystery is, at least partially, found in City Charter Section 409 (but oddly, not mentioned in
Policy A-1).
Received After Agenda Printed
December 11, 2018
Item No. 11
December 11, 2018, Council Agenda Item 11 Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 11. Certification of General Municipal Election Results
Since Section 400 of our City Charter says "The term of each City Council member shall
commence on the date of the City Council meeting, following his or her election, at which the
council receives the certification of election results from the City Clerk," and since the date of
the present meeting is December 11, it would seem to me to follow that the Charter's intent was
for the Council members elected on November 6 to be the ones making decisions on December
11, and for the last day in office for the previously -elected representatives to be December 10.
As a result, and out of respect for the will of the voters, I believe this item should have been
the first item on the December 11 agenda, not towards the end, after a business meeting
conducted by the previously -elected Council.
With only one face changing on the Council, that may not seem a matter of much practical
significance this election year, but if one imagines the public voting out multiple members of a
highly unpopular Council, it would make little sense for them to be allowed to continue to make
decisions on behalf of the public after the results of the election are known, and it has become
clear the public has chosen a new set of decision makers.
Even the comments the public is invited to make for the bulk of the present meeting are directed
(and rather pointlessly, in the above scenario) to the "old" Council rather than to the "new."
Wherever it belongs on the agenda, I have these comments on this item:
The title supplied by the County's Registrar of Voters to Exhibit 1 of the proposed
resolution (staff report page 11-7), although long in use in Orange County, seems
grammatically challenged to me. I suspect it was intended to read "Certificate of the
Registrar of Voters to the Result of the Canvass of the General Election Returns" (or,
alternatively, the original two "the"'s could be left out).
2. Unless I'm missing something, the twenty-second page of that Exhibit 1 of the proposed
resolution (staff report page 11-28) — giving the grand totals of votes collected in some of
the precincts for three candidates for Mayor of the City of Orange — while it may have
been supplied by the Registrar as part of his Certified Statement of the Vote, seems of
limited relevance to Newport Beach history.
3. In fact, it is unclear if everything starting on staff report page 11-18 is part of Exhibit 1, or
not. For example, page 11-18 repeats page 11-12, but there are not, as best I can tell,
similar repeats of the pages for Council Districts 1 or 3.
4. And while the results for various kinds of voting totaled over various kinds of political
subdivision for Council District 4 (page 11-20), Council District 6 (page 11-25) and
December 11, 2018, City Council Consent Calendar Comments -Jim Mosher Page 2 of 2
Measure T (page 11-31) are interesting, they do little to foster confidence in the integrity
of the results:
a. When the votes or ballots reported being cast in the seven Newport Beach "Ward
Divisions" are added together, the systematically yield a result different from the
totals report for Newport Beach as a whole or by summing the reported precinct
results.
b. For example the Grand Totals for the Duffield-Stoaks race reported on "Page
2216 of 3194" of the full Statement of Votes posted on the Registrar's website
(not shown in Exhibit 1), when summed over the seven districts, add to 19013 for
Duffield to 19076 for Stoaks, putting Stoaks ahead by 63 votes. This is quite
different from the 18458 for Duffield to 18422 for Stoaks reported in the certified
result. Indeed, the winner is different.
c. These discrepancies have, in the past been attributed to some of the precincts
being used for voting not being wholly in one Council district, leading to errors in
the reporting. But in the present election, the Registrar's interactive maps
indicate the precinct boundaries all align with the district boundaries.
d. It would seem to me that in a close race like this we deserve accurate reporting.