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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 13, 2020 Written Comments October 13, 2020, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the September 22, 2020 City Council Regular Meeting Suggested corrections: The passages shown in italics below are from the draft minutes with suggested corrections indicated in strikeout underline format. The page numbers refer to Volume 64. Page 533, paragraph 2 from end: "Council Member Dixon conceptually supported Mayor O'Neill's proposed changes but questioned how it could be translated to signage, believed that enforcement is not the only solution, and proposed permitting all bikes en weekdays only #rein May through September, and every day the rest of the year, and recommended implementing it in 2021." [See audio at 4:15:55: The words "on" and "from" were not spoken. Adding them makes the sentence much harder to read, giving the first phrase it is trying to say May through September is the only time bikes are allowed on weekdays.] Page 533, last paragraph: "In response to Mayor O'Neill's question, City Attorney Harp indicated the agenda item was noticed as direction to staff, noted that staff can brin_p back revis the proposed ordinance revised to implement all the pr-Gposal Council proposals, or Council can introduce the proposed ordinance tonight, with Mayor O'Neill's changes, and staff will return with a separate ordinance for the Council member Dixon's proposal." [Without some corrections, this passage is essentially unintelligible since there were three proposals pending: (1) a staff -proposed ordinance, (2) a proposal for revisions from Mayor O'Neill, and (3) a proposal for additional revisions from Council member Dixon.] Page 534, paragraph 1: "Council Member Dixon amended her proposal to revise the proposed ordinance as Mayor O'Neill suggested and direct staff to return with an ordinance to permit bikes en weekdays only kom May through September and any day of the week for the remainder of the year." Item 3. Ordinance No. 2020-25: Designating Portions of 61st and Lancaster Streets in Newport Shores as One -Way Streets I have no opinion about the propriety of this addition to Municipal Code Sec. 12.52.060, but staff may wish to review the whole of Chapter 12.52 (One-way Streets and Alleys) for its completeness and accuracy. This suggestion is prompted, in part, by the observation that "Attachment: Exhibit A — Map" to the proposed resolution identifies some of the streets shown as "Existing One-way Northbound," and only the portion of 61s' Street from Coast Highway to Newport Shores Drive as "proposed." That impression is reinforced by the second Whereas at the start of the resolution. Yet as the red -line reveals, none of these street segments are currently so -designated in the Municipal Code. Did someone fail to codify a previous ordinance regarding the "existing" one -ways? October 13, 2020, City Council agenda comments - Jim Mosher Page 2 of 7 I have likewise been long puzzled by the restriction in Sec. 12.52.080 (Newport Heights') of "Irvine Avenue from a point three hundred thirty (330) feet south of Westcliff Drive to Holiday Road. Northwest bound traffic only." That is puzzling because Irvine Avenue is a major two-way arterial. Apparently the code section is alluding to the fact that the City of Costa Mesa owns one side of a portion of the street. However, the traffic on the Newport Beach side flows northeast, not northwest, and Costa Mesa's ownership of the other side of the street does not extend all the way to Holiday Road. Also, Section 12.52.080 ends with "Via Firenze from Via Lido Soud to Piazza Lido. Northeast bound traffic only," which duplicates the last line of Section 12.52.070 (Lido Isle) and appears to have been misplaced by the codifier when Ordinance No. 2004-22 was adopted. Item 4. Ordinance No. 2020-24: Amending Chapter 12.54 of the Newport Beach Municipal Code Pertaining to the Oceanfront Boardwalk Safety Program The ordinance being presented for adoption appears to track the language memorialized in the draft minutes of the meeting where it was introduced (Item 1 on the current agenda). Had more consideration been given to the changes, I believe Subsection 12.54.050 would have been rewritten in one of the following two ways to avoid the questionable, to some, use of the term "any". Either: "A. Any All persons using the Boardwalk shall keep to the right of the centerline of the Boardwalk except when passing." Or better, to maintain parallelism with the other sections: "A.Anypersen No person using the Boardwalk shall keep travel to the right left of the centerline of the Boardwalk except when passing." ' 1 only recently learned that Newport Heights as originally subdivided in 1906 extended from 15th Street to 23,d Street and is now largely in Costa Mesa (with "Holiday Road" being a portion of what is still called 21St Street in Costa Mesa). What we now regard as Newport Heights (the area south of 15th Street) was added to "my" part of Newport Heights a year later, in 1907. So my address is technically in Newport Heights even though no one today would think of it that way. According to the City's Annexations map, I am in area 37, which older part of Newport Heights did not become part of the City of Newport Beach until 1956, while most of the "newer" part of Newport Heights (area 2, south of 15th Street) joined the City in 1917 (annexed at the same time as Balboa Island). October 13, 2020, City Council agenda comments - Jim Mosher Page 3 of 7 Item 5. Resolution No. 2020-86: Announcing Its Commitment to End Child Marriage and Authorizing the City Manager, or Designee, to Provide Educational Information Pertaining to Ending Child Marriage Since city councils have a right, if not a duty, to advocate for or against legislation that will benefit or hurt the agency they oversee, the use of taxpayer funds to prepare this proposal is not as obviously improper as the two resolutions prepared for the September 22 meeting supporting and opposing matters that had been placed before the voters, not the Council, for decision. Nonetheless, this smacks of a political stunt intended to benefit a council person running for state office. Conformation of this comes from the "Discussion" on staff report page 5-2, which says not a single word about the incidence of child marriage in Newport Beach or the impact it is having on the City. Without such a connection and justification, this does not seem a proper matter to spend the City's money on. The Council could as easily be using the apparatus of local government to urge citizens to send letters calling for an end to police brutality in Uzbekistan or hunger in Yemen. In this connection, I think the "Funding Requirements" section on the same page is incorrect. Since the resolution requires the City Manager to take action, I believe it would be more accurate to say the fiscal impact will be "minimal" rather than "There is no fiscal impact related to this item." Item 9. Mission Bay Drive Drainage Project - Award of Contract No. 7889-1 (21 R03) Is this problem of water seeping up from cracks in the street new? According to the City's records, this area was annexed in 1971 and subdivided in 1972. If had not been previously observed in the past 48 years, one would think there is a new leak or overwatering going on somewhere. In addition to having the Association monitor its slope watering, has City staff looked for changes, in the last decade or so, in the amount of water used by "the homes at the top of the slope"? Or "leak checked" the homes by watching their meters when all known use is turned off? Item 11. Amendment No. Two to Agreement for Beach Container Refuse Collection Service with Rainbow Disposal Co., Inc. This item appears to be an extension of Contract C-4709 adopted as Item 16 at the January 11, 2011, Council meeting and amended to increase the not -to -exceed amount as Item 9 at the August 13, 2019, meeting. October 13, 2020, City Council agenda comments - Jim Mosher Page 4 of 7 It is good to see staff present this contract extension proposal to the Council for its review a couple months prior to the contract's expiration on December 31. Often there is far less lead time, giving the Council few practical options other than to accept the staff recommendation. That said, if the Council wanted to try a different vendor it's not clear there would be time to complete the RFP process. The reference to the "City Council Working Group on Solid Waste and Recycling issues" remains disturbing. No such body is listed on the Clerk's Boards, Commissions and Committees page or her Roster. Nor do I have any recollection of the Council creating such a group. Who appointed the members, when, and under what authority? Section 406 of our City Charter prohibits Council members from giving direction to any City staff member other than the City Manager, and I don't think anything in the Charter allows the staff or Manager to select specific Council members to be their exclusive advisers on any matter. To the contrary, Section 405, by my understanding, vests power in the Council as a body, not in its members or groups of members as individuals. Sections 407 and 408 require its meetings to be public. Taking direction from groups privately chosen and meeting non -publicly with no record of their proceedings is counter to those principles and deprives the remainder of the Council, and the public, of an understanding of how and why decisions are being made. Item 12. Parking Meter Equipment Replacement Plan and Purchase Authorization I assume that during the Coastal Development Permit process staff will present for public review a more concrete depiction where the 58 pay stations will go and what areas they are expected to service. And I believe the City's approval of the entire project within the coastal zone, not just the part in the normal appeal area, will be appealable to the Coastal Commission since it is a public works project over the dollar threshold of $288,163 in 14 CCR Section 13012(a). Item 14. Confirmation of Appointment to the Newport Beach Restaurant Association Business Improvement District Advisory Board of Directors The specific law empowering the Council to appoint members to this "1989 BID" board is California Government Code Section 36530, which states in pertinent part "The city council shall appoint an advisory board which shall make a recommendation to the city council on the expenditure of revenues derived from the levy of assessments pursuant to this part, on the classification of businesses, as applicable, and on the method and basis of levying the assessments." In other words, the 1989 gives the power of appointment to the City Council. Nothing in it that I am aware of gives the existing board the power to screen the applications. At its September 23 meeting, the BID board saw four applications. While the Council may give great weight to the existing board's recommendation, I think the Council and the public should at least see the other possibilities. October 13, 2020, City Council agenda comments - Jim Mosher Page 5 of 7 Item 17. Resolution Nos. 2020-89 and 2020-90: Approving General Plan Amendment No. GP 2020- 005 and Tentative Parcel Map No. NP2020-007 for a Residential Subdivision at 2400 Santiago Drive (PA2020-041) I previously submitted comments on this item when it was Item 3 at the July 23 Planning Commission meeting. As then, I would note the subject line on the title page indicates this is, in part, a request to amend the City's General Plan, and Section 2 of the draft resolution (on staff report page 17-8) says "The City Council does hereby approve the request for General Plan Amendment No. GP2020-003 for a residential subdivision to create one additional single family residential property." Yet, I am unable to find any exhibit showing the changes to the General Plan that were requested for approval. Shouldn't there be an exhibit attached to the resolution showing what, in the General Plan, will be changed? In particular, doesn't GP Figure LU10 need to be amended and annotated to show the change in the approved subdivision pattern? However that may be, if nothing else, this item proves the Airport Land Use Commission does not reject every proposal it reviews for a General Plan Amendment in Newport Beach. Item 18. Ordinance No. 2020-26: Short Term Lodging Amendments to Chapter 5.95 and Title 21 of the Newport Beach Municipal Code (PA2020-048) Although I appreciate City staff generally tries to do the best it can, this item suffers from several procedural problems that cast doubt on the Council's authority to enact it at this time. The most serious of these are an apparent failure to follow the state -mandated protocols for amending local coastal programs. Public Resources Code Section 30503 (part of the Coastal Act) states that "During the preparation, approval, certification, and amendment of any local coastal program, the public, as well as all affected governmental agencies, including special districts, shall be provided maximum opportunities to participate. Prior to submission of a local coastal program for approval, local governments shall hold a public hearing or hearings on that portion of the program which has not been subjected to public hearings within four years of such submission." Minimal standards for complying with this provision are articulated in Title 14, Division 5.5, Chapter 8, Subchapter 2, Article 5, Section 13515 of the California Code of Regulations. Those include requirements that 'At a minimum, all notices for public review sessions, the availability of review drafts, studies, or other relevant documents, or actions pertaining to the preparation of the LCP or LRDP, shall be posted to the local government or governing authority's website" October 13, 2020, City Council agenda comments - Jim Mosher Page 6 of 7 • "Notice of the availability of review drafts of LCP or LRDP materials and transmittal of said documents pursuant to paragraphs (a) and (b) shall be made as soon as such drafts are available, but at a minimum at least six (6) weeks prior to any final action on the documents by the local government or governing authority. Review drafts shall also be made readily available for public perusal in local libraries, in the administrative offices of the local government or educational facility and at the appropriate Commission district office." • "Notice of the local government's or governing authority's hearings on LCP or LRDP documents shall be posted to the local government or governing authority's website and shall be transmitted to all interested persons and public agencies, as listed in subdivision (a), not less than ten (10) working days before the hearing." As to the last of these, notice of the present hearing was apparently posted on September 30, which is nine working days prior to the hearing, close to but not compliant with the required minimum of ten. Far more seriously, the notice says the text to be considered on October 13 will be posted for review "by end of business day on Friday, October 9, 2020" — a mere four days before the hearing, when the requirement says a minimum of six weeks. In fact, the only review draftop sted prior to last week has been a proposed LCP amendment text dated July 14. That draft requires a minimum six -night stay and prohibits issuance of any new STL permits (although existing ones could be renewed). Staff contends posting a single review draft is sufficient to satisfy the public participation requirements of 14 CCR Section 13515. Staff's interpretation is at odds with the regulation's reference to "review drafts" (plural), implying each new version of what is going to be reviewed at the hearing needs to be posted at least six weeks before action is taken on it. Staff's interpretation would also allow a "gut and replace" strategy in which local agencies could evade the public participation requirement by posting whatever they liked as a "review draft" six weeks prior to a planned hearing and then considering something completely different at the hearing. I complained about this in written comments submitted prior to the September 8 study session at which updated recommendations from the ad hoc committee were to be discussed, but no updated text had been provided for review — causing great confusion among the public sending emails without being sure what the proposal was. At the present hearing, the Council is being asked to submit a text that has been available for only five days. When the regulation says six weeks must elapse before final action to submit, there is something obviously wrong with that — and I think it invalidates any attempt at the present hearing to authorize submittal of the LCP amendment that was first posted last week. As to the substance of item my primary initial concerns are: 1. I'm not sure of the relation between the LCP resolution and the Municipal Code ordinance. The resolution relies for part of its implementation on the ordinance. So is the Coastal Commission being asked to certify the ordinance as well? And if the CCC does October 13, 2020, City Council agenda comments - Jim Mosher Page 7 of 7 not accept details of the resolution but suggests modifications that the City could accept, will the corresponding parts of the ordinance (which say they do not become effective until final CCC approval) have to be repealed, rewritten and readopted. If so, why are we doing this and not waiting so consistent Title 5 and Title 21 ordinances can be adopted together. 2. The new provisions about transfer and inheritance of permits certainly appear to make STL permits a right that attaches to property, despite City staff's repeated claims that short term rental is not a property right. Independent of the question of whether this creates a property right, or not, I think it is a very bad idea to allow private transfers, including by inheritance. As with transferable mooring rentals (which were removed in response to the Grand Jury then reinstated), this will lead to a favored group being able to privately profit off a publicly -granted privilege available to no one else. I again think an annual lottery of all permits is the only equitable way to administer a cap, but at a minimum, existing permits should terminate and return to the publicly available permit pool on any kind of transfer of a property. The new property owner should have no more right to a permit than anyone else seeking one. 3. 1 don't know why the Council is passing up yet another opportunity to correct the definition of STL to "30 days or less" in conformance with the state rules for collecting TOT (in Revenue and Taxation Code Sec. 7280) as well as the long-standing definition of STL on the City's FAQ page, and, instead, insists on the newly -adopted "less than thirty (30) consecutive calendar days" in NBMC Sec. 5.95.010.M. Item 19. Resolution Nos. 2020-92 and 2020-93: Authorizing an Appeal of the Regional Housing Needs Assessment and Amending the Purpose of the Housing Element Update Advisory Committee I have not studied this item in detail, because I suspect the requests for relief from the various agencies within SCAG will counteract each other and result in little net change. As I noted to Housing Element Update Advisory Committee, a major part of the City's argument is to call attention to the constraints placed on it by various hazards and regulations enforced in relation to them. But as we know, the City Council can override the Airport Land Use Commission, and Newport Beach has put considerable effort and expense in removing land from the area other agencies would regard as at risk of flood or fire. The City might now be wishing it had even more land declared vulnerable. As to the 1.34 million dwelling units that SCAG had to divvy up among its constituent agencies, know a significant part of the 1.34 million arose not just because of a need to meet expected population growth (which the California Department of Finance expects to level off and decline in future years), but to relieve existing conditions, including overcrowding. I don't know how this plays into the divvying up methodology, but with its many sparsely -populated McMansions, it seems unlikely to me that Newport Beach is a city that needs to build more units to relieve overcrowding within the city. Perhaps that point needs to be worked into the letter.