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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 7, 2016 Written Comments November 7, 2016, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosherOvahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) It seems a bit strange for a "special meeting" to have a consent calendar, but these are my comments on it: Item 7. Minutes for the October 25, 2076 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are ones from the draft minutes with suggested corrections of obvious errors shown in s*riken underline format. Rage 118: Item III, paragraph 3: "City Attorney Harp announced that the City Council will adjourn to Closed Session to discuss the 4em items as listed in the Closed Session agenda and read the tAk titles." Page 119: Item XII, last sentence: "She discussed her participation on a Metropolitan Water District of Southern California 9u9S) / MWDOC water inspection trip." [note: according to the MWDOC website, these inspection trips are jointly sponsored by MWDOC and the Metropolitan Water District of Southern California, which is a separate agency with a different acronym (MWD).] item 3. Second Reading of Ordinance No. 2076-76 for the Newport Harbor Yacht Club Reconstruction - 720 West Bay Avenue {PA2072- 097} This staff report requests the Council to adopt an ordinance modifying two earlier resolutions and one earlier ordinance, making them effective without the approval of changes to the City's Coastal Land Use Plan. But unlike at the first reading on October 25th, it does not provide copies of the items being modified, or even links to them. This might strike some as strange, since after advertisement that the present ordinance is being considered, it is actually at this meeting that the decision as to whether it should be adopted, or not, is made. As indicated in oral comments at the first reading, my understanding is that the changes being enacted by this ordinance became necessary when the City decided not to pursue the changes to the Coastal Land Use Plan contemplated in the original legislation. And those changes to the coastal land use designations of certain nearby parcels used by NHYC for storage and parking from residential" to "private institution" were not being pursued because it was discovered a Coastal Development permit for the Yacht Club reconstruction (on a parcel already designated "private institution") could be issued without them. While only one part of the present ordinance seems necessary to achieve its stated objective -- namely the suggested modification to Resolution No. 2014-20 (allowing the NHYC reconstruction permit approvals to become effective without changing the land use designations of the other parcels) -- nonetheless, as presented here adoption of the present ordinance will also move forward Resolution No. 2014-19 and Ordinance No. 2014-6, changing the Newport November 7, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Beach General Plan and Zoning designations of seven properties from "residential" to "private institution" without corresponding changes to the CLUP, rather arbitrarily creating an inconsistency between the two. In fact, it appears that six of the lots will be designated as residential properties eligible for the newly -adopted Categorical Exclusion from coastal permitting requirements even though as Private Institution parcels (under the City's General Plan and Zoning if this ordinance goes through) they wouldn't qualify. I would have hoped the City strives to maintain consistency between its various land use plans. Assuming that, it is curious staff has provided no explanation for why it is not recommending maintaining land use designation consistency, which iI would think could be easily achieved by pursuing either of two very simple alternatives to the recommended action: 1. Rescind, or leave as they are, Resolution No. 2014-19 and Ordinance No. 2014-6, so the land use designations of the seven parcels in question would remain "residential" in both the local zoning and coastal zoning documents until and unless a change is made to the latter. 2. Continue to request a change to "private institution" in the LCP, so the properties will have that same designation in both, as originally planned. If such a change is indeed appropriate, it would not seem to me either difficult or costly for the City to pursue (my understanding is the City is exempt from paying Coastal Commission processing fees). In summary, if the City chooses not to pursue option 2, then only one part of the present ordinance (the one modifying Resolution No. 2014-20 by removing the LCP approval requirement) makes sense. The other two (modifying Resolution No. 2014-19 and Ordinance No. 2014-6) simply create land use inconsistencies which do not currently exist. l suggest they be removed. Item 4. Approval of Amendment No. 1 to the Professional Services Agreement with Interwest Consulting Group, Inc. for On -Call Public Works Inspection The staff report for this item contains a couple of confusing statements. 1. In the middle of the "Discussion" on page 4-2, the staff report says "The scope of work by Jnterwest would remain the same." But Item 1 of the contract amendment (on page 4-4) begins "Exhibit A to the Agreement is amended in its entirety and replaced with the Scope of Services, attached hereto as Exhibit A-1 and incorporated herein by reference ("Services" or "Work`)." I would hope the Council might be curious why the Scope of Services is being replaced if no changes are being made to it, especially since it is not immediately obvious how the new Scope of Services differs from the very similar looking one in the existing contract C-7090-1. 2. The "Discussion" on page 4-2 also says "the Public Works Department recommends using this firm for approximately one additional year and increasing the agreement November 7, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 contractual limits." This statement seems consistent with the request for an additional $180,000, which would cover 12 more months of service at what seems to be the existing spending rate of $15,000 per month (the initial $120,000 having been exhausted in 8 months). However, the term of the contract, through February 28, 2019 — 28 months from now -- appears unchanged. Does the staff report mean Public Works expects to discontinue using Interwest a year from now, and needs only enough money to cover 12 months? Or does it anticipate coming back in a year with a request for a further increase? item 5. Amendment No. One to Professional Services Agreement with Newport Beach & Company for Newport Beach Restaurant Association Business Improvement District Marketing, Public Relations and BID Administration It has long been difficult for me to understand the local government's role and interest in promoting a "Restaurant Association" (technically, the "Newport Beach Restaurant Improvement District" per Ordinance No. 95-55). The state law under which it exists is curiously part of the "Parking" division of the Streets and Highways Code {Section 36500 et seq.} and seems predicated on principles whose applicability here seems questionable (providing a mechanism for self -funding of improvements to revitalize underperforming business districts through assessments on the businesses benefiting from the improvements). I have difficulty seeing Newport Beach restaurants as an underperforming "district," nor do I understand why taxpayers should be providing a $40,000 per year gift to this particular industry. That said, Newport Beach & Company appears to have been providing better and more effective service to the district than its previous marketing providers. However, that appeared, in part, to be the result of having a single person assigned full time to service the account. The requested change in Project Manager described on page 5-3 of the staff report suggests the responsibility for servicing the NBRA will become increasingly diffuse. Given the other functions NB&Co, and its affiliates, perform with public funds (including destination marketing, NBTV, and TBID services), this means it will become increasingly difficult to monitor what public money is being used for what purposes. The lack of clarity in the City's relationship with NB&Co is exemplified by Section 5 (Project Manager) of the existing and proposed amended contracts, which reserves to the City the right to approve changes to the personnel assigned in Exhibit A. However, as best I can tell, neither the original nor the expanded Exhibit A specified any personnel. Instead, a list of job descriptions appears in Exhibit B ("Schedule of Billing Rates"), which in turn seems more of a budget than a list of billing rates: it neither names people nor specifies what they charge per hour. November 7, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 Item 6. Planning Commission Agenda for the November 3, 2016 Regular Meeting The primary, or at least most contentious, issue before the Planning Commission at its November 3`d meeting was the request from the Village Inn (opposite the Fire Station on Marine Avenue on Balboa Island) for a conditional use permit to establish an outdoor dining area in proximity to residential properties (PA2015-016). At least to me, the most problematic aspect of this is that the request is not to establish outdoor dining on the applicant's own property, but rather on the public sidewalk — something that will require subsequent City Council approval of waivers to the existing policies about both sidewalk dining (L-21) and construction of private improvements on public property (L_�6). have no problem with the City's restaurants establishing outdoor patios on their own property, and little problem with their use of public sidewalks as limited by Policy L-21 (namely, using only temporary fixtures that are put out when actually in use, and completely removed during the many hours when they are not in use). I have great difficulty with the idea that restaurants, or any other businesses, should be allowed to permanently take over adjacent public property through construction of permanent encroachments reserving that public property at all times for their private use (even when they will not be using it) as is the request here and as was granted, recently in Corona del Mar, on the south side of the Mac Arthur/PCH intersection. found it interesting that in response to a question from one of the Planning Commissioners, planning staff asserted that the Village Inn could, by right and provided they complied with the City noise ordinance, achieve much the same effect simply by installing openable panels in the wall adjacent to Marine Avenue: when open, the patrons seated closest to the street would have essentially the same open air dining experience. That would seem to me a much better solution than allowing the operator to expand onto public property (an issue the Planning Commission was not able to consider since the appropriateness of allowing an encroachment was presented as a strictly City Council issue, with no recommendation from the Commission being requested). also found it interesting that, based in part on a letter from a prominent former Planning Commissioner supporting the application, the Commission felt that in considering the impacts of the outdoor dining request on neighboring residents they could not consider noise impacts beyond requiring the applicant to comply with the noise ordinance (which was presented as a strictly code enforcement issue). This was interesting because nearly simultaneous with this, but too late to receive serious consideration by the Commissioners, the City had posted Hearing Officer Resolution No. 2016-003 granting the conditioned abatement of a non -conforming expansion of the Village Inn restaurant operation onto an adjacent residential property owned by the applicant. In that decision, because it was creating a nuisance to neighbors, in return for allowing the nonconforming structure to remain another 10 years, the Hearing Officer required improvements to the structure to reduce the noise emanating from it -- with no consideration of whether or not it was already in compliance with the noise ordinance. November 7, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 In other words, in granting a discretionary approval, and to make findings that the approval will not create a public nuisance, it is permissible to require adherence to stricter standards than the City's generic ones. That seems reasonable to me, since if the only issue in granting the permit was technical compliance with the decibel levels in an existing noise ordinance that would be a purely ministerial decision not requiring Planning Commission intervention. Strangely, though, opening up the Marine Avenue facing wall "by right" (without encroaching onto the sidewalk), would allow operating at higher noise levels (as it can now) — and the neighbors would apparently have no recourse even if they perceived it as a nuisance. Item 7. Waive City Council Policy A-6 (Open Meetings Policies) This item has no explanation beyond the agenda request for a Council action to make a CEQA determination and "Waive City Council Policy R-6 relative to the prevision on which regular meetings are held for the month of November 2016, due to the General Municipal Election scheduled for November 8, 2076." Without further explanation, its intent is quite puzzling. City Charter Section 408 (Special Meetings) empowers the Mayor or four members of the City Council to call special meetings at any time. So a waiver of Policy A-6 is not required to hold the present meeting. Regarding when regular meetings are expected to be held in Newport Beach for the month of November 2016, that is similarly a City Charter obligation placed on the persons elected to represent the people on the Council. Section 407 (Regular Meetings) requires the Council to hold two meetings in November on the dates they fix by ordinance or resolution. The dates for the two regular meetings in November 2016, most recently set by the adoption of Policy A-6 with Resolution No. 2015-46, have long been November S and November 22 ("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.... When the day for any regular meeting falls on a legal holiday, no meeting shall be held on such holiday, but a regular meeting shall be held at the same hours on the following business day."). The Council cannot waive the announced dates any more than it can waive any of its other City Charter obligations, or for that matter, waive compliance with the dates it has set under the Brown Act (specifically, Section 54954(a)}. The Charter clearly indicates the only way to change the announced dates would be for the Council to adopt a new ordinance or resolution altering the announcement in Resolution 2015- 46. Since no new ordinance or resolution has been adopted, the present request for waiver seems meaningless. It might also be noted that the present "special" meeting loops from all appearances -- other than its unexpected day and its unusual starting hour of 6:00 p.m. -- to be the "regular' meeting the public expected on November 8`h. The agenda announcement implies the date (and hour?) has been altered "due to the General Municipal Election scheduled for November 8, 2076." November 7, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 would suggest that Section 5955 of the Brown Act provides a simple remedy in the event of such conflicts or inconveniences. That rule was also explicitly explained in City Charter Section 407 before it became muddled by Measure EE in 2012 (see Item 18 at the Council's July 24, 2012, meeting). But it is still operative since Section 407 now defers to the grown Act and the Brown Act probably prevails in any case: any meeting can be adjourned to a later date and time. The Council members don't even have to show up to do this: the Clerk is empowered to do this in their absence. And when a regular meeting is so adjourned, the adjourned meeting is regarded as a regular meeting for all purposes. In other words, there is a simple mechanism, fully compliant with the City Charter, to move regular meetings to a later date or time. Observing the once mandatory "holiday rule" (which was also formerly part of the Brown Act and quoted in the Charter, and as Newport Beach Councils have many times done in the past) would have moved the November Bch matters to the next business day, November 9th. Any other date or time after November 8th would also have worked. But there is no mechanism I am aware of for abruptly moving a previously announced meeting to an earlier date or time. It needs also to be noted that even if moving regular meetings to earlier dates was allowed, it upsets the carefully laid schedules in Policy A-6 for when items can be presented for inclusion in the agenda, when staff reports are posted, the length of time available for review and when comments about them need to be submitted — all of which are predicated on the assumption that the matters will be heard on a Tuesday night, or later. It certainly appears City staff is problematically attempting to move the November 8 regular meeting to November 7, but this item only adds insult to injury by seeking Council action without clearly explaining what waiving "the provision on which regular meetings are held for the month of November 2016" means or why it is being waived (or if it's even possible). Item 8. Cultural Arts Grants, 2016117 was unable to attend the October 13, 2016, City Arts Commission meeting at which these grant recommendations were made, as the City held its Finance Committee meeting at the same time. The staff report fails to disclose that the amount specified for the present purpose in Council Policy 1-10 is $55,000 per year, not the $40,000 mentioned in the report. The reason for the discrepancy would seem worthy of explanation. 2. It also seems curious that the Friends of the Newport Theatre Arts Center, the one entity specifically identified as a grant -worthy local organization in Policy 1-10, no longer seems to be a beneficiary of the policy. Does the City support NTAC programming in other ways? If so, by what dollar amount? 3. More generally, it would seem helpful to indicate the extent, if any, to which the proposed grantees may benefit from other City funding other than the present grants, such as "special event grants" or "Council discretionary funds." November 7, 2016, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 4. The staff report also does not make clear that in recent years the CAC reserved a substantial portion of the $40,000 grant pool to itself, typically $25,000 (see, for example, Item 13 on the Council's October 27, 2015, agenda), which was used to fund the City's own programming, such as the Concerts on the Green (formerly "Concerts in the Parks"). I believe the CAC has a plan to backfill that funding from some other source, but having missed several of their recent meetings due to the City's scheduling conflicts I have lost track of what that plan may be. 5. Although Policy 1-10 requires at least 50% matching of the City contributions (another point, the fulfillment of which is not made clear in the staff report), I would hope that programming funded by public dollars would be free to the public. The staff report does not make clear which of these programs are free, and which are not. 6. At least two of the proposed grants (Pacific Symphony and South Coast Repertory Theatre) appear to be intended to enhance in -school programming. Since the public schools receive a much larger share of the property tax dollar than the City does, it would seem appropriate for those to be funded out the schools' budget rather than the City's. 7. Although the proposed $10,000 grant to the Orange County Museum of Art seems to be for the sort of purposes envisioned in Policy 1-10, the request may strike many as a bit odd, since the OCMA Board has made clear their intent to move their institution out of the city, and leave Newport Beach residents with a high-rise condominium tower (a matter the City Council will be considering separately on November 291"). I believe OCMA may have also failed to meet its promise to support the City by supplying art for display in the new Civic Center. Since OCMA apparently does not see itself as a Newport Beach entity, it seems reasonable to ask if other cities make comparable contributions to them? Also, if viewed as a "regional arts group," rather than a local one, it should have a lower priority under Policy 1-10, yet it is being offered the largest grant.