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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED MARCH 14, 2017 March 14, 2017, Council Consent Calendar 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 February 28, 2017 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are from the draft minutes with suggested corrections shown in s*r�ut underline format. Page 198: Item SS3, paragraph 2, end of sentence: "... , Council Member Herdman recused himself due to the location of his home relative to the seawalls." Page 198: last paragraph, first sentence: "In response to Council MemberPeotter's question regarding the Balboa Marina, Harbor Resources Manager Miller explained the public slips required to be provided by The Irvine Company and proposed relocation." Page 199: paragraph 6: "In response to Council Member Dixon's question, Harbor Resources Manager Miller explained that beaches needing replenishment were determined based on input from the community and the City's annual programming." [?] Page 199: paragraph 8: "In response to Council Member Peotter's question, Harbor Resources Manager Miller stated the unusable material was taken to the fir+ ocean disposal site." Page 200: paragraph 2: "In response to Mayor Muldoon's question, Harbor Resources Manager Miller reported the current transfer fee was $708 for a 40 -foot vessel and the proposed 10% of fair market value is difficult to obtain." Page 201: paragraph 3, last sentence: "Council Member Herdman suggested mooring fees be tacked on to *r��eg the City water bill." [From the video, at around 1:45, Council Member Herdman said "trash -water bill." However, the Municipal Services Statement he was referring to is primarily and most commonly referred to as the City "water bill." Persons (like me) receiving residential trash collection in the area formerly served by City workers do not pay for, and are not billed for, trash service, other than a small recycling charge. Instead, their trash collection costs are paid by the general fund. Since not all City residents receive this service, this is another inequity like the recent bailing out of the sewer enterprise fund, but one of much longer standing. Under it, people, for example, owning homes in Santa Ana Heights pay for my residential trash service, while they are expected to pay a separate agency for their own, toward which the City general fund provides no comparable subsidy. This is patently unfair.] Page 201: paragraph 4: "Council MemberAvery i.p. i.•4-th 'rash f iffc He suggested adding non -City residents to the billing process. CaUP-oil nne.,, ox Ave -9, He thanked the mooring permittees for collaborating with the Harbor Commission." [According to the video, Council Member Avery suggested only adding non-residents, but did not explicitly say to what. It might be noted that Municipal Services Statements are sent primarily to property owners. So I believe one can be March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 8 resident of Newport Beach and not receive one — and conversely receive one without living here.] Page 201: paragraph 8: "He explained that the City owned the tidelands and personal property would be paid for by the City at fair market value_ Council Member Peotter noted that payment for personal property would be offset by rent owed." [This is two sentences. The period is missing between "value" and "Council".] Page 208: paragraph 7: "Tim Stoaks objected to the three-storyfagade and discussed the character of the neighborhood." Page 209: paragraph 1, sentence 2: "She also noted that stated the proposed project was allowed under the City's zoning." Page 211: paragraph 7 from end, last sentence: "She suggested rescinding all the approvals, rather than hoe holding an election." Page 211: paragraph 3 from end, first sentence: "PetiRaGreRiRger Bettina Deininger questioned Council and believed the project was approved to garnish the developer's money." Page 212: long paragraph in middle, line 4: "... discussed continued efforts to swan thwaK the project ..." Page 212: paragraph 5 from end: "Vehn Pe Tom Fredericks suggested that Related California pay for the election if the measure failed." [The speaker did not identify himself this second time. The transcriber guessed ... and guessed wrong. See 4:47 in video.] Item 3. Waterfront Project Guidelines and Standards - Harbor Design Criteria, Commercial & Residential Facilities: Approve Revised Standards 1. Despite the agenda caption, this item requests the Council to two separate actions: (1) approving revised design standards, and (2) making revision to the Harbor Code (NMBC Title 1 . I certainly agree that the Harbor Code is a mess and in need of revision, but I can find no explanation of the particular changes suggested. Of them, I would guess the definition of "Alteration Construction" is being removed (staff report page 3-121) because the term is not used in the code. That would certainly seem a good reason (unless the "Harbor Code definition" of the term is referred to in some other City document), but I would not be sure this is the only definition that is not used. And I would think that its deletion might require renumbering the subsequent definitions — something the ordinance does not seem to authorize. Is the idea to hold "A.2" as a "reserved" position in the list of definitions? Regarding the design document, its complicated multipart title suggests it is part of some larger scheme of things. In particular, placing "Harbor Design Criteria" as a subtitle under "Waterfront Project Guidelines and Standards" suggests the City has other waterfront March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 8 guidelines and standards, and placing "Commercial & Residential Facilities" as a subtitle under "Harbor Design Criteria" implies one should look elsewhere for design criteria for projects that are neither commercial nor residential (such as construction by a private institution or a governmental entity, including the City itself). I don't know if either of these are true, but if the first is not, I would suggest dispensing with "Waterfront Project Guidelines and Standards" and just calling this "City of Newport Beach Harbor Design Criteria." b. If there are indeed separate criteria for non -commerical, non-residential construction, I would suggest referencing where they can be found. If there are none, I would suggest deleting "Commercial & Residential Facilities" from the title and explaining in the preamble that non -commerical, non-residential construction is exempt from the criteria, or otherwise explaining what does apply to them. 4. Looking at the first page of the criteria (staff report page 3-11): a. In line 4 of the first paragraph, "with reasonable factor' is probably intended to read "with a reasonable factor". b. In paragraph 2, "shall be as per the Title 17' could be simplified to "shall be per Title 17' without loss of meaning. c. At the starts of the two underlined paragraphs, should "In accordance to" be "In accordance with"? d. The second underlined paragraph has a long passage starting with a quote, yet I am unable to find an end of quote. e. The second underlined paragraph, and to a lesser extent the first, saying deviations can be approved by the Building Official, seem in conflict with NBMC Section 17.50.020 ("Application for Harbor Development Permits"), where under "C. Required Signatures" (oddly, since this has little to do with signatures) the code says requests to "deviate from the design criteria" are handled "through the appeal process," including in particular requests for "Alternate Materials of Design and Methods of Construction" (it might also be noted that in Section 17.50.010, what seem most everywhere else to be called "Harbor Development Permits" seem to be given the name "Harbor Construction Permit." I don't know which is correct.) 5. 1 have not had time to look at the remaining 34 pages or the diagrams. Item 4. Ordinance No. 2017-5: Reauthorization of the City's Public, Educational and Governmental Access Fee on State Video Franchises This proposed ordinance does not appear to result in anything being codified other than possibly a note saying NBMC Subsection 5.43.030(B) has been "reauthorized." It seems harmless enough. March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 8 It also seems possible it is based on a misreading of the state law passage it cites: California Public Utilities Code Section 5870(n). Like much law, that passage is a model of unclarity. It refers to two ordinances: one, which a local entity can enact at any time to impose a PEG fee of 1 % or less, and a second, which a local entity can enact to keep in place a pre-existing a PEG fee that was over 1 % but not over 3%. Immediately after defining the second kind of ordinance (which is not what Newport Beach has), it concludes with the mysterious sentence saying "The ordinance shall expire, and maybe reauthorized, upon the expiration of the state franchise." The use of "The ordinance" as opposed to "All ordinances" implies to me that this final caveat may have been intended to apply only to the second kind of ordinance, imposing an unusually high fee. But it is impossible to tell for sure. The bigger question would seem to be whether this should stimulate a discussion of whether there are more creative ways to use the accumulating PEG revenues for the public good, and if not, whether we are collecting more than we need to (the costs likely being passed on to the consumers pursuant to Section 5870(o)). Item 5. Second Reading of Ordinance No. 2017-3 to Repeal Approvals Related to the Museum House Residential Project Located at 850 San Clemente Drive (PA2015-152) Please see my comment on agenda Item 9, below, where the Council may face a very similar request to change a Private Institutions designated parcel to Multifamily Residential, and may hear the same arguments that it will make money both for the property owner and the City. In both cases, I applaud the Council for recognizing the less tangible value of leaving the designations as they are. I fully appreciate that this ordinance was introduced on February 28 in response to a referendum petition. At the same time, I believe the Council was then, and remains, aware that the technical validity of the petition is being challenged by the Museum, and they are presently litigating that matter in the Orange County Superior Court. In view of that, it seems significant to me that the ordinance as drafted contains a severability clause in Section 9, which taken literally says that in adopting the ordinance a majority of the Council wants to repeal the prior approvals whether the referendum was valid or not. Since the litigation is likely to drag on for some time, I think it would useful for the community to know if the ordinance means what it says, and a majority of the Council indeed now wants to repeal the previous Council's approvals, regardless of what the judge may decide about font size and so on. I might add that in the pleadings OCMA submitted for a March 8 court hearing, it asserted that the Council does not have the option to repeal in the absence of a legally binding petition. I believe you do. March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 8 Item 6. Resolution to Accept and Agree to the Terms and Conditions of Categorical Exclusion Order CE-5-NPB-16-1 1. The paragraph at the top of page 2 of 3 of the proposed resolution (staff report page 6-6) appears to be missing some words: "WHEREAS, pursuant to the Section 13244 of the California Code of Regulations, Categorical Exclusion Order CE-5-NPB-16-1 will not become effective until such time as the City Council of the City of Newport Beach, by resolution, accepts and agrees to the terms and conditions to which the categorical exclusion order has been made subject." 2. For those who, in the future, may actually wish to read the order the Council is agreeing to, Attachment A to the proposed resolution provides a confusing mishmash of documents including what appears to be the actual order (on staff report pages 6-9 through 6-10) and what appears to be a Coastal Commission staff report on the order (staff report pages 6-11 through 6-19) even though the latter is also labeled as the order. The latter also, on its first page, confusingly refers to "Section 11.13" (apparently "B" on staff report page 6-9) and "Section III.D" (apparently the "D" immediately below the reference) even though there are no longer any sections identified by roman numerals. There are also three pages of maps with a City Seal (staff report pages 6-20 through 6-22). They appear to be part of Attachment A, but it is unclear if they are an accurate copy of the "Exhibit #1" adopted by the Coastal Commission (referred to in paragraph A on staff report page 6-11 and in the last paragraph of 6-12) or the City's substitute for it. 4. The staff report does not explain what appear to be changes in noticing and appeal procedures imposed by Condition 5 on staff report page 6-10. It mentions, but glosses over the difference, at least philosophically, created by the new Condition 4. Formerly, as the staff report says, development within the exclusion area that met the criteria specified in the order was exempt from needing a Coastal Development Permit as long as the proposal was consistent with the local zoning code as of 1977. Now it is eligible for exemption from the CDP requirement only if it conforms to all the rules and regulations of the LCP (the fundamental purpose of which is to define the circumstances under which a CDP can be issued). The plain reading of the new order is that potential development is exempt from compliance with the coastal regulations as long as it complies with all of them, which is so circular as to potentially make it no exemption at all. At the very least, it appears new development will need an additional screening beyond the local zoning clearance and building permits that had previously been sufficient. Item 7. Resolution No. 2017-18: Amending Council Policy F-10 (Civil Asset Forfeiture and Seizure) 1. This item appears to address an important public policy issue and makes a valiant attempt to improve the policy. While well-meaning, the result appears to me to remain imperfect. 2. While some features are explained, I am unable to find any explanation of why large sections of the existing policy detailing the "conversion" and use of seized assets have been March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 8 deleted. Is this because it assumed they will be moved to an internal police policy? Or because California Health and Safety Code Section 11469 (effective August 19, 1994) says "(g) Seizing agencies shall not put any seized or forfeited property into service" —made those provisions illegal? 3. Some specific comments about the proposed policy (staff report pages 7-9 and 7-10): a. Clause A: i. If this is intended as a definition, it would be clearer to me if it began ""Forfeited Assets" as used in this policy means ..." ii. Rather than the terms "currency' or "cash' used in different places in this policy, the state law consistently refers to "cash or negotiable instruments." They do not all seem to me to mean the same thing. iii. More importantly, the clause as written leaves me unclear as to whether the definition and the policy is intended to apply only to assets seized or forfeited "in" Newport Beach, or to all such assets in the possession of the City, irrespective of where they were seized or forfeited. iv. Still more importantly, I am unable to tell if it is still intended to refer only to assets seized or forfeited in connection with a narcotics investigation, or to all seized or forfeited assets. v. Finally, how is the statement about "Forfeited Assets converted for Police Department use' consistent with the state law provision quoted under comment 3, above? b. Clause B: i. The first sentence could be improved, without loss of meaning, by deleting "all applicable". ii. For parallelism with the following sentence, it would also seem it should say "Federal, state, and local laws." c. Clause D: i. I have trouble understanding the intended new meaning of this. ii. At least formerly, the "Narcotics Asset Forfeiture Account" was a monetary account. I have trouble visualizing how a seized car (or house) is "maintained" in a bank account. Does this now refer to some kind of computer ledger in which the assets can be tracked regardless of type? Or does the policy now imply all assets will be converted to cash? If so, how and when? d. Clause E: i. This could be improved by removing the word "any". March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 7 of 8 ii. This partially answers one of the questions under "D," by saying where the proceeds of a sale go, but it does not make clear if such sales are mandatory. e. Clause F: i. This statement of philosophy is excellent, but such things generally belong at the start of a policy, either before or after Clause A, and definitely before the specific policies implementing the philosophy. ii. Finding it here, in the middle of the implementing provisions, seems jarring, at least to me. f. Clause G: i. Like Clause F, this belongs at the start of the policy. ii. For future utility, and also to make the clause's content verifiable, the expression "new legislation" should be replaced with the more specific "Senate Bill 443 (Mitchell, 2015)". g. Clause H: i. This would logically seem to belong near the start, after "G" and before the present "B" — that is, define the terms under which assets can be accepted before defining the terms under which the accepted assets can be used. ii. It is unclear if the reference to "no matter the value or type" is intended to in some way supplant the $40,000 threshold in the state law. The state law has been, and remains, rather peculiar in that it appears to allow large amounts of cash or negotiable instruments to be seized and held without conviction, when smaller amounts can only be held with a conviction — which seems backwards to what many might expect. Is our local policy trying to override that? h. Clause I: i. The sentence would be improved by deleting the second "shall be". i. Clause J: i. As written, this aspect of the policy appears intended to apply only to assets that were directly seized by a Newport Beach police officer. ii. Is that correct, or is it intended to apply more generally to any seized assets the Department comes into possession of? If it is the latter, it should probably say "receives or seizes." j. Clause K: i. The sentence would be improved by replacing "with this City Council Policy F-10" with the simpler and less stuffy "with this policy' k. Clause L: March 14, 2017, Council Consent Calendar Comments - Jim Mosher Page 8 of 8 i. The present report, and its exposure to the public of this policy, begs the question of whether the annual reports to the Council have been happening. And if so, where the public can see them. Item 9. Supporting St James the Great Episcopal Church Mindful of the California Constitutional proscriptions against the government preferring or discriminating between religious denominations (Article I, Section 4) and against providing direct aid to any sect (Article XVI, Section 5), I support the sending of this letter to the extent it stays focused on supporting and maintaining the existing land use, which is clearly a matter within the Council's jurisdiction. I would suggest the letter would be stronger if it made even more clear to its receipients the fact that the present General Plan designation does not give Bishop Bruno, or his church, the option of profiting off the property by selling it for residential development. Although that idea is already present, additional emphasis could be drawn to it by adding to the end of the long paragraph 2: "Therefore, the reestablishment of St James the Great's operations on this property would be consistent with the City's General Plan's long-term vision for this site, but a residential use is not." Also, since the PI designation allows the use of the property by any sect (or other PI user), to avoid the impression that the City is endorsing its use by the St. James parishioners over others (something I do not believe it cannot constitutionally do), I would suggest modifying the next to last paragraph to read: "We offer you every best wish as you and your members work to secure the church's facilities for the long-term operation of St '....,,....he G—.e6g a Private Institutional use at this location." It might be further noted (but not in the letter) that the land use issue here is nearly identical to that revolving around the Orange County Museum of Art property (Item 5 on the present agenda). There, as here, abolished the PI designation and redeveloping the property as luxury condos would purportedly profit both the City and the current property owner. Indeed, abolishing all the city's PI and park and open space parcels and redeveloping them as luxury condos might well monetarily profit both the City and the property owners. But it is not something most people want and not something the Council has any obligation whatsoever to grant. In the view of many, it would yield a rich city government, but not a city worth governing. Item 10. 2017 Election Reform In creating a committee, one might think the Council would want to consider and establish something more about the scope of the committee's efforts, the maximum amount of money that could be spent on it, how staff resources will be allotted to it, the extent and manner in which its process will be open to the public, and (as an "ad hoc" committee) a clear timeframe within which a proposal is expected back for consideration by the full Council. The claim that "The current adopted budget includes sufficient funding to provide staff assistance to this Ad Hoc Committee' doesn't really answer any of those.