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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed Written Comments April 11, 2017 April 11, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(d-)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the March 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 strikeout underline format. Page 226: paragraph 6, sentence 2: "She suggested the capping the City Council Policy 1- 13 funds ..." Page 227: Item III, paragraph 2: "Mike Joseph introduced Steve Colwell and discussed his service in the Marine C�Grp Corps." Page 232: Item XIX, paragraph 2 before motion: "He stated the bank had recourse to the property in Gam case of a default." Item 3. Waterfront Project Guidelines and Standards - Harbor Design Criteria, Commercial & Residential Facilities: Approve Revised Standards The staff report fails to mention that an identically -titled item was on the Council's March 14, 2017, agenda, also as Item 3, but according to the minutes it was, without explanation, "continued indefinitely." I know I commented on it at the time. I have no idea if others did as well. While I appreciate that my comments appear to have been uniformly ignored, it remains curious that there is no explanation of why it was withdrawn, why it is back at this time, what comments were received and, for the benefit of the few who may have attempted to read it before, whether it is any different than it was on March 14. As best I can tell it is very similar, although (strangely) the very last page, which was then called "3-121" and referred to in my earlier comments, is now called "3-119" even though there is another page 3-119 two pages earlier. In fact, the document is so similar that the proposed Ordinance 2017-8 still predicts (on page 3-120) that it will be introduced on March 14 and adopted on March 28. The fact that my previous simple suggestions seem to have been totally ignored makes the rather formidable task of reading 118 pages of proposed legislation, and suggesting further improvements to them, seem rather pointless. April 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 5 Item 4. Harbor Mooring Regulation Modifications - Second Reading I previously submitted two sets of comments (set 1 and set 2) on this matter when it was on the Council's March 28, 2017, Consent Calendar as Item 3, and still very much in a state of flux with last minute changes being made by staff. At the time, I was of the opinion that the proposed legislation was poorly cobbled together and significantly flawed. Since only one of my concerns (about non-discrimination) and a single word change to the few pages I studied was agreed to by the Council, I continue to believe that. Council discussion on March 28 revolved almost entirely around the proper fee to charge when the right to mooring sites is transferred between private properties. I would suggest there is no rational basis by which that charge can be set, since it represents the value of allowing a private party to negotiate and control. I continue to find the idea of allowing private parties to privately control and determine the fate of public property quite irrational — and hence suspect it's something no clear value can be placed on. I would suggest setting the transfer fee so astronomically high that the existing permit holders would feel the cost of executing a private transfer much too high to contemplate, and instead allow the government to do the government's job of administering the public's property -- which (when an existing permittee/renter grows tired of their permit) would ideally require new permittee/renter (selected by a fair and impartial governmental process) to pay only the small administrative cost of processing the change of billing paperwork. Item 5. Uptown Newport Planned Community Park In -lieu Fee Credits Determination Located at 4201-4301 Jamboree Road (PA2011-134) The staff report does not seem to mention that this item was previously queued up for approval as Item 6 at the Planning Commission's January 19, 2017, meeting, but removed from the calendar at the last moment (the Planning Commission apparently lacking authority to grant the credits). I have not had time to review the new staff report, but I assume my comments (the City's Laserfiche system having sadly — and in possible ignorance of California Government Code Subsection 6253.10(d) -- disabled the links those comments originally contained) would be similar to what they were on January 19. That said, this seems to me an important matter and it seems surprising to see it set for approval on the consent calendar, without the public discussion it would have received at the Planning Commission. Item 9. Fire Station No. 6 Apparatus Bay Replacement Project - Reject All Bids - Contract No. 6422-1 (16F11) It would have seemed helpful to indicate how the bids received compare to the engineer's estimate for this project. April 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 5 I also believe this is the second time staff has recommended rejecting bids for this project, the first time being as part of agenda Item 17 on December 13, 2016, where it was packaged with the Corona del Mar "Fibrary" project. In that case, the public later learned (at a Finance Committee meeting) that the City Manager would have recommended deferring the Fibrary work even if the bids came in under estimate (as it now appears they may have, since the Station 6 work seems to have accounted for around $1 million of the costs reported in December). It would good to know if the ultimate recommendation in this case will also be to defer the work due to budget constraints. If so, the recommendation to seek new bids seems pointless. Item 14. Pending Coastal Development Permit Waiver for De Minimis Development, Located at 129 46th Street (PA2017-017) The presentation of this item mirrors a Coastal Commission procedure in which staff decisions to grant de minimis waivers are reported to the Commission as a consent calendar item included in the District Director's monthly report, which, as here, the public can also comment on. The decisions are subject to override by objection from three or more Commissioners. This is a good procedure for providing visibility to these decisions, however, like with most of the "call up" provisions in the Municipal Code, the idea that individual Council members (in this case, direction from two) can override the Director's decision is somewhat at odds with the City Charter, which places power in the Council acting as a collective body of seven members, and does not, to the best of my knowledge, give members acting individually any powers different from those of the average citizen (with the insignificant exception of certain ceremonial and mandatory administrative "powers" granted to the Mayor, and the power given individual members to administer oaths during investigations). However, it might be noted that under Subsection 21.52.050.0 of the NBMC, projects for which there is "known opposition" are not even eligible for the de minimis waiver. So it would seem that any average citizen can indeed block such a waiver, at least if they make their opposition known before the Director's determination (the effectiveness of that provision presupposing the application has been properly noticed in advance of that). Finally, it might be noted that although the staff report assures the Council that the votes of two or more members are required to deny the waiver, the newly adopted code is actually ambiguous on this point. NBMC Section 21.52.055 actually refers to a request by "one-third of the City Council (two members)." However, 7/3 = 2-1/3. And since that is more than two, by any standard of parliamentary procedure I'm aware of, something requiring approval by one-third of a seven -member body requires a minimum of three votes, not two. That is, two is less than a third, and therefore insufficient. If two is indeed the desired standard, the "one-third" requirement should be removed from the code. Regarding the staff report, I do not agree with the CEQA findings. While the section of the CEQA Guidelines cited in the report might seem to offer an exemption, it refers to the definition April 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 5 of "project" in Section 15378, which emphasizes that the term refers to the activity being permitted, not the agency's act of approving it. In this case, the activity seeking a permit is the demolition and rebuilding of a substantial structure. That certainly seems to me to have a potential to impact the environment. I believe the Guidelines contain an exemption for such residential construction, but I also believe it is City staff's responsibility to find it, not mine. Item 15. Nominations to Fill the Vacancies on the Harbor Commission The staff report indicates the nominees were selected by a "Council Ad Hoc Appointments Committee." I do not recall such a committee having been created at any public meeting, and I am not aware the Mayor has the power to create committees or make appointments without the consent of a majority of the Council, especially for a function as important as screening applicants for public office and effectively eliminating those not nominated from consideration by the remainder of the Council. However it was created and appointed, it is good to see the committee is offering more than Policy A -2's minimally required two candidates for each vacancy (in this case, six nominations for two openings). As always, I think the City would be performing a public service if it published the entire list of applicants, not just those recommended by the Council committee. Not only would that show more respect to the applicants, but this case it might (or might not) explain why there are no female nominees to this currently all-male Commission. Finally, had the nominating committee asked for public comment, I probably would have offered the thought that I'm not sure it's a good idea to emphasize harbor connections in the applicants, as the committee seems to have done. This seems especially important since the Commission has recently been given an increased role regarding tidelands expenditures. Such actions affect all residents, and it would be refreshing to have the Commission reflect a broader spectrum of viewpoints regarding the importance of the harbor. Item 16. Request to Install a Banner on the Newport Pier (N2017-0155) The recommendation to approve this request seems totally off the wall to me, in that appears to violate essentially every principle of the established Council policy attached to the report. As I understand it, the Council is being asked to allow a for-profit entity from another city to install, at no cost to itself, a vastly oversized billboard on public property, advertising an event not open to the public at no charge and not sponsored by the City. I am completely unable to fathom the rationale for this or the connection of the Anaheim Ducks to the City of Newport Beach. I might note that this will impair the enjoyment of the pier by children who will, it seems from the illustration, no longer be able to see through the railing, and it may impair the enjoyment of the beach by residents and visitors, alike, who may not be fans of this particular vendor or team. April 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 5 I might also ask, if the City is going into the business of commercial advertising, how much rent it plans to charge for the use of the pier, and if that is fair market value for a billboard of this size? One also has to wonder whether every other commercial sports team in the greater LA region will feel empowered to advertise on City property? Finally, I have to question the authority of the Council to waive City policies when a provision allowing waiver is not part of the policy. These policies are adopted by resolution, and it would seem to me that when they lack such a provision, a new resolution would be needed to change them. Otherwise, the Council's resolutions come to have very little meaning.