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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 25, 2017 Written Comments April 25, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(cDyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the April 11, 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. The small number of corrections offered means only that, to the best of my knowledge, the draft minutes are for the most part factually and grammatically correct. It does not mean I think they are either complete or good: they are more of an index to the video recording than a substitute for it. For example, on page 236, "Beth Vogel discussed her experience with organ donation" records who spoke and what their topic was. It conveys nothing regarding what she actually said about her experience. Or, on page 249, "In response to Council questions, City Manager Kiff clarified funding from Transient Occupancy Tax (TOT) and the Tourism Business Improvement District (TBID)" tells future readers nothing about what clarification was offered. And readers are left completely in the dark as to what position was being discussed when "Library Services Director Netherton discussed the proposed staff position." Only by reviewing the video would one know the answers to any of these. That said: Page 236: paragraph 2 from end: "Council Member Dixon clarified that the purpose of attempting to revise the maps would is to assist the residents." Or alternatively, "Council Member Dixon clarified that the purpes attempting to revise the maps would assist the residents." Page 236: last paragraph: "Council Member Herdman stated the revisions would save him approximately $6,400 annually in flood insurance costs." I believe this accurately reflect what was said, however it should be noted that revelations that a governmental decision maker will be affected financially by a decision in a way different from the public in general, generally mean that decision maker should not be participating in the discussion of the matter. Page 237: paragraph 5, sentence 3: "He noted that FEMA was funded by taxpayer taxpayers through flood insurance." As written, this sentence implies that Deputy Community Development Director Jurjis said that the entirety of FEMA is funded by premiums from its flood insurance program. That may be the answer some Council members were fishing for, but I don't think that's what he said. I believe he said the expectation was the costs of the flood insurance program (which is only part of FEMA) would be funded by the flood insurance premiums collected from the taxpayers buying the insurance, but that as a result of losses from events such as Hurricane Sandy on the East Coast an injection of general taxpayer April 25, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 money had been necessary to meet recent payout obligations. He did say he thought FEMA was engaged in a "witch hunt" (implying they were penalizing low risk areas, and possibly well-to-do low risk areas, to pay for higher risk ones). Page 238: Item SSS, paragraph 2: "In response to Council Member Dixon's question, City Manager Kiff discussed Harbor Patrol duties and explained that, if the City took over mooring administration, Harbor Patrol was not interested in patrolling times of use nor fishing on the pier piers." Even as corrected, the above could easily be read to mean the Harbor Patrol officers currently perform some kind of service by fishing from the piers, but will not fish under the new plan. Substituting "monitoring" for "patrolling" might be an improvement. Page 240: Item XII, paragraph 3, end of last sentence: "... thanked the Arduou Ar_gyros Family for their donation to the Orange County Girl Scouts, and announced that a Finance Committee meeting will be held on April 13, 2017." Page 248: after Motion, paragraph 3, sentence 4: "He questioned asked whether the City could assist in making the Downtowner more successful." "questioned" makes it sound like staff advanced the idea the City could help the Downtowner but the Council member was skeptical that could be done. In fact, the Council member was questioning why the City hadn't made an effort to promote the service. Page 249: between paragraphs 3 and 4 (see video at 3:56:10 to 3:56:40): "Council Member O'Neill asked if the last contract included de -installation. Library Services Director Hetherton stated de -installation of Phase 1 was a separate contract. Mayor Muldoon opened public comment. Seeing no Arts Commissioners present and no one from the public wishing to comment, Mayor Muldoon closed public comment. Council Member Peotter suggested the President Reagan sculpture be included in Phase 3...." Page 249: end of Motion: "... as part of the Gape of services, part of the lanniniv chem/ consular a recommendation for location of the President Reagan scu-lptu statue be included in the art with a recommendation from the City Arts Commission as to its location in the Civic Center Park, and as guidelines for Phase IV the $50,000 honoraria be from private sources inn, Phar 1 and reduce the consultant cost be reduced by half, with staff handling installation." [the suggestions make this closer to the motion as stated in the video at 4:04:26 and repeated with greater clarity at 4:05:24 — see Note 1, below] Page 249: paragraph 3 from end: "Council Member Avery asked if the location of the President Reagan sculpture would be determined by the City Arts Commission. Mayor Muldoon stated the City Arts Commission would make a recommendation to the Council. City Manager Kiff asked for and received clarification that the President Reagan April 25, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 statue was to be 1 of 10 rather than an 111 sculpture, but with Mayor Muldoon's preference that it would be permanently placed, not rotating." [see video at 4:10:56 and Note 1, below] Notes: The preceding confusion over exactly what the motion was could have been avoided if the Council followed its Policy A-10, which requires in Section A. 1.b on page 2 that "The Presiding Officer or such member of the City staff as he or she may designate shall verbally restate each question immediately prior to calling for the vote." In my view, this means the exact language of the entire motion is to be restated as it is to be voted upon. Hearing various individual's interpretations of bits or pieces of it does not seem equivalent to that, and is certainly not as effective. 2. Whatever its exact content, one would like to assume the Council now recognizes the "notes" added to the end of the staff recommendation as recorded starting with "end of Motion" (above) are all legally void, since they were discussed and acted upon in flagrant violation of the Brown Act. 3. The reasons for believing this to be a Brown Act violation include the following: a. Nothing in the agenda notice for Item 20 prepared the public for the possibility the Council would be discussing selection of art, particularly discussing the Reagan piece, which is not just a sculpture, but part of the permanent Ronald Reagan Centennial Memorial and hence totally inconsistent with the concept of a rotating invitational Sculpture Exhibition. In addition, the Mayor's comments under Item XII on page 240 of the draft minutes explicitly notified the public that discussion of the Reagan stature was not within the compass of anything on the April 11 agenda, including Item 20 ("He requested a future agenda item to discuss moving the President Reagan statue to the Civic Center Park Sculpture Garden.") b. Similarly, nothing in the agenda notice for Item 20 prepared the public for the possibility the Council would be discussing funding, or any of the aspects, of Phase IV. On the contrary, the agenda notice very clearly confined the item to a contract for management of Phase I II. c. In addition, as indicated by the first suggested correction to page 249 (above), the fact that the Council would be discussing and taking action on matters related to the Reagan Centennial Memorial and Phase IV of the Civic Center Sculpture Exhibition was announced after the opportunity for public comment was closed. d. The prohibition against discussion of unnoticed items is found in California Government Code Subsection 54954.2(a)(3). e. The requirement to provide an opportunity for public comment on all items of interest considered by a local legislative body is in Section 54954.3. April 25, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 4. If the Council wished to make approval of the Phase III management contract contingent upon relocation of the Reagan Memorial and restrictions on the conduct of Phase IV, the legally appropriate action under the above provisions would have been for the Council to vote to defer its decision on the contract and to request the other matters of interest be agendized for public discussion at a future meeting (as had already been done for the Reagan Memorial). Especially given the extreme level of public interest in the Reagan matter when it was last publicly discussed, voting on them without prior announcement and without any practical opportunity for the public to provide testimony that might influence the decisions was both legally and morally unacceptable. 5. The present (April 25, 2017) agenda contains, under Item XIII, a vote to create a future agenda item related to "Relocation of the Statue Honoring Ronald Reagan from Bonita Canyon Sports Park to Civic Center Park." It would be good for the public to know if this is an acknowledgement by staff and Council that the April 11 discussion and vote on that matter was legally invalid, or if this is merely a request to resolve details of the previously "approved" relocation. Item 4. Second Reading and Adoption of Ordinance 2017-9 Amending the Coastal Implementation Plan for the Lido House Hotel Floor Area Expansion, Located at 3300 Newport Boulevard and 475 32nd Street (PA2016-061) This matter involving an amendment to the Coastal Zoning District development standards in the new Local Coastal Program Implementation Plan (Title 21 of the NBMC), which is a kind of shadow of comparable standards in the older Planning and Zoning Code (Title 20), is the sort of planning activity that makes many feel Newport Beach engages in the practice known pejoratively as "spot zoning." Normally one would expect zoning districts to have wide applicability throughout the City (such as "R-1"). But in this case, we have a zoning district classification ("CV -LV") created for a single property, with standards so site-specific they could not be applied to any other property in the City, even in Lido Village. Regarding the substance of the proposed ordinance, is it really true, as it says on page 4-4 of the staff report, that notice of the previous City Council hearing "was provided in accordance NBMC Chapter 20.62"? What relevance could the procedures of Title 20 have to an amendment of Title 21? Could this possibly have been meant to say "Chapter 21.62"? And whichever chapter it is, the word "with" seems to be missing. April 25, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 Item 5. Adoption of Resolution Repealing Resolution No. 2016-87, which Declared a Level Two Water Supply Shortage It is good to see the Council taking formal action to repeal its previously -enacted Resolution No. 2016-87 (Attachment B, starting on page 5-8 of the staff report) declaring a Level Two Water Supply Shortage. However, in reviewing that older resolution it is not clear that its adoption repealed the previously adopted Resolution No. 2015-51 (declaring an even stronger Level Three shortage, as mentioned at the top of staff report page 5-5), or the adoption of that, in turn, repealed the still older Level One shortage of Resolution No. 2014-79. Do those older resolutions need to be formally repealed as well, to end the restrictions they imposed? Item 6. Resolution 2017-29 - Adopting a Revised City Council Policy A-19 (Guidelines for Invocations) Summary of Objections I strongly object to this proposed new policy. For 225+ years, the First Amendment to the United States Constitution has respected the right of citizens to hold and express beliefs that differ from those held by others, including the beliefs held by all organized groups, and for 167+ years (see original 1849 Title Page), Article I, Section 4 of the California Constitution has assured the citizens of this state that its governmental institutions will show no preference for one set of religious beliefs over another. The proposed Council policy flies in the face of that tradition by giving preference in a governmental forum to the views held by the principals of established religious congregations. In addition, when such spokespersons are not available, it institutionalizes and encourages the practice of having prayers directed and given by members of governmental bodies, thereby turning religious messages into "government speech," in direct contradiction to the next to last Whereas on staff report page 6-4 of the proposed resolution. And in addition to that, by going beyond City Council invocations and encouraging the injection of sectarian prayer into all Newport Beach board, commission, committee and public meetings, it is not aligning policy with the 2014 Supreme Court decision in Town of Greece, NY v. Galloway, 134 S. Ct. 1811 but rather acting in contravention to that court's citation with approval (on page 1825) to the same court's 2005 Van Orden v. Perry, 545 US 677 observation (at page 683) that our "institutions must not press religious observances upon their citizens." And by devoting governmental resources to pressing religious observances upon our citizens, especially where no such tradition existed in the past, the proposed policy potentially violates the California Constitution's no aid clause (Article XVI, Section 5). April 25, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 Detailed Observations 1. The agenda notice would seem to given the Council wide latitude in considering a "revised" invocation policy. 2. Citing this as a "revision" is, however, somewhat misleading, since as indicated by the redlining of Attachment B (staff report page 6-10), this is a complete discarding of the existing policy and replacement with an entirely new one. 3. Given the extent of the changes, it is surprising the staff report gives no indication of where the new policy came from, what history it has, or how staff came to the conclusion that it would enjoy such unanimous support from the Council as be suitable for adoption, without discussion or amendment, on the Consent Calendar. 4. Neither the abstract nor the body of the staff report offers any alternatives to the proposed policy, nor any cautions about parts of it that might be problematic. Indeed, the Abstract seems to imply that cities must adopt a policy of the sort presented to conform to the Supreme Court decision in Town of Greece v. Galloway. To the best of my knowledge that is incorrect. For example, I believe a policy of no invocations would be equally compliant with case law. As would "solemnizing" meetings with some kind of non -religious message. And if the purpose of the prayers is to make the decision makers act with greater sense of responsibility, they could alternatively gather privately in their conference room prior to the public meeting where they could listen to and give whatever prayers they wish (since prayer is not within the jurisdiction of city governments, as long as the pre -meeting was confined to that, that would presumably not be a Brown Act violation). 5. The first sentence of the Discussion section of the staff report, that "The City Council, like other legislative bodies in America, has long maintained a tradition of solemnizing proceedings by allowing for an opening prayer before each meeting" seems disingenuous to me. Although the Council minutes are not a reliable source, the record of a history of prayers at Newport Beach City Council meetings is, at best, spotty. Indeed, none appear to have been offered prior to April 27, 1953, when the Mayor of Turlock (at a time when the "loyalty" of Americans was being widely questioned) requested the Newport Beach Council to do so. From the minutes, it appears that new "tradition" was quickly abandoned and did not reappear until the mid -1990's, although (again) the record in the minutes may not be accurate. 6. As to the origin of the proposed policy, it appears similar a model presented in a presentation by Newport Beach based attorney Allison Burns to League of California Cities attorneys (see last pages at that link). Ms. Burns apparently serves as the contract City Attorney for Lancaster, California, and successfully defended that city's prayer policy before the 9th District federal court (in Rubin v Lancaster). Versions similar to Ms. Burns' appear to have been adopted by a number of cities nationwide, with some preceding hers, so its ultimate origin is unknown by me. 7. Cities adopting something similar to the model often add features such as limiting the allowable length of the invocation, or requiring a printed statement in the agenda that the views expressed in the invocation do not represent those of the local government. April 25, 2017, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 8. Newport Beach, for reasons not explained in the staff report, is going in the other direction with such innovations as: a. In Clause 3.f, the proposed policy invites Congregation Leaders to speak not just at City Council meetings, but at all Newport Beach board, commission and committee meetings. b. And although not mentioned in the letter of Clause 3.f, in Clause 8 the opportunity to request the right to offer a prayer apparently applies even more broadly, to all public events hosted by the City. c. In Clause 6, the model language has been modified to remove the restriction limiting a given prayer giver to three appearances before the City in a calendar year. In Newport Beach, the limit will apply only if others are waiting. 9. 1 find it disturbing that the staff report makes no mention of the proposed policy's extension of government -invited prayers beyond the Council to the City's board, commission and committee meetings. Nor of the unlimited number of appearances allowed. 10. Under the proposed policy, as I read it, if someone identifying themselves as the "congregation leader" of the local "church of scientology" (chosen for illustrative purposes only) informs the City Clerk they feel that every meeting of Water Quality Coastal Tidelands Committee would benefit from a 10 minute reading from the "Book of ??," the Clerk is apparently compelled to schedule those appearances unless some other congregation leader is waiting to perform the same service. While the policy allows the individual members of the WQ_CT Committee to leave during the policy -required reading, that itself is problematic as it could be seen as governmental disapproval of the message given. 11. The Council should be mindful that what was litigated in Town of Greece is what is often called the "legislative prayer" exception to the establishment clause. That is, the exception is for solemnizing meetings at which the decision makers will face the very serious task enacting laws affecting the lives of their constituents. Boards, commissions and committees rarely, if ever, give final enactment to laws. In my view, board, commission and committee meetings would be much more profitably solemnized by some completely different kind of reading, such as an oral reminder of the members' duties under the oath they took as required by the California Constitution, or the Brown Act restrictions and the reasons for them, or the "charter" under which their particular body was created along with a reiteration of their powers and duties. 12. Should the Council feel it necessary and proper to impose something of the sort proposed on the people of Newport Beach during the public portion of City Council meetings, I would at least hope they be mindful of Justice Breyer's suggestion at page 1841 in Town of Greece to adhere at a minimum to the precepts given guest chaplains at the U.S. House of Representatives, including especially the instruction that "The length of the prayer should not exceed 150 words."