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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED OCTOBER 23, 2018 October 23, 2018, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the September 25, 2018 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in cr°�4, rkeout underline format. The page numbers refer to Volume 63. Page 616, motion at top of page: "Motion by Mayor Pro Tem O'Neill, seconded by Council Member Dixon, to read the proclamation and ^rpt rp esent it to the City's Code Enforcement Officers." Page 616, Item XII, last bullet: "... Council Member Muldoon was excused from tonight's meeting because he and his wife were .•fig awaitinp the birth of their son." Page 619, paragraph after motion: "Matt Holder, Executive Director of Free SUP SoCal, provided background information on the organization and safety precautions recommended during SUP activities, including wearing a leash." [comment: It seemed to me Mr. Holder had a number of thoughtful suggestions for improving the Stand Up Paddleboarding Safety Flyer. It was sad to see them seemingly dismissed without discussion.] Page 619, Item XVI, last paragraph: "Jim Mosher requested the City notify the public when a meeting has been canceled and suggested the City Attorney's Office post a list of ongoing litigation and claims against the City on the City's webpage website." Item 3. Second Reading and Adoption of Ordinance No. 2018-17 - Amending Titles 1 and 17 Related to the Harbor Department For a supposedly routine consent calendar matter, this item drew a surprising amount of public comment when it was introduced at the October 9 City Council meeting. As Mayor Pro Tem O'Neill pointed out, much of that comment was generated by the impression that the ordinance consisted of 36 pages of previously undebated law — when in fact only the few words highlighted by redlining in the October 9 Attachment B were being changed. However, as I commented, and City Attorney Harp acknowledged, a few of the proposed changes have nothing to do with the establishment of a Harbor Department and instead seem to be staff "improvements" to Title 17, slipped in without review by the Harbor Commission. The copy being presented for second reading provides no way to distinguish what is old from the small parts that are intended to be new -- which in addition to being inconvenient for the public, may make it difficult for the City's codifying service to be sure they are capturing the intended changes correctly. Perhaps the most problematic is the proposed change to Section 17.25.030(A) shown at the top of page 3-55 of the October 9 staff report. That section now sets a hard two-hour limit on the October 23, 2018, City Council Consent Calendar Comments - Jim Mosher Page 2 of 7 length of time a private boat can be left unattended on a public beach — where the existing code prohibits leaving them for "an extended period of time." As one of the public commenters on October 9 said, two hours may not be long enough to complete business onshore. This proposed change was brought to the attention of the Harbor Commission on October 10 (the following night). Sadly, Newport Beach, even though it records the meetings of its board, commission and committee meetings, does not, unlike most cities, make those recordings (other than of the Planning Commission) readily available to the public on its website. But staff seemed unsure what change was being proposed or why, the Commissioner who had been in attendance on October 9 did not know this was one of the changes being proposed, and the remaining Commissioners seemed uncertain both what the current rule was and what it should be. I would again suggest the proposed changes to Title 17 that are not required to create a Harbor Department — such as the beach time limit -- be deferred until they can be publicly debated by the Harbor Commission. Item 4. Second Reading and Adoption of Ordinance No. 2018-18 - Amending Newport Municipal Code Title 17, Pertaining to Vessel Speed Limits This item generated a substantial amount of confusion when it was introduced on October 9. Those attending the Council meeting found copies of an amended version of the ordinance in the lobby. That was presumably what the Council was being asked to approve on the consent calendar, however no explanation was provided on how it differed from the version they had reviewed in the posted agenda packet, or why. As it developed, the amended version was itself defective and required additional modifications to be made orally by the City Attorney, resulting in a text which — although never printed out for review -- appears to match that being presented here for second reading. Since it is difficult for both the Council and the public to absorb all these changes "live" at the meeting, I would suggest that when amended versions of ordinances (and staff reports in general) are distributed they be accompanied by a written explanation of why they are being changed and the changed passages be highlighted for easy identification and review. It would also be helpful if when a staff member signs an original or amended City document as "approved as to form" there be some assurance they have actually carefully read the document's contents and are assuring it is free of the kind of obvious errors the City Attorney had to correct at the meeting. In this particular case, the corrections were made to Section 4 (page 4-5 of the present staff report) which defines how decisions made under Title 17 can be appealed and called for review, specifically Section 17.65.010 ("Authorization"). October 23, 2018, City Council Consent Calendar Comments - Jim Mosher Page 3 of 7 I might point out that per the text being proposed for adoption, the Council cannot call up for review decisions made by the Harbor Public Works Director or Harbormaster unless they have already been reviewed by the Harbor Commission. In other words, a Council member cannot ask the Harbor Commission to review a staff decision or directly call it up for review by the Council. Although the current code works that way, I have no idea if that is how the Council would like for it to work. It also became apparent at the October 10 Harbor Commission meeting that despite its sweeping language, previous Councils have enacted other passages in Title 17 that contradict the appeal procedures laid down in Section 17.65.010, and being updated here. In particular, Section 17.60.080 says it supersedes Chapter 17.65 for all appeals of decisions regarding permits and leases made pursuant to Chapter 17.60. Those, it says, are heard by a paid hearing officer, whose decision is final and cannot be appealed or called for review (I have since been informed these hearings are private and the public in general is not only not noticed of them, but actually prohibited from attending — the latter statement having later been retracted). However, despite this claim, with regard to the revocation of mooring permits, Chapter 17.60 cites a separate Chapter 17.70 which places appeals of permit revocations with the Harbor Commission and says the Harbor Commission's decision can be appealed or called for review as prescribed in the Chapter 17.65 being amended here — that is, to the City Council. I do not know the rationale for allowing some staff decisions to be reviewed by a group of one's citizen peers while others are limited, without further recourse, to the private opinion of a paid hearing officer, or if the current scheme is the one the current Council wants. But as an example of the confusion this division creates, staff recently assigned a citizen's appeal of the Harbor Commission's September 12 decision to revoke a mooring permit to a hearing officer rather than to the Council. The prospect of a single individual being empowered to substitute his or her opinion for that of a citizens commission is troubling. In this case, I believe the new Harbor Department staff is clearly misreading the code as currently written, but this confusion underscores the difficulty of creating laws whose intent can be understood by administrative staff, let alone by the public. That problem is magnified when ordinances are introduced on the consent calendar without careful review by staff or Council, as happened with this one on October 9. Item 5. Summary Vacation - Existing Sewer Easement at 1721 Kings Road It is surprising to me there does not seem to be any clear code or policy for vacating City easements or rights-of-way — at least none cited in the present staff report. The opening sentence of the Discussion suggests that vacation of this particular City sewer easement is necessary to accommodate a home construction project on this bluff top property overlooking Mariners Mile (even though the City's Projects Map shows no pending applications at this address). This raises the disturbing possibility that this action is intended to allow the October 23, 2018, City Council Consent Calendar Comments - Jim Mosher Page 4 of 7 homeowner to extend their home out over and down the bluff face (covering the easement). That is disturbing because the Natural Resources element of our General Plan calls for preservation both of the bluffs and of the views from the adjacent public park. In short, the proposal to vacate the easement may be consistent with the General Plan (the fourth "Whereas" of the proposed resolution), but the plan to build over it, if there is one, may not be. As to the fifth "Whereas," claiming the "the sewer main was relocated along the Property's southerly property line," I am unable to find any evidence that is correct. 1721 Kings Road's southerly property line is near the foot of the bluff, abutting the rear property lines of the commercial parcels along Coast Highway. The City's GIS application shows no sewer there (current or abandoned). The dotted green line shown along the southerly property line in Attachment B is clearly labeled as a "Telephone" and "Edison" easement, not a sewer line. Instead, what seems to have happened, as also illustrated in Attachment B on staff report page 5-4, is that the sewer line originally continued near the top of bluff to drain not only 1721, but also 1801 and possibly 1811. When the latter two lots were turned into Kings Road Park, the line was no longer needed, and since nothing was flowing across 1721 from 1801, the flow from 1721 could be connected directly to the remaining line across 1711 near 1721's easterly property line. The idea that the easement will not be needed again in the future assumes the City will never install anything in the park requiring a wastewater connection. If it does, reacquiring easements would likely be expensive. Especially since the potential results of building over the easement could be inconsistent with the General Plan, I would recommend the Council keep future Council's options open by retaining the easement. More generally, this item raises the question of how such matters are noticed. As just noted, if the vacation of the easement allows the home to be extended out over, or down, the bluff this could affect both public and private views. Yet unless the potentially impacted neighbors and public diligently check City agendas each week, they would have no way of knowing a decision important to them was pending. A similar situation arose at the October 18 Planning Commission meeting (see Item 8, below). I would suggest the Council not vacate City easements or rights-of-way without at a minimum posting the property with a notice of the pending decision so those who may be impacted by it can weigh in on the matter. I don't see how well-informed decisions can be expected without that. October 23, 2018, City Council Consent Calendar Comments - Jim Mosher Page 5 of 7 Item 6. Bison Avenue and San Joaquin Hills Road Pavement Rehabilitation Project (19R21) - Approval of Professional Services Agreement with Stantec, Inc. - Contract No. 7433-19 I have to compliment the City and its contractors on the recent rehabilitation of Irvine Avenue from Santiago to 16th Street. The roadbed is much improved, at least for the moment, especially on the Costa Mesa side. One can only hope the segments being designed pursuant to this item come out as well. However, since pavement rehabilitation appears to be a continuous activity of the City, I do have to wonder if some of these contract services could be provided more cheaply by in-house PEPRA employees? Item 7. Final Tract Map No. 18039 for a 7 -Unit Residential Condominium Development Located at 20452 Santa Ana Avenue As was the case with Item 10 on the February 13, 2018, consent calendar, the Council is being asked to make a number of highly technical decisions regarding compliance with previous approvals and standards. As then, I feel singularly unqualified to comment on this, and have to wonder if the Council members understand it any better than I. I do think the conversion of the segment of Newport Beach adjacent to the east end of the Santa Ana Country Club from a mix of homes and convalescent facilities to a West Los Angeles -like wall of high density apartments and condos has not been for the better. Item 8. Planning Commission Agenda for the October 18, 2018 Meeting The Agenda Report implies separate votes were taken on Items 2, 3 and 4. In fact, these three "consent" items were approved in a single vote, without discussion by the Commissioners (aside from acknowledging some minor revisions to the minutes). Items 3 and 4 were the Commission's first foray into approving private encroachments into the public right-of-way per the recently revised Council Policy L-6. Prior to this, the Council itself could allow "prohibited" encroachments by waiving the policy and directing staff to create an agreement. Those encroachments remain officially "prohibited," yet as indicated in the report, the Planning Commission was asked to waive Policy L-6. Unfortunately, Policy L-6, as currently written, gives the Planning Commission no authority to waive the Council's policy, although an oddly mis-numbered (and duplicate) Section "A" dangling at the policy's end does mention grounds for variances from it. October 23, 2018, City Council Consent Calendar Comments - Jim Mosher Page 6 of 7 The uncertainty about what the Planning Commission can, and cannot, do is one of the unsurprising consequences of its having been presented to Council as part of a 215 page consent calendar item in a 694 page agenda packet. Policy L-6 as revised on August 14, 2018, is an odd and defective potpourri of Council, Commission and staff authority that clearly needs further work. Some of the remaining references to "Council," for example, are now, most likely intended to be replaced by "Commission," and should some of the "prohibited" examples now be "allowed by variance"? Additionally, the Planning Commission's Items 3 and 4 underscored the problem mentioned in connection with the Council's Item 5, above. Namely, the Commission was asked to make findings that allowing the encroachments would not be detrimental to the public, without the public most affected — the neighbors — having any knowledge a decision that might impact them was pending before the Commission. Whatever other defects Policy L-6 may have, I would suggest the Planning Commission not be allowed to approve encroachment agreements without, at a minimum, posting the property before a decision is made -- so the neighbors and those passing by will know about the decision and have a chance to weigh in with views that may be different from those of the applicant. Item 10. Cultural Arts Grants Fiscal Year 2018/19 I thought the City Arts Commission's recommendations were more thoughtfully considered this year than last. That said, the Council does not seem to be given access to the proposals the CAC saw on October 11, so it must be difficult for the Council members to know if they agree with the recommendations or not. Personally, and even though for the Film Festival it is much less than the amount requested, I would have to question the relatively large grants recommended for the Film Festival and the Pacific Symphony. To me those are organizations that should be able to stand on their own, without help from the City. I also find disturbing the large amount the Film Festival "gives back to the City" in the form of free tickets to staff and decision makers, as shown in the City's Form 802 ticket/pass disclosures. As reported on May 24, 2018, the Festival this year appears to have given $4,950 in tickets to films and parties to City employees and officials, including $3,460 to City Arts Commissioners (nearly equal to the grant being proposed). Per Council Policy F-27, for this not to be perceived as influence peddling, the acceptance of these gifts was ostensibly justified by a statement that the employees and officials would be attending to promote City activities. However, I think many would see these as gifts for the personal benefit of the recipients. Since ticket purchases presumably add to the events' revenue in exactly the same way as cash donations, if the City truly feels a need for such ambassadorial activity, I think the "optics" would be much better if the City bought the tickets from the organization with City funds (for the purpose of promoting other City activities, clearly conveyed to those receiving the City- October 23, 2018, City Council Consent Calendar Comments - Jim Mosher Page 7 of 7 purchased tickets) rather than giving the organization a grant, most of which is returned to the individuals approving the grant. Alternatively, if the City feels the Film Festival would not provide community service events without a City grant, then it seems to me the grant should be given without expecting or accepting gifts in return (especially since the officials involved, if they are interested, should be able to attend the free events the City is sponsoring at no cost). Layered onto these concerns, I am bothered by: (1) the odd timing of the grants, and (2) possible redundancy with other City grant programs. As to the timing, this is announced as "Grants for Fiscal Year 2018/19," but since the fiscal year started on July 1, the grants clearly don't align with the fiscal year. As to redundancy, the City has a confusing array of give-away programs. Among those I am aware of, the City gives away "Special Event Grants," "Community Program Grants" and "Council Discretionary Grants," not to mention CDBG grants and the unknown amount of Transient Occupancy Tax revenue channeled to friends of Newport Beach & Co/Visit Newport Beach. Some of these support programs may overlap. For example, in addition to the $5,000 recommended by the City Arts Commission, the Film Festival appears to receive $150,000 per year through the Special Event grant program (contract C-8082-1) plus an unknown amount of support through (and kickbacks to?) Newport Beach & Co. Given the extremely generous $150,000 support (which the City Arts Commission may have been unaware of since it does not appear to have been disclosed in their application), it is not obvious an additional $5,000 is either necessary or appropriate. For context, it might be noted the City, for a number of years, gave $50,000 of taxpayer money each year to the OC Marathon, which the Council was told was essential for the event's survival. When City funding was cut off, the event, miraculously, managed to continue and grow (and the City, oddly, continues to be listed as a Marathon " ap rtner").