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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 5, 2019 Consent Calendar Comments November 5, 2019, 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 October 22, 2019 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in c4r°�ut underline format. The page numbers refer to Volume 64. Page 226, Item SS4, paragraph 2: "Fire Chief Boyles and Fire Marshal Bass utilized a presentation to discuss the wildland management program, the status of current City managed properties, fuel modification, hazard reduction zones, and defensible space landscape areas, diSGUSvegetation management, the hazardous reduction zone, wildland interface areas, the action plan for fire prevention, including amendment to Chapter 49 (Wildland) in the Fire Code, def updating the City guidelines, and changing the existing alternating year,-i%qel high fight +ho vegetation management inspection program to annual and highlight the 2020 public education program for disaster preparedness - Ready, Set, Gor' Page 228, bullet 2: "Reported the Local Business Advancement Subcommittee, made of up of Mayor Dixon, Council Member Herdman, and herself, met with Newport Beach Restaurant Association Business Improvement District members to discuss ways to support their efforts; ..." Page 228, last bullet: "Suggested issuing Stanbridge University a proclamation for the Root for Change Even t event since they have been planting trees in the City for quite some time" Page 232, last line: "Library Services Director Hetherton added that the seminars are conducted on weekends and dra draw in a younger demographic." Page 235, paragraph 3: "... and noted the design does not include a fire pole, but suggested adding something, maybe a slide, to ;nomdecrease response times." Item 3. Ordinance No. 2019-16: Amending Chapter 14.12 Water Rates and Charges I opposed moving the wastewater rates out of the Municipal Code into a Council resolution when staff suggested that in 2017 (see my Sept. 12, 2017, Item 25 comments, page 5ff). oppose this suggestion for the same reasons. The supposed advantage of adopting rates by resolution is it provides greater flexibility for future changes. But there is little flexibility in rates of this sort to start with. They can't be changed (or, at least, increased) simply by enacting a new resolution. As demonstrated here, any increase has to be preceded by an extensive (and expensive) Proposition 218 process. So it is unlikely there will be any movement to change the rates, again, for at least another five years. And even then, concluding the process by adopting a new ordinance rather than a new resolution increases the effort (two readings instead of one) and Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 8 cost (the small charge for publishing a notice of the new ordinance in the Daily Pilot) by an amount that is trivial in comparison. Weighing against that trivial increase in effort and cost is the great advantage of adopting rates by ordinance: the new language in the ordinance, including the new rates, automatically replaces the old language in the online Municipal Code. And by looking at that Code, rather than the ordinance, one is certain one is always looking at the current and correct language copied from the most recent ordinance. There is nothing comparable when rates are adopted by resolution: one can look at the resolution, but there is no way to be sure its content hasn't been superseded by something in some later resolution. The staff report assures the Council and public that the water rate structure will become part of the City's "Master Fee Schedule" (found on the City website as its Schedule of Rents, Fines, and Fees). However, the ordinance says nothing about that. The Master Fee Schedule is in fact just a compilation of various fees charged by the City and the water rates would likely be in it whether set by ordinance or resolution'. The fact that they can be verified by checking that the numbers listed in the Fee Schedule match those in the Code is, to me, a plus because the Schedule is itself, confusingly, repealed and re -adopted by resolution at erratic intervals, making it unclear what resolution is being referred to in the new code. Moreover, it would reduce flexibility, rather than increase it, if the implementation of new water rates had to await one of the occasional revisions of the entire Master Fee Schedule. In addition, it might be noted that while staff advocates for moving dollar amounts out of ordinances into resolutions, it is not, curiously, recommending any changes to Section 14.12.125 (page 3-9) of the Code, which, although referring to a "restoration charge ... identified by Council resolution," sets a fine of $1002 and refers to a credit for wrongful disconnection "set by Council ordinance." Since the wrongful disconnection credit does not seem to be codified, it is unclear what ordinance this refers to. While I do not agree with the reason for changing the water rate establishment language, I appreciate staff presenting Chapter 14.12 to the Council in its entirety (in Attachment A), so the changes can be seen in context. ' The current water rate structure is, in fact, listed in lines 731-754 on page 17 of the current Master Fee Schedule. However, it confusingly refers to some as rates for "Domestic Meters" even though the code (Sec. 14.12.020) says nothing about them being "domestic" rates. In addition to that mischaracterization, the presentation of the rates in the code, including their effective dates, is much clearer and more readable than their presentation in the Master Fee Schedule (showing only what one hopes are the currently applicable rates). 2 Note: City Charter Section 413 requires that "every act of the City Council establishing a fine or other penalty, or granting a franchise, shall be by ordinance." It is unclear if this means the dollar amount has to be specified in the ordinance stating a penalty will be imposed, or if the ordinance only has to declare a penalty will be charged. Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 8 I would suggest this additional redlining: 14.12.010 cue Installation Fees. [The current title is confusing since this section deals solely with the physical installation of pipes and meters. The term "service" is used in a different sense in the following section (in connection with rates) and in Section 14.12.085 (in connection with a customer's billing account).] 14.12.020 Water Rates Established. [If the Council goes forward with this plan to remove the rate structure from the code, I don't see the reason for retaining the two subsections: one that is currently the header for the fixed charge table and the other for the commodity charge table. I would think this could be simplified to something like: "There shall be charged and collected from each customer for each meter a monthly fixed water service charge, established by resolution of the City Council, consisting of a fixed charge that recaptures the City's costs to operate and maintain the water system and a commodity charge for water supplied to consumers through the meter." It is also curious that the ordinance says and will continue to refer to "monthly" billing, when the billing has in fact been every two months. I have no idea where or how the two-month cycle was established.] 14.12.070 Nonspecified Uses. Water used for all other purposes not hereinbefore enumerated shall be furnished and charged at either existing meter rates or at a special rate to be fixed by the City Council under separate agreement with the consumer. [This paragraph appears to have originated with Ordinance No. 553 in 1946 (see page 6). At that time it appeared to apply to the rates for metered agricultural uses and non-specified construction uses. It is unclear it continues to be used.] Section 14.12.080 Private Fire Lines. Fees for private fire line service shall be charged at a rate established by resolution of the City Council. If such line is found tapped for domestic use, a meter shall be installed on such service at the expense of such consumer and the regular meter rates shall be charged thereafter. The City may right shall be reserved +.. disconnect such fire service from the City's main by the direction of the City Council on recommendation of the City Manager. [If not the City, who is it that "shall reserve the right"?] 14.12.085 Establishing Service. [Two things confuse me about this section: (1) In part "B" I'm not quite sure what a "continuous service agreement" is; and (2) The wording of part "D" is baffling. It appears to be saying that if a customer is delinquent on one account, all other water service at other locations but under the same customer name will be discontinued. Is that the intent??] Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 8 14.12.090 Delinquent Water Service Discontinuance and Fees. A. Water service to any premises may be discontinued or ordered turned off by the owner or tenant because of nonpayment of a bill or violation of any of the provisions of this chapter, or ordered turned off by the ,,weer or tenant, or for failure to establish a water service agreement with the City. [The indicated phrase makes little or no sense at its present position in the sentence.] 14.12.095 Customer Requests. Any residential customer who has initiated a complaint or requested an investigation within ten (10) days of receiving the a disputed bill, or who has, before discontinuance of service, made a request for extension of the payment period of a bill asserted to be beyond the means of the customer to pay in full within the normal period for payment, shall be given an opportunity for review by the City of the complaint, ' , or request by the -o ty. The review shall include consideration of whether the customer shall be permitted to amortize any unpaid balance of the delinquent account over a reasonable period of time, not to exceed twelve (12) months. 14.12.100 Due Date. All customers whose premises are connected to the municipal water system shall be billed on a regularly scheduled basis and all charges shall be received within nineteen (19) days after the date of the mailing of the municipal services statement. [Isn't this where the two-month billing cycle should be ordained?] 14.12.105 Change of Address. Failure to receive mail will not be recognized as a valid excuse for failure to pay charges when due. It is the customer's responsibility to notify the Revenue Division of any changes in mailing address or customer information. Change in the ownership of a property supplied with City water and changes in customer status must be filed in writing at the Revenue Division on forms provided for that purpose. [Aren't such changes now allowed electronically? If not, shouldn't they be?] 14.12.135 Service Discontinuance Interference. It is unlawful for any person to receive water after service discontinuance by the City, without full compliance with the provisions of this chapter. 14.12.160 Multi -Unit Residential Structures and Mobile Home Parks. Whenever the City furnishes either individual metered or master metered water service to residential occupants in a multi -unit residential structure or mobile home park, where the owner, manager or operator is listed as the customer of record, and the account is in arrears, the City shall make a good faith effort to inform the residential occupants, by means of a written notice sent at least fifteen (15) days prior to discontinuance, when the aGGG nt as in arrears, that service will be terminated at least fifteen (15) days prier to SUGh id3sGe .tinuanre Such Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 8 notice shall further inform the residential occupants that they have the right to become customers to whom service will then be billed, without being required to pay any amount which may be due on the delinquent account. 14.12.170 Unsafe Equipment The City may refuse to establish or may discontinue service to any customer if any part of the plumbing or other equipment, or use thereof, is determined by the City to be unsafe or in violation of applicable laws, ordinances, rules or regulations of public authorities, or of if any condition existing upon the customer's premises shall be determined to endanger the City's service facilities, until it shall have been put in a safe condition or the violation remedied. The City does not assume any responsibility of inspecting or repairing the customer's plumbing or other equipment or any part thereof and assumes no liability therefor. Item 5. Resolution No. 2019-94: Reducing Crime and Keeping California Safe Act of 2020 This proposed resolution troubles me. Neither the staff report nor the resolution itself make quite clear the identity or status of its subject, which is a State initiative petition (17-0044) that according to the California Secretary of State's website was certified in July 2018 as having enough signatures to be eligible for placement on the November 3, 2020 ballot, and will be qualified for that ballot unless withdrawn by its proponents. Indeed, the last "Whereas" on page 5-8 says "this measure reforms the law" without having revealed what measure it is talking about. The next "Whereas," at the top of page 5-9 (like the title of the resolution), mentions a "Reducing Crime and Keeping California Safe Act of 2020". But the thing being endorsed seems to be the "test" in Attachment A to the staff report, which has the more politically neutral California Attorney General assigned circulating title of the "Restricts Parole for Non -Violent Offenders. Authorizes Felony Sentences for Certain Offenses Currently Treated Only as Misdemeanors. Initiative Statute", which, if enacted into law, will adopt code whose self - declared title per Sec.1 in the fine print on page 5-3 will be "Reducing Crime and Keeping California Safe Act of 2018." It's a mystery to me why everything in the staff report and resolution says "2020" when the statute itself says "2018." But that's not what bothers me. What bothers me is that while California case law permits public agencies to take positions on ballot measures that may affect the M3, it prohibits them from using public resources to "campaign" for or against measures and candidates'. It difficult to see this as having any 3 See Vargas v. City of Salinas, 46 CalAth 1 (2009) at 36. ' This principle is codified generally in Gov. Code Sec. 8314 as well as specifically for local agencies — possibly only for their own measures -- in Gov. Code Sec. 54964 (which, per the 08/28/00- Senate Floor Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 8 intended purpose other than to influence citizens to vote for the measure. And since it is on the consent calendar, it does not seem to be the result of any reasoned debate and deliberation by the Council. It also bothers me that the measure appears to test our state's "single subject rule" by asking voters to consider changes to at least three unrelated provisions of state law (parole regulations, theft crime definitions and something about DNA collection) with a single all -or -nothing vote. Earlier Newport Beach City Councils did something similar twice in recent memory with our City Charter (placing before voters 15 decisions in 1 with Measure V in 2010 and 38 decisions in 1 with Measure EE in 2012), and I resented it both times. As to the substance of the measure, the meaning of the Attorney General's opening statement in the petition summary that it "Imposes restrictions on parole program for non-violent offenders who have completed the full term for their primary offense" is not clear to me, and I am unable to relate it to the five pages of subsequent fine print (which have been provided in a non - searchable PDF format). I would have naively assumed parole had something to do with early release, and was not something that occurred after completing a full prison term. Both the staff report and the resolution read like extracts from the highly partisan arguments "for" a measure that one would see in a sample ballot pamphlet. They do little to clarify its content. Among other anomalies, the Abstract on page 5-1 warns us about an apparently ill- conceived Proposition 57. But what Proposition 57 may have been is not anywhere explained. And the fact that a "Reducing Crime and Keeping California Safe" initiative is now needed to nullify the effects of an apparently pernicious "Safe Neighborhoods and Schools" initiative does little to give me confidence in the wisdom of voting "yes" based on the titles of good - sounding measures. My confidence I understand what this is about is further eroded by the statement toward the end of the resolution that this latest measure is needed because "recent changes to California law unintentionally eliminated DNA collection for theft and drug crimes." Who made those changes? If the Legislature screwed up, shouldn't we trust the Legislature to correct their error without any need for the people to intervene? If it was a previous initiative, shouldn't that give the people pause about enacting additional laws they don't fully understand? Beyond all this, I am truly confused by the conflicting reports we hear at City Council meetings and town halls that crime is at all-time lows due to the efforts of our highly effective police force, and, as here, that crime is out of control and urgent voter -initiated action is required to contain the explosion. I no longer have any idea which to believe. Before voting for this initiative in 2020, 1 would want to understand better exactly what the problem is and why this is the best solution to it. Since I expect neither I nor the individual City Analyses, was enacted by AB 2078 in 2000 as a reaction to the city -sponsored electioneering surrounding Orange County's Measure F — reversing the earlier decision to reuse EI Toro Marine Base as an International Airport). They prohibit government -financed "communications that expressly advocate the approval or rejection of a clearly identified ballot measure." 5 The reference is evidently to the "Public Safety and Rehabilitation Act of 2016. Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 8 Council members will have the time to investigate that in sufficient detail, this is the sort of decision I would prefer to leave to our full-time elected state representatives. I might feel differently if I thought the adoption of this resolution was the result of a reasoned public deliberation by the City Council on how this initiative affects Newport Beach, with action taken only after listening to the pros and cons of the measure as presented by both sides. But since I don't think it is, its adoption will have no influence on my vote. Item 6. Resolution No. 2019-95: Approving a Legislative Platform The staff report (page 6-1) refers to "the City's consulting lobbyists." Apropos Item 13 on the current agenda (a lobbyist disclosure ordinance), it would seem helpful for the public to know who the City's lobbyists are. The staff report also says "Resolution No. 2019-95 would update the City of Newport Beach Legislative Platform." And Exhibit A (page 6-6) says this platform has a term that is "indefinite until repealed or replaced." But I can find nothing in Resolution No. 2019-95 that says it replaces the Council's current legislative platform (which few citizens remember, but which I am guessing is Resolution No. 2013-19, apparently the first platform to not automatically expire — see page 2 of the Feb. 12, 2013, Item 25 staff report). Given my concerns about the Council endorsing a "City position" on a single legislative measure in the previous agenda Item 5, it probably comes as no surprise I am deeply concerned about the Council adopting in advance the numerous positions stated in this item. Especially when that is done on the consent calendar, without public discussion or debate. And especially when "the City's" positions appear to be written by staff rather by the Council. I find it highly improbable that all the members of the Council agree with all the positions stated unless they are so obvious and non -controversial as to not need statement at all. In which case one wonders what the point of this is? Beyond that, I do not see the sense of urgency claimed in the preamble to Resolution 2019-95. would prefer that positions be adopted one by one, with debate and discussion, as the need arises — and as the resolution says we once did. That sounds like a better system to me. That said, I find it unfathomable that the Council, before taking action, would not ask its Aviation Committee to review and make recommendations about its "Aviation" platform; its Planning Commission about its "Housing and Land Use Regulations" platform; its Finance Committee about its "Fiscal Stability" platform; its Civil Service Board about its "Labor Relations" platform; its possibly soon -to -be -created Traffic Commission about its "Transportation" platform; and its Water Quality/Coastal Tidelands Committee and Environmental Quality Affairs Committee and Harbor Commission about its "Water Quality And Environmental Quality" and its "Coastal Resources And The Coastal Zone" platforms. If the Council takes policy advice from its mostly non-resident staff rather than from its own citizen advisory bodies, then what are those bodies for? Nov. 5, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 8 Item 9. Annual Reporting on Development Impact Fees and Development Agreements Apropos of the comments about the City's Master Fee Schedule under agenda Item 3, above, as well as the City's ongoing General Plan update process, it might be noted that the Fair Share Fees being reported here were imposed by Ordinance No. 84-16, with the amounts initially set by Resolution No. 84-49, and the code revised by Ordinance No. 94-19, calling for review every five years. The General Plan Circulation Element adopted in 2006 contains a Policy CE 8.1.7 ("Fair Share Fee Ordinance") to "Periodically review the Fair Share Fee Ordinance, reassess the unfunded cost of required improvements, and adjust the required Fair Share Fees as appropriate" and referencing Implementation Program 7.2 ("Revise Fair Share Traffic Contribution Ordinance") saying "The updated Circulation Element will require revisions of the City's Fair Share Traffic Contribution Ordinance, Chapter 15.38, for consistency, with periodic updates as necessary for funding consideration changes (including the implications of regional improvements such as those contained in the Orange County Master Plan of Arterial Highways and the traffic contribution of adjacent cities such as Irvine, Huntington Beach, Costa Mesa, and Laguna Beach). This ordinance and accompanying resolution determine the total unfunded cost of completing the City's Circulation Element and allocate this cost to future development based on traffic generation rates." None of this seems to have happened. The most recent General Plan Status Report certified by the Council as Item 14 on March 26 for submission to the state Department of Housing and Community Development says of Imp. 7.2 (see page 45) "The completion of updating the Fair Share Traffic fee has been put on hold until direction is determined regarding various iterations proposed by the General Plan/ LCP Implementation Committees, project consultants and interested parties such as the Building Industry Association of Orange County." As to the current Fair Share fee, apparently quietly updated by CPI from some unknown starting point, I am unable to find it in the Master Fee Schedule. It could be there, but I don't see it. The only place I can find it is in Table H37 on page 5-93 of the GP Housing Element adopted in 2013 (which was presumably the fee in 2013 and somehow related to the "$216.91 per trip" mentioned on page 9-5 of the present staff report). Table H37 of our Housing Element includes a considerably larger "In -Lieu Park Fee" which is apparently not reported under the current agenda item heading. 6 It might be noted that the General Plan/ LCP Implementation Committee no longer exists. It last met in 2015.