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HomeMy WebLinkAbout0 - Public Comments - Agenda ItemsRECEI\ /EU Corffiho tri5olq IlyWh 26, 2013 Council Agenda Items 3-ZG�-i3 The following comments on items on the March 26, 2013 Newport Beach City Council agenda are submitted hy:CJim Wiher ( iimmosher(o)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- E� &6229j =i STUDY SESSION Item 2. BID Administration Update Without having heard the report it is difficult to comment accurately on this item, but there are a number of problems I am aware of with the City's four "1989 Business Improvement Districts ": • The BIDS can be created at the urging of a very small group of business owners within a "district," and unless the others are very well organized they will be subjected to involuntary membership and payment of annual levies. • Pursuant to the California Street and Highways Code sections (36500- 36551) under which such organizations are allowed to exist, the boards appointed by the Council are supposed to be advisory. Yet the City has allowed the "advisory" boards to assume administrative duties and to directly spend the levies (plus General Fund contributions), when I believe the intent of the law is that the levies be spent by the Council through the City's normal administrative channels. The City has been supplementing the levies with "matching" General Fund contributions. I believe this is contrary to the intent of the law, an improper use of tax revenues and highly discriminatory. In my view, if the City has more revenue than it needs to provide essential municipal services, it should be returning that money to the taxpayers in the form of lower rates, not choosing causes to support. If it is a proper municipal function to give gifts to businesses, then those gifts should be offered only through across - the -board City -wide programs, not just to the groups that are best organized and most vocal. The idea of offering general fund grants to the BIDs becomes especially problematic if the BIDS morph into loosely organized private merchants associations. Why should those that claim a legacy as former BIDS be eligible for special treatment? Wouldn't the City then have to offer similar support with taxpayer money to any group that claims to be a "merchants association "? The appointees to the 1989 BID boards are public officials, yet to the best of my knowledge they receive none of the state - required ethics training, nor do they file FPPC- required Statements of Economic Interest. Yet they are deeply conflicted because they have personal economic interests in nearly all the decisions they make, including ones that affect the board members differently than the average involuntary BID member. The Restaurant Improvement District is a particularly good example of the latter problem, for, as it itself recognizes, it promotes events and activities that benefit primarily the single class of food serving establishment represented on the board — yet all food serving establishments in the City are forced to pay levies. Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 2 of 10 There is also a strong interlock between the membership of the various BID boards and between those boards and City's other boards, commissions and committees, despite the Council Policy A -2 stricture that "Appointees shall serve on only one standing City Board, Commission or Committee at anytime." CLOSED SESSION Item A. Conference with Legal Counsel - Existing Litigation This item is said to involve County of Orange v. Air California et. al. which is the formal name for the Airport Settlement Agreement between City and County. Although I have failed to understand why negotiations between two public agencies should ever have been conducted out of public scrutiny, it was perhaps understandable when this item appeared on the February 12, 2013, Closed Session agenda: the Council's three- member negotiating team may at that time have been reporting back to the full Council to seek their concurrence before announcing a deal. However, now that the deal points of a new settlement have been very publicly announced, and supposedly opened for public review and discussion, I fail to see any justification for the Council to continue discussing some aspects of the deal (we know not which) out of public view. Instead this looks to me like a pre - public- meeting meeting to ensure the Council members are in agreement on Regular Meeting agenda Item 18, which is a contract with the County regarding preparation of an Environmental Impact Report analyzing the settlement deal points, or alternatively, on how to "spin" the Settlement Agreement announcement. Those do not sound like legitimate justifications for closed session discussion. REGULAR MEETING Item 1. Minutes for the March 12, 2013 Study Session and Regular Meeting The page numbers in these suggested corrections refer to Volume 61 of the draft minutes as submitted for the Council's review. Page 92: • Second full paragraph: "... a Finance Committee meeting on March .26 25 at 4:00 p.m. in the old Council Chambers Conference Room." [The minutes are correct, but the announced was in error. "25" is the correct day.] • Last paragraph: "... a retirement event for Will Kempton, the outgoing OCTA CEO and former Director of Caltrans, ..." (The minutes mis- report what the Mayor said.] Page 93: Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 3 of 10 • top line: "... and speaking on (4U KOCI about what is happening in the City." (The Mayor may have said "KUCI," but the context, including the reference to program host Troy Davis, suggests he meant the more local station "KOCI. "] • Under "XV. Consent Calendar," although it does not seem customary, it might be useful to indicate which Council members pulled which items. That would add clarity to the statement on page 95 that the Consent Calendar vote was for all items "except the items removed (5 and 11)" Page 96: • Paragraph 3: "Jim Mosher believed that a City employee authorized the reimbursement and the City cannot legally pay this bill because the work was done before the City Charter was adepteei changed." • Item VII, paragraph 3: "... and expressed concern regarding comments made by the City Manager relative to the City's satisfaction with the Coastal Commission's decision to ekminate postpone the vote on the fire rings, noting that half of the City's residents in are probably against the removal." Page 93: • Paragraph 1 under Item 12: "... but that would require a Zoning Code Amendment Variance ..." • Last two lines: "Motion by Council Member Gardner, seconded by Council Member Henn to mss; an—d'e-appiiGant Genours, that Me Gi4, Goun direct the Planning Commission to review and take action on the application which is to be amended to include the variance request and noise analysis." Page 98: C First full paragraph: "Christopher Rolls expressed concerns ..." [It is conceivable this is the correct spelling, but it seems much more likely the name is "Rolfs ".] Page 99: G First full paragraph: "Council Member Petros believed that this item does should not need California Coastal Commission approval since it has nothing to do with substantive issues regarding the properties or the actions taken by Council." [This suggested change would have to be reviewed with Council Member Petros as to whether it more accurately captures what he meant. I believe he was expressing an opinion about how he felt the law should be, rather than what he believes it to currently be.] Item 3. Jamboree Road Improvements It would have been helpful, in the staff report, to remind Council and the public, without having to refer to earlier staff reports, of the funding structure and the role played by the City of Irvine in this project, which has taken place partially within their territory and was probably needed largely to address congestion they created. Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 4 of 10 Was it truly funded entirely with County -wide Measure M funds? And is there any compensation due to the City for the easements being quitclaimed to Irvine? Item 7. Amended and Restated Employment Agreement for City Clerk I continue to be concerned about the constitutionality of granting a retroactive pay increase to a municipal employee under the guise of a "merit payment" (which is itself of questionable constitutionality if the original contract did not provide a basis for such payments). It is refreshing to see the City moving away from the unlimited term contracts for key employees instituted by former City Attorney Hunt. However, I remain skeptical that "evergreen" clauses and the requirement to give 13 months notice to terminate the contract without cause are "common" in city government, as the staff report implies at the bottom of page 2. Item 99. City Hall Complex Reuse Amendments As I state in oral comments at the previous meeting, I believe it would be prudent for the Council to defer these items until it has a more definite idea of what it wants to do with the property. Sweeping all the Greenlight permissible entitlements for the Statistical Area into this one site and zoning it for hotel OR residential OR BOTH (plus an unlimited quantity of municipal facilities) seems only likely to create unnecessary complications with the Coastal Commission; again reminding Council, as I did in my written comments to your March 12 meeting, of the December 19, 2012, comment from the CCC analyst quoted in the Mitigated Negative Declaration (MND: page 137 of the 197 page 03 -01 -13 PDF) which the Council is being asked to approve: "Commission staff wouldn't want the City and /or potential private entity to invest significantly in a proposal that may be profoundly at odds with the policies of the Coastal Act." Regarding the MND, I believe it is deeply flawed for other reasons, as well. One indication of the sloppiness with which it was prepared is that in Section 5 (page 130 of the PDF) the consultant's conclusion is that the City should check the box indicating a simple Negative Declaration, even though his report clearly indicates multiple mitigation measures would be required to avoid negative impacts — possibly contributing to the confused noticing of the hearing scheduled for the previous Council meeting. Looking more closely, one finds the MND document recommending mitigation measures for items that a few pages earlier it assured the reader would require no mitigation (for example, Mitigation Measure MM 4.14 -1 addresses a problem we were told a few pages earlier would have less than significant impact). Likewise, a variety of conflicting figures are given for the square footage of the hotel option that was analyzed (Table LU2 on PDF page 14, lists 99,625 in one place and 99,675 in another, while PDF page 13 says 99,674). There have also been multiple issues with adequate public review of the MND. It was originally released in all italics format, very difficult to read, and not machine searchable, with comments due on the day after Christmas. It has now been re- released in a form that is no longer all italics, but the PDF text is still largely unsearchable. Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 5 of 10 One of the biggest problems with the MND is that it's impossible to tell with any certainty what project the consultant is evaluating. Taken literally, the proposed General Plan and Coastal Land Use Plan amendments allow the construction of BOTH the residential and the hotel components (with some uncertainty as to how the 15,000 sf of commercial plays into the combination scenario). The consultant probably has some kind of trade -off in mind, with each residential unit taking away from the amount of hotel and vice versa (for example, Table 4.3 -3 claims the combination of Hotel AND Apartments will produce LESS "Area NOx" than the Apartments alone, and LESS "Energy NOx" than the Hotel alone), but what trade -off he is imagining is never spelled out, and beyond that the amendments appear to allow an unlimited amount of additional municipal facilities whose impacts do not appear to have been considered. Some specific substantive problems I noticed in the earlier release of the MND: a) In the official description in Section 3.1, it sounds like the 15,000 sf of retail could be built IN ADDITION to the "up to 99,675 square feet of hotel uses, up to 99 market rate multiple - family residential dwelling units, and retention and /or replacement of Fire Station No. 2." But in the proposed General Plan amendment in Table LU2, the 15,000 sf appears to disappear into the hotel allotment if a hotel is built. b) The official description implies a community center would count towards the 15,000 sf, yet the proposed General Plan amendment says there are no restrictions on municipal facilities. c) The official description assures the public the project will include "1.3 acres of public open space, including public plazas and promenades," yet the proposed Zoning Code amendment on PDF page 12 reserves only 20% and 0.20`4.26 = only 0.852 acres. The promised 1.3 acres would be 30.5% of the total project site, and 32.8% of the usable area. I am sure many other problems could be found, but the volume of material being presented at this Council meeting (including other items on the agenda) and the very short deadline for submitting written comments prevents me from exploring this further. As to the Greenlight permissible entitlement levels (for development without a popular vote), the traffic aspect seems to have been evaluated on the basis that the 2006 General Plan vote approved a 70,000 sf City Hall at this site. I'm not sure that's true, and any event that seems to raise a logical inconsistency with the current zoning proposal which, per Table LU2, will allow allows unlimited municipal facilities. Finally, from minutes of earlier Council meetings, it is clear that some of the original proponents of the "City Hall in the Park" concept (that is, for a new City Hall at what we now call 100 Civic Center Drive), felt the loss of public parkland at that location would be mitigated by the development of an even more useful urban park at the 3300 Newport Boulevard location I think the present Council has leapt into the hotel /apartment concept without adequately exploring the viability of that original vision. Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 6 of 10 Item 12. Medical Office Building Use Permit Appeal As with the Woody's Wharf item on the previous Council agenda, it is refreshing to see that the Council is considering sending this matter back to the Planning Commission, since, like Woody's Wharf, it has morphed from an appeal into a new proposal which has not yet been considered by the Commission. On the other hand, I was a bit surprised to see an announcement of an April 3, 2013, Planning Commission hearing on this application already posted at the site, and published in the classified section of the Daily Pilot on Saturday. It would seem someone thinks a Council decision in line with staff's recommendation is a foregone conclusion. I would hope it is not. Item 14. Annual Review of the Worth Newport Center Development Agreement It would be interesting to know why the segments of Fashion Island that are not subject to the North Newport Center Development Agreement were carved out, and whether they are subject to other development agreements; but I do not expect to have time to research this before comments are due. As to the current report, I find it interesting that, as explained in the narrative on page 3, the really big activities in 2012 do not able in the Activity Summary of Table 1 because they were not "completed." Item 16. Proposed Council Policy 1 -13: Public Arts and Cultural Facilities Fund Assuming one things municipal tax dollars should be used to underwrite cultural activities (something I'm not sure everyone would agree with), the basic concept here may be meritorious, but as indicated by comparison with the existing policies that are attached to the staff report, much of it seems duplicative of, and possibly in conflict with, the pre- existing policies. This seems to be another case of rushing to do something, under the assumption that someone will later fix the broken parts. As to the proposal itself, it is unclear to me exactly how the 2% is supposed to work, or how it is related to the anticipated "future stream of funding ": what, exactly, are "unallocated public benefit fees" and does the injunction to include a contribution "as a component of any public benefit fees negotiated pursuant to Chapter 15.45" mean that contribution would also be 2 %? Or is it negotiable? Should this perhaps written into Chapter 15.45 by ordinance? find the way the "Other Considerations" on page 6 are written to be confusing: some seem applicable to physical art, others to cultural facilities, but few to both. Item 17. General Plan Annual Status Deport When this item was before the Planning Commission on March 7, 2013, 1 submitted written comments which can be found on the web page for that meeting, and most of which remain relevant. Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 7 of 10 Although the report is admirable, it clearly misses some General Plan related activities that occurred during the calendar year. For example, the City's General Plan web page lists several General Plan amendments adopted in 2012, yet none of them are mentioned under Implementation Program 1.2. The implementation programs that have most aroused my interest since the Planning Commission review are 12.1 and 12.2, which require the City to maintain a very specific Fiscal Impact Model, and provide the results to aid decision making on every significant development. As the report says, this was apparently provided for the Newport Banning Ranch application, but I do not recall having seen it for Uptown Newport. Item 18. Memorandum of Understanding (MOU): John !Mayne Airport By the deadline for submission of these comments I will not have had time to think carefully about the proposed deal points and MOU for preparation of an EIR, but the deal points that most concern me are: 1. What appears to be a built -in incentive for growth in Recital 1.7.0 whereby, although small, the airport is offered a bonus for achieving 11.21 MAP. Also, the two sentences related to this appear, at first reading, to be logically inconsistent: one applies achieving that level in any year will result in the bonus, whereas the next seems to say that missing the target in any year will result in loss of the bonus. Whatever the intent, I don't think we should be offering an incentive for achieving high MAPS. 2. The increase in the allowable number of Class A ADDS in Recital 1.7.D is particularly unfathomable to me. I believe this means that even as (we hope) planes become inherently quieter they will be able to fly in ways that generate the same SNEL noise levels at the noise monitors that they do today, and with both the increase in Class A's and the increase in number of flights in general (to accommodate the increased MAP with Class E's) residents will be subjected to quite significantly higher daily average noise levels. 3. The removal of the cap on the number of loading bridges in Recital 1.7.E would seem to signal the beginning of an era of completely unrestrained terminal expansion, with one assumes an ability to load and debark many more noise and pollution generating flights per day. As indicated on page 5 of my written comments submitted to the Council's March 12 meeting, continue to think there are problems with the way the deal points were negotiated in apparent violation of the Brown Act, which at a very minimum would seem to have required notice of the date, time and location of the negotiating meetings, even if the meetings themselves were closed to the public. Item 19. Mobilitie Telecommunications Permit for Faux Eucaplytus Tree Monopole I find it unfortunate that this will come at the end of what will likely be a long day for the Council, and it may be approved simply out of fatigue. To date, the City's Planning Division has been Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 8 of 10 reasonably good about seeing that the City's cell phone services have been provided in an unobtrusive way, usually by means of antennas completely hidden from sight in architectural features. Approval of this application would be a step backwards, and a capitulation to industry pressures for less aesthetic, and less carefully thought out solutions. Municipal Code section 15.70.070 states that certain applications are singled out for special review by the Council "Because of their potential for greater- than -usual visual or other impacts on nearby property owners, residents, and businesses." The Council has before it two resolutions, one for approval and one for denial. In this case the findings in support of the resolution of denial are straightforward and easy to make. Those for approval are difficult to make, and problematic at best. In fact, each of the findings for denial, either of which would be sufficient, can easily be made: Less impactFul alternatives are clearly feasible: a. A much more aesthetic bell or clock tower suitable for hiding communications equipment could be built at or near the proposed location of the false tree. This is not at all unprecedented, even in Newport Beach: among others, such a tower is currently under construction at the Newport Lutheran Church on Dover Drive, and the cupola of Our Lady of Mount Carmel Church on the peninsula was reconstructed with "Radio frequency friendly" materials so it could hide antennas and equipment completely unseen by passersby. The applicant and property owner have said a bell tower would be less aesthetic than a fake metal tree sprouting panel antennas and microwave dishes, but it must be kept in mind that when the application of the antennas on the outside walls of the church building (which did not require Council approval, yet which Councilman Hill finds very unaesthetic) was presented to staff, the applicant claimed that mounting panel antennas on the walls would be more aesthetic than adding a new architectural feature to the building. b. The staff report indicates the applicant will also be needing to add a facility in Santa Ana Heights. This raises the possibility that locating the false tree, if one is needed, at the Bay Corporate Plaza (adjacent to the YMCA and across University Drive from the Muth Center) might be a much better alternative, killing two birds (I hope not literally with the RF emissions) with one stone. c. For the same reason, the roof of the Santa Ana Fire Station has come to several people's minds: it would not only generate revenue for the City, but quite possibly provide adequate coverage in both areas, eliminating the need for two facilities. 2. The proposal will clearly have greater- than -usual visual impacts on nearby property owners, residents, and the public in general. a. Not only is the proposal more visually impactful than any of the alternatives suggested above, but the proposed location is on a heavily street designated as a "Coastal View Road" in the City's Coastal Land Use Plan. Assuming the Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 9 of 10 impact of placing a fake tree in a non scenic area is "usual," this impact is clearly "greater-than-usual." b. For the same reason this has a greater- than -usual impact on both residents and the public in general in those portions of Costa Mesa bordering the Church parking lot. There is currently a beautiful view of our precious open space from both private and public spaces around the intersection of Riviera Drive and the north end of Tustin Avenue, impaired only by the junk Church officials allow to remain permanently parked in the lot (currently a sailboat and an aged white limousine). Should this application be approved, residents and passersby would have added to that view a 62 -foot tall, 27 -foot wide toilet bowl brush, which even though it may look somewhat "natural" to the casual passersby would soon cease to look natural to those who spend more time in the area. On the other hand, the findings, all of which are required for approval, are difficult to make: 1. It is not clear the facility is needed to accomplish the applicant's goal of providing adequate coverage, and it is not even clear how serious the problem is. No actual data has been provided, only model results, and even those computer models predict most of the red area to be on the surface of the Upper Bay (an area one might suspect, because of the lack of obstacles, might actually have coverage despite the model). 2. Alternatives are available. 3. The facility may not generate traffic or odor, but it will generate noise — a frequent complaint in other cities, as the "bunkers' with the ground level support equipment contain fans, sounding something link industrial strength refrigerators. In the application seems deceptive as to the number and size of such bunkers required. The "230- square- foot equipment shelter" mentioned on page 3 of the staff report may be sufficient only to support the one level of 12 antennas leased to Verizon. The overall approval is for four levels of antennas, which may require three additional bunkers, to be put who knows where, to support up to 48 antenna panels on the fake tree. This is a large installation! 4. One simply cannot make the finding that this will not affect coastal views or that it is the least impacfful way of providing coverage. Beyond this, I might observe that the CEQA finding in Section 2 of the Resolution of Approval is clearly erroneous. A 62 -foot tall, 27 -foot tower is clearly more than "installation of small new equipment and facilities in small structures." Even if it was "small," it could not possibly qualify for a categorical exemption because by insisting on a supplementary landscaping plan the Council is acknowledging the original proposal had adverse environmental impacts requiring mitigation. The antennas themselves also have a very significant potential for environmental impact requiring conditions on broadcast power and access areas to ensure exposure levels below federal standards. Finally, the new photo simulations provided added to the staff report (on handwritten pages 101 and 102) illustrate how effective the added landscaping will be at screening the facility in 20 years. Hopefully technology will have advanced to a point where a facility like this is not needed in 20 years! And it might be noted that this screening, attempting to correct one view problem Comments on Mar. 26, 2013 Council agenda items - Jim Mosher Page 10 of 10 (the ugly and highly unnatural looking lower reaches of the "trunk "), will be further blocking views of our open space from the public and private areas identified above. Item XIX. Motion for Reconsideration Although it may be technically too late for a motion to reconsider, I would like the Council to reconsider its appointment of Carl Cassidy to the Environmental Quality Affairs Committee (Agenda Item 11 at the February 26, 2013, meeting). Carl is a good man, but the Clerk failed to note he had been appointed to the Water Quality /Coastal Tidelands Committee at the January 22, 2013, meeting, making him ineligible for appointment to a second standing committee under Council Policy A -2. Not counting the BID boards with their many interlocking members, I know of one of current case: Tom Anderson, serving on both PB &R and the Aviation Committee. Again, a good man, but against the rules.