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HomeMy WebLinkAbout0 - Public CommentsRIr,r C \ "RECEIVED AFTER A ENDA PRINTEV' P6 b l; L nD 5 7-13 -1 3 ""1" )' I,, r 11 7: , August 13, 2013' �ounclh Consent Calendar Comments The following comments.on:(teruson the Newport Beach City Council agenda are submitted by: Jim mr Mosher( i,mmosher(d)yahoc, bbmm:p2210 Private Road, Newport Beach 92660 (949- 548 -6229) STUDY SESSION 2. Trees: Citywide Urban Forest Maintenance Program 1. It is impressive that there are, according to the agenda announcement, 30,000 City - owned street and park trees in Newport Beach, and even more impressive that City staff appears to have computerized records of each, including possibly the species, when it was planted, when pruned, and soon. It is less clear how many of these trees were planted in accordance with allowable species policies, and more importantly, how many designated tree locations are currently vacant and how they came to be vacant. As an example, on the cul- de-sac where I like, with 17 homes, I suspect there were once 17 parkway trees, but today there are only 3, and 2 of these may have been planted without the City's knowledge since they don't match any current or former tree designation for the street. I believe the situation is similar in other parts of the City, probably aggravated by a lack of knowledge and understanding regarding who is responsible for the replacement of parkway trees after a removal by the City. 2. The agenda announcement also creates the somewhat misleading impression that City Council Policy G -1 ( "Retention or Removal of City Trees ") is the primary document defining the City-owned portion of the "urban forest." This is hardly an accurate picture, since the streetscape is fundamentally controlled by a long- standing policy enacted by ordinance controlling the trees that can be planted along each block of each City street, currently embodied in Newport Beach Municipal Code (NBMC) Section 13.08.020, which restricts the tree species to those appearing on an Official Tree List on file with the City Clerk, which can be altered only by the City Council, and even then only by formal resolution. Additional key components of the Newport Beach tree policy include: a. The City Charter Section 709 requirement that all City Council decisions related to parkways and street trees be informed by advice from a seven member Parks, Beaches and Recreation Commission, as well as charging that body with the power and duty to "Establish policies for the acquisition, development and improvement of parks, beaches and playgrounds and for the planting, care and removal of trees and shrubs in all parks, playgrounds and streets, subject to the rights and powers of the City Council' (a nine - member "Park, Beach and Recreation Commission" was established by Ordinance No. 636 in 1951, but was reconstituted and given these new powers and duties by the 1954 City Charter). b. The remainder of NBMC Chapter 13.08 ( "Planting "), which allows for removal of trees, but only by permission of the City Council or City Manager. c. NBMC Chapter 13.09 ( "Parkway Trees "), which imposes a requirement to plant parkway trees and allows for a waiver from it, but does not allow for planting of species other than those on the official list. August 13, 2013 Council agenda item comments - Jim Mosher Page 2 of 10 d. City Council Policy G -3 ( "Preservation of Views'), which, despite City claims that private views are never protected, encourages the siting and maintenance of City plantings to maximize private as well as public views, and also contains an odd provision of unknown origin prohibiting parkway trees "in the 200 blocks of Carnation, Jasmine, Larkspur, Mangold, and Orchid Avenues" (this provision may at one time have extended to all the blocks terminating on Ocean Boulevard in Corona del Mar, since the current Official Tree List has a notation to Policy G -3 for each of them). City Council Policy G -6 ( "Maintenance and Planting of Parkway Trees "). which purports to allow a deviation from the Official Tree List, under special circumstances for Retail Commercial /Office Centers, even though that provision is inconsistent with NBMC 13.08.020, as is a similar exception in Section E on page 8 of Policy G -1. 3. Because City Council Policies tend to be revised and approved en masse, with little consideration or discussion being given to individual ones, and since past versions, and even the materials in support of changes that may have presented to the Council in the past have not been systematically preserved, it is very difficult to trace the history of something like Council Policy G -1, but it is safe to say that in its current 17 page incarnation it is a very baroque document, nearly incomprehensible not only to the average citizen, but to those who must use it for guidance in administering the City's tree policies. Among its many defects: a. The intended distinctions between "Landmark Trees," "Neighborhood Trees" and the more general designated trees of the Official Tree List referred to above, are difficult to comprehend. b. Those lists are not updated as the Council makes changes to them. For example, the Blue Gum Eucalyptus is still listed as the Landmark Tree for the Groves Bike Trail, and as the Neighborhood Trees for Irvine Avenue, Fourth Avenue, and Holiday Road, even though the Council probably deleted the latter in 2011 or 2012, and PB &R seems to have changed the tree designation for the Groves Trail, possibly without Council approval. c. The tree designations listed in Policy G -1 may or may not conform to those in the Official Tree List established by NBMC Section 13.08.020. d. The latter list, referred to as the "Designated Street Tree List' in Policy G -1, is also not updated as changes are made, so that those visiting the Clerk's office to review it have no idea if the designation for their street is currently correct, or not. e. The noticing requirements are also inscrutable. City staff appears to interpret them to mean that the notice of impending tree removal should be posted after the hearing on the matter has been held and decided. f. PB &R conducts hearings and appeals pursuant to Policy G -1 without any written by -laws specifying how the meetings are to be held, and without benefit of any legal advice as to how hearings should be conducted. Staff proposals for August 13, 2013 Council agenda item comments - Jim Mosher Page 3 of 10 changes in street tree designations are typically presented with only a single option, and at a recent reforestation request hearing, the current Chair expressed the opinion that if the applicant met all the technical requirements of Policy G -1 (number of signatures and so on) the Commission had no choice but to approve the proposal as presented by staff. I doubt this was the intention of the policy. g. Staff seems to believe Council has directed it to encourage not one species per block, but rather a choice of trees at the property owners discretion. This might have a valid origin, either from the point of view of aesthetics (albeit, if the tree choices are not very similar, it is a policy contradictory to the underlying concept of uniform street trees) or tree health (a collection of a single species possibly being more vulnerable to the spread of disease), but when, or if, such a directive (generally attributed to Council member Don Webb) was given is unclear, as is if it is still the Council's will. In considering the request for a street tree designation change on Heliotrope Avenue (see below) as Item 12 at its May 25. 2010 meeting, at least one Council member expressed the view that it was "ridiculous" to offer a choice of three completely different trees when the objective of the policy was to establish a uniform theme (specifically citing a street in Orange, California, as showing how a single tree type looks better). Staff attitudes towards particular species of City trees seem to change without clear justification. As Item 24 at its November 22. 2011, meeting the City Council considered, and approved, a staff proposal to clear -cut a stand of 18 mature City eucalyptus trees growing in the front lawns of homes along Holiday Road as a clear and present danger to human life. Yet according to press reports, in 2002 City staff had previously threatened to sue a private property owner for the unauthorized removal of two of the same trees on the same street, which staff characterized as "part of the heritage of the city, they're large majestic trees we can't hope to replace," and which the Urban Forester had reportedly saved from infestation. i. At a more basic level, I don't believe there is any clear policy as to how many trees the City should plant in front of each address, or more generallywhat the spacing should be. j. And although private property owners are expected to pay for replacements when they originate a reforestation request for a tree adjacent to their property, there does not seem to be any policy or commitment for the City to replace trees when it initiates the removal. 4. Even within existing policies, to the extent that they can be understood, matters are not handled particularly well. As an example, as part of the comprehensive revision to the Official Tree List in 2000, the designated street tree for Heliotrope Avenue in Corona del Mar was changed (for unknown reasons) from Monterey Pine to Japanese Black Pine. At its May 4, 2010, meeting, staff presented to the Parks, Beaches and Recreation Commission a proposal to change the street tree designation for the 200 and 300 blocks of Heliotrope (the segment from Ocean Boulevard to Bayside Drive) to a choice of three August 13, 2013 Council agenda item comments - Jim Mosher Page 4 of 10 trees (Kentia Palm, Hong Kong Orchid and New Zealand Christmas). After some complaints and discussion with those residents by Council member Gardner, and further review by PB &R, this morphed into a resolution adopted by Council as Item 7 on its September 28. 2010, Consent Calendarto change the designation to a choice of Kentia Palm and Dwarf Southern Magnolia. Not only was the Official Tree List on file with the City Clerk never updated, but Resolution No. 2010 -112 failed to mention the intent to confine the change to the 200 and 300 blocks, so the Council- sanctioned street tree designation along the entire length of Heliotrope was changed without the bulk of the residents being informed of this, or having a chance to participate in the decision. Finally, at its August 6 2013, meeting, heard a reforestation request to replace 5 mature and healthy trees near the corner of Heliotrope and Seaview Avenue. Not only did the existing trees ( "River She Oaks ") not appear to be on any Official Tree List, but staffs recommended replacements on Seaview Avenue (to be paid for at homeowner expense) were the Kentia Palm and /or Dwarf Southern Magnolia, which are not the designated tree for that street. In addition, nearly all the remaining street tree locations in this block of Heliotrope were observed to be vacant. 5. A similar example of the mismanagement of the tree program, is the Port Theater street tree replacement (extensively covered in Corona del Mar Todav), in which PB &R was told the reforestation request had to be approved by the Business Improvement District, only to have staff present something different to PB &R for their approval, and to execute something still different. 6. There is also a confusion regarding the Coastal Commission's role in the planting and removal of trees in the Coastal Zone, which will have to be addressed in the City's as yet to be developed Coastal I miplementation Plan. Section 30106 of the Coastal Act (part of the California Public Resources Code) explicitly includes "the removal or harvesting of major vegetation" within the scope of "development" requiring a permit, although there are exemptions for certain kinds of maintenance work. City staff recently received a cautionary letter from Coastal Commission staff regarding the planned removal of eucalyptus trees from the Groves Bike Trail near the corner of Westcliff and Dover Drives, reminding the City that permit applications were required, and each situation had to be evaluated by Commission staff on a case -by -case basis. This would presumably apply not just to City trees, but also to any major removals of private trees outside the Categorical Exclusion Zone, such as the recent removal /replanting at Villa Point (corner of Jamboree and PCH). 7. A final problem with City tree policies is that the Municipal Operations Department has no presence in the new one -stop Civic Center, and hence questions residents may have about City trees cannot be efficiently or thoroughly answered there. August 13, 2013 Council agenda item comments - Jim Mosher Page 5 of 10 CLOSED SESSION A. Conference with Real Property Negotiators 1. This item appears to be part of an effort by the City to privatize City -owned beach and waterfront property containing private encroachments of questionable legality, namely a strip of land in front of the homes wide enough to construct a public road, boardwalk or promenade along a part of the Semeniuk Slough, and along the full length of the ocean facing Balboa Peninsula from the Santa Ana River to the West Jetty at the harbor entrance. 2. The announcement seems odd to me, since some of these encroachments were publicly discussed at the Council's February 12. 2013, Study Session (Item 2) and Regular Meeting (Item 22), but I don't recall any discussion of selling or leasing the public property to the encroachees. Such a policy discussion would seem to me to be needed before any final discussion of the price and terms of payment of a sale or lease. Beyond that, I don't think this item is properly noticed. The "safe harbor' provisions of the Brown Act (Government Code Section 54954.5), which staff is required to strictly follow in preparing the agenda (per Council Policy A -6), would appear to require that the parcels and the potential buyers for each parcel be clearly identified. a. Since the agenda lists four sets of parcels and six potential buyers, it is impossible to ascertain with certainty which buyers are being considered for which parcels. b. I am additionally unable to identify the parcels described as " "Unimproved right - of -way extending from the terminus of A Street to 250 feet southeast of E Street." According to the City's GIS map (after zooming in, and asking to overlay "Address Text" and then clicking on the parcels to identify them) the City appears to own in this area both the concrete boardwalk and a series of small lots on the ocean side of the boardwalk (APN 048 145 01 -- which is part of the grass of Peninsula Park — and then APN 048 146 01 through 048 164 08). It is quite unclearto me what part of that would be regarded as "unimproved right -of -way" being negotiated for sale or lease. The Council is presumably aware that even if it wishes to divest itself of these properties, City Charter Section 1402 prohibits it from offering anything more than a lease without a vote of the people. REGULAR MEETING Item 1. Minutes for the July 23, 2013 Study Session and Regular Meeting. The passages in italics are from the draft minutes, with suggested changes shown in sr,7 4c x ? ^v, a <. format. The page numbers refer to Volume 61. August 13, 2013 Council agenda item comments - Jim Mosher Page 6 of 10 Page 232, paragraph 3: "He also expressed his appreciation to the Recreation and Senior Services Department and to the Police Department for their efforts." Page 233, last paragraph: "... using care when giving out social security numbers, and keeping =ae< =s one s property secure." Page 235, Item VI. Closed Session Report: "City Attomey l"atp clarified that in regards to Closed Session Item B, there is no imminent threat to Public Services or Facilities." Note: if there was no imminent or specific threat to public safety in Newport Beach, it seems doubtful a closed session was justified under the limited exemption allowed by the Brown Act. In addition, since the public was asked to leave the main Council Chambers, an impression was left that the Council planned to hear presentations from more than Chief Johnson, yet the list of persons allowed for this purpose by the Brown Act is extremely limited and no one else was announced on the agenda. The pretext for a similar security session announced as a Special Meeting and held in the old Council Chamber prior to the Study Session on February 8. 2011, seems similarly questionable to me now. Page 236: Paragraph 3: "He reported that the Sgrlays s Srx raFass Hill residents will host a "Take Back the Night" program at Spy Glass kZylass Hill Park on August 6,2013, ..." Under Item XII. PUBLIC COMMENTS ON CONSENT CALENDAR: I think itwould be useful for the minutes to indicate which Council members pull which items from the Consent Calendar. That activity takes place under this heading, but is not recorded in the minutes. Page 238, paragraph 3 from end: "He indicated that the report conducted by Netherland & ,iowall Sevuell provided suggestions on additional revenue options..." Page 240, paragraph preceding motion: "...and suggested revisiting it so that the type of activity currently considered could also be funded by as cultural facilities as well." Page 241, paragraph 2 under "Oral Reports ": "... as well as a Southern California Association of Gevc+ maw Gove"unents (SCAG) Legislative Committee meeting." Page 242, paragraph 2 : "Council Member Gardner believed that the recommendations do not provide clarity normafaee make. improvements, ..." Page 243, motion: "Motion by Council Member Gardner, seconded by Council Member Selich to direct staff to bring back and an n agenda item that would propose ..." Item 3. Consideration of Ordinance No. 2013 -14 Amending the Harbor Commission's Purpose and Responsibilities Although it is not clear from the staff report, I believe this proposal differs from the one reviewed by the Harbor Commission, which is probably good, since that one attempted August 13, 2013 Council agenda item comments - Jim Mosher Page 7 of 10 to change the terms of the Harbor Commission seats in defiance of the City Charter rules in effect when the Commission was created by Ordinance No. 200 1_25. 2. Like that earlier ordinance, this one fails to adequately address the overlap between the powers and duties of the Harbor Commission and those assigned by the people to the Parks, Beaches and Recreation Commission in City Charter Section 709. Per Charter Section 700, the Council does not have the power to reassign powers assigned in the Charter, and to the extent the ordinance does that (for example with regard to recreational uses of the harbor), it is invalid. 3. As to the red -lined version of the proposed changes shown on the last two pages of the staff report, staff does not appear to be working from the actual ordinance adopted in 2002 (as linked to above). Some of what it indicates as changes (such as "Official Title" and numbering), was part of the original ordinance. Item 7. Bayside Cove Walkway — Award of Contract No. 5276 This item, in which the City is trying to improve public access to its pedestrian right -of -way in front of private property seems somewhat ironic in view of Closed Session Item A (see above), where it appears to be seeking to divest itself of its ownership of land that could be developed to provide similar access elsewhere in the City, as well as the Council's action on the 2808 Lafayette matter (Item 6 on the June 25. 2013 Consent Calendar) in which it appeared to be supporting a private property owner's refusal to allow such access. Item 8. Bristol Street Landscape Improvements - Award Contract No. 4843 This is a rather substantial contract for what many might have thought would be relatively minor improvements, and although I think it would be awaste of trees to include a printed copy of the contract with each copy of the staff report, it would have seemed helpful to provide a link to where the public could review it on -line. Item 10. School Resource Officer Program Agreement Page 2 of the staff report mentions an attachment providing a "Benefit analysis." I had hoped that might explain the public benefit justifying City taxpayers paying half the cost of what seems almost entirely a service benefiting the school program, but the attachment deals with something else (details of employee pension and retirement benefits). I have no problem with the City providing the personnel, but it remains unclear to me why the full cost of this program is not paid using funds collected as part of the schools budget (as opposed to general City taxes). Item 11. Temporary Employment Agreement with Former City Employee, Shontel Sherwood These staff reports never make it entirely clear W the person being rehired continues to receive their City- funded retirement pay during the period of temporary rehiring, or if the amounts quoted are being offered as a substitute for the retirement pay during that period. August 13, 2013 Council agenda item comments - Jim Mosher Page 8 of 10 Item 12. Approval of an Exclusive Negotiating Agreement with Olson Real Estate Group, Inc. for the Reuse of the Former City Hall Complex In the interest of transparency, for a public document it would seem helpful to explain more clearly what exactly the "good and valuable consideration" is that is mentioned as having been received at the start of the "Covenants." In Section 4, on page 2 of the proposed agreement (handwritten page 9), the second paragraph refers to resubmittal of a "uses" (whatever that is), but the list of items to be submitted initially does not include a "uses." The Council typically has some sort of a non - public "Building Sub - Committee" of its members involved in such matters. I do not believe such involvement is proper, and since it is not spelled out in the publicly- approved agreement I hope it will not occur. Item 16. Newport Beach Restaurant Association Business Improvement District (BID) Fiscal Year 2013 -2014 Advisory Board Appointments 1. The staff report perpetuates the myth that Business Improvement "Districts" (actually "Areas ") created pursuant to the Parking and Business Improvement Area Law of 1989 (California Streets and Highways Code Sections 36500 - 36551) dissolve at the end of each fiscal year and have to be recreated, along with a newly appointed advisory board. 2. In fact, such districts are established by ordinance (pursuant to SHC 36527) and can be disestablished only by ordinance (pursuant to SHC 36550). What happens each year is only that the levy upon the businesses for the coming year is either approved, or not, based on whether the Council receives a majority protest from the "members" who have read the annual report prepared by the advisory board, detailing how that levy is proposed to be spent. 3. 1 have repeatedly suggested that since the only instruction the Streets and Highways Code gives the Council with regard to this body is that when it wants to create an Improvement Area it needs to create an Advisory Board (SHC 3G530), when the Council created 'THE NEWPORT BEACH RESTAURANT IMPROVEMENT DISTRICT by Ordinance 95 -55, and appointed as its advisory board the members of the board of the soon to be dissolved private non - profit Newport Beach Restaurant Association board, the Council was by implication creating an advisory board pursuant to its authority to create boards and commissions under Article VII of the City Charter, and pursuant to the text of Section 702 at that time, the initial appointees should have organized themselves into staggered four -year terms, which would have then run with the seats. 4. How staff has come to the conclusion that the appointments are for a single year is beyond me. More importantly, the present appointees have nothing to administer or advise about, since as staff knows, the levy was not legally enacted for Fiscal Year 2013 -2014. The reason the levy was not legally enacted is that the very clear and unambiguous procedure specified in the Streets and Highways Code was not followed, and hence those who might object to being assessed were deprived their due process. That August 13, 2013 Council agenda item comments - Jim Mosher Page 9 of 10 procedure required that the Advisory Board's Annual Report specifying the planned uses of the levy for the coming year be completed and approved by the Council prior to issuing and publishing the resolution of intention to renew. This year, the Council chose to adopt and publish a Resolution of Intention as Item 5 on its June 11, 2013, Consent Calendar, without benefit of an annual report being available, and "reviewed" and approved a staff /consultant - prepared report simultaneous with its approval of the levy as hem 16 at its June 25, 2013, meeting. 6. Staff has been aware since at least July 26'" that the FY12 -13 Newport Beach Restaurant Improvement District Advisory Board failed to fulfill its most basic duty of submitting a timely annual report, as required for legal imposition of a new levy, but, to the best of my knowledge has failed to do anything about it. 7. In a related matter, I have repeatedly mentioned that since the Council has assigned more than an advisory role to its business improvement area (BID) boards (they administer the expenditure of public revenues), the officials appointed to those boards cannot legally act without having been sworn into office as clearly required by Article 20. Section 3 of the California Constitution, which explicitly includes within the scope of included "public officials" the members of all boards and commissions. Despite this, I believe a Deputy City Attorney has assured another BID board (the Corona del Mar BID) that this requirement does not apply to them, apparently citing a quote from California Attorney General Opinion 62 Ops.Cal.Atty.Gen. 325, 326 (1979) [ "Members of county advisory commissions or similar groups whose functions are purely advisory and not part of the governmental functions of the county and who receive no compensation other than reimbursement for actual expenses are not required to take an oath of office. ") B. The larger problem is that Newport Beach's BID boards are not purely advisory, yet those appointed to them are dispensing public funds while completely ignorant of the basic ethics principles required to function within the restraints of the California Constitution and the laws existing under it, including, but not limited to the need to recuse themselves from decisions affecting themselves differently from the district's other assessees, the need to avoid any participation in activities that might lead to the award of a contract to themselves, and a basic understanding of the state's open meeting and public records requirements. 9. In this connection, whatever the state Attorney General may have said in 1979 (1 do not have access to that opinion), the FPPC has repeatedly and consistently said that the members of advisory boards created under the Parking and Business Improvement Area Law of 1989 are public officials subject to the filing requirements of Section 87300 of the Political Reform Act, and as such the City Council is required to either review or impose upon them a Conflict of Interest Code (see, for example, Advice Letter 1 -05 -246). In the case of the Restaurant BID Board, the City Council is 18 years late in seeing that such a code is created, and that its appointees adhere to it. 10. An even more egregious example of the current Council's apparent lack of appreciation for the fundamental differences in the ethical principles underlying governmental as opposed to business functions, is its recent encouragement of two other City BIDs August 13, 2013 Council agenda item comments - Jim Mosher Page 10 of 10 (Balboa Island and Balboa Village) to disestablish themselves (see Items 5 and 6 on the May 28, 2013 acendal with an understanding memorialized in the FY13 -14 budget that they could continue to dispense and determine the disposition of the same amount, or more, or public revenue as they had in the past, but without the "red tape' of public scrutiny. One irony of this is that by actively encouraging the disestablishment of the former BIDs and promising equivalent funding if successor organizations should be created, the Council might be regarded as playing an instrumental role in the creation of those successor organizations, should they appear, which might well cause them to continue to be subject to the open meeting requirements of the Brown Act (see International Longshoremen's & Warehousemen's Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287 and Epstein v. Hollywood Entertainment Dist. ll Bus. Improvement Dist. (2001) 8. Cal.App.41h 862). Item 20. Consideration of Ordinances Amending Newport Beach Municipal Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent Properties and Commercial Indemnity, Respectively 1. This appears to me to be a piece of special interest legislation intended to solve a single property owner's problem, and I find its appearance on the Council agenda without having been reviewed by the Harbor Commission rather extraordinary. 2. The staff report fails to mention that the need for Harbor Commission approval of the request to transfer the pier permit at 508 South Bay Front had come routinely before the Harbor Commission as Item 7.1 on their Marcie 13. 2013. agenda where, according to the minutes "Chair West reported that the aforementioned item was withdrawn from the agenda as it was determined that the application was not complete. The matter will be considered at a future meeting." 3. There was no indication that Harbor Resources Manager Chris Miller had denied the transfer, or even had the power to do so without bringing it back to the Commission. And even if the Harbor Commission had denied the transfer, their decision would, I think, have had to have been appealed to the City Council (exhausting the administrative options) before a court could have been asked to intervene. Yet as Item A on its July 9, 2013, Closed Session agenda the City Council met to discuss "ANTICIPATED LITIGATION... Appeal of Harbor Resources Manager's denial of a commercial pier permit transfer application for 508 South Bay Front Avenue, Newport Beach, California." 4. Since none of this is disclosed in the staff report, it appears to me that the Council illegally held a pre - meeting meeting to originate and deliberate potential solutions to a problem whose nature they have not yet revealed, and perhaps never will reveal, to either the public or the Harbor Commission. It is very difficult for me to perceive any public interest served by such action.