Loading...
HomeMy WebLinkAbout0 - Public Commentsic ��c�- in�eh -Es Comments on January 8, 2013 City Council Agenda Items Comments by: Jim Mosher( iimmosher(o)yahoo.com ), 2210 Private Road, NB 92660 (949- 548 -6229) CLOSED SESSION Item A. Conference with Real Property "Negotiations" The agenda announcement should, of course, say "with Real Property Negotiators," not "with Real Property Negotiations." Beyond that trivial observation, I think the preparer of the agenda needs to be more expansive in informing the public what these real estate negotiations are about. I am guessing they have something to do with tidelands leases, but since the tideland leasing process was supposed to be open and transparent, I find it difficult to visualize what the Council needs to discuss behind closed doors. That is particularly hard to understand with regard to property #10, in which the land owner we are negotiating with appears to be the Newport Beach public. Whose interest is being protected by the closed session discussions? And "keyond that, if these are indeed negotiations with regard to the lease (or sale ?) of state tidelands, then the notice seems incorrect since we have been repeatedly told the City has no intention of further encumbering private property, and since I assume the state tidelands are not, in the City's view, properly part of the private property cited by the Assessor's Parcel Numbers in the agenda announcement, I have to conclude the Closed Session is most likely about public property near, but not the same as, the private parcels cited. Finally, the public has not heard if the Measure EE changes have been filed with the California Secretary of State, and until that happens, the existing Charter does not allow closed sessions. REGULAR MEETING Item 1. Minutes (Volume 60) Page 653: Under Item 22, the word used at least four times is "non-habitable" (as in the item title), not "u-.°'1nh .b"tabl® " Page 653: Second paragraph under Item 23: "there were previous Plan RLgns..." Page 657: Fourth line from top of page: "...this would apply oni to regular meetings..." Page 659: First line under Item 28: "...Miller presented and discussed..." Page 665: Fifth paragraph: "Kristine T4iaggar4 T ggard ..." (cf. page 671) Page 666: It is difficult not to be amused by the irony of the City Attorney observing in successive sentences that SB 152 does not apply to City tidelands because they are not State lands, but that the City's obligation to enforce the Constitutional prohibition against the State making a gift of public funds (by waiving rent) arises because they are. January 8, 2013 Regular Meeting agenda comments by Jim Mosher Page 2 of 7 Page 667: • Fifth full paragraph: "rent their docks to ® ^�� EpSou j2 borne of the costs" • Third line from end:"... people are renting their docks anyways gp a ..." Page 669: • "l. Roll Call — 3:30 pm" is mentioned but the result is not listed. • It might also be helpful to indicate where this meeting took place, since the adjournment message on page 668 says it will be in the new City Council Chambers, but it was in fact held in the old Chambers. Page 681: First line above Item 8: "Mayor Pro Tem Cwnafy ill took his proper place..." Item 3. Emerson Island Annexation I continue to think the resuscitation of this long- dormant action was not properly considered, and I am unaware of any evidence having been presented that the current property owners even wanting to be annexed by Newport Beach. As previously indicated, only one lot matches the neighboring pattern of development in Newport Beach. The remainder is much more similar to the adjacent pattern in Costa Mesa and would seem, logically, to be better served by becoming part of that community. In addition, the proposed RM -10 designation for a group of separately owned lots, some of which are not suitable for multifamily development seems arbitrary and unintentionally inconsistent with the existing uses, and the proposed line of division along Tustin Avenue, with Newport Beach taking responsibility for sidewalks on the Costa Mesa side, seems poorly thought out. Finally, appears this annexation will exacerbate an inequity found in other parts of the City where residents have to pay separately, and above and beyond their property tax bills, for services, such as trash, that other residents receive as an entitlement and which are paid for, for them, by the City as a whole. Item 5. Amendments to City Council Policy A -6 and A -10 This is one of the worst proposals I have seen in many months. Regarding Policy A -6, I have no objection to the proposed change to the agenda sequence specified in it, but the fact that it is being proposed after the Council just revised the policy at its last substantive Regular Meeting (on November 27, 2012) suggests a lack of any coherent vision on the part of whoever is proposing these changes, as does the fact that the non - agenda public comment segment is being restored to the position it had before the previous revision on February 22, 2011 (which was made only after a February 8, 2011 Study Session on the topic). A comprehensive review would address not only finding an appropriate final resting place for the non - agenda public comment segment, but also all the problems with these policies, including those I raised in written comments to the two sessions in 2011, which are presumably now part of the public record. It is also unclear how the agenda preparer has determined the entire Council now wants to reverse its carefully considered decision of two years ago, making this an appropriate item for the Consent Calendar. Was the Council illegally polled to reach a consensus? Or does someone read their minds? January 8, 2013 Regular Meeting agenda comments by Jim Mosher Page 3 of 7 Having the proposed changes to Policy A -10 on the Consent Calendar, since they impose restrictions on public comment even stricter than those rejected two years, seems particularly outrageous. As I wrote on the occasion of the February 22, 2011 meeting, an argument can be made for the idea that the proposed changes are not only inconsistent with the protections offered the public by the Brown Act, but are being proposed in a way prohibited by the California Constitution. Sub - section 54954.3(b) of the Brown Act permits local government agencies to impose "reasonable" restrictions on public comment, but on/v for the oumose of enswinn that tha intention of sub - section (a) is achieved: namely, that all interested members of the public are given an equal opportunity to address their representatives on each issue. If 200 persons are line up to speak, it is reasonable to impose restrictions so that each has an equal opportunity, but the meeting will still conclude before the legislators fall asleep. If only 1 person is lined up, the same restrictions, arbitrarily applied, would serve no public purpose; indeed, restricting public speech would be alien to the public interest. The Brown Act protections were substantially strengthened by Article 1, Section 3 of the California Constitution, which was overwhelmingly adopted by California voters in 2004 as Proposition 59. Subsection (a) preserves the right of the people "to instruct their representatives," and subsection (b) requires that any rule restricting the public's access to public meetings or documents be adopted "with findings demonstrating the interest protected by the limitation and the need for protecting that interest." I believe the proposed changes to Policy A -10 limit the public's access to public officials, and I see nothing in the resolution defining a public interest (as opposed to the officials' private convenience) that is being protected or in need of protection. Beyond the substantive issues with the Policy A -10 proposal, it is a continuing example of the carelessness with which significant documents are presented to, and approved by the Council. Those looking carefully at the text present before the redlining will notice that the title of Section B.2 on page 1 makes reference to the Consent Calendar, but the body of the policy makes no mention of it. This is because the "Clean 02.23.11" version of A -10 (guessing that is what staff calls the pre - redlining version, judging by the tiny annotation at the bottom of the final page) does not reflect what Council thought it was adopting on February 22, 2011. The first sentence of Section B.2 was supposed to end with the phrase "and /or to request that an item be removed from the Consent Calendar" — a right of the public which is to be taken away even though it would not be apparent from "Clean 02.23.11" that we ever had it. It was also pointed out to staff in 2011 that the inclusion of the right in this section was inappropriate because the opportunity for the public to pull Consent Calendar items would come after the Consent Calendar had been approved — a concern ignored by both staff and Council, probably because we rarely follow our own rules, anyway. This tradition continues with the current proposal limiting public comment on Consent Calendar items to 3 mintues, written in such a way that no one can understand, for sure, what it means. Only after reading the City Manager's Insider's Guide to the Council Meeting was I reasonably confident it is intended to mean that all Consent Calendar items not pulled by Council members January 8, 2013 Regular Meeting agenda comments by Jim Mosher Page 4 of 7 to be regarded as a single "Consent Calendar items" topic on which a single 3- minute comment would be allowed. A further indication of the lack of care with which City documents are prepared is the curious spelling of "Januaray' in the final line of this latest proposed revision. Item 6. Peninsula Point Alley Replacement — Completion and Acceptance of Contract It is comforting to know the project was completed "on time" if one includes all approved extensions of that time. This begs the question of what the originally anticipated completion date was, and whether the contractor met that, or not. Item 7. Miscellaneous Paving Repair— Completion and Acceptance of Contract Same comment as Item 6. Item 9. Approval of Amendment No. 1 to On -Call Professional Services Agreement with GMU Geotechnical, Inc. and Harrington Geotechnical Engineering, Inc. It appears that after a single year of two year contract, the anticipated expenditures for the full two years have already been reach, and a similar allotment has to be provided to cover the second year. That makes it sound like a gross mis- estimate was made regarding the required scope of services, which may have affected the bidding. Item 10. Approval of Professional Services Agreement for Design of a Storage Building at Big Canyon Reservoir The Abstract and Discussion refer only to the design of a storage building, but the contract appears to be for a storage building and a small office building. I also find it curious that the contractor is being tasked with, and paid for, preparing CEQA documentation, when staff has already found the project will be exempt from CEQA. Item 11. Planning Commission Agenda On the first line of page 8 of the 16 page version distributed on Friday, "Principle Planner Jim Campbelf' should read "Principal Planner Jim Campbell." January 8, 2013 Regular Meeting agenda comments by Jim Mosher Page 5 of 7 Later on the same page, after the list of straw votes taken on Uptown Newport, I see no mention of something that seems relevant to the Council's consideration of Item 14 on its own agenda: namely, the formal 6:1 vote on December 20, which, according to the Commission's draft Minutes approved on January 3, was "to direct staff to provide notice to Council that the Planning Commission has considered this project over the course of three meetings and straw votes in favor of some components of the project were made and that formal, final approval will not occur until the Design Guidelines are considered" and which included an amendment by Commissioner Tucker "that the Commission sees no reason that Council should not send a notice of intent to overrule the Airport Land Use Commission at this time." Item 12. Appointments by the Mayor There are a number of problems with the version of this item distributed on Friday: According to its enabling resolution, the Neighborhood Revitalization Committee (Item I.G) ceased to exist on December 31, 2012. It is unclear what significance attaches to reappointing the members after the committee has expired. Similarly, based on earlier inquiries to the Orange County Transportation Authority, their staff believes the Santa Ana River Crossing (SARX) Study Policy Advisory Committee was dissolved some years ago. If Item 1111 refers to the defunct OCTA committee, then the significance of making appointments to it is unclear. The underlined names in Sections I and IV refer to six members of the public being appointed to various committees, even though the City's "Local Appointments List" does not indicate any of their terms are expiring, nor do I recall the public being informed of an opportunity to apply for, or nominate persons to replace them. If the underlined names indeed indicate reappointments, as the staff report suggests, then such unnoticed crony appointments are prohibited by California Government Code Section 54790 et seq. (sometimes known as "the Maddy Act "). The reappointment of Jack Butefish to the Newport Coast Advisory Committee (Item IV.D) is particularly puzzling since the Council adjourned in his memory on February 28, 2012. Item 14. Uptown Newport Project: Notice of Intent to Overrule the Airport Land Use Commission's Determination of Inconsistency As indicated in my comment to Item 11, above, the statement at the top of page 3 of the staff report that "The Planning Commission did not express any concerns with the City Council proceeding with this agenda item" is a rather cryptic condensation of the Commission's roughly 20 minute discussion of this matter, which was informed neither by a clear presentation by staff regarding exactly how the ALUC had arrived at their decision, nor any public comment (since the discussion was not noticed on the agenda and it was brought up and took place entirely after the public hearing had closed). January 8, 2013 Regular Meeting agenda comments by Jim Mosher Page 6 of 7 I also find that my written comments to the Council's aborted December 11, 2012 hearing are somewhat distorted in the current staff report, where at the bottom of page 5 it implies I made an assertion based on a court case that the City would assume considerable liability. I did not refer to any court case, and the complete quote, as found on handwritten page 86 of the staff report was: "As a non - lawyer I would have to assume that by overriding the well- informed but contrary findings of the ALUC, the City would assume considerable liability in the event of an accident." As a non - lawyer, I continue to believe that, and find nothing in the staff report to refute my impression that people and entities accept consequences for their actions. To me, the prudent course of action is not to steamroll over the ALUC with an override, but rather to try to understand what their concerns are, and to insist on a project that addresses them. To do less seems irresponsible to me. Another matter of concern with regard to the Uptown Newport proposal, which was of concern to me, and was of concern to several of the Planning Commissioners, is that unless something is done to change it, residents of the project, and future projects north of Bristol, will not be in the Newport -Mesa School District, even though Newport Beach schools are much closer than the ones they will be forced to attend in Santa Ana. Since no one lives in the area at present, this would seem the ideal time to correct that situation, and I feel it would be appropriate for the City Council to take a proactive role in promoting this in the interest of community cohesiveness. Should the Council adopt the resolution of intent, I would note that the sentence above the box on the first page of Exhibit "A ", should say: "The purposes of Public Utilities Code Section 21670 are included is in subsection (a)(2)." Item 15. Corona del Mar Lane Merge Relocation Trial agree with staff's preferred recommendation: to leave the intersection as it is. First, there are other transportation projects that seem more worthy of attention. For example, it is shameful we seem to have no plan for safe bicycle access to the new City Hall site — something that would, at least in a small way, encourage people to get out of cars and relieve congestion, rather than adding to it. Second, although the impact of the lane closure was less visible than many, including myself, expected, people rapidly learn to adapt to a bad situation and take alternate routes (as evidenced by the reduced traffic counts) leading to increased congestion elsewhere, and leaving the City poorly positioned to cope when the overall trip counts rise to the anticipated future levels and beyond. OCTA's concerns about the removal of a traffic lane on a major arterial seem valid, and it doesn't really seem worth the trouble to fight them and risk losing the City's Measure M money. January 8, 2013 Regular Meeting agenda comments by Jim Mosher Page 7 of 7 Item 16. Resolution Amending the Indenture for the City's Hoag Memorial Hospital Presbyterian Revenue Bonds I find the staff report and recommendation confusing since it refers to four series of bonds (2009B, C, D and E) even though the resolution says (on its first two unnumbered pages) that Series B & C have been redeemed and only D & E remain outstanding. In addition: • I find puzzling the statement in Section 1 (bottom of second unnumbered page) that appears the official executing the agreement the authority to approve changes to it. That seems to defeat the purpose of the Council agreeing to a definite document. • On the third unnumbered page, I see no evidence of the City Attorney having reviewed this complex document for legal correctness. • Similar to the original concern, the statement on page 22 of the Amended and Restated Indenture that "Bonds" refers only to Series 2009D and 2009E is contradicted by the definition of "Bonds" on page 26 where it says the term, as used in this document, encompasses all four series. • 1 have not attempted to read the entire indenture, but appears an attempt has been made to reduce a document intended to address multiple bond series to a new one addressing only two, but without deleting most of the previous references to the now defunct series. This is probably reflected by the page numbers listed in the Table of Contents on the final pages all being off by 2. Finally, I find doubtful the claims that the City's acting as a conduit for Hoag Hospital's bond offering has no fiscal impact on the City. I am not sure what all those impacts might be, but it seems clear staff has spent at least some time preparing and reviewing the report and documents being submitted for Council approval. If it has not, I don't think the Council should be approving them. Item 17. Reuse of Existing City Hall Property (PA2012 -176) Having recently glanced at staff's proposed Mitigated Negative Declaration regarding the General Plan amendment required to legalize the City Hall Reuse proposal, I believe there may be some confusion about what the Council has in mind for this site. The present item seems to be exploring either a hotel or a residential development, yet the proposed General Plan amendment seems written in such a way as to entitle development on the City -owned property of both (simultaneously), thereby sucking up all the remaining residential and commercial entitlement that can be allocated without Greenlight voter approval in the B5 statistical area (encompassing all of Lido Village, the Lido Peninsula and the McFadden Square area) — or more precisely, due to the odd way Greenlight works, leaving future development just 20% of what is allocated to the City site, whether there is any plan to built it on the City site, or not.