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HomeMy WebLinkAbout0 - Public Comments"RECEIVED AFTER AG€ OA PR1'N! €'W1:" P? .. �c CatYtmf.Nm 1.1+14 January 14, 2014, City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 1. Minutes for the December 10, 2013, Regular Meeting The passages in italics are from the draft minutes with suggested changes shown in stwkee -, underline format. The page numbers refer to Volume 61. Page 392, first sentence under Item 8: "Council Member Petros noted that staff has evaluated the proposals and actedpepef properly in awarding the contract to Bagahi Engineering." Page 392, under Item XII: "Jim Mosher corrected misstatements he has made over the year r^'.� in, specifically in his suggestion that there should be a Council Member on the Board of the Tourism Business Improvement District and his reference to taxes when he should have said "fees. "" Page 393, last sentence of paragraph 4 under Item XI 11: "He noted that James Pines Pinheiro of Caltrans was also in attendance..." [I was not at the BMPOC meeting, but this is the nearest matching name in the Caltrans address book.] Page 394, last sentence under Item XVI.A: "Mayor Hill took his proper plaeed Ip ace at the Council dais." Note: under "Item XVII. Adjournment," unless there is a firm commitment to permanently retain (and make readily available) the video of the meeting, it might be useful before stating "Adjourned at 6:35 p.m.," to briefly summarize the remarks made about the persons in whose honor the meeting was adjourned. Without that, future generations may have difficulty identifying the names, or their significance to Newport Beach. Item 4. Updating the List of Designated Employees for 2014 1. There seems to be a typo in the draft resolution as shown on page 4 of the staff report: "2. Exhibit f which sets forth designated employees and disclosure categories is hereby adopted and incorporated as part of the City's Conflict of Interest Code for the City of Newport Beach." [Alternatively, instead of adding "which," the "is hereby adopted and incorporated..." clause could be deleted, as it seems to be redundant with action point 6.] 2. 1 don't know how reliable the list of employees provided in Exhibit 1 is. For example, the FYI 3-14 Performance Plan adopted by the City Council indicates on page 17 that a number of positions have been eliminated, yet employees with the deleted titles are included in this list. Examples include Deputy City Attorneys, City Surveyors, and probably others. 3. Exhibit 1 concludes with a section describing the reporting requirements for consultants, followed by an asterisk. The explanation of the asterisk seems to appear, unexpectedly, at January 14, 2014, Council agenda item comments - Jim Mosher Page 2 of 8 the end of Exhibit 2, but since the text provided there is exactly the same as the original text, it is difficult to understand why it is repeated, or how one instance adds to the other. 4. Regarding that text, my impression is the way it is interpreted varies greatly between Department Directors, with some finding most consultants need to file disclosures, while others find nearly all to be exempt. For example, I believe the Municipal Operations and Public Works Director's have exempted nearly all consultants working for them, yet I would think the public has right to know the conflicts of someone like, for instance, the outside person(s) requesting and evaluating proposals for trash outsourcing. Item 5. Corona del Mar Pocket Park However commendable it may be for the owners of 3140 East Coast Highway to offer to cede a portion of their property to the City, I have to ask if that act will render the existing development at 3140 East Coast Highway non - conforming in any way, and place a burden on future property owners? Although I do not necessarily share that sentiment, the Council should also be aware that when this item was before the Parks, Beaches and Recreation Commission, at least one Commissioner suggested this could be seen as a case of the City taking on the financial burden of improving and maintaining the landscaping for a private business owner. He thought it would be even more commendable if the property owner simply made the improvements on their own and allowed the public to use the seating. Item 8. Request to Retain Existing Private Improvements within the Public Right -Of -Way at 3400 Ocean Boulevard The staff reports on this item have never been entirely clear as to whether the deviations from code at this address resulted from the City inadvertently approving improper plans, or from the builder not following properly approved ones. I would think we should be less tolerant of allowing the recent incorrect construction to remain if the builder knowingly deviated from properly approved plans. Although the impact of the deviations seems minor in this case, if the contractor did not follow the approved plans (and I don't know that he did), allowing deviations would seem to set a poor precedent. Item 9. Memorandum of Agreement for Construction of the Girl Scout Leadership Center within Marina Park The City Council already made a very significant gift to the Girl Scouts organization when it gave them the ground lease to a prime piece of harbor -front property for their exclusive use for $1 per year for 50 years. As the staff report recounts, the understanding was that the Girl Scouts would absorb all costs of construction. The staff report, starting at the bottom of page 1, refers to the "small amount of City staff time is expected to be required to coordinate and oversee parallel construction activities." Not knowinc January 14, 2014, Council agenda item comments - Jim Mosher Page 3 of 8 how such things work, I don't know how small or insignificant the cost of that City staff time might be. I also find it ironic that although we hear the private sector can always do things more cheaply and efficiently than the government, the Girl Scouts appear to be leaning towards the government as their contract coordinator of choice. The five day window they have to evaluate, and accept or reject, the bids received by the City would not seem sufficient to solicit and seriously consider alternative bids on their own, unless they have done so already. I have not read the Memorandum of Agreement in detail, but trust the Council members will do SO. Item 90. Approval of Amendment No. 9 of the Professional Services Agreement with Bagahi Engineering The minutes of the City Council's December 10, 2013, meeting (Item 1 on the present agenda) indicate this item was continued because of Council member Petros' concern with an escalation of fees charged in years two and three of the contract in excess of CPI. The staff report does not make clear where the offending provision was in the Agreement, or how the concern has been dealt with. I would also note that although the staff report says the fees charged are passed through to applicants, those fees will likely be paid by citizens of Newport Beach, and the fees in general seem rather high compared to what we might pay a government employee doing the same work. For example, a rate of $199 /hour if extended over a year of 40 hour weeks would come to something like $413,920 per year. I understand there is overhead, but I would be surprised if adding a City plan checker costs that much, especially if this work could be integrated with other kinds so the person is kept productively occupied full time. Item 92. Appointments by the Mayor 1. 1 strongly object to the appointments to the Building Ad Hoc Committee: a. To the best of my knowledge, this Council committee has rarely, since its inception in 2003 or 2008 (depending on how one counts), held a publicly noticed meeting. There is not even a slot for it in the Clerk's on -line archive of Agendas & Minutes. b. In addition, the Committee's advice and recommendations have rarely, if ever, come to the full Council for approval. c. It is apparent that this Committee has become both a standing committee and more than a purely advisory committee. For a committee with either of those characteristics to meet and take action without public notice is a flagrant violation of the Brown Act. d. Moreover, the current duties of the Committee, as summarized by the City Clerk, are confined to offering the Council advice on matters related to the design and construction of "the City Hall and Park Master Plan improvements and the OASIS Senior Center." Since the completion of all those projects has been announced, I would think the Committee has no further work and should be disbanded. January 14, 2014, Council agenda item comments - Jim Mosher Page 4 of 8 2. 1 also question the status of the Council's Task Force on Committees. According to the Clerk's records, this committee was created on September 25, 2012, with a limited assignment. It seems to have completed its assignment with recommendations made last year. If there is a continuing need for recommendations with regard to the City's committee structure, it would seem to me this has become a standing committee, and its meetings should be publicly noticed. Otherwise it should be disbanded. 3. The July 4th West Newport Safety Planning Committee, to which the Mayor is making appointments in item II.C, has similarly fallen into disuse. Last year, City staff, in doing its July 0 planning, did not convene this committee, but instead relied on a citizens group it empanelled informally, independent of Council instruction. 4. It might be worth noting that the Ad Hoc Committee to Negotiate the Re -use of the City Hall Site, which I suspect will never meet publicly, is not so noted on the Clerk's on -line committees page, although it is listed in that way on her roster of members. In my view, the Committee should, to comply with the Brown Act, meet publicly, since even if the Committee is ad hoc and less than a quorum of the full Council, negotiating a contract is not a purely advisory task. 5. Finally, I would remind the Council members accepting appointment to committees subject to the Brown Act and consisting of three or fewer members, that a conversation about committee business between any two of the members constitutes deliberation between a majority of the members of the committee, and is strictly prohibited by Government Code Subsection 54953(b)(1) unless it occurs at a publicly noticed meeting. Council members should not accept appointment to a committee dealing with subject matter they feel a need to discuss outside of public meetings. Item 94. Wireless Telecommunications Facilities Ordinance Although the City's existing Wireless Code, and its failure to protect me from an installation impacting my home (largely through failure to follow the letter and spirit of that law), is the central reason for my interest in the working of the City government, I have not had the time to study the current proposal in as much detail as I would like. As I have told the Planning Commission, the present proposal makes substantial improvements to the clarity and certainty of the noticing requirements, and appeal rights, by moving the Wireless Code into the Zoning Code. However, it completely erases the consideration of impact on private views and uses in the making decisions about the appropriateness of proposed sites, which is a core feature of the existing code, even though City staff has largely chosen to ignore those provisions. Given the flexibility of cell site location decisions, I think detrimental impacts on private views and uses should remain as acceptable criteria for denial. I also think the history of cell site approvals in Newport Beach has shown that notification to the public is needed much earlier than 10 days before the final hearing. Ideally, notice should be given very early in the process so that problems with the proposed site, which may not be apparent to the either the applicant or the planner, can be identified. January 14, 2014, Council agenda item comments - Jim Mosher Page 5 of 8 For the same reason, I object to the new possibility of approving sites with a "Zoning Clearance," a mechanism which involves absolutely no notice to the public. To achieve this, the Planning Division makes a determination that the proposed facility will be completely innocuous, but in the absence of public notice they have no way of knowing this for sure, and in the absence of notice, the right to appeal is meaningless. An example similar to one the Council ha: encountered, would be a case in which completely hidden antennas are alleged to interfere with especially sensitive equipment on a neighboring property. By the time the approval becomes known it would be too late to do anything. All applications should at least go through the public Zoning Administrator process. Beyond the above concerns, I commend City staff for the work it has put into producing the present proposal, but I believe it has been influenced much more by industry demands than by public desires or interests. This is because it is a dry, technical document, and it is extremely difficult to interest the public in its details until they are personally impacted by it. As it is, I think it would be fair to say it primarily represents staffs recommendations as tempered by pushback from the industry and the views of one interested Planning Commissioner, after a long period of dormancy. Other input has been minimal. To be honest, I have not carefully read most of the draft language, nor offered much in the way of suggestion as to how it could be improved. A few problems I notice skimming through the pages 1. Subsection 20.49.010.0 seems to contain a typo: "... regardless of whether authorized or by or subject to State or federal regulations" 2. The heading to the proposed Subsection 20.49.020.B ( "Permit and /or Agreement Required') does not seem quite right. As I read it, the requirement is for a "Permit' or for a "Permit and Agreement." It is never for a "Permit or Agreement." 3. The "Facility Classes' defined in Subsection 20.49.030.G do not seem to be mutually exclusive. That is, a given facility can fall in multiple classes. It's not immediately obvious if this was the intended result or not. At one time, I thought there was a plan to consolidate them into a smaller number of classes. 4. Subsection 20.49.030.J.: "Lattice Tower. Lattice Tower means a freestanding open framework structure used to support Antennas, typically with three or four support legs a€ and open metal crossbeams or crossbars." [ ?] 5. In Subsection 20.49.030.R.: it is not entirely clear why a utility pole made of steel is automatically regarded as a "tower." Is there something special about steel as opposed to aluminum or wood? 6. Subsection 20.49.040.A.: because the classes are not mutually exclusive, it is unclear, as an example, what preference would be given to a new freestanding structure (Class 4) in a public right of way (Class 3). Likewise, it would seem there might be freestanding structures (Class 4) that claim to be stealth (Class 1), such as a clock or bell tower. January 14, 2014, Council agenda item comments - Jim Mosher Page 6 of 8 7. Subsection 20.49.040.6.2: the origin of the focus on exactly 4 units is unclear. Should it be "4 or less "? 8. Subsection 20.49.040:6.4: collocation of cell antennas on traffic signal poles seems logical and relatively unobtrusive, and is allowed in some cities, such as, I believe, Anaheim. Could it be allowed here through a variance? 9. Subsection 20.49.050.A: it is unclear if any of the many statements about minimizing "visual impacts" are intended to allow consideration of visual impacts on /from private properties. 10. Subsection 20.49.050.D: "Setbacks shall be measured from the any part of the Facility closest to the applicable lot line or structure," 11. Subsection 20.49.050.E.5: "Providing Telecom Facilities of a size that, as determined by the City, is not visually obtrusive such that any effort to screen the Facility would not create greater visual impacts than the Facility itself." [ ?] 12. Subsection 20.49.050.F.4.a: "Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as practicable." 13. Subsection 20.49.050.F.4.c: "The installation of artificial rocks shall match in scale and color other w## rock outcroppings in the general vicinity of the proposed site." 14. Subsection 20.49.050.F.6.a(5): should "one -inch gaps" be "one -inch gaps or less "? 15. Section 20.49.060: the existing code includes a detailed list of materials to be submitted with the application, including visual simulations from adjacent properties. Under the new ordinance in appears someone in the Planning Division will establish the list, but does not seem clear who, or under what authority. The existence of some of these materials seems to be assumed elsewhere, for example in Subsection 20.49.060.F. 16. Subsection 20.49.060.F may be inconsistent with the federal rule that applications cannot be denied based on emissions, if the emissions comply with FCC standards. 17. 1 have not had time to carefully read "handwritten" pages 26 -30, including the important findings required for approval, nor to thoughtfully consider the way the sections interact with one another in time to meet the deadline for submission of written comments for the present City Council meeting. I have also not had time to investigate how these proposed provisions compare to the handling of telecom issues in other cities. 18. 1 do notice that "Section 11" of the ordinance (on "handwritten" page 30 of the staff report), about temporary facilities, may be a perfectly reasonable and needed amendment to the Zoning Code, but I'm not sure it's a valid one, as I don't recall it ever having been discussed, or "approved," by the Planning Commission. Unless I missed it, it does not seem to be a part of PC Resolution 1927 (attached starting on handwritten page 35). January 14, 2014, Council agenda item comments - Jim Mosher Page 7 of 8 Item 15. Renewal of the Newport Beach Tourism Business Improvement District (NBTBID) I believe it was at the City Council's November 26, 2013, Study Session that the question was raised of why the NBTBID, which has existed for about 4'/ years, was being renewed for only 10 years? Why not 20, 30 or even more? The reason is to be found in Subsection 36660(c) of the California Streets and Highways Code, a copy of which is included as Appendix 1 to the draft NBTBID Management District Plan: 10 years is the maximum time the state law allows a BID of this sort to be renewed if it has not issued bonds. The Council could, however, select any shorter time. 2. As the Council may know, the NBTBID, under its original authorization, had a number of contractual obligations, including providing reports and budgets to the Council for review and approval. For the most part, it has not fulfilled those obligations, at least not until being reminded of them. I don't think the past lax behavior should be rewarded with an extended renewal. 3. An additional fundamental obligation (found in Streets and Highways Code Section 36614.5) of a 1994 BID is that the "Owners' association" meet publicly, strictly honoring the open meeting expectations of the Brown Act. The Owners Association identified in the existing Management District Plan, and in the Section VI.A of the proposed draft is "Visit Newport Beach, Inc." which is a 501(c)(6) non- profit registered with the California Secretary of State and California Attorney General and governed by a board of about 26 directors. That organization has been completely lax in fulfilling its open meeting obligations. To the best of my knowledge, no Brown Act compliant agenda has ever been posted to its website. In fact, at the July 10, 2012, City Council meeting, then VNB Chair Tom Johnson announced (at 55 min : 07 sec in the video) all future meetings of Visit Newport Beach would be strictly closed to the public. 4. To the best of my knowledge, the last time the so- called "TBID Board of Directors' (an entity not mentioned in the Management District Plan, but consisting of the seven member hotel General Managers) met, and the only time it has been noticed on the City website, was September 4, 2013. Due to the almost total absence of noticed meetings, it is very unclear how this organization is governed, and how decisions are made in compliance with the Brown Act. For example, at the Council's November 26, 2013, Study Session, it was announced that if the NBTBID were renewed and the levy raised to 3 %, the board had agreed to give the City $150,000 per year from that revenue to support the City's cultural arts activities. No such action item appears on the "TBID Board of Directors" September 4 agenda, and I have no recollection of it being discussed, let alone approved, there (although my recollections are fallible). 5. In addition to the above, I continue to have many concerns I have raised before, which include: a. I don't think the NBTBID revenues are being used to improve blighted or underperforming areas of the City, which is the stated purpose of the Property and Business Improvement District Law of 1994. January 14, 2014, Council agenda item comments - Jim Mosher Page 8 of 8 b. I don't think the government should be involved in an operation which consists essentially of using hotel revenues to find and book additional room visits. The hotels could easily charge, on their own, a small additional fee and perform that activity themselves. It was said on November 26 that because of the distant corporate owners, uninterested in the welfare of Newport Beach, only through a BID could this be achieved. However the same approval by the same distant corporate owners would be required in either case. c. I don't think it's proper to involve Visit Newport Beach in this operation. Visit Newport Beach has a separate contract with the City to promote the city in general using a portion of the Transient Occupancy Tax. Mingling the two efforts creates the probability of divided loyalties and makes it impossible to tell if funds intended for the general promotion of the City are in fact supporting the NBTBID- specific effort. d. Whether by Visit Newport Beach or some other entity, I don't think the booking of conference client sales is a proper function for a non - profit organization, particularly one in which the governing board includes directors who personally profit from the effort. I fear this activity may jeopardize the non - profit status of Visit Newport Beach in general.