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HomeMy WebLinkAbout00 - Written Comments"Received After Agenda Printed" Public Comments May 27, 2014 May 27, 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 SS2. Lower Castaways Draft Concept Plan A link to prior presentations would have seemed helpful so the Council and public could be better prepared to ask questions. Item SS3. FY 14 -15 Proposed Budget and CIP Although a number of specific budget topics are listed in the announcement, the absence of any materials available for review in advance of the Study Session makes it difficult for the Council and public to be prepared to ask intelligent questions about those topics (which curiously do not include the CIP). 2. It might be noted that a "budget checklist," which may or may not be the one referred to in this agenda announcement, is attached to Consent Calendar Item 13 (Set Public Hearing Date to Adopt Fiscal Year 2014 -15 Budget — see below). 3. Regarding the "Council discretionary accounts," which are budgeted amounts (currently $6,000 each) that individual members can, per City Council Policy A -12, spend without the concurrence of a majority of the Council, I do not believe these are consistent with our City Charter. The people of Newport Beach gave the powers of government to a City Council acting collectively, but gave no powers to the members acting individually. Item N.B. Conference with Real Property Negotiators This item involves setting a price and terms of payment for the lease of City -owned parking lot spaces to ExplorOcean. To avoid wasted effort, it would have seemed prudent before beginning such a negotiation to have held a public discussion to establish the circumstances under which it would be in the public's interest to make such a lease. If it were not in the public interest, the price and terms would be irrelevant. Item 1. Minutes for the May 13, 2014 Study Session and Regular Meeting The page numbers below refer to Volume 61 and to the location of the text in the printed version of the draft minutes distributed by the City Clerk on Friday May 23, which starting on page 557 differs from the location in the version available on -line through NovusAgenda since the latter omits the voting results on Item 4. The passages in italics are from the draft, with suggested changes shown in • stF kee ^ • underline format. Page 550, paragraph 1, sentence 2: "He introduced the next topic and reported that this *,~„e -tim that the City Attorney has provided recusal recommendations to Council Members." May 27, 2014, Council agenda item comments - Jim Mosher Page 2 of 8 2. Page 553, paragraph 3 from end, last sentence: "... and expressed appreciation to all of the City's Yasht Ghfbr yacht clubs ..." 3. Page 556, motion to approve Consent Calendar: "...and noting Mayor Hill's recusal to Item 6..." [Shouldn't this be "on " ?] 4. Page 557, Item 5, paragraph 3: "Jim Walker, President of the NBRA, commented on the transitions undergone by the Association, including the increased financial burden due to sentinueus paying administrative costs versus using the money toward marketing."[? The increased financial burden would seem to be the BID paying the costs rather than that they are "continuous"] 5. Page 558, paragraph 10: "Mr. Walker stated that the Festival will take place on the Civic Center green Green and that they are being supportive in terms of marketing." 6. Page 558, final sentence: "The original motion carried by the following roll call vote:" [the extra word would help to distinguish this from the substitute motion which was withdrawn in the preceding paragraph] Page 559, paragraph 3 from end: "Jim Mosher took issue with the Building Ad Hoc Committee and believed that the Committee has been making decisions since 2003 and is, therefore, net a standing committee Committee does net seem to b and not an ad hoc committee formed for a specific purpose or purely advisory." 8. Page 560, paragraph 2 from end: "Mike Sheperd Sheppard presented a book to Council Members entitled, "Corona del Mar— My Kind of Town."' [spelling per his website] 9. Page 561, last paragraph: "Community Development Director Brandt reported on a recent meeting of the Airport Land Use Commission's (ALU ALUC's review of the City's General Plan Land Use Element Amendment, ..." 10. Page 563, Item 21, paragraph 2, last sentence: "He deferred to Arts Orange County Consultant Rick Stein and Green Public Arts GGnstdtansy Consultancy's Rebecca Ansert for a formal presentation and offered to respond to questions from Council." Item 3. Non - Exclusive Solid Waste Collection Franchise with Tierra Verde Industries, a California Corporation Although competition is generally good, Council member Gardner has made the point that with nearly three dozen solid waste haulers equally authorized to operate in Newport Beach, neighboring businesses are increasingly likely to select different haulers, leading to redundant trips resulting in more noise, pollution and wear and tear on City infrastructure than would seem necessary. In view of this, the Council may wish to reevaluate the City's solid waste franchise structure. 2. Regardless of how many haulers we have, I do not believe the City's recycling obligations are accurately described in the staff report or contract. a. My understanding is that state legislators recognized some years ago that 50% diversion would not relieve pressure on landfills if the volume of trash collected May 27, 2014, Council agenda item comments - Jim Mosher Page 3 of 8 was allowed to increase without limit. As a result, SB 1016 in 2007 modified the earlier "AB 939" mandate by capping the amount cities could send to landfills at a definite number of pounds per person per day — the latter number representing roughly 50% of the pounds collected per capita in a specified base period, but fixed for all future time. More recently 2011's AB 341, setting a statewide goal of 75% by 2020" may cut that pounds per person per day allowance in half. b. The proliferation of haulers might encourage greater volumes of waste production, which is counter to the goal of reducing landfilled tonnage. c. Without limits on how many pounds of solid waste can be collected, no fixed "diversion rate" — including the 55% specified in Section 7.0 of the proposed contract -- will guarantee the City is able to stay below the state - mandated limit on pounds per person per day it is allowed to send to landfills. d. The contract should at least indicate that "55V is the rate currently required, but it may change during the life of the franchise. Item 4. Calling the November 4, 2014 General Municipal Election for City Council Seats 1. Should the Council hold open the possibility that Council member Curry may receive a majority of the votes cast in the June 3 primary, causing him to be elected outright to the California Assembly, which would create an opening in District 7 in addition to those listed? It would seem to me to be very much in the City's interest to have the vacancy filled by election rather than by appointment. 2. The resolution implies the Council seats in Newport Beach are given to the candidate with the highest number of votes, that is, a majority of the votes cast is not. Is this correct? If so, how was this system determined? It does not seem to be explicit in the City Charter. Item 5. Bristol Street Landscape Improvements - Completion and Acceptance of Contract 1. As well intentioned as they may be, the results of this $500,000 landscaping effort seem rather underwhelming to me 2. In the interest of transparency it would have seemed helpful to identify who brought to staff's attention the need for $34,838.10 of pilasters and fencing beyond that which had been approved by the City Council. May 27, 2014, Council agenda item comments - Jim Mosher Page 4 of 8 Item 6. License Agreement to operate the Corona del Mar Certified Farmers' Market 1. The report does not clearly explain how staff arrived at the fair market value of the property being rented, or the rent proposed, or what the condition of and revenue from the lots would be in the absence of the farmers' market. Are the lots metered? What would the occupancy be? 2. It is also unclear what the purpose of the discussions with the City of San Clemente was (paragraph 2 under "Discussion: Backgrouncf'), or whether any thought has been given to ways in which the operation might be improved during the new contract period. 3. Assuming the continuation of a farmer's market at this location is desired, I am unable to find convincing the reasons offered for not putting the opportunity out to open bid. For example, it is stated that initiating such a process would result in "excessive vacancy," but that would seem to be solely the result of staff failing to consider putting the matter out for bid sufficiently in advance of the expiration of the current agreement — and even now could be avoided with a shorter term arrangement in effect while other operators are considered. 4. Since staff and the current contractor have allowed the present agreement to expire, it appears the City Council is being asked to approve a retroactive contract. Does that create any problems for the operation before the renewal is signed? 5. Why is it in the public's interest to cap the annual CPI -based rent increase at 2.5 %? 6. Is there a Coastal Development Permit for use of public lots for what does not seem to be a particularly coastal- dependent use? Item 10. Confirmation of Voting Delegate and Alternate for the 2014 League of California Cities (LCC) Annual Conference 1. It is good to see staff acknowledging the Charter Section 402 requirement for Council authorization of Council member travel expenses, as well as City Council Policy F -8, although the latter, by its own language, appears to apply only to overnight stays and not to commuter travel. 2. In view of that, it might help to clarify if the delegates are authorized to stay overnight in Los Angeles, and also to acknowledge the AB 1234 reporting requirements. Item 11. Dinghy Rack Rental Rate 1. This would seem to be a useful service, although it might have been useful to indicate how and where the dinghies are currently stored. 2. Did the City need a Coastal Development Permit to convert what look like three public parking spaces to this structure? May 27, 2014, Council agenda item comments - Jim Mosher Page 5 of 8 Item 13. Set Public Hearing Date to Adopt Fiscal Year 2014 -15 Budget 1. Regarding the Budget Checklist provided as Attachment A: a. I do not recall the items listed being changes proposed by Council members at the May 13, 2014, Study Session. b. The main item that was proposed on May 13 was adding $290,000 (to Acct. CAP15- 0049 ?) for MacArthur Blvd Slope Landscaping Enhancement, which does not seem to be in the checklist. Regarding that specific project, I would hope Council would ask if Big Canyon Country Club has an obligation to landscape its property and if so, if the problem could be solved through code enforcement without an expenditure of public money. c. In the column labeled "Department/Account Number /Description," I am able to determine the department and description for all items, but account numbers seem to be shown only in the final section. 2. Of the items that were included in the budget as prepared by staff (and therefore don't need to be on a budget checklist), I found the proposal to spend $400,000 erecting archways over Marine Avenue and Balboa Boulevard particularly frivolous and of little value to residents. Item 14. West Newport Community Center Update As indicated in my public comments at the May 13 City Council meeting, staff's decision to seek public input through the third -party social media vendor "Mindmixer" is probably commendable, but staff might benefit from a clearer policy on use of social media, and the weight to be given tc the results obtained. The current social media policy ( "D -6 ") has never been reviewed or adopted. Item 15. Items for Future Study I continue to be baffled by the new Council policy (a May 14, 2013, revision to City Council Policy A -6) requiring items Council members want put on the agenda to be placed on a later agenda for a vote as to whether a majority of the Council wants the originally requested item placed on a still later agenda. In this case, according to the minutes, at the April 22 meeting, Council member Gardner asked that the Council be given an opportunity, at the Council's next meeting, to provide the vote necessary to allow EQAC to hold a meeting. 2. California Government Code Subsection 54954.2.(a)(2) [a portion of the Brown Act] explicitly allows the Council to "take action to direct staff to place a matter of business on a future agenda' without the fact that it would be acting to place a matter on the agenda itself appearing on the agenda. a. Under that rule, a vote to allow EQAC to meet could have been put on the May 13 agenda. May 27, 2014, Council agenda item comments - Jim Mosher Page 6 of 8 b. Instead, more than a month after the original request, per Policy A -6 the Council has been unable to direct staff to put the request on the agenda, and indeed what has come back is something different from what was requested (namely, a request for a discussion by Council of a new role for EQAC, whereas the original request was for EQAC to meet, perhaps to discuss that among themselves). 3. The revision to Policy A -6 seems to be causing a paralysis of governance. To conserve staff time, a rule requiring that a majority of the Council support putting an item on the agenda might be reasonable, but there is nothing in the Brown Act preventing the Council from making that decision on the night when the suggestion is first made, and there is little reason to think putting the decision off for two weeks or a month will result in wiser direction to staff. 4. As to the substance of the matter that may be placed on a future agenda (the role and duties of EQAC as spelled out in Attachment A): a. The role and duties established by Resolution No. 2012 -116 seem poorly thought out. b. My observation has been that the members of committees that meet only rarely and only "on- call" tend to lose interest in their duties. c. My observation has also been that in recent years EQAC has been convened to review and comment on Draft Environmental Impact Reports (DEIRs) rather than on the Notices of Preparation (NOPs) called out in Resolution 2012 -116. d. It might also be noted there is an inconsistency between Resolution 2012 -116 and City Council Policy K -3 ( "Implementation Procedures for the California Environmental Quality Act," also adopted by resolution) in which review of NOPs by EQAC is mandatory and the Community Development Director is given authority to provide Notices of Completion and DEIRs to EQAC, presumably for their review. Item 16. Renewal of the Newport Beach Restaurant Association Business Improvement District for Fiscal Year 2014 -15 The staff report makes much of the Council's California Streets and Highways Code obligation to determine if there is a protest by those who would be expected to pay 50% (or more) of the amount to be levied. a. Chances are no written or oral protests will be received, however I do not think it is safe to take the silence as approval. b. It should be evident to the Council that quite a different result would be obtained if the food sellers were affirmatively asked if they wanted to be taxed. I find it highly unlikely that 50% (or more) would come forward asking to have a levy imposed on their businesses. May 27, 2014, Council agenda item comments - Jim Mosher Page 7 of 8 c. The "Anticipated Member Assessment Delinquencies' rate of 25% (page 7 of Attachment A) suggests a substantial number of involuntary "members" are already indicating they would rather not be involved, and presumably see the BID as an unwanted burden on doing business in Newport Beach. 2. 1 find intriguing the statement under Delinquent Assessments on page 4 of the staff report that "Staff is reluctant to pursue this option [withholding the business license for non - payment of the BID assessment], as business licenses are not regulatory in nature." Does this mean staff would have similar problems with collecting the Newport Beach business license fee if a business owner refused to pay (that is, the absence of the license /fee payment could not be used to stop the business)? 3. "Funding Requirements" on page 2 of the staff report suggests that approval of the proposed budget will commit the City to paying $20,000 to support the BID. However, a closer reading of the report suggests the number is $60- 70,000 or more, since the City will be assuming $40,000 of staff support costs, and offering to pay $10,000 to Newport Beach & Company on behalf of the BID, while Newport Beach & Company (or Visit Newport Beach ?), largely beyond City control, may be directing unknown amounts of Transient Occupancy Tax towards BID marketing. 4. Supposedly the City Council set a new direction of the BIDS in 2013, with it being stated at the March 26, 2013, Study Session that the organizations choosing to continue as 1989 BIDS (in contrast to the 1994 BIDs which require a majority request to create an maintain), would be expected to become self- sufficient, with the matching funds ceasing. Only $40,000 per year would be offered for the first five years to ease the transition by defraying the costs then being borne by the City for administrative and accounting support services (and even then, with the City paying the accounting costs in the first year). The present staff report is a disappointing return to the earlier "business as usual," in which City staff will apparently again be performing all but $2,000 of the administrative and accounting functions (off the BID budget), and taxpayers will throw in a $20,000 gift as well plus $6,000 in "Grant Funding." 5. If $40,000 per year is indeed an accurate estimate of the cost of the administrative and accounting services provided by City staff, then this is also, at least in my view, a cautionary tale about the virtues of out - sourcing: the BID was apparently unable to find a private vendor who could provide even the administrative part for the $40,000 it cost the City to provide the same service. 6. In "FY 15 Advisory Board Appointments" (page 5 of the Staff Report) my view continues to be that the system of making appointments for one -year terms is inconsistent with both the Streets and Highways Code and the City Charter. a. The only guidance provided by the Streets and Highways Code is that the Council is obligated to appoint an advisory board. b. Article VII of the City Charter provides the Council with explicit directions when, in its judgment, the creation and appointment of an advisory board is required, as is the case here. May 27, 2014, Council agenda item comments - Jim Mosher Page 8 of 8 c. Per City Charter Section 702, the appointments should be for staggered four year terms. Item 17. Resolution No. 2014 -46: Renewal of the Corona del Mar Business Improvement District for Fiscal Year 2014 -2015 My comments on this item are largely the same as on the preceding one. Some additional comments specific to this one: 1. The staff report does not make clear what the anticipated delinquency rate on assessments is. 2. It seems strange that in the originally proposed budget, the CdM BID anticipated a cost of $61,000 for "Administrative and Accounting Services" (Attachment A, page 5) compared to $42,000 for "Administration & Accounting" in the NBRA BID budget (Item 16, Attachment A, page 7), even though the latter has a larger assessment roll to administer. 3. Just as the NBRA BID has members who do not appear to receive any obvious benefit in return for their assessment, there are persons assessed by the CdM BID who receive little benefit I can picture. For example, Board candidate Bernie Svalstad apparently owns an investment advisement company which shares a suite with Board alternate Scott Palmer, who owns an accounting business. Yet the street improvements the CdM BID funds would seem to me to mostly benefit building owners and retail tenants. And it is difficult for me to see how the marketing to visitors that Newport Beach & Company provides would do much to increase traffic to a local investment advisor or an accountant. Both these BID renewals (Items 16 &17) beg the question of what public benefit is being derived from the $40,000 per year (or more ?) being given by City taxpayers to the organizations that claim to have replaced the former BIDS in Balboa and Balboa Island, why they should be singled out for that treatment, and whether they will return with an accounting of how that money was spent and what contributions, if any, they themselves made towards their efforts. One might hope the Council would insist on that before committing to giving even more of their constituents' money to them.