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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed Written Comments - Consent Calendar 03 -10 -15 March 10, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(o)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 1. Minutes for the February 24, 2015 Study Session and Regular Meeting The page numbers below refer to Volume 62 of the City's minutes. The passages in italics are from the draft with amended numbering. Suggested changes are shown in strikeout underline format. Page 204, paragraph 2: "Mr. Thompson reported that OCSD is committed to the schedule and estimated the likelihood that 80% to 951A # Phase 1 should be completed by May was 80% to 85 %." [Mr. Thompson was asked to estimate the probability Phase 1 would be 100% complete in May. He was not suggesting OCSD would leave in May with the job partially complete.] Page 208, Item XIII, paragraph 2, last line: "... a proposal to schedule a public hearing on the City's Coastal Development Permit regarding alternatives, footprint, and layout of fire rings." Page 208, Item XIV, paragraph 3: "Wendy de Joe, Civilian Investigator for the Newport Beach Police Department, ..." [note: this misspelling makes one wonder why a roster of the City's police personnel is not readily available on -line, as it is for the employees of all other departments in the City staff directory? Members of the public who have had an encounter with an officer or investigator might well want to verify who they had been talking to. Since the names are displayed on the uniforms, it's not like they're secret.] Page 208, Item XIV, paragraph 4, sentence 3: "Civilian Investigator Js Joe reported that..." Page 210, Item 7 heading: "... Acceptance of Contract No. 5551 (CAP14 -0039) (38/100- 20151' [note: I have no idea what the "38" or "100- 2015" notations signify, but a "f' between them seems to part of the desired format based on the other instances.] Page 213, Item 13, paragraph 1: "Principal Planner Campbell provided a PowerPoint presentation to provide details of the North Newport Center Planned Community, purpose of the transfer, ..." Page 214, Item 14, paragraph 3, end of sentence 2: "... and, therefore, the City filed a legal complaint against Lido Partners the Gi4 ." Item 3. Massage Establishment Regulations This is the third meeting in a row at which a version of this ordinance has been proposed for introduction on the Consent Calendar. It continues to bother me that there has never been any formal public presentation to the Council about how the City's authority to regulate this business has changed, nor has there been an public discussion among the Council members about what they would like staff to try to achieve with that new authority. The proposed text is quite lengthy, March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 9 and the public has no idea if it has been carefully and thoughtfully reviewed, or by whom. And the fact that the last version has been posted in a PDF "image" format in which the words cannot be copied or searched makes it even less accessible. As one unfamiliar with either the industry or the City's authority over it, I submitted some technical suggestions when the text first appeared on February 10. 1 am gratified to see some of them were incorporated on February 24, but I would be even more gratified if the Council actually discussed the item. The absence of any formal discussion gives the impression members have made up their minds through non - public interactions with stakeholders and staff leaving those not privy to the discussions clueless as to the basis of the decision. Item 4. A Resolution Authorizing Suppression /Safety and Non - Suppression Personnel to be Compensated Portal -to -Portal for Services Rendered at Incidents, as Requested through the Mutual Aid System As the staff report indicates, this item is related to a new Reimbursement Agreement developed by the California Governor's Office of Emergency Services. What the report does not make clear is whether the requirement for this resolution implies there are agencies that do not compensate their employees "portal -to- portal," and if so, what alternative arrangements they have, and why? Also, considering the money to pay for these programs ultimately has to come from somewhere, is a guarantee of portal -to- portal compensation part of our Memoranda of Understanding with the relevant employee groups, or something we do simply because reimbursement for it is available? Finally, when Newport Beach is a recipient of mutual aid, does it have to pay into the system for the services received, implying it would have an interest in minimizing the costs of the program? Item 5. Approval of a Grant Agreement for the Community Paramedicine Data Project From Exhibit 1 to the proposed resolution, it appears the agreement was needed by February 15`h, a date that has already past. Was that not a firm date? 2. The report implies the grant will be used to secure the services of a Principal Investigator at UCI who will design a methodology to study the effectiveness of the local program. However, Exhibit 1 suggests the grant is essentially payment for a Local Program Manager to deliver specified data to an Independent Evaluator at UC San Francisco, who will apparently be studying the effectiveness of all the pilot programs throughout the state. a. Will the UCI Principal Investigator, in addition to apparently performing the Program Manager's data delivery duties, be conducting an independent study of the local program? March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 9 b. Are Huntington Beach and Fountain Valley participating in the UCI study? Did they seek separate grants, or did Newport Beach apply on behalf of all three? Item 6. Summary Vacation of Existing Storm Drain Easement at 121 Harbor Island Road I have no objection to the recommendation, although a redevelopment plan at this property was Item 1 on the Zoning Administrator's January 15, 2015, agenda, and the easement was not cited as an impediment. Indeed, Condition of Approval 6 was a promise not to build improvements over it. The staff report does not make clear what restrictions the easement may have imposed prior to that. 2. Since the owners obviously believe the removal of the easement will increase the value of their property, and it would presumably cost the City something to restore the easement, some might wonder if the City should be due some compensation for agreeing to this action? But in this particular case, if the City truly has no foreseeable future need for the easement an action without compensation seems appropriate. 3. 1 would suggest these minor changes to the proposed Resolution: a. First "Whereas" on agenda packet page 6 -3: "WHEREAS, the City Council of the City of Newport Beach pursuant to Chapter 4 of Part 3 of Division 9 of the California Streets and Highways code (Sections 8330 et seq.), is authorized to summarily vacate public easements; and..." [there are many Chapter 4's in the California Streets and Highways code — this is intended as a reference to the one indicated] "Now, therefore" clause on page 6 -4: "NOW, THEREFORE, be it resolved by the City Council of the City of Newport Beach that the portion of public storm drain easement legally described in Exhibit A, "and depicted on the map attached as Exhibit °B" based on the evidence submitted, that the Ub fi.,. stet., drain easement has been superseded by the construction of an existing storm drain on Harbor Island Road, and that there are no other public facilities located within the public storm drain easement." [The first sub - clause lacks a verb. The suggestion offered is one way to make an ungrammatical sentence grammatical. Another possibility might be to leave the stricken words intact and instead insert "is" before "based on. "] c. "Be it further" clause on page 6 -4: " "BE IT FURTHER RESOLVED that the City Clerk is hereby directed to have this resolution recorded by the Orange County Recorder and that from and after the date this resolution is recorded, the portion of the storm drain easement described in Exhibit "A" and depicted on Exhibit `B" shall be summarily vacated and no longer constitute a public storm drain easement." March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 9 Item 7. Summary Vacation of Existing Sewer Easement and Request to Install Private Improvements within the Public Right -of -Way at 3235 Ocean Boulevard 1. Regarding the proposed resolution vacating the "4 -Foot Wide Sewer Easement" along the easterly property line: a. Please see the Agenda Item 6 for suggested corrections to the City's boilerplate language. The same three corrections are needed. b. In addition, there seems to be a problem with the description of the easement being vacated. i. I have no idea where Tract No. 1219 is located, but the legal description in Exhibit "A" to the proposed Resolution (page 7 -6 of the agenda packet) has no relation I can discern to the property in question. It begins by mentioning a 4 -foot wide sewer easement, but then launches into a description of a 10 foot wide swath over 9 lots, and singles out the portion running over a "Lot 5." According to the City's GIS system, 3235 Ocean Boulevard is Lot 16 and half of Lot 15 in Tract No. 1026, and the September 22, 1952, dedication (Resolution 3998) which the present resolution is presumably vacating, describes the construction easement as the southeasterly 4 feet of Lot 16. 1 believe this is the description intended in the resolution. iii. It might be noted that at the same Council meeting in 1952, a second sewer construction easement over Corona del Mar property owned by the same couple was accepted by Resolution 3997. This also involves a "Lot 15," but what sounds like a 200 foot width. However the similarity of lot numbers appears coincidental since it is described as being in Tract No. 1257. 2. Regarding the requested changes to the public right of way between the ocean viewing sidewalk and the house, it might be noted that the larger construction project on this parcel was the subject of Item 13b at the California Coastal Commission's March 13, 2014, meeting, and the planned private improvements in the public right of way are mentioned in the staff report as being part of the project. 3. 1 think the City has allowed an awkward situation to develop here, and elsewhere along Ocean Boulevard, by allowing private improvements in the public parkway, which by all appearances now has the feel of private property. 4. From my point of view the proposal to convert a large part of the public area into a private concrete driveway provides no public benefit and is more disruptive to the public's enjoyment of its property than would be landscaping in the same area. I therefore think a less intrusive plan should be considered. March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 9 Item 8. Bike Lane Improvement Project Will the fact that two bids came in so far under the Engineer's Estimate be used to generate more accurate estimates bike line striping projects in the future? Item 9. Bristol Street Regional Traffic Signal Synchronization Project 1. Under "Recommendation," I am unable to find any explanation of the third recommended action: transferring funds from two bike improvement project funds (one of which seems to be the fund related to the previous agenda item) for a purpose that seems unrelated to bike improvements. a. Are these excess dollars not needed to complete the designated bike projects? b. Should they have been transferred to some other bike - related account? 2. Under "Funding Requirements," it is good to see the brief mention of the cost of the City staff time required to execute this project. Internal staff costs don't normally seem to be mentioned or considered as part of project costs. Item 10. Request to Retain Existing Private Improvements within the Public Rights -of -Way at 2042 Miramar Drive 1. It would seem that when City Planning and Building Inspection personnel encounter plans to remodel something with existing non - conforming structures like these they could do a better job of informing owners of where the private property lines are, and what the rules are for structures in the setback areas -- avoiding the need for after - the -fact approval of new things violating those rules. 2. Whether allowed or not, one has to wonder what the intended purpose of the high, opaque brick wall is? From the pictures, it appears to create visual blight along M Street without protecting much of anything from view; and with the elimination of the side entrance and gate it seems to have even less purpose. Item 11. Approval of Agreement with Delta Systems Engineering, Inc. for Water and Wastewater Automation Upgrades In this kind of contract award, where factors other than cost are considered, it would seem useful for the public to know how much difference there was between the cost requests submitted by the various proposers. It is good that a "cost ratio score" is provided here, but that seems an unnecessarily obscure way of providing the information. Item 12. Planning Commission Agenda for the March 5, 2015 Meeting As a former Council member pointed out, it is unclear why the Council receives reports on what the Planning Commission has done, but not on the activities of the City's other boards and commissions. March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 9 That said, under Item 6 (General Plan Annual Report), the Action Report fails to mention that Vice Chair Kramer requested staff to bring back a report on why Development Tracking System promised in Implementation Program 10.2 from 2006 is not yet operational. Item 13. Balboa Village Fagade Improvement Program Funding 1. 1 do not agree with the basic concept of using public funds for private improvements. 2. 1 especially do not agree with instituting such a program when eligibility, instead of beinc based on universal, objective criteria, is pre - limited to a specific class of applicants from a specific geographic area. What is special about commercial property owners in Balboa Village as opposed to other kinds of owners or owners in any other part of the city? 3. 1 do not agree with using half the remaining Neighborhood Enhancement Reserve B fund for this purpose. a. The fund was clearly created to benefit the entire Peninsula, yet the great bulk of it was already used to acquire the Palm Street parking lot. Spending still more on Balboa Village, to the exclusion of all other areas that have paid into the fund, is adding insult to injury. b. The proposal is arguably in violation of City Charter Section 1113, under which the fund was created, that without a vote of the electorate "Once created, such fund shall remain inviolate for the purpose for which it was created." i. In this case the purposes were stated as "Such reserve shall be used for purposes of enhancing and supplementing services to the neighborhood in the general vicinity of the parking meters contributing to the fund and not supplanting existing services. Enhancements may be in the form of capital improvements, special services or extraordinary maintenance and shall include all expenditures necessary or convenient to accomplish such purposes." ii. Since those sound like public services and the City does not normally maintain private buildings, few would take that as an authorization to give the funds to local landowners for private construction. 4. 1 also do not agree with using the Community Development Block Grant (CDBG) reserve to fund the remainder of this program (not part of the present approval, but indicated in the staff report as a future recommendation). The City's CDBG funds have already been heavily mortgaged to pay for streetscape improvements in Balboa Village, and the great bulk of each year's federal grants continue to be used to pay off that "loan." Spending still more on Balboa Village, to the exclusion of all other areas, is adding insult to injury. March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 7 of 9 Item 14. Schedule Extension of Orange County Transportation Authority (OCTA) Measure M2 Grant Funds for Newport Boulevard Widening Is a resolution memorializing the Council's approval required? Evidently not? Item 15. Beach Fire Ring Coastal Development Permit (CDP) Application — Discussion of Alternatives Regarding the threshold issue of whether this item should be on the present agenda, I think the staff report bends the City Council's Policy A -6 beyond recognition. Just as the City Charter prohibits the Council from interfering with the City Manager's decisions, I think the City Manager should not be interfering with the Council's decisions, and in this case their decision was to follow a clearly stated policy for placing items on future agendas. a. While it is true Policy A -6 allows the City Manager to "place an item on the agenda in the course of operating the City," it specifies in detail a separate procedure for Council- initiated requests to place items on the agenda. b. Under that procedure, the City Manager is told to place on a future agenda not the item, but a vote by the whole Council on whether staff should invest the resources to prepare a full agenda item. I find this a largely silly rule since the Brown Act would otherwise allow the Council to take the vote at the time of the initial request. Nonetheless it is the rule and I think the City Manager should honor it until the Council chooses to change the rule it has self- imposed upon itself and its members. c. Nothing I can find in Policy A -6 empowers the City Manager or Mayor to make exceptions to the policy. Indeed, the Mayor explicitly has to follow it if he wants to place an item on a future agenda. d. I also see no explanation of why the City Manager would find this a matter of such urgency that a clearly stated policy needs to be bent. Had Policy A -6 been followed, a vote on whether to place a discussion of fire ring options on a future agenda would have taken place at the present meeting, and had a majority of the Council agreed, the discussion would have taken place at the March 24 meeting. Would there have been anything wrong with that? 2. Having decided to place the matter on the agenda, it is very peculiar to find it on the Consent Calendar since the agenda indicates that "unless members of the City Council request specific items to be discussed' "there will be no separate discussion of these items prior to the time the City Council votes on the motion" for "affirmative action of the consent calendar." Yet the recommended action being affirmed is "Consider and discuss comments. How can a discussion take place if no discussion is planned? Why was this not agendized as a "Current Business" item? 3. Regarding the remainder of the staff report: March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 8 of 9 a. In saying that "At [the January 13, 2015] meeting, a majority of the Council directed staff to proceed with submitting a compliant CDP application to the Coastal Commission staff," the staff report continues to rewrite history. I believe a careful review of the video will reveal that not only was there no motion or vote on the "permanent plan" issue, but a majority of the Council expressed no view on the CDP recommendation. If the City Manager believes he received direction by supplementing the comments heard at the meeting with additional comments made outside the public meeting, that would, in my view, violate the Brown Act and thereby void any such purported "direction." b. In stating the spacing rules that apply "if the community has more than 15 rings in its jurisdiction' the report is sidestepping the issue pointedly brought up at the January 13 meeting that there is no such language in SCAQMD Rule 444. Instead, as reproduced in the staff report, it refers to "more than 15 devices per contiguous beach area within the city's boundaries," which is a quite different standard opening up new possibilities if the devices are placed on non - contiguous beach areas. c. In quoting Connect Newport results, the Council should review the question posed, as reproduced at the top of Attachment A. A "vote" could equally mean the person submitting the vote likes OR dislikes the option described. As a result I have no idea how anyone knows what the vote tallies signify. And I, for one, was unable to find where you add comments to your vote submission to explain whether you are liking or disliking the options checked, and why. d. I think the suggestion to provide ADA- accessible fire rings is laudable, not just because it would allow a closer spacing, but because it is the right thing to do. 4. Regarding the substance of the fire rings issue and a suitable response to it: a. At the time of the Council's initial vote, at its March 13, 2012, meeting, to remove all fire rings, it was implied that fire rings were a relatively new invention of the 1960's and that prior to that beach burning did not exist. This appears to have been the result of selective memories and incomplete research. It in fact appears, as has been allowed until quite recently in places like Carmel, people who felt a need to warm themselves, or cook, at the beach simply built a fire in the sand. Starting in 1949, through Ordinances 600, 624 and 720 Newport Beach restricted such burning to nine designated "campfire areas," and on March 25, 1957, further restricted the activity to burning only in City - provided containers within those areas (Ordinance 812). b. There may be a similar confusion about the banning of smoking on the public beaches, which now seems to be thought of as anti -smoke measure, but which I believe was actually enacted because of the expense of cleaning up the cigarette butts. c. I have a certain sympathy with the City in observing that the subsequent passage of the Coastal Act has made it impossible to change what was probably originally thought of as a somewhat costly but visitor - friendly solution to a health and safety March 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 9 of 9 problem: hot embers hidden in the sand. Had the City simply banned beach burning, as it did consumption of alcohol on the beaches, it could presumably not be forced to allow burning now. But having chosen to provide a safer alternative at taxpayer expense, the Coastal Act seems to prevent removing it. d. I also have a certain sympathy with South Coast AQMD's wish, starting in around 2012, to modify Rules 445 (Residential Wood Burning) and 444 (Open Burning) to include beach burning (at that time exempted as recreational fires) in the no -burn day restrictions that applied to residential fireplaces. That seemed a laudable goal. However, that modest change turned into a move to ban public beach fires entirely, and I do not feel it is proper to regulate public burning more stringently than the same activity on private property. e. The resulting "compromise" Rule 444 makes little rational sense since it would appear to assume a fire on public sand to somehow be more noxious than the same fire on non - public sand or a non -sand surface. f. Whatever the SCAQMD's position, I find it hypocritical for the City to seek to strongly regulate and restrict beach burning (as it did with the 2012 enactment removing all beach burning rings) when it does not propose similar restrictions on burning on private property, including in fireplaces. g. My main thoughts about the nine proposed "permanent" plans are: i. The proposals for clusters of campfires at a number of locations are not as different from the historic pattern of nine campfire areas as many might suppose. ii. I don't think the proposals are exploiting as much as they could the allowance for closely spaced rings when there are no more than 15 in a contiguous beach area. Item 18. Reimbursement Agreement to DJM Capital Partners, Inc. for Reconstruction of a City Water Main on Via Oporto It might have been helpful for the staff report to explain how this item is related to the previously approved request to allow encroachment into the public street for private improvements (Item 19 on the Council's November 25, 2014, agenda). That staff report assured the public "there are City -owned utilities on Via Oporto but they will not be impacted by the proposed private encroachments." It is surprising, now, to hear that the land owners have been given permission to, or are indeed required to, relocate a City water main as part of this or some other work, and will apparently be conducting a larger public works project for the City. Apparently the City -owned utilities are actually located in an easement on the private parcels owned by DJM? Does DJM own all the parcels? If not, will they be indemnifying the City for any damage they cause as the City's agent?