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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 14, 2015 Written Comments - Consent Calendar April 14, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(o),vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 1. Minutes for the March 10, 2015 Special Meeting /Joint Meeting of the City Council and Finance Committee and the March 10, 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 sirikeaut underline format. Page 238: "The agenda for the Special Meeting was posted on the City's website and on the City Hall Electronic Bulletin Board located in the entrance of the City Council Chambers at 100 Civic Center Drive on March 16, 2015, at 1:30 p.m." I find it curious that mention of posting in the "agendas binder" in the Council Chambers lobby has been omitted from recent minutes, because it's doubtful the City Hall Electronic Bulletin Board meets the Brown Act requirement [Gov. Code Section 54954.2(a)(1)1 for publicly - accessible physical posting of the Council agenda for the full 72 hours preceding the meeting. Not only is the Electronic Bulletin Board occasionally non - functional, but even when it is working, it spends the great bulk of its time displaying a black "Touch to Activate" screen - saver, with no indication to the public that the purpose of touching it is to view the agenda. And even for those who do activate it, the agenda is displayed automatically scrolling with other documents, with no capability to pause to study the individual pages. The physical binder, no longer mentioned in the minutes, seems much closer to what the Brown Act contemplates, but even it seems less compliant than the traditional locked glass case that assures paper postings cannot be removed or altered. Page 239, paragraph 6: "For the next Council agenda, Council Member Duffield requested that Council consider restructuring committees, specifically Harbor - related committees, to be placed under the Harbor Commission's oversight." Page 244, Item XVIII, paragraph 2: "Council Member Curry reported that, as a member of the Orange County Sanitation District (OCSD) Board, he had the opportunity to go out on the research vessel used to monitor the ocean eu#lew outfall." Page 246, last paragraph: "Council Member Muldoon asked whether the this is a tax or a fee, ..." Page 247, paragraph before substitute motion: "City Attorney Harp reported that Council Member Duffield can vote on this matter due to the public general _generally' exception as it impacts all businesses in the City." Page 248, amended motion: "Amended motion by Council Member Curry, seconded by Mayor Selich, to a) introduce Ordinance No. 2015 -6, An Ordinance of the City Council of the City of Newport Beach Amending Newport Beach Municipal Code Chapter 5.04 to Update Business License Provisions, as amended relative to changing a business license tax violation from April 14, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 a misdemeanor to non - criminal conduct and only allowing entrance into businesses during regular public hours, and pass to second reading on April 14, 2015; and b) adopt Resolution No. 2015 -23, A Resolution of the City Council of the City of Newport Beach to Reduce the Business License Tax Charged to Outof- Town Licensed Contractors to be Equal to that of In -Town Licensed Contractors, as nded relative «^ ^h°^^'»^ a business IiGens " [note: the amendments refer to the ordinance, not to the resolution] Page 248, amended motion: "Amended Motion by Council Member Curry, seconded by Mayor Selich, to a) introduce Ordinance No. 2015 -6, An Ordinance of the City Council of the City of Newport Beach Amending Newport Beach Municipal Code Chapter 5.04 to Update Business License Provisions, as amended to change the right to enter to during regular public business hours and changing a provision so violations shall not be considered criminal conduct, and pass to second reading on April 14, 2015; and b) adopt Resolution No. 2015 -23, A Resolution of the City Council of the City of Newport Beach to Reduce the Business License Tax Charged to Outof- Town Licensed Contractors to be Equal to that of In -Town Licensed Contractors, as amended to Ghange the Fight to enter- to duFing regular- public business Pages 252 -257: Have the members of the Finance Committee been invited to review the draft minutes of this Joint Meeting prior to their approval to ensure their remarks have been properly memorialized? Committee member Tucker, for example, in his role as a Planning Commissioner frequently requests changes to the draft version of his comments in the Planning Commission minutes, and these Joint Meeting minutes seem particularly poorly written and difficult to relate to what was actually said. Page 252, Item 1, paragraph 2: "In reply to Mayor Selich's questions, Public Works Director Webb explained the proposed funding amount for Neighborhood Enhancement District A, ... Fire Chief Poster ... commented on the long -range solution for the service hole in Newport Coast and believed that there is not another Fire Station included in the Facilities Finansfal Planning Financing Plan (FFP)." [note: as to what FFP stands for, the expression suggested here is what the Mayor called it in his question in the video. Director Webb's slide of the Lido Fire Station a moment later called it the "Facility Finance Plan," however within the City's adopted budget there the relevant divisions of the CIP come under the heading "Major Facilities Financing Plan," which agrees with the Mayor's terminology.] Page 254, paragraph 7: "In response to City Manager Kiffs question, Mayor Pro Tem Dixon discussed the possibility of having a mutual benefit agreement with the City of Costa Mesa for the Banning Ranch Project." [this sentence, relating to comments starting at around 52:00 in the video is so hopelessly garbled it cannot be corrected without completely rewriting it: City Manager Kiff suggested that if Banning Ranch is annexed the proposed community center site will not seem so much on the edge of town, and in any event, Costa Mesa might be interested in contributing to the funding if they could use it. Mayor Pro Tern Dixon concurred that a mutual benefit agreement with Costa Mesa might be possible.] April 14, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 Item 3. Non - Exclusive Solid Waste Collection Franchise with Skyline Construction Services Inc. As former Council member Nancy Gardner frequently pointed out, having a multiplicity of trash franchisees operating in the City is not necessarily in the public's interest. Although it may not apply to this construction debris hauler, there would seem to be cases in which if there were fewer choices some of the trips, such as those for adjacent alley pickups currently handled by different vendors, could be consolidated, leading to fewer trips by heavy vehicles. Item 4. Adoption of Ordinance No. 2015 -6 Amending Newport Beach Municipal Code Chapter 5.04 The language in City Charter Section 412 placing the text of an introduced ordinance in the custody of the City Clerk and prohibiting its alteration, with the exception of "the correction of typographical or clerical errors," before its adoption presupposes the existence at the time of introduction of an agreed upon text definitive enough that minor typographical corrections can be made to it. In view of that, and despite the present agenda announcement, I do not believe this ordinance is properly before the Council for a "second" reading, and adoption, because the precise text I assume the Council wants to adopt was not "read" at its purported introduction. Indeed, it is uncertain what text is being proposed for adoption since the undated version attached to the staff report differs from the undated proposed version posted by the City Clerk on the "Proposed Ordinances' portion of the City website. This confusion arises because at the Council's March 24 meeting, Council member Muldoon suggested, and the maker of the motion, Council member Curry, accepted a couple of changes to the text City staff had presented for first reading. To avoid the need to re- introduce an amended text for first reading at a later meeting, at roughly 22:50 in the video City Attorney Harp attempts to state the changes orally. But he only succeeds in stating one of the two proposed changes with clarity, namely that in Section 5.04.290 the words "at any reasonable time" will be replaced with "during regular business hours." The second change he says he will make is to add a passage (he is not specific as to where) saying "violations of the provisions of this chapter shall not be considered criminal conduct." He considered some additional words but appeared to conclude they were not necessary. He did not say if the existing language citing misdemeanors would be deleted. Given the vagueness of this, and the subsequent discussion at roughly 28:00 in the video about the difference between "infractions" and the "administrative citations" that could be issued in the absence of criminal conduct (none of which led to any publicly stated revised language), the City Attorney would have been wiser to say staff would attempt to make the requested changes and present a revised version for introduction at a later meeting. As it is, the version attached to the present staff report contains neither of the City Attorney's stated changes. The version posted on the "Proposed Ordinances" page contains the first, but April 14, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 not the second. Instead, in Section 5.04.290.0 of the second version the words "shall be guilty of a misdemeanor and subject to the penalties provided for by the provisions of this title" have been replaced with "shall be subject to administrative citation as provided for by Chapter 1.05" and in Section 5.04.300 (which was not mentioned on March 24), the words "shall be deemed a violation of this ordinance and a misdemeanor' have been replaced with "shall be deemed a violation of this ordinance and be subject to administrative citation as provided in Chapter 1.05" and it is possible other changes have been made. It is very hard to see these latter two as typographic or clerical corrections to the first reading language publicly stated by the City Attorney on March 24. It might also be noted that not only was the deletion of "and subject to the penalties provided for by the provisions of this title" from Section 5.04.290 unasked for, but unlike the language stated on March 24, and despite Council member Muldoon's concern about it, the new language in the proposed ordinance fails to clear up whether violations of other sections, such as a proceeding over evasion of the business license tax under Section 5.04.270, are a criminal or a civil matter. I also find it disturbing that none of the draft ordinance versions seem to have either a clear date or a legible and clearly identified signature for the person claiming to sign on behalf of the City Attorney, whose preparation of the same is a required duty per Charter Section 602(f). Instead the public sees just an undated and unidentified scribble. In addition, the public announcement of the ordinance published in the Daily Pilot on March 28 seems wholly inconsistent with the of the requirements of Charter Section 414, which in turn defers to California Government Code Section 36933 calling for either a "a fair and adequate summary' of the ordinance or a one - quarter page ad. Yet the entire, but highly incomplete, summary published in a small ad says: "The proposed Ordinance would. Among other things, exempt real estate agents from business license requirements since they are in effect employees of a brokerage which also pays the tax, and reduce the business license tax for out -of -town contractors." That is hardly adequate notice to the public of the eight or more other substantive changes to the business license system in Newport Beach that would, as highlighted in the March 24 staff report, go into effect if the sixteen pages of ordinance text are adopted. The lack of a clearly introduced initial text and the lack of proper public notice both, independently, make a second reading invalid at this time. Some other oddities about this matter noticed in reviewing the staff report from March 24: 1. Under "Funding Requirements' it mentions the fiscal impact of changing the tax on real estate agents, but fails to mention the effect of the resolution which reduced the out -of- town tax to the in -town rate. 2. The revenue reduction related to real estate agents is presumably based on the assumption that they will go from paying the $154 or $162 charged an independent business to the $16 that would be charged as an employee of a broker. However it's not clear to me that it will actually work this way since the proposed Section 5.04.115 says April 14, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 that to qualify for the exemption their broker has to claim them as employees, but both Section 5.08 (whose separate definition of "employee" is not changed by this ordinance, and remains in full force and effect per Section 5) and the City's webpape explaining the business license tax amounts suggest the $16 rate applies only to "W -2 employees" and I thought we had been told real estate agents weren't really employees of the broker (if they are, it's not clear why the exemption is required). 3. In the present and all the draft versions, Section 5.04.040 contains a double (or triple ?) negative. I believe that in that amazingly convoluted sentence, the word "deny' should be "affirm," or else "not conducting" should be "conducting". There are probably other grammatical flaws, but I have not attempted to read it all. Item 5. Revision to Council Policy L -Z Clarifying Requirements Regarding Curb Cuts on Corner Lots in Residential Areas 1. This report shows signs of having been hastily prepared: a. On page 1 of Attachment A, it might be noted that clause "G" refers to the "General Services Director," a position that I believe no longer exists. b. On page 3, in the second paragraph under "C ", "driveway approach botton" is presumably meant to read "driveway approach bottom'. It is also not clear why the word "conditions" has been deleted from the end of that paragraph. c. The proposed resolution (Attachment B) refers to an "Exhibit 1." Exhibit 1 was presumably intended to be a clean version of Attachment A, but no Exhibit 1 is provided. A clean copy would have been especially helpful since the marked up one is difficult to read. 2. Both the report and the existing and proposed policy language refer to the "depth" and "width" of corner lots. It is not at all obvious to me what those terms mean. 3. Following the paragraph on page 3 cited above, the proposed new list item 3 is phrased in such a way that it appears to have been meant to apply all residential properties abutting alleys, but it is formatted as a subheading that applies only to corner lots. It is unclear if this was intentional or not. 4. It is also unclear, at least to me, how this policy fits within the context of the Municipal Code and what levels of discretion and appeal are possible. 5. Should the Planning Commission have been asked to review staff's work and make a recommendation? Item 6. Amendment to the Orange County Waste Disposal Agreement I have not attempted to read the full multi -city agreement, but the idea of selling space at the County's landfills as a way to generate revenue seems extremely short- sighted. Whatever the current level of usage, it seems inevitable the landfills will eventually fill up, and cost of finding new ones will make us regret squandering the capacity we had. April 14, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Item 12. Multiple Buildings Painting Project Without seeing either the RFP or the proposed contract, I find this proposal very hard to follow. The list of 20 buildings on page 2 says they are the ones that will need paint work in the next three years, but the contract seems to be for 125 days. Is it for all 20 buildings? Or just a year's worth? Or are the 125 days to be spread over three years? Item 13. Request to Construct Private Improvements within the Public Right -of -Way at 1717 Bayadere Terrace The observation that there are other unpermitted steps to Bayside Drive seems like a limited justification for these, especially since they seem to be so rare. The bigger question would seem to be the extensive grading and alteration of the bluff face in connection with the recent construction at this site, in at least questionable compliance with the intent of the Coastal Act. Item 16. Request for a Fee Waiver for the Environmental Nature Center Preschool This seems to be in effect a request for a gift of public funds to a private institution, with a hint in the staff report that an even larger gift (in the form a waiving additional costs and fees) may be requested in the future. It would seem good if the City had a clearer policy on when such gifts are appropriate. Item 17. Request for Fee Modification for Lido Live Even if the quantity was more than needed, since the police services were agreed to and provided, I see no reason why the City should be forgiving its already accrued and outstanding costs and refunding earlier payments. Item 18. ABC Licenses, Crime Trends, and Options for Balboa Peninsula Regarding the Part 2 recommendation to "Hold quarterly meetings with Mayor Pro Tem Dixon, interested residents, representatives from the restaurant and bar committee, and Police and Community Development staff," I would hope that these quarterly meetings would be publicly noticed, since parties that were not initially interested may become interested, and those organizing the meetings would have no way of knowing that. The City should not be conducting activities open or known only to a small "in" group.