Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 28, 2015 Written Comments - Consent Calendar April 28, 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 April 14, 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 259: Item SS6 title: "SS6. Master Arts and Culture Plan and Arts Funding Discussion' [The draft minutes correctly quote what seems to have been a typo in the April 14" agenda. Should the item title be corrected in the minutes ?] Page 259: Item SS6, paragraph 4, last sentence: "She addressed the economic benefits of cultural culture and arts on tourism and the importance of investing in culture and arts." Page 261: paragraph 3: "duei'itl4 Judit Laufer, Newport Beach Arts Foundation, ..." Page 261: paragraph 7: "Arlene Greer reported that, this year, the County Citv will be losing two of its cultural assets, including the Orange County Museum of Art (OCMA) and a collection going to a museum on the campus of Chapman College." Page 266: Item XIV, paragraph 1, sentence 2: "He thanked the City for its cooperation, but believed that there should only be two Police Officers pro rp esent." Page 266: paragraph 3 from end: "City Manager Kiff requested that Item 5 (Revision to Council Policy L -2, Clarifying Requirements Regarding Curb Cuts on Corner Lots in Residential Areas) be continued to the City Council meeting of April 28, 2015." [note: this item, also mentioned as XV.D.5 on the next page, does not seem to be on the April 28 agenda] Page 270: motion: "...; and b) approve a waiver of zoning entitlement, building plan check fees, building construction permit fees, and encroachment permit fees associated with development of a preschool located at 745 Dover Drive. Council." Page 271: last paragraph: "Ann 14arper Parker spoke in support of Mr. Chan 's request, ..." Page 276: Item 24, paragraph after motion: "Council Member Peotter requested that the maker of the motion amend the motion to change the Corona del Mar Entry Project from yellow to green." [I believe Council Member Peotter's advocacy of this project being promoted by the CdM Business Improvement District advisory board is based at least in part on the BID's having made a major contribution towards its design. However, the BID advisory board's recommendation is heavily tainted by their effort having been, and continuing to be, promoted and spearheaded by a board member, Jim Walker, who as co -owner of the Bungalow Restaurant (adjacent to the proposed sidewalk improvements) can be perceived as expecting to financially benefit from the proposal in a way distinctly different from the BID membership in general. Like a Council member with a conflict of interest, Mr. Walker should have recused himself from any discussion or recommendation on this matter.] April 28, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 Item 3. Adoption of Ordinance No. 2015 -10 Amending Newport Beach Municipal Code Subsection 12.44.020(F) Adding public parking always sounds like a good thing, however the staff report presented at the April 14`h meeting, when this ordinance adding metered on- street parking adjacent to Marina Park was introduced, failed to explain why the previous use of those spaces as "a seasonal through -lane for traffic exiting the peninsula during the summer months" is no longer needed. While more parking may be good, the need to require the public to pay to park on public land adjacent to public facilities always seems unfortunate; and in view of other recent changes to the Municipal Code, the public can't help but notice a certain schizophrenia in the Council's attitude toward the function and purpose behind parking charges. As a result of Ordinance 2014 -21 (adopted at the "new" Council's first business meeting on January 13`h) on- street parking revenues collected in Balboa Village will be spent exclusively in that district area (and most recently given to area merchants per Item 25 at the Council's last meeting). Yet at this location and elsewhere parking revenues that once went to improve and maintain public facilities (including the streets) in the areas that generated them will now evidently go to the General Fund. Item 4. Appeal and Call for Review Procedures Code Amendment - Second Reading This item is a response to the recent Appeals Court opinion (G050155) in the Woody's Wharf litigation (which is apparently still on -going as evidenced by a Closed Session discussion noticed for the present meeting). I continue to think this is an incorrect response to the court ruling, so I would like to expand on the written comments I submitted when the Zoning Code/Title 20 changes were reviewed by the Newport Beach Planning Commission at their March 5, 2105, hearing and the oral comments I made at the last City Council meeting, where these ordinances were introduced. Although at first blush the idea of individual elected Council members or appointed Board or Commission members, who might be seen as the most engaged and best informed citizens in the community, calling up questionable decisions for review by the body on which they serve seems like a good idea, and perhaps even a duty the public might expect of such officials, it seems a much less good idea on deeper reflection. First, the idea individual Council members being empowered to waive fees and initiate appeals seems contrary to the City Charter which, although Section 405 places all the powers of the City (not otherwise designated) in a Council of seven elected members, Section 410 restricts that Council to acting as a collective body with a quorum of four members being necessary to conduct business. To the best of my knowledge, aside from the largely ceremonial functions given the Mayor, it places no power in the Council members as individuals. Section 406 further explicitly prohibits the Council, both collectively and as individuals, from interfering in the day to day administration of the system it creates. By extension, it would seem that members of the City's boards and commissions were never intended to be invested with the right to exercise April 28, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 any special powers as individuals. So allowing Council and commission members to initiate appeals as individuals in a manner different from any other individuals seems inconsistent with the Charter's concept of our governmental structure. Second, a system created by ordinance in which individual Council and Commission members are invested with special powers not found in the Charter can erode public respect in their government. It creates the impression of a corrupt system in which those with political connections can be privately granted special favors not accessible to the average citizen. In this case political friends can appeal a decision in which they are financially interested without having to pay the currently very high fees. Third, the main caution to the City from the appeals court was that in their opinion the question of whether there are any circumstances under which an individual initiating an appeal can sit in judgment on their own appeal without violating the due process rights of the applicant is not a matter of settled law. By not requiring the appealing Council member to recuse him or herself from hearing the appeal — something that could easily have been incorporated into the proposal — the City would appear to leave itself open to further litigation and charges of bias. In its now abandoned petition for review by the California Supreme Court, the City's contract attorney cites the 1975 case of City of Fairfield v. Superior Court, 14 Cal.3d 768, for the principle that expressions of opinion and even bias by city council members are to be expected, and not grounds for disqualification. However, if this was brought to the Appeals Court's attention it was not mentioned in their opinion, perhaps for the reason that a Council member who actively intervenes to question an earlier decision is quite different from one who is simply asked to hear a matter in the normal course of business, as was the case in Fairfield. If it was not brought to their attention, one wonders why the City had such ineffective representation. I have no understanding of why staff would not heed the Appeals Court's strong warning that the person initiating an appeal, whether it is called an "appeal" or "call for review," should recuse themselves from hearing the appeal. It doesn't seem like a big deal. If the person initiating the ,.review" thinks the previous decision was wrong and needs to be overturned, then they are clearly biased and should not be using he proposed "call for review" procedure. If they truly think the original matter was so complex or novel that for the public's good it needs to be reviewed by the body on which they set, then, in the public's interest, they should have no problem setting their egos aside and letting the other members decide the issue. Finally, an appeal by a supposedly unbiased and uninterested Council or Commission member creates the very peculiar situation of an appeal without an appellant. And in reality it's not likely to come down that way. As we know, and as the Appeals Court observed, in the Woody's Wharf matter then Council member Henn took the lead in attacking the previous decision. My suggestion, much simpler but radically different from that proposed by staff, would be to entirely do away with Council /Commission - generated appeals and simply reduce the appeal fees so that truly interested parties can easily bring the appeal and present their arguments to the appropriate body. April 28, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 I would couple that with an effort to better publicize the appealable decisions made by staff so that those who are not Council members or Commissioners would know about them in a timely fashion. Assuming that suggestion is rejected, I would suggest that instead of making the dozens of detailed changes to the Municipal Code as is done in the two proposed ordinances, the principles under which those changes were written, that is the circumstances under which a "call for review" is possible, and by and to whom, could simply be spelled out in a single new section in the "General Provisions" of Title 1. It would then not have to be explicitly repeated in the other sections, and could easily be revised in a single place if a future Council wanted to change the appeal philosophy. That approach would have the further advantage of being able to correct other current deficiencies, such as the fact that the need to use a City form and pay a fee is mentioned in some of the current appeals passages but not in others. In addition, I have the following comments on the two ordinances being proposed for adoption, which incidentally are not a comprehensive solution to the appeals "problem," since many appeal mechanisms are found in Council or administrative policies rather than in the Municipal Code Ordinance No. 2015 -8: Amending Title 20 of the Newport Beach Municipal Code Related to Planning Commission and City Council Appeals and Calls for Review Although this ordinance was reviewed by the Planning Commission, I don't think it was very carefully reviewed. The existing Section 20.64.030.C.3.A gave the Council the option of remanding appeals back to the Planning Commission or Hearing Officer for further proceedings. The revised code appears to foreclose that option and force the reviewing body to render either a final decision or none. To me, that seems an inadvertent and unfortunate change, unrelated to the Woody's Wharf opinion. 2. 1 am likewise unsure sufficient discussion has been had of the seemingly arbitrary changes being made to the role of Hearing Officers. I thought at least part of the reason for these was situations where the City had to provide a mechanism for decisions independent of local political and resident pressures, as in requests for group homes reasonable accommodations (Sec. 20.52.070). Hence the appeal was limited to review of whether the evidence presented supported the Hearing Officer's finding. As understand the proposed code, Hearing Officer decisions can now be completely ignored and a new decision based on new evidence made at the whim of any Planning Commissioner dissatisfied with the original outcome or any person willing to gamble and pay the appeal fee. Will this open the City to still more litigation? If not, given the considerable expense of contracting with and using them, and the rarity with which they are called upon, the City would seem wise to completely dispense with the Hearing Offer mechanism. 3. Staff should be commended for finally correcting the typographical error in the existing code pointed out in the Appeals Court opinion. April 28, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 Ordinance No. 2015 -9: Amending Various Sections of the Newport Beach Municipal Code Related to Appeals and Calls for Review This separate proposed ordinance changing a host of obscure provisions of the Municipal Code outside Title 20 was never publicly reviewed by any body prior to its introduction. It is also nearly impossible to judge, or even guess, the significance of the changes proposed when extremely tiny snippets of code, without even titles, are presented out of context for review. As a result, it is hardly surprising it is not ready for prime time. As a single example, consider the treatment of the Building and Fire Board of Appeals, created in Chapter 15.80. Contrary to the spirit of what staff and Council seem to wish to accomplish, I can find nothing in the proposed Ordinance No. 2015 -9 that empowers members of this Board to call for review the decisions that can be appealed to it, namely decisions of the Fire and Building officials. 2. As pointed out earlier, such oversights could have been avoided by articulating the City's ,.call for review" philosophy in a single place in the general provisions of the Code, rather than attempting to repetitively insert it in so many different places. 3. Where the Building and Fire Board of Appeals is mentioned, in Section 28 of the proposed Ordinance No. 2015 -9, the change proposed is flawed and a chance to clean up neighboring text has been missed. a. Although hardly obvious from the snippet provided, the title of Chapter 15.50, from which the Subsection 15.50.180.E snippet is extracted, is "Floodplain Management." b. When this chapter was originally enacted by Ordinance 93 -5 the appeal body was the Planning Commission. Hence the reference to Title 20 in the snippet being modified made sense, since that is where the procedure for appealing Planning Commission decisions to Council is described. However, Ordinance 2013 -24 changed the appeal body to the Building and Fire Board of Appeals. There is nothing in Title 20 that explains the procedure or appealing a Building and Fire Board of Appeals decision, and hence rather than improving the code, Ordinance No. 2015 -9 preserves and expands a fatal flaw that has existed in the code since 2013. In the absence of direction in Title 20, this modified subsection would seem to remain inconsistent with Subsection 15.80.060.G, which says that Building and Fire Board of Appeals decisions are non - appealable. c. It might also be noted that Subsection 15.50.180.D contains an erroneous surviving reference to the "Planning Commission," and Subsection 15.50.190.F refers to a "Floodplain Board." In both cases the reference is probably intended to be to the Building and Fire Board of Appeals. The opportunity to clean up these existing errors has been missed. April 28, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Similar flaws exist elsewhere. For example, in Section 14 of the proposed ordinance, a formatting error hides subsection B at the end of A; and in subsection C the reference to the "Hearing Officer" is probably meant to be to the "City Manager" (which, as defined in this section of the code could be the City Manager or a Hearing Officer). I would suspect there are similar errors of omission and commission in the 42 other code sections modified. As a result the proposed Ordinance No. 2015 -9 may well add more errors and complexity to the code than it returns in new value. Why we would want to do that is beyond me. Item 11. Matching Maintenance Grant Funds to the Balboa Angling Club for Structural Foundation and Building Repairs I don't know if I should be embarrassed to admit that I had never heard of the Balboa Angling Club prior to Mayor Selich's request on March 24th for an agenda item about it. In my defense I would note that it does not appear to be mentioned in the most recent edition (2012) of the City's Harbor Guide, nor despite the status attributed to it in the staff report is it prominent in a Google search on "official check -in point for fishing activities in Newport Harbor' (let alone all fishing acitivities). As recorded in the minutes, I did find it strange that at the Council's April 14th meeting the requested $30,000 appeared as "Fund C1002058" in the Capital Improvement Budget (page 12 of Item 24 at that meeting) before the Council members had even decided whether they wanted to discuss the matter. I also found illuminating the documents posted with the lease agreement (Contract C -1609) alluded to in the present staff report. It seems that from the start, the construction and maintenance of the pier and building was the responsibility of the Club. The April 25, 1983, memo from the City Manager (starting on page 31 of 149) indicates the lease was, in that year, changed from a year -to -year terminable basis to a fixed non - terminable expressly to assure the members they would have use of the facility long enough to recoup their investment in major structural repairs It would seem to me that by providing rent -free use of a prime piece of waterfront harbor property, City taxpayers have in effect been making a very substantial monetary contribution to this organization for the last 68 years. The Club's most recent IRS filing indicates revenues of $62,312 per year. Given their known obligations under the contract, it would seem to me they should have set aside enough to cover the costs of maintenance and not be expecting still more contribution from City taxpayers. It also bothers me that the Council is being asked to approve sight- unseen a Grant Funding agreement the terms of which apparently remain to be "developed" by staff. Incidentally, the agenda contains a typo. In recommended action (a) it presumably intended to say "approved as to form' rather than "as approved to form."