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HomeMy WebLinkAbout00 - Written CommentsBrown, Leilani From: Jim Mosher Uimmosher @yahoo.com] Sent: Tuesday, May 08, 2012 11:41 AM To: City Clerk's Office Cc: Dept - City Council Subject: Written comments on May 8, 2012 City Council agenda items Attachments: 2012May08 CNB Council Agenda Item Comments - JimMosher.rtf Madam Clerk, I have just CC'd by e -mail the attached written comments on tonight's agenda items to the Council members and would appreciate your making them part of the official record of the May 8, 2012 meeting. Please note that the proposed creation of an advisory commission to update the City Charter by resolution (Item 12) is inconsistent with Charter Section 700 and that the proposed appointment of members to serve on that "commission" at the May 22 City Council meeting will violate state law for the reasons highlighted on pages 5 and 6 of my comments. Also it would appear the findings to approve the proposed lot merger on Ocean Boulevard cannot be made for the reasons highlighted in bold on pages 4 and 5. If the staff report is correct about the required "densities," it is my belief the merger cannot lawfully be approved without an amendment to the Coastal Plan. Yours, Jim Mosher Comments on May 08, 2012 City Council Agenda Otems from: Jim Mosher ( jimmosherRVahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Study Session Item 3. Budget Overviews o The notice in the agenda says staff is seeking input from the public and Council on key issues related to the proposed Fiscal Year 2012 -13 Budget. o A report stating those key issues, made available in time for the public (and Council) to study the issues in advance of the meeting, would surely have improved the quality of input and dialog. �1 Regular Session -' ` co I?� c' Item 3. Ordinance Repealing the City's Vehicle Solicitation Lavin- n o The law to be repealed prohibits making solicitations from or to the occupants of a vehicle in traffic. O Although this is probably a silly law, it is unclear why we need to rush to remove it from our code. G The staff report fails to make clear that the recent court decision invalidating a similar law in Redondo Beach was a 3:2 decision with a very spirited dissent; and that since the court has already reversed itself once it could perhaps do so again. Item 4. Water Quality and Field Management Services for the Lower Bay Federal Dredging Program G Although the $350,334 for water and sediment testing may be an unavoidable, and perhaps even a good, expenditure, the staff report fails to make clear how the results will be used. o Will the dredging be shut down if the test results are unsatisfactory? o Or is the quality simply being monitored for the sake of monitoring it? May 08, 2012 Council Meeting comments by Jim Mosher Page 2 of 6 Item 5. City /County Linda Isle /Harbor Island Channel Dredging Contract 0 The idea of committing to a contract under the assumption that the County will later reimburse us for 66% of the costs seems like poor governance to me. It was only last year that the City entered into a contract for design services for Lido Village under the assumption that various "stakeholders" would pay a similar percentage of those costs. At last report, they had declined to do so. 0 1 should think the Agreement with the County needs to be finalized, and in writing, before making this contract. o I am unable to tell from the staff report if the Agreement with the County already exists, or is merely contemplated like that with the Lido Village stakeholders. o Without such a previous agreement, there would seem to be a real question as to whether the County could even legally reimburse us without being accused of making a gift of public funds to a separate agency to cover costs that agency had already promised to pay: covering a City's existing obligations would provide no new benefit I can think of to the County taxpayers. Item 8. Letter Supporting Ontario's Bid to Operate Ontario Airport 0 1 strongly support alternatives to air travel from and to John Wayne "International" Airport, but as one severely impacted by JWA, and in a severely negative way, I find the draft letter profoundly disappointing. 0 1 think the letter should emphasize, as the staff report does, that any effort that will reduce pressure on JWA is beneficial to the residents of Newport Beach. 0 It is beyond me why the bulk of the letter is devoted to praising JWA's growth into what our Mayor apparently now sees as one of the three essential hubs of the regional air transportation system. 0 The implication that Newport Beach is happy with its "control" of JWA is disingenuous at best. If we believed that we would not be in the midst of more than a quarter century of litigation, and would instead be recommending to Mayor Leon that he work to have the San Bernardino County Board of Supervisors gain exclusive ownership of ONT. May 08, 2012 Council Meeting comments by Jim Mosher Page 3 of 6 Item 9. Substantial Amendment to 2010 -2011 and 2011 -2012 Community Development Block (CDBG) Grant Action Plans G The chronic absence of public comment on this item and the next suggest the City is making an inadequate effort to publicize and arouse interest in the availability of these programs, and to respond to the interest aroused by assisting those in need. The cancellation of the Utility Assessment District Grant activity would seem to be a case in point: per page handwritten 9 of the staff report, the number of qualified applications for the available assistance was closely in line with predictions, but none of the applications were carried through to completion. Perhaps if the City had helped more they would have been. Item 10. 2012 -2013 CDBG Action Plan It seems disturbing that the two biggest line items in the plan for expenditure of the new funds shown on handwritten page 4 are for repayment of a loan and administrative costs (consultant fees ?). This suggests to me the program is not optimally focused on the goals the program is intended to serve and that a greater portion of the program should be used for outreach and assistance. The justification of using these funds for repayment of the loan — namely, that "Improvements in Balboa Village ultimately improve economic opportunities for low - income persons" — seems pretty lame to me. Item 11. Appeal of Denial of Ocean Boulevard Lot Merger G The history of this application, and the manner in which it is being presented to Council seems extremely odd As indicated in the multiple staff reports and resolutions, on January 24, 2012 the Council referred this matter back to the Planning Commission that they might hear and make a recommendation based on the applicant's last minute promise to impose new voluntary restrictions on the allowable development. The Planning Commission spent 2 -112 hours listening to and debating those restrictions and came back with a recommendation reported to Council on April 24, 2012. At that meeting the Council was offered a choice between denying the merger or approving the Planning Commission's recommendation; but the matter was continued to the present meeting to give the applicant time to prepare a signed copy of the voluntary restrictions. o Mysteriously, as best I can tell the project has come back after two weeks with a set of non - binding building plans, but without the promised signed copy of voluntary restrictions, and even more mysteriously the Planning Commission's recommendation, May 08, 2012 Council Meeting comments by Jim Mosher Page 4 of 6 which Council solicited, is no longer even an option being recommended for consideration by the Council, staff having substituted in its place the two alternatives of denying the merger or accepting the applicant's proposal, which is for a project three feet taller and generally larger than the one recommended by the Planning Commission. o The staff report fails to make clear if this means the applicant would refuse to record the restrictions recommended by the Planning Commission. o The Planning Commission also recommended that termination of the restrictive covenants would need to require the concurrence not only of the City, but also of the property owners at 2811 and 2821 Ocean Lane — something that is not part of the approval alternative staff is presenting to Council. It is particularly unclear why that component of their recommendation would be ignored. o Commissioner Tucker's explanation of how his "no" vote was really a vote "for" the applicant notwithstanding, it may be useful to note that no planning commissioner, including Commissioner Tucker, ever publicly voted to recommend the resolution staff is presenting to Council. o Regarding my previous comments (attached to the staff report under Correspondence) as applied to the new draft Resolution of Approval: o In Section 1. Statement of Facts: Statements 5, 8, and 14 remain false to the extent that they say the hearings before the Zoning Administrator and Planning Commission were noticed in compliance with the requirements of the Newport Beach Municipal Code. As staff now knows, the notices published in the Daily Pilot did not contain the information required by Municipal Code Section 20.62.020. o In Section 2. CEQA Determination Statement 2, that the merger qualifies for a Class 5 exemption because it results in no change in density, remains unconvincing. The number of allowed dwelling units per acre will clearly change. o In Section 3. Required Findings Facts C -2 and F -3, to the extent they address density, are incompatible with the findings they purport to support, and in fact make it impossible to make those findings. G The resolution says the Coastal Land Use Plan requires a density between 6.0 and 9.9 dwelling units per acre. The April 24, 2012 staff report lists the area of the lots as 7149 sq ft (0.164 acre) and 6499 sq ft (0.149 acre). With one dwelling unit allowed on each these compute to 6.1 and 6.7 DU /AC — both within the acceptable May 08, 2012 Council Meeting comments by Jim Mosher Page 5 of 6 range. With a single dwelling unit allowed on the merged lots, the new density will be 3.2 DU /AC, which is not only lower, but outside the acceptable range. C As a result, if staff's statement of facts is correct, the merged lot would be inconsistent with the Coastal Plan, meaning that neither Finding C nor Finding F can be made. Since all findings must be made, the merger cannot be approved. Regarding the draft Resolution of Approval, I am also unconvinced that Finding A can be made: that the merger would not be "be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood" or "injurious" to their property. That is a judgment call that cannot be made in any mechanical way, and in my view great deference should be given to the feelings of the neighbors. The closest neighbors clearly feel the proposal would be injurious to themselves and their homes. In my view that means the merger should wait until the occupants of the adjacent properties are comfortable with it. Item 12. Creation of a Charter update Commission O Just as the United States Constitution may contain antiquated provisions that at first sight might seem to unnecessarily hinder the efficient operation of government, our City's "constitution" (our Charter) may also need review, but it was reviewed just two years ago, and the idea that it needs to be completely revised again in a precipitous, rushed and thoughtless way is difficult to fathom. o The haste with which this proposal has been thrown together is evidenced not only by a failure to explain with any specificity exactly what new language staff wants, and why, but also by offering a plan of action that fails to honor both state law and the Charter itself: o California Government Code 54970 et seq. (the "Maddy Act ") prohibits hasty appointments by requiring appointments to be made at least 10 working days after the posting of the notice of vacancy in the clerk's office. Since it is difficult to imagine the Clerk posting notices of vacancy before the Commission has been created, the first working day on which the Clerk can post the notice is Wednesday, May 9, 2012. The proposal is to have the notice posted for less than 8 working days and make the appointments on the 9`h. This is incompatible with the Maddy Act. May 08, 2012 Council Meeting comments by Jim Mosher Page 6 of 6 o Charter Section 700 has, since the inception of the Charter in 1955, given the Council the power to "create by ordinance such additional advisory boards or commissions as in its judgment are required." Staff is asking Council to create an advisory commission by resolution, a process quite different than action by ordinance, and an action contrary to the explicit will of the electorate which empowered the Council. The fact that we may have gotten away with this is the past does nothing to make it lawful. It seems particularly embarrassing to ignore the Charter when a need is felt to create a commission to advise about the Charter. o The proposed time frame seems unworkable. Assuming the commission is appointed at a special council meeting on May 23rtl (in compliance with the Maddy Act, but in violation of the Charter) they are expected to begin work and to be sufficiently versed in the Charter to intelligently discuss the 42 proposed changes the next day, May 24tH o After just three additional weekly meetings they are supposed to be able to make final recommendations. o This clearly does not provide staff adequate time to prepare materials, nor the commissioners time to do anything other than rubberstamp the proposals presented to them. o The Charter is a document of the people, both delegating power to those we allow to govern us, and restraining how they can use those powers. The Charter is supposed to control the Council and staff, not be controlled by them. As such, a thoughtful review of the Charter would be independent of the Council (until about 1970 the California Constitution required a commission of 15 independently elected residents) and would involve not only debating the wisdom of removing existing restraints, but also of adding new ones. This is not a thoughtful review, and at least in my view a thoughtful comprehensive revision of the Charter cannot possibly be made in sixty days, from start to finish, as is proposed here. I would suggest that if the Council truly feels there are one or two things in the Charter that place such onerous constraints on the conduct of government that they need to be changed by November, that they place those one or two matters on the ballot as separate issues with a clear explanation of how each proposed change will benefit the people (as opposed to those who govern us), and let the voters decide. Dressing up the proposals with the stamp of approval of an illegally constituted "commission" serves no one's interest.