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HomeMy WebLinkAbout00 - Written CommentsJanuary 12, 2016, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the December 8, 2015 Regular Meeting The page numbers below refer to Volume 62 of the draft minutes. The passages in italics are from the draft with suggested changes shown in strikeout underline format. Page 522: Item XI, last paragraph, sentence 2: “On behalf of the Council City Council, Mayor Selich presented her with a Certificate of Recognition in appreciation of her contributions to the residents of Corona del Mar.” Page 524: Item B (“Election of Mayor Pro Tem.”): “Ayes: Council Member Peotter, Council Member Petros, Council Member Curry, Council Member Duffield, Council Member Muldoon, Council Member Mayor Dixon, Council Member Selich” Item 3. Water Efficient Landscape Ordinance Amendment (NBMC Chapter 14.17) I would like to commend City staff for their efforts to improve this ordinance subsequent to its original introduction on the November 24, 2015, Consent Calendar. However since it remains a Consent Calendar item, likely to be adopted without public discussion, I might note that the staff report continues to fail to explain how adoption of “more restrictive” landscape standards in Orange County is an improvement over defaulting to the State standards which would otherwise be in effect. How, specifically, does adoption of this ordinance benefit residents and business operators in Newport Beach compared to having no ordinance? In addition, the ordinance and Design Standards continue to appear to me to be not just regulatory documents, but also engineering documents, and the staff report fails to make clear the extent to which the many formulas and definitions they contain have been vetted by City personnel with water use engineering expertise. Given what seem to me to be at least a couple of glaring and still-unresolved technical defects, also found in MWDOC’s latest Model Ordinance, I have to question whether the engineering expertise necessary to verify the definitions and formulas exists in the Community Development Department, or at least in the part of that department to which this task seems to have been assigned. I also have to question the assertion (under Discussion on page 2 of the staff report) that “The overall applicability and implementation of the regulations did not change in any substantive way.” The “meat” of the ordinance seems to me to be the setting of the Maximum Applied Water Allowance for a particular project. As presented in November, the ordinance set this at 0.7 of a certain calculation. It is now set at “0.55 (fifty-five (55) percent) for residential areas and 0.45 (forty-five (45) percent) for non-residential areas,” which is a significantly tighter standard (I might note that whoever initiated this recent effort to burden the Municipal Code with all numbers written out both in words and in numerals is, in my opinion, on a misguided mission. At best the two versions agree; at worst they disagree leading to an ambiguous standard. It Received After Agenda Printed January 12, 2016 Written Comments January 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 would, in my view, have been much wiser to eliminate either the words or the numerals and thereby specify each number exactly once). Finally, since efficient and effective water use affects water quality, I might also question why this proposal has never been presented to or reviewed by the City’s Water Quality/Coastal Tidelands Committee. I have not read the Design Standards in any detail, but I notice they present the appendices in a different order than in the OC Model Guidelines of Attachment E, which themselves appear to be a defective document since the subsections starting on page 3 (as listed in the Table of Contents on current staff report page 3-151) appear to be misnumbered. The following changes are suggested to the ordinance proposed for Council adoption starting on page 3-8 of the current staff report: Section 14.17.010 Definitions Note: I continue to believe definitions are offered for a number of terms not used in the body of the ordinance and it would be wise to delete them. Page 3-10: “A. “Aggregate landscape areas area” pertains to the areas means the total area undergoing development as one (1) project or, including for production home neighborhoods or other situations where multiple parcels are undergoing development as one (1) project, but will eventually be individually owned.” Reason: the term used in the ordinance is “"Aggregate landscape area” (singular) not “Aggregate landscape areas” (plural); and the concept is applied to all projects, not just those involving multiple parcels. Page 3-11: “G. “ET adjustment factor” or “ETAF” means the plant factor divided by the irrigation efficiency factor for a landscape project, as described in the design standards. of 0.55 (fifty-five (55) percent) for residential areas and 0.45 (forty-five (45) percent) for non-residential areas, that, when applied to reference evapotranspiration, adjusts for plant factors and irrigation efficiency, two major influences upon the amount of water that needs to be applied to the landscape. The ETAF for new and existing (non- rehabilitated) Special Landscape Area shall not exceed 1.0 (one hundred (100) percent). The ETAF for existing non-rehabilitated landscapes is 0.8 (eighty (80) percent).” Reason: This definition has been recovered from the ordinance as proposed in November. The first sentence of the “new” definition, copied from the MWDOC Model Ordinance, is both grammatically challenged and makes no sense when compared to how ETAF is used in the Guidelines/Standards. As best I can tell, within the ordinance, the term ETAF is used only in Subsection 14.17.030 where readers are instructed to perform a calculation using an artificially set ETAF. Therefore, the remainder of the above “definition” is both confusing and unnecessary. January 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 Page 3-11: “I. “Irrigation efficiency” means the measurement of the amount of water beneficially used divided by the amount of water applied. Irrigation efficiency is derived from measurements and estimates of irrigation system characteristics and management practices. The minimum average irrigation efficiency for purposes of this chapter is 0.75 (seventy-five (75) percent) for overhead spray devices and 0.81 (eighty-one (81) percent) for drip systems with an overall irrigation efficiency of 0.71 (seventy-one (71) percent).. Greater irrigation efficiency can be expected from well designed and maintained systems.” Reason: the struck phrase, which is not, I believe, in the Model Ordinance, makes no particular sense to me. How can a drip system simultaneously have an “average efficiency” of 0.82 and an “overall efficiency” of 0.71? Page 3-12: “L. “Landscape project” means the total area of landscape in a project, as provided in the definition of “landscaped area.”” Reason: grammatical correction. Page 3-12: “P. “Maximum applied water allowance” or “MAWA” is the upper limit of annual applied water for the established landscaped area as specified in Section 2.2 of the design standards. It is based upon the area’s reference evapotranspiration, the ET adjustment factor, and the size of the landscaped area. The estimated applied water use shall not exceed the maximum applied water allowance. The maximum applied water allowance in gallons per year is MAWA = (ETo) (0.62) [(ETAF x LA) + ((1-ETAF) x SLA)] where ETo is in inches per year and the landscaped areas are in square feet.” Reason: the formula, and the peculiar factor “0.62” make no sense without specifying the units in which the quantities are to be measured. As explained in a footnote to the Guidelines/Standards the factor is intended to convert inches and square feet to gallons. As such, the “per year” on both sides could be eliminated, but doing so would probably add confusion since the tables list ETo in “inches per year.” In November I noted that the mathematical treatment of SLA seemed strange to me. It still does, but I haven’t had time to think further about it. Page 3-13: “Y. “Special landscaped landscape area” or “SLA” means an area of the landscape …” Reason: the form shown is the one used in the ordinance. Section 14.17.020 Applicability. Page 3-14: “A. Beginning February 1, 2016, and consistent with Executive Order No. B-29-15, this Water Efficient Landscape Ordinance chapter shall apply to the following landscape projects:” Reason: “Water Efficient Landscape Ordinance” is not defined in the proposed code and all other references to it in the Model Ordinance have been changed as shown. January 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 Page 3-14: “2. Rehabilitated landscape projects with an aggregate landscaped landscape area equal to or greater than twenty-five hundred (2,500) square feet which require discretionary or ministerial permits from the City.” Reason: consistency with use of term in remainder of code. Page 3-15: “B. This chapter does not apply to:” Note: Enumerating examples of situations the chapter applies to (in Subsection A) and a separate list of examples it doesn’t apply to (in Subsection B) potential creates an ambiguity of intention for projects that fall in both lists, or neither. One or the other subsection should have a catch-all category to handle such cases. Page 3-15: “1. Landscape rehabilitation projects that consist of replacement plantings with equal or lower water needs and where the irrigation system is designed, operable and programmed to comply with the City’s water conservation regulations;” Reason: “and the” does not make sense grammatically. “where” or “when” seems to have been intended. Section 14.17.040 Implementation Procedures. Page 3-16: “2. Water use calculations shall be consistent with calculations contained in the Guidelines and shall be provided to the local water supplier, as appropriate, under procedures determined by the City.” Reason: See page 3-144 of the staff report. The proposed ordinance appears to be missing a subsection specified in the Model Ordinance. Item 4. Resolution Updating the List of Designated Employees for 2016 Under the City’s Conflict of Interest Code It would have seemed helpful to highlight how this version of the list differs (and why) from the one adopted in January 2015 (as Item 5 on January 13, 2015). As best I can tell, the Exhibit 2 description of the duties under the various Disclosure Categories is unchanged aside from the insertion of the duties of the statutory (“GC 87200”) filers, whose positions are now included in the list. But a number of the other positions have been added and removed from the list in ways that may or may not correlate with Council-approved staffing changes. For example, I was surprised to see a “Deputy City Attorney” position added back to the list. Although the City website shows we currently have one, the City’s budgeting process (which I thought was the Council’s primary vehicle for overseeing staffing) had indicated the “Deputy City Attorney” position had been eliminated in FY 2013-14 (going from 2 “Assistant City Attorneys” plus 2 “Deputy City Attorneys” to a total of 3 Assistant City Attorneys and no deputies) and had not been restored. I suspect similar confusion in what has and has not been approved in some of the other positions as well. January 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 On a more general note, I might observe that California’s conflict reporting is not as effective as it might be since it may be as much as 16 months before the public is made aware of the existence of a potential conflict (the reports for one year not being due til April 1st of the next year). That said, the City could take a giant step towards transparency by voluntarily making the Form 700’s for key decision makers (as potentially out-of-date as they be) available for online viewing (currently one has to sift through piles of hardcopy filings in the City Clerk’s office and a substantial fee is charged for making copies). Item 6. Adoption of Memoranda of Understanding with the Newport Beach City Employees Association and the Newport Beach Professional and Technical Employees Association When these two proposed memoranda of understanding were released to the public as Item 6 at the Council’s December 8, 2015, meeting, they were accompanied by a recommendation to make corresponding changes to the Key & Management Compensation Plan. Since, like the MOUs, that recommendation was “received” and “considered” but not acted upon, and since it is not mentioned in the present proposed action, its current status is unclear. Item 9. City-Wide LED Streetlight Retrofit This staff report, originating from the Municipal Operations Department, does an excellent job of explaining the proposal for project funding. It does a much less effective job of explaining where the City stands with regard to LED retrofitting and how this proposal correlates with the many similar proposals that have come out of the Public Works Department and been incorporated into the City’s Capital Improvement Budget for the last several years, and which seemed related to the City’s Energy Action Plan (the webpage for which suggested it is still in a “proposed” state, although it was actually adopted by Council Resolution 2013-68). In addition, the EAP refers (on page 5) to a “15-year Master Plan” that is part of “the City Streetlight Efficiency Project,” although I don’t recall having ever seen that Master Plan. Is this a continuation of the same effort? And if so, has Public Works handed it over to MOD? Perhaps these aspects of the proposal will be clarified under Study Session Item SS4 “LED Streetlights (4:30 p.m.)”? Of special interest, I may be misreading it, but the last proposal out of Public Works related to this topic promised (on page 3 of Item 22 from January 27, 2015) it would “replace the last remaining obsolete incandescent streetlight circuits” and mentioned neither “The Energy Network” nor SCE’s “On-Bill Financing” program. Evidently “obsolete circuits” is different from “obsolete lamps,” but between the two departments, how many incandescent streetlights have been retrofitted to date? And how many will remain if the current project is completed? January 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 In general, we might have a better informed public if the City could provide an index to all its many Master Plans for infrastructure maintenance and improvement on a single webpage, much as the Planning Division provides convenient online access to our many “Planned Community” texts, Development Agreements and other land use regulatory documents, and the Finance Department provides links to the various budget-related documents. Item 12. Annual Mayoral Appointments I believe that in some other jurisdictions the Mayor is allowed to make appointments without ratification by the remainder of the Council. I am very pleased that in Newport Beach we attempt to remain true to the concept expressed in our Charter that governmental power lies with the City Council as a collective body, and not with any member as an individual, including the Mayor. That said, I would be remiss if I did not point out that at least one set of appointments is to a body (EQAC) that has not met in the last year and another (the “Newport Coast Advisory Committee”) that has not met for many years (so many that the City seems to have lost track of where minutes from past meetings are kept). I appreciate that the continued existence of the latter is called for in some pre-annexation agreements, but if it no longer serves a purpose I would think the agreements could be amended. One body the City may wish to consider reviving its participation in is the Liaison Committee that once facilitated communications between elected and appointed officials in Newport Beach and the neighboring city of Costa Mesa and the special districts serving parts of both (Mesa Water and the Costa Mesa Sanitary District). The committee still exists, but Newport Beach seems to have ceased participation in it. Item 14. Request to Waive City Council Policy A-5, Fund Raising/Contracts by City Boards, Commissions, or Committees I am not familiar with the precise circumstances that may have led to the adoption of Council Policy A-5, but I think there are good reasons to insulate the City and its elected and appointed officials from a direct fund raising function, which can otherwise create the impression of a “pay- for-play” environment. In addition, I recall the Board of Library Trustees, when confronted with a similar proposal, saying that serving on an administrative/policy setting board and serving on a fundraising board required two completely different skill sets. Without further information, I do not support waiving this policy for the City Arts Commission and find it curious that, to the best of my knowledge, a discussion of the merits or demerits of this request never appeared for public review on the Commission’s own agenda.