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HomeMy WebLinkAbout00 - Public Comment"RECEIVED AFTER AGENDA RECEIVED PRINTED:" 2Z`2L 3- Comments on February II-ItV Council Agenda Items Comments by: Jim Mosher ( iimmosher(a)vahea -erRr , 2210 Private Road, Newport Beach 92660 (949- 548 -6229) T�2_ ,"D. U_RK Item 1. Minutes for the Regular Meeting of February 14, 2012 The following are not suggested corrections, but rather comments on matters recorded in the minutes. Volume 60 -Page 371 : "City Attorney Harp indicated that Mr. Mosher is confusing the differences between Commissions and Committees and noted that the reason the Charter does not apply to SEAC is because it is a Committee." o Mr. Mosher was not confusing commissions with committees. He was questioning the authority under which the Council routinely creates citizens advisory committees by resolution. Charter Sections 700 (and following) provide the Council with instructions on how to form citizens advisory bodies, when needed, and in Mr. Mosher's opinion those procedures are the ones that should be followed. It is unclear why past Councils have felt compelled, or whether they were even allowed, to invent alternative procedures for creating a proliferation of informal citizens advisory "committees" ignoring the procedures for and restraints on creating citizens advisory "boards" or "commissions" mandated by the voters in the Charter. The resolutions concerning SEAC are a prime example of the pitfalls of ignoring the charter mandate: SEAC appears to be a standing citizens advisory board of considerable importance, yet its membership may, as established by resolution, include individuals who are not qualified electors of the City, and they are appointed by the Mayor (rather, apparently, than by the Council as a whole) and prior to the clarification in the present resolution they were appointed to indefinite terms. o At an earlier Council meeting, City Attorney Harp himself suggested that unless otherwise stated, the Charter specifies citizen appointments to committees are always for four year terms (apparently making that part of the present resolution superfluous). He is presumably quoting this from Section 702, yet with no explanation of why the Council does not need to observe the other Charter procedures for creating citizens advisory bodies, or under what authority the Council could override the term of service specified in the Charter. Volume 60 - Page 372: "City Attorney Harp believed that Mr. Mosher may be confused on the matter, stating that the Brown Act does not apply when VNB is meeting for purposes not related to the TBID process." February 28, 2012 Council Meeting comments by Jim Mosher Page 2 of 7 o Mr. Mosher believes it is City Attorney Harp who may be confused. As Mr. Mosher explained in his remarks to the Council, all the members of the TBID Board sit on the larger VNB Board, and according to the agenda TBID - related material was clearly being discussed during the larger VNB Board meeting. Therefore, the VNB Board meeting /banquet is itself a meeting of the TBID Board subject to the Brown Act, specifically California Government Code 54952.2.(a). Item 3. Resolution for Street Sweeping Parking Restrictions on Kline Drive G Based on the resolution attached to the staff report it appears that in most areas of the City where there are parking restrictions to facilitate street sweeping, one side of a given street is restricted on one day and the other side on a different day, providing residents and guests with an opportunity to park during those hours. G Based on the staff report it appears that on street sweeping mornings both sides of all streets in the entire section of West Santa Ana Heights of which Kline Drive is a part is posted for no parking, presumably imposing a considerable inconvenience on residents. G It is unclear why this part of the City is not being afforded the same courtesy as other areas, or why the residents are to be informed of the proposed change only after it becomes effective, rather than before. For the benefit of the whole City, the resolution (or the related Ordinance, Municipal Code Section 12.44.150) should clarify the longstanding question of whether it continues to be a violation to park in one of the prohibited areas during the stated hours after the sweeping for the day has been completed. Item 4. Second Reading of an Ordinance Amending Chapter 11.04 of the Newport Beach Municipal Code Pertaining to Rules and Regulations for Parks, Park Facilities and Beaches As previously indicated, this ordinance is poorly written. Three examples: 1. The ordinance apparently wants to distinguish between "Parks" and "Park Facility" yet the two terms are defined together in Section 11.04.020 and in a way that defies interpretation: "Park" or 'Park Facility" means all publicly owned or leased property, grounds, parking lots, roadways, venues, bike paths, walking or hiking trails, parks and park- related buildings, facilities and improvements, together with the sidewalks or walkways abutting or adjoining the same, and any school facilities when they are February 28, 2012 Council Meeting comments by Jim Mosher Page 3 of 7 in use as recreational or community center facilities and under the control of the Director. Taken literally, which is how I assume laws are intended to be taken, the opening phrase says that parks and park facilities in Newport Beach include all publicly owned or leased property. It is unclear, at least to me, if the remaining clauses are meant to broaden this to include specific types of non - publicly owned property to which the ordinance also applies, to remind the reader of typical examples of publicly owned property, or if the ordinance is meant to apply only to the specific examples of publicly owned property enumerated. In the latter case, the definition is circular since "parks" and park - related "facilities" are listed as examples of publicly owned property that constitute "parks" and "park facilities." The reference to "school facilities" adds to the confusion, as these are apparently regarded as publicly -owned only when under control of the Director for specific uses. 2. Also in Section 11.04.020, the definition of "Regulations" gives the Director the power to add "rules, policies and regulations" to those established by the Council. This would appear to me to be an abdication of the Council's policy making role. Any rules, policies or regulations established by the Director should be subject to public review and approved by the Council. 3. Section 11.04.090 regarding "Abandoned Bicycle" adds, without explaining how it will be enforced, new regulations which, it would appear, would cause a bicycle left at the Fun Zone for a trip on the Catalina Flyer (or on a private trip to most anywhere) to be subject to confiscation if the owner does not return within 48 hours. We were told at the first reading that this is not the intent of the ordinance and in practice it would be applied only in cases where the unattended bicycle is creating a safety hazard, yet there is nothing in the regulation indicating this is how it is to be applied. Likewise there is no indication if the City has any obligation to attempt to notify the owner or if the payment of a fee is required to "redeem" the confiscated bicycle. Item 11. Newport Beach Civic Center and Park Project — Approval of Amendment No. 1 to Professional Services Agreement with Allana Buick and Bers for Building Enclosure Waterproofing Construction Monitoring Services This item seems similar to the Big Canyon Reservoir cover fiasco and raises similar questions: Under whose authority was a contract signed in which the manufacturer was relieved of its 10 year warranty obligation unless the City performed certain inspections? 2. Exactly what inspection services did Allana Buick & Bers originally contract to provide? 3. Article XI Section 10 prohibits cities from offering additional compensation once a contract has been entered into. Wouldn't it be more appropriate to enter into new February 28, 2012 Council Meeting comments byJim Mosher Page 4 of 7 contract covering the new work to be performed rather than amending the old contract (making it unclear whether it is the old or the new services for which compensation is being provided)? Any further evaluation of this item is difficult since links to the warranty obligations and the original contracts are not provided with the staff report. Item 14. Request to Retain Private Improvements in the Public Right -Of- Way at 339 Catalina Drive 0 City Charter Section 707(c) gives the Planning Commission the power, and in fact requires them, to make recommendations to the Council regarding "proposed public works." 0 This item seems to me an example of the kind of project which would have benefited by a recommendation from the Planning Commission and the public notice to neighbors and interested parties which a hearing before them would have entailed. Item 17. 19th Street Bridge: Request for a SARX Study Update 0 1 am personally puzzled by the relation of this item to OCTA's SARX Study Policy Advisory Committee to which the Council appointed Council Member Rosansky (and Council Member Hill as alternate) at our January 10, 2012 meeting. According to the OCTA Board's Clerk that committee was disbanded several years ago. 0 That said, I think the first two sentences in the letter to OCTA CEO Kempton could be effectively combined and softened. The second sentence, it seems to me, repeats the first but phrasing it more as a demand than as a polite request. 0 Finally the phrase "desirable by OCTA" in the second to last sentence sounds odd to me. Item 20. Santa Barbara Condominiums: Affordable Housing Implementation Plan and Memorandum of Agreement 0 The recommended action includes approving a Memorandum of Agreement (Attachment B and Exhibit 2 of Attachment A) which extends certain rights and obligations regarding the property from the applicant, New Home Company Southern California, to the property owner, HHR Newport Beach, in the event New Home does not acquire the property. My problem is I see no place for HHR to sign the MOA and I fail to understand under what authority any of the signatories could bind HHR to a contract in which they take no part. February 28, 2012 Council Meeting comments by Jim Mosher Page 5 of 7 0 1 share Mr. Hawkins' concern that a CEQA evaluation made six years ago may no longer be valid, and it seems clear to me that staff is misreading the CEQA Guidelines. The section quoted (Section 15162(a), reproduced in Attachment D) refers to situations in which changed circumstances may require the preparation of an EIR for a project in which a Mitigated Negative Declaration was previously adopted. o The results of staff's analysis may be the same, but the relevant Guideline is not Section 15162(a) but rather Section 15162(b), which states that if the changes do not require the preparation of an EIR (the three Section "a" criteria evaluated in the staff report) then "the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no further documentation." Staff's arguments demonstrating that a full EIR is not required are presumably not sufficient to determine if an update of the negative declaration is needed. Item 21. Reconsideration: Corona Del Mar Coastline Car Classic — Waiver of Parking Fees at Big Corona o It is unclear from the staff report if the Coastline Car Classic has ever paid for use of the parking lot at Big Corona State Beach in the past. C The full content of the "side letter agreement" referred to in the February 14, 2012 staff report also remains unclear, although it is perhaps no longer relevant. The current proposal seems completely contrary to the Council's recent special events policy in which all organizations seeking public support are routed through the Special Events Advisory Committee and based on their recommendations the Council allocates funds to be paid directly to the organization which the organization then uses to purchase City services at their normal rate. The City charges $15 per day for spaces in the Big Corona parking lot, the Cc1M Chamber would like to rent the spaces, and that is what they should be charged. G If the CdM Chamber wants help in paying that cost, they should seek a grant through the SEAC process like anyone else. In the staff report I can find no arguments to the contrary other than that that Chamber would prefer not to go through the process. The premise of the Chamber's alternative offer seems to be that it is sufficient to ensure the City receives the same revenue as it would have received from the parking lot on the same weekend. o Such an offer fails to acknowledge the fundamental reason for the $15 charge which is to pay for maintenance of the facility and to mitigate the inconveniences produced by and extra services necessitated by the parked cars. February 28, 2012 Council Meeting comments by Jim Mosher Page 6 of 7 o Even if one accepts the premise that the City should ignore the increased use and inconvenience to other beach goers, the formula suggested clearly does not give the City the same revenue as it that would have received in the absence of the event: parking usage is clearly declining in September, and the formula uses the following (low usage) weekend and ignores the preceding (high usage weekend). The City's estimate of the revenue it would normally receive should clearly be based on an average of the preceding and following weekends, not just the following weekend when the weather is likely to be colder and school is likely to be back in session. o A more equitable approach would clearly be to assume a fixed number of cars based on a long term average of actual usage in the Big Corona parking lot in the years preceding the car show; but the even more equitable way is equally clearly just to charge the Chamber for the spaces it actually uses at the same rate as everyone else. 0 Complicating all this, it is unclear if the recently adopted Council Policy B -8 permits this event to be held at all. In an effort to keep beaches open to the general public, that policy strictly limits the number and kind of events that can be held on or near the City's beaches, particularly on the weekend for which this is scheduled. Item 23. Corona Del Mar Entry Revitalization Concept Plan 0 As indicated in the staff report, the revitalization plan extends along East Coast Highway from Avocado to Dahlia. It bothers me that if Council is basing its decision on the staff report then it is evidently being asked to approve a concept without having been shown what that concept is except in the single block between Begonia and Carnation. 0 1 share Mr. Hawkins' concerns (expressed at the February 16, 2012 Neighborhood Revitalization Committee meeting) regarding staff's interpretation of the need for CEQA analysis. The purpose of CEQA analysis is to ensure decision makers and the public are aware of the expected beneficial and /or detrimental effects of a project before it is approved, and hence to make better informed decisions. Assuming there is little point in approving a concept unless there is some expectation it will actually be built, it seems reasonable to be informed about the consequences of the concept before endorsing it. Otherwise, if there are problems with the concept the City will be wasting time by approving and pursuing something that has a high risk of ultimately being rejected. o In view of this I feel tonight's vote would be better posed as decision on whether the City should allocate sufficient funds to do a CEQA study of the proposed concept. The concept itself should not be approved until that analysis has been completed, so that the decision can be informed by it. February 28, 2012 Council Meeting comments by Jim Mosher Page 7 of 7 Item 25. Resolution No. 2012 -22 Supporting the Petition to Amend Regulation Section 18705.5 Relating to Council Member Appointments o This item is staff's recommendation that the Council join several other cities in a petition asking the FPPC to modify a regulation requiring Council members to publicly acknowledge when they are appointing themselves to positions which personally enrich them by more than $250 per year. C It bothers me that the Council is being asked to approve this without being shown (at least in the staff report) either the petition they are being asked to endorse or the regulation it seeks to change. C It even more profoundly bothers me that our City Attorney would even think to suggest that acknowledging such appointments is "contrary to sound public policy and good government principles. " G I do not begrudge Council members their due pay for their service on these outside boards and commissions, but it should be noted that under Charter Section 402 -B they already receive compensation for the extra expenses they incur incidental to their service on the Council, and they themselves routinely appoint their fellow citizens to serve on boards, commissions and committees for which they could, but do not, offer any additional compensation (with the exception of the Planning Commission which pays $60 /meeting for up to two meetings per month). C It should also be noted that an accumulation of extra pay for service on boards was at the heart of the corruption scandal in Bell leading to the removal of that City Council. C Hopefully this Council will not embarrass itself by joining in this petition if it is what it appears to be in the staff report. Contrary to what our City Attorney asserts, even if there were no FPPC regulation at all, it would seem to me a fundamental principal of good government and sound public policy to clearly announce whenever an appointment to a position receiving public compensation is being made, and to clearly identify the dollar amount.