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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 12, 2017 Written Comments September 12, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the August 8, 2017 City Council Meeting and August 31, 2017 Special Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in sty, okeo'ut underline format. The page numbers refer to Volume 63. Page 336: Item SS3: "Literacy Coordinator Weiss discussed the literacy program and positive outcomes. Mayor Muldoon read and presented the proclamation to Libra Literacy Coordinator Weiss." Page 336: Item SS4: "Fire EMC MS Division Chief Thompson and Police Sgt. Moore utilized a PowerPoint presentation to describe the TIP program (tiporangecounty.org) and how it assists the Fire and Police Departments and Newport Beach residents and visitors." Page 343: paragraph 3, sentence 2: "He explained why he believed the City Arts Commission and Board of Library Trustees have more freedom through the suggested changes, and added the changes also mists assist staff to do their job." Page 344: sentence 1: "Council Member Dixon noted that about $250,000 was budgeted this fiscal year for arts from various sources, not City Council Policy 1-13 funds; the current budget does not cover new community programs; and the original intent for creating City Council Policy 1-13 was to take over the Balboa Village Theater." Page 347: long second motion: The motion shown in the draft minutes was never made. As stated by Councilman Dixon at 19:45 in the video, and confirmed by Councilman Herdman at 24:30, the motion made at this point in the meeting (and voted on on the following page) consisted solely of adding four "whereas" clauses to the resolution provided in the staff report. See also the following note regarding page 348. Page 348: before Item XII: The minutes omit the discussion that took place after the vote. Councilman Herdman was quite correct in questioning (starting at 36:45 in the video) whether the Council, having agreed to amend the draft resolution in the staff report, had actually voted to adopt it and take the other actions recommended in the staff report. The video confirms they did not. This, again, emphasizes the wisdom of procedure A.1.b on page 5 of what is now City Council Policy A-1, namely: "Question to be Stated. The Presiding Officer shall state (or announce) the motion prior to opening any subject to debate. The Presiding Officer or such member of the City staff as he or she may designate shall verbally restate each question immediately prior to calling for the vote." September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 10 Had this been followed, the need for a second vote adopting the amended resolution and taking the other actions recommended by staff, including making a CEQA finding and amending the budget, would have been apparent. Item 3. Authorize Submittal of Local Coastal Program Amendments to the Coastal Commission Since requests for LCP amendments are essentially requests for approval of California state legislation, I would have thought the limitation to three major amendment requests per year was a kind of extension of the California Constitution's restraint of the legislature to single -subject bills. So I find it surpassingly strange that three major amendment requests on distinctly separate subjects, that would be unacceptable if submitted separately, magically become acceptable if submitted together. But that is clearly what Public Resources Code Section 30514(b) says. I find it equally strange that some of the City's requested amendments have been deemed "minor," for unless I am misreading it, PRC 30514(c) makes it equally clear that "minor" is an even lesser category than "de minimis" and amendments deemed "minor" become effective 10 days after the determination, apparently with no public process at all — although this interpretation seems inconsistent with City staff's statement that the "minor" components of the "LCP Clean-up" will be re -submitted as minor amendments (why would resubmission be necessary if minor amendments are automatically approved?). Among what are now apparently regarded as "minor" are what seems to me the very major deletion of the exemption for the Lido House Hotel from the 35 -foot height limitation declared in the CLUP — "major" to me because, as I have previously noted, it creates a major inconsistency between the LUP and the Implementation Plan (because there is no longer any LUP policy justification for an implementation that allows 65 -foot construction in an area limited by policy to 35 feet). In any event, I have previously commented on most of the items being resubmitted. As to the requested Oceanfront Encroachment Program (LC2013-002), I continue to feel the public and the Coastal Act would be much better served if the City property were used to construct a public "boardwalk" rather than allowing it to be encroached upon for private use. But it is becoming harder and harder to be sure what is actually before the Coastal Commission. Section 1.1 of the latest resolution (staff report page 3-6) says we are seeking "Amendments to the Coastal Land Use Plan Policy 3.13 and the Implementation Plan Appendix C ... as attached in Exhibit A (Resolution No. 2017-50)." If I remember correctly, early iterations of the "Clean-up" omitted the changes to CLUP Policy 3.13, but showed those proposed to Appendix C of the IP. In the present Exhibit A (staff report pages 3-9 through 3-14), 1 find what appear to be proposed amended versions of some of the Section 3.13 CLUP policies, but no hint of what amendments might be requested to the IP (to be sure, staff report page 3-13 is confusingly headed "Proposed Amendments to ... Policies 3.1.3-3 through 3.1.3-9," but shows only Policies 3.1.3-3 through 3.1.3-5, and of those, only Policy 3.1.3-3 appears to be amended -- although September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 10 without redlining, it's hard to tell what, if anything is amended, or if the policies not shown are intended to be deleted). As to the LCP Clean-up, I believe Section 1.2 of the proposed resolution (on staff report page 3-6) was intended to say "2. Portions of LCP Clean-up (LC2017-002) — ", since only three sub- parts of the attached "Exhibit B (Resolution No. 2017-45)" (staff report pages 3-15 through 3- 29) are actually being submitted for consideration, while the rest is to be ignored. Of those parts: 1. Proposed amendment 3 about "protective devices" (bottom of staff report page 3-18) a. The requested amendment appears to be transforming the present requirement for a broad waiver of any right to build protective devices into something confusing applying only(?) to the seaward expansion of existing protective devices with an "authorized footprint." b. I'm not sure I understand the rationale for confining concern to existing devices and their seaward expansions. This would seem to allow a destroyed or obsolete protective device to be replaced with a new and larger one farther inshore. That does not seem consistent with the Coastal Commission's general concern about the long-term impact of protective devices on the shoreline 2. Proposed amendment 6 about "expansion of nonconforming residential structures" (top of staff report page 3-27) a. "Amend Section 21.38.040(6)(1) of the Newport Beach Municipal Code to read as follows, with all other provisions of 21.38.040(G)(1) remaining unchanged:" is baffling. What "other provisions of 21.38.040(6)(1)" are there?? b. Although the corresponding section of the City's Zoning Code (NBMC 20.38.040(6)(1)) was amended by Ordinance 2015-3 to allow expansion of non- conforming residences by 75% (above the previously -allowed 50%), this was accompanied by a list of required conditions which are not reflected in the proposed amendment to Title 21. With or without the amendment, Title 20 has a "within any ten year period" clause that is absent from Title 21, apparently at the request of Coastal Commission staff. So there is already an inconsistency between the two, and the significance of the difference is unclear. The Zoning Code appears to allow a new expansion every ten years. Is the LCP-IP intended to limit the total cumulative expansion allowed from the date the structure became non -conforming? d. The whole matter of whether the correct standard is 50% or 75%, and over what period, might be moot if the next proposed amendment is approved, since the proposed Section 21.52.090.B.1.c.viii (staff report page 3-26) says there is no limit at all to how much the stated limits for additions to non -conforming residences can be "modified." September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 10 3. Proposed amendment 11 (staff report pages 3-25 through 3-40) adding a new Section 21.52.090 about "modifications and variances" seems a muddle a. The orphan paragraph starting "Variances" near the middle of page 3-26 is very strange. Apparently it was intended to be numbered "2" with the following, shorter paragraph numbered "Y. b. In the corresponding section of the Zoning Code (NBMC Sections 20.52.050 and 20.52.090), "modifications" are limited to the particular development standards listed, while variances are reserved for special circumstances and allowed only limited scope so as not to grant special privileges. With this proposed language modifications and "waivers" seem to be given a much wider scope in the LCP-IP, allowing any development standard to be modified or waived unless specifically exempted from that possibility. That does not seem like good policy to me, as it seems to mean that any standard whose modification is not explicitly limited is not really a predictable standard at all. Additionally, proposed Sections 21.52.090. B.1 and 21.52.090. B.1 appear to allow modifications whenever "the strict application of the Implementation Plan results in physical hardships." If "physical hardships" includes not being able to construct whatever the applicant wants to build, that gives extreme latitude to ignore the LCP-IP entirely. The proposal omits important qualifying language in the corresponding section of Title 20: "the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code" (NBMC 20.52.050.E.3). d. Proposed Section 21.52.090.0 begins by announcing it will promulgate requirements for approving "a modification or waiver," but in the body refers to "modifications" and "variances". It is unclear to me if in the proposed amendment the terms "variance" and "waiver" are intended to be regarded as synonymous. e. In the Zoning Code, variances are regarded as exceptional matters that can be approved only by the Planning Commission. Under this proposal, it appears a staff -level "review authority" is free to grant variances from the LCP-IP in the process of reviewing a Coastal Development Permit application. I don't think that's good policy. Section 1.3 of the resolution (on staff report page 3-6), regarding Accessory Dwelling Units, is the clearest, for the "Exhibit C (Resolution No. 2017-51)" it directs the readers to (staff report pages 3-30 through 3-40) uses redlining to actually shows what is requested to be amended. Whether intentional or not, the absence of redlining in the other exhibits, the inclusion of many pages of material that are not actually being submitted by this resolution for consideration by the Coastal Commission, and the omission of some pages that apparently are being submitted gives the appearance of an attempt at maximal obfuscation. September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 10 Item 4. Resolution No. 2017-57, Approving the Side Letter Agreement with the Newport Beach Police Management Association Am I missing something? Police officers in general, and police management in particular, are among the most highly compensated of City employees — and the high pay, as I understand it, is supposedly justified by the danger and stress of the job. So we are offering to pay off-duty police sergeants not just that already very high on -duty pay for high -stress work, but one and a half times it for six hours a month performing the seemingly very un -dangerous, un -stressful and even un -skilled job of detailing motorcycles? Is the City incapable of finding someone who could do this work at a fraction the cost? If not, would it not be in the public's economic interest to ask the police sergeants to do this motorcycle maintenance while on duty (perhaps by tentatively ending their shifts slightly early) so we would only have to pay their normal very high rate of compensation and not one and half times it for the same service — as well as having them still on duty, and hence available to respond if something really dangerous or stressful came up? Not to be flip, but should we, alternatively, consider being even more generous and offering an hour each day of time -and -a -half to any police officers willing to de -stress by washing their private car or catching the latest re -run of Blue Bloods during their off duty time at home? This makes no sense to me. Item 5. Resolution No. 2017-58: Amending the Term of Citizen Appointees and Changing the Meeting Schedule of the Finance Committee It seems strange that Finance staff does not seem to recall that, at least as to place and time, the meeting schedule established by Resolution No. 2015-5 had already been amended, and in much the same way, by Resolution No. 2015-40. In other words, the committee description being redlined by the proposed resolution is not the currently -adopted description one finds on the City webpage describing the Committee. To maintain continuity, it would seem wise to start with the correct existing description and modify it, rather than ignoring it and starting with a previous version. Indeed, I think the existing language about the time, place and frequency of Finance Committee meetings, adopted by Resolution No. 2015-40, is superior to what is being proposed here and should be left in place. As to the other changes being proposed: I agree that, considering all members have equal voting rights, "citizen appointees" is better than "citizen advisors," although I don't really understand what's wrong with September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 10 sticking with "citizen members" throughout (the original term into the present version to describe them). 2. As to the substantive change modifying "annual appointments" of citizen members to be for one City fiscal year, rather than 12 months from the date of appointment, that seems like a generally good idea (for the reasons stated in the staff report (which is oddly dated "September 13"), but it creates an internal conflict with the idea that the nominations are made by individual Council members not on the Committee. a. Not only might the appointing Council member corresponding to a Citizen Appointee disappear in December of an even -numbered year, but the new Mayor typically selects the three Council members on the Committee each January, frequently wanting him or herself to be on the Committee for the calendar year of their tenure. b. This means the Council membership changes by calendar year, which puts it six months out of sync with the proposed citizen membership by fiscal year. In practice, I think this means that for half the year some Council member (a new January appointee) is going to be doubly represented on the Committee (the member plus his existing citizen appointee), while the Council member he displaces will have none. c. I would suggest either: i. Sticking with the current system in which the entire Committee is appointed each January (for the Council members) and February (for the Citizen Appointees); ii. Switching to a new system in which the entire Committee is appointed effective each July 1; or iii. Selecting the Citizen Appointees in July, as proposed, but with clarification that their term ends when the appointing Council member either: (1) leaves the Council, or (2) themselves becomes a member of the Committee. d. The latter qualification may already be an understood part of the Committee description, but could be made more certain by modifying point 3 under "QUALIFICATIONS OF APPOINTED MEMBERS" (cf. bottom of staff report page 5-3) to read: "3. Must be appointed by a City Council Member not on the Committee." The above said, I have never been a fan of the hybrid Finance Committee, and am not sure it is even legal to hold meetings of three Council members joined by four people officially appointed to act as individual "representatives" of the absent Council members. To their credit, I have never seen the current or past Citizen Appointees act in such a way as to say they are representing the views of "their" Council person to the others, but I continue to think the City would be better served with a fully citizens Finance Committee, all appointed by the Council at large (for staggered four year terms, like other BCC's), making truly independent September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 7 of 10 recommendations to the City Council, which could then freshly re-evaluate and discuss the recommendations, with all Council members on an equal footing. Regarding the suggestion to extend the terms of the current Citizen Appointees by six months, I find it doubtful that that could be found consistent with the new Council Policy A-2 or the Maddy Act. The fact that on February 14, 2018 there will be four "scheduled vacancies" on the Finance Committee for which interested citizens may apply, has been advertised by the City Clerk on the "Local Appointments List" for months. To say, now, that the announced openings are not openings after all because the Council has, without even considering other applications, decided to fill the vacancies with the incumbents seems wrong. If the Council wishes to switch to a system of fiscal year appointments, I would suggest it wait until when the current appointments expire in February, and then, after re-examining the makeup of the Committee, and the new applicants (if any), decide to make its February 2018 appointments effective either through the end of the current (FY17-18) fiscal year, or through the end of the next one (FY18-19). Finally, there are a couple of issues about the Finance Committee, unresolved by the present Council -adopted committee description, that could, and perhaps should, be resolved by the revision: 1. Should the Citizen Appointees be subject to term limits? In view of the desirability of injecting occasional new blood, a limit to eight consecutive years of service would seem both generous and consistent with the City's other BCC's. 2. Do the Citizen Appointees serve "at the pleasure" of the appointing Council member? That is, can the appointing Council member at any time terminate the membership of the person they appointed and submit a new appointment for consideration by the full Council (subject to the Maddy Act requirements for filling unscheduled vacancies)? The proposed new language for "TERM OF CITIZEN APPOINTEES" could be saying that, but it's not clear. And in regard to the quest for clarity, in the second of the proposed two sentences, I can detect nothing the word "respective" adds to "their respective successor' Trivially, the last line of Section 3 of the proposed resolution (staff report page 5-7) should read "... irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared invalid or unconstitutional." Item 6. Slurry Seal Program FY 2016-2017 - Notice of Completion for Contract No 8273-1 (Project No. 17R04) 1. This contract was for work in an area where I live. 2. It was my impression the work was executed expeditiously, on the announced dates, and with a minimum of inconvenience of residents. 3. 1 leave it to the City's experts to evaluate the quality of the work, but on many streets I noticed what seemed to me more than the usual number of tracks left in the new September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 8 of 10 pavement, apparently caused by allowing vehicles onto the streets before the surfaces had sufficiently cured. 4. 1 do not know if it was part of the contract, but I have also noticed that some of the streets (such as my own) are still missing some of the striping they previously had. 5. In the explanation of the change order on staff report page 6-2, although it is not included in the Location Map of Attachment A, I understand the "Castaways bike trail" as it is a public trail in a City parkway, but I have trouble with "Breakers Drive" and the "Balboa Peninsula Trolley parking lot." a. I thought Breakers Drive was a private gated street. Is the City responsible for its maintenance? If so, why is it gated? b. I thought the Balboa Peninsula Trolley was using, under some kind of agreement, a portion of the private Hoag Lower Campus parking lot. Did the City agree to repave the private lot as part of that agreement? Or is this referring to some other lot? Item 7. Big Canyon Restoration and Water Quality Improvement Project - Notice of Completion for Contract No. 8111-1 (Project No. 15X12) 1. In the summary report, does "Actual Time Under (-) or Over (+) = 42" when "Allowed Contract Time + Approved Extensions (days) = 155+48" mean the extensions were completed in 42 (instead of the allowed 48), or that the project took 42 days more than the total approved time plus extensions, that is 155+48+42 days? (I would guess the latter). 2. These reports typically include a brief explanation of the change orders. I am unable to find that here. 3. Given the final statement, that the success of the plantings will not be known until October 19 (and the implication there might be additional contractual obligations if they are not successful), would it not be prudent to delay release of the bonds until the result is known? Item 11. Approval of Amendment No. 2 to Professional Services Agreement with Stantec Consulting Services, Inc. for Big Canyon Reservoir Flow Metering Vault and Treatment Improvements (Project No. 16W13) 1. It might have been helpful to have mentioned the need for this additional contract when Item 7 was presented at the Council's August 8, 2017, meeting ("Big Canyon Reservoir Flow Metering Vault and Treatment Improvements — Award of Contract No. 6104 (16W13)"), and likewise to mention the award of that contract in the present report. September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 9 of 10 2. It sounds like the present contract is a mix of requests for payment for services already performed and budget for additional services to be performed over the remaining term of the contract. It is my belief that municipalities using public funds to pay for work performed without a contract is of questionable legality under the California Constitution. One hopes City staff will be more vigilant about avoiding such situations in the future. 3. Since the staff report for Item 7 on August 8 did not reveal the expect construction schedule, it is difficult to assess if the current request to extend the term of amended contract for construction support services to December 31, 2018, is appropriate. In that regard, since when construction projects are completed it is customary to review whether they met both the cost and time expectations (see Items 6 and 7, above), it might be helpful, when construction contracts are awarded (as Item 7 on August 8) to inform the public not only of the expected cost, but also of the expected schedule. Item 12. Approval of Amendment No. One to Agreement with Park West Landscape Maintenance, Inc. for Landscape Maintenance of Medians and Roadsides I do find the words "prevailing wage" in the staff report, although I would guess that part of staff's impetus for wanting to extend the current contract rather than see if a lower cost could be obtained by competitive bidding is not so much that Park West is doing an outstanding job, as that the current (and extended) contract allows use of workers at less than prevailing wage, whereas a new contract (like Item 13, see agenda packet page 13-10) would not. If that is indeed the case, it would seem to me that as an important policy matter this should be a frank part of the public discussion, and not a consideration privately communicated to the Council members outside the staff report or public meeting. Item 13. Approval of Agreement with Pacific Plumbing Company of Santa Ana for Plumbing Services The report notes that "Pacific Plumbing is the current incumbent and has received excellent reviews by City staff during their tenure." However, Hoffman Southwest is also an incumbent, and, indeed, when the just -expired contracts were awarded as Item 13 at the Council's August 12, 2014, meeting, Hoffman was reported as receiving a higher score than Pacific (65 versus 61, with Verne's Plumbing receiving 46), as a result of which Hoffman was given an up to $120,000 per year contract, with Pacific receiving at most $60,000 (although the City Charter requires the City Clerk to retain all contracts, those two — as they might have been amended? -- are no longer visible on the City's public website because, for unknown reasons, contracts are made invisible as soon as they reach their termination date). Now we seem to feel that Hoffman provides less good service than Pacific at a much higher price, and Verne's is rated between the two. Comparison with the 2014 report raises these questions: September 12, 2017, Council Consent Calendar Comments - Jim Mosher Page 10 of 10 Why was it considered desirable in 2014 to have two on-call plumbing vendors, and now only one? 2. Usually costs increase. In 2014 we anticipated $180,000 per year of on-call plumbing expenses. The present report appears to be requesting a smaller amount: $432,100/3 = $144,000 per year. How much have we actually been spending? Item 15. Acceptance of 2017/2018 State of California, Office of Traffic Safety DUI Enforcement, Awareness and Traffic Safety Programs Grant PT18102 The bulk of the grant is going to the "Overtime, Safety" account, and the last paragraph of the Discussion (staff report page 15-3) explains "Almost all DUI efforts involve overtime, as they are unique and short-term assignments that do not involve the personnel normally scheduled during DUI enforcement shifts. In other words, we retain the same number of officers on patrol even as we have other officers work a DUI enforcement activity." One has to wonder if there is not some creative way to avoid paying for the grant hours at time and a half. For example, is there enough overtime work throughout the Police Department that it would be cheaper to hire additional full or part-time officers whose sole function would be to spend their day performing "overtime" work at regular pay (or filling in for other officers who could then perform the grant work at regular pay)? Item 16. Agreement with All City Management Services, Inc. for Crossing Guard Services 1. The staff report does not seem to disclose the status of the current contract, which I assume is expiring (but can't verify at the moment because the Laserfiche search engine reports it's "off line"). 2. It also fails to address the obvious question of whether the School District has offered to assist with this very necessary cost, and if not, why not? The biggest contributor to the Newport Beach General Fund is property tax revenue, and the School District receives far more of that revenue than the City does. It would seem they have some moral, if not legal, responsibility to assist with the safety of their students. 3. Independent of the School District offering to assist, the report also fails to mention if there are grants available that would help defray the cost, and if there are, whether they have been pursued? Item 20. Appointment of Board Member and Alternate Board Member to the Metro Cities Fire Authority The meetings of this Joint Powers Authority are not well publicized on the City website, even though they can often be "attended" by teleconference from City Hall. It is good that Metro Cities now posts their meeting materials on their website (under JPA).