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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED FEBRUARY 13, 2018 WRITTEN COMMENTS February 13, 2018, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( limmosher6d�yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 23, 2018 City Council Meeting and January 29, 2018 Planning Session The passages shown in italics below are from the draft minutes with suggested corrections indicated in format. The page numbers refer to Volume 63. Page 425, last paragraph, sentence 1: "George Schroeder noted that, if the City did not use OCTA's grant funds, it they would have been allocated to other programs in the County." Page 428, Item XIII, paragraph under first bullet: "The City Council concurred to place the matter on a future agenda." The implication is the concurrence was not unanimous, but it is not possible to determine which Council members voted for this (as the Brown Act would seem to require). The concurring members should be named. Page 432, paragraph 2: "Roger Lockhart believed a dynamic parking plan needs to looked at, even Citywide." Page 435, paragraph 1: "Bail Tdm Vartar [Piroumian] asked the City to make crime prevention a higher priority, noting the increase of crimes in the Dover Shores neighborhood." Page 435, paragraph 2: "In response to Carmen question, ..." Page 435, paragraph 4 from end: "Dennis Baker discussed the benefits of having County C eriff s Depa#tmenf City staff patrolling the harbor versus having County Sheriff's Department staff do the patrolling." [Dennis thought City staff would be "more invested" in a good outcome than County Sheriffs, not the other way around] Page 435, paragraph 3 from end: " Vicki Cubeiro relayed an incident she experienced and expressed safety concerns relative to Mooring Field B, believing it was not posted properly." Page 435, paragraph 2 from end: "Carmen requested and received confirmation that it would cost $17 million to remove the legacy material, ..." Page 436, last paragraph: "Adriana Fourcher suggested moving forward with Concept 2 (start the General Plan Update now) to set the scope and determine which elements are priority." Page 437, paragraph 2: "Jim Mosher suggested using the Community Newsletter as a public communication tool for the update process, cautioned about going too far with a comprehensive General Plan Update without having the Regional Housing Need AIIec-ation Assessment (RHNA) numbers, noted that the Harbor and Bay Element also needs to be considered when considering land uses, and explained his definition of "compliant."" February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 2 of 10 Page 437, paragraph 6: "Council Member Dixon noted that State mandate mandates will drive the timing of the General Plan Update, but the City should try to do something." Page 438, paragraph 4: "Mayor Pro Tem O'Neill encouraged everyone to sign up for Nike: Nixie and log onto newportbeachca.gov/GIS" Page 438, paragraph 7: "Carol Drew Dry expressed concerns about vehicle break-ins and drug use near her home on Kings Road and requested more policing in the area." Item 3. Electronic and Paperless Filing of Fair Political Practices Commission Campaign Disclosure Statements General comments: While paperless storage of documents is wonderful, and to be commended, the City Clerk's Office (embarrassingly) has no facility for displaying paperless documents to the public. In particular, if one wants to visit their office to view the unredacted paper documents, as one can do now, how will that work? Or will unredacted documents now be disseminated electronically on request, free of charge? 2. The "Funding Requirements" section of the staff report mentions a company or software called NetFile, but the "Discussion" provides no explanation of who they are or examples of their work. Will the electronic documents be stored onsite at City Hall or at some other location under the control of a private third party? If the latter, what happens if that entity goes out of business or changes the terms of their contract? 3. The "Funding Requirements" section likewise says NetFile will be used for filing "economic disclosure statements" (presumably Form 700), but no further explanation is provided. Is additional legislative action by the Council needed for this to happen? Does this mean Form 700's filed in Newport Beach will be viewable online (they are not now)? 4. The staff report says it will use the word "Committees" to refer to "elected officers, candidates and committees." Curiously, the proposed ordinance does not avail itself of that economy (by inserting "Committee" among its Definitions), but instead proposes to insert the full list into our Municipal Code some 13 times. 5. More substantively, the list provided in the law cited (Attachment B — California Government Code Section 84615), is "elected officer, candidate, committee, or other person." Are we purposely excluding the "or other person" part? I know I and other people in Newport Beach (who are not officers, candidates or committees) have been told we had to file "Major Donor" reports with the City Clerk. Will those reports be eligible for electronic filing? Or are we requiring major donor reports (by individuals) to be filed on paper? [note: The origin of this filing requirement is not clearly explained in the FPPC notices, so I don't know if it is found in "Chapter 4 of the Political Reform Act" or somewhere else.] February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 3 of 10 6. It is not clear to me how the electronic signing of documents (in this case possibly by multiple persons, such as a candidate and treasurer) works, or how anyone knows the person "signing" is actually who they purport to be. 7. None of this, of course, solves the problems of organizations politically active in Newport Beach, like "Residents for Reform," skirting FPPC rules by filing disclosures with the County Registrar, so the documentation available through the City Clerk shows only expenditures and not the source of contributions. Hopefully the County Registrar has also fully transitioned to electronic filing and will make those filings more readily accessible in upcoming election cycles. Specific comments on the proposed Ordinance 2018-1: First "Whereas": "WHEREAS, the City of Newport Beach ("City') desires to add the option of filing Campaign Disclosure Statements by elected officials, candidates, or committees e'e^tronc- a electronically;" 2. First part of proposed Section 1.26.020.A: "... according to procedures established by the City Clerk. These procedures shall ensure that the online system complies with the requirements set forth in California Government Code Section 84615." a. The highlighted sentence makes the purpose of much of proposed Sections 1.26.030 (Procedures for Utilizing Online Filing) and 1.26.040 (Availability of Statements for Public Review; Record Retention) unclear and possibly redundant. b. Those sections list some of the procedures required for compliance with Gov. Code Section 84615 (which the Clerk is already required to implement in her separate set of procedures referred to above), but not all of them — such as that the "signatures" be under penalty of perjury. c. Is the idea that the Clerk will copy the procedures from the ordinance into her procedures, then add enough to bring them into complete compliance with the Government Code? 3. Last part of proposed Section 1.26.020.A: "unless exempt from the requirement to file online pursuant to California Government Code Subsection 84615(a), or any successor statute, because the officer, candidate or committee receives less than $1,000 in contributions and makes less than $1,000 in expenditures in a calendar year." a. Subsection 84615(a) allows the local agency to set its own dollar thresholds, or exclude certain classes of filers, but the basic exemption thresholds of $1,000 stated here are not found in Subsection 84615(a), but rather in the opening language of the whole Section 84615. b. Unless the City is trying to create special exemption rules as permitted by Subsection 84615(a), it probably shouldn't be citing that subsection. c. Whatever the purpose of this clause, are the exempt entities allowed to use the electronic filing system if they wish to? Or do they have no filing requirement at all -- and are, indeed, prohibited from filing, even on paper? February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 4 of 10 4. Section 1.26.030.A: "Until December 30, 2018, an elected officer, candidate, or committee may choose to opt -in to the electronic filing system by electronically filing a Statement that is required to be filed with the City Clerk pursuant to Chapter 4 of the Political Reform Act, or any successor statute. Once the elected officer, candidate or committee has opted -in, all subsequent Statements shall be filed electronically. Aon by filing original Statements i paper formatwith the City Clerk-. elected ' candidate or committee shall file all original Thereafter in pape fig mat with the Cit., Cie #*-. From and after December 31, 2018, electronic filing is mandatory unless the officer, candidate or committee is exempt as described in NBMC Section 1.26.010(A), or any successor statute." a. Since "opting in" is voluntary, I can think for no reason for needing an "opt -out" option. And even if it was needed, I cannot see why it would be implemented as described, which is to prohibit anyone who files on paper from filing electronically until December 31. Why would we want to prohibit electronic filing? b. With the indicated section removed: before December 31 anyone can start filing electronically at any time they like, but once they have decided to do that, they have to continue and cannot go back to paper. What is wrong with that? 5. Section 1.26.040.8: "From the date filed, the City Clerk's Office shall maintain a secured, official version of each online or electronic statement which shall serve as the official version of that record for purpose of audits pursuant to the City's Records Retention Schedule." a. At a minimum, the highlighted passage is ineptly drafted since (to the best of my knowledge) there are no "audits pursuant to the City's Records Retention Schedule." Exactly what it is trying to say is unclear to me, especially since Newport Beach's Records Retention Schedule, and whatever it may say, is a copyrighted document whose content is revealed to the public only through personal inspection of a hardcopy in the possession of the City Clerk. b. The state law shown in Attachment B appears to require a minimum 10 year retention, after which the documents are to be "archived in a secure format" (apparently meaning they will be retained forever), which may or may not coincide with the City's Records Retention Schedule. 6. Since Section 1.26.040 is entitled "Availability of Statements for Public Review; Record Retention," it is curious: a. It doesn't enlighten the public as to how long the documents will be available for inspection on the Internet. b. It doesn't clarify how the City expects to fulfill the state law requirement that the unredacted documents be freely available for public inspection. I think it is important for the City Council to set these policies, and not leave them to the discretion of the City Clerk. In particular: will the filings be visible to the public for the full February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 5 of 10 10 years? How will the archived documents be made visible after that? Will one have to visit the Clerk's Office in person to see the unredacted versions, or will they, on request, be posted electronically? In that connection, I do not personally know what the current policies are. From the City website, it looks like some political action committee disclosures remain posted for 10 years (or more?), but ones from Council candidates (at least those no longer in office) seem to be removed from the Internet after 4 or 5 years. I don't know if they are retained on paper beyond that. Item 4. Council Policy Manual Update: Harbor and Beaches "H" Policies 1. Having City Council policies reviewed by citizens, rather than solely by City staff, is very commendable. 2. As the Council may recall, on August 8, 2017, as part of agenda Item 18, it not only directed the Harbor Commission to review the "H" policies, but also the Finance Committee to review the "F" ones, and the Planning Commission to review the "U"s. 3. In my view, Policy H-1, which has to do with allowable pier encroachments into the harbor, as recommended for approval by the Harbor Commission on January 10, 2018, needs more than review by the City Attorney. The minutes of the January 10 meeting are not yet available, but my recollection is the Harbor Commission recommended they be given authority to allow deviations of any magnitude from the policy, with questions about what the City's standards are, and consistency with them, to be resolved by appeals to the City Council. I would have thought the policy already set well thought-out boundaries, and deviations would be rare and granted only pursuant to clear findings and limitations. The elimination of limits seems to me to be an elimination of the policy, leaving decisions to the whim of the decision makers, using standards invented on the spot. 4. Proposed Policy H-2: a. "The Council will utilize information available from other regulatory agencies, such as the Regional Water Quality Control Board, the Orange County Health Care Agency, the U.S. Army Corps of Engineers, and the Mate state Division of Boating and Waterways Division to further improve Bay water quality and meet or exceed the California Department of Public Health Ocean Water -Contact Sports Standards." [the first reference could equally well be "State Parks Division of Boating and Waterways" — while the latter reference is apparently to standards of the sort enacted by AB 411 in the 1997-8 legislative session and elaborated in Title 17 of the California Code of Regulations, although if the last revision of this policy was truly on January 24, 1994, then it could be a reference to something else. Was this checked with the City's water quality people as to whether standards of that name are still current?] February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 6 of 10 5. Proposed Policy B-2: a. It is not clear the City has, anymore, any employees officially designated as "Natural Resources staff." Although the Harbor Commission seems to see them as residing exclusively within the Recreation and Senior Services Department, I would see them as equally likely to be within Public Works (for example, in relation to water quality) or possibly even Municipal Operations. b. However, I agree this is not particularly a "Harbor and Beaches" policy, since it appears intended to apply equally to sensitive inland natural areas as well (such as Buck Gully and Big Canyon, and perhaps others we don't completely recognize today). c. In that regard, the present online Council Policy Manual web page misquotes the title of this policy as the "Newport Beach Sensitive Marine Areas" policy. That is not the correct title. As noted above, it is for all "sensitive areas," not just "marine" ones. To make that more clear, should "Natural/Marine" in the title be corrected to "Natural and Marine," or even better, simply the "Newport Beach Sensitive Natural Areas" policy, since "marine" is a subset of "natural"? d. The "State Fish and Wildlife Department" is more properly the "state Department of Fish and Wildlife." e. Some words seem missing from: "Natural Resources staff assigned to natural/marine areas shall educate others on the rules and regulations for the purpose of conserving these resources for future generations." (without words of this sort, this is not a policy command, but rather just a vague statement of what the Council would expect to be happening in the absence of a policy) 6. Proposed Policy H-4: a. Like proposed Policy B-2, it might be noted this policy about the Dory Fleet is not quite properly within the purview of the Harbor Commission, since the fleet does not operate in the harbor. It is, however, a "Harbors and Beaches" policy. b. "The Dory Fishing Fleet, founded in 1891, is a historical landmark designated h� the Newport Beach Historic -a! Sec -ie recognized in the Newport Beach Reaister of Historical Property and in the Historical Resources Element of the General Plan." [The latter recognitions seem more relevant to Council Policy than an outside designation by a private historical society.] c. "All products offered for sale to the public must be locally caught products. ("Local" shall be defined as those products caught in the navigable waters between the United States/Mexico border ftm to the south and Point Conception (34.4486°N, 120.4716° W) to the north.)" d. "There shall be a maximum of 20 dory storage sheds no larger than 48' 10' by 10, with roof ridge heights not to exceed 9 feet. The size, type of construction and architectural style shall be developed with input from the Dory Fleet." [The sheds February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 7 of 10 appear to be intended for the storage of equipment, only, and not for storing the "dorys." Should the policy limit the allowable number of boats?] e. "Dory vessels will ingress and egress immediately eoean ward oceanward of their designated beach zone." 7. Resolution No. 2018-3 (Attachment H) a. "WHEREAS, the Harbor Commission formed ad hoc committees to review the H Policies with interested parties ..." [when decisions are left to ad hoc committees meeting without public announcement, one has to wonder who the "interested parties" are, and how they are selected] b. "WHEREAS, the Harbor Commission recommends the City Council revise the H Policies as shown in Exhibit 1;" [this would have to be modified if the Council wishes Exhibit 1 to differ in any way from the Harbor Commission recommendations] c. "WHEREAS, the Harbor Commission further recommends the City Council renumber City Council Policy H-3 as City Council Policy 8-2 because the policy contemplates action by the City's Recreation and Senior Services Department." [as indicated above, the departments that might be expected to act on this seem less obvious than that] Item 6. Resolutions Supporting Submission of Grant Applications Under the Orange County Transportation Authority (OCTA) Measure M2 Tier 1 Environmental Cleanup Program, and the Ocean Protection Council's (OPC) Proposition 1 Grant Program Resolution No. 2018-5: Page 6-5, next to last paragraph: "WHEREAS, the City shall cause work on the Projects to be commenced within a reasonable time after receipt of notification from OCTA and that the Projects will be carried to completion within with reasonable diligence;" Page 6-6, first paragraph: "WHEREAS, the City shall include all projects funded by Net Revenues in the seven-year Capital Improvement Program as part of the Renewed Measure M Transportation Ordinance and Investment Plan eligibility requirement;" The capitalize term "Net Revenues" was evidently intended to be defined somewhere, but it does not seem to have been. I am unable to guess what it refers to. Page 6-6, Section 2: "The City Council does hereby authorize the City to accept fundsforfrom the Program, and authorizes the City to fund its share of the costs of the funded Projects and any additional costs over the identified programmed amount." February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 8 of 10 Resolution No. 2018-6: Page 6-9, Section 7: "The City gives the State permission to publish any digital image provided for Program funding to its website and to cropGf cropsor resize the image." Page 6-9, Section 9: "The City shall comply with the provisions of Section 1771.5 of the State Labor Code regarding payment of prevailing wages on Projects awarded Proposition 40 Funds." [What is Proposition 40? Was this intended to say "Proposition 1"? or "Program"? The fact that Funds is capitalized suggests "Proposition 40 Funds" was intended as a defined term. But it is not defined.] Page 6-10, Section 15: "The City agrees that for all property acquired with Proposition 1 funds, the City shall accept, sign, notarize and record a declaration of covenants, conditions and restrictions (deed restrictions) which attaches the conditions of the grant, as set forth in the grant agreement, on the use and enjoyment of the property until the end endin_p land tenure date specified in the grant agreement." [?, not sure about "ending"] Page 6-10, Section 16: "The City appoints the City Manager or designee, as agent to conduct all negotiations; and execute and submit all documents including, but not limited to applications, agreements, payment requests and so on, which may be necessary for the completion of the aforementioned Projects." Item 8. Issuance of City Council Subpoenas to Investigate Alleged Voter Fraud in the Unsuccessful Recall Signature Gathering Effort From the minutes of the Council's January 23, 2018, meeting, it appears this agenda item was requested by Mayor Pro Tem O'Neill, but has come back without having been voted on for inclusion on a future agenda. According to press reports, this was done at the request of the Mayor as permitted by the new City Council Policy A-1 (formerly A-6). That policy seems of questionable consistency with our City Charter, under which the Mayor fills a largely ceremonial role, not an administrative one, and is not supposed to have any special legislative powers not enjoyed by the other Council members. 2. The staff report does not indicate whether the Council plans to hold the hearings resulting from the subpoenas in public, or will interrogate the witnesses behind closed doors under some purported "anticipated litigation" exemption to the Brown Act or through some subcommittee whose meetings would not be publicly announced or through city employees who would privately inform the individual Council members. I would not support this action at all if its intent is any of the latter — in which case the general public would likely never know the result. In my view, the purpose of free governments is to produce an informed citizenry, not just informed representatives. February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 9 of 10 Item 10. Final Tract Map No. 17555 for a 23 -Unit Residential Condominium Development located at 3303 and 3355 Via Lido Although (as best I can tell) not mentioned in the staff report, this (apparently identical) item was previously before the Council as Item 5 at its January 9, 2018. At that time, I confessed my ignorance of exactly what the Council is supposed to review and approve about these highly technical documents. I remain ignorant. But if any of the Council members have become educated in the interval, I would think it would be helpful for them to share their new knowledge with the public — and if processed on the Consent Calendar, the opportunities for doing that seem limited. Regarding the approvals the Council is being asked to provide "pursuant to Section 19.36.010 of the Municipal Code," I believe the opportunity to do that has passed. Although again not mentioned in the staff report, NBMC Section 19.36.010.D (echoing Cal. Gov. Code Sec. 66458). suggests that if the Council fails to act by the meeting following the one at which the map was presented (which in this case is to say by the January 23, 2018, meeting), the map is regarded as having been approved by inaction, and the City Clerk is supposed to have certified it as approved. The only exception would be if an "authorized extension" had been granted, and it would seem improbable that a Council's decision to table or continue an item would qualify as that (if it did, it would render meaningless the state's requirement for prompt action). In any event, the approval of the final map seems a largely ministerial act, and the Council's latitude to change course from what was approved by a previous Council on a tentative map is limited to non-existent (Gov. Code Sec. 66474.1). Item 12. Enhanced Services and Priority Communications Zone Master License Agreement with Verizon Wireless 1. Given the City's large investments in the County 800 MHz communication system, it seems strange our safety personnel rely so heavily on other communication technology and private providers. 2. Although this is being marketed as something being installed at the City's request for the benefit of safety personnel, does it not serve Verizon's private customers as well, giving Verizon a leg up in the market? 3. Although the report says cellular providers are required to route all 9-1-1 calls they receive, I thought different carriers operated on different frequencies, so is Verizon really able to route calls from all phones? 4. The report does not clearly disclose the lost revenue from allowing Verizon free use of City poles. Assuming a rental of something like $1,000 per month per pole, the lost revenue over ten years would appear barely to equal the cost of installing the promised new data circuit to the Police Headquarters, the route of which is also not clearly identified. 5. The Agreement (staff report page 12-7) cites NBMC Sec. 20.49.020(C)(5) for an exemption from the normal notice and review procedures which are supposed to protect residents from February 13, 2018, Council Consent Calendar Comments - Jim Mosher Page 10 of 10 unexpected cell site installations. I believe that is a very bad policy, which has already, in the case of the Southern California Gas Company's Advance Metering Program been used to approve above -ground telemetry sites with no public review at all. 6. The Agreement includes simulations of proposed installations, some better than others, including alternative designs for the same site. The significance of this is not immediately obvious. 7. Despite the escape clause of NBMC Sec. 20.49.020(C)(5), this seems, cumulatively like a lot of new development in the Coastal Zone, including some new poles in Newport Coast, and a particularly ugly design for The Wedge (staff report page 12-43). 1 find it hard to believe this all exempt from the state's requirements for Coastal Development Permits, but no mention of that (that I can find on a quick review) is made in the staff report. 8. It is curious the Agreement, which has not yet been signed, already requires an Amendment No. 1, which the Council is apparently being asked to approve. Item 14. Planning Commission Agenda for February 8, 2018 - canceled This cancellation was unusual, and perhaps unprecedented, in that despite a majority of the Commission being available, an agenda, including staff reports, having been posted, and many public comments received, the meeting was canceled by City staff hours before its scheduled start. The announced subject of the meeting was a discussion of how residential development standards in the Cliff Haven area might be adjusted to address concerns about fire access through side yards and the construction of overly -large homes. The ostensible reason for the cancellation was that the public comments indicated the issues raised in Cliff Haven were of concern citywide, and Cliff Haven should not be discussed separately. I would suggest that hearing staff's suggestions for Cliff Haven, and the Planning Commissioner's reactions to them — as an example of what might work citywide -- would have been a useful exercise for all.