Loading...
HomeMy WebLinkAbout10 - AB 1196 (Harper) and Contract with Don Schmitz and Associates - CorrespondenceApril 24, 2018, Council Agenda Item 10 Comments The following comments on an item 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 10. AB 1196 (Harper) and Contract with Don Schmitz and Associates Setting aside that the Coastal Commission vote on AB -1196 is misquoted in the staff report (characteristic of the fog of misinformation that has surrounded this item, it was 9-3, not 8-3), it is good to see the words "Port Master Plan" appear, for the first time ever, in a Newport Beach agenda (albeit in the fine print). That said, it should be clear this matter has been grossly mismanaged from start to present, with a great many things being done completely backwards to the normal expectations, with generally disastrous results. Among other mistakes, the yet -to -be -produced matrix of options promised at the end of the staff report is clearly something that should have been carefully reviewed by the Council before embarking on this effort at all. Of the recommendations offered, I favor "d" (abandoning the effort entirely for 2018) and could support "b" (asking staff to report on other options), but am adamantly opposed to "c" (continuina to Dav the comedv team of Schmitz and Henschel). Indeed, I don't know why the City paid Schmitz anything to get a reaction from Coastal Commission staff, since as their Director said on April 12, anyone on the City staff could have simply called them. Why the City Should Terminate its Involvement with Schmitz and Henschel To expand on recommendation "c", in my opinion, the contract should have been terminated, and a refund sought from Messrs. Schmitz and Henschel, the moment it became clear they had not only led decision makers down the garden path to an unrealistic pipe dream, but materially misled the City. The most glaring public example of that came on March 27, when Mr. Schmitz was arguing for the Council to award a $16,000 per month/$120,000 contract to himself (as Item 16 on the Council agenda), and in response to Council comments that they did not want to push something that would be opposed by the Coastal Commission, he said that although the Commission itself might support, oppose or be agnostic about AB -1196, in view of the freeing up of administrative resources "1 think it will be warmly received [by Coastal staff] ... And 1 will make sure 1 keep you in the loop." Subsequent testimony at the Coastal Commission's April 12 meeting indicated the Commission's Legislative Analyst had conveyed Commission staff's opposition to AB -1196's pre -cursor, AB -2464, and explained alternatives, to Assemblyman Harper's office and, at length, to Mr. Henschel on February 22. And the Commission's Executive Director recalled letting "the April 24, 2018, City Council Agenda Item 10 Comments - Jim Mosher Page 2 of 4 City" know Commission staff would oppose such a bill at the Commission's February meeting in Cambria, even before it was introduced. This is surely information Mr. Schmitz would have been aware of, but chose not to share with the Council, on March 27. It is understandable that Mr. Schmitz would not have conveyed this information to the Council, since it would have meant there would have been no contract for him, but I cannot see it as behavior that should be rewarded. I find it unfortunate that under the terms approved on March 27 the City Manager has to give Mr. Schmitz seven days' notice, and pay him an additional $4,000 to get out of the contract. I will very much look forward to seeing the "reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form," which he is required to deliver to the City in response. In view of his generally misinformed presentations to the City Council, the Chamber Marine Committee and the Coastal Commission, I don't expect to see much in return for the $40,000 or more we will have spent on this for him alone — which makes me wonder what we got in return for the $800,000 or so we have paid him on other contracts (apparently starting with Item 17 at the Council's June 8, 2010, meeting). Indeed, my impression, is he has, strangely, only the loosest familiarity with the Coastal Act, perhaps best exemplified by promoting a bill that would add "Newport Beach" to only one of the three places in the Act where the list of ports having special privileges is mentioned. But the misinformation goes well beyond that. Mr. Schmitz seems to have created the impression that a PMP was needed to simplify dredging of the harbor's navigation channels, when in fact dredging approved by the Army Corps of Engineers has always been exempt from Coastal Act permitting requirements — and dredging around private docks is already covered by a general permit. He similarly promised the Council that under a PMP none of the City approvals could be appealed to the Commission, when that is clearly not what the Coastal Act says. And on and on and on. Not to mention that he was singularly ineffective and unprepared in speaking to the Commission. Takeaways The number one takeaway from this fiasco would seem to be a city should not introduce legislation without thoroughly thinking through why it is needed, why it is being proposed in the form it is, what the costs and savings would be, and without having credible responses to the arguments that might be raised against it. The number two takeaway, at least in my mind, is that continuing to push to have the Coastal Act amended to allow a PMP for Newport Beach is not only an utter waste of money, but will further damage the City's relationship with the Coastal Commission. April 24, 2018, City Council Agenda Item 10 Comments - Jim Mosher Page 3 of 4 Constructive Suggestions Before doing anything more in this particular field, it seems clear the Council needs some basic information. Developing that information should not require, and indeed is likely to be impeded, rather than helped by an outside consultant: if we take Coastal staff at its word, they would happy to develop it in a dialog between their staff and ours. Additional discussion could clearly, and beneficially, take place before the Council's Harbor Commission. The needed information obviously includes: 1. What are the current CCC permitting requirements for dredging? a. How many are there each year? b. What do they cost? c. My belief is most are either exempt public works or covered by the RGP-54 2. What are the current CCC permitting requirements for docks? a. How many are there each year? i. Mr. Schmitz put the number at over 90 ii. I could find less than 18 on the CCC agendas, mostly on the administrative or consent calendar b. What do they cost? c. Is CCC approval required for maintenance/repairs or only for new docks and reconfigurations? (I believe it is only the latter) 3. How many permits for City -sponsored work to the CCC? a. Is there any application cost involved (I believe there is none) b. Has there been any great difficulty getting them approved? c. Could City staff have done as well as a consultant? 4. Who has permitting authority for seawalls? a. Mr. Schmitz has implied a PMP is necessary for the City to "take control" b. I believe they may already be covered by the City's LCP (with the possibility of appeal to the CCC) i. Case in point: the City Zoning Administrator approved the capping of the Balboa Island seawall and routinely signs off on seawalls protecting private homes April 24, 2018, City Council Agenda Item 10 Comments - Jim Mosher Page 4 of 4 5. What are the advantages and disadvantages of a Public Works Plan work under the Coastal Act? a. The CCC Director, at the April 12 meeting, appears to have referenced the definition of "Public Works" in Section 30114 of the Coastal Act as including "All public transportation facilities, including streets, roads, highways, public parking lots and structures, ports, harbors ..." (other than the four named ports covered by Chapter 8). b. Would this cover future plans for all structures within Newport Harbor, or just, as the definition implies, the "public transportation facilities" within the harbor? c. Would any of this apply to the Marine Protected Area north of the Bay Bridge? 6. How do Master CDP's work? a. The existence of these does not seem to be clearly spelled out in the Coastal Act, but they do seem to be approved on occasion. b. The RGP-54 seems to be an example (the "GP" standing for "General Permit") c. For what kinds of development can they be issued? Added Notes I have previously submitted written comments on this item when the contract with Schmitz and Associates was before the Council on March 13 and March 27, as well as orally when the idea of pursuing a Port Master Plan was unexpectedly broached at the Council's January 29 Planning Session. I did not comment on it when as Item 7 on the Council's February 13 Consent Calendar what appeared to be a routine statement of objectives discussed at the January 31 Planning Session seems to have been taken as authorization for staff, in consultation with whatever Council members it might choose, to proceed with introduction of Port Master Plan legislation without any further direction, review or input from the Council as a whole (let alone the public). I remain disturbed that the vague discussion on January 29, undertaken without any specific advance public notice, could have turned into "action" on February 13, again without any specific notice on the agenda that the future of the Port Master Plan idea was to be discussed, let alone acted upon, as it turned out, without discussion by the Council or an unaware public. From the February 13 minutes, only Mayor Duffield, who had strongly, but improperly (because of a financial interest in the outcome), promoted the idea on January 29 seemed aware of the significance of the February 13 vote. Since public officials are not supposed to influence decisions before their agency in which they have a financial interest, the fact that Mayor Duffield has already exerted his influence on Mr. Schmitz, encouraging him to promote the Port Master Plan idea, and since that influence cannot be undone, the City has yet another reason to terminate its relationship with Schmitz.