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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 14, 2020 Written Comments April 14, 2020, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(d-)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item ll. PUBLIC COMMENTS At the end of the Council's April 3 Special Meeting, I commended the City for providing at least one physically accessible location for the public to observe and participate in the meeting, live and in real time, without any special equipment or subscriptions of their own, as required even with Governor Newsom's emergency relaxations of the Brown Act in his March 12, 2020, Executive Order N-25-20. At the time, I was unaware (as apparently was the City) of the Governor's subsequent March 17, 2020, Executive Order N-29-20, supplanting the direction in N-25-20 and allowing cities to dispense entirely with providing any physical location from which the public can observe and participate if members of the public with suitable equipment are given a way to "observe and address the meeting telephonically or otherwise electronically." The present agenda suggests the City is taking this possibility to heart by restricting access to phoning in while listening to the meeting on NBTV via cable or internet streaming. While I strongly applaud this City's efforts to make it possible and convenient for most members of the public to participate in meetings from home — and while I hope those measures will continue after the COVID-19 crisis has abated and will indeed generate wider participation — I equally strongly object to the absence of a requirement for cities to provide a mechanism, even during a crisis, for all citizens to participate. In my view, access to government should not be contingent on interested citizens having to make payment to cable TV, internet streaming — or even telephone — providers. Allowing access to meetings for many from the comfort of home seems a positive step. Encouraging that as a means of access during the COVID-19 crisis has obvious public health benefits. But disallowing access to government to even a single person — perhaps especially during times of crisis — remains, it seems to me, distinctly unhealthy for the future of democracy. Item 1. Minutes for the March 18, 2020 Special Meeting and March 24, 2020 City Council Meeting Page 348, Item XX (ADJOURNMENT): I believe that before adjourning the March 24 meeting, Mayor O'Neill indicated the expected adjournment in memory of Bill Moses — noticed on the posted and printed agenda — was being postponed. The minutes should probably reflect this. April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 2 of 9 Item 3. Resolution No. 2020-31: Initiation of Zoning Code and Local Coastal Program Amendments Related to Tattoo Services, Density Bonus Regulations, Short Term Lodging, and Food and Alcohol Service in the Industrial Zone The brief descriptions of three of the code amendment proposals leaves some uncertainty as to what staff is asking license to develop — Tattoo Services: The description suggests staff wishes to eliminate all discretionary aspects in the approval or denial of tattoo service applications. It is not clear how a need to do that follows from the characterization of tattooing as protected expressive activity. Why could the application not still require a discretionary use permit if the nature of the proposed use (tattooing vs. some other activity) is not allowed as a factor in making the discretionary determination? In other words, could the City reach "content neutral" discretionary decisions? Short -Term Lodging: Since changes to the Municipal Code related to short-term lodging were previously introduced on February 11 (Item 20), and the Council was poised to adopt them on February 25 (Item 4), it may come as surprise that the City had not already initiated an effort to change the code. The mystery, not explained in the staff report, is solved by the realization that the ad hoc committee's previous recommendations focused exclusively on the business license aspects of STL rentals (NBMC Section 1.05.020, Section 3.16.060 and Chapter 5.95) — none of which, apparently, required initiation. But the report does not reveal what kind of changes to the associated land use regulations in Titles 20 and 21 staff now seeks authorization to work on and propose. Food and Alcohol Service in Industrial Zone: Per page 3-3 of the staff report, additional direction is being sought from the Council as to which of several options staff should develop. It is unclear how such direction can be obtained through approval of initiation, without comment, on the consent calendar. It is also unclear why the Industrial (IG) zoning district located "near 16th Street and Placentia Avenue" is described in the opening sentence as being "in the southwest portion of the City." Placentia is certainly in the western part of the City. But by what measure is 16th Street (especially a district abutting what is locally the north edge of the City) "south"? Slightly more significantly, the proposed resolution relies on City Council Policy K-1 ("General Plan and Local Coastal Program") for the proper procedure to initiate amendments to the Local Coastal Program,' and in doing so refers, in the second "Whereas" on page 3-6, to the "certified ' It might be noted that in certifying Title 21 (the LCP-IP), the Coastal Commission eliminated a proposed Chapter 21.66 specifying the procedure for making amendments to it (comparable to Chapter 20.66 in Title 21, the Zoning Code). Their staff reportedly reasoned "it is inappropriate for an implementation plan to include these procedures as the regulations for LCP amendments are solely governed by the Coastal Act and its implementing regulations" (see November 7, 2016, Item 11 staff report, pages 11-7 and 11- 391). Rules for amending the "LCP" were grafted onto Policy K-1 (which formerly dealt only with amendments to the General Plan) post -certification, and without review or sanction by the Coastal Commission as part of Item 18 on August 8, 2017 (see pages 18-156 and 18-299). April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 3 of 9 Local Coastal Program codified in Title 21 (Local Coastal Program Implementation Plan)." As may or may not be obvious from this, Title 21 (the LCP-IP) is only a portion of the City's LCP, the other portion of it being the Coastal Land Use Plan (which bears the same relation to Title 21 as the General Plan does to Title 20). But despite invoking Policy K-1, the proposed resolution makes clear staff is asking permission to develop changes only to the implementing code, not to the GP or the CLUP. That is a bit strange, since the implementation regulations in Titles 20 and 21 are supposed to flow from the goals and policies proclaimed in the GP and CLUP. So one might expect changes in those titles might need to be preceded by refinement of some of the goals and policies in the GP or CLUP, or at least an updating of the narrative explaining where the City's goals and policies come from. Item 5. 2019-2020 Playground Refurbishment Project - Award of Contract No. 7737-1 (20P01) The "Funding Requirements" paragraph on page 5-1 indicates the work is to be paid for with proceeds from the Building Excise Tax imposed on construction by NBMC Chapter 3.12. A quick review of that chapter suggests that in the pre -Proposition 13 world, the tax was last set at a fixed dollar amount of $0.21 per square foot that has not been updated for inflation or other changes in more than 40 years. One has to wonder if $0.21/sf is still an appropriate amount. One also learns (in Section 3.12.110) that the name of the fund is not the "Building Excise Tax Fund," but rather the "Capital Outlays Fund for Acquiring, Constructing and Equipping of Fire Stations, Libraries and Parks." Since the detailed contract is not provided, it is difficult to assess whether the proposed work fits entirely within the purposes for which the COFFACEFS was created. At this distance, it may be anybody's guess what "acquiring, building, improving, expanding and equipping" parks was meant to include, but may be significant that "maintaining" was not one of the words chosen to describe allowable uses and that the words that were chosen are connected with "and" rather than "or." It really sounds like it was intended for adding new facilities. Item 6. Slurry Seal Program - Award of Contract No. 7681-1 (Project No. 20R04) Although not mentioned in the abstract, page 6-3 of the staff report indicates one of the most immediate projects being funded is the late April sealing and striping of "the Central Library/Civic Center" parking lot. One has to wonder if that is really needed and even if so, whether, at least with regard to the Central Library, this is the optimum time for it. Preliminary plans for the Library Lecture Hall envision extensive modifications to the Central Library parking lot, with construction possible in a year or two. April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 4 of 9 Should the Lecture Hall go forward, it would seem more efficient to repair the parking lot after the final design and construction are complete, rather than a year before and have to do parts of it over again. Item 7. Approval and Award of Maintenance and Repair Services Agreement with RD Systems, Inc. This contract, first seen by the Council as Item 13 on November 19, 2019, is unusual in that after accepting bids on a definite mix of routine maintenance and on-call work, staff is suggesting adding a very substantial amount of on-call work to the contract being submitted for Council approval — in November more than doubling the award amount, and still nearly doubling it as staff now recommends the second lowest bidder.. Awarding a contract more extensive than what was bid on does not seem right, since it's possible the bids would have been different if the true amount of work being sought had been disclosed. Also, considering the large disparity in three bids, should staff have tried harder to get the low bidder to complete the bond requirement? Item 8. Approval of a Purchase Agreement with South Coast Fire Equipment, Inc. for the Purchase of a Type 3 Wildland Fire Apparatus Fire Department staff continues what now seems to have become a tradition of loading the agenda with many dozens of pages of technical specifications for the equipment it seeks permission to purchase, although in this case omitting what each of those features costs (see page 8-94). Also lacking from the "Abstract" and "Recommendations" on page 8-1 is any mention that to award this contract the Council must waive its normal Policy F-14 calling for competitive bidding. While the department's rationale for using a single vendor for fire engines makes some sense, this seems an important qualification to bring to the attention of both the Council and the public. Should a low-cost vendor become available, does the City have a plan for ever switching to one? The significance of the comment on page 8-3 that "This budgeted purchase replaces the Reserve 3 engine manufactured in 2003" is also not clear. Does this mean that despite being "housed at the Newport Coast Fire Station No. 8" and available "daily for emergency responses," this new engine will be regarded, in the absence of wildland fires, as a reserve engine rather than a frontline one? Or will one of the current frontline engines become "Reserve 3"? April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 5 of 9 Item 9. Resolution No. 2020-33: Appeal of Planning Commission Approval for The Garden Office and Parking Structure Proposed at 215 Riverside Avenue (PA2019-023) (Continued from the March 24, 2020 City Council Meeting) As with agenda Item 10, which also involves a previously -noticed public hearing, I have some concern that although Governor Newsom's Executive Order N-29-20 temporarily suspended certain Brown Act rules regarding physical presence of persons at public meetings, it is not clear that order suspended any separate rules that may exist and apply to the conduct of legally legitimate public hearings. In particular, NBMC Secs. 20.62.020.A.1.d and 21.62.020.A.1.d both require the notice of hearing to include "A statement that an interested person or authorized agent may appear and be heard at the public hearing," and the notices — including the notice posted for the present hearing — typically include a statement that the hearings before the Planning Commission and City Council will be take place "in" the Council Chambers. Yet the agenda for the present public meeting contradicts the required notice by telling interested persons and authorized agents there will be no opportunity to appear "at" the announced hearing location. Not fully understanding the urgency of Items 9 and 10, it would seem to me that due process requires the public not be mislead by the posting of an inaccurate or obsolete notice, and that, instead, the hearings need to be re -noticed with an accurate description of the process that will actually be followed. However that may be, I have these comments on what is being proposed: Although the Planning Commission approval being reconsidered involved a Coastal Development Permit as well as a Conditional Use Permit, the Vicinity Map on page 9-2 reveals only the General Plan/Zoning Code designations of this and the neighboring properties. It does not reveal their Coastal Land Use Plan/Implementation Plan designations. Only in the proposed resolution of concurrence, on page 9-15, do we discover the Coastal Land Use Plan category is Commercial General (CG -B), where the "-B" means2 the allowed floor area ratio is 0 to 0.75, compared to 0 to 0.3 for properties in the CG -A category. Curiously, the LCP Implementation Plan (Title 21 of the NBMC) implements both categories of CG land use with a single "CG" coastal zoning district, but on the Coastal Zoning Map shows this lot as "CG 0.5" where the "05' appears to limit the FAR to a value that many might find unexpected from the CLUP. 2. As to the proposed resolution (Attachment A starting on page 9-15): Page 9-15, last Whereas: "WHEREAS, the Property is located within the Commercial General (CG) Coastal Zone Zoning District and the City of Newport Beach Local Coastal Program Coastal Land Use Plan category is Commercial General (CG -B);" 2 See page 2-2 of the Coastal Land Use Plan. April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 6 of 9 Page 9-16, last Whereas3: "WHEREAS, a telephonic public hearing was held on April 14, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach." Page 9-18: "c. The highest parapet is 28 feet from the established grade of f30.5 feet North American Vertical Datum of 1988 [NAVD 88]), which complies with the maximum height requirements." [?? Plan pages 9-783 and 9-784, showing elevations, been posted in a format such that the heights indicated are illegible, but without this correction it is unclear if "30.5 feet' refers to the height of the parapet in the NAVD 88 system or to the height of the established grade in that system. If it were the former, the implication would be that the established grade is +2.5 feet NAVD 88 — suggesting the site is below sea level most of the year, which I do not believe is the case.] Page 9-18: "3. The P4*ee-t Property is an inland parcel that is not located on the waterfront." [or, "The Project is on an inland parcel that is not located on the waterfront."] Page 9-20: "5. The closest coastal view road is West Coast Highway, which is located to the south, as designated in the City of Newport Beach Local Coastal Program Coastal Land Use Plan. Views from this vantage point are directed toward the harbor and away from the Property, which is inland and north of West Coast Highway." [Who has decided this. The CLUP refers to the both the harbor and the coastal bluffs as items of scenic interest.] Page 9-22, last paragraph, sentence 3: "The Cry Property currently has a 19 space surface level parking lot at approximately the same elevation as the upper level of the proposed parking structure." [The narrative on page 9-3 says the existing lot consists of 18 spaces, not 19. Which is correct?] Page 9-33, CEQA reasons: "3. The Project for consideration also does not rely upon the Garden Restaurant in order for its approval and/or implementation. The approval of the Project, for example, would not make approval of the Garden Restaurant proposal either more or less likely." [This statement seems absurd to me. The approval of a parking structure not otherwise required for some use obviously makes approval of the Garden Restaurant more likely should it develop there is not adequate parking for the restaurant elsewhere.] Item 10. Ordinance Nos. 2020-11 and 2020-12: Introduction of Ordinances to Amend Setback Map S -1A (PA2019-216) In the not too distant past, the Planning Division dealt with matters of this sort by simply ignoring the Council -adopted setback maps and having the Community Development Director declare different setbacks using a purported authority to override the maps granted by the 2010 Zoning Code revision'. Tedious as the present process may seem, it is good to see the maps being changed before any construction based on them is taken, returning meaning to what the Council publicly approves. 3 If this turns out to be a completely telephonic/electronic "virtual" hearing, as the agenda implies, it is not clear what significance the reference to "in the Council Chambers located at 100 Civic Center Drive" has. 4 Sometimes referred to the Planning Commission for decision. See, for example, Item 4 from January 18, 2018, and Item 3 from August 17, 2017. April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 7 of 9 The following corrections to the proposed ordinances are suggested: Ordinance No. 2020-11 Page 10-9, third Whereas: "WHEREAS, the Property's land use designation under General Plan of the City of Newport Beach ("General Plan') is RT (Two Unit Residential) and is located within the R- 2 (Two -Unit Residential) zoning district;" Page 10-9, fourth Whereas: "WHEREAS, Zoning Code Amendment No. CA2019-008 is consistent with the General Plan including Policy No. LU 3.1 to maintain Newport Beach's pattern of residential neighborhoods, business and employment districts, commercial centers, corridors, and harbor and ocean districts in that it will provide uniformity in with the setback of other properties in the area;" Page 10-10, third Whereas5: "WHEREAS, a telephonic public hearing was held by the City Council on April 14, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California." Page 10-10, Section 2: "An amendment to Section 21 .48.040 (Setback Maps) as set forth in Title 21 (Local Coastal Program Implementation Plan) is also underway pursuant to Ordinance 2020- to approve LCP Amendment No. LC2019-007." Ordinance No. 2020-12 Page 10-16, second Whereas: "WHEREAS, LCP Amendment No. LC2019-007 is consistent with the General Plan including Policy LU No. 3.1 to maintain Newport Beach's pattern of residential neighborhoods, business and employment districts, commercial centers, corridors, and harbor and ocean districts in that it will provide uniformity in the setbacks of other properties in the area;" Page 10-16, sixth Whereas: "WHEREAS, a telephonic public hearing was held by the City Council on April 14, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California." Item 11. Professional Services Agreement with Kimley-Horn and Associates, Inc. for Updates to the General Plan Housing, Land Use and Circulation Elements The statement on page 11-2 that "the City contracted with Kearns & West (K&W) to prepare and facilitate a robust public outreach program" may create the misimpression that a "robust" program was actually underway at the time staff transitioned to recommending efforts focus on the Housing Element. While definitions of the much overused word "robust" may vary, my impression is the "Newport, Together" program engaged only a handful for the City's 80,000+ 5 See opening comment on Item 9, above. If Item 10 was noticed as an in-person hearing, as it appears it was, then I believe it should be re -noticed to inform participants of the actual format in which the hearing will be held. April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 8 of 9 residents, created a website that remains frozen in disarray (still announcing long past Nov/Dec 2019 meeting and workshop dates), and has produced, to date, no conclusions or results of which I'm aware ("Coming soon!" it still says). I fear the statement later on the same page that "City staff quickly worked with the Steering Committee to release a Request for Proposals (RFP) on December 20, 2019" may be similarly misleading. The General Plan Update Steering Committee held its last public meeting on December 4, 2019. There was nothing on the agenda about an RFP for a Housing Element consultant. Despite that, I recall there was some discussion of staff's intent to post an RFP for one and a vague promise to share copies of the draft with interested members of the committee for their review and comment. I have no idea if any of that took place. If it did, the committee's participation was certainly non-public and non -transparent. As to transparency, the proposed contract mentions a "Mr. Petros" five times on pages 11-26 and 11-27, evidently referring to former City Council member Tony Petros, who it appears will be "Project Manager and Principal In Charge" at LSA for the Circulation Element revisions. While there is nothing intrinsically unethical about contract with form council members, public concern about "revolving door" government would suggest this aspect of the contract should have been more forthrightly disclosed in the staff report. As Kimley-Horn observes, "Mr. Petros led the Bicycle Safety Committee for three years and directed the preparation of the first City Comprehensive Bicycle Master Plan." But to the best of my knowledge his company was not involved, he was not separately paid for those efforts nor was there an expectation the recommendations would be geared toward creating future employment opportunities for himself or his company. It is also not obvious how LSA's proposal to update only the Circulation Element could have been regarded by the City as responsive to an RFP for a consultant to update primarily the Housing Element. In that connection, it is curious that the Abstract and Recommendation of the present staff report, like RFP 20-336, mentions a need to amend only the Housing, Circulation and Land Use Elements, yet Task 3 in the table on page 11-4 is an update of the Safety Element — something that should have been called to the City's attention by the "Diagnostic Memo" that came out of the Newport, Together effort, page 13 of that document (which never elicited any substantial public discussion by decision makers) explaining that any update of the Housing Element would trigger a state law requirement to update the treatment of flood and fire hazards in the Safety Element. The staff report is similarly uninformative as to the public outreach efforts that have been negotiated. The Funding Requirements discussion on page 11-2 mentions the City has an existing $452,000 contract (C-8180-1) with Kearns & West, but does not say how much of that remains unspent. RFP 20-33 suggested Kearns & West would remain as the outreach firm, and the successful Housing Element bidder would be required to work with them. Task 1.2 of the 6 "RFP 20-33" refers to the number in the PlanetBids system. It does not appear possible to link to documents in that system, or, indeed, to even view them without registering as a potential bidder. April 14, 2020, City Council Consent Calendar Comments - Jim Mosher Page 9 of 9 Work Plan on page 11-19 suggests this is still the plan. If so, it is not a very confidence -inspiring plan as to the effectiveness of the outreach. But Task 2.3, on page 11-22, suggests, to the contrary, that Kimley-Horn will be conducting the community outreach. It would have been good for the staff report to clarify what the plan actually is. Additionally, RFP 20-33 anticipated the need for a Greenlight vote on the recommended General Plan land use changes and said (on page 3) "the Consultant will be required to participate in this election process." Since cities are not allowed to expend public resources promoting ballot measures, it is not entirely clear what this means, but I see no mention of participation in an election in the proposed contract. As to other aspects of the contract, it is not at all obvious, for example, how the seven "areas of focus" for market assessment designated on page 11-30 were selected. How about the Peninsula, or Corona Del Mar, or the Bison/MacArthur area?