HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
June 23, 2020
June 23, 2020, Council Agenda Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( limmosher(a)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 1. Minutes for the June 1, 2020 Special Meeting and June 9, 2020
City Council Meeting
Suggested corrections: The passages shown in italics below are from the draft minutes with
suggested corrections indicated in strut underline format. The page numbers refer to
Volume 64.
Page 416, Item 1, paragraph 3: "Council Member Muldoon clarified that the $500 million for
Orange County was dispersed fro disbursed by the White House through the U.S. Treasury
Department, ..."
Page 416, Item 1, last paragraph, sentence 2: "He stated his disesrel disagreement with using
population on a Countywide basis; ..."
Page 417, paragraph 3 from end: "In response to Council Member Muldoon's questions, City
Manager Leung indicated that staff has generally seen the tiers separated by the number of
employees, but noted there is flexibility to define the number of employees and staff can work
with the administrator to make the determinant determination. Mayor O'Neill suggested
increasing the top tier to a maximum of 30 employees." [See video at 35:10. None of the
indicated words were spoken, put seem to describe the intent. For example, the Mayor actually
referred to increasing 11 to 20" to 11 to 30" — which seemed to be a reference to the top tier.]
Page 418, paragraph 4: "Mayor O'Neill believed a business should have a business license for
six months prior to applying for a grant and have 30 employees or less, and added that the
definition of "good standing" should include "business license fees and business improvement
district assessments."' [see video at 44:101
Page 419, last paragraph: "City Manager Leung reported that staff does not have a breakdown
of business licenses by employee employees, but there are approximately 500 businesses in
the restaurant/hotel category and about 2,500 in general consumer/retailers." [note: in the fourth
paragraph on the same page, the Assistant City Manager reported the number of business
licenses in various employee size categories. Apparently, what was meant here (at 1:19:30 in
the video) was that same detail was not immediately available within the business type
categories mentioned.]
Page 422, Council Member Brenner, last bullet: "Requested a future agenda item to discuss the
Ensign Intermediate School parking project at a future council meeting" [note: this request would
normally appear under "MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE
PLACED ON A FUTURE AGENDA" on the current agenda. But it does not.]
Page 422, Item XII: This consists of three bullet points.
Per the video at 17:00, each should state:
"It was the unanimous consensus of the City Council to bring this item back at a future
meeting."
June 23, 2020, City Council agenda comments - Jim Mosher Page 2 of 12
In addition, the third bullet should read:
"Resolution supporting and commending Hoag Hospital for their leadership and effort during
the coronavirus pandemic and supporting their ownership independence (O'Neill]"
[the Mayor twice emphasized he wanted the indicated phrasing]
Page 422, Item XIII, paragraph 2: "Regarding Item 8 (Professional Services Agreement with
Erickson -Hall Construction for Lido Fire Station No. 2 Construction Management), Jim Mosher
inquired whether funding has been budgeted for the construction as well as the construction
management contract and whether construction will be financed."
Page 425, Item 11, paragraph 4: "Council Member Muldoon recused himself from CIP
discussions relative to the Balboa Island and Corona del Mar Microtransit Feasibility Study
(Items 5, 11 and 12 of the Proposed Budget Revisions) due to business interest conflicts."
[without the indicated addition it is difficult to guess what "items" the Council members are
referring to in this and subsequent parts of the draft minutes for this agenda item]
Page 426, paragraph 3 from end: "Finance Director Matusiewicz reported that, quite often,
revenues exceed expenditures when the budget is reviewed in its totality; however, that is not
the case in the operating budget, but frequently the case in the capital and special revenue
budgets, explained that the City spends in arrears because revenue not spent in prior years is
added to the current year revenue for capital projects, and noted that Mr. Mosher appeared to
point to current year revenues only rather than the beginning balance plus current year
revenues." [this is indeed what was said, but I believe Director Matusiewicz meant to explain
why, "quite often, expenditures exceed revenues" in a "balanced" budget proposal]
Page 427, Item 12, paragraph 2: "Jim Mosher noted the ordinance sets some fees, such as
appeal fees, as flat fees when the., shoul.J ho the fee schedule shows them bein_g adjusted
for cost -of -living."
Page 428, paragraph 3: "City Traffic Engineer Brine continued the presentation, discussing
significant significance thresholds, the step-by-step process, the General Plan Update,
mitigation measures, and an amendment to City Council Policy K-3." [CEQA thresholds are
called "thresholds of significance"]
Page 428, paragraph 3 from end: "David Tanner indicated he wrote another letter late this
afternoon that expressed his concerns, stated he believed this is a tax to reduce greenhouse
gas, noted that Exhibit 1 is different than what is shown in Attachment 3 and is new information,
believed projects that are in these areas and that meet the screening criteria will not pay the tax
based on the assumption that the projects will not generate significant VMT, ..."
[I believe Mr. Tanner misspoke, and meant to say "Attachment C" to the staff report (the "City
SB 743 Implementation Guide," which he referred to as "the implementation plan") and that
by "Exhibit 1" he means Slide 9 from City Traffic Engineer Tony Brine's PowerPoint
presentation, showing the green areas the Council was told would be exempted from CEQA
traffic analysis. This remains a problem because staff did not request the Council to make
any changes to the Guide, and the Policy K-3 adopted on June 9 actually calls for use of the
version of the Guide dated "April 6, 2020" — which contains an older Figure 1 incorrectly
showing the exempted areas. In the last paragraph on page 428, Mayor O'Neill asked staff to
June 23, 2020, City Council agenda comments - Jim Mosher Page 3 of 12
correct the inconsistencies pointed out by Mr. Tanner, but ultimately the resolution was
adopted without those corrections.]
Page 431, paragraph 3: "Mayor O'Neill reported that the opening of the Balboa Library Branch
in 1929 was the start of the public library system."
[For those interested, a detailed account of the early days of the Newport Beach Public
Library can be read online starting on page 70 of H. L. Sherman's 1931 A History of Newport
Beach, a book published by the City in commemoration of the City's 25th anniversary. As
explained there, the library facility that opened in 1929 (designed by Mr. Sherman) was the
third NBPL location, and the second NBPL facility to be completely owned by the City.]
Item 3. Ordinance No. 2020-10: Amending Exhibit A to Newport Beach
Municipal Code Section 3.36.030 Related to Cost Recovery
As previously pointed out, the fee schedule adopted by the companion Resolution No. 2020-29
is inconsistent with the proposed ordinance. For example, the ordinance sets a flat fee of $1,715
for an unsuccessful appeal to the Building and Fire Board of Appeal, with no mention of future
adjustments. Yet line 3 of the fee schedule revisions effective August 22, 2020, says that fee will
be subject to an annual cost of living adjustment. The two statements cannot be reconciled.
One might guess the ordinance prevails over the resolution, so the fee schedule is incorrect.
However, both are, or soon will be, what has been adopted.
Item 5. Resolution No. 2020-61: Supporting the Orange County Board
of Supervisors' Determination that Houses of Worship are Essential
Services and Supporting In -Person Religious Assemblies
As previously noted, this resolution seems an improper use of taxpayer resources.
Not only are the U.S. and California Constitutions supposed to protect the public from its
government taking action of religious matters, but on May 29, the United States Supreme Court
effectively endorsed the validity of California Governor's coronavirus orders as applied to
houses of worship by denying a challenge to them in South Bay United Pentecostal Church v.
NB wsnm _
That denial of relief from the Governor's orders would presumably be even stronger under the
California Constitution, which the Council is specifically sworn to uphold, because Article I,
Section 4 ensures with regard to the guaranteed "free exercise and enjoyment of religion
without discrimination or preference" that "this liberty of conscience does not excuse acts
that are licentious or inconsistent with the peace or safety of the State." The present
resolution attempts to do exactly that by using liberty of conscience to excuse behaviors which
would be deemed to endanger public health in an exactly comparable setting if that setting were
deemed non-essential because non -religious (for example, a choral society meeting to rehearse
music in a community room, or persons gathering en masse to attend a lecture series at the City
Library — things which the Council is not petitioning to resume).
June 23, 2020, City Council agenda comments - Jim Mosher Page 4 of 12
Item 12. Approval of COVID-19 Economic Relief Funding Support for
the Balboa Island Merchants Association, Inc.
I do not support this item, but it might be noted that at according to the minutes of the May 26,
2020, regular meeting of the City Council (page 414), there was "a 5-2 straw vote to budget
$20,000 to Balboa Island Merchants Association Inc." and `a 6-1 straw vote to budget $20,000
to the Balboa Island Merchants Association."
Admittedly, there was considerable confusion as to which organization was which, but the
current staff report provides no explanation of why no comparable grant is being proposed for
the group that got the larger vote.
Did something happen non -publicly between the May 26 meeting and the present one?
Item 15. Planning Commission Agenda for the June 18, 2020 Meeting
The Council may notice that Item 4 on the Planning Commission's agenda was consideration of
a site development review and coastal development permit for the proposed building of the new
Fire Station No. 2 at 2807 Newport Boulevard (PA2019-098).
Both of these actions required consideration, for the first time in public (at least to my
knowledge), of whether the fire station proposal was consistent with the property's current
zoning, which is Visitor Serving Commercial (CV).
That designation is described on page 3-12 of the Land Use Element of our General Plan as
"intended to provide for accommodations, goods, and services intended to primarily serve
visitors to the City of Newport Beach." Nearly identical language is found on page 2-2 of our
Coastal Land Use Plan, in Subsection 20.20.010.1 of our Zoning Code and in Subsection
21.20.010.E of our Local Coastal Program Implementation Plan.
A fire station is very clearly not commercial. Nor, do I think, is even this one being built to
primarily serve visitors'. Nor (despite what the Council was told in 2017 — see below) are
government facilities listed as an allowed use in the CV district in Table 2-4 in Subsection
20.20.020 of the Zoning Code or in Table 21.20-1 in Subsection 21.20.020 of the LCP
Implementation Plan.
Fire stations, by contrast, do fit in the PF (Public Facilities) land use designation, which is
"intended to provide public facilities, including public schools, cultural institutions, government
facilities, libraries, community centers, public hospitals, and public utilities." They are allowed on
PF -designated land with approval of a Minor Use Permit and CDP.
The City's handling of this is disturbing, because rather than going through the public process of
rezoning the future fire station site from CV to PF, the Planning Commission was told that they
could rely on an unsigned "Director's Determination" apparentlyop sted (with no public notice) in
an obscure location on the City's website on October 13, 2017, a month after the City Council
' If the City of Newport Beach had a true interest in providing for the health and safety of visitors, as
opposed to residents, it would long ago have built visitor restrooms at "the Wedge."
June 23, 2020, City Council agenda comments - Jim Mosher Page 5 of 12
had, as Item 26 at its September 12, 2017, meeting, publicly agreed to purchase the 2807
Newport Boulevard property for fire station purposes.
At that September 12, 2017, meeting, under "Entitlements, Design, and Construction" on page
5, the staff report erroneously assured the Council that "Fire stations are a permitted use within"
the Visitor -Serving Commercial (CV) Zoning District, which they are not. It was also told that "To
comply with the California Environmental Quality Act (CEQA), staff anticipates a Mitigated
Negative Declaration will be required." No need for a Director's Determination was mentioned.
The October 13, 2017, Director's Determination purports, without any need for rezoning, to use
the authority granted to the Community Development Director by Subsection 20.12.020.E2 of
the Zoning Code and Subsection 21.12.020.E of the IP (Rules of Interpretation - Unlisted Uses
of Land) to add fire stations as an allowable use in the CV district. But the determination was
clearly erroneous since to add an unlisted use, the Director has to make two findings that could
clearly not be made:
1. That a fire station is functionally equivalent to one of the listed uses (no equivalent
approved use was identified, nor could it be, since a fire station is unlike any of the
visitor -serving commercial uses listed under CV)
2. That a fire station is not a listed use in some other land use district (but fire stations are a
species of "government facility" which is a listed use in the PF district)
Equally disturbingly, at the June 18 Planning Commission meeting, our Deputy Director assured
the Commissioners that the Council had reviewed and approved the 2017 Director's
Determination (see PC video at 1:26:00). 1 am unable to find any evidence that happened, at
least not publicly.'
2 " /f a proposed use of land is not specifically listed in Part 2 of this title (Zoning Districts, Allowable
Land Uses, and Zoning District Standards), the use shall not be allowed, except as provided below:..."
3 In addition to the September 12, 2017, meeting at which the purchase of the parcel was publicly
approved, the Council has heard about the Fire Station 2 relocation proposal at the following meetings:
• 2/14/2017 - Item IV.0 - Closed Session (Real Property Negotiations)
• 7/25/2017 - Item IV.0 - Closed Session (Real Property Negotiations)
• 8/14/2018 - Item 9 — Temporary use for off -street parking (which is a listed use in the CV district)
• 09/24/2019 - Item 21 - continued to 10/22/2019
10/22/2019 - Item 15 - Approval of conceptual design and project budget
• 06/09/2020 - Item 8 - Approval of construction management agreement
At none of these was there any public mention of zoning or the need for a Directors Determination, let
alone the review and approval of one.
More recently, on April 1, 2020, after seeking encouragement from the Planning Commission, the Director
added certain kinds of medical offices as an allowed use in the Professional and Administrative (PA)
District of the Santa Ana Heights Specific Plan (SP -7) that could subsequently be approved by the Zoning
Administrator rather than the Planning Commission. That determination was made without citing at all its
authority for adding unlisted uses to those listed in the code, or the findings necessary to do so, while
acknowledging that medical offices are a listed use in a different district (BP) of the Specific Plan — and
directly contradicting the express requirement in Section 20.90.130.B.2 that such unlisted uses continue
to require approval by the Commission.
June 23, 2020, City Council agenda comments - Jim Mosher Page 6 of 12
Staff's avoidance of the required public process for rezoning the property from CV to PF
avoided such important General Plan and Coastal Act questions as how the loss of
visitor -serving commercial land would be mitigated. At a minimum, this would have
triggered recognition that adding a fire station entitlement at this location needed to be offset by
removing it from the current fire station site. But even then, this would result in a net loss of CV
acreage, since the new site is larger than the old, and the merits of doing that would need to be
debated.
In addition, it is not clear how the anticipated Mitigated Negative Declaration turned into the
claim of a Class 32 (Infill) exemption from CEQA, with no mitigation, which the Planning
Commission was asked to approve at its June 18 meeting -- with no mention of staff's former
expectation that an MND would be needed.
As I tried to tell the Planning Commissioners, this a textbook example of the City ignoring its
own adopted rules, and instead trying to force a square peg into a round hole. Much as Newport
Beach is not a commercial seaport, a government -operated fire station is not a visitor serving
commercial establishment.
This property needs to be rezoned to PF. Doing less makes a mockery of our claim to have land
use planning.
Item 19. Ordinance No. 2020-15: Amending the Newport Beach
Municipal Code Restrictions for Short Term Lodging; and Emergency
Ordinance No. 2020-006: Restricting the Short Term Rentals on
Newport Island to a Minimum of Four Consecutive Nights
Attachment A — Ordinance No. 2020-15
Page 19-9, end of paragraph 2: "... to maintain harmony with surrounding uses and all transient
occupancy taxes and visitor serving service fees are properly collected and remitted to the
City."
Page 19-9, Section 1: 1 am unable to find any explanation in the staff report of the reason for
modifying NBMC Section 3.16.060 (Registration of Hotel).
What is an example of an "operator of a hotel required to obtain a short term lodging permit
pursuant to Section 5.95.020"? Section 5.95.020 (both currently and as proposed) applies only
to lodgings in residential districts, and I thought hotels were not an allowed use in a residential
district (even though many may see STL's as akin to hotels). If hotels do qualify for STL permits,
are they issued on a room -by -room basis? And does the existence of a single STL permit
exempt the entire hotel from the normal hotel permitting requirements?
Page 19-10, Section 5.95.005: "B. Over a thousand dwelling units within residential zones
near the City's beaches and harbor are rented for less than thirty (30) consecutive calendar
June 23, 2020, City Council agenda comments - Jim Mosher Page 7 of 12
days or less with the vast majority of those rentals occurring during the summer when the
demand for parking and City services is the greatest. 114
[It might be noted that the original NBMC Subsection 5.95.05.13 enacted by Ordinance No. 92-
13 said "Several thousand dwelling units within residential zones near the City's beaches and
harbor are rented for less than thirty 30) days." Either it was exaggerating, or there was a
substantial decline in activity before the recent surge.]
Page 19-11:
• The first line of Subsection E ends with an extraneous apostrophe. It should be deleted.
• In Subsection I, "are" has been incorrectly changed to "is". It should be restored.
Subsection L should read: "The restrictions of this chapter are necessary to preserve the
City's housing stock; and the quality and character of the City's residential
neighborhoods as well as to ..."
Page 19-12, Section 5.95.010:
"C. 'Booking transaction" shall mean any reservation or payment service provided by a
person who facilitates a short term lodging rental transaction between a transient user
and owner for the use of a unit for a period of less than thirty (30) consecutive calendar
days or less."
"G. "Home -sharing" shall mean an activity whereby the owner hosts a transient user in
the owner's lodging unit, for compensation, for periods of less than thirty (30)
consecutive calendar days or less, during which time the owner of the unit lives onsite,
in the unit, throughout the transient user's stay and the owner, the transient user and any
other occupants live together in the same unit as a single housekeeping unit."
4 The rule regarding the duration of a short term rental is stated in this way, and I believe "correctly," in
the Rules to Remember (about STL's) on the City's website. The rule is presumably derived from the
authorization for cities to collect transient occupancy tax on rentals in California Revenue and Taxation
Code Section 7280(a) ("unless the occupancy is for a period of more than 30 days"), as well as the
reference to that in Civil Code Section 1940. That specifies 1 through 30 day rentals, inclusive, are
eligible for TOT, while 31, 32 day and more rentals are not. "Transient" is defined as "thirty (30)
consecutive calendar days or less" in NBMC Section 3.16.020, but our municipal code continues to
misstate the rule as "less than 30 days" (that is 1 through 29 days, only) in the definition of Visitor
Accommodations (Land Use) -- "Bed and breakfast inn" in Subsection 20.70.020.V as well as in the
recently adopted Subsection 20.38.060.A.3.f (prohibiting short-term rentals on properties taking
advantage of the cottage preservation exemption for floor area expansion) and in the corresponding parts
of Title 21 (when, and if, enacted).
June 23, 2020, City Council agenda comments - Jim Mosher Page 8 of 12
"1. "Lodging unit" or "unit" shall mean a "dwelling unit" as that term is defined in Chapter
20.70, of Title 20 of this Code. An accessory dwelling unit shall not be considered a
lodging unit or unit for purposes of this chapter." [The proposed addition of the
highlighted words seems unnecessary and confusing to me. It gives the impression
ADU's can be rented independent of the restrictions in this chapter. In fact, short-term
rental of ADU's is separately prohibited by Section 20.48.200.G, as is short-term rental
of units on properties that have enjoyed the cottage preservation exemption. If those
further restrictions need to be repeated in this chapter, it would seem they should go in
the proposed Section 5.95.015 (Residential Properties Eligible for Short Term Lodging
Permits) and not in the definition of "Lodging unit."
Page 19-13:
W. "Short term" shall mean a lodging unit that is rented or leased as a single housekeeping unit
for a period of less thirty (30) consecutive calendar days or less. This also includes home -
sharing."
"P. "Transient" or "Transient user" shall mean any person or persons who, for any period less
than of thirty (30) consecutive calendar days or less, either at his or her own expense, or at the
expense of another, obtains lodging in a lodging unit or the use of any lodging space in any unit,
for which lodging or use of lodging space a charge is made."
Section 5.95.015, paragraph 2: "Subsequent *�u,.e , 2004, ^^ No annual permit shall be
issued to or renewed for any dwelling unit on any parcel zoned for "Single-family Residential (R-
1)" or that is designated for a single-family residential use as part of a Planned Community
Development Plan, Specific Area Plan or Planned Residential District, unless a permit #as
previeu-sly had been issued for that lodging unit prior to June 1, 2004 and the permit wa
not ubse' uentfy revoke^'remained in continuous __good standing."
[The first suggested corrections to this paragraph are matters of style. But the final one is
what I believe is a more accurate statement of what I have heard is the intended policy:
namely, the grandfathered permits are to be lost not just because of revocation, but for any
lapse of continuity — for example, failure to renew.
However, as this section appears in the staff report, any property that ever had a STL permit
prior to June 1, 2004, and had not been the subject of a successful revocation proceeding,
would be eligible to obtain a new permit — even if the prior permit was many years in the
past.
As was previous noted when similar revisions were before the Council as Item 4 on the
February 25 consent calendar, this entire passage disallowing short-term rental of single-
family homes contradicts the narrative in Section 2.3.3 (Lower Cost Visitor and Recreational
Facilities) of our Coastal Land Use Plan, which notes with approval that in Newport Beach "a
significant number of single-family homes, condominiums, and apartments serve as
overnight visitor accommodations," often "within walking distance to the water." "Because
they typically provide additional sleeping accommodations and fully equipped kitchens, they
provide an accommodation option comparable to or less expensive than staying in hotels
and going out to restaurants for meals. Particularly for large families, these dwelling units
provide an affordable alternative to hotels and motels."]
June 23, 2020, City Council agenda comments - Jim Mosher Page 9 of 12
Section 5.95.020 (Permit Required). "No owner of a'^d^' g unit person shall advertise for
rent or rent a lodging unit located within a residential district for a short term without a valid short
term lodging permit for that unit issued pursuant to this chapter."
[Saying "owner" makes it confusingly appear possible a non -owner lessee of lodging unit can
rent it in contradiction to the intended new prohibition of that practice in Subsection
5.95.040.A.1 on page 19-15.]
Page 19-15, Section 5.95.035: `if permits are available for issuance, no application filed by
an owner for an annual permit or renewal of a permit for a unit eligible to be used as a short
term lodging unit, as provided for in Section 5.95.015 and this Code, shall be denied unless:..."
[The highlighted words make little since unless there is a limit on the number of permits
issued, which there does not appear to be. It might also be noted this section is oddly titled
"Denial of Permit" but it is worded in such a way as to require approval in most cases, and in
no case to require denial. I would suggest if be retitled to "Approval of Permit" and reworded
to say: "An application ... will be approved unless:..." followed by a statement that "Under
any of those conditions it may be denied" OR "Under any of those conditions it must be
denied," depending on which of those policies is desired. The policy as provided in the staff
report is the former, but I suspect the latter was intended.]
Page 19-18:
"19. The owner shall allow the City to inspect the short term lodging unit to confirm the number
of bedrooms, gross floor area, and number/availability of parking spaces, seven (7) calendar
days after the City serves the owner with a request for inspection in accordance with Section
i.08.09 1.08.080...."
"20. The owner shall provide the City with a copy of any written rental agreement(s) and the
good neighbor policy, within seven (7) calendar days after the City serves the owner with a
notice of request for written rental agreements and the good neighbor policy in accordance with
Section 1.08.098 1.08.080."
Page 19-19:
Paragraph 2: "B. Use street parking prior to utilizing all available onsite parking space(s) for the
lodging unit." [Is it really possible to prohibit people from using public parking?]
Paragraph 2 from end: "... Nothing on in this subsection shall be deemed to relieve an operator,
as that term is defined in Sections 3.16.020 and 3.'� X020 3.28.010, ..."
Page 19-20:
"E. The provisions of the this section shall be interpreted in accordance with otherwise
applicable state and federal law(s) and will not apply if determined by the City to be in violation
of, or preempted by, such law(s)."
Page 19-21:
Proposed Subsection 5.95.065.A.1 is ambiguous as to whether it means a suspension is
prompted by the violation of the same permit condition (or code provision) more than once in 12
months, or by the violation of any combination of two or more permit conditions (and code
June 23, 2020, City Council agenda comments - Jim Mosher Page 10 of 12
provisions) in 12 months. It appears to be the former, but I suspect the latter may be intended. If
so, it should be revised to say what it means.
End of Subsection 5.95.065.A.3: "A loud or unruly gathering that occurred pr4or to the pa L go-
of within the fourteen (14) calendar days ftm period be_pinnin_p with the mailing of
notice to the owner in compliance with Section 10. 66.030(0) shall not be included within the
calculation of the two or more loud or unruly gatherings required to revoke a short term lodging
permit." ["prior to the passage of means any date (going back to biblical times) before the date
of mailing + 14 days, which is clearly not what was intended]
Page 19-22:
Subsection 5.95.065.A.6 has the same problem as just stated with respect to 5.95.065.A.1. Is it
intended to mean three or more violations of the same provision? Or any combination of three
or more violations?
Subsection 5.95.065.B.1 does not make clear who a request for hearing is to filed with. The
Finance Director? Or the City Clerk?
Page 19-23:
Section 5.95.080: "B. The Finance Director shall close any permit that has no short term lodging
activity for a period of two consecutive years as evidenced by remitting zero dollars on the
required transient occupancy tax and visitor service fee forms anal or has failed to return the
transient occupancy and visitor service forms."
Attachment C: Emergency Ordinance No. 2020-006
It seems to me this is being introduced under false pretenses as an "emergency"
ordinance.
In presenting it that way, City staff seems to be operating under the illusion that any modification
to an emergency ordinance is itself an emergency ordinance. But that is not what the City
Charter says.
Restricting short-term rentals may have plausibly been seen as "necessary as an emergency
measure for preserving the public peace, health or safety" per City Charter Section 412.
1 see nothing about relaxing restrictions that is similarly urgent or necessary to preserve peace,
health or safety. If anything, some will believe resuming rentals on Newport Island will
jeopardize the health of nearby residents. As a result of its non -urgent nature, I believe that
no matter how many Council members may vote for this, it needs to follow the normal
path of an ordinance under Section 412, with a first reading and publication, and
adoption no sooner than five days later.5
In that regard, the proposed Section 1 on staff report page 19-46 makes no sense: relaxing
restrictions on rentals on Newport Island is clearly not "necessary to help limit the spread of
5 By contrast, Emergency Ordinances No. 2020-02 and 2020-03, adopted on May 12, could be said to be
emergency measures, because without them, the original Emergency Ordinance No. 2020-01 would have
expired on May 20, reputedly endangering lives.
June 23, 2020, City Council agenda comments - Jim Mosher Page 11 of 12
COVID- 19" and it is especially unnecessary because of the conditions cited on the Island
"which increases contacts between persons and could lead to the spread of COVID-19."
As to its substance as a non -urgency ordinance, in Section 2 (page 19-47) 1 continue to fail to
be unsure how the City can be sure of (and therefore enforce) compliance with a requirement
that visitors be physically present in the short-term rentals for at least four consecutive nights. It
seems clear they could rent for four nights, but choose to stay for only one (or none), which
would actually result in less exposure of residents to the visitors than a full four -night stay. It
seems to me we should, instead, require an interval of at least four days between successive
rentals, without consideration of their duration — something easily monitored and enforced. Is
the idea that we expect to get a better class of renters if they are forced to pay for four -nights?
Section 3 (page 19-47) should say "Emergency Ordinance No. 2020-003 is hereby repealed;
provided, however, that the repeal of Emergency Ordinance No. 2020-003 shall not affect ...
to prevent confusion with regular Ordinance No. 2020-003 (which has to do with lobbyist
registration ).6
Item 21. Resolution No. 2020-64: Confirming the Levying of
Assessments and Appointing the Advisory Board of Directors for the
Corona del Mar Business Improvement District's Fiscal Year 2020-21
There was a question at a recent Council meeting about how many BID "members" (other than
the self -nominated, Council -appointed Board) attended the annual meeting.
I happen to have been at that annual meeting, which was held by conference call, with non -
Board members able to participate only through a phone in the Community Room (see May 28,
2020, agenda packet). The draft minutes of that meeting have been posted, and they confirm
that the only person present in the Community Room in addition to me was Amy Senk, a
sometimes reporter for Stu News. Neither of us are BID members. So, the answer to the
Council question is: zero non -board members paying assessments to the BID bothered to
attend or listen in to the annual meeting.
This is not to take away from the service and dedication of the Board members, but it does
indicate interest in what they do with the involuntary assessments is slight to non-existent.
Not to be too snarky, but the Council might also note that one of the most dedicated of those
Board members pays dues on behalf of Upland Stor King, which is apparently some 50 miles
from Corona del Mar. And while our business license database may list an address for it in the
CdM business district, that is not one currently on file with the California Secretary of State. In
fact, it seems to be the address of Scott Palmer's Business Info Data Systems Inc, former
administrator of the City's BID's and incorporator the Balboa Island and Balboa Village
merchants associations (which also use the same address: 2865 East PCH, Suite 360).
6 This whole business of numbering emergency ordinances separately from regularly -adopted ordinances
seems ill-conceived, and likely to lead only to confusion. I believe ordinances should be numbered in
sequence. If adopted using the emergency feature of Charter Section 412, be so identified in the title and
body.
June 23, 2020, City Council agenda comments - Jim Mosher Page 12 of 12
Item 22. Resolution No. 2020-65: Confirming the Levying of
Assessments and Appointment of the Advisory Board of Directors for
the Newport Beach Restaurant Association Business Improvement
District's Fiscal Year 2020-2021
This year's annual NBRA BID meeting was held by WebEx on April 22 and live -streamed on the
City website. I don't know how many people viewed the stream, but as indicated in the draft
minutes, the only person to call in was Chris Trela of the Newport Beach Independent. None of
the non -Board members assessed by the BID did so.
The Council may wish to recall that in 2018, the Board chartered a Hornblower Cruise ship for
the BID's March 26 annual meeting. This attracted a slightly larger assemblage guests, about
ten of whom appear to have been non -Board members subject to the assessment. The Brown
Act requirement for public access forced the business portion of that meeting to be held while
the ship was in dock. But that concluded, the Board and guests departed for a harbor cruise on
which BID business was presumably not discussed. It was claimed that the cost of this was
within the budget pre -approved as part of Item 5 on May 23, 2017, Council consent calendar.
The Council may wish to enquire if it approved a similar expenditure of assessments in the
budget approved on June 9 this year. There seems something questionable about using
government authority to collect funds from some 400 for the entertainment of less than 20.
Item 23. Ordinance No. 2020-16: Introduction of a Nonconforming
Sign Code Amendment
I spoke in favor of eliminating the abatement requirement for existing non -conforming signs
when this proposal was before the Planning Commission. I continue to hold that position.
To me, it may have made sense in 2005 (see Item 11 from September 13, 2005, and references
therein) to require new signs on new buildings to adopt a more modern style, but I can see no
reason why it would have been thought desirable to actively require the owners of existing signs
to upgrade to a style that may not fit the style of their buildings.
Why should we want to suppress our heritage?
The old signs go with the old buildings and old businesses, and their variety is what contributes
to the somewhat funky charm of a California beach town. None of them offend me.
Should this sentiment prevail at Council, as it did unanimously before the Planning Commission,
in addition to the code sections cited as needing amendment on page 23-3 of the staff report,
some rewriting would also be required of existing NBMC Section 20.42.180 (Heritage Signs). In
effect, all the older non -conforming signs would become heritage signs.