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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 8, 2020 Written Comments September 8, 2020, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(o-)-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS3. Short Term Lodging A City News Splash said "The Newport Beach City Council is seeking community input on a next phase of updates to the City's short-term lodging ordinance, at an upcoming Study Session on September 8 at 4 p.m." and "Additional details will be posted by Friday at newportbeachca.gov/agendas." The City Manager's Insider's Guide makes the identical claim. I was disappointed to be unable to find any "additional details" other than an agenda listing for this item that says "The Council Ad Hoc Committee on Short Term Lodging will update and seek input from the City Council on recommendations for the next phase of changes to the short term lodging ordinance." That adds nothing I can detect to the News Splash, and seems indicative of the problems that occur when the public's business is conducted through committees that meet privately. Indeed, what were claimed to be the committee's recommendations were reviewed by the Planning Commission as their Item 2 on July 23, with a request to make a recommendation to the Council. According to the draft minutes,' on a 4:2 vote, the Commission agreed "not to recommend any of the proposed changes to the Council." Evidently the committee now has different recommendations, but only those "in the know" know what those new recommendations might be prior to hearing them at the study session, and hence only they will be prepared to discuss them. Item III. PUBLIC COMMENTS ON CLOSED SESSION According to the announcement, the Council will be meeting in closed session to "Instruct negotiators as to price and terms of payment' regarding the City -owned parcel at 883 W 15th Street, which was formerly the West Newport Community Center. As Item 21 at its September 9, 2014, meeting, the Council agreed to lease the property to Pacifica Christian High School for 10 years with a possibility of two 5 -year extensions (C-5928). It is not at all clear from the notice what the purpose of this closed session is. Has Pacifica asked for a reduction in the rent? Or has it offered to purchase the land? If it is the latter, it would seem to me that a public discussion of whether it is in the City's interest to sell should be held before any negotiations over a possible price. The land remains valuable, and despite some talk, the City has not found an adequate substitute for its former community center. ' The PC has not met since July 23, and due to the City's frustrating practice of not posting draft minutes until a few days before a body's next meeting, these would not normally be available. However, these were part of an agenda packet posted for an August 20 meeting before the latter was cancelled. September 8, 2020, City Council agenda comments - Jim Mosher Page 2 of 6 Item X111. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA This item is troubling for a number of reasons: 1. At least my opinion, it should be unnecessary because individual members of the Council should be able to place items on a future agenda for public discussion. Not only is this allowed by California Government Code Section 54954.2(a)(3), but not allowing this deprives the electorate of their constitutional right to representation.2 2. The self-imposed requirement to vote on these matters without discussion is an obvious absurdity. a. The purpose of the item is presumably to decide whether it is worth devoting City resources to pursuit of the individual sub -items, including investing the time and effort to research them and prepare a staff report with further background and possibly a recommendation. b. Since the sub -items have been noticed on the agenda, Gov. Code Sec. 54954.2(a)(3) allows discussion of them. c. Not only is discussion allowed, but it seems necessary both to make a decision and to clarify exactly what the direction to staff should be. d. Making decisions in the forced absence of information, including even a right to ask what the vote is about, is not only poor policy, it makes the council look foolish. 3. The absence of any opportunity for public comment on these sub -items prior to the Council's action on them is a clear and flagrant violation of Gov. Code Sec. 54954.3(a).3 If one values public input, it also means less -informed decision to commit City resources will be made. Regarding some of the matters on which the Council is being asked to vote: 1. Consideration of an emergency ordinance to enforce State guidance on face coverings by administrative citation Doesn't the City Manager already have the authority to do this under the Proclamation of Emergency? 2 This problem is particularly obvious and acute in jurisdictions with by -district voting. If a majority of the council can suppress requests to present and discuss items of interest to one of the representatives, then the people in that district are completely disenfranchised, at least in terms of having their issues heard. Although Newport Beach does not have by -district elections, it acts as if it did. 3 It has been the practice of the Council not to invite public comment on the "Matters Which Council Members Have Asked to be Placed on a Future Agenda" item. However, after study sessions and before closed sessions there was a "Public Comments" item that said it invited comments "on items listed on the agenda and non -agenda items." When such an announcement occurred, it could arguably be taken as minimally fulfilling the Brown Act requirement to provide an opportunity for the public to comment "before or during the legislative body's consideration of the item." However, the present agenda has (apparently at the Mayor's direction), for the first time, removed that general "Public Comments" segment, restricting it to "PUBLIC COMMENTS ON CLOSED SESSION" even though that is not what the full Council agreed to in the recent revisions to Council Policy A-1 that moved the start time of regular meetings to 4:00 p.m. September 8, 2020, City Council agenda comments - Jim Mosher Page 3 of 6 2. Consideration of opposing Proposition 15 a. This item is of concern because Proposition 15 is a matter that has been put on the ballot for November 3. b. While city governments have wide latitude to promote or oppose legislation that they feel is in or against the city's interest, they are not supposed to use public resources to take sides or attempt to influence voters once a matter has been placed before those voters for a decision. Our elections are supposed to be decided by the people, free of government intervention. This position has been supported by courts throughout the United States, and in California most prominently by our Supreme Court in its opinions in Mines v. Del Valle, 201 Cal. 273 (1927), Stanson v. Mott, 17 Cal.3d 206 (1976) and amplified in Vargas v. City of Salinas, 46 CalAth 1 (2009): "A fundamental precept of this nation's democratic electoral process is that the government may not take sides' in election contests or bestow an unfair advantage on one of several competing factions." The latter does allow government agencies to express an opinion about a ballot measure, either explicitly or implicitly, based on an impartial analysis and presentation of facts, provided it does not expend funds on "express advocacy." d. It is unclear to me if the request is for City staff to spend time performing such an analysis and how the Council expects resulting opinion to be publicized. e. If the Council does expect City staff to publicize its conclusions, it should be aware of the May 2020 FPPC ruling against Mesa Water: if it spends more than $1,000 it may need to register as a campaign committee. I personally think the City's resources could be much better spent on matters other than this, for which many other will be telling voters the pros and cons. I am especially concerned about how City staff, in wishing to please the Council, can perform a truly impartial analysis when the conclusion has already been provided to them. 3. Consideration of supporting Proposition 20 I have the same concerns regarding Proposition 20 as with the preceding item: since the conclusion staff is supposed to reach (supporting the measure) is pre- ordained, this seems like electioneering rather than a request for an impartial analysis whose results the Council will then consider. 4. Resolution to Express the City Council's Appreciation to the Newport Beach Fire Department for All the Mutual Aid Provided During 2020 a. Shouldn't the appreciation be coming from those the aid was rendered to rather than from those who paid to render it? b. Furthermore, isn't the aid rendered under a written contractual agreement (such that in return for agreeing to render the aid, the City will receive aid in its own times of need) rather than something the NBFD volunteers to do? c. If it is voluntary, however meritorious, how could the use of City resources outside the city and without oversight be justified? September 8, 2020, City Council agenda comments - Jim Mosher Page 4 of 6 Item 1. Minutes for the August 25, 2020 City Council Regular Meeting Suggested corrections: The passages shown in italics below are from the draft minutes with suggested corrections indicated in strikeout c underline format. The page numbers refer to Volume 64. Page 496, Item X, Herdman, bullet 2: "Attended a Balboa Island ""e;t Improvement Association board meeting and learned of its intention to form an assessment district for the completion of undergrounding; the monthly Orange County Mosquito and Vector Control meeting; along with Council Member Dixon, a Board of Supervisors meeting last month regarding GRIP; and a technical departure subcommittee meeting" [See audio at 1:52:45. As to the Board of Supervisors meeting, the minutes are accurate, but the comment is presumably a reference to the meeting held on August 11. Page 497, Item XI, bullet 1: "Consideration of an emergency ordinance to enforce State guidance on face coverings by administrative citation and im;lement a '�ene per-sGn one seat" rule -fes establishments with , walk-up her Brenner]" [See audio at 2:08:05: Mayor O'Neill said he was breaking the listed item, with two parts, into a separate vote on each. This first vote is being reconsidered on the present agenda.] Page 502, Item 16, paragraph 1: "In response to Mayor O'Neill's questions, Community Development Director Jurjis indicated that staff pr-Gposed wine tasting enlI- in order to limit the amendment as much as possible staff proposed wine tasting only, ..."[This revision is necessary to ensure "only" is read as modifying "wine tasting" and not "in order to".] Page 506: "Amended motion by Council Member Muldoon, seconded by Council Member Duffield, to a) send the matter back to the Planning Commission to review the 500 foot separation from schools and 500 foot separation between properties that have wine tasting rooms and make a recommendation re_parding findings for the public benefit for spot zoning within 90 days with staff conducting community outreach; b) suggest staff issue a 90 day special permit to allow the interim use, which the Planning Commission may extend for up to six months if needed; and c) return to the City Council after the conclusion of Planning Commission's review." [see audio at 3:51:06 — this was not an order to make findings, but rather to review and make a recommendation about them] Item 4. Resolution No. 2020-77: Acceptance of the State of California, Department of Parks and Recreation, Division of Boating and Waterways Grant for Replacement of the City's Public Vessel Sewage Pumpout Stations The staff report does not explain why the City operates two pumpout stations near the American Legion Post. The Coastal Commission has an Item W13g on its September 9 agenda involving the American Legion site, and it notes the previously permitted dock with pumpout, but also mentions problems with "Members Only" signage restricting landside access to the adjoining beach. Is the pumpout on the American Legion dock clearly marked as being available for public use? It might also be noted that neither the City's Resources around the Harbor map nor its Public Pump -Out Stations and Piers map show a pumpout at the tip of the Peninsula as shown on Attachment A (staff report page 4-4), which displays a dot at what appears to be the "N St Pier" September 8, 2020, City Council agenda comments - Jim Mosher Page 5 of 6 believe that dot is misplaced and was intended to be placed at Fernando Street, which is a little to the left of the dot shown near the Fun Zone. Item 14. Ordinance Nos. 2020-22 and 2020-23: Newport Airport Village Planned Community Development Plan (PA2014-225) My initial concerns about this item are: 1. The liability the City may assume by overriding the Airport Land Use Commission's determination that this is unsuitable location for housing. 2. It's untimeliness in view of the broader General Plan Update process being considered by the Housing Element Update Advisory Committee. Regarding liability, at the July 29 meeting where the Council announced it would consider an override, our Community Development Director acknowledged that an override would absolve the ALUC of liability should aircraft accidents or noise lawsuits arise, as they fear, but he said he did not know who the liability went to. I would think the liability issue needs to be resolved before the Council goes any farther. As to timeliness, the Council has appointed the HEUAC specifically to consider and recommend to it how the General Plan should be amended to accommodate future housing needs requirements at a variety of income levels. Their analysis will include consideration of the Airport Area, and it was apparent from the reports presented at their last public meeting that their plan for that area is only in its earliest stages of development, and could eventually include a recommendation to amend the General Plan to allow housing within the 65 dB CNEL contour, which could affect this project, including how many homes it could accommodate. Considering the Council appointed the HEUAC to make recommendations to it regarding amendments to the General Plan related to future housing, and this is a request to amend the General Plan related to future housing, it is surprising the Council would feel free to act on this without a recommendation from them. In addition, it has to be noted City staff has inexplicably rushed this application throughout the process. First, it announced the Council would be voting to override the ALUC's decision before the ALUC had made a decision. And now, it is asking the Council to introduce ordinances amending the Zoning Code and approving a Development Agreement before the Council has considered, let alone approved, the General Plan amendments necessary to make either of those possible. Neither of those seem normal procedures to me. Item 15. Emergency Ordinance No. 2020-008: Mandatory Social Distancing, Face Coverings, and Restrictions on Walk -Up Bars for Eating and Drinking Establishments The noticing of this item is quite problematic, as is the title of the proposed ordinance. The relevant item the Council requested staff to come back with at the August 25 Council meeting (the Mayor split the Item XI request into two parts) was "implement a "one person one seat" rule for September 8, 2020, City Council agenda comments - Jim Mosher Page 6 of 6 establishments with a walk-up bar." There was nothing in that about establishing new regulations for establishments without walk-up bars, or about face covering S.4 Based on both the present notice and the ordinance title, readers of the agenda would continue to assume the Council is contemplating regulations that apply only to "Walk -Up Bars for Eating and Drinking Establishments." Moreover, the Abstract on staff report page 15-1 says "For City Council consideration is an Emergency Ordinance No. 2020-008 ("EO'), restricting any eating and drinking establishment with a walk-up bar," and the second sentence of the Discussion on staff report page 15-2 says "This ordinance addresses restrictions for dining establishments with walk up bars." However, a reading of the ordinance reveals it proposes to impose restrictions on all eating and drinking establishments and additional restrictions on ones with walk-up bars. That is not what one would guess from the agenda. Since an intent to regulate more than eating and drinking establishments with walk-up bars is not clearly stated in the agenda notice, as required by the Brown Act, I don't think that part of the ordinance can be legally enacted without re -noticing the item.' If the intent is, indeed, only to regulate dining establishments with walk-up bars, then the text of the ordinance needs to be revised to reflect that. It might be noted that the term "walk-up bar" does not appear to be defined in the existing Newport Beach Municipal Code, nor in the proposed ordinance. Finally, it might be noted the form of the ordinance, stating its disparate regulations in a single long continuous paragraph ("Section 2" on page 15-9) does not seem as clear or efficient as the separation into numbered or lettered (and sometimes titled) sub -paragraphs that is used in the normal code. Item 16. Coronavirus (COVID-19) Update I again applaud City staff for publicly updating the City Council on the COVID-19 situation, and not hiding behind an erroneous "threat to public services or facilities" closed session permission. That said, the public has heard repeatedly and in detail about an earlier outbreak at fire stations that has since been contained. It has heard almost nothing about what appears to have been an outbreak among City Hall employees prompting the closure of that facility to the public since July 13. How many employees were affected? Why does the City Hall remain closed after two months? When will it reopen? 4 There was a separate vote on August 25 to bring back an item "to enforce State guidance on face coverings by administrative citation," which appeared to address a citywide issue, not specific to business establishments. The new regulations proposed on eating and drinking establishments without walk-up bars in the present measure do not appear to be an attempt to reference or enforce state guidance — and would not be necessary if the council adopted a general enforcement of state guidelines. 5 With few exceptions, the Brown Act, Gov. Code Sec. 54954.2(a)(3), prohibits the Council from taking action on any matter not noticed on the agenda (other than voting to place an item on a future agenda, as is being suggested here).