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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 27, 2020 Written Comments October 27, 2020, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the October 13, 2020 City Council Regular Meeting Suggested corrections: The passages shown in italics below are from the draft minutes with suggested corrections indicated in strikeout underline format. The page numbers refer to Volume 64. Page 536, Item XI, Brenner, bullet 1: "Utilized slides to commend the Public Works and Fire Departments regarding their response to the water main breaks at Shorecliffs, ..." [comment: should future generations read these minutes as phrased they might find it curious City staff was commended, rather than scolded, for broken water mains. The minutes may be clearer if amended as suggested] Page 536, Item XI, O'Neill, bullet 2: "Attended the Housing Element Update Advisory Committee HEUAC) meeting the prior week..." [comment: Curiously, the official minutes of the October 7, 2020, HEUAC meeting list the Mayor as one of two members absent. Perhaps he arrived late or tuned in?] Page 543, Item 18, paragraph 2: "Mayor O'Neill acknowledged that the City's good operators wanted to obtain the the City's support while balancing the needs of residents and visitors." [? The sentence as drafted, and even as corrected, does not accurately capture what the Mayor said at 57:15 in the video, which was he was concerned that the good operators were upset with the proposal when the intent had been to advance something that would reward them.] Page 543, paragraph 2 from end, sentence 2: "Police Chief Lewis indicated police officers enforce after hour after -hour parking violations and notifies notify code enforcement of citations or advisements that are issued." Page 545, paragraph 6: "Carol McDermott, representing Craig Batley, Aaron Batley, Jeff Bosson, and Don Abrams believed the Planning Commission rejected phase 2 because..." [comment: Ms. McDermott appears to have been acting as a lobbyist, but is not registered as one.] Page 548, paragraph 2 from end: "With Mayor O'Neill, Mayor Pro Tem Avery and Council Member Muldoon voting "no,"the motion, as amended, carried 4-3." [Two paragraphs before, the City Attorney suggested a modification that was apparently accepted by the Council.] Item 4. Ordinance No. 2020-26: Short Term Lodging Amendments to Chapter 5.95 (PA2020-048) I genuinely do not understand what the City is doing with the ordinance. We are told (on page 4- 2) "If the ordinance is adopted, then the minimum age of 25 years old to rent a unit and tying parking tickets to short-term lodging units will go into effect in 30 days. The remainder of the attached ordinance will not go into effect until the California Coastal Commission (CCC) reviews and approves the item and the City Council adopts any amendments the CCC incorporates." October 27, 2020, City Council agenda comments - Jim Mosher Page 2 of 9 However, this ordinance is not part of what the Council, through Resolution No. 2020-91, sent to the CCC to review, possibly modify and certify as consistent with the Coastal Act. True, the proposed Implementation Plan text sent to the CCC references passages in Chapter 5.95, but the content of those passages has not been submitted for review. Is staff saying the CCC is free to suggest changes to Chapter 5.95, and the City must accept those if it wants them to go into effect in the Coastal Zone? In which case the Council would have to introduce a new ordinance to amend the one being proposed for adoption here? And in that case, what would be the status of those CCC -modified passages? Could they not be changed in the future without CCC approval? If any of this is correct, it seems contrary to original intent of the earlier Council that proposed Title 21 precisely to keep all code requiring CCC certification in that one place. As to the content of the ordinance being proposed for adoption, I continue to think allowing transfer of permits is a mistake. After repeatedly assuring the public that short-term lodging is not a property right, the Council is now making the permits a form of private property that can be bought and sold, but only from those arbitrarily privileged to hold a permit when the ordinance goes into effect and those they later choose to sell from. As with mooring permits, this will make the government -administered waiting list a joke. Those who tire of using their investment property as a STL will have the option of letting their permit lapse and revert to the City, at no benefit to themselves, or selling it, with the property, to a lucky buyer at great personal profit. They will naturally choose the latter, and those down the waiting list will soon learn the most efficient way to start an STL is to bypass the list and instead find a private owner from whom to buy a property with permit. Unlike with moorings, the list will move a little because there will be permits that revert to the City through revocation or disuse by holders who don't want to sell their property. But there is still something fundamentally wrong with turning the government issuance of permits at nominal cost into something that can be bypassed and used for private profit. Faced with harsh criticism from the Orange County Grand Jury over the private profits being made from sale of mooring permits, an earlier City Council adopted Ordinance 2010-20, which limited permit ownership to a single natural person and phased out private transfers (except to a very immediate family member) over 10 years, so that unused permits would revert to the City and be awarded (with only a nominal fee covering the paperwork) through the waiting list. Although this was, sadly, abandoned by a later Council (with Ordinance 2017-7, which completely eliminated the waiting list and restored the previous system of private sale of mooring permits), I believe limiting the issuance of an STL permit to a single natural person who has rights to rent the property would avoid the many change -of -ownership without changing owners scenarios mentioned by the Mayor. But there is there is still something fundamentally wrong about limiting eligibility for government - issued permits to a subset of the public whose only qualification is they already have a permit. That creates a privileged class of "permit holders" which others cannot enter unless an existing permit holder decides to give up their privilege. October 27, 2020, City Council agenda comments - Jim Mosher Page 3 of 9 The only way to avoid that which I can see remains a periodic lottery, in which the City establishes cycles (say of five years), and well before the start of the next cycle, all 1,550 permits for that cycle are issued anew and at random with each property that has expressed an interest as operating as an STL in that cycle having an equal chance. As to the details of the ordinance, it might be noted that both the existing and proposed Section 5.95.045.A.2 could be read as requiring a rental agreement that allows only adults (no children) to stay in STLs. Item 5. 2019-2020 Playground Improvements Project - Notice of Completion for Contract No. 7737-1 (20P01) The mysterious "Marines Park" on page 5-2 appears to be Mariners Park, as confirmed by the Location Map on page 5-4. Item 6. Community Room Audio -Visual Improvements - Notice of Completion of Contract No. 7817-1 (19F02) The contract cost for City projects often seems high. This project, the purchase and installation of nine television screens, is one the public can more easily relate to than most, and the seemingly high cost ($13,884.91 per TV) is no exception. The result is, generally, an improvement over the projection system it replaces.' While that is good, it should be kept in mind that the new Council Chamber has not lived up to a number of technological promises that preceded its construction. For example, it was anticipated the Council members and public speakers would have access to interactive touch screens on which, during presentations, they could highlight features they wanted to talk about. That did not materialize. In fact, public speakers now address the Council from a podium in the Community Room (on by phone from home) with strict time limits enforced against them, but with no indication of how much time they have left. It would seem we could get some of the basics better. Item 7. Central Library Chiller Maintenance and Condenser Replacement/Relocation - Notice of Completion of Contract No. 7776- 1 (20F02) The table at the top of page 7-2 indicates 20 days were allotted for this project and it was completed one day ahead of schedule. The narrative at the bottom of the page says the work was completed two months late. How can those both be true? ' The video wall is much brighter than the projected image and hence it is much more pleasant to view when ambient light conditions are high, as is often the case in the Community Room. However, the spaces between the screens add dark lines to the image that create a distraction that was not present in the old system. October 27, 2020, City Council agenda comments - Jim Mosher Page 4 of 9 Item 9. Approval of a Purchase Agreement with Halcore Group, Inc., DBA Leader Industries for the Purchase of Rescue Ambulances The staff report, on page 9-2, correctly states that "Per City Council Policy F-9 (Attachment 8), City Vehicle/Equipment Replacement Guidelines, the replacement schedule is eight years or 100, 000 miles for frontline ambulances and four years for reserve ambulances." It does not explain how that policy leads to the conclusion that three new ambulances need to be purchased at this time. From the table on page 9-2, none of the three current frontline ambulances have reached the time or mileage milestones for replacement (although it looks like the 2017 vehicle, with 80,350 miles, may meet the mileage threshold soon). Likewise, none of the reserve ambulances, all apparently purchased in 2013, have been in service for anything like the 12 years expected by Policy F-9 (8 years frontline plus 4 years reserve with no mileage limit while in reserve). Policy F-9 was most recently revised to ensure the money needed for replacements was being set aside in a timely fashion, but at the same time to allow flexibility in the actual decision to replace based on the true condition of the vehicles. The staff report fails to explain if the 2013 vehicles have truly reached the end of their useful lives after a mere seven years, such that the costs of maintaining them exceeds the cost of replacement. From the table, it would appear two of the 2013 vehicles entered reserve status when the two 2018 vehicles were purchased, which would mean they have been on reserve for just two years. It is interesting to note that when the 2018 vehicles were purchased (see Item 13 from November 28, 2017), the ambulances being replaced at that time were 9 and 12 years old, and although only one had more than 100,000 miles, they had been in reserve for four years at the time of the report. When the other current frontline vehicle was purchased in 2017 (Item 14 from April 16, 2016), it replaced an 11 year old vehicle, while a 13 year old model with 127,630 miles was retained. Given all of this, the current request to replace 7 year old vehicles that have been on reserve for less than 4 years seems inconsistent with Policy F-9. In summary, there may be some other explanation, but on the face of things the City appears to have an ambulance fleet that is not delivering the previously -expected useful life. If so, why is the Council being asked to waive not one, but two, policies (F-9 and F-14) to buy more of the same? October 27, 2020, City Council agenda comments - Jim Mosher Page 5 of 9 Item 10. Ocean Piers Condition Assessment Study — Approval of Professional Services Agreement with COWI North America, Inc (17H03) The staff report mentions proposals being received from five companies. We understand from page 10-2 that "panel rated Moffit & Nicho12 (M&N) and COWI within a few points of each other," but gives no indication of how the other three fared. And although the staff report says the pier inspections take place every two years, it seems the last Council -approved inspection was that awarded to COWI as Item 9 on September 13, 2016 (four years ago, resulting in the report shown starting on page 10-43. But there is a City Manager approved contract with Moffatt & Nichol, C-6238, from 2015 which may have been amended to allow a 2018 inspection. It would have seemed helpful to show in the staff report the inspection history, who performed it, and when fresh eyes might be desirable. Item 11. Compressed Natural Gas (CNG) Fueling Facilities — Rejection of All Bids for Contract No. 7876-1 (20F14) I agree with staff's assessment that this project needs to be rethought, but one of the reasons indicated for rejecting the bids is that they "were well in excess of the Engineer's Estimate." It would have been helpful to state what that estimate is, so readers could assess for themselves what "well is excess" means. Item 12. Planning Commission Agenda for the October 22, 2020 Meeting As indicated in the staff report, two of the items on Planning Commission's agenda were appeals of Coastal Development Permits approved by the staff Zoning Administrator for "small" cell installation S3 on City streetlights, as allowed by a Master License Agreement with AT&T approved by the City Council as Item 17 on February 12, 2019. My impression at the time, was the MLA was intended to facilitate use of City streetlights in areas were less intrusive options were not available (such as deep within a residential area). The Council should be aware that a number of City streetlight locations are being promoted by two gentlemen who, since they are not registered as lobbyists for AT&T, appear to be essentially freelancers paid by how many streetlight entitlements they can secure. As a result, their applications show up as one-off proposals rejecting any non -streetlight alternatives even when they exist (for example, hiding the antennas in the fagade of a nearby commercial building). 2 Actually, Moffatt & Nichol. 3 "Small" cell installations are actually eight -foot tall structures added to the top of streetlight poles, that are actually more visually intrusive than the more powerful antennas affixed to the sides of the poles in previous decades. October 27, 2020, City Council agenda comments - Jim Mosher Page 6 of 9 In addition, as at least one Planning Commissioner expressed concern about because of the ominous claims they make about the limited area the new installations serve (quoting numbers as low as a 250 -foot radius), the two gentlemen, while citing the Master Agreement present no master plan so the public can know how many 4G streetlight installations they expect to eventually propose — and no hint of how many will be needed for 5G, which they say requires an even denser network. Item 14. Ordinance No. 2020-27: Amending Chapter 17.40 (Live- Aboards) of Title 17 (Harbor Code) of the Newport Beach Municipal Code and Other Related Provisions The above agenda notice, which echoes the proposed ordinance title, is misleading. The ordinance does indeed include amendments to provisions outside Chapter 17.40 that are related to live- aboards. But it also includes provisions completely unrelated to live-aboards: in particular, changes to the anchorage regulations. Even setting that aside, the "Discussion" portion of the staff report is quite confusing. The Harbor Commission ad hoc committee (which at that time consisted of three members: Kenney, Blank and Yahn) discussed their recommendations for live -aboard issues at two or three of their general Title 17 revision workshops in 2019. Most of these were sparsely attended, but the committee did hear some comment from a few current live-aboards as well, if I remember correctly, from a couple of adjacent residents. The dialog from the May 13 and June 24, 2019, workshops, and the committee's subsequent responses to it, has beenop sted. After the City Council sent the live -aboard revisions back for further review, possibly on the thought that live-aboards could contribute toward the City's RHNA obligation, the committee held, as indicated, an additional workshop, virtually, on August 26, 2020. Although a letter announcing it may have been sent to all commercial marina operators, it would not seem to be the letter shown in Attachment C, for as printed that letter is dated (inadvertently?) after the workshop ("October 16") and it announces an in-person meeting at Marina Park, rather than a virtual one. As to the public participation, it is my impression that if "eight individuals attended the virtual meeting," they consisted of the two committee members, Harbormaster Borsting, Assistant City Manager Jacobs, myself, Nancy Scarbrough, Charles Klobe and Jim Parker, the owner/operator of Port Calypso Marina on Mariners Mile. Of the members of the public, only Mr. Parker had any direct experience with commercial marinas or live-aboards. And the two letters show in Attachment D (one from me, one from Mr. Parker) were not additional input received at the workshop, but rather comments by two of the previously -mentioned participants to the full Harbor Commission for their September 9 meeting, where they considered the committee recommendations as recorded in Attachment E (which, amid many typos, says "Two public stakeholder meetings were conducted").4 In other words, public participation seems to have 4 The City calendar shows a Commercial Marina Live -Aboard Community Outreach Meeting scheduled for March 2, 2020, at Marina Park. That might possibly have taken place with me being the only member of the public to show up. October 27, 2020, City Council agenda comments - Jim Mosher Page 7 of 9 been limited to a single commercial marina operator, with no recent input from any commercial marina live-aboards or nearby residents. For those who think words matter in drafting laws and regulations, it was also disturbing that in the various redlines presented during the Harbor Commission it was difficult to determine if they were showing changes from the existing code or from some earlier proposal, as well as, as acknowledged in the staff report, that what is now being presented to the Council may not be exactly what the Harbor Commission saw. As to the substance of the proposed ordinance, I continue to think it is far from perfect. Among other things: 1. The definition of "live -aboard" proposed in Section 1 (page 14-5) mixes definition with regulation. a. I believe by "living aboard" the Harbor Commission wants to mean spending a night on a vessel. But if so, it would be good to simply say so. b. The Harbor Commission also appears to want to allow "living aboard," without a permit for up to three nights in a 30 day period on off -shore moorings and up to 180 nights a year in commercial marinas. With a permit, it wants to require a commitment to spend 243 nights or more a year on an off -shore mooring and 180 nights or more a year in commercial marinas. And it appears to want to prohibit overnight stays in any other circumstances. All those rules should be stated and consolidated in the regulatory sections of Chapter 17.40. Instead, we will now have different definitions of what living aboard means on off -shore moorings versus in commercial marinas, and no definition of what it means on any other vessel. That is poor law and it makes no sense. c. Moreover, in those regulatory statements, rather than setting an unambiguous standard like "3 nights" we will be using such awkward and difficult -to -enforce language as 72 hours" (as well as "days" instead of "nights"), without explaining how the clock starts and stops for counting hours (or days) spent living aboard. d. The worst consequence of mixing definition with regulation is that the definition has become so specialized as to exclude everything but certain activities on off- shore moorings or in commercial marinas. That inadvertently omit activities that later passages seek to regulate. i. For example, Section 17.40.020 (page 14-7) seeks to prohibit living aboard a vessel on an onshore mooring. However, it is impossible to "live -aboard" a vessel on an onshore mooring since no activity on such a vessel fits the new definition of "live aboard". ii. Similarly, the same section seeks to prohibit living aboard a vessel berthed to a pier bayward of a residence. But again, there is no possible activity on such a vessel that could be described as "live aboard" under the proposed code. October 27, 2020, City Council agenda comments - Jim Mosher Page 8 of 9 iii. At the very least, this creates new contradictions in the code. More generally, it is yet another example of the Council being asked to adopt laws it expects to be enforced in a way different from what they say. 2. In addition, we seem to remain unable to express limits in clear English or to properly bifurcate "either .... or...." situations (in these examples, the dividing line between being or not being a live aboard in a commercial marina): a. In the definition on page 14-5 we have the at -best -redundant, and in fact ambiguous, "for a period exceeding one hundred eighty (180) days or more" which could be read as, and should be, either "for a period exceeding one hundred eighty (180) days-GF4nore" or "for , per4od eXGee in one hundred eighty one (4-89 ILI) days or more".' b. And in the new Section 17.40.030 on page 14-7 we encounter, for the other side of the same regulation, "for a period not less than one hundred eight (180) days" which in plainer English is for , per4ed net less than one hundred eight (180) days or more". While unambiguous this time, that does not mesh with either possible reading of the previous statement. c. It is as if we think things sound more legal in proportion to how difficult they are to read, and in making things difficult to read we trip ourselves up. 3. The proposed definition creates additional confusion by saying the term "live -aboard" refers to how a vessel is used. So based on the definition, a "live -aboard" permit would appear to attach to a boat rather than to a person. But elsewhere in the code, and in common parlance, "live -aboard" clearly refers to a person living aboard a vessel, with the proposed code leaving it unclear whether each person living aboard a vessel needs a permit, or there only needs to be a single permit for the whole vessel. 4. 1 am also not sure if the present revisions adequately address the legality of allowing a visiting mariner to stay on a vessel tied to a guest mooring for more than 3 nights — or how one could verify such a vessel is used as the permittee's principal residence. 5. As indicated at the beginning, the passages changing regulations on use of the in -harbor anchorage are quite problematic given the agenda noticing and title of the ordinance. The anchorage proposals are neither cleanup nor related to live-aboards. Rather, as indicated in my written comments to the Harbor Commission at their September 9 meeting, they impose regulations on use of the in -harbor anchorage that were never intended to apply there. a. As indicated in those comments, the new provisions are a copy of ones the Council adopted in 2009 to address a problem with people anchoring vessels in the open ocean off Big Corona State Beach (see Item 4 from the Council's 5 And why has our legal department introduced and now persists in loading our code down with the archaic practice of repeating all numbers in words and numerals — something that adds nothing and only makes the resulting code harder to read? Newport Beach survived for nearly a hundred (100) years without doing this and was none the worse for it. October 27, 2020, City Council agenda comments - Jim Mosher Page 9 of 9 January 13, 2009, meeting, which details the unique open ocean problems being addressed). The conditions in the in -harbor anchorage are quite different, and applying the same restrictions there — for example, allowing a single 3 -hour shore trip each day' -- does not seem very welcoming to visiting mariners. 6. Finally, one has to wonder if the proposed changes, regarding both live aboards and anchoring, like much of the Harbor Code, change access to coastal resources and require a coastal development permit (in this case, directly from the Coastal Commission since it affects their area of original jurisdiction). 6 As a result of changing tides, there may be some rationale for wanting a vessel to not be left unattended for more than three hours at a time. It is less clear, why the shore trips would be limited to one per day or how that could even be enforced without continuously monitoring the vessel and its occupants.