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Home My WebLink About00 - Written CommentsReceived After Agenda Printed November 10, 2020 Written Comments November 10, 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 27, 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 553, Item XII, Brenner, bullet 2: "Requested a future agenda item to consider waiving all City fees for the proposed school at the Community Church Congregational" [comment: this request does not appear on the present agenda] Page 557, Item 14, paragraph 2: "In response to Council questions, City Harbormaster Borsting indicated Marine Activity Permits (MAP) will be presented to Council at a later date, requirements for live-aboards will also apply to vessels in the anchorage, live-aboards in commercial marinas will be subject to City standards for sanitation and operations, a vessel traversing the Harbor is not subject to a dye tablet test, an offshorengig offshore mooring permittee, an anchorage user, and an offshore mooring sub -permittee are subject to City standards, and a vessel that does not allow a dye tablet test will be asked to leave the Harbor." [see video at 1:09:35; there are no permits for use of the anchorage] Item 3. Ordinance No. 2020-27: Changes to Title 17.40 (Live Aboards) and Other Related Provisions The agenda listing for this item remains deceptive, saying not saying it changes rules for use of the anchorage which have nothing to do with live-aboards. The summary published on page A2 of the October 31 Daily Pilot does no better. It says the ordinance "clarifies where anchored vessels are allowed." Ordinance No. 2020-27 does nothing to clarify where anchored vessels are allowed. It does limit use of the anchorage to 72 hours within any 30 calendar day period and contains a strange and likely unenforceable new provision prohibiting the occupants of a vessel in the existing in -harbor anchorage from leaving their vessel unattended for more than a single interval of three hours or less each day. I continue to think that is ill-conceived, as is the definition of "live -aboard" which limits itself to activity on (1) moorings and (2) docks in commercial marinas — making living aboard a vessel anywhere else in the harbor unregulated and permissible without a permit. I don't know, but suspect the intent was to prevent living aboard any vessel in the harbor without a permit, and to not allow it in situations where a permit could not be issued. Item 10. Annual Reporting on Development Impact Fees and Development Agreements See comments on Item 13. Government Code Sec. 66477(a)(6) imposes a similar "use or refund" requirement on park in -lieu fees collected by the City. November 10, 2020, City Council agenda comments - Jim Mosher Page 2 of 3 Item 13. Resolution No. 2020-95: An Update to the Established Fair Market Value Per Acre for Assessing In -Lieu Park Dedication Fees Both the agenda notice and the staff report are unusual in that they keep readers in suspense, indicating an "update" is being offered for approval, but not hinting what the recommendation will be: for an increase or a decrease? or by what amount? The answer is hidden in a paragraph at the top of page 5: the in -lieu fee is proposed to increase from the current $26,125 per unit to a new fee of $38,400 per unit. Portions of the staff report appear to have been copied from that for Item 15 on May 8, 2007, when Resolution No. 2007-30 was adopted. Both refer incorrectly to "the Quimby Act" as "California State Statute 66477." The Quimby Act is actually California Government Code Section 66477, which is (hopefully) implemented in our NBMC Chapter 19.52. The qualification "hopefully" is necessary because Gov. Code Sec. 66477 has been amended at least three times since NBMC Ch. 19.52 was last revised in 2001: by AB 806 in 2012, by AB 1359 in 2013 and by AB 1191 in 2015. Of those, AB 1359 allows an in -lieu fee, under certain circumstances, to be used to develop parks away from the development paying them, a feature not incorporated in our ordinance; while AB 1191' requires the interest earned on unspent fees to be used only for the same purposes as the fees themselves (namely to "develop new or rehabilitate existing" parks), which probably renders obsolete our Sec. 19.52.070.D, which appears to allow the interest to be used for general park upkeep. And even without the legislative changes, the Parkland Standard calculation of NBMC Sec. 19.52.040 might be in need of updating, since it says it's based on "figures from the 2000 Federal census and the City's Recreation and Open Space Element," neither of which are likely current. Given the apparent recycling of a 13 -year old staff report, it seems remarkable that on page 3 it reaches the same conclusion about the residential occupancy load in Newport Beach (2.09 persons per unit) supposedly based, as required by the state code, on "the most recent available federal census or a census taken pursuant to Chapter 17." Since the correct number for this is relevant not only to the Quimby Act but also to our RHNA allocation, the claim of an unchanging 2.09 persons per unit would be more credible if the staff report identified what census data had been used, and specifically what population and what number of household units is claimed. As to the remaining substance of the report, I have two main concerns: 1. Under our municipal code, the park dedication is supposed to serve the area in which the subdivision occurs. I don't see how an appraisal of existing parkland or of industrial property in West Newport Mesa would reflect the cost of acquiring land for parks in a different, fully -developed part of the City, such as the Airport Area. As a result of AB 1191, the state has two versions of Gov. Code Sec. 66477 online: one is current, the other will supersede that on January 1. The differences between them affect only to the City of Los Angeles (which sponsored the bill). November 10, 2020, City Council agenda comments - Jim Mosher Page 3 of 3 2. In a matter related to current agenda Item 10 (Annual Reporting on Development Impact Fees and Development Agreements), the Quimby Act, as acknowledged in NBMC Sec. 19.52.070.C, requires the "local public agency to which the land or fees are conveyed or paid" to "develop a schedule specifying how, when, and where it will use the land or fees, or both, to develop park or recreational facilities to serve the residents of the subdivision." It also requires the fees to be "committed" (presumably to that schedule?) within five years or else returned to the property owners. The staff report (last sentence on page 5) mentions that "Year-to-date for FY 2020-21, $208,694 in Park In -Lieu Fees have been collected, and an additional $287,375 is anticipated to be collected," but does not indicate if they have been "committed," and if so, to what. Nor how much balance remains from prior years. Do we have "a schedule specifying how, when, and where" the in -lieu fees will be used and how that will benefit the specific subdivisions from which they were collected? As to less serious concerns, the second and third "Whereas" clauses in the proposed resolution (on staff report page 13-8, apparently copied from 2007) significantly oversimplify the rules stated in the Quimby Act and echoed in our Municipal Code. In many cases the obligation to provide park land is triggered by the creation of new dwelling units, not just new lots. Item 14. Fire Station No. 2 - Financing Plan and Resolution Authorizing the Preparation, Sale and Delivery of Not to Exceed $10,000,000 Principal Amount of Certificates of Participation, and Award of Fire Station No. 2 Construction Contract No. 8269-2 (15F13) The staff report does not make clear if the City has sufficient cash reserves to pay for this project. If it does, it would seem to me more sensible to use the cash now and borrow only when and if, in the future, borrowing is truly necessary.