Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 9, 2021 March 9, 2021, 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 1. Minutes for the February 23, 2021 City Council Regular Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c+r°�at underline format. The page numbers refer to Volume 64. Page 640, paragraph 3 from end: "Assistant City Manager Jacobs continued the presentation with descriptions of the Homeless Ad Hoc Committee, county, state and federal partners, permanent supportive housing, and how the public can help." [comment: To reiterate by public comment, the current "Homeless Ad Hoc Committee" (like the "Solid Waste Ad Hoc Committee" and possibly others) does not appear on the City Clerk's Roster of Boards, Commissions and Committees. It sounds a great deal like the Homeless Task Force from 2019, which the public was first told had been stripped of its citizen members, then sunset entirely. Having staff advised by committees that do not meet publicly, and whose membership and method of appointment to are unknown does not seem consistent with a commitment to transparency]. Page 642, Item VII (Roll Call): "Absent: Mayor Pro Tem Kevin Muldoon (excused)" [comment: Newport Beach is fortunate to have remarkably few council member absences. However, it should be noted that the means by which the absences are "excused" is far from clear. This is relevant to City Charter Section 403 which requires the removal of a council member absent from the regular meetings for a specified period of time "unless by permission of the City Council expressed in its official minutes." While minutes with the word "excused" are routinely approved, it would seem some Charter -anticipated step at the actual meeting where the absence occurred to debate the reason and grant the permission is missing.] Page 643, Item XIV, paragraph 3: "Jim Maloney Moloney, addressing Item 6, believed that many residents cannot afford $30, 000 and expressed concern about the interest rate presented in the information." Page 645, Item 5, paragraph c: "Appoint Louis Denger, Tom Houston and George Robertson to serve on the Water Quality/Coastal Tidelands Committee fortwo2.5-year terms, and Peter Belden, Curtis Black, Charles Francher and Richard McNeil to serve on the Water Quality/Coastal Tidelands Committee for four 4.5 -year terms." [See Council member Dixon's amendment to motion in the paragraph before Item XV on page 644. It might be noted this item remains fouled up. Consistent with what the Clerk "confirmed" at the February 23 Council meeting, the amended Resolution No. 2021-11 says the appointments to fill the vacancies that opened on February 1, 2021, the new terms will be for "two-year six-month" and "four-year six-month" terms. However, that would cause the new terms to run to August 1. And it goes on to say (without amendment) "Except for March 9, 2021, City Council agenda comments - Jim Mosher Page 2 of 7 appointments commencing February 1, 2021, appointments shall occur in January." But Council member Dixon's stated intent was to move away from the January appointments, and have made (along with the other board and commission appointments) in June for terms commencing July 1. In retrospect, the Council may wish to reconsider this item in its entirety as it would have seemed reasonable to not only correct the misstatements, but to more thoroughly stagger the terms so that some terms would expire each year, as City Charter Section 702 originally provided, rather than having an entire half of the committee expire one year and the remaining half two years later. For example, two of the new terms could be set to expire on July 1, 2022, two on July 1, 2023, two on July 1, 2024 and one on July 1, 2025, with four year terms thereafter. This seems particularly important in view of the historic difficulty of finding sufficient applicants to fill a large number of open seats.] Page 643, Item XVII, paragraph 2: "James ahene., Jim Moloney stated that refuse vehicles mix recyclables with garbage and he was offended by paying a recycling fee when recyclables were hauled to the landfill with trash." Page 643, Item XVII, paragraph 4: "In response to Council Member Brenner's question, Community Development Director Jurjis related that the City is allowed to enact an ADU ordinance that is more restrictive than state law, and the ordinance is pending before the California Coastal Commission." [Comment: This is what was said, but it seems misleading. State law allows cities to enact ADU ordinances more restrictive than the default state regulations, but at the same time it strictly limits how much more restrictive they can be. For example, state law does not allow cities to prohibit ADU's in any residential district.] Page 649, full paragraph 2: "In response to Council Member O'Neill's question, Principal Civil Engineer Sommers advised that he is following up regarding the Coastal Commission's input on the wider trails." [Comment: For those interested, recent years' Coastal Commission hearings are archived in video, so the staff reports and commissioner reactions to recent requests for Coastal Development permits to widen bike trails in other cities can be reviewed there, and the staff report from still older ones are also archived. For example, Santa Monica's request to widen their portion of a bike/pedestrian beach trail so as to separate bikes from pedestrians can seen in the video of the March 6, 2019, CCC meeting (to see the video, scroll down to Item 21d and click on the film reel icon, or on the application title to view the staff report). That matter was non -controversial enough that the later, similar request from LA County to widen and separate the final 2 miles of beach trail north of Santa Monica was approved without comment on the equivalent of the CCC's consent calendar on November 4, 2020 (scroll down to Item 11 a). However, an earlier request from Long Beach was meant with much greater discussion by an earlier Commission when heard on June 13, 2013 (Item 10c). The addition of a Venice Beach bike trail was considered in May 1997.] March 9, 2021, City Council agenda comments - Jim Mosher Page 3 of 7 Item 4. Resolution Nos. 2021-18 and 2021-19: Adoption of City Council Policy K-4 (Reducing the Barriers to the Creation of Housing) and Initiation of Amendments Related to Increasing Housing Opportunities (PA2021-019) These proposed new policies are being put forward with very little opportunity for public input To the best of my knowledge, they have not been reviewed or recommended by the Housing Element Update Advisory Committee, even though that committee is tasked with advising the Council on strategies to meet the City's RHNA requirements.' Instead, the idea that these new policies might be needed was introduced, without any advance warning, at the February 9 study session on "Current Status of the Housing Element Update Process," and is now being proposed for adoption, without any further discussion, on the consent calendar. As I attempted to say at the study session, the third part of the proposal — the "Mixed -Use Resort Opportunities" authorizing staff to "interpret" 30% of the voter -approved hotel room entitlements in the General Plan to be entitlements for dwelling units — is effectively a General Plan amendment inconsistent with Greenlight (City Charter Section 423). In fact, it seems to seek to legitimize and encourage repetition of a previously -criticized sleight- of-hand in 2012 when staff induced the Council to adopt Resolution No. 2012-63 converting 79 of the 611 hotel rooms entitlement approved by voters in 2006 at the Newport Beach Marriott (General Plan Anomaly 43) into an entitlement for 79 dwelling units for use in the Irvine Company's Villas Fashion Island apartment development — without ever counting those units toward the Greenlight threshold for dwelling units without voter approval because "it was not a General Plan amendment." Hence the Vivante Senior Living project was allowed to add 90 more units to Newport Center even though when combined with 80% of the previously -added 79 the total added without voter approval was well over the 100 -unit Greenlight threshold for a vote. Because of that and similar changes to the General Plan land uses made without benefit of GP amendment, the current state of entitlements throughout the City is difficult to be sure of. But in Newport Center (Statistical Area L1) it appears that entitlements for 827 voter -approved hotel rooms remain in Anomalies 40 and 43. This policy, if approved, would apparently allow 30% of those, or 248, to be counted as entitlements of dwelling units without regarding that as a GP amendment, and therefore without crossing the Greenlight threshold of adding no more than 100 without voter approval. All this seems a prelude to the uncomfortable question of whether the Council can approve a new Housing Element committing to adding entitlements for many thousands of new dwelling units without calling that a General Plan amendment subject to Greenlight, and, therefore, without needing voter approval. City staff has said only amendments to the Land Use Element of the GP trigger Greenlight. But Greenlight doesn't day that (it says it is triggered not only by ' To be sure, based on his comments to the committee, the committee's chair seems to hold the much narrower view that the committee's sole purpose is to locate potential new housing sites. March 9, 2021, City Council agenda comments - Jim Mosher Page 4 of 7 amendments adding traffic or non-residential intensity, but also by amendments adding dwelling units). As to the more modest hotel conversion proposal, it should be noted that when voters were last asked to approve increased GP entitlements with Measure V in 2006, the Irvine Company asked the Council to consider adding a very similar provision to the GP that would allow staff to later administratively convert the anticipated voter -approved hotel room entitlements to dwelling unit entitlements. It was rejected by Council and the City Attorney as being inconsistent with Greenlight (see the June 27, 2006, Council video starting at around 4:00:00 and July 11, 2006, video at 1:46:50). Such conversions are also inconsistent with paragraph G of the Council's existing Greenlight implementing Policy A-18, which prohibits using decreases in "intensity" entitlements (hotel rooms) as credits against increases in "density" ones (dwelling units). In short, a policy to allow voter -approved hotel room entitlements to be used as entitlements for dwelling units without amending the GP to reflect the changes and counting the new units toward the Greenlight thresholds is inconsistent with existing Council policy as well as the intent of Greenlight. Moreover, the proposal to limit staff's authority to regard General Plan hotel room entitlements as dwelling unit entitlements to areas outside the Coastal Commission's appeal jurisdiction seems a tacit admission of an additional abuse of power: namely, a recognition that the resulting loss of previously -allowed visitor -serving accommodations likely conflicts with the Coastal Act, but that the City will permit it anyway at locations where it believes it can get away with it. That seems a breach of the trust placed by the state in the City to administer a Local Coastal Program supporting the Act and could lead to unwanted and unwinnable litigation. Item 9. Confirmation of Council Member Joy Brenner's Citizen Appointment to the Finance Committee It is not clear that the staff report is entirely accurate in saying (on page 9-2) that "At the close of the application period, the City Clerk's Office received three (3) applications." An inspection of the Finance Committee applications folder on Friday evening revealed only two new applications submitted in February 2021. It was not clear that existing committee member (and recommended appointee) Larry Tucker had actually applied for reappointment since his current application, originally submitted in 2018, seems to have last been stamped on June 25, 2020. But there were two older applications in the folder, as current as Mr. Tucker's, for a total of five candidates, assuming Mr. Tucker and the other two expressed a continuing interest in appointment. Item 11. Ordinance No. 2021-6: Zoning Code Amendment to Allow the Operation of Wine Tasting Rooms within the Industrial Zoning (IG) District (PA2020-042) As I have attempted to articulate at previous hearings on this matter, I do not think this zoning code change can be approved without a prior (or simultaneous) amendment to our General March 9, 2021, City Council agenda comments - Jim Mosher Page 5 of 7 Plan, for the Zoning Code is supposed to implement the General Plan, and this proposal is inconsistent with it. In particular, Table LU1 of the Land Use Element (page 3-13) reserves the IG -designated land "to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses." The word "ancillary" means subsidiary to, supporting and connected with the primary use. Wine making is a low intensity industrial use. A wine tasting room that allowed sampling of wines produced on the same parcel (or even wines produced on other parcels within the IG area) would be "ancillary" to that industrial use. But what is being proposed here is a tasting room that offers samples of wines produced not only outside the IG area, but outside the City. Such a use, unlike say a sandwich shop that provides lunches to the industrial workers, is not connected with, essential to or even primarily intended to serve those uses. Instead, what is being proposed here appears intended primarily to be an entertainment venue intended primarily to serve visitors from outside the IG area. It is even required, by the proposed zoning, to operate at hours different from those common to the industrial uses. In short, it is simply not "ancillary" to industrial uses in the IG area as the General Plan currently requires. For this to be a legitimate zoning for IG -designated land, Table LU1 in the General Plan would first have to be amended to make the description of the IG area read something like "The IG designation is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, a-nd limited ancillary commercial and office uses, and wine tasting rooms operating during certain hours." And Goal LU 5.5 on page 3-60 would also likely need to be revised to indicate a desire for things in the area more than "the manufacturing of goods and research and development." But that said, the logic of creating such a use -specific land use designation eludes me. Item 13. Ordinance Nos. 2021-7 and 2021-8: Approval of the Fee Study Update Despite the agenda heading quoted above, the staff recommendation includes a resolution as well as two ordinances. I have trouble understanding the increasingly odd and arbitrary percentages being recommended for inclusion in the cost recovery table, such as the 42% recommended for the RGP 54 dredging permits on page 13-4 (and it's not like the Finance Committee spent a lot of time reviewing that particular proposal set at an erroneous amount). He explanation in the next to last paragraph on page 13-7 of the former $100 appeal fee in Title 17 is a bit more nuanced than might be apparent from that. It was actually part of a scheme for increased harbor rents introduced in 2013, as a fee to be charged for having a Hearing Officer conduct an independent review of the City's calculation of the square -footage of water coverage March 9, 2021, City Council agenda comments - Jim Mosher Page 6 of 7 used to determine the annual rent for a dock over public waters — to be refunded if the Hearing Officer agreed that the appellant's calculation was better than the City's. On page 13-11, 1 have long thought the library charged extraordinarily high per page copy fees compared to other facilities, and now even more so. On page 13-33 there appears to be an error for the cost recovery amounts listed under "Community Development Department" refer to Title 17 (Harbor Code) activities. That said, I like the trend toward lower fees (or none) for appeals in which the applicant is successful than when they are not. Although that may not always be appropriate, as when a developer appeals denial of a particular project and then wins approval, after appeal, of something different from what was originally denied. Item 14. Ordinance No. 2021-9: Amending Newport Beach Municipal Code Chapter 5.49 to Remove Fire False Alarms and to Authorize the Police Chief to Investigate Alarm Systems for Permitting While I agree with the general intent of this item — that is, separating police alarm regulations from fire alarm regulations — I think the existing scheme of calculating the penalty for a false alarm by counting the number of violations over the prior, rolling 12 -month period makes more sense that the proposal to accumulate violations over a calendar year and then reset them to zero each year. So I would keep the existing penalty language on staff report page 14-6. Or better, I would incorporate the scheme used for repeated municipal code violations in general in the NBMC Subsection 1.05.020.D referred to in the staff report as the new system for false fire alarm penalties, in which the fines escalate (in that case from $100 to $200 to $500) based on whether or not a year has elapsed since the fine at the previous level. In that scheme, a full year would have to elapse with no false alarms before one could enjoy a reset to the "no fine for the next violation" level. By contrast, in the proposed scheme, a repeat offender, no matter how egregious, gets two "free" false alarms at the start of each calendar year for no good policy reason I can discern. That said, I think relying on Chapter 1 of the California Fire Code and NBMC Chapter 1.05 to inform citizens of the City's policy for penalizing false fire alarms (or failing to maintain a required fire alarm system) leaves those policies murkier than ever. As to the Fire Code, the relevant section for false alarms appears to be "401.5 (Making False Report) A person shall not give, signal or transmit a false alarm" where "false alarm" is defined as "The willful and knowing initiation or transmission of a signal, message or other notification of an event of fire when no such danger exists." A penalty for this is apparently allowed by California Fire Code Sec. 110.4, which, in our Municipal Fire Code Sec. 9.04.030 has been modified to read "Persons who shall violate a provision of this code or shall fail to comply with any of the requirements thereof or who shall erect, install, alter, repair or do work in violation of the approved construction documents or directive of the fire code official, or of a permit or certificate used under provisions of this code, shall be guilty and liable in accordance with the Newport Beach Municipal Code." March 9, 2021, City Council agenda comments - Jim Mosher Page 7 of 7 This doesn't really explain what the penalties might be, and for what. And assuming NBMC Subsection 1.05.020.D applies, that subsection begins by saying "Where no administrative fine amount is specified, established by resolution of the City Council, or established by any other provision of this Code, administrative fines shall be assessed in the following amounts." The average citizen would be at a complete loss to know if any of those further qualifications apply. In particular, if the Council had at some time enacted a resolution specifying fine amounts other than those listed. In any event, it would seem the penalty for a truly malicious false fire alarm should be more than $100; as should, perhaps, that for failing to maintain a working alarm system when one is required.