Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 23, 2021 March 23, 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 March 9, 2021 City Council Regular Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c4r°mut underline format. The page numbers refer to Volume 64. Page 653, paragraph 4: "Council Member Dixon related that the City has been operating in a pandemic, so the numbers are low compared to normal, the Building Code should be fully integrated with enforcing STLs, and an SPLs STL's permit should be on hiatus until the property is brought into compliance. In response to her questions, City Attorney Harp reported enforcement of STL permits inElud includes all violations of the NBMC and State law, and stated that staff would issue a red tag if there was a safety issue and would stop an STL from operating." Page 661, paragraph before motion: "Mayor Pro Tem Muldoon stated that one thing government can do is help businesses survive, believed the business has evolved, the atmosphere is tame, and the area is expected to changeover time." Page 662, paragraph 3, line 6: "..., the Fire Department did not shutdown shut down the business, ..." Page 665, paragraph 2, last sentence: "Senior Accountant Schweitzer advised that the $0.10 per minute after ten minutes would be the overstay surcharge at electric vehicle charging stations and would be collected at the time of use." Page 665, paragraph 3, sentence 1: "Mayor Avery stated that he prefers to build equity into recreation programs so that anyone can participate, summer programs are important for families, residents who are not budget GenSGiGUS probably need an incentive, and the true cost for participation should be broken down." [? The Mayor mentioned families on a "tight budget" needing subsidies for recreation programs and "waterfront home owners" possibly being incentivized to dredge by a discount. That suggests the latter are still budget conscious, rather than "not."] Item 8. Resolution No. 2021-24: Reestablishing the Ad Hoc Committee on Short Term Lodging This item underscores how difficult it is to know what committees exist in Newport Beach, who is on them and what they are doing. Although the City Clerk maintains an official roster of them, it lists, at present, only two Council Committees: an "Ad Hoc Committee on Re -opening and Business Advancement," which apparently meets privately, and a standing "Affordable Housing Task Force," which has to meet publicly but has not done so since 2016. The online Boards, Commissions and Committees page omits the "Re -opening and Business Advancement Committee," but lists a "Homeless Task Force" and the "Public Facilities Corporation." Per Resolution No. 2019-100, the officially -appointed Homeless Task Force dissolved at least by December 31, 2020. However, a recent presentation on homelessness March 23, 2021, City Council agenda comments - Jim Mosher Page 2 of 6 suggested a Homeless Ad Hoc Committee of some sort continues to exist (see Slide 14 from February 23, 2021, study session). Who created it and who is on it are both unclear. Similarly, the public has heard there is a "City Council Solid Waste Working Group" (see Item 13 from January 26, 2021) and a possibly different "Ad Hoc Committee on Solid Waste Recycling" (see the first bullet under Item XII on page 656 of the draft minutes from March 9, 2021, being presented at the present meeting).. Like those, the Clerk's list does not indicate the existence of an Ad Hoc Committee on Short Term Lodging, even though the present staff report (which looks pretty close to a recycling of the similarly -titled report for Item 4 from March 10, 2020) asserts that, even without the proposed resolution, it would continue to exist' — which seems consistent with the current enabling Resolution No. 2020-23. Even though the committee would seem to have presented its recommendations to the Council, which would normally mean its end, that resolution continues through June 30 "unless terminated sooner by the entire City Council" (which does not yet seem to have happened) As in 2020, the public is being told the "committee members" want to "continue." And the first bullet under Item XII on page 656 of the draft minutes from March 9, 2021, indicates the committee has indeed met (privately) in the last month. But one of the members cited in the new resolution (Mr. Duffield) has never before been an official member, so the public does not know if he has been part of those meetings, or not — and if so, under what authority. More concerning than the conflicting messages as to whether this committee currently exists and who is on it, is a likely lack of transparency about the "reestablished" committee's purpose. The proposed resolution says that is "to review, determine and make recommendations to the entire City Council regarding proposed revisions to the NBMC related to Short Term Lodging enforcement and regulation in the coastal zone as well as any other actions necessary to comply with the California Coastal Act." However, the City's proposal has already been submitted by the Council to the Coastal Commission, and, given that Council committees that meet privately are intended to make recommendations to the full Council, not to privately advise staff, it is not obvious why a committee would be needed until a formal response is received from the CCC. My guess is staff wants to use the committee to privately guide it in, and "approve," its negotiations with Coastal Commission staff before coming back with a recommendation to the full Council (likely to accept the product of those negotiations). I do not think that is a proper use of Council committees. Nor, operating without benefit of open public scrutiny or comment, is it likely to produce the best result. Certainly not a transparently achieved one. Item 15. Acceptance of the Painting Grandmother's Spirit by Thekla Hathaway Hammond into the City Art Inventory I do not agree with the City Arts Commission recommendation. In the past, the City accepted a large number of art works (mostly paintings), likely without Council approval despite the longstanding Council Policy 1-11. Since the City is not in the ' Curiously, the proposed resolution (like the one from 2020) refers to ""reestablishment" of the committee, even though it actually seems to seek an extension of the existing termination date and the appointment of a new member. March 23, 2021, City Council agenda comments - Jim Mosher Page 3 of 6 museum business, most of it went into a rather disorganized storage (see Daily Pilot, May 23, 2013) and was later "deacquisitioned." Neither the artist nor the work being considered here has any obvious connection with Newport Beach nor does the Arts Commission seem to have a clear idea of what it wants to do with it: it is apparently envisioned as suitable for private display in a City employee's office, should an employee want it — although at 82" wide by 68" tall it is rather large for most offices, and that does not seem a particularly public purpose. The Commission seems to have been swayed by their belief that other paintings by this artist sell in the range of $10,000 to $15,000. 1 don't know what that is based on. A similar, albeit smaller (43"h x 53"w) work (Blind Sight: Painting Shoes), sold for 150 on January 19, 2019, while the also similar Blind Sight: Grandmother T's (51" x 62 1/2") sold for 175 on July 9, 2020. A rather different work ("Too Late" and "Two Little") offered for sale last Saturday, on March 20, 2021, with an estimated value (like the others) of "$300 - $500," failed to sell at all, although it may have realized $150 in 2019, and apparently received a similar bid on Saturday. If Newport Beach, still lacking a museum, wants to go into the business of accepting valuable donated art for which it has no clearly envisioned display space, but with a view, instead, to sell it to raise revenue, that might be a good idea. But this particular work may not be worth the effort. Item 16. 2020 Annual General Plan Progress Report and Housing Element Progress Report This is one of two major reports attached to the present agenda (the other being the City's Comprehensive Annual Financial Report, provided without comment in Item 17), both scheduled to be received by the Council, oddly, without discussion or comment. One might naively have thought that, given the current push to update the Housing and Circulation Elements this year, and the stalled effort to update the remainder of the General Plan, the status, successes and failures of the current Plan (including its Housing Element) would have been of more interest. Item 17. Financial Statement Audit Results for FY 2019-20 and Related Communication As I commented to the Finance Committee when this item was before them, there are two things I found odd about this: 1. 1 was not aware CliftonLarsonAllen LLP was the City's independent auditor (see City Charter Section 1116). The last selection I recall was Item 30 from June 14, 2016, when White Nelson Diehl Evans was chosen, and their contract (C-8092-1) runs through June 13, 2021. Apparently WNDE was acquired by this other firm late last year. 2. The thing I find much stranger is that the Finance Committee discusses (albeit briefly), and the Council receives, here, without comment, the auditor's letter. But no one discusses the document that was audited, namely the City's FY2020 Comprehensive Annual Financial Report, which is linked to (without any further explanation) as "Attachment A". March 23, 2021, City Council agenda comments - Jim Mosher Page 4 of 6 It is good to know the math is correct (at least in the part the auditor checked), but it would seem the report itself (showing, among other things, how the City ended the last fiscal year) is worthy of more attention than that. Item 18. Conduct a Proposition 218 Public Hearing and Consider a Residential Recycling Fee Rate Increase I have filed a formal written protest and am strongly opposed to both the fee and the increase in it. This is not based on any strong opinion for or against the value of recycling, nor the City's obligation to comply with state mandates. Rather it stems from: 1. The City's lack of authority to impose any fee at all on my property for this purpose. 2. The completely nonsensical "fee study" that bears no relation I can detect to whether the cost of recycling is greater or less than the cost of sending the same waste to the landfill, let alone by how much. Lack of Authority Newport Beach, along with the much larger cities of San Diego and (I believe) Los Angeles, is one of the few California cities to retain the quaint notion that collection and disposal of residential waste placed at the curbside is one of the core municipal services (along with fire, police, paving streets and sweeping them) that should be provided in return for the resident's payment of their basic residential property tax. But for most residents, it is more than a notion, because when a long past Council attempted to impose an additional fee for curbside collection residents responded with initiative Ordinance No. 878, approved by voters on June 2, 1959. It required (and the Council could not change without voter approval) that "The cost and expense of collecting, hauling away and disposing of garbage, refuse and ... be defrayed exclusively from the ad valorem tax revenues of the City." This was replaced, at the November 5, 1996, election by a new voter -approved Ordinance No. 96 -46, which remains in the Municipal Code as Section 6.04.140. This change had been placed on the ballot, somewhat hypocritically and creating obvious inequities, by the City Council (see the discussion of Item 2 on the July 22, 1996, agenda), with the intention of not extending an assurance of free curbside collection to commercial properties or future annexations such as Newport Coast. It now reads: "The cost and expense of collecting, hauling away and disposing of garbage, refuse and cuttings, as those terms are defined by Sections 6.04.010, 6.04.020 and 6.04.030 for any dwelling or dwelling unit, existing or future, within the boundaries of the City as of November 1, 1996, that receives curbside container refuse collection service from the City, shall be defrayed exclusively from the ad valorem tax revenues of the City." The definitions of "Garbage, refuse, and cuttings" — that is, the things voters require to be collected, hauled and disposed of without further expense — refer not to the current code, but those set forth in the applicable portions of Ordinance 1403, adopted on November 8, 1971, and Ordinance 1558 adopted March 25, 1974 (which simply added "newspapers" to "paper"). Those things for which the cost of disposal is to be paid without additional charge clearly include recyclables, greenwaste and food scraps: March 23, 2021, City Council agenda comments - Jim Mosher Page 5 of 6 1. "The term ' garbage' shall mean and include all animal and vegetable refuse incident to preparation or handling of food." 2. "The term " refuse" shall mean and include rubbish and trash such as paper, newspapers, rag, cardboard, fiber, metal, glass, carton, container, box, bottle or jar, and other articles or materials of a similar nature normally discarded as household or business refuse." 3. "The term ' cuttings' shall mean and include trimmings from trees or shrubs, plants, grass cuttings, or removed or discarded branches, shrubs, or plants." Despite these clear directives, the Council, in response to a state mandate to divert 25% of trash from landfills, began imposing on curbside users a new Recycling Service Fee in 1990 by adopting Ordinance No. 90-6 (adding Chapter 2.30 to the NBMC) and Resolution No. 90-47 (setting the initial fee). Only Council member Strauss objected, but citing the City's "philosophy" of free trash disposal rather than voter -enacted ordinance requiring that (see discussion of Item H.1 in the March 12, 1990, minutes). The ordinance says "The fee authorized by this chapter is limited to recovery of additional costs incurred by the City in satisfying state mandated recycling requirements and shall not be used to reduce the cost or expense of collecting, hauling and disposing of solid waste." But how the recovering of recycling costs is not being used to reduce the cost or expense of collecting, hauling and disposing of solid waste defies logic. Although I can find nothing in the City records to corroborate it, my vague recollection of the time is that the residents were told they had a choice to meet the state mandate. Either they could continue their free trash collection by separating recyclables at the curb. Or they could continue to mix their trash and pay a contractor a modest fee to sort it for them. Residents may have generally preferred the latter. But the adoption of Ordinance No. 90-6, and the subsequent collection of a Recycling Service Fee in addition to the ad valorem tax assessment were clearly, to me, in contravention to the voter -enacted Ordinance No. 878 and void without voter approval. Flawed Fee Study When Resolution No. 90-47 was adopted, imposing an initial Recycling Service Fee of $0.74 per month, this supposedly represented the amount by which the cost of sending the trash to a sorting facility exceeded the cost of sending it directly to the landfill. City staff appears to have attempted some similar analysis when proposing previous fee increases (see, for example, Item 4 on the May 22, 2001, consent calendar and Item 7 on June 22, 2004 — both possibly enacted without benefit of Proposition 218 hearings). Note: the staff report refers to the Recycling Service Fee having been increased to $3 on December 8, 2009, apparently with adoption of Resolution No. 2009-88. That resolution was the adoption of a Master Fee Schedule, and although the $3.00 fee is shown on page 20 under "General Services — Administration," nothing in that day's agenda, nor in the staff report for that Item 17, disclosed any change in the fee was being proposed, let alone any explanation of the increase or that this was Proposition 218 hearing. Such hearings for increases in property - related fees appear to have been required since adoption of California Constitution Article XI II D, Section 6, effective July 1, 1997. March 23, 2021, City Council agenda comments - Jim Mosher Page 6 of 6 Although the details of how the previous fees and fee increases were justified are difficult to verify, the present increase is supposedly justified by a quite different "fee study" approved by the Council as part of Item 14 on January 26, 2019. This three-page document prepared by MGT Consulting Group (which could, presumably, have been completed equally well without them and with less than an hour of staff time) is laughable in its simplicity, which utterly ignores whether recycling is costing the City more or less than the alternative of landfill disposal. Instead, it takes the total cost for residential waste collection, hauling and disposal and multiplies it by the percentage of waste diverted, which it identifies as the City's "recycling costs" and apportions among residents. The obvious flaw in this is that by this logic, if residents achieved 100% diversion, they would be asked to pay 100% of the cost of residential waste collection, hauling and disposal. This clearly cannot be reconciled with the voter -enacted NBMC Section 6.04.140, which says the full expense shall be borne by the basic ad valorem tax, and which Council is obligated to follow. Moreover, the earlier rate calculations appear likely to have been equally flawed. They appear to be based on the assumption that taking trash to a recycler is more expensive than taking to a landfill. That may have become true since China's 2018 refusal to purchase waste paper and plastics. But it is not at all obvious it was true before that. Indeed, recycling operations before 2018 purportedly operated at a profit, suggesting the cost of taking material to a recycler should have been less than cost of taking to a landfill, and no surcharge could be justified even if NBMC Section 6.04.140 allowed it (which it does not). For example, this undated, but still posted, webpage from the City of Seattle says "the cost of collecting, processing and transporting recyclables is approximately 50 percent less per ton than the cost of shipping the material to the landfill in Arlington, Oregon where Seattle's garbage is disposed of." Likewise, other sites say "In 2017, Stamford, CT made $95,000 by selling recyclables; in 2018, it had to pay $700,000 to have them removed. Bakersfield, CA used to earn $65 a ton from its recyclables; after 2018, it had to pay $25 a ton to get rid of them. Franklin, NH had been able to sell its recyclables for $6 a ton; now the transfer station charges $125 a ton to recycle the material or $68 a ton to incinerate it." The San Diego Tribune and KPBS report that prior to the China ban the City of San Diego "used to make $3 million to $4 million per year selling it's recycling — but now it is going to cost that much per year." Clearly, there was something questionable about claiming residents needed to pay extra when recycling cost less than landfilling, and the present study provides absolutely no logical rationale for what the true costs may be in the present recycling environment. I, therefore, protest.