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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 13, 2021 Written Comments April 13, 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 23, 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 668, paragraph 4: "Council Member Brenner noted a surprising amount of Harbor activity during a meeting she attended of Baysh„re in Bayshores, ..." [see video. Alternatively, "on Bayshore Drive," if that's where it was (the street name is singular, the community is plural).] Page 674, paragraph 2 from end: "Dena Gina Cruz commented that people's lives are being affected, some people feel like prisoners in their homes due to the STLs around them, and their quality of life has gene decreased in the last two years which also coincides with the increased issuance of permits." [Alternatively, "gone down"] Page 676, first full paragraph: "City Attorney Harp clarified that the recycling fee was in place before the ordinance was adopted; therefore, the recycling fee is valid." Comment: I think the argument that a recycling fee in seeming contradiction to a voter - enacted ordinance requiring all costs of trash disposal to be borne by the City is valid because the fee was collected before and after voter's enactment of the ordinance is about as meaningful as saying the intent of the 14t" and 15t" Amendments to the US Constitution was not to prevent discriminatory laws since such laws existed in the southern states both before and after its enactment. As far as I know, lack of previous objection to an invalid government action does not invalidate the law it violates. Subsequent to the March 23 meeting, I put in a Public Records Act request for the materials provided to voters in the most recent election regarding this matter. The sample ballot from the November 5, 1996, election has been posted here (see pages 16 and 26 of the PDF). I think the average voter would assume the Measure Q they were being asked to vote on meant what it said: namely that the "The cost and expense of collecting, hauling away and disposing" of the specified curbside residential trash would be borne "exclusively' by the City out of their basic property tax, without additional fees. As best I can tell the arguments made for and against Measure Q did not mention the City was surreptitiously charging a recycling fee to defray part of the cost of disposal, and I doubt many voters would have been aware the "recycling charge" on their water bill was related to disposal of the very items they were voting to require the City to pay for. Page 676, full paragraph 6, sentence 1: "Council Member Dixon shared that being a member of the working group with Council Members Brenner and O'Neill has been an educational process." Comment: While this may be true, the public has no idea what this unofficial group is being told. Privately prepping three Council members on how to vote on a topic, when only additional vote is needed to move forward, with no chance to correct the misinformation they may be privately fed, is not a good system. April 13, 2021, City Council agenda comments - Jim Mosher Page 2 of 6 Page 676, full paragraph 6, sentence 3: "He wed that believed Costa Mesa Sanitary District uses two carts but is moving to a three -cart system." [See video. Director Webb said he "thinks" this. And while CR&R is encouraging CMSD to move to a three -cart system, there is no certainty they will for CR&R assures them they are achieving well over 50% diversion with two carts: one for organics and one for mixed waste.] Page 676, last part of Motion: "...; and b) adopt amt Resolution No. 2021-25, A Resolution of the City Council of the City of Newport Beach, California, Adopting an Adjusted Recycling Service Fee, since there was not a majority of protest votes received against the adoption of the new eGyG! Recycling Service Fee rates." Page 677, paragraph 1: "Council Member O'Neill reported that the City Council rescinded the resolution that dissolved the Newport Coast Advisory Committee (NCAC), and refuse collection was a consideration in 2008 and is not an item the NCAC reviews." Comment: This was in response to a comment I had made under Item XVI (on page 675) about the uncertain status of the NCAC. Council Member O'Neill's ability to respond to comments by researching matters on the fly while on the dais is truly remarkable. But the results are not always as certain as they may seem. I continue to believe the Council needs to review the status of the NCAC (and any other committee that has not held a meeting for over a decade). For clarity, as the Clerk's roster indicates, the NCAC was created by Council Resolution No. 2001-81 on September 25, 2001, at a time when the understanding of the terms of the Newport Coast annexation were clearer in people's minds. As both the staff report from 2001 and the resolution indicate, the NCAC was empowered to operate for at most six years (less if the annexation failed), and there seems to have been no objection to that understanding. As the staff report said, "A future City Council could always extend the life of the NCAC if the Council and the NCAC desire such an extension." No future Council chose to do so, so under the terms of Resolution No. 2001-81 as understood at the time of its adoption, the NCAC ceased to exist when its initial term was completed on September 25, 2007. As I pointed out in my public comment on March 23, a search of Council resolutions returned the fact that (despite its already have ended) the Council formally sunset the NCAC (and eight other non-active committees) with Resolution No. 2008-93 on November 12, 2008 (see Item 5 staff report). Prior to making my comment on March 23, and naively assuming the modification of an resolution could be accomplished only through enactment of a new resolution, I searched the City's database of Council resolutions for future references to the NCAC or Resolution No. 2008-93, but found none. However, as Council Member O'Neill discovered, at the November 25, 2008, meeting, in one of the rare requests to reconsider a motion, then Council member Gardner (who on October 28 had asked that the NCAC be added to the list of disbanded committees) asked (see Item XX) that the NCAC be removed from the list. April 13, 2021, City Council agenda comments - Jim Mosher Page 3 of 6 And in response, an Item 3 appeared on the December 9, 2008, consent calendar, which Council Member O'Neill was referring to, and which purported to rescind the previous resolution and adopt a new one disbanding only eight committees. However: 1. No resolution was adopted rescinding the prior resolution. It was simply presented as a Council action to be noted in the minutes. I have previously questioned whether that is legitimate (see comments on Item 24 from June 26, 2018). 2. Setting aside the typo in the agenda and the official minutes of the December 9, 2008, meeting, which say the action considered and taken involved rescinding Resolution No. 2008-23 rather than Resolution No. 2008-93, even assuming Resolution No. 2008-93 was validly rescinded, the NCAC had still ceased to exist under the terms of Resolution No. 2001-81, and (to the best of my knowledge) no new enabling resolution was ever enacted to replace it — despite the December 9, 2008, staff report saying (on page 3) "Assuming Council agrees to rescind the Resolution that eliminated the NCAC, Council Member Rosansky asked that the Council consider a modification in duties and meeting schedule of the NCAC at a future date." Given that no action was taken to reconstitute the NCAC, the table at the bottom of page 2 of the December 9, 2008, staff report — which was not discussed by the Council — is hardly dispositive of a new NCAC's duties or lack thereof. Or that what were regarded as continuing obligations then are still obligations. For reference, I believe what was referred to in the 2008 consent calendar report as the Pre - Annexation Agreement is archived in the City's Laserfiche system as Contract C-3472, which the Clerk has filed as "Inactive — Destroyed Date 9/19/2019." The meaning of "Refuse Collection" being listed as "N/A" in the staff report is unclear, since City payment of collection costs is an obligation under Section 12 of that Agreement. In short, there being no Council resolution currently empowering the existence of a NCAC, the Pre -Annexation Agreement being listed as "inactive," plus the possibility there may have been other promises made to Newport Coast residents during the LAFCO proceedings, I stand by my March 23 comment that there is enough uncertainty to merit a review of the documents by the City Attorney with a report back to the Council and public. It seems equally probable that the City has obligations to the residents that both have forgotten as that obligations the City thinks it has are no longer required. Page 677, Item 19, paragraph 3: "Council Member O'Neill thanked MayorAvery for bringing this item forward and Mayor Pro Tem Muldoon and Council Member Dixon for serving on the business ad hoc committee last year with him, stated he hopes businesses will survive and thrive in the coming year, there has been substantial business interruption due to the pandemic and the State's response to the pandemic, and this is a way for the City to continue to help.." April 13, 2021, City Council agenda comments - Jim Mosher Page 4 of 6 Comment: The reference is to the "Ad Hoc Committee on Re -opening and Business Advancement" established by Resolution No. 2020-40 on April 28, 2020, which expires "upon making a recommendation to City Council or June 30, 2021, whichever occurs first."' Council member O'Neill's reference to the committee in the past tense leaves its current status unclear. I do not recall if it has made a recommendation to the Council (the license waiver idea does not seem to have been theirs) but it is still listed on the Clerk's roster. Item 3. Resolution No. 2021-27: Acceptance State of California, Department of Parks and Recreation, Division of Boating and Waterways Grant for Reimbursement of the Cost for Two Zodiak Pro Classic Safety Boats for the Marina Park Sailing Program The both brand and common name of the boats to be purchased is "Zodiac," not "Zodiak." Shouldn't the resolution be revised to reflect the correct spelling? Item 6. Sewer & Storm Drain Systems Rehabilitation Project — Notice of Completion for Contract No. 7538-1 (18S03 & 19D02) A casual reading of the first page of the staff report might suggest the Council approved this contract with the unusually high contingency allowance of 16.7%. The City's records indicate that the Council's action (consent calendar Item 6) on July 23, 2019, was to approve a contract with a $170,000 contingency (7%). As explained near the bottom of page 6-2, the City Manager seems to have approved a substantial expansion of the contract, only part of which arose from emergencies. The final excess over the Council's maximum authorization ($2,783,669.96 vs. $2,389,589.50 + $170,000) appears to be a little over $224,000, which seems a large amount for City Manager approval. Should the changes to this contract have been brought to the Council's attention before all the work was allowed? Item 9. Commercial Marina Lease for Balboa Boat Yard with Use of a Portion of the Public Tidelands in the Street -End at 26th Street The Harbor Commission is in the process of learning to memorialize its recommendations to the Council, as the Planning Commission does, in the form of resolutions. In the present case, the Council would have to rely on the draft minutes of their March 10 meeting, which have just been posted. At that meeting I asked if the City proposes to charge a higher rent for use of the tidelands in front of the public street -end (which would normally be discouraged) than for the tidelands in front of the private property. The answer was that it does not. ' Not to be confused with the similarly -named "Ad Hoc Committee on Local Business Advancement" established by Resolution No. 2019-53 on 7-1-19, updated via Resolution 2019-71 on 7-23-19, with term extended via Resolution 2019-99 on 11-19-19, and which expired on June 30, 2020. April 13, 2021, City Council agenda comments - Jim Mosher Page 5 of 6 Item 10. Authorization for Two Agreements with Special Order Systems, Inc. for a Wireless Phone System for Lifeguard Towers and Lifeguard Headquarters Although not mentioned in the staff report, the City appears to have asked for a waiver of coastal development permit requirements for this work. Coastal Commission staff is recommending approval of the waiver as part of Item F12 (the Orange County Deputy Director's Report) at their April 16, 2021, meeting. Item 14. Update on Summer 2021 Balboa Peninsula Trolley Operation As the staff report acknowledges, information about COVID-19 is constantly evolving. The most recent information from the CDC suggests that while the disinfection procedures envisioned in the last paragraph on page 14-2 might be marginally helpful, the primary risk will remain airborne transmission in the confined space which would be more meaningfully addressed through modifications to the air conditioning system employed within the trolleys. Item 16. Resolution No. 2021-30: Local Coastal Program Amendment Related to Short Term Lodging on Newport Island (PA2020-326) Once again, it looks like City staff does not believe the state regulations for processing proposed Local Coastal Program amendments apply to Newport Beach. To ensure "maximum opportunities for the participation of the public and all affected governmental agencies," 14 CCR 13515 requires not only that the availability of drafts of proposed LCP text be publicly noticed, but that the text be made available for inspection at least six weeks prior to the local agency taking action on it. This requirement of public inspection for a minimum of six weeks is reiterated in our own Council Policy K-1. But we do not seem to follow it. In the present case, the last publicly -posted notice of availability appears to be dated November 20, 2020, and includes a copy of text that has since been modified. According to the staff report that text was originally planned to be presented to the Council on February 9, 2021, but was withdrawn and modified as the result of private consultation with Coastal Commission staff and a Council subcommittee. To the best of my knowledge the modified text was first made available for inspection as part of the present agenda packet, at 4:00 p.m. on April 8, giving those interested five days to review it before possible Council action.2 To me, five days does not meet the six weeks requirement. But staff seems to feel posting something — anything — six weeks in advance is adequate, and something different (indeed, completely different) can be presented at the actual hearing. 2 To be sure, a notice of the present hearing was apparentlyop sted on or around March 30. The notice promises that "The Agenda, staff report and corresponding documents will be posted to the City's website at www.newportbeachca.gov, by end of business day on Friday, April 9, 2021," which did indeed happen. It also strongly implies the amendment under consideration by the Council would be that reviewed by the Planning Commission on December 3, 2020, even though the description is quite different from what the PC voted on. April 13, 2021, City Council agenda comments - Jim Mosher Page 6 of 6 There also seems to be some question about how the proposal posted in November was initiated. Although City -initiated changes to the LCP normally start with a formal resolution of the Council, the staff report suggests (page 16-3) that this one was initiated by a straw vote of the Council on October 13, 2020 (see end of Item 18 in the minutes, reproduced on page 16-65 of the current staff report). This, too, seems in questionable compliance with the formal initiation contemplated on page 3 of Policy K-1 (presumably at a pre -noticed meeting to consider the subject). Similarly, it appears the Planning Commission has neither reviewed nor made a recommendation to the Council regarding the text now being presented to it. This seems in direct conflict with the procedure dictated by Policy K-1 (on both pages 1 and 3). In short, where state and local policy requires maximum opportunity for open public review and participation in LCP amendments, we seem to have here less than the minimum — with a majority of the dialog and review taking place behind closed doors. The Council is not supposed to be submitting to the Coastal Commission LCP amendments that have had just five days of public review. In view of these many irregularities, I do not believe the public should be required to comment on staff's proposal at this time, nor the Council take action on it. As to the substance of the matter, it may have merit, but I am uncomfortable with the City enacting different rules for different areas. I am unconvinced that Newport Island is as unique as it purports to be. In particular, the "Finley Tract" (to the east of "The Rialto") is part of the same 1907 subdivision, is essentially a mirror image of Newport Island, with similar access issues, and has, as far as I know, always had the same zoning throughout the years. Why would it now be different?