HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
September 28, 2021
Written Comments
September 28, 2021, 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 SS3. Discussion and Review of Library Lecture Hall Project
The agenda notice for this item is more informative than most. But it would even better if some
material had been provided supporting what the notice says will be discussed. For example, the
notice informs us that thoughts will be solicited on (1) the Concept Design and (2) the draft
terms of a Memorandum of Understanding between the City and the Library Foundation. It
would obviously have been helpful to provide those for review in advance to the meeting.
I believe I have attended nearly all the meetings of the Library Lecture Hall Design Committee,
except the last one, on August 23, where they apparently reviewed comments from the Irvine
Company and completed formulating their recommendation to the Council. One of the points of
indecision at earlier meetings had been about the kind of screening to apply on the side of the
building facing Avocado Avenue, the alternatives being a finned or a "sea foam" design, the
committee leaning toward sea foam. In reading the draft minutes of the August 23 Board of
Library Trustees meeting (which I was also unable to attend), it was, therefore surprising to find
a report suggesting TIC (which retains some property rights) disapproved the sea foam
screening.
As to the overall project, I, too, have some misgivings.
By way of background, the city libraries have two support groups. The oldest, the Friends of the
Newport Beach Public Library, is a membership organization incorporated on April 12, 1961,
whose volunteer members engage in various activities (primarily collecting and selling used
books) to raise money to donate to the library.
The much newer Newport Beach Public Library Foundation, is the successor to a non-profit of
the same name created on February 14, 1989, primarily to raise larger sums (mostly through
donations and bequests) to help fund construction of a central library. With construction
completed in 1994, the articles of incorporation were slightly restated from the original (and
those of the predecessor organization) in 2000. Despite its currently selling "memberships" (of
up to $25,000 per year) the NBPLF (unlike the Friends) actually has no members with voting
rights, but only a self-appointed board.
All versions of the Articles are consistent that the Foundation's sole purpose is to solicit, receive
and administer money and property for donation to the city library, from which it can deduct
operating expenses. One of the stated purposes the library can use the donations for is to fund
"community programs." Yet over the years, the Foundation has increasingly become a presenter
of its own independent programming. So, while financial contributions to the City from the
Friends have increased over the years, an ever decreasing fraction of the revenues generated
by the Foundation is donated to the library, and an ever increasing fraction used internally on
such things as the Foundation's Distinguished Speakers Lecture Series (now known as the
Witte Lectures) over which the city has no control. While it can be argued that such activities are
not only good on their own, but attract people likely to donate to the library, the latter does not
seem to be borne out in actual donations.
September 28, 2021, City Council agenda comments - Jim Mosher Page 2 of 11
I am not sure what will be said at the study session, but the proposed Lecture Hall seems an
extension of that model: rather than a community amenity, it seems intended primarily as a
private asset of the Foundation for use in its internal activities. Indeed, one stated reason for its
need is to attract higher -priced speakers than the current ones. And since many will not be able
to attend, this seems not only contrary to the stated fundraising -only purpose of the Foundation,
but contrary to the core principle that publicly -funded libraries are intended to function as
fountains of knowledge available to all irrespective of their financial means.
As to the process so far, I was concerned when the Board of Library Trustees (which is
supposed to maintain oversight over all matters related to the library) acquiesced to the
Council's appointment of a committee independent of them to make recommendations about a
Lecture Hall. I was then further concerned that after promising there would be multiple
opportunities for public input on the evolving design, there have been none prior to this, beyond
the possibility of attendance at the LLHDC meetings. Generally, if public input is desired on a
public amenity, a much more concerted outreach effort is required than that.
Setting aside the community meetings that have not happened, to the best of my knowledge,
the utility of the design has not been reviewed by the City Arts Commission, even though they
might well want to make use of it. Nor do I think the recommendation the Council will be hearing
has been formally and publicly reviewed by the Library Board.
All this gives the uneasy impression of the public being asked to support what the proponents
may see primarily as private facility for their private purposes.
To harmonize public support of such a facility with the basic intent of public facilities in general,
and library facilities in particular, I hope close attention will be given to the Memorandum of
Understanding (which I have not seen). For example, there could be a requirement that private,
ticketed presentations in the new Lecture Hall be simulcast in the Friends Room so that those
without the means to attend in person can share at least part of the experience. Or, perhaps
better, that recordings be posted for free viewing online (as the Foundation seems to have doing
on its own with increasing frequency in recent years).
Item 1. Minutes for the September 7, 2021 City Council Special
Meeting and September 14, 2021 City Council Regular Meeting
The passages shown in italics below are from the draft minutes with suggested corrections
shown in sbikeou underline format. The page numbers refer to Volume 65.
Page 126, Item VI, paragraph 2: "City Attorney Harp announced that, with regard to the
Delux Public Charter v. County of Orange matter, the direction from the City Council is
unchanged from what it was at the July 13, 2021 City Council meeting."
Page 129, paragraph 3: "Jim Mosher understood that staff is proposing an ordinance for
Council to endorse, SB 9 will change the character of R-1 neighborhoods and generate
market -rate housing, a developer may choose only one density bonus if a mix of affordable
units is required, and the Affordable Housing Task Force has not met in quite a while."
Page 130, paragraph 3: `7n response to Mayor Avery's question, City Manager Leung related
that an expert analyses analysis would be a good idea, HCD's comments are anticipated in
September 28, 2021, City Council agenda comments - Jim Mosher Page 3 of 11
30 days, and this information would adequately inform Council." [or "that an expert analyses
would"]
Page 130, paragraph 3 from end: "An unidentified speaker related that a developer intends
to establish a residential care facility at 255 Vista Baya, the City halted unpermitted work on
the property, and residents are concerned for their children's safety." [The video indicates the
speaker said "255", but there are no three -digit addresses on Vista Baya and from the
remainder to the comment, stating the date and price of sale, it is evident the reference was
to 2555 Vista Baya.]
Page 131, paragraph 4: "In response to Mayor Pro Tem Muldoon's question, City Attorney
Harp advised that the State of California has removed the City's ability to regulate any
licensed group home, the City has to treat every licensed facility the same as a single-family
residence, the City of Costa Mesa's ordinance is almost identical to Newport Beach's
ordinance, Costa Mesa's distancing requirements apply to residence a the distance of
regulated homes from licensed facilities, the City's ordinance is comprehensive, ..." [see
video]
Page 132, last paragraph: "Attended a meeting with the Newport Beach Chamber of
Commerce Commodores, the District 5 Town Hall, Peninsula Fire Station tour, and the Ben
Carlson event' [The District 5 Town Hall, said to have taken place on September 11, does
not appear on the City's calendar. It is unclear what residents learned about it, or how.]
Page 142, line 3 from end of motion: "e) accept Council Member Diane Dixon's and Council
Member Noah Blom's payments of $2.087.59$2,087.5 " [replace first period with comma]
Item IV.A. CONFERENCE WITH LEGAL COUNSEL: ANTICIPATED
LITIGATION - INITIATION OF LITIGATION
This item will be at least the third time the Council has met behind closed doors to discuss a
federal lawsuit entitled Delux Public Charter, LLC D/B/A/JSXAirand JetSuiteX, Inc. v. County
of Orange, et al., and the second time for one other matter, the nature of which has not been
disclosed.
When first announced on July 13, City Attorney Harp reported that "the City Council authorized
the City Attorney's Office to intervene in the action or, if the court will not allow the City to
intervene, authorize the City Attorney's Office to file an amicus brief.
At a special meeting held on September 7, "City Attorney Harp announced that the direction
from the City Council is unchanged."
Proceedings in federal courts are not readily accessible to the public in general, so I don't know
what kind of court actions may have prompted the need for repeated closed sessions on this
same topic. City Attorney Harp did, kindly, provide a chance to review Delux's 55 -page June 17,
2021, "Amended Complaint for Jury Trial."
Delux's basic complaint seems to be that it is being unfairly discriminated against by the county
airport's insistence it operate out of the main terminal while at the same time allegedly refusing
to make minor modifications to the layout of the terminal which would allow Delux to operate out
of an "insecure" area within it. The complaint does not mention or attack the 1985 Settlement
September 28, 2021, City Council agenda comments - Jim Mosher Page 4 of 11
Agreement to which the City is a party, but it does complain about the Access Plan that the
Settlement Agreement protects. It particularly complains about the separate treatment of
commuter carriers and recent amendments that reduced the capacity available to that
category,' and, somewhat oddly, asks the court, after a jury trial, to declare the entire Access
Plan void as a result of these isolated defects.
Since the City's main interest is in protecting the Access Plan, and not so much in the adequacy
of security procedures, should the City intervene in this case, I would hope it would stay away
from the issue of whether the county could or should create a special area in the main terminal
for Delux and similar operators, but emphasize:
1. That the distinction between commercial and commuter aircraft at JWA pre -dates the
Airport Noise and Capacity Act, and was, therefore, grandfathered in by it.
2. Subsequent amendments to the Settlement Agreement, and by extension the Access
Plan, were sanctioned by the federal court.
3. The separate treatment of commuter aircraft does not discriminate against smaller
carriers, but actually favors them, giving them a preferential allotment, while (as far as
know) not barring them from competing for additional allotments in the other commercial
categories.
4. The current 400,000 passenger allotment is not constraining Delux as it exceeds the
requests for commuter capacity.
5. If a jury finds infirmities in the Access Plan, the reasonable cure would be amendments
to correct them rather than voiding it in its entirety.
Finally, it might be noted that Delux is correct in asserting they are, on average, the quietest of
the commercial air carriers operating over Newport Beach.2 Which adds a certain irony to the
matter, for while the City is joining the County in its effort to (in Delux's view) drive Delux from
the airport, the City is also encouraging the County to implement a "Fly Quiet/Fly Friendly"
program in which Delux might well receive an award recognizing it as an operator to admire.
' Since Delux operates what it says are 30 -seat aircraft, it also complains about a 2003 amendment,
reflective of changes to the 1985 Settlement Agreement, that increased the limit on the commuter
category size from 50 seats to 70 seats, which Delux claims widened the competition it had to face for a
piece of an already limited commuter allocation. In this connection, it might be noted that as Item S16 on
its May 23, 2017, consent calendar, the council approved further increasing the commuter size limit from
70 to 76 seats, an act that would have provoked still greater claims of discrimination. The 2017 staff
report anticipated that Settlement Agreement co-signer SPON would also agree to the increase. But
SPON did not agree, so this further amendment did not come to pass.
2 For unknown reasons, the City does not display results for Delux and some other minor carriers (such
as Allegiant and Sun Country) in its recently launched JWA Commercial Departures Dashboard. But, as
one measure of loudness, according to JWA's Noise Abatement Quarterly Report for January through
March 2021, only 0.8% of Delux's 354 departures exceeded the JWA's current noise reporting threshold
at Noise Monitoring Station 7 at the Newport Dunes, compared to 1.4% for a similar number of Delta's
A220, and 17% for the next quietest commercial departures, the Frontier A320neo. Which must be
considered in light of the Delux aircraft having about one-third the weight and payload capacity of the
A220 and one-quarter those of the A320neo.
September 28, 2021, City Council agenda comments - Jim Mosher Page 5 of 11
Item 6. Resolution No. 2021-86: Creating the City Council Ad Hoc
Redistricting Committee
The Council and public heard a presentation about staff's plans for meeting the City's
redistricting obligation as study session Item SS1 on July 27, 2021.
While it is true that Section 1005 of our City Charter says "Following the national census and
each tenth year thereafter the City Council shall appoint a committee to study and report to the
City Council on the advisability of redistricting the City," it is not true this requires the Council to
appoint an ad hoc committee consisting solely of three council members.
As I attempted to point out on July 27, California Elections Code Secs. 23000 - 23004 allow for,
as an alternative, the appointment of three kinds of purely citizens redistricting committees. The
first is a purely advisory committee, which would be completely compatible with Charter Section
1005. The other two, which would not, are an independent citizens committee fully empowered
to determine the new districts without council intervention and a "hybrid" committee that
presents two alternatives the council must decide between.
As I also attempted to point out on July 27, although Elections Code Sec. 21621 purports to
regulate redistricting in charter cities that elect council members both by district and from
district, it is of much less importance for those that, like Newport Beach, elect members from
districts, because the districts then create only an eligibility requirement to run for office and do
not affect equality of representation (all residents of voting age having an equal right to vote for
all the candidates). Thus, it would seem that in from district cities the primary objective of
redistricting should be not equality of population, but rather that the districts ensure council
members, each elected by all, come from a diverse and representative sample of city's kinds of
neighborhoods — something that may be affected by physical changes in the city, but not much
by a census.
The present staff report says "The Elections Code allows the Committee and the City Council to
consider the following four factors: (1) topography, (2) geography; (3) cohesiveness, contiguity,
integrity, and compactness of territory; and (4) communities of interest." These factors actually
appear in Elections Code Sec. 22000 which applies to special districts, not charter cities.
Alternatively, Slide 8 from the July 27 presentation listed what it said were a different set of new
"California Criteria" that the committee must apply in setting the new boundaries. These appear
in Elections Code Sec. 21621 and do generally apply to charter cities. However, Newport
Beach is exempted from the first four by Subsection 21621(e), since Section 1005 of our
charter already requires application of two or more traditional districting requirements,
namely that our districts be: (1) natural, (2) contiguous and (3) compact (criteria reiterated
in Exhibit A of the proposed resolution).
With less certainty, it could also be argued that the redistricting deadline of Elections Code
Section 21622 does not apply to Newport Beach since, as allowed by subsection (b), Newport
Beach has adopted a different deadline in our Charter, namely, "Upon receipt of any such
committee report, and at any other time deemed necessary or desirable in order that the district
boundaries be fair and logical," but never "within six months prior to any regular Councilmanic
election," as compared to the 174 days before the election allowed by Elections Code Section
September 28, 2021, City Council agenda comments - Jim Mosher Page 6 of 11
21622 (which would conflicts with our Charter). Moreover, neither the Elections Code nor the
Charter appear to make redistricting mandatory, but rather at the discretion of the Council.
Whether or not there is a redistricting deadline is of some importance because although the staff
report says "There is no fiscal impact related to this item," there most certainly is. Considerable
funds will be expended supporting the redistricting committee and its work. And, as the Council
is well aware, one of its members is advancing an "elect our mayor" initiative which, if adopted
by the City's voters, would reduce the City's districts from seven to six, undoing the work of the
committee after a single election in which that work might affect the residency requirement.
I think the particular "elect our mayor" initiative being advanced is a misguided one. Not only do
I see no reason for the provision in it that arbitrarily reduces the districts from seven to six, but in
a city where all council members are, and will continue to be, elected at large, I can see little
reason for giving one representative elected at large more power than the others similarly
elected: each will continue to represent all the voters, and I think it is problematic to allow one to
be able to claim they represent those voters more strongly than the others. Elected mayors
make more sense in small cities with by district voting, in which a council of members truly
elected by and exclusively representing small geographic areas are presided over by the one
and only member elected by all the voters of that city (and presumably representing the broader
geographic interests).
Although I hope this initiative will fail, if there is no mandatory deadline for redistricting, it would
seem prudent to defer the effort until the outcome of the initiative is known. Since the population
distribution of the City does not seem to have changed much from 2010,3 it seems unlikely any
significant redistricting is needed at this time; but should the initiative make it to the ballot and
pass, the present effort would be wasted and a major new redistricting would be needed before
the 2024 election.
Should the Council choose to move forward despite that, the proposed resolution contains at
least one obvious typo under "Purpose & Responsibilities" on page 6-6:
"1. Preparation of a redistricting plan, if necessary, with alternatives on establishing City
Council district boundaries which, as nearly as practicable, that constitute natural areas of
contiguous and compact territory;"
Item 7. Resolution No. 2021-87: Creating the City Council Ad Hoc
General Plan Update Committee (PA2017-141)
I would suggest the next to last "Whereas" of the proposed resolution on page 7-5 be amended
to read:
"WHEREAS, these circumstances and the impending statutory deadline for adoption of the
2021-2029 Housing Element Update, resulted in the City Council dissolving the General
Plan Update Steering Committee and establishing the Housing Element Update Advisory
3 As far as I know, housing has been added mostly to Districts 3 (Uptown Newport) and 5 (Villas Fashion
Island and Meridian), but probably not by enough to make them more populous than District 4.
September 28, 2021, City Council agenda comments - Jim Mosher Page 7 of 11
Committee ("HEUAC'), pursuant to Resolution No. 2020-6, as amended, to focus on the
Housing and Circulation Elements;"
Without that change, it makes little sense to resolve the Council needs a new General Plan
committee when it (according to the resolution) already has one.
Even with the change, the resolution is misleading, since Resolution No. 2020-6, as amended
by Resolution No. 2020-93, removed the Circulation Element from the HEUAC's sphere of
responsibility and placed it with the Planning Commission.
That said, I do not support this action. It seems to me the future of the General Plan update
effort is a matter of sufficient importance it should be discussed by the entire council and not
privately negotiated.
I appreciate some council members feel they cannot discuss issues candidly and productively in
public, but, like other forms of stage fright, that is a barrier that came be overcome only by
attempting what at first seems difficult, not by avoiding it.
Item 10. Via Lido Soud and Nord Water Main Replacement - Notice of
Completion for Contract No. 7645-2 (20W12)
The "Overall Contract Cost/Time Summary" table at the bottom of page 10-1 gives the
impression either that: (1) T. E. Roberts, Inc., was incredibly efficient, completing in 87 days a
project for which 205 days was expected and allowed, or (2) City staff (and the contractor) made
a woefully inaccurate estimate of the time required.
Going back to the original contract approval as Item 10 at the October 13, 2020, Council
meeting, "205 consecutive working days" was indeed the original estimate, and is not the result
of extensions that were granted but then not used.
I am unable to find anything in the staff report explaining the discrepancy. On the contrary, it
says that during construction the contractor was called away for an undisclosed number of days
to handle an unrelated emergency on Coast Highway, yet was still able to finish five months
ahead of schedule.
Conversely, I believe that sometimes the tables in these "Notice of Completion" reports give the
impression projects were completed ahead of schedule, when in fact they ran considerably
longer than originally anticipated and appeared ahead of schedule only because of subsequent
extensions to it. Although not relevant here (where no extensions seem to have been
negotiated), it would be helpful for the table to list separately the original allowed time and the
extensions added to it, much as one sees the original cost and the cost as amended.
Item 11. Ocean Boulevard Sidewalk Improvements Between Carnation
Avenue and Fernleaf Avenue - Award of Contract No. 7623-1 (18R25)
I believe this contract may be opposed by some residents of China Cove who think adding a
sidewalk to the south side of Ocean Boulevard will attract new visitors to their neighborhood.
While I appreciate their concern, I fully support the proposal and think the new sidewalk is a
long- and much-needed public amenity.
September 28, 2021, City Council agenda comments - Jim Mosher Page 8 of 11
Unfortunately, I am unable to tell from the staff report or schematic diagram how wide the
proposed sidewalk is. A recent walking tour of Ocean Boulevard with the Parks, Beaches and
Recreation Commission emphasized the need for consistently wider sidewalks. I have the
uncomfortable impression this may be extending 6 -foot sidewalks where 8 -foot wide ones would
be desirable to ensure parties going in opposite directions could easily pass and to create more
of a sense of a promenade. The remainder of the street at this point seems easily wide enough
to accommodate that.
I would also suggest that striping be added to clearly delineate the pedestrian connection
between the two new sidewalk segments at the top of the Fernleaf Ramp. Such markings are
not shown on the Attachment A schematic.
As the tour leaders pointed out, the City continues to own the right-of-way down the bluff
connecting the two segments of Dahlia Avenue. I agree with them that at some point in the
future it would be desirable to use that right-of-way to provide an additional public path
connecting the new lookout to the beach and harbor below.
Item 12. Contract with Arts Orange County to Manage Phase Vll of the
Sculpture Exhibition in Civic Center Park
While I have been generally supportive of the City's sponsorship of the Sculpture Exhibition,
have to wonder if an extension of the state grant that supported this program for the last
two years was pursued, and if not, why not? I don't see this addressed in the staff report.
I am also unable to decipher if a change to the community input aspect of the art selection is
being proposed. I believe past expansions of such input have led to the exhibition of more
widely -appealing works than would have been selected by the Arts Commission alone.
Pages 12-3 through 12-4 of the present staff report suggest "The City Arts Commission and a
curatorial panel will approve pieces for inclusion in the online public survey' and then "The
approved pieces will be included in the online public survey. The public, through the online
survey, will choose 10 artworks and three alternates." This would be quite different from
recent phases in which, as best I recall, all entries that met the most basic threshold criteria
were made part of the public survey, after which the Commissioners (not the public) chose the
10 artworks and three alternates, aware of their rankings in the public survey, but not in any way
bound by them (and indeed, often ignoring them).
Given the largely uncontrolled and potentially error -prone nature of the public survey, I do not
have any strong feeling as to which process yields the best result, but it would be good to know
for sure what is being proposed, especially since the proposed contract (pages 12-18 and 12-
19) does not clearly state a process that conforms to the description in the staff report. Indeed, it
only promises "The City Arts Commission is committed to taking this new public input into
consideration in Phase Vll of the Sculpture Garden, with a specific goal of adding elements that
engender the most public support." It does not say the public survey will be controlling.
Troublingly, the present contract language seems to be copied from the previous phase
contract approved as Item 8 on the July 28, 2020, consent calendar, which implemented
September 28, 2021, City Council agenda comments - Jim Mosher Page 9 of 11
the community input points listed in that staff report, not the substantially revised
community input process described on pages 12-3 through 12-4 of this one.
Whatever the process, it would also be good to know it is advertised in the exhibition area itself,
so those enjoying the current works know when and how they can participate in the selection of
future ones.
Finally, since the watchword of the exhibition is variety, I would hope the criteria for selection
could be adjusted to discourage repeat entries of similar works by the same artists, especially in
circumstances where selections might lead to multiple works by those artists being displayed at
the same time.
Item 16. Ordinance Nos. 2021-19 and 2021-20: A General Plan
Amendment for the Residences at Newport Center Located at 150
Newport Center Drive (PA2020-020)
This project has two major problems that prevent its approval. One, according to City staff, is
arguable; the other should not be, even though City staff will claim it is.
First, the project is in statistical area 1-1, and despite the purported "Charter Section 423
Analysis Summary" in Table 1 on page 16-6, in the last 10 years the City Council has added
more residential units to the General Plan for that area than it is allowed to do without voter
approval. In particular, in addition to the August 13, 2019, approval of Resolution No. 2019-75,
adding 90 units for the Vivante Senior Housing Project, on July 24, 2012 (which is also within
the last 10 years), the Council adopted Resolution No. 2012-63 adding 79 dwelling units to the
site of the future Villas Fashion Island project. While staff does not regard the latter as a
General Plan amendment, it most certainly had that effect since the 79 units had never before
appeared in the General Plan or been approved by voters. When 80% of these prior additions is
considered, no more new dwelling units can be added to the General Plan for Newport Center
until after July 24, 2022.
Second, and this should be less controversial, the height of the proposed residential structure
that this questionable General Plan amendment would purportedly allow to be built clearly
exceeds the height limits for multifamily residential structures that have been in effect since
adopted with Ordinance No. 1454 in 1972. That limit, currently found in NBMC Subsec.
20.30.060.C.2.b is, for a flat roof (as is proposed here), 28 feet, and 33 feet for a sloped roof.
Those limits can be increased by 4 feet through adoption of a Planned Community District, a
specific plan, or approval of a planned development permit or site development review.
Staff will say this does not apply because of an ambiguous clause tacked onto the end of
Subsection 20.30.060.0 in 2010 that says: "Height limits established as part of an adopted
planned community shall not be subject to this subsection."
However, that is clearly a misreading of the code for when the massive comprehensive Zoning
Code update was presented to the Council and public in 2010 it was accompanied by a still-
posted
till-
op sted "Summary of Change" document which assured them no changes were being proposed
September 28, 2021, City Council agenda comments - Jim Mosher Page 10 of 11
to the historic height restrictions.' And the prior Zoning Code whose limits this claimed were
being preserved made clear that with the exception of height limits in Planned Community
districts adopted prior to 1972, the same rules applied to structures in Planned Communities as
to the corresponding structures in other districts. See Section 20.65.050 ("Planned Community
Districts") of Ordinance No. 97-9: " In each planned community district established subsequent
to the adoption of this chapter, the height limits shall be established as part of the planned
community development plan; provided, however, that in no event shall the development
exceed the height limits permitted in the height limitation ones as set forth under Section
20.65.040 and as designated below [where a further 24/28 foot limit is imposed on the "Upper
Newport Bay Planned Community from 1973]." This 1997 language was, in fact, copied from
Ordinance No. 1554, adopted in 1974 to clarify the 1972 ordinance. So the reference to
"adoption of this chapter" refers to 1972 (not 1997).
From this it is clear the inadvertently ambiguous sentence in the present Subsection
20.30.060.0 is a grandfathering clause for contrary height limits existing in Planned
Communities as of 1972, and not a license to create arbitrary new height limits in those, or
especially in later adopted Planned Communities.
As a result, the height limit of 52 feet 11 inches proposed [page 16-210] for a multifamily
residential structure in this new Planned Community District is clearly in violation of the
Municipal Code.
Beyond that, even with the lame explanation of "Waiver of Minimum Acreage Requirements" on
pages 16-4 and 16-5 of the staff report, staff and the applicant's attempt to make an end -run
around height and other zoning restrictions by declaring a single, small parcel to be a "planned
community" makes little sense.
The 10 -acre minimum exists because, in the words of the General Plan, a Planned Community
is, by definition, "A large-scale development whose essential features are a definable
boundary; a consistent, but not necessarily uniform, character; overall control during the
development process by a single development entity; private ownership of recreation amenities;
and enforcement of covenants, conditions, and restrictions by a master community association."
Or in the words of NBMC Subsec. 20.26.010.B: "The PC Zoning District is intended to provide
for areas appropriate for the development of coordinated, comprehensive projects that
result in a superior environment; to allow diversification of land uses as they relate to each other
in a physical and environmental arrangement while maintaining the spirit and intent of this
Zoning Code; and to include a variety of land uses, consistent with the General Plan, through
the adoption of a development plan and related text that provides land use relationships and
associated development standards."
4 See page 2 of Part 2 (page 4 of the PDF): "The height limits are not changing, but the practice of
measuring the height of a sloping roof at its midpoint is being eliminated for a far simpler method." And
page 1 of Part 3 (page 6 of the PDF): "Chapter 20.65 of the current code establishes height limits for
zoning districts and it identifies several limited exceptions e.g. roof peaks, vents, chimneys, flag poles,
etc.). Height limits are not changing."
September 28, 2021, City Council agenda comments - Jim Mosher Page 11 of 11
Not only does this proposal not provide a coordinated variety of land uses, but staff's assertion
that a planned community designation is necessary to make it blend in with its surroundings is
actually contrary to the General Plan concept. If the objective were to blend in with its
surroundings, then the solution would be to merge it into and make it part of the neighboring
planned community, not to create a new and separate one.
Item 17. Ordinance No. 2021-21: Zoning Code Amendment and
General Plan Amendment to Change the Land Use Designation and
Zoning District from Multiple Unit Residential to Private Institutions at
1499 Monrovia Avenue (PA2021-068)
There has to be a certain irony in a city that is struggling to find sites for 4,845 units of future
residential development to volunteer to give up a site that (along with others along the Banning
Ranch side of Monrovia Avenue) it asked voters in 2006 to designate for future residential
expansion.
The staff report is forthcoming about the tie-in between this item and the previous one. The "no
net loss" provision of SB 330 requires that an amendment to the General Plan reducing housing
capacity in one area to be offset by an equal or greater increase in another. As indicated in the
comments to Item 16, the offsetting amendment could, however, be approved, arguably, only in
violation of Greenlight, and the project purportedly allowed by that amendment could be
constructed only in clear violation of the height restrictions in our Zoning Code.
The staff report is not forthcoming about why this General Plan amendment request is coming
before the Council now, and not earlier — especially since the construction it would allow is
reportedly already well underway.
In fact, had the "Table 1: Charter Section 423 Analysis Summary" on page 17-7 been prepared
prior to the last Council meeting, the result would have been quite different, and concluded voter
approval of the proposed amendment would have been required.
This is because in addition to the one earlier conversion acknowledged in the table, as Item 23
on September 13, 2011, the Council approved General Plan amendments reverting back to an
industrial designation two other properties along Monrovia that had been designated for future
residential use in 2006. They added 41,611 square feet of "new," non -voter -approved
commercial development potential to the area. So the present proposal, when added to 80% of
those, would have easily exceeded the Section 423 (Greenlight) threshold for new commercial
intensity. Staff, therefore, had to wait for those to drop off the 10 year lookback radar of Charter
Section 423 before it could present something to the Council that would not need voter
approval.