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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 24, 2022 Written Comments January 25, 2022, 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. Housing Element Update HCD informs the public about the status of the state's many General Plan Housing Elements under the "Housing Element Compliance Report" button in the blue -bordered box of the same name on its Housing Elements page; and, in a spreadsheet updated weekly, provides links to the review letters sent. I have not read all of those, but the letters received by our city on October 12 and January 14, while disappointing, do not seem materially different from those sent to hundreds of other cities and counties. As of January 24, of the 197 SCAG jurisdictions, 44 cities and counties have proceeded to adopt 6th Cycle Housing Elements. Only 2 of the 44 (Ventura County and the city of Wildomar in Riverside County) have so far managed to obtain certification. Both of those appear to have been adopted as is officially required by October 15, 2021, but for which there is a 120 -day grace period ending February 12, 2022. Of the 42 other adopted 6th Cycle Housing Elements in the SCAG region, 16 have been found out of compliance (including, in Orange County: Brea, La Palma, Laguna Niguel, Mission Viejo, San Clemente, Tustin and Villa Park) and the remaining 26 are still under review. 14 SCAG jurisdictions have not yet submitted anything for review and the remaining 139 remain in draft status. With 33 of those drafts still under review, only 2 (Imperial County and the City of Duarte) have been found in compliance, while 98 jurisdictions have, like Newport Beach, been told their submitted drafts been told revisions will be required before certification is possible. In summary, with just 19 days left in the grace period for adoption of a certifiable 6th Cycle Housing Element, HCD has found only 4 of the 197 SCAG jurisdictions to have submitted something that has been or can be certified as written, and told 114 of the jurisdictions that what they either adopted or submitted for review cannot be certified without revisions. This can be compared to the experience of the 19 jurisdictions in San Diego County ("SANDAG"), which had the statutory deadline immediately preceding SCAG: April 15, 2021, with a grace period for adoption ending August 13, 2021. As of January 24, 2022, with 1 adopted element still under review, only 7 SANDAG jurisdictions have been able to adopt elements that HCD has certified. The remaining 8 adopted elements and 3 drafts have been found out of compliance. The planning areas with 6th Cycle due dates prior to SANDAG seem mostly to be in compliance, now, with the exception of the city of Blue Lake in Humboldt County, which, with a statutory adoption goal of August 31, 2019, has apparently not yet submitted anything, even for review. The somewhat good news is that although late adoption of a certifiable element does appear to trigger a 4 -year review cycle for the next submission, the HCD letters of compliance do not seem to mention imposition of any of the other threatened sanctions (see, for example, January 25, 2022, City Council agenda comments - Jim Mosher Page 2 of 11 compliance letter to city of Trinidad). This does not mean, however, that those sanctions are not being imposed. As to City staff's plans, the timeline presented as part of Item SS2 at the November 16, 2021, Council meeting indicated that on December 9 the Planning Commission was going to review the November 12 draft to be submitted to HCD on November 17, with the Council to adopt it on February 8. The Planning Commission did indeed review the November 12 draft as Item 3 at their December 9 meeting. However, it now appears that if even the possibility of compliance is desired, something substantially different will have to be adopted by the Council on February 8. If a Planning Commission recommendation is required, that creates a very tight schedule for comment and revision, since the only chance for the Planning Commission to review that at a regular meeting will be on February 3 — and City staff has just posted a notice of cancellation of that meeting, with a note that the Commission is not expected to meet again until February 17. Item 1. Minutes for the January 11, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown intr,*eo 'f underline format. The page numbers refer to Volume 65. Page 221, Item XIII, Dixon, first bullet: "Attended the Aviation Committee meeting on December 20, 2021, and announced the next meeting on January 24, 2022" [note: the minutes are correct, but the January 24 meeting was canceled for undisclosed reasons] Page 223, paragraph 2: "Harbor Commissioner Kenney requested that Council review and approve the Harbor Commission 2022 objectives." [Was this intended to read "Harbor Commission Chair Kenney'?] Page 225, last paragraph: "Principal Planner Murillo utilized a presentation to discuss the proposed Municipal Code and Coastal Land Use Plan Amendments related to cottage preservation, previously approved incentives from January 28, 2020, a cottage preservation example, and the California Coastal Commission c+rvrrw -t rai approval with modifications from November 19, 2021." [note: The word "structural" was not used in the presentation. The reason to insert it in the minutes, and the meaning it was intended to add, are unclear. The CCC did not approve "structure." It approved words, with modifications.] Page 227, paragraph 2: "In response to Council Member Dixon's questions, Deputy Public Works Director Martin reported that public outreach and education will support the new bulky item pickip ckup service effective January 15, 2022." [the noun or adjective, as used here, is a single word] January 25, 2022, City Council agenda comments - Jim Mosher Page 3 of 11 Item 5. Resolution No. 2022-8: Adopting a Memorandum of Understanding with the Newport Beach Employees League (LEAGUE) and Associated Salary Schedule At the January 11 Council meeting, Mayor Muldoon clarified the Council had approved using part of the City's CARES Act money to pay employees a one-time $2,000 cash bonus. When was that decision made, and how would the public know this is the proposed source of the money? It is not mentioned in the staff report, including in the Fiscal Impact statement on pages 5-2 to 5- 3. Nor is it evident from the detailed budget breakdown on page 5-5, where it appears all the increased payouts in the current fiscal year will be covered out of the General Fund, Water and Wastewater Enterprise Funds and the Equipment Fund. Item 7. Financial Statement Audit Results and Related Communication The ACFR (formerly CAFR) is an important document that deserves wider exposure, but is not in a format easily understood by non -accountants. Some agencies summarize highlights from their ACFR in a "Popular Annual Financial Report." Orange County does (calling it a Citizens Report). The Costa Mesa Sanitary District does (see Item E.2 on their January 24, 2022, agenda). I don't know how widely read these are, or if they are worth the investment, but the Council might consider having Newport Beach City staff do this as well. Item 8. Dredging Disposal Alternatives Analysis by a Private Party: Harbor Commission Recommendation The staff report mentions (on page 8-2) that sometime subsequent to the Council publicly setting a 90 -day deadline for the residents' team to submit its proposals,' "the City Council informally allowed 60 additional days." This is disturbing because the Council is not supposed to give informal direction to staff, especially direction to override the decisions it makes in public. It is unclear from the present report if formal written proposals were actually received, for all that is provided for the Council's consideration is the minutes of the verbal discussion that occurred at the October 13 Harbor Commission meeting, and with no explanation of the more than three month delay in reporting that to the Council. From the minutes, it appears both staff and "Team Palmer" gave presentations. Since Harbor Commission meetings are not video recorded, t would have been helpful to include the slides from those in the present staff report. ' See minutes, Vol. 65, page 54. From those it appears the 90 days from May 25, 2021, was the time within which the Harbor Commission was asked to return to Council with its recommendation regarding the proposals, which were expected to be received for evaluation by the Commission's June 9 meeting. January 25, 2022, City Council agenda comments - Jim Mosher Page 4 of 11 Item XVII. PUBLIC COMMENTS ON NON -AGENDA ITEMS My attempt to comment on Item 20 (Approval of Proposed Residential Solid Waste Collection & Recycling Contract with CR&R Inc.) was cut short by the 3 -minute limit for oral comments. When cut off, I was attempting to ask about the indication on page 20-6 of the staff report that although City staff claims to have negotiated a contract for $24.08 per month per household, of the 24,000 households, "CR&R has identified 9,967 households currently with standard valet service." Those 9,967 households will presumably continue to receive that service, for which CR&R will bill them an additional $8.30 per month. I asked about this again at the Newport Beach Chamber of Commerce's January 20 online Government Affairs Committee meeting, where Director Webb and Deputy Director Martin presented the roll-out of the new residential organics waste collection program. Deputy Director Martin explained that what CR&R calls the "standard valet service" applies in congested areas where someone has to get out the truck to move the carts for collection. This would appear to all collections by the new split -body trucks. However, Deputy Director Martin implied the City would be paying this fee, and only the 29 households currently receiving the "premium valet service" would receive an extra bill from CR&R (for $27.68). Which is correct? Will the City be paying the $8.30 per month surcharge for "standard valet service" or will nearly half the homes in Newport Beach be receiving a bill for this? If the residents are paying, do they have any option for pickup by other than through "standard valet service"? If not, how does this square with the City's requirement to provide residents with free trash pickup? If the City will be paying it, then this isn't really a $24.08 per month contract, is it? The other comment of surprise to the NBCC host regarded the very limited set of container size options being offered at no additional charge. Deputy Director Martin said the City will pay for only one set per lot, regardless of the number of units on it, which he thought could be up to four. So, for example, if there are four units on the lot, the City will pay for at most a single 96 - gallon mixed waste cart (or, alternatively, two 32 -gallon carts) for the entire complex. Is this correct? Item 9. Resolution No. 2022-2: Creating the General Plan Update Steering Committee (PA2017-141) - continued from the January 11, 2022 City Council meeting As the Council knows, and as the full agenda title acknowledges, this item was continued from the Council's January 11 meeting, where it was presented for approval as Item 5 on the consent calendar (see my comments' from then). 2 In what may have been a too -hasty reading of the proposed Resolution No. 2022-2, 1 missed "and confirmed by the City Council in the "Membership" line. But it remains unclear as to whether that means the Mayor's appointments must be confirmed by the full Council, or only the appointees' qualifications. January 25, 2022, City Council agenda comments - Jim Mosher Page 5 of 11 Since then, the staff report has been very slightly modified, mostly by adding an Attachment B illustration of "General Plan Update Committees. The previous staff report said in a single paragraph on page 5-2 that "the Steering Committee will serve as a project coordinator for the General Plan update while the Advisory Committee will be guiding changes to specific policies and goals in the individual elements" and that "City staff will manage the selected consultant team and will support the work program of both committees." The new staff report substitutes two paragraphs for this, omitting the part about City staff, says (on page 9-2) "The Steering Committee will lead the overall General Plan update effort and will make recommendations to the City Council on forming the policy advisory committee. The Steering Committee will provide oversight of the larger policy committee and provide periodic reports to the City Council." and adding this information "The formation and make-up of the policy advisory committee will be based on the recommendations by the Steering Committee. However, it is envisioned to have 20 to 30 members of the community who will be responsible for recommending changes to specific General Plan policies and goals. The policy advisory committee will report to and seek direction from the Steering Committee." The proposed Resolution No. 2022-2 has not been modified at all Both the staff report and the resolution remain highly defective. Has September 28 Council Committee Completed Its Work? To back up, both staff reports refer to the Mayor appointing a General Plan Update Ad Hoc Committee on September 28, 2021. Neither clarifies that the Mayor did not take this action on his own. Instead, the entire Council, as part of Item 7 on the Consent Calendar, approved Resolution No. 2021-87 (Creating the City Council Ad Hoc General Plan Update Committee) and approved the Mayor's appointments to it. Resolution No. 2021-87 set forth very specific tasks for the City Council Ad Hoc General Plan Update Committee to accomplish, subsequent to its recommendations with regard to which, it was to sunset. Specifically, Resolution No. 2021-87 says: "The Committee is charged with making a recommendation to the entire City Council regarding matters pertinent to updating the remainder of the General Plan including but not limited to: the legal requirements of updating individual General Plan Elements, to identify a resident -based committee, their role and responsibility with assisting staff with the update, to shape the initial scope and priorities of the update, and to establish a general schedule." The present staff report might charitably be understood as purporting to represent the Ad Hoc General Plan Update Committee's recommendation with regard to its task "to identify a resident - based committee, their role and responsibility with assisting staff with the update." But that recommendation is part of a larger scheme and can be understood only within the context of the Council Committee's recommendations on "the legal requirements of updating individual General Plan Elements" and "to shape the initial scope and priorities of the update" and "to establish a general schedule" — regarding which we have heard nothing. January 25, 2022, City Council agenda comments - Jim Mosher Page 6 of 11 The proposed Resolution No. 2022-2 appears to be punting these tasks to a new, vaguely defined three-member committee. Is this indeed the September 28 Council Committee's recommendation? Does that committee have a spokesperson to confirm this? And is this its only and final recommendation, so that it is now sunset? Comparison to Earlier General Plan Steering Committees As to the proposal in the staff report, the idea interposing a Steering Committee between the City Council and a larger citizens General Plan Advisory Committee appears, without acknowledging it, to be modeled after the last comprehensive update of the City's General Plan in 2000-2006. As previously noted, that General Plan Update Committee (which oversaw a still larger citizens General Plan Advisory Committee) was first established by Resolution No. 2000-45 (while the vote on Greenlight was pending), and refined by Resolution No. 2000-102, Resolution No. 2001-17 and Resolution No. 2003-21. These resulted in an 11 -member GPUC serving a similar purpose to what is being proposed here. It consisting of 3 Council members appointed by the Mayor, 7 additional representatives selected by designated City boards and commissions from among their own members, plus 1 person designated by the Greenlight petitioners. The proposed Resolution No. 2022-2 more specifically references and says it is "reestablishing" the more recent General Plan Update Steering Committee, which was established for a slightly different purpose by Resolution No. 2019-7 and refined by Resolution No. 2019-20. That consisted of seven citizen members appointed by the Mayor from a public application pool and confirmed by the full Council, plus the Mayor serving as an ex officio member without the right to vote. The staff report provides no explanation of why the September 28 Council Ad Hoc Committee is recommending the creation of a Steering Committee, let alone why it is recommending one so much smaller than the one the resolution says it is "reestablishing." Proposed Resolution is Sloppily Written, Leaving Its Intent Unclear Setting aside the complete lack of explanation of why the September 28 Council Ad Hoc Committee deemed the creation of a Steering Committee to be desirable, the resolution is so poorly written it's impossible to tell what, if anything, the Ad Hoc Committee recommended for its structure. Staff has modified the resolutions that created the committee it is "reestablishing," but ineptly. Under "Membership," Resolution No. 2019-20 said: MEMBERSHIP- Eight (8) total. The Mayor shall be an ex officio member without the right to vote. Seven (7) residents appointed by the Mayor and confirmed by the City Council. The new resolution says: January 25, 2022, City Council agenda comments - Jim Mosher Page 7 of 11 MEMBERSHIP: Three {3) members that meet the qualifications set forth below and confirmed by the City Council. That could mean the members have to be confirmed by a majority of the City Council. It could also mean only that in adopting the resolution, the Council has confirmed "the qualifications set forth below." Or it could mean that the Council's role is confined to confirming the member's possess the listed qualifications. As to those qualifications, the former resolution, which sought resident appointees only, said: QUALIFICATIONS OF APPOINTED MEMBERS: The new resolution says: QUALIFICATIONS OF APPOINTED MEMBERS: Appointed Committee Members shall be; A. A resident of the City of Newport Beach ("City"); B. A registered voter in the City of Newport beach; C. Appointed by the Mayor; and D. Confirmed by the City Council, Appointed Committee Members small be: k One (1) resident of the City of Newport Beach, B. One {1} registered voter of the City of Newport Beach.- and each;and C One (I) Mayoral appointment_ That is a very strange perversion of the previous list. Rather than having to be a resident, a voter, appointed by the Mayor and confirmed by the Council, it now says one member will be a resident, one member will be a voter, and one member will be appointed the Mayor. And since the assumption is that all three members will be appointed by the Mayor, the only reason for "C" would seem to be to allow the Mayor to choose someone who is neither a resident nor a voter. Likewise, since nearly all registered voters are residents, calling those out as separate qualifications would seem to express an intent to appoint people who are one but not the other. This is all very unusual, making it particularly strange that there is no explanation of why the January 25, 2022, City Council agenda comments - Jim Mosher Page 8 of 11 Council Ad Hoc Committee would recommend such an unconventional Steering Committee structure. Moreover, the deletion for the requirement for the Mayor's selections to be confirmed by the Council suggests that is no longer a requirement. Indeed, whereas Resolution No. 2019-20 laid out a very detailed process for "Selection of Appointed Members," the proposed resolution says: SELECTION OF APPOINTED MEMBERS: Except as otherwise required by state law, the Mayor (or his/her designee) shall have the discretion to determine the process for selecting Committee Members and shall not be requixed to form an "ad-hoc appointments committee" or comply with any other procedural or tinting requirements set forth in Council PDlicy A-2. In other words, the Council is being asked to give the Mayor complete freedom in deciding how the selections are made. And while the next to last Whereas on page 9-5 says: "the City Council values and respects the opinions, knowledge, and experiences of its residents, and desires residents to play an important role in the General Plan update process," the staff report says, on page 9-2: "If the Mayor decides for residents to apply for the opportunity to serve on the Steering Committee, then the City Clerk will publish an advertisement for residents to submit applications for City Council consideration." The strong implication is staff interprets the resolution to mean the Mayor may choose not to include residents on the Steering Committee, or may choose to appoint residents without an application process. In other words, the Council is being asked to leave it up to the Mayor to decide if the Steering Committee should consist of three Council members, three non -Council members, or any combination of those, chosen in whatever manner the Mayor wishes. Again, why is the September 28 Council Ad Hoc Committee making such a strange recommendation? One might consider heeding the wisdom of our City Charter, which, when the Council wants citizen advice, as it seems to here, empowers the Council to appoint boards and commissions to provide it. Article VII requires such advisory bodies to "be appointed by the City Council from the qualified electors of the City, none of whom shall hold any paid office or employment in the City government" who choose their own chair and serve for terms of four years. It is not clear the Charter allows the creation of advisory bodies with alternative structures, such as being proposed here. January 25, 2022, City Council agenda comments - Jim Mosher Page 9 of 11 Item 10. Ordinance No. 2022-4: Multiple Vessel Mooring System Clarifying Statements and Updates; and Resolution No. 2022-9: Multiple Vessel Mooring System Plans and Specifications Intuitively, one might think these floating platforms for tying vessels to would be most appropriate in areas where the platform could be firmly secured at both ends (the "double anchor" mooring fields), as opposed to securing them at one end only, leaving them free to more with the winds and tides (the "single anchor" mooring fields). However, they are being recommended only in the single anchor fields, all of which are controlled by two private yacht clubs of which some of the people on the Harbor Commission making the recommendation are members of. The CEQA findings provided on staff report pages 10-4 and 10-5, and partially repeated in Section 6 of the proposed ordinance on page 10-12, and Section 5 of the proposed resolution on page 10-16, seem questionable. The first on page 10-4 applies to existing structures, but this appears to be a plan to permit new structures. Most of the remainder say the action will not result in an expansion of use. But that seems exactly the purpose, and nothing I can find in the proposal limits how extensive the expansion could be. Indeed, it would appear the City could approve the expansion of the entire single anchor mooring fields to this configuration if the yacht clubs requested it. Coastal Act Consistency It might also be noted that the new standards state "The MVMS shall adhere to all provisions for harbor structures as stated in NBMC Title 17 including, but not limited to, maintaining appropriate measures to deter sea lions from boarding the MVMS" and refer to the amended criteria as "a standard for the design of structures in Newport Harbor." The choice of the term "structures" is both appropriate and significant, for the floats in question are clearly structures rather than vessels. What the staff report does not mention is that the placement of structures in the Coastal Zone is regarded as development that normally requires a Coastal Development Permit. And when the structure is placed in the California Coastal Commission's area of retained jurisdiction (which most all of the harbor is) the City's role is normally limited to the issuance of an approval in concept, with the CDP being considered by the CCC. Do any of the MVMS that have been deployed since 2006 have CDP's? Will future MVMS's require them? Title 17 Revisions As to the substance of the proposed revisions to the Newport Beach Municipal Code shown in redline on page 10-5, it is unclear why all the references to "Harbormaster" are being replaced with "Harbor Department." Normally decisions are made by persons or commissions, not by "departments," and the remainder of Title 17 is written that way. Why January 25, 2022, City Council agenda comments - Jim Mosher Page 10 of 11 would this passage be any different? Who decides if a "department" has made a decision? And can it be appealed?3 Harbor Design Criteria Revisions As to the proposed changes to the Harbor Design Standards (Criteria?), the standards themselves seem a strange mix of actual design standards interspersed with operational regulations that would seem to belong more logically in the NBMC. For example, Vessel "Rafting" at the top of page 10-30 is entirely an operational regulation, not a design standard at all. The MVMS "standards" are a similar mix. Moreover, the entire Harbor Design Standards document has an odd structure as indicated by the Table of Contents on pages 10-21 and 10-22. For example, the entirety of Section "I. WATERSIDE DEVELOPMENT" falls under the single subheading "A. DOCKS." That is, there is no subheading "B." Why is this and what is the point of subheading "A"? And in reference to my earlier comment, while this document refers to approvals by various departments, that is not the style in Title 17. That said, the proposed insertion of a new Subsection I.A.6.e, as presented on pages 10-15 and 10-16, is very poorly written: 1. For example, "Multiple Vessel Mooring System (MVMS) allows multiple vessels to be secured to a floating platform which is secured to a single anchor mooring system in Newport Harbor. This allows multiple vessels to side -tie to the floating platform therefore increasing vessel capacity at a mooring location. The intent of the MVMS is to provide increased small -boat storage at a mooring location within the single anchor mooring fields." is not only ungrammatical, but it contains many repetitive phrases for no obvious purpose. It could presumably be condensed without loss of meaning to: "A Multiple Vessel Mooring System (MVMS) is a floating platform secured to a single anchor mooring in Newport Harbor that allows multiple vessels to side -tie to it, increasing vessel storage capacity at the mooring location." 2. Similarly, proposed Subsection I.A.6.e.3.(e) says: "Coolers, benches, furniture, boat covers, trash, debris, or other items shall not be used or stored on the MVMS at any time." What does "using trash" mean? And is this intended to prohibit storing a cooler or boat cover in the dock box? 3 Note further that NMBC Sec. 17.65.010 provides only "for the appeal or call for review of the decisions of the Public Works Director, the Community Development Director, Risk Manager, Harbormaster and Harbor Commission under this title." There is no mechanism in Title 17 for the appeal or call for review of decision made by the "Harbor Department." January 25, 2022, City Council agenda comments - Jim Mosher Page 11 of 11 Mooring Specification Changes Finally, the staff report includes an Attachment F (Offshore Mooring Specifications) on pages 10-81 and 10-82. Since nothing about this is referenced in the Recommended Action on page 10-1, the Council does not appear to be asked to approve this. Who has the authority to make the changes shown? Item 11. Resolution No. 2022-10: Adopting the 2022 Key and Management Compensation Plan for the Period January 1, 2022, through December 31, 2025, and Amending the City's Salary Schedule Will the adoption of this resolution in any way, directly or indirectly, affect the benefits for which the City Council members are eligible? Item 12. Third Amended and Restated Employment Agreement for City Manager The Discussion in the staff report is not clear as to which of the highlighted provisions are changes from the existing contract, nor is it easy to discover this. The City's website continues to have a City Budget & Salary Information page that formerly linked to the contracts of the City Manager and other major employees, but it no longer contains that salary information. Instead, those links are now on a separate Human Resources Employee Contracts page not linked to from the "Salary Information" page. Among the changes not clearly disclosed it appears the severance benefit has been increased from six month's pay to eighteen month's pay. One thing that has not changed is the Section 3.D provision allowing the Council to set annual goals for the City Manager. It seems strange to me that the public does not know what those goals are. There seems no public policy justification for keeping them secret. By contrast, see, for example, Item E.5 from the Costa Mesa Sanitary District's January 24, 2022, agenda, in which their Board will be publicly reviewing their General Manager's 2021 Performance Goals.