Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 8, 2022 Written Comments February 8, 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 SS2. Update from the City Council Ad Hoc Redistricting Committee I think few of those attending this study session will be aware it has been noticed as a "public hearing," especially since, in accordance with Council Policy A-1, the agenda has a separate section (Section XVI I in the present agenda) for them, and this is not listed in that section.' This unusual designation of a study session presentation as a public hearing may be related to City staff's effort to comply with the California Elections Code Subsection 21627.1(a) requirement for chartered cities that "Before adopting a final map, the council shall hold at least four public hearings at which the public is invited to provide input regarding the composition of one or more council districts," and the additional Subsection 21627.1(a)(2) requirement that "At least two public hearings shall be held after the council has drawn a draft map or maps of the proposed council boundaries." As I wrote to the Ad Hoc Committee at its second and final meeting on December 13, the authority of the state legislature to impose conditions like this is debatable, for according to Article XI, Section 5(b)(4) of the California Constitution, regarding chartered cities, "plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed..." and that might include council members if the city chooses to have a governing council (in law, " lep nary" means "complete; full; entire; absolute."). Assuming Newport Beach is bound by Elections Code Section 21627.1, it is not clear how Newport Beach plans to count its hearings toward the adoption of a final map, which, per City Charter Section 1005, has to be completed by May 8 (six months prior to the November 8, 2022, election). The agenda announcement says "Staff will present the Ad Hoc Committee recommendation of the proposed Council redistricting maps for input so that a final map may be considered at a March City Council meeting." And the Council Redistricting 2021-2022 Schedule linked to from the webpage described in the footnote (below) anticipates "Introduction of Ordinance" on March 8 and "Ordinance Second Reading / Adopt Final Map" on March 22. ' Adding to the confusion, state Elections Code Subsection 21628(g) requires the City to establish and maintain for 10 years a web page providing links to "(4) The notice and agenda for each public hearing and workshop" related to the redistricting effort. Although the City has established such a page, and although the Redistricting Schedule it links to mentions "City Council Study Session - Subcommittee Recommendations to the City Council - City Council Chambers - 4:00 PM" for February 8, it does not, as best I can tell, provide links to the public notice or the agenda. February 8, 2022, City Council agenda comments - Jim Mosher Page 2 of 8 But the full Council has not yet "drawn a draft map or maps." Will that happen at this study session? If so, that has not been announced in the agenda or the public notice. If not, is staff proposing the Council both "draw maps" and immediately after doing so hold the first hearing on them on March 8 and the second hearing immediately prior to the adoption of the ordinance with final map on March 22? And if that is the plan, it does not seem to matter if the present study session is regarded as a public hearing, or not. As to the presentation the full Council is likely to hear: As I told the Ad Hoc Committee at its two meetings, the map evaluation criteria of state Elections Code Subsection 21621(c), and the order in which they should be applied, are made inapplicable to Newport Beach by Subsection 21621(e): we have our own criteria in Charter Section 1005. 2. As I also told the Ad Hoc Committee, although the state Elections Code Subsection 21620(a) references cities with representation both "by district" and "from district," one has to question the relevance of many of the criteria to "from district" cities, where the district boundaries determine only who can run for office, not who can vote for them. 3. As an example of their irrelevance, people in the "by district" mode of thinking resist — and the state law prohibits -- dividing a community, because it dilutes that community's power to elect a representative of its choosing. But in the "from district" scenario, it is actually advantageous to a community's power to be divided by a district boundary, because it opens the possibility of two residents from the same community (on opposite sides of the line) running for separate seats, and since all voting is citywide, an eligible candidate's chance of election or non -election is unaffected by where the boundaries fall. Or did the legislature appreciate this and include "from district" cities in the "geographic integrity" criterion to prevent communities from increasing their potential power in this way? Item SS4. Be Well OC Mobile Response Unit Program Implementation Update This service seems similar to that provided by fire paramedics for other kinds of medical emergencies. Is there a similar charge to those who request the service? Item 1. Minutes for the January 25, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown intrikeou underline format. The page numbers refer to Volume 65. Page 229, last paragraph: "Charles Klobe indicated that the owner of Banning Ranch is not interested in remediating the property for residential development, suggested spreading around the housing units and adding a 20% inclusionary requirement to avoid fines, and questioned potential lawsuits from advocacy groups." [The video indicates the word February 8, 2022, City Council agenda comments - Jim Mosher Page 3 of 8 "requirement" was not spoken, but without it, readers may be puzzled to guess what "a inclusionary" is.]] Page 230, paragraph 5, sentence 1: "In response to Council Member Dixon's questions, Community Development Director Jurjis clarified staff's request for direction on whether to include or remove Banning Ranch in the Housing Element Update and ^�a ti rsdisperse affordable units in other areas of the City." Page 230, paragraph 8: "During a straw vote to maintain Banning Ranch in the Housing Element Update inventory and not count it towards RHNA, there was a vote of 6-1 with Council Member Brenner voting no; however, during the Closed Session Report, it was noted that she changed her vote to affirmative" and page 231, Item VIII: "City Attorney Harp reported that, during Closed Session, Council Member Brenner changed her vote on Item SS3 (Housing Element Update) to affirmative, and with no objection from the City Council, the vote moved forward with a unanimous vote to include Banning Ranch in the Housing Element Update but not count it towards RHNA." [Comment: The draft minutes accurately reflect what happened at the meeting, including the implication that in closed session the Council members continued discussing the prior Banning Ranch study session item, agreeing to let one Council member change the vote she had made in the public session. While such discussion of open session items may be common in Newport Beach closed sessions, Banning Ranch was not an announced closed session topic at this meeting, and it would be difficult to imagine a Brown Act provision allowing Council discussion of how Banning Ranch should be treated in the General Plan to occur out of public view. The minutes are to be commended for their accuracy, but the incident seems highly improper and could easily have been avoided simply by asking to reopen the item and change of vote in the open session, rather than the closed one.] Page 235, full paragraph 3: "Mr. Luckey shared mitigation alternatives to that preclude plant growth, ideas for Castaways Park space, and clarified the sand removal plan (Potential Area No. 1)." [Mr. Luckey acknowledged that adding hardener to the dredge spoils (a possible alternative to mitigate the possibility of unsuitable material washing back into the bay) would preclude plant grown on them. He did not suggest, as the draft minutes would have it, that the purpose of the mitigation was to preclude plant growth. To the contrary, he suggested there might be alternatives that avoided that unfortunate consequence.] Page 235, paragraph 2 from the end: "Harbor Commission Chair Kenney noted the study conducted by the Harbor Commission, the relationship between the City and Federal government, the dredging window of opportunity, noted the EIR is certified, the ramifications of a delays with a site change, private homeowner provisions for cleaning under docks, time and analysis given to Team Palmer, and recommended that Council move forward with the CAD." [ or "a delay' (singular)] Page 236, paragraph 2 from the end: "Council Member Duffield cautioned on the impacts of using the word toxic since the current material has been identified and tested, expressed the February 8, 2022, City Council agenda comments - Jim Mosher Page 4 of 8 opinion that the alternative plan is not to dredge, and emphasized that the CAD is the opportunity to return the Harbor water flow to what it was in 1938 before the San Diego Creek brought pollutants into the Harbor." [Comment: The idea that increasing the depth of the harbor improves the thoroughness of tidal flushing has been frequently mentioned, but even if true, it is completely non - intuitive. If the tidal range from low to high were, say, six feet, the volume of water that has to go into and out of the Bay to accomplish that is the surface area of the Bay times six feet. In other words, the volume of water needed to produce the tidal effects has nothing to do with depth. However, as to the thoroughness of flushing, if the day were just six feet deep at high tide and zero feet of water at low tide, the flushing would be 100%. Whereas, if the Bay were a mile deep the flushing would be slight, for the volume corresponding to the daily extra six feet would be insignificant compared to the vastly larger Bay volume present before and after.] Page 237, paragraph 1: "Council Member Avery noted the importance of exploring alternatives, but not at the cost of losing the current plan or timeline, emphasized that the Lower Castaways is an iconic site, and expressed his support for a solution that does not produce a CAD, recognized theyiabIitjF difficultly of no CAD, and acknowledged the current process and focus on long-term Harbor health." [Council Member Avery cited the 10,000 dump truck loads of material that would need to be hauled out of the City as an indication of the likely infeasibility of a no CAD solution, not its "viability."] Page 237, paragraph 2 from the end: "In response to Council Member Brenner's questions, Public Works Director Webb clarified recycling cart allotment designations and the Standard Valet Service." [Comment: I think either the question or the new trash contract was misunderstood. According to the January 11 staff report for Item 20 (see page 6), CR&R has identified 9,967 residential addresses at which an employee has to align the carts on the street for pickup (for example, by a rear -loading vehicle). They call this alignment operation "Standard Valet Service," and regard it as an "extra service" for which they intend to assess a fee of $8.30 per month above and beyond the basic contract cost paid by the City. Because of the large number of addresses being charged (nearly half the total) this adds up to close to $1 million per year. The question remains of whether the City or the residents will be paying this "extra service fee." If it is the residents, and if they have no alternative but to pay it, this would seem a property -related fee requiring a Proposition 218 process before it can be imposed (as was done with the mandatory "recycling fee").] Page 239, Item 10, paragraph 5: "Jim Mosher questioned the participation of City staff and Harbor Commission members with Newport Harbor Yacht Club memberships and the need for a Coastal Development Permit." [Although several Council members recused themselves because of membership in the NHYC, I cited the staff report and presentation as saying the proposal benefitted two February 8, 2022, City Council agenda comments - Jim Mosher Page 5 of 8 yacht clubs (the Newport Harbor Yacht Club and the Balboa Yacht Club) and asked if a staff or Commission decision maker's membership in either one should require recusal. understand, for example, that our Harbormaster is the recently -elected Commodore of the BYC making it questionable that he should be advancing proposals benefitting it.] Page 240, Item 11, paragraph 1: "Human Resources Director Salvini summarized the terms and conditions of employment for 90 unrepresented employees, noted that the plan is not a contract nor is negotiated with the employees, and outlined the proposal inclusions of a four- year term, wage adjustments of two percent each January, the one-time lump sum payment of $2, 000 for covered employees, City -paid short-term and long-term disability benefits, and discussed the implementation of a 404a 401(a) plan." [Comment: Isn't Human Resources Director Salvini a member of the "Key and Management" group? Should she have been presenting a recommendation about her own compensation?] Page 240, Item 12, paragraph 1: "Human Resources Director Salvini summarized the provisions of the agreement to include a five-year term ending December 30, 2026, a five percent merit adjustment upon the contract effective date, cost of living adjustments tied to those received by executive management members in the Key and Management Compensation Plan group beginning in January 2023 and each January thereafter, 2.5 percent performance pay contingent on satisfactory performance reviews, implementation of a deferred compensation account and 404a 401(a) account with annual City contributions on the effective date of the agreement, the proposed adjustment for flex leave accrual rate, and a severance agreement to provide a cash settlement equal to the monthly salary multiplied by the number of months remaining on the unexpired term of the employment agreement, which is subject to an 18 month cap." Item 4. Resolution No. 2022-11: Approval of the 2020 Urban Areas Security Initiative Grant Program Transfer Agreement The Council has been adopting these resolutions for many years. It is not clear from the staff report how much funding or training the City has received as a result. In 2016, agenda Item 4 at the March 8 meeting, seeking to participate in the Fiscal Year 2015 Program, incorrectly referred to the "City of Anaheim" as the program administrator, requiring a memo correcting that to "City of Santa Ana." This time, it appears from page 4-10 of the agenda packet that administrative responsibility has shifted back to Anaheim. While the proposed resolution (page 4-4) correctly refers to Anaheim, the staff report confusingly continues to refer to "Santa Ana." So, too, does the currently posted agenda, which repeats staff recommendation 4(b), incorrectly quoting a resolution title for an agreement with the City of Santa Ana. February 8, 2022, City Council agenda comments - Jim Mosher Page 6 of 8 Item 5. Correct Recently Approved Street Sweeping Days in Resolution No. 2022-7; and Adopt Resolution No. 2022-12 I am very pleased to see the Utilities Department recognizes public action by the City Council is required to modify resolutions adopted by the Council, and that staff cannot quietly correct them, after the fact, to read as staff intended, but did not publicly state, at the original public meeting. Item 8. Resolution Nos. 2022-13 and 2022-14: Overriding ALUC's Determination of Inconsistency and Adopting the 2021-2029 Housing Element Update Resolution No. 2022-13: ALUC override Regarding the ALUC override, Facts in Support 1 of the proposed Resolution No. 2022-13 (agenda packet page 8-13) says "AELUP Section 3.2.3 requires the residential uses be developed with advanced insulation systems to bring the sound attenuation to no more than 45 dB inside." That is incorrect, or at least misleading. AELUP Section 3.2.3 (applicable to areas with aircraft -related outdoor noise of 65 dB CNEL or more) actually says "All residential units are inconsistent in this area unless it can be shown conclusively that such units are sufficiently sound attenuated for present and projected noise exposures, which shall be the energy sum of all noise impacting the project, so as not to exceed an interior standard of 45 dB CNEL." In other words, 45 dB is not the required amount of "sound attenuation" but rather the attenuation must be sufficient to bring the interior sound level from all noise sources (likely not just aircraft, but also ambient noise per the Caltrans letter) to 45 dB CNEL or less. That is, if the outdoor noise was 65 dB CNEL, at least 20 dB of attenuation would be required (65 — 20 = 45), not 45 dB of attenuation. The proposed resolution would be more accurate if it said "AELUP Section 3.2.3 requires that residential uses be developed with insulation systems bringing the interior sound level to no more than 45 dB CNEL." Even then, it fails to mention the additional requirement to record an avigation easement. Beyond that minor technicality, the perennial question is whether in overriding the ALUC findings the Council shifts liability for future complaints and aircraft -related accidents from JWA to the City. The City Attorney's assurances that an override removes liability from JWA but does not add it to the City have always rung hollow, since then the law would provide a nifty way for no one to be responsible for bad land use decisions. Resolution No. 2022-14: Housing Element Adoption Agenda packet page 8-18(6): In Section 4.A, I believe the reference to "Sag's GIS -Based HELPR Tool" is intended to read: "SCAG's GIS -Based HELPR Tool" Agenda packet page 8-18(14) to 8-18(51): Exhibits B and C, pointing to the passages purported to respond to each of the HCD comments is certainly helpful, but it seems unlikely to guarantee HCD will find the responses adequate. Not only is Exhibit B lacking any words in February 8, 2022, City Council agenda comments - Jim Mosher Page 7 of 8 what was (judging from Exhibit C) intended as the City "Response" column, but, for example, the City staff responses to the HCD comments about public participation on pages 8-18(33) and 8-18(50) point only to pages about the organizations contacted. To demonstrate there was effective public engagement, wouldn't it have been more helpful to point to changes that were made in response to comments received from the underserved, as may be documented in Housing Element Section C.8 (starting on page 529 of the 577 page PDF — the actual page numbers being uncertain as they are largely absent in Appendix C)? Unfortunately, due to privacy concerns, those comments do not indicate who they came from, including whether individuals or organizations, so it is impossible to tell if the submitted Housing Element was actually shaped by input received from diverse groups and individuals adequately representing different housing needs. Agenda packet page 8-18(53): Exhibit D (Housing Element Update Advisory Committee Members) is missing Ed Selich. Random Comments on Draft Housing Element • Page iii: The Table of Contents ends without listing the appendices. Are they part of the Housing Element being presented for adoption? • Page 4-1: Section 4 has two Subsections A — a prominent one that does not appear in the Table of Contents and a less prominent one that does. Was this intentional? • Appendix B: How many potential units do the letters of interest represent? I was unable to find the answer. How many of the letters express an interest in developing the required affordable housing as opposed to only developing housing in general, likely to be market rate? • Page B-22: In Table B-8, the words in the lower left cell ("Remaining Low/Very Low - Income Need") appear to be unrelated to the table, which is about moderate and above moderate income units. • Appendix B: I continue to be unable to follow staff's description of Banning Ranch's development potential. Table B-23 (page B-85) projects only 30 acres can be developed with housing. But Table B-24 appears to assume development at equal density over the full property, including areas that obviously could not be developed, such as submerged land. Although no longer being used to meet RHNA, shouldn't Table B-24 identify the specific 30 acres on which staff thinks 1,475 residential units could be built? • Appendix C: Is it really necessary to include the 200 pages of public workshop materials and comments as part of the adopted Housing Element? Couldn't it be a separate document referenced by it? If one wanted to print out the City's official General Plan after its eventual adoption, this seems like 200 pages of by then largely irrelevant padding. What continuing effect does it have on adopted General Plan policy directives? Appendix C: Was Appendix C intended to have page numbers like the rest of the Housing Element? February 8, 2022, City Council agenda comments - Jim Mosher Page 8 of 8 Item 9. Sculpture Exhibition in Civic Center Park - Phase Vll As Item VI.A.5 at its January 13, 2022, meeting, the City Arts Commission approved the deinstallation of an earlier -approved sculpture slightly prior to its originally planned deinstallation in June (due to the artist having received a time -sensitive offer to sell it). Although that decision seemed appropriate, considerable City time and expense goes into selecting and installing the pieces, and it seems important for the artists to be aware that if the accept the Council's decision to include their work, they are committing to a 2 -year loan and that time cannot be shortened without the City's provision. In the case referenced above, that commitment was Condition 3.2 of the contract signed by the artist in 2020, and hopefully a similar commitment will be included in the present contracts. Item 10. Amended and Restated Employment Agreements for Police Chief and Fire Chief; and Resolution No. 2022-15: Adjusting Salary Ranges for Police Chief and Fire Chief Unmentioned in the staff report is that the proposed fixed four-year term agreements are a change from the current evergreen contracts which renew automatically each year unless the City gives six month's notice of intent of non -renewal. Also unmentioned is that in the event of termination without cause, the severance pay remains capped at the traditional maximum of 6 -months pay (or the amount left on the contract, if less). This adds to the mystery of why, at the Council's last meeting on January 25, it approved a five- year contract with the City Manager in which the possible severance pay was expanded to an 18 -months of salary cap. How is the reasoning for a City Manager different from that for a Police or Fire Chief? As to the Fire Chief, Transparent California's compilation of City compensation indicates several lesser Newport Beach Fire employees make more than the Chief when overtime pay is factored in, suggesting it is something of financial sacrifice for existing employees to take the job.