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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 12, 2022 Written Comments July 12, 2022, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a)-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item IV. CLOSED SESSION A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS The agenda notice cites "Government Code 54956.8" for authority to privately discuss "Instruction to City Negotiators regarding the lease with the American Legion and price/terms." The code cited actually authorizes only the latter part: "to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease." Anything else regarding the lease, including, I would assume its duration and the relative responsibilities of the parties, is supposed to be discussed in open session. What would have prompted a negotiation about the price or terms of payment at the present time is a mystery. The current lease, C-1772, was, according to the Clerk's records, approved as Item 23 on November 26, 2002, and runs through January 1, 2028, with an option to extend for another 25 years. Is the present secret negotiation part of the new trend to offer City property at little or no cost to the lessee? B. CONFERENCE WITH LEGAL COUNSEL As is legally allowed, the agenda notice says, without any additional explanation, that the Council will be discussing "City of Long Beach, et al. v. Monsanto Company, et al. United States District Court, Central District, Case No. CV 16-3493 FMO (ASx)." A little Googling reveals this is a successful class action lawsuit involving claims related to environmental contamination caused by Monsanto's polychlorinated biphenyls ("PCBs") [see also the Long Beach City Attorney's press release]. Although the City was not a party to the suit, it is a potential claimant and has until July 25 to reject, if it so chooses, the recently announced settlement which looks like it may net the City $1,654,029 as an agency with a Total Maximum Daily Load requirement. I would guess the Council will accept the money, as the Seal Beach Council did in closed session on June 27. However, the Council may wish to know the pros and cons of settling have been publicly discussed at some length by the Contra Costa Clean Water Program for the benefit of its member agencies. See particularly their analysis of the estimated cost of achieving the TMDL compared to the proposed settlement starting on page 190 of their May 18, 2022, agenda packet. For their county, they expect a total payout from Monsanto of $9.3 million against estimated costs of $450 million to $1 billion. July 12, 2022, City Council agenda comments - Jim Mosher Page 2 of 8 Item 1. Minutes for the June 28, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c*r�ut underline format. The page number refers to Volume 65. Page 341, Item XVI, paragraph 3: "Adam VanaK Bednar expressed concern over safety and increased crime on Fairhill Drive and requested assistance from the City." [see video at 42:30] Page 342, paragraph 1: "Council Member O'Neill ..., indicated that the pickleball courts will not be saved if the amendment does not pass, ...." [Comment: The video at 1:04:50 suggests this correctly reflects what Council Member O'Neill said, but since pickleball players seemed to be urging passage of the amendment that he was arguing against, he may have meant to say that nothing they might do, including passing the amendment, would assure the courts were saved.] Page 342, paragraph 4: "Sean Abdali, owner of The Tennis and Pickleball Club at Newport Beach, noted a passionate membership and project support from Eagle Forel Four and most members." [The reference was to Eagle Four Partners, new co -owners of the neighboring hotel.] Page 343, Item 19, paragraph 4: "Dennis Bress noted the benefits of automated water meters, suggested including the underground aquafer a uifer replenishment system in The Week In Review, ..." [The OC Water District uses the American spelling, as does Wikipedia. "Aquafer" appears to be a British variant.] Page 344, paragraph 6: "Robert Clark Clarke expressed safety concerns on Tustin Avenue and utilized a presentation to review an area map to note a blind corner, ..." [see staff report, page 20-151 Page 344, paragraph 4 from end: "John Pearl opposed closing Tustin Avenue." [Likely, "Jon Kearl"] Page 345, paragraph 1: "Jane Curet Kearl noted the increased traffic on Riverside Avenue and the burden on other streets with street closures." [see staff report, page 20-12] Page 345, paragraph 3: "Carolyn Clark Clarke supported the Tustin Avenue closure." [see above] Page 345, paragraph before motion: "In response to Council Member Brenner's question, City Traffic Engineer Brine clarified that posted truck restriction signage is enforceable and Public Works Director Webb indicated that trucks delivering to local re i e nee residences are not enforceable." Page 346, paragraph 5: "In response to Council Member Dixon's question, Public Works Director Webb indicated that staff can return in fall or September with alternatives. Council Member Dixon stated that by opening Tustin Avenue at the top, relief is provided to neighboring streets while staff works on a long-term solution." Page 346, paragraph 6: "Council Member Brenner expressed concern for a longer broader scope of issues, consideration for the impact on Newport Heights from development on Mariners Mile, and community involvement." July 12, 2022, City Council agenda comments - Jim Mosher Page 3 of 8 Page 346, paragraph 2 from end: "In response to Council Member Brenner's question, Public Works Director Webb relayed community notification of park bench maintenance terms by way of City literature, indicated that a divider could be added to prevent misuse, and existin_g benches could be returned to their owners or used for fundraising." [note: The City owns the benches. The reference was presumably to the donors.] Page 347, paragraph 3: "Jim Maloney Moloney, Balboa Island Preservation Association (BIPA) representative, applauded the work by staff and the Parks, Beaches and Recreation Commission Ad Hoc committee, ..." Item 3. Ordinance No. 2022-16: Amendment to The Tennis Club at Newport Beach Development Agreement No. DA2022-001 (PA2022- 038) This proposal suffers from a number of problems. One of perhaps the more trivial is the duration of what is being proposed: the ending date is inexplicably left blank in Section 1 of Exhibit A of the ordinance (see staff report page 3-11). The ordinance indicates its intent is to extend the original agreement by one year, and page 1 of the staff report suggests the new end date will be September 27, 2023. However, the staff report from when the ordinance was introduced as Item 18 on June 28 provides contradictory information, stating on page 18-2 that "The Development Agreement for the Approved Project became effective on September 23, 2012, with a 10-year term, and it is due to expire on September 23, 2022." But this is contradicted by the next page, stating the Planning Commission recommended "approval of the amendment to the Development Agreement to extend the term one year, from September 27, 2022 to September 27, 2023." The reason for the 4-day lapse is a mystery, as is the blank space in the proposed Amendment. "September 27" is indeed what the Planning Commission Resolution 2022-008 recommended in its Section 4.2 (page 18-61 of the June 28 staff report), but the recommended action (page 18- 54) was "to extend the term of the Development Agreement by one year from September 23, 2022, to September 23, 2023." By the terms of Section 1 of the original agreement, "Effective Date" was defined (on page 3-23 of the present staff report) as the later of five possibilities, but no more than 180 days from the Agreement Date of March 27, 2012. The latest of the events listed seems to have been the approval of a Coastal Development Permit for the project, which was granted by the California Coastal Commission as Item 18b at its April 10, 2013, meeting. Since that was more than 180 days after the Agreement Date, the 180-day limit would appear to apply giving an Effective Date of March 27, 2012 + 180 days = September 23, 2012, for the original agreement, and hence a term ending ten years after that, on September 23, 2022. So, the first statement in the June 28 staff report appears to have been correct, and the subsequent references to "September 27" an error of unknown origin. A second and considerably more serious problem is the questionable validity of the original development agreement. July 12, 2022, City Council agenda comments - Jim Mosher Page 4 of 8 First, since the City did not have a certified Local Coastal Program in 2012, any development agreement purporting to protect land use entitlements in the coastal zone, like this, would have required separate and formal approval by the Coastal Commission (see Government Code Sec. 65869). While the Coastal Commission did indeed approve a Coastal Development Permit for the proposed tennis resort, there is no evidence in the record that it was aware of, reviewed or approved the City's 10-year Development Agreement. On the contrary, Standard Condition 2 stated the permit would expire in two years if the development had not commenced by then, and I believe it did expire. Absent the "formal commission action" that would have been required by the Government Code in 2012, it is possible the agreement that is being extended is legally null and void. Proceeding on the theory that Golf Realty has a legally valid development agreement that can be extended seems to require belief in the theory that in matters of land use entitlement, illegal acts become legal if not challenged in court within 90 days. While there may be some legal basis for that, it does not seem a good model for cities to follow if they wish to retain the respect of their citizens. Second, even if the Coastal Commission had approved not only a CDP for Mr. O Hill's 2012 project, but also a development agreement protecting the entitlements for 10 years, the City's prior approval of all of this was extremely underhanded. Mr. O Hill may have once had a good faith belief, as he seemed to express to some confusion a the June 28 hearing, that his tennis resort proposal was included in the comprehensive 2006 General Plan update and approved by voters as part of Measure V. But as staff told the Council, it was not. The development limits that voters approved for Anomaly 46 in 2006, and what the Land Use Element of our General Plan still says is approved on that property is 24 tennis courts plus 3,725 square feet of development with a MU-H3/PR land use designation, which provided an additional floating 450 dwellings and 65 hotel rooms shared among the many MU-H3 properties. However, as detailed by then Principal Planner Jim Campbell (which can be found starting on page 480 of Ms. Ung's January 24, 2012, Item 14 Council staff report), by the time Mr. O Hill finally presented his proposal for "the redevelopment of the existing private golf course clubhouse and tennis club creating a new 35, 000 square -foot golf clubhouse, 27 hotel units and spa/meeting facilities, five (5) single -unit residential dwellings, and a new 3,725 square -foot tennis clubhouse," all of the floating hotel rooms and all but 20 of the dwelling units had been assigned to other MU-H3 properties. Mr. Campbell concluded an amendment to the voter - approved 2006 General Plan would be required to grant Mr. O Hill's requested entitlements, which would, in turn, trigger Greenlight counting. Ignoring that sound since, Ms. Ung recommended a different approach whereby the Council simply approved by Resolution No. 2012-10 the "conversion" of 17 of the voter -approved tennis courts into an allowance for 27 hotel rooms. Since tennis courts have no (enclosed) square footage, had this been regarded as a General Plan amendment, by the standard in Council Policy A-18, whereby hotel rooms are normally regarded as representing 1,000 square feet each, that would have added 27,000 square feet of development to the Newport Center July 12, 2022, City Council agenda comments - Jim Mosher Page 5 of 8 statistical area (L1). But even though there is nothing in the General Plan that allows conversion of the voter -approved uses without a formal amendment by the City Council, this was not regarded as a General Plan amendment, so was never reflected in the City's Greenlight Tracking Tables — unlike the contemporaneous approval of the Newport Beach Country Club clubhouse expansion, which was (see Resolution 2012-2, also approved on January 24, 2012). The proposed Development Agreement amendment thus seems very disingenuous to me where in Finding H (on page 3-11 of the staff report) it implies the development being protected "is consistent with the City of Newport Beach General Plan." The hotel rooms proposed on this site are not currently allowed by the General Plan, nor has the cap on tennis courts been reduced to reflect their purported "conversion" to hotel rooms. Again, in proceeding with this, the City seems to be relying on the theory that illegal land use entitlements become legal if not challenged in court within 90 days, a theory that seems to have been extended to the more recent and even more egregious "conversion" of 159 voter -approved hotel rooms at the nearby Marriott Hotel site into non -voter -approved residences, without that being regarded as a General Plan amendment requiring Greenlight counting. Finally, as I pointed out at the Planning Commission hearing, the current development at the site appears to comport with neither the General Plan nor the Development Agreement. Of the 24 tennis courts that existed when voters approved the existing development in 2006, recent aerial photos suggest only 17 remain. Six have been converted to 25 pickleball courts and one to a lawn area. I would be surprised if there were permits for those changes. It will be interesting to see how the City will handle the new application, PA2021-260, with its 41- hotel rooms. Not only does it continue to show no plan for pickleball courts, but the case log indicates it will be processed as a General Plan amendment. Will the 27 hotel rooms created out of thin air in 2012 finally be acknowledged as a Council addition to the voter -approved General Plan? Item 4. Resolution No. 2022-47: Certification of Results of Special Municipal Election of June 7, 2022 Considering that the certification of the City's regular municipal elections is normally a regular business item (see, for example, Item 9 on the December 8, 2020, agenda), it seems a bit strange for the results of this special election, which attracted more public interest than most of those, to be buried in the Consent Calendar, where those watching the meeting will not even know it is being presented. One thing missing from the report is how many people were eligible to vote. Assuming that number was around the currently -reported 60,732, the 27,642 ballots cast would indicate only 45.5% of those eligible cast ballots, but of those the report indicates 26,244, or 95%, voted on Measure B (although low for Newport Beach, the turnout was higher than the 35.2% of eligible voters who cast ballots countywide). The report also does not give the result as is often expressed, in percentages: 41.38% "yes" to 58.62% "no." July 12, 2022, City Council agenda comments - Jim Mosher Page 6 of 8 For a more in depth understanding of how Newport Beach residents voted, the Orange County Registrar of Voters has an interesting Interactive Mapping Tool, which can be found under Results ... Detailed Data and Reports. By selecting the "2022 Statewide Direct Primary" under "Election" and "B-City of Newport Beach" under "Contest" one can see the results in each precinct simply by pointing to them. The measure was clearly viewed differently in different areas, with votes ranging from 75% "yes" in Uptown Newport to 73% "no" adjacent to City Hall in the Harbor View area. Map Options ELECTION DATA Election: 2022 Statewide Dir �r VV Contest - B-Cityof Newport E v Candidate S� 1 NO v Ems, San BASE MAP STYLE OO Background �e i r ' i Terrain SHOWfHIDE DOUNDARIES ace Page. G2. , County Ragrsrar of 1 ora. 1 17(N7 S" G.,drAverwe I BMna G I _Same A. CA 92705I 7f9.567 7600 Winner by Precinct stet Cove Sfafe NO - - Pml YES . : i Map tiles hY s�,�� ae:rep, cc ar±a Map tl a!a � c:�.seroaiav Information Precinct: RESULTS Name l , P NO 7K 58% YES i0 41% ' The ird lien wn[allned in this web . Under "FISCAL IMPACT" on page 4-2 of the staff report, we are told "There is no fiscal impact related to this item." While that may be true of preparing the staff report, will we ever be publicly told how much it cost to have Measure B voted on in a special election? The Clerk's initial estimate was $215,000 (see page 4 of Item 14 staff report from October 26, 20211). As to the substance of the election, I have heard various people say it is "time to move on." I personally think that would be an unfortunate outcome, for Measure B raised many interesting issues of governance, at least some of which deserve further debate. Based on the discussion that has been preserved in the letters archive at Stu News Newport, much of the debate was about how Council agendas are set and whether it is beneficial to have mayors serve more than one year at a time. There was also concern about whether our current system of winner -take -all elections could lead to a mayor being selected by a minority of votes in a multi -candidate race — a problem that applies to our regular council seat elections, as well. All of these are issues that I believe deserve more discussion, and which it is well within the Council's power to change for the better without need for another election. The current staff report erroneously says the Council placed the measure on a special ballot on "October 21, 2021." The correct date appears to be October 26. July 12, 2022, City Council agenda comments - Jim Mosher Page 7 of 8 Item 10. Newport Beach Junior Lifeguard Building Project - Reject all Bids for Contract No. 7524- 2 (19F13) The need to reject all bids on a much -anticipated project is obviously unfortunate. The staff report does not remind the Council or public of the details of the funding commitment made by the Junior Lifeguard Foundation in the MOU, C-7524-3. It looks like at a time when the building construction cost was estimated to be $4,900,000, they promised to raise $1,750,000 plus any excess of actual costs over the estimate, to the extend they receive additional contributions. In the present case, that would be at least an extra $1.6 million. Does the City know what the current state of the private fundraising is? Item 12. Ordinance No. 2022-17: Code Amendment Related Implementation of Senate Bill 9 (PA2021-277) When the Planning Commission reviewed this as Item 3 at their May 26, 2022, meeting, they saw a redlined version that attempted to distinguish required from voluntary changes. It seems strange that is not being made available to the Council. Have any changes been made since then? SB 9 is certainly a strange beast if, as the staff report says, all California cities are required to allow the additional units and lot splits, but a homeowners association can block them. Staff's understanding of SB 9's applicability to the coastal zone also may require some creative reading. How long does it believe Newport Beach can reject SB 9 applications in the coastal zone? Forever? While section (k) of SB 9 on page 12-11 says "Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local agency shall not be required to hold public hearings for coastal development permit applications for a housing development pursuant to this section," inapplicability to the coastal zone is not mentioned in the Legislative Counsel's Digest, which says only "The California Coastal Act of 1976 provides for the planning and regulation of development, under a coastal development permit process, within the coastal zone, as defined, that shall be based on various coastal resources planning and management policies set forth in the act. This bill would exempt a local agency from being required to hold public hearings for coastal development permit applications for housing developments and urban lot splits pursuant to the above provisions" (see page 12-9). 1 have not had time to review all the proposed details. At the Planning Commission hearing, I singled out one obvious detail which our Legislature seems to think is a standard that can be applied ministerially, but which seems highly discretionary to me. That was the proposed provision near the top of page 12-33, taken from SB 9 near the top of page 12-13, which prevents the City from requiring any off-street parking if "There is a car share vehicle located within one block of the parcel." Staff has added some language clarifying what a qualifying "car share vehicle" is, but the fundamental problem is: what does "within one block of the parcel' mean? July 12, 2022, City Council agenda comments - Jim Mosher Page 8 of 8 Did the Legislature mean located on the same block face as the parcel (that is, at a location that can be reached without crossing a street or turning a corner)? Did they mean within a radius equal to the length of the block face on which the parcel is located, or equal to some standard block length in feet? Did they mean anywhere on all four sides of a rectangular block? Did they mean on the same side of the street? Would they regard a cul-de-sac as a block or an indentation in a block? Assuming we have car share vehicles in Newport Beach, I can foresee a vigorous debate between applicant and planner as to whether their parcel qualifies for the off- street parking exemption — and a debate that could not be resolved objectively with the language as written. In short, "within one-half mile walking distance" (used in the same section) is objective. "Within one block" is not. Should the City insert an objectively defined distance that it could claim implements the Legislature's intent in setting a "within one block" standard? I might also note that the City's language in that section is less clear than the state's. The SB 9 language on page 12-13 states no parking requirement can be required if the within one block standard is met. The City language, by contrast, says one off-street space will be required if the standard is not met, but does not say what happens if it is. I would not be surprised if there are many other problems in the proposed ordinance.