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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 29, 2022 Written Comments November 29, 2022, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher[a@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS3. Potential traffic calming options for Tustin Avenue Readers of the agenda would have to refer to Item 20 at the June 28, 2022, City Council meeting to learn this addresses complaints from residents only on the portion of Tustin Avenue on the slope between Cliff Drive and Avon Street — and not some other part, such as that between Santiago and 23rd Street on which rubber speed cushions were installed some years ago after reclassifying the street to allow a reduced speed limit (see Item 13 from February 11, 2014, and Item 3 from March 25, 2014). The present complaints on this other portion of Tustin Avenue have to do with pedestrians sharing the narrow street with cars and parked cars being sideswiped. Reasonable corrections would seem to include adding sidewalks for the pedestrians and eliminating parking on at least one side to allow cars to pass with greater clearance. Item W.A. CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION - INITIATION OF LITIGATION As I have commented many times before, the reason for closed sessions notices is to inform the public as to what the Council will be making a decision about, and give them an opportunity to provide relevant information to the Council, in writing or orally. In theory, that prevents decisions being made based on hearing only one side of a story. The present notice relies on one of the few exceptions in which the Brown Act allows a closed session to be held with no disclosure of what the specific matter to be discussed might be. However, this non -disclosure is not required, nor has it always been the practice in Newport Beach. See, for example, agenda Item 11.13 from June 14, 2011, where the public was told the Council would be considering two cases of initiating litigation, one against Morningside Recovery for failing to comply with its Zoning Agreement, and the other against Dennis Holland in connection with a boat he was repairing in his yard. The minutes from that day indicate the Council heard public comment on the second potential case at the end of the study session, but, despite that, according to the regular meeting Closed Session Report, decided to proceed with initiating the litigation. It is unclear why the current City Attorney chooses to never publicly reveal what litigation the Council is being asked to consider initiating. In the instances cited above, allowing the public to know what was going to be discussed does not appear to have done any harm. On the contrary, it invited useful public discussion before the decision was made. November 29, 2022, City Council agenda comments - Jim Mosher Page 2 of 7 Item XIV. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) As I have noted in the past, this is an item the Council is being asked to make a decision about (three votes being required to place an item on a future agenda), which means the public must be allowed to comment before the vote is taken. Since the public can discuss the item, it is very odd the Council members cannot. That said, the present "A-1 item" seems also to underscore the lack of clarity in Newport Beach as to how items get on agendas. This request from Mayor Muldoon for an agenda item is listed as "Direct staff to work with the Airport Village Community Plan Group to develop a Memorandum of Understanding for a community plan in the Airport Area." However, that appears to be the same item the City's General Plan Update Steering Committee discussed at its last meeting, on October 27, 2022. Specifically, their Item IV.c. According to the video, the GPUSC voted to present to the City Council the MOU with the Airport Village Community Plan Group. Surely, there should be a mechanism for the City's Boards, Commissions and Committees to present questions for decision by the Council that appointed them. It is unclear why this extra step is needed, with a Council member proposing, and three having to publicly vote to approve hearing the request. Indeed, one might hope this would prompt a reassessment of the entire idea of this "rule of three" which was notoriously used by a Council super -majority in Anaheim to prevent public airing of their since -discredited Anaheim Stadium deal (the two remaining council members being powerless to get items on the agenda). In theory, the present cumbersome system of getting a committee request on the Council agenda would allow a super -majority in Newport Beach to prevent the City's BCC's from ever getting their requests on the Council agenda. As to the substance of the request, the public did not know what the GPUSC item was about until hours before the meeting, when the PowerPoint was posted. It appears the MOU would allow the owners of 37% of the property in the Airport Area to privately pay for and develop a plan for the Council's consideration, declaring objective development standards, for the entire area. Since the Council would not have to approve their plan, I am not sure what the City's obligation is, other than providing staff time to assist the private group. My view of this has changed since the October 27 GPUSC meeting, where Chair Gardner asked if anyone had concerns about the public -private partnership aspect of the deal, and I was silent. I do have concerns about that, now. While it is common for developers to create, for the Council's consideration, planned community texts for their own property, I do not know of any other instance where one private property owner was asked to develop regulations not only November 29, 2022, City Council agenda comments - Jim Mosher Page 3 of 7 affecting their own property, but the property of other private owners who may have limited or no say in the matter. When one owner is invited to set rules for how their neighbor's land can be used, the conflicts of interest are immense. I, therefore, think this is a bad idea, and revert to the suggestion I made at the October 27 GPUSC meeting. Namely, if these 37% owners think the need for a community plan is so urgent they are willing to pay for it, the GPUSC should ask the GPAC to create a committee of unconflicted citizens who, with staff, would be charged with developing the plan. The 37% of owners funding the plan would then be allowed to provide input to the citizens committee on the same basis as the remaining 63% of owners, but not control the outcome. Item 1. Minutes for the November 15, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in str4keGut underline format. The page numbers refer to Volume 65. Page 430, Item IV, last paragraph: "Council Member Avery discussed Mr. Hylkema's involvement in the Newport Moorings Moorin_p Association and the good work he did representing the community." Page 436, Item X, paragraph 1, sentencel: "Phillip Mitchell, Orange County Chapter President of the California Society of the Sons of the American Revolution, Jim Klingler, President of the California Society of the Sons of the American Revolution, and Paul Garcia, Orange County Chapter Vice President, thanked the City for flying the American flag at City facilities and supporting Castaway Castaways Park during the Field of Honor, and presented a Certificate of Appreciation to the City." Item 4. Ordinance No. 2022-24: Designating Portions of Fernleaf Avenue, Goldenrod Avenue and Dahlia Avenue in Corona del Mar as One -Way Streets This is the second reading, for possible adoption, of the ordinance described in the notice. As indicated in paragraphs 3 and 4 of Item 4 on page 435 of the draft minutes from the ordinance's first reading on November 15, 1 "noted there was overwhelming support for Goldenrod Avenue but less than 50 percent support for Dahlia Avenue" and "In response to Mayor Muldoon's question, Traffic Engineer Brine indicated that notices can be sent out, noted more than 50% support." In support of my previous comment, according to Exhibit A from the November 15 staff report, there are 16 address on the two sides of the portion of Dahlia proposed to be made one-way. The Dahlia petition appears to have signatures from only 7 of those addresses, which by my count is slightly less than 50%. Unlike for traffic calming measures (subject to Council Policy L-26), the City does not appear to have any standard for how much community support is needed to make a street one-way, or at least none is mentioned in the staff report or ordinance. The staff report also fails to say if any additional noticing about the pending ordinance occurred. November 29, 2022, City Council agenda comments - Jim Mosher Page 4 of 7 Unless additional noticing took place, I would not be surprised if there are residents on Dahlia who are not aware the Council will be voting to make their street one way. Item 6. Ordinance Nos. 2022-26 and 2022-27: Adoption of the 2022 California Building Standards Codes with Local Amendments and 2022 California Fire Code with Local Amendments Should one trust the Council members have read all these 80+ pages of code amendments? I have not. Item 8. Resolution No. 2022-86: Extension of Waiver of Fees for the Permitting of Accessory Dwelling Units (PA2022-037) According to the staff report, the current fee waiver is set to expire on December 31 unless extended. This proposed extension is unusual in that it does not state how long the waiver is extended for. Is the intent that the waiver be made permanent? If so, would it not be more appropriate to amend the City's Schedule of Rents, Fines, and Fees and its Cost Recovery Ordinance? And if it is not intended to be permanent, since there is no system for keeping track of the many resolutions adopted by past Councils, wouldn't it be wise to set a new sunset data within the resolution? Item 9. Resolution No. 2022-87: Adoption of the City Emergency Operations Plan (EOP) The first sentence of the staff report Abstract says "The City of Newport Beach's (City's) existing Emergency Operation Plan (EOP) was adopted by the City Council in 2012." As more correctly (?) cited in Section 1 (staff report page 9-4) of the proposed resolution, the existing EOP actually appears to have been adopted on September 27, 2011 (as agenda Item 4). However, comparison of the new EOP to the existing EOP is made difficult since in 2011, as now, neither the report to the Council nor the resolution adopting it included a copy of the proposed EOP. Moreover, and disturbingly, the online version of the proposed new EOP that the staff report invites the Council and public to review appears to be the same as the EOP currently linked to from the City's Disaster Preparedness information page — as if the new proposal were the City's currently -adopted EOP, even though the Council has not yet adopted it. However, entering the words " Emergency Operation Plan" in the search box on the City's website retrieves an undated 186-page document ("EOP Part 1.pd') that may be Part One of the current EOP (the Adobe Document Properties indicate the PDF was created on 1/19/2012 November 29, 2022, City Council agenda comments - Jim Mosher Page 5 of 7 and last modified on 2/4/2014). And the Internet Archive's Wayback Machine shows that document being linked to from the Disaster Preparedness information page as recently as May 20, 2022. The structure of the new EOP is so different from that of the existing EOP to make comparison difficult. It might be noted that the earlier 186-page document is only (according to its table of contents) Part One of a three-part EOP. The newly -linked to 122-page document says on its cover page it is "Part I Basic Plan," but its table of contents does not make clear if there are other parts, or if so, how many other parts and what they contain. Of the one thing I know a little about, the Aircraft Accident section (much reduced from the earlier EOP) mentions Newport Beach is under the departure path for John Wayne Airport and the arrival path for Long Beach Airport. It is of, course, also under the jet arrival path to JWA during offshore wind conditions, when the planes are actually at lower altitude than on departure, and could crash. And some of the jets departing JWA to the north under those wind conditions circle back over Newport Beach. It also seems little noticed that planes, including cargo aircraft, approaching Ontario Airport from Hawaii on the KARLB TWO procedure fly up the Back Bay at an altitude of about 8,000 feet; and there is a constant parade of eastbound departures from LAX that pass over Newport Beach on the DOTTS TWO procedure, albeit at altitudes of 15,000 feet and above. I am less sure about the Long Beach arrival pattern, which undoubtedly changed, since the last EOP, as a result of NextGen. I believe their normal DSNEE procedure now avoids Newport Beach by flying over the 405/55 freeway intersection, although the ROOBY arrival procedure, shared by JWA and SNA during abnormal wind conditions, likely flies over our city from its endpoint over Laguna Beach. As to accident risk, while the EOP may be correct that the most recent small plane incident in Newport Beach was the death of three people when an out -of -gas single -engine plane crashed in the Upper Newport Bay in November 2010, there was also the death of five people when small plane crashed onto courts at the Newport Beach Tennis Club in the Bluffs in April 1989. On another EOP-related matter, what has happened to the City's Emergency Council established by NBMC Sec. 2.20.030, and consisting of the City Council and other appointees? Page 59 of the new EOP (page 73 of the PDF) says "The Emergency Council shall meet at least once per year." The Council held a study session about it on May 14, 2019, (Item SS3, "City Emergency Council Update"), recommending it meet twice a year, and in connection with Item 12 ("Replacement of the Outdoor Warning System") on August 13, 2019, the City Manager said it would meet later that year. But to the best of my knowledge, it has never met, and it is not even clear who is on our Emergency Council in addition to the City Council members placed there by the NBMC. Whoever they may be, shouldn't the Emergency Council have had input to the EOP? November 29, 2022, City Council agenda comments - Jim Mosher Page 6 of 7 Item 19. Gift Agreement Between City of Newport Beach and Friends of Newport Beach Animal Shelter to Accept Donation of the Real Property at 20282 Riverside Drive This seems like a major gift to be hidden away on the consent calendar. Item 22. Ordinance No. 2022-28 and Resolution No. 2022-90: Amendments to Allow the Transfer of Development Rights in the Coastal Zone (PA2019-154) In connection with Suggested Modification 4 (Qualifying Public Benefits for TDR Eligibility), the description on staff report page 22-3 says the transfer must provide "at least one of the following eight specific public benefits," but lists only seven. Fortunately, the proposed ordinance lists all eight on pages 22-15 and 22-16. More importantly, I am concerned about how once the Council presents a proposed Local Coastal Program amendment to the Coastal Commission for consideration, these suggested modifications appear to be the product of negotiations between Coastal staff and City staff with the Council never being asked for further guidance as to how the proposal originally presented in public could or should be changed. Then those staff negotiated and approved modifications come back to the Council on a take it or leave it basis. This appears to be staff, not the Council, determining the City's policies, which I think is wrong. I believe before the item is put on a CCC agenda for certification in a form the Council has to itself accept or reject, City staff should come back to the Council for direction on any substantive modifications it has discussed with CCC staff. In this case, the City's proposal sat in this staff -to -staff negotiation mode for nearly three years, from when the Council last saw it in October 2019 to when the CCC considered it in October 2022. Surely there would have been opportunities, and it would have been appropriate, for the Council to guide City staff in those negotiations. Finally, the staff report fails to inform the Council and public that there was a considerable volume of correspondence (including from me) when the City's proposal was considered as Item 12a at the CCC's October 12, 2022, meeting, all in opposition to approval. My opposition is based on my belief this is a back -handed and unnecessary way to change land uses. It seems much cleaner to me to simply amend the uses, not to have a side agreement to the effect the approved uses are different from what the published maps and tables show. November 29, 2022, City Council agenda comments - Jim Mosher Page 7 of 7 Item 26. Resolution No. 2022-92: Approving Side Letter Agreements with the Labor Groups Representing City Employees, Approving a Second Amendment to the Key and Management Compensation Plan, and Approving Amendments to the Appointee Employee Agreements and Police and Fire Chief Agreements The Abstract section of the staff report says "The City Council wishes to address continued inflationary pressures, including increased healthcare costs that City of Newport Beach (City) employees are experiencing, by either temporarily reducing employee retirement contributions or temporarily increasing monthly City contributions toward the employee Cafeteria Plan." It is not clear to me, nor does the report explain, when, how or to whom a majority of the Council could have expressed this wish without violating the Brown Act. To the best off my knowledge, there has been no prior public discussion of this. And the last time the Council held a closed session to speak to labor negotiators interfacing with all the employees affected was on June 14, and on July 26 with ANBOL negotiators. Those discussions presumably led to the August 23, 2022, Item 3 increasing the employee's annual Cost Of Living Adjustments to 3%. But there was no discussion at that time, as best I can recall, of any need for further adjustments to mitigate increased healthcare costs. Subsequent to that, at its September 27 meeting, the Council did hold a closed session to speak with labor negotiators interfacing with the NBCEA and NBPTEA. That could have been to hear a request for relief from increased healthcare costs. But since only the NBCEA and NBPTEA were mentioned in the notice, direction could not have been given with regard to any of the other employees. The first paragraph on page 2 of the staff report repeats, again without saying when the decision was made, this claim that "the City Council wishes to offer temporary relief to City employees" and goes on to say "Where needed, Side Letter Agreements (Side Letters) have been executed." That is odd, since the purpose of the item is to authorize he Mayor to execute the Agreements, which would hardly be necessary if they have already been executed. Finally, it is customary, and perhaps even legally necessary, for employees to recuse themselves from presenting to the Council contract proposals affecting their personal finances. Since this proposal affects the finances of all employees, it is unclear who, if any, can present and advise the Council on it.