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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 14, 2023 Written Comments February 14, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(cD-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 24, 2023 City Council Meeting and January 28, 2023 Planning Session The passages shown in italics below are from the draft minutes with suggested corrections shown in c*�,., Gu underline format. The page numbers refer to Volume 65. Note also that although, as is common, these minutes contain many passages whose meaning can be determined only by reference to the video recording, the present suggestions are confined to obvious errors. Page 471, Item SS2, paragraph 2: "Mayor Pro Tem O'Neill questioned whether study exists that demonstrates whether Inclusionary Housing Ordinances lead to more housing production and noted research by FeMew CGn Manhattan Institute fellow Connor Harris that finds the opposite occurs within California communities, provided an example of in -lieu fees, expressed concern for the study dates and increased construction from State regulations, and noted the opportunity to study ordinances from other cities." (see reference at Manhattan Institute) Page 477, Item XVII, paragraph 2: "Cathy Gilbert informed Council that the St. Andrews Presbyterian Church prayer group if is praying for them." Page 477, Item XVII, last two paragraphs: "George Egawa complimented Jackson for his presentation and discussed the passion for the sport by the pickleball community in the area. In response to Mayor Pro Tem O'Neill's question, the Mr. Ogawa relayed that he spoke with the Recreation and Senior Services Department, but Mayor Pro Tem O'Neill suggested he speak directly with Recreation and Senior Services Director Levin." Note the surname is spelled inconsistently in the two paragraphs. Both cannot be correct, if either is. Page 482, paragraph 4: "In response to Council Member Weigand's questions, Assistant City Manager Finnigan and Homeless Coordinator Basmaciyan clarified that the Peninsula Enforcement Team is a group of Police Officers, reviewed the service hours for the Be Well OC Mobile Crisis Unit, and noted that there is no count for the number of homeless sleeping in vehicles." Page 482, paragraph 5: "Council Member Stapleton shared the compassion from the community for people experiencing homelessness, commended staff for their work, encouraged further effort, and noted success stories, but expressed concern for the bottle nec bottleneck for permanent housing solutions, transportation center enforcement action, and vehicles parked on the westside of Newport Beach." February 14, 2023, City Council agenda comments - Jim Mosher Page 2 of 5 Page 483, paragraph 3 from end, last sentence: "She reminded everyone that there are three parties that sign the Settlement Agreement and discussed additional research by SPON using a new attorney." I did not review the video, but, as is well known, there are four signatories to the JWA Settlement Agreement: the County of Orange, the City of Newport Beach, Stop Polluting Our Newport and the Airport Working Group. Page 484, paragraph 2 from end, sentence 1: "Regarding the Central Library Lecture Hall project, Mayor Pro Tern O'Neill noted that the project the will return to Council after the bids are received and expressed interest in Council previewing it, noted substantial cost increases, and ways to handle the project." Item 4. Ordinance No. 2023-2: A Code Amendment Updating Accessory Dwelling Unit Regulations to Implement Council Policy K-4 and to Comply with State Law (PA2021-113) I continue to believe that when, as here, a city's ability to legislate is limited by changing state laws, instead of attempting to rewrite those laws and adopted them as their own, the city would be wise to defer to the statewide law (without restating it) and adopt only the local modifications it wishes to (and is allowed) to make. In the present case, as directed by the Council on January 24, proposed NBMC Sec. 20.48.200.F.3.c (staff report page 4-11), regarding the maximum height allowed for detached ADU's, has been modified to more closely align with the most recently adopted version of California Gov. Code Sec. 65852.2(c)(2)(D) subsections (i), (ii) and (iii). In other words, the ordinance now retains the state -allowed 16-foot height limit for most detached ADU's unless the state requires a higher limit; whereas the original staff proposal was to allow up to 20 feet in all cases. The one more -permissive -than -required height standard, which Newport Beach previously enacted and hence cannot roll back, is to allow an ADU above a detached garage to go to the maximum height of the zoning district. We also have a more -permissive -than -required standard for attached ADU's, allowing them, too, to always go to the maximum allowed height of the zoning district, where the state law allows a city to set a 25-foot cap on attached ADU heights. In its quest to rewrite state laws, City staff has also some minor changes in wording: for example, replacing state code references to "single family and multifamily dwelling units" to NBMC references to "single -unit and multi -unit dwellings." I would not think that changes the meaning. But I am unable to guess why the change was made. Speaking of changes, although direction to so so could not be divined from the minutes of the January 24 meeting, City staff appears to have taken it upon itself to insert the modified detached ADU maximum height language not only into Ordinance No. 2023-2, but also into Resolution No. 2023-8 submitting ADU language to the California Coastal Commission for possible incorporation into the City's Local Coastal Program Implementation Plan (NBMC Title 21). February 14, 2023, City Council agenda comments - Jim Mosher Page 3 of 5 Item 5. Resolution No. 2023-9: Adopting a Revised City Council Policy A-1 (City Council) As I have previously stated, I believe the entire process for preparation of City Council agendas should be reexamined in light of June's Measure B (which attempted to correct what it saw the outsized role of the City Manager in setting the agenda) and the recent scandals in Anaheim (which shone a spotlight on how a "rule of three," requiring colleague support for a council member to put items on the agenda, can be used by a council majority to prevent public discussion of matters needing it). The present revision, especially since it appears only to inject into the existing policy some new guidance to Council members, rather than create a rule binding on them, seems innocuous enough, although it seems a little out of step with the proponent's general philosophy of wanting to remove words from City policies, rather than add them. That said, this is a very peculiar item since the City Clerk has presented a resolution (Attachment A) containing language closely paralleling that seen when, as Item XIII on January 24, the council members voted to put the item on a future agenda; yet, without explanation, a redline (Attachment B) with quite different language Specifically, as quoted in the minutes, the proposal on January 24 was to limit Council member initiated items to ones "primarily focused on issues that directly impact the finances, property, authority, policies, or interest of the City of Newport Beach and/or finances, property, or rights of the residents of the City of Newport Beach." But in Attachment B, issues affecting the catch-all "interest of the City" or the "rights of the residents" appear taboo, to have been replaced by a new and apparently exhaustive list of allowed topics that "primarily focus on issues that directly impact the finances, property, authority, policies, police, health, safety, or welfare of the City or its residents." I prefer the resolution to the redline. But it might be noted that in either version, in the transition from straw vote to policy, a subtle ambiguity has been introduced as to what "primarily' means. In the January 24 vote, I assumed the intent was that every item added by the Council should be one that focuses primarily on one or more of the listed topics. But as proposed to be written into the policy, "primarily' could be read as meaning that most Council -initiated items should focus on the listed topics, but not all need to. In any event, wouldn't it be better simply to advise that matters be "within the subject matter jurisdiction of the Council and even then, is this really necessary? The genesis of this appears to be a 2022 vote in which the required three members asked to put on a future agenda a resolution condemning the government of Iran — a matter some other members felt was not in their jurisdiction.' Would that pass any of these tests? And since the tests are only advisory (saying "should"), even if the item had failed them, would they have prevented it from getting on the agenda? I think the answers to both these questions are unclear. 1 See Item 6 from November 2022 put on agenda by 4:3 Item VII vote on October 25, 2022. February 14, 2023, City Council agenda comments - Jim Mosher Page 4 of 5 As a result, I believe it would better to simply assume inappropriate items will be rejected in the normal course of events, without any need for this. Item 8. Concrete Replacement Program - Award of Contract No. 8921- 1 (23R06) It is not clear why the Abstract and Discussion call out "the Irvine Terrace, Corona del Mar, and Shorecliffs neighborhoods" as being the locations of the improvements. Neither of the schools that are the subject of the associated agreement are in those areas, and the Location Map (page 8-6) indicates work in the Bayside Drive/PCH/Linda Isle area as well. Item 12. Confirmation of Citizen Appointments to the Finance Committee I believe that at their March 16 meeting the Finance Committee will be reviewing their enabling resolution. The City Council may be wishing to do so, too, particularly as to how changes in the composition of the Council and the Council members on the Committee affect the tenure of the citizen appointees. The whole idea of a composite Council -Citizens city finance committee seems a bit awkward, as in researching the possibility, City staff appears to have been unable to find any other example of one -- see Item 12 from January 13, 2015. And as I indicated in my comments on that item, when the Council members not on a committee individually appoint members to it, those people could be seen as representatives of the appointing member, turning the committee meeting into an improperly -noticed "hub and spokes" meeting of City Council as a whole (some present in person and the rest by their representatives). As originally conceived by Resolution No. 2015-5, it seems to have been assumed the four citizen appointees would be selected each year, more or less simultaneously with and by the four Council members who were not themselves appointed to the Committee that year (typically in January, following the selection of a new Mayor, possibly by a new Council) — a process I have some slight familiarity with as the only person ever to have been appointed by a Council member, but rejected by the Council as a whole (see Item 14 from November 10, 2015, in which a back-up appointment had to be made). This was changed by Resolution 2017-58, which gave the citizen members one-year terms starting on July 1 of each year. That put the citizen terms out of sync with the Council member terms. Under this new system, the City Clerk has to invoke a sort of musical chairs to explain how one citizen member becoming a Council member appointee results in two citizen vacancies rather than one. To achieve this result, she has to assume some new not -on -the -committee Council members have a right of instant appointment, independent of the one-year citizen terms, while others do not. But, one of the other new not -on -the -committee Council members fortuitously finds the previous Council member from that district's citizen appointee has resigned, giving her, too, a right of appointment. February 14, 2023, City Council agenda comments - Jim Mosher Page 5 of 5 This awkwardness could be avoided by amending the enabling resolution to more clearly tie the citizen appointees to individual Council members or their successors, and making it clear they serve at the pleasure of that Council member, so a termination prior to July 1 is possible. But that solution would exacerbate the awkward perception that the citizen members are simply shadows of the Council members who appointed them. To their credit, I don't recall any of the recent citizen members identifying who appointed them, or any Council member on the Finance Committee asking a citizen member which Council member they are speaking for. Nonetheless, I have the impression the appointing Council members expect reports back from their citizen appointees, who serve as their "eyes and ears" on the committee — and the transition from "eyes and ears" to "mouthpiece" is at least imaginable. My conclusion from 2015 remains unchanged: the residents of Newport Beach would be better served if they had either an all -citizens Finance Committee or no Finance Committee at all. In either of those scenarios, all financial matters would be publicly discussed by all Council members equally. Either would be improvement over the current system in which four of our seven Council members are cut out from the discussions and, at best, learn about them, possibly with some distortion, through an intermediary or rely on the judgment of the three Council members who did participate in the in-depth discussions. Item 13. Confirmation of Nominations to Fill the Vacancies on the Planning Commission As someone who has applied for appointment to our Planning Commission continuously since 2012 without ever having been nominated, this an item I follow with a certain detached interest. First, I am not aware of any public announcement of the fact that an Ad Hoc Appointments Committee had been formed. Second, I believe that in principle the current agenda item allows Council members who were not on the Appointments Committee to add nominations. But that is difficult to do if they don't know who the other applicants were. As the full list of applicants forwarded to all the Council members? If so, why was the list not made public, for example, by listing the names in the staff report? As it is, the staff report does not even reveal how many applications the five nominees were drawn from.2 Third, I think our Council members should be aware that in several of our neighboring cities, instead of having a nominating committee, the full city council publicly interviews all the applicants. 2 For precedent, see Item 10 from December 13, 2011, in which the staff report listed 26 applicants to fill one PC vacancy.