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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 28, 2023 Written Comments February 28, 2023, 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 on the Western Snowy Plover Management Plan (PA2018-074) It is good to see some material and links provided for review prior to the study session. As an appointee to the City's 30-member General Plan Advisory Committee, and having volunteered to be part of the group reviewing the Natural Resources Element, this item, and the Council's reaction to it, is of particular interest to me. Most of the City's policies with respect to this habitat appear to be the City's Local Coastal Plan rather than in its General Plan Natural Resources Element, and while both acknowledge the existence of the Western Snowy Plover in Newport Beach, the General Plan does not mention the location, while the LCP only identifies it as occurring in the Semeniuk Slough and Upper Newport Bay. Speaking of vague identifications, I might note that Figure 2 of the present staff report, showing the condition of the "existing fencing," is not identified as to date or location. The photos (also undated) in Exhibit 2 of the WSP Habitat Management Plan (page 62 of the 411-page PDF "Attachment A" to the present staff report) seem to show a rather different condition at four locations (which that exhibit does identify). Item 1. Minutes for the February 14, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in tilkeo t underline format. The page numbers refer to Volume 65. Page 488, paragraph 1: "Debbie Stevens, President of the Corona del Mar Residents Association, relayed that residents..." Page 488, paragraph 2: "Jim Mosher expressed the opinion that City Council Policy L-6 may need to be reviewed Citywide, expressed concern relative to having the Planning Commission review encroachment requests, relayed the duties of the Parks, Beaches and Recreation Commission, noted parking parkway opportunities for encroachments into a public right-of-way, and believed that the Parks, Beaches and Recreation Commission should have input on how the encroachments are approved." Page 488, paragraph 7: "Laura Curran thanked everyone who worked on the plan, asked the City to use native plants that are cons s consistent with the local habitat and similar to those used in City parks, and offered to lead a tour to show the plants" I did not notice any obvious errors in the remainder of the minutes. I don't know if I have ever mentioned it before, but if not, I might note that since July 26, 2005, the minutes approved by the Council have included numerical codes at the end of the numbered regular meeting item titles, as highlighted in bold here from page 490: February 28, 2023, City Council agenda comments - Jim Mosher Page 2 of 6 "1. Minutes for the January 24, 2023 City Council Meeting and January 28, 2023 Planning Session [100-2023]" These codes undoubtedly mean something to someone. But they mean nothing to me. They do not appear in the agenda that the minutes are reporting on. Item 4. Alley Reconstruction (AD-116, 116B & F Street Areas) (Project No. 22R07) - Notice of Completion for Contract No. 7976-1 It is good to see a contractor was able to complete a City project, if not exactly on time (the March 22, 2022, staff report anticipated 60 days of work starting in April), at 7% under the contracted price (which, additionally means, there was no need to dip into the Council -approved 10% contingency). Item 5. Water Well Rehabilitation - Tamura Shallow Well (Project No. 22W05) - Notice of Completion for Contract No. 8727-2 and Approval of Amendment No. One to Professional Services Agreement with Richard C. Slade & Associates LLC (Contract No. 8727-1) Again, it is good to see a contractor able to complete a City project at a lower -than -expected cost — this time an even more remarkable 18.6% below the contract amount. However, it is apparent that as a result of this contractor discovering a hole in the casing of a separate and more important Tamura Deep Well, the ultimate cost of keeping the facility operating may be substantially more than anticipated. The staff report does not mention that the same contractor was able to complete the most recent servicing of the now -compromised Deep Well in 2020 for 22.6% below the contract price. According page 2 of the August 25, 2020, Item 8 "Notice of Completion" report), "This cost decrease was primarily due to not needing the optional well casing liner, which was included in the bid." Apparently the City saved about $129,000 by forgoing contracted -for repairs at that time, including the casing liner. But it looks like the City may now not only need the liner, but have to pay for up to $88,744 in additional design work. A couple of questions 1. Are holes in well casings common and expected occurrences? Or might it suggest defective work by some previous contractor? 2. Was it General Pump Company (the current contractor) who recommended not installing the liner in 2020? Or was that a City staff decision? February 28, 2023, City Council agenda comments - Jim Mosher Page 3 of 6 Item 6. Approval of Professional Services Agreement with Ardurra Group, Inc. for the Superior Avenue and Hospital Road Pavement Rehabilitation Project (Project No. 23R14) (Contract No. 8894-1) It is not clear from the staff report what recent Request for Proposals is being referred to on page 2, or why the recommendation is to contract with Ardurra rather than Stantec, since staff scored Stantec substantially higher than Ardurra. Is the $130,000 cost agreed to by Ardurra less than that which Stantec was willing to agree to? If not, why would the City want to contract with a lower -rated alternative? Sticking with the highest -rated proposer would seem like it would encourage the others to offer better proposals in the future. Item 7. Approval of Amendment No. Two to the Professional Services Agreement with Burns & McDonnell Engineering Company, Inc. for San Diego Creek Trash Wheel Project (Project No. 17X12) (Contract No. 7127-3) Normally, public contracts are expected to be before -the -fact agreements as to what an agency is authorized to pay for specific future work. Yet, Task 3 in the proposed Scope of Services (Exhibit A on staff report page 7-9), uses the past tense in referring to the preparation of 3D renderings and a "temporary irrigation plan." Is this a request for payment for already -completed work? If not, what is the new work being asked for? I am also a little surprised how few, if any, of the necessary permits and permissions have yet been obtained. I thought the process was farther along than that. Item 8. Approval of a Cost -Sharing Agreement with the State of California for Participation in the Surfside-Sunset Stage 13 Periodic Nourishment of the Orange County Beach Erosion Control Project The staff report mentions, on page 2, that the Army Corps will be evaluating the impacts of moving up to 150,000 cubic yards of sand from the Santa Ana River mouth to local beaches, and implies most of this will be paid for by the state. However, the Definitions on page A-2 of the agreement (staff report page 8-16) refers to a plan for moving "approximately 100,000 cubic yards." Does the City believe 150,000 would be within the range of "approximately 100,000"? Or might additional negotiation as to who will pay be needed if the quantity exceeds 100,000? Item 11. Planning Commission Agenda for the February 23, 2023 Meeting Regarding the action report on Item No. 6 (Fractional Homeownership Presentation), at the "former" City Council's request at their September 27, 2022, meeting, the Community February 28, 2023, City Council agenda comments - Jim Mosher Page 4 of 6 Development Director promised that, following the example of St. Helena, his staff could prepare an ordinance that would broaden the City's existing definition of timeshare to include Pacaso-type fractional homeownership, but not homes jointly owned and shared by family or friends, so that Newport Beach, like St. Helena could "regulate" their proliferation (that is, like other timeshares, not allow them in purely residential districts) and have that ordinance reviewed by the Planning Commission and back to the Council for introduction in November and subsequent adoption.' It is good to see something will be coming back to the Council in March. But it is profoundly disturbing that what will be coming back is not the ordinance promised six months before, or anything remotely resembling it, for no draft ordinance has been presented to or reviewed by our Planning Commission. Instead, the public learned on February 23 that for the past five months the Planning Commission ad hoc committee has been laboring under the misimpression that to even consider an ordinance citing fractional homeownership as a form of timeshare not allowed in residential neighborhoods would be a policy decision not within their purview to make.2 The committee members seem to have believed the Commission's role was limited to assisting staff in implementing what they incorrectly believed staff had been tasked to do by the Council: namely, to develop a regulatory framework within which Pacaso could operate in residential zones similar too short term lodgings — something they found frustrating and complicated because the Council had not given them any clear policy direction on how they wanted that to work. That lack of clarity is understandable considering the Council never gave staff such direction. The long delay and continued failure to produce the promised ordinance is not so understandable to me. ' From the September 27, 2022, video, see, at 1:08:15, then Council member Dixon ask Will O'Neill "What, specifically, are we asking the Planning Commission to do?" And at 1:11:15, CDD Director Jurjis explain to Dixon he will show the PC the ambiguities in the current code and ask them what pieces of the St. Helena code need to be worked into it to fix them. And finally at 1:23:45, he promises Dixon it's simple enough he can go to the PC on October 6 and be back to the Council with a draft ordinance mirroring the St. Helena code by "the first or second meeting" in November 2 See the opening comment of Vice Chair Mark Rosene, apologizing to the public about their supposedly limited scope starting at 2:03:18 in the official video of the February 23, 2023, Planning Commission meeting: "OK. So, 1 would like to start off by making an important distinction here, and that is that the opportunity still exists for you to reach out to your new Council because what we were... what staff was actually designated to do was to find a way to regulate, not find a way to put a moratorium in effect, so this is very difficult and 1 still think the opportunity exists to broaden the definition of timeshares to include fractional ownership underneath it and that is not the purview of this body. So, it needs to be clear you have an opportunity, should you desire, to reach out to your Council people who can make that ultimate decision. So -- in light of what we're talking about here is a regulatory atmosphere and not just a moratorium there are a couple of things about this 1 would like to comment on." February 28, 2023, City Council agenda comments - Jim Mosher Page 5 of 6 Item 13. General Plan Update Steering Committee (GPUSC) Bi- Monthly Update to the City Council The enabling resolution of the GPUSC calls for the committee to make reports to the City Council "at least bi-monthly." My dictionary defines "bi-monthly" as meaning every two months, or, less commonly, twice per month. Since more than five months have elapsed since the last report (on September 13, 2022) cited in this one, their frequency would not appear to qualify as "at least bi-monthly" by either standard. Whatever their frequency, one might have hoped the intent of the reports was to open a continuing dialog between the Council and the Steering Committee. And, indeed, such dialog seems much needed, since not only has the "new" Council given no direction on the General Plan Update, but at the Council's January Planning Session, the only feedback was the surprise expressed by Mayor Pro O'Neill (from the "old" Council) at the announcement staff's immediate goal was to add housing to the Land Use Element and ask the Council and voters to approve that with no other changes — a surprise echoed by a number of the GPAC members, wondering what, exactly, they have been asked to do. Yet, instead of an opportunity for report and course correction, we have only a receive and file item placed on the consent calendar, with no discussion or feedback anticipated. The Council members might wish to note that in Attachment A the GPUSC reports to you that they have decided to appoint co-chairs for the GPAC— even though the GPAC enabling resolution clearly states the GPUSC is to make recommendations to you for a GPAC Chair and a Vice Chair, those recommendations must be confirmed by the City Council. I do not see a request for such confirmation as part of this agenda item. Item 16. Resolution No. 2023-14: Approving an Updated Legislative Platform I think the City's Legislative Platform has become far too long, including many vague statements that could be used to write letters on behalf of the City that may or may not represent the position of a majority of the Council should the subject of the letter be discussed in more depth. There appear to be something like 75 positions, none of which are provided with any documented history to public input or separate Council discussion. Item 17. Appointments of Planning Commissioners to Fill Unscheduled Vacancies One of the roles of the Planning Commission is to make judgements as to whether the projects that come before them are consistent with the goals and values of the community. Reviewing the applications, I would note that all the nominees cite job experience in the entitlement industry, which means that in those jobs they may make, or at least assist in preparing, presentations to planning commissioners in other cities. February 28, 2023, City Council agenda comments - Jim Mosher Page 6 of 6 If those other cities similarly select their planning commissioners from their own residents employed in the entitlement industry, we would seem to be creating a sort of self -affirming cycle. Since most residents are not entitlement people, wouldn't it make sense for at least some of our Planning Commissioners to be citizens not in that industry? Item 18. Appointment of a City Arts Commissioner to Fill an Unscheduled Vacancy As I noted in my comments on the Planning Commission nominees when their names were presented at the February 14 meeting, many cities do not screen their applicants through a nominating committee. So, it is good to see here all the applications without screening out of the public eye Many cities also ask the applicants to appear publicly, so their council members can see them all and ask questions of them. I think that is also a good practice, especially since those appointed will have to perform in public. In the present case, there would appear, based on the written statements in the applications, to be many well -qualified candidates from which to choose. In such a situation, in might have been useful to ask the City Arts Commission to review the applications and indicate if any might appear to fill a gap in their current strengths. In any event, the voting may be interesting, for with 12 candidates and 7 Council members each having 1 vote, it is not obvious any candidate will receive more than 1 vote in the first round, or even if one does, how the candidates going into the second round will be decided, and so on, until 4 or more Council members vote for 1 candidate. Council Policy A-2 provides voting rules, the last of which is particularly puzzling: `In the event that no one receives four (4) votes, nominees receiving zero (0) or one (1) vote will be dropped and the City Council will cast two (2) votes from the list of the remaining nominees, and the determination will be made as previously stated." Not only is it unclear why Council members would be voting twice, or what "as previously stated" means in that circumstance; but in the scenario of a first round in which 7 different candidates receive 1 vote each, and the remainder 0, all the candidates would be eliminated.