Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 10, 2023 Written Comments October 10, 2023, 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 1. Minutes for the September 26, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in t�� keou underline format. The page number refers to Volume 65. Page 627, paragraph 1, sentence 1: "Debbie Steven Stevens, Corona del Mar Residents Association, supported the idea, ..." Page 627, paragraph 5, sentence 2: "Deputy Community Development Director Campbell noted that this corridor has always been for commercial use, the community rejected mixed -use in 2006, and the question can be revise d revisited in this study or the General Plan Update." Page 627, Item XXI, paragraph 1: "The agenda and amended agenda we was posted on the City's website and on the City Hall electronic bulletin board located in the entrance of the City Council Chambers at 100 Civic Center Drive on September 21, 2023 at 4:00 p.m. and amended September 22, 2023 at 5:40 p.m., respeGtivey." [Without correction, the sentence is ambiguous. Since it contains two "and"'s, the "respectively" could refer equally well to the agenda and amended agenda or to the website and bulletin board.] Item 4. Resolution No. 2023-57: Authorizing the Submittal of the Whale Tail Grant Application to the California Coastal Commission for Funding of the Junior Lifeguard Scholarship Program The CDP, on page 4-17 of the staff report, mentions the Coastal Conservancy's Explore the Coast Program as an additional source of funding. Is that being pursued as well? Item 5. Resolution No. 2023-58: Investment Policy Update When this item was reviewed by the Finance Committee on September 14, 1 pointed out the odd feature that paragraph "n)" on staff report page 5-39 allows investment in the Los Angeles County investment pool, but the next to last paragraph of "2." on page 5-41 prohibits investment in the Orange County pool. This is likely a hold -over from Orange County's 1994 bankruptcy. I understand that during the next revision, the Finance Committee may revisit this question of why we would continue to trust investors in a neighboring county and distrust those in our home county. Item 6. Resolution No. 2023-59: Accepting a Grant from the State of California, Division of Boating and Waterways for the Surrendered and Abandoned Vessel Exchange Program Only in the Fiscal Impact section do readers learn that the City pays 10% of the program costs. Since the focus of the program seems to have shifted from removing abandoned vessels to providing a voluntary disposal program, is there a possibility of the City passing on part or all of October 10, 2023, City Council agenda comments - Jim Mosher Page 2 of 6 the 10% to those requesting the service, as would be normal for most City services? This does not seem to be program in which less than 100% cost recovery is authorized under NBMC Chapter 3.36. Item 8. Professional Services Agreements with Aleshire & Wynder, LLP, JL Group, LLC, and Jones & Mayer for Hearing Adjudication Services The staff report correctly notes that NBMC Sec. 20.60.040 states the City employs hearing officers for various functions under our Planning and Zoning Code, although it somewhat misleadingly say they approve or deny requests for Conditional Use Permits. It is actually only for certain CUP's in residential districts, such as for adult day or residential care facilities or bed and breakfast inns. I have never quite understood why we do this, considering hearing officers charge a high hourly rate in addition to the usual hearing costs, and Sec. 20.64.020 makes all their Title 20 decisions appealable to the Planning Commission, and from the PC to the Council.' Wouldn't it be more efficient, and less costly, to have the initial decisions made by the Zoning Administrator, or directly by the Planning Commission?? Item 9. Approval of Professional Services Agreements with Multiple Parking Pay -by -Cell Providers and Data Aggregator I found the staff report confusing. Among other things, it doesn't explain why ParkHub is being recommended as the data aggregator over three competitors. Also, it is not until the Fiscal Impact section that readers learn the five-year not -to -exceed amounts in the page 1 recommendations assume all parking payments passed through each single vendor, which does not seem likely. Moreover, one has to read between the lines to discover those seemingly large amounts proposed to be paid to the vendors are primarily not a City cost, but rather a pass -through to the them of a service charge they tack onto the parking cost. Since multiple vendors are competing for the right to collect these 13 to 25 cent per transaction fees, one next has to wonder why the City is offering to pay them any more than that? ParkHub seems to be happy with its 5 cent per transaction aggregation fee, which staff, for unexplained reasons, recommends the City pay rather than pass on to the customers. Why would the pay -by -cell providers not be similarly happy with their transaction fees, and not ask for more? ' Sec. 20.52.070 strongly implies that appeals of hearing officer decisions on reasonable accommodations bypass the Planning Commission and go to the Council October 10, 2023, City Council agenda comments - Jim Mosher Page 3 of 6 Item 11. Amendment No. Two to Lease Agreement with Lighthouse Cafe, LLC for the Restaurant at Marina Park Located at 1600 West Balboa Boulevard The staff report is not clear on when the change from non-exclusive to exclusive use of the current 475 square feet of outdoor area occurred. It appears the base rent on that, which by the staff report's estimate would currently amount to about $14,613 per year, was never assessed. While it is good the cafe will start, at least nominally, paying for use of that space, the staff report is also unclear on how, if at all, the base rent has affected the City's revenues. If I understand the lease, the base rent is a minimum, and the percentage rent is paid in any month it exceeds the base. In how many months has the base rent been the amount paid, and should there be an adjustment for it being set too low in the past? Item 12. Joint Powers Agreement with County of Orange, and an Amended and Restated Ground Lease with Newport Aquatic Center, Inc. for North Star Beach Located at 1 Whitecliffs Drive Considering the controversy surrounding the NAC in recent years, it is surprising to see a new potentially 50-year agreement on the consent calendar. I wonder how the Council's imminent action on this was communicated to NAC members and users? Although the staff report includes, as Attachment E, the original 1987 lease and 1997 extension, C-2637, it does not explain the 1982 ballot measure, Resolution No. 82-115, that made the lease possible.2 I have not located the results of that the election, but presumably permission to lease was granted and no special restrictions were imposed — although electors may have been surprised to find the ultimate lease was rent free. I have not studied this item in detail, but it is not clear to me why the City would not be insisting on the governing structure of the lessee be brought into conformance with City policy. Item XVII. MOTION FOR RECONSIDERATION I hope the Council will reconsider its vote on Item S13 at the September 26 meeting ("Approval of the Joint Use Agreement Between the City of Newport Beach and Newport -Mesa Unified School District for Use of Mariners Branch Library (C-9418-1)"), and send the Agreement back to our Board of Library Trustees before approving it, jointly with them. It has long been my view that our five -member Board of Library Trustees, having been created as a semi -autonomous administrative body by Ordinance No. 166 in 1920, was carried over into our City Charter with a special status in Section 708. 2 Voter consent was at that time a requirement of the City Charter. The Charter has since been amended to remove the requirement. October 10, 2023, City Council agenda comments - Jim Mosher Page 4 of 6 The Council has, for example, recognized that Subsection (a) places the BLT in "charge of the administration of City libraries" and gives them the "power and duty' to "make and enforce such by-laws, rules and regulations as may be necessary therefor"— independent of the City Council. The intent of Subsection (g), giving the BLT the power and duty to "Contract with schools, county or other governmental agencies to render or receive library services or facilities subject to the approval of the City Council," is admittedly less clear. But on September 26, the Council treated the BLT's role in contracting with schools as purely advisory, with the Council having the ultimate and exclusive authority to decide what is best for the City and the Library. Such a reading is implausible, since the authors of the Charter could have phrased it that way, had it been their intent. The language they chose, giving one body the authority to make contracts subject to the approval of another, implies they wanted the joint consent of the two entities, not placing one supreme over the other. Reading it as the Council did on September 26, is much as if when the founders of our nation gave the President of the United States the power to make treaties subject to the advice and consent of two-thirds of the Senators in Article II, Section 2 of our US Constitution, that could later be interpreted to mean the Senate, displeased with the one negotiated the President, was free to substitute and unilaterally approve a treaty of its own devising. To the contrary, it has been universally understood to mean that a treaty cannot go into effect unless the same document is approved by both the President and two-thirds of the Senate. If the Senate is unhappy with the President's proposal, it must send it back with suggested changes, and only if the President agrees to them does it become effective. Similarly, when Article IV, Sec. 10 of our California Constitution requires the Legislature to present its bills to the Governor for approval, it is not understood to mean the Governor is free make corrections and unilaterally approve a new statute more to his or her liking. Instead, as it has since 1849, it directs that the bill be sent back with the objections for reconsideration and possible concurrence by the Legislature. Only when both agree to the same text does it become law.3 Assuming "subject to the approval of the City Council" in Section 708(g) of our City Charter was intended to be read in a similar spirit, the proper action on September 26 would have been to send the Agreement, with the Council's suggested corrections, back to the BLT for their consideration and possible concurrence. Only after they added their approval to the Council's could the Agreement for library services with NMUSD go into effect. The counterargument that Section 708(g) could not possibly mean the BLT's approval of a contract is ever needed because the BLT does not "own anything" to contract about, seems implausible to me. The Council members do not "own" anything, either. The City's property is owned by an abstract entity ("the City"), and the people, through their Charter, would seem free to give power over it to whomever they collectively choose. The requirement for dual Council- 3 To be sure, the mechanism does not require explicit agreement by both, but it gives both the power to prevent enactment if either objects. October 10, 2023, City Council agenda comments - Jim Mosher Page 5 of 6 BLT approval of contracts for library services with school districts makes Section 708(g) consistent with Section 421 ("Contracts"). And it might be noted Section 421, itself, allows the City Manager, who also does not "own anything" to be authorized to make contracts. Especially since there was no particular urgency about the matter — NBPL and NMUSD having operated for most of a year without a formally binding agreement -- proceeding on September 26 to enter into a potentially 40-year Agreement regarding library services with NMUSD without BLT concurrence was worrisome. It was worrisome because the version of the contract presented for Council agreement as a last-minute agenda supplement on a Friday night differed from the agreement the BLT had approved on August 21. It was even more worrisome because what was ultimately approved was the product of still more additional changes proposed on the day of the meeting, giving most of the Council members — let alone the BLT —no time to review. Moreover, most of those changes dealt not with ownership of real estate or even books, but were modifications of rules for administration of library services. And, as noted above, the Charter makes clear, and the Council has acknowledged, that is the exclusive province of the BLT. In short, I continue to believe that contracts for library services with outside entities, including rules for administration of those services, require dual approval of the BLT and Council, and the action on Item S13 on September 26 was inconsistent with that requirement. So, I hope the Council will reconsider. While I believe the Council -approved version is a substantial improvement over the BLT- approved version from August 21, and aside from multiple typos, among the problematic provisions that need resolution and approval by the two bodies: Section 1.2 now appears to place potential continuation of the agreement after 20 years solely with the City Council, leaving the BLT completely out of the picture. • Section 2.2 appears to define the "Joint Collection" as the Mariners School Library Collection plus the entirety of the Mariners Children's Library Collection. It is unclear that is the intent or if "Joint Collection" was meant to refer only to the books owned by the two Parties that are housed in the Secured Area offered for school use during school hours. And while it is good to see the District will be expected to pay for some books, it is also unclear if there is currently any identifiable Mariners Children's Library Collection or if "New Material" requested by the District and approved by the City will become that collection The extensively amended Section 2.2 also appears, through its broad definition of "Joint Collection," to give the District the unilateral authority to order the removal of any children's book from display anywhere at Mariners Library, and, arguably, to order its removal from the City's collection entirely. Since the BLT has not consented to this, it seems to be in conflict with Sec. 3.1, saying the BLT retains administrative control. And it seems an especially broad overreach by the Council into a realm vested by the Charter in its appointed BLT members. Approval of it by the Council alone seems equivalent to the Council declaring it can usurp the City Manager's authority over personnel matters. October 10, 2023, City Council agenda comments - Jim Mosher Page 6 of 6 • Given that new empowerment, it is unclear why the last paragraph of Section 2.2 continues to say "District Representatives" (in addition to parents and patrons) can express concerns through the BLT Collection Development Policy (which would require City consent to the removal of City material). • Section 3.2 refers to disposition of books provided by the Mariners School PTA and Mariners School Foundation. It is unclear how these enter the collection. • Section 3.3 is titled "City Designated Hours," but does not explain what that term means. • Section 3.5, although a subset of "City Responsibilities" places responsibilities on District employees. • Section 4.3 is titled "District Designated Hours," which is a term used (along with "Secured Use Hours") in Section 3.3. It is unclear if any difference is intended between "District Designated Hours" and "Secured Use Hours." If there is none, it is unclear why two terms are needed. • Section 4.3 also seems self-contradictory in opening by saying the design promises secured use whenever students are in attendance at Mariners, but then seeming to say secured use will only be available during certain hours and subject to a limit of total hours per week. • The last sentence of Section 4.4, although a subset of "District Responsibilities" places responsibilities on City employees. • Although the exclusive use of a relatively small area for limited hours may be a minor part of the whole, it seems surprising the District is not asked to pay a pro-rata share of the operational maintenance costs of the facility, but only the salaries of the personnel it provides.