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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 14, 2023 Written Comments November 14, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (jimmosherno_yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS2. Nighttime Closure of Public Restrooms As mentioned orally, before, Section 25 of the California Constitution's Article 1 Declaration of Rights gives the people a fundamental right to fish upon and from the public lands, and to cross public lands for that purpose. Moreover Subsection of NBMC Section 21.48.055 (Public Beaches) says: "Access to State Tidelands. A public beach closure%urfew by the City cannot apply to the area seaward of the mean high tide line. Public access to the water's edge and at least twenty (20) feet inland of the wet sand of all beaches shall be permitted at all times. Existing or new signage at beaches or beach parking lots shall not indicate or suggest a prohibition of public access to the shoreline at any time and any replacement or new signs shall explain the public's right to gain access to State tidelands as defined above at all hours for recreational activities. Nothing in this LCP shall be construed as placing any limit or prohibition on the public's right to gain access to State tidelands as defined above." Given these requirements to allow people on the beaches at all hours, depriving them of access to restrooms seems neither humane nor hygienic. Item 1. Minutes for the October 24, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in h4keeu underline format. The page numbers refer to Volume 65. Page 645, paragraph 1: "..., and suggested language for Section 1.08.050 that desigmf tes delegates work to only City employees." Page 645, Item I11, paragraph 5: "Councilmember Weigand recused himself from Closed Session Item IV.B. due to having investments in companies that are being represented." Comment: Is this correct? The video shows Councilmember Weigand saying "on item 2, 1 have an investment in the companies that are being represented." The meaning of that was ambiguous because there was no "item 2" on the closed session agenda. However, Item IV.A involved two sub -items, involving chemical companies, while Item IV.B appeared to involve only one company, Chartwell Real Estate Development. Councilmember Weigand's Form 700, dated March 19, 2023, lists investments in several publicly -traded chemical companies, but no investment in Chartwell. I would guess his recusal was to "sub -item 2 of Item IV.X — not to IV.B. Page 646, Councilmember Grant, final bullet: "Attended the Second Harvest Food Bank event and presented the Food BenWs Key to the City Managet., and Jean Watt's Celebration of Life, and presented the Food Bank's Key to the City Manager." November 14, 2023, City Council agenda comments - Jim Mosher Page 2 of 14 Item 3. Ordinance No. 2023-16: Amending Sections 17.35.030 (Bayward Location of Piers and Floats) and 17.35.060 (Balboa Island - Noncommercial Piers) of the Newport Beach Municipal Code and Repealing City Council Policy H-1 Background On June 25, 2019 (see that day's Item 24), the previous Council, unhappy with a previous Harbor Commission's recommended revision of Policy H-1,' attempted a version of its own in an effort to push back on the now nearly century -old creep of private piers and floats ever farther into waters created for public use. The Harbor Commission has ever since been resisting the effort to prevent piers and docks from extending farther than they currently do. Given the Council's previous interest in this matter, it is a bit surprising to see it on the consent calendar, and especially on the consent calendar of a 2,153-page agenda packet, where it seems unlikely to receive any thoughtful review or discussion. And it seems odd, given the Council's ongoing effort to correct poorly drafted code enacted in the past by inexperienced legislators, that anyone would think the Harbor Commissioners, most of whom are not lawyers, would be so qualified to assess the merits of a proposed measure that it can be added to the code without any need for Council review. It is also strange the Council is not being shown the minutes from the Harbor Commission meetings where the present proposal was discussed. For example, I remember Commissioner Marston noting that since bulkhead stations don't always fall on property lines, there may be cases where a pier proposal could span zones with different regulations, and which would prevail was unclear. I seem to remember the Commission being told staff might make additional changes to address issues raised by the Commission and possibly by the City Attorney's office. Since the Commission does not advance legislative proposals to the Council by formal resolution, it is impossible to know if what is being presented here is the same as what the Commission voted on, and if not, what is different. I can't find the question of piers straddling zones being addressed. The theme seems to be to revert to an earlier version, but, surprisingly, not quite to the one that existed immediately prior to the confusion starting in 2018,2 and to once again allow bayward expansion nearly everywhere, provided only the Harbor Commission blesses it. That version, submitted and accepted as Item 3 on May 22, 2018, in response to a Council request to suggest simplified policies, required the Harbor Commission to review all applications involving structures beyond the pierhead line (something they quickly decided they didn't want to be burdened with), but gave the Commission nearly complete latitude as to what to do with the requests. 2 The last version similar to what is being proposed is the January 8, 2008, version, which was seen, crossed -out, as Attachment A to the May 22, 2018, staff report. It, for example, prohibited piers on the north and west sides of Collins Isle, while the present proposal allows the Harbor Commission to approve them. November 14, 2023, City Council agenda comments - Jim Mosher Page 3 of 14 New Privileges Being Created Before going into distracting details, it seems necessary to point out new privileges being provided to certain waterfront property owners with no obvious reason. One of the strangest of these is the requested revision, shown in the second paragraph from the end on handwritten page 3-13, to the existing Municipal Code prohibition on piers over the public beach and boardwalk on the north side of Lido Isle. The suggested change to the starting point of the prohibited area from "Lot 849" (current) to "Lot 848" (proposed) is not intended to correct a typo, but rather to allow the existing pier over the beach and boardwalk at 300 Via Lido Nord. There are 31 private lots along this public beach on Via Lido Nord, and another 25 fronting the similar public beach on Via Lido Soud. Why would the City code be written so a single homeowner out of those 56 similarly situated owners should be allowed to have a pier over the walkway and beach, while the other 55 are prohibited from doing so? There seems no reason other than a pier happens to be at 300 Via Lido Nord for reasons unknown to City staff. As noted in Footnote 2, above, there are other anomalies that seem created solely to justify existing development, such as allowing piers on the north and west sides of Collins Isle, where the previous policy prohibited it. But at least all the homeowners in those areas are now allowed piers, and not just a single owner with nothing special about their property. November 14, 2023, City Council agenda comments - Jim Mosher Page 4 of 14 Poorly Drafted? As a non -lawyer, several of the passages suggesting staff is free to approve piers in certain areas under certain circumstances seem to conflict with other parts of the code. For example, existing NBMC Section 17.50.040.A.2.a says all pier permit applications on Balboa Island or involving an encroachment across property lines require approval by the Harbor Commission. What is the point of allowing staff to approve the pier extension if the application has to be approved by the Commission, anyway?4 I am also puzzled that the opening paragraph of the proposed Subsection 17.35.030.A is written differently from the opening paragraphs of Subsections B, C and D. Those say Harbor Commission approval of a pier extension is usually required, but staff approval is allowed under certain, specified circumstances. Subsection A mentions only the need for Harbor Commission approval, which might make a casual reader think staff cannot approve permits in those areas, when, in fact, it gives staff wide latitude and allows staff approval as long as the request doesn't exceed the stated limit. I believe it is generally assumed that a difference in the phrasing of passages in laws suggests a difference in meaning is intended. So if no difference is intended between Subsections 17.35.030.A, B, C and D, shouldn't Subsection A on page 3-17 be written in the same style as the other three? Such as: "The bayward extension of piers and floats located in the areas of Newport Harbor set forth in this subsection shall require Harbor Commission approval in accordance with subsection (G)(1) unless the Public Works Director, Community Development Director or Harbormaster, as applicable, determines that the proposed pier or float will not extend bayward beyond the limits set forth herein."5 Further down on page 3-17, in 10.a, and on page 3-18, in 10.b, the rules about the allowable length of a float parallel to the bulkhead do not appear to have anything to do with the "bayward location of piers and floats," which is the stated subject of the section. Don't those rules belong somewhere else in the code or harbor design guidelines? Subsection F on page 3-22 appears to be miswritten. Since the referral could be under Subsection A, B, C or D, and G(2) relates only to B and D, shouldn't it be: "The Public Works Director, Community Development Director and/or Harbormaster, as applicable, may approve improvements that do not require approval by the Harbor 3 The Section 17.50.040.A.2.a provision refers to NBMC Sec. 17.35.060, which is part of what is being amended by the current ordinance (see page 3-15 of the agenda packet). That, itself, has a Sec. 1 7.35.060.0 requiring Harbor Commission approval for new piers on Balboa Island, which seems redundant if Section 17.50.040.A.2.a requires all pier permits on Balboa Island to go to the Commission. 4 For example, the redlining on page 3-11 allows staff approval of piers 5 I am copying the wordy style of the other subsections. I believe this would be better written as: "The bayward extension of piers and floats located in the following areas of Newport Harbor requires Harbor Commission approval in accordance with subsection (G)(1) if they will extend bayward beyond the stated limits."" November 14, 2023, City Council agenda comments - Jim Mosher Page 5 of 14 Commission or may refer such decisions to the Harbor Commission for approval under subsection (G) f4." On page 3-22, in G.1, shouldn't it say the Commission needs to make all the findings listed. And shouldn't the finding repeated four times on pages 3-22 and 3-23 be altered to read: "... that there will be no negative impacts to adjacent property owners, harbor views, navigation, end or future dredging." On page 3-23, in Section 2, 1 don't think "the City permit line" is a defined term. Shouldn't this be rewritten. Perhaps to: "The noncommercial pier, as proposed for alteration, reconstruction or replacement shall not extend beyond the City permit line (the U.S. pierhead Hne) or such other beywo point that is permitted by section 17.35.030; and' Additional Corrections On page 3-20 and 3-21, item C is entirely about Balboa Island, which makes the 1. Balboa Island" line under it redundant. Shouldn't be deleted and the 1.a, 1.b, and 1.c renumbered to 1, 2 and 3? On page 3-21, in D.2, the parenthetical "(Between "A" Street and Cypress Street)" seems both superfluous and confusing. While it may be helpful for orientation, not only do none of the other references to bulkhead stations explain where they are, but it creates doubt as to which controls — the street or the station — if they are not the same. As indicated earlier, the proposed code does not appear to address the question of how to handle pier proposals that straddle zones. I have not attempted to check if the entire harborfront is included in the defined zones, or how many differences there may be between the proposed regulations and the bayward limits stated in the January 8, 2008, version of Policy H-1. It would have seemed helpful for the staff report to list any limits that are different. As to the Council's wish to eliminate unnecessary words from the code, it might be noted that in proposed 17.35.030.A on page 3-17 through 3-20, the words "Piers and floats shall not extend beyond' or "Piers and floats shall not extend more than" are repeated about 33 times, and each time are redundant with the opening "shall not extend bayward beyond the limits set forth herein." They could be deleted, producing a simplified style, as in: "1. From United States (U.S.) Bulkhead Station No. 107 to No. 109: Piers and {'oats sha not extend heyond the U.S. Pierhead Line. 2. From U.S. Bulkhead Station No. 109 to the northerly prolongation of the easterly line of "H" Street: Pier- and floet . ..._.. not extend more then 16 feet bayward of the U.S. Pierhead Line." November 14, 2023, City Council agenda comments - Jim Mosher Page 6 of 14 Finally, it might be noted that whatever the code says, all the requests to build beyond the pierhead line are rather questionable, since the purpose of the pierhead line was presumably to establish ... the pierhead line, beyond which the water would be reserved for anchoring, maneuvering and general navigation. Item 4. Ordinance No. 2023-17 and Resolution No. 2023-62: Allowing Short -Term Mooring License Agreements and Establishing Fair Market Value License Fees for Offshore and Onshore Moorings "Short-term" in the title of this agenda item seems a little misleading to me, for as I understand the proposal, the licenses for exclusive use of a City -owned mooring would be indefinitely renewable. Regarding the Ordinance The proposed Ordinance No. 2023-17 (Attachment A) seems to me much more clearly and concisely written than the Ordinance No. 2023-16 of agenda Item 2. It does, however, fail to place in the code some key features of the proposed program, such as the obligation of the Harbormaster to establish a waiting list or system to choose between competing applications if the available moorings are oversubscribed. Instead, such features are relegated to a vague and uncodified directive in Section 4 of the ordinance. The need for clear direction within the codified program seems particularly important, for many thought the City already had a waiting list to purchase abandoned or revoked mooring tackle that comes into the City's possession. But the existence of that program is also not mentioned in the code and it is unclear how the new program would interact with it. In fact, it is not clear from the report how the City acquired the 10 sets of offshore and 4 sets of onshore mooring tackle, and whether the Harbormaster currently feels either authorized or prohibited from selling it to private parties and issuing normal mooring permits for it, as the Harbor Patrol apparently did in the past. Likewise, since moorings come in different sizes, it is unclear if there would be multiple interest lists. Shouldn't having a vessel of appropriate size for the mooring sought be one of the eligibility criteria of section D? Since participants expect a fair, equitable and predictable system, it would not seem all these details should be left to the personal discretion of the Harbormaster. Additionally, since the authorization for the Council to charge fees for services provided normally appears in the Municipal Code, it is unclear why proposed Ordinance No. 2023-17 would state the Council will set a fee for the monthly rent, but not a fee to be on the waiting list. On a more conceptual level, Section I ("Termination") suggests the City reserves very limited grounds for terminating the tenancy of a licensee who pays their monthly rent on time. Shouldn't November 14, 2023, City Council agenda comments - Jim Mosher Page 7 of 14 the City have a broader authority to enforce turnover or make other changes to the program? Should there be a maximum length of stay if the waiting list is long and not moving? I believe some of those questions were considered during the Planning Commission meetings, and the Council members may have different views as the best answers, but it doesn't look like minutes of the Harbor Commission discussion have been made available.' Oddly, the report includes nine attachments, but does not reference any of them or explain what relation they have to the report. What is an Appropriate Rent? The staff report suggests a monthly rent will be recommended that can be expected to generate $133,836 of new annual revenue, but, as best as I can tell, does not reveal what the recommended rent will be, or how much maintenance of the mooring tackle will cost the City. Apparently the proposed rent (but likely not costs) is revealed in Attachment B (Resolution No. 2023-62) based on Attachment D (Fair Market Appraisal for Licensed Moorings). It looks like the Commission contracted for an appraisal of "short-term" mooring licenses as an entirely new kind of product, unrelated to the mooring permits the City already charges for. As I said at the Commission meetings, that does not seem correct to me. Although one is called a "license" for one month at a time and the other a "permit" for one year, they are both, once acquired, indefinitely renewable. The only practical difference is that in one case the City owns and maintains the mooring tackle, and in the other the permittee owns and maintains it. Both are supposedly being charged the "fair market value" of being given exclusive use of the same piece of public water. As such, I am unable to guess any justification for any difference between the two rents other than the pro -rated cost to the City of providing and maintaining the City -owned tackle, which would be added to the rent charged licensees above that charged permittees. And that cost would be determined by a fee study, not an appraisal. The Waitlist Regarding Attachment F (Process for Developing Interest List, Initial Issuance and Maintenance of Waitlist for City Moorings), a number of details are missing. Among them, it sounds like the Harbormaster is contemplating a separate waitlist for the each mooring since, but it is not clear: (1) how the initial positions within each list will be determined (by date of application or randomization?) and (2) what effect declining a mooring offer (based, for example, on it not being in a desired location) has on an applicant's position. ' Proposed Resolution No. 2023-62 says, on page 4-13, that the Council has considered "comments in the record." It is difficult to see how that's possible if the comments collected to date have not been provided to it. November 14, 2023, City Council agenda comments - Jim Mosher Page 8 of 14 Item 9. Resolution No. 2023-67: Declaring a Portion of City -Owned Property at the Balboa Yacht Basin (BYB) Located at 829 Harbor Island Drive as Surplus Land The title of this item gives the impression the City wishes to declare this land "surplus" so it can be sold. But that would appear to be prevented both by its status as state Public Trust land, and by the City Charter Section 1402 prohibition on selling City -owned waterfront property without approval by the electorate. Only after reading the staff report and reviewing the resolution does one discover the intent is apparently to consider a long-term lease, and this is a necessary step to do that. Item 20. Confirmation of Nominations to Fill the Unscheduled Vacancy on the Board of Library Trustees I would like to express, again, my wish to join the list of nominees. With one recent minor lapse, I have applied for this position continuously since 2009, and participated in most board meetings since then. Item 22. Ordinance Nos. 2023-20 and 2023-21 and Resolution No. 2023-72: Adopting Housing Element Implementation Noise -Related Amendments, and Resolution No. 2023-73: Overriding Orange County Airport Land Use Commission's Determination of Inconsistency (PA2022-0201) I have commented on this item before (see, for example, page 188 of the agenda packet for Item 19 from September 12, 2023, page 6 of written comments from that day, as well as comments to the ALUC, which do not seem to have been posted). As a member of the Land Use Element and Noise Element subcommittees of the Council's General Plan Advisory Committee, I find it strange that the proposed revisions to those elements of the General Plan have not been reviewed by those bodies. And as a Newport Beach resident who has likely been exposed to 60 dB CNEL traffic and aircraft noise' for 40-plus years, I do not think it is wise to consider exposing new residents to even higher levels of noise. I also think that since to control airport noise it is important to maintain a good relationship with the County, it is unwise to antagonize them by working counter to their efforts to reduce (not increase) residential uses in aviation noise impacted areas. I agree with the City that the JWA AELUP's reliance on noise projections generated in the 1980's seems a bit crazy, and long overdue for an update. I also think the noise projections in ' As indicated on the maps, but since the City does not do noise monitoring, the exact number is not known. November 14, 2023, City Council agenda comments - Jim Mosher Page 9 of 14 the EIR No. 617, prepared for the 2014 Settlement Agreement extension, are likely to be more accurate and useful for planning, especially since the parties agreed the contours could be maintained, without more than a 1 dB increase at the 65 dB contour, through 2030. They also prepared noise projections in EIR No. 627, prepared some five years later for JWA's General Aviation Improvement Program. However, given the uncertainty in projections, I can see why the County might wish to reserve for less sensitive uses the area staked out in 1985. As an indication of that uncertainty, despite JWA's adherence to the Settlement Agreement, the most recently posted annual aircraft noise contour, for 2022, shows the 65 dB CNEL contour extending into the Upper Bay, well beyond the one the City proposes to adopt (left: proposed by this agenda item, ending at NMS 3; right: actual for 2022, extending beyond NMS 3): r- IU 'Ii x i,_ Lsg.na - S R31Rw CF- .,,,.. A NE44POR-T SEACH So the proposal is already demonstrably unreliable. Also, the ALUC could make no sense of the City's proposal that a "site" (apparently a collection of parcels under common ownership?) any portion of which, no matter how small, is outside the 65 CNEL contour would be treated the same as a site wholly outside the contour. I can make no sense of its logic either, as it would allow housing on land with infinitely high exterior noise. All that said, I do not realistically expect to be able to influence what the City wants to do, I will just point out some obvious errors in what the Council is being asked to enact. November 14, 2023, City Council agenda comments - Jim Mosher Page 10 of 14 Page 22-13,$ fourth "Whereas": "WHEREAS, forty-eight housing sites identified in the focus area are within or bisected by the updated 65 A -weighted decibel ("dBA')9 community noise equivalent level ("CNEL') noise contour identified in the AELUP;" [?) note: To the best of my knowledge the Housing Element does not identify "sites." Under each focus area, it provides a long list of assessor's parcel numbers deemed possible for residential development during the RHNA cycle. Apparently someone is lumping groups of those into "sites," but I don't think one can deduce from the Housing Element where those are, or how many. It is also unclear if this, and the other references to number of sites relative to contours, are referring to the existing or proposed contours. I am guessing it refers to the updated ones. Page 22-13, end of the fifth "Whereas": "the following amendments ... are necessary to allow residential use, including mixed -use residential, on housing opportunity sites that are wholly or partially located a inside the 65 dBA: Page 22-13, Noise Element, bullet 2: "Policy N1 .5.A (Airport Area Infill Amendments) (new policy)," Page 22-20,10 amendments to Land Use Element page 3-100: Note this refers exclusively to "parcels," not "sites." Also, given the Sixth RHNA Cycle ends in six years, it is also not clear why it is proposed to refer so specifically to "needed for the City to satisfy its Sixth Cycle RHNA mandate." To give the narrative and implementing policies a long life should it say simply "needed for the City to satisfy its Si*th-Gyele RHNA mandate"? Page 22-21, amendments to Land Use Element page 3-101: "Residential and mixed -use (commercial and residential) buildings would be restricted from areas exposed to exterior noise levels of from John Wayne Airport of 65 dBA CNEL and higher..." or "Residential and mixed -use (commercial and residential) buildings would be restricted from areas exposed to exterior aviation noise levels of john ftyne AWpoFt 65 dBA CNEL and higher... "" Page 22-21, amendments to Policy LU6.15.3: "... residential development shall be allowed only on parcels with noise levels of less than 65 dBA CNEL noise eentouf area as shown in Figure N5 of the Noise Element of the General Plan, unless and until the City determines, ..." Page 22-22, amendments to Noise Element page 12-9: "The Noise Chapter within 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report EIR No. 617 illustrated how the dBA CNEL noise contours have reduced in size compared to the 1985 AELUP Master Plan CNEL noise contours, hi -which the General Plan policies and maps are $ The same error, and the following two, are repeated on pages 22-45, 22-63, 22-82, and 22-147. s Saying "dBA CNEL" is common, but likely redundant since 21 CCR § 5001 defines CNEL as being measured in A -weighted decibels. It is presumably sufficient, and more accurate, to refer to "65 CNEL" (without the dBA). Indeed, a Google search shows it is more common than "65 dBA CNEL" or "65 dB CNEL." 10 This phrasing recurs many times. " Although the contribution from other sources is extremely slight, the noise contours produced by JWA are intended to represent all aviation -related noise, not just that originating from JWA. November 14, 2023, City Council agenda comments - Jim Mosher Page 11 of 14 based on. The noise contours in EIR No. 617 are based on more contemporary noise modeling programs. Airport noise contours generated in this noise study using the INM Version 7.Od which was released for use in May 2013, and is the state of aFt in airport noise medehwg. Consequently, Figures N4 and N5 are updated to reflect the noise contours identified by the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617.1112 Page 22-24, amendments to Policy N2.2: Why is the word "mitigation" being deleted? Page 22-48, Section 1, end of sentence 1: "... an amendment to Title 20 is a legislative act." Page 22-52, amendments to NBMC Section 20.30.080.F: "Residential uses, including mixed -use residential, shall be allowed on parcels or sites wholly or partially outside the John Wayne Airport 65 dBA CNEL noise contour as shown in Figure N5 of the Noise Element of the General Plan, as identified in the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report (EIR No. 617) and consistent with Title 21 of the California Code of Regulations, subject to the following conditions that apply to all residential projects within the John Wayne Airport 60 dBA £NEE or higher CNEL noise contour as shown in Figures N4 and N5 of the Noise Element of the General Plan:" [Note this refers to "parcels or sites" whereas the proposed General Plan policies refer only to "parcels." It is also questionable that new housing within the 65 CNEL contour can be regarded as consistent with Title 21 of the California Code of Regulations: 21 CCR § 5012 requires California airport proprietors to have a variance to operate with any noise -sensitive uses within the 65 CNEL contour. The variance itself is predicated on the expectation of a diligent effort to come into compliance.] Page 22-70, amendments to Newport Place Planned Community (PC-11): "Residential development shall be located shown in F�guFe N5 of the Nei -se Oement of the Genefal Plan, and subjeet to in compliance with Section 20.30.080.F (Residential Use Proximate to John Wayne Airport) of the Newport Beach Municipal Code. Residential development shall be fimited to parcels wholly eF partially out -side the 65 dBA GKEL noise eenteur-, unless and until the Gity deteFminesT based on substantial evidence, that the sites whoHy within such contouF area aFe needed fef the City to satisfy its 6th Gyele RHM4 mandate. Non residential uses are eneourage on paFeels located wholly within the 65 dBA GNEL contour area; " [note: Everything crossed out appears to be a superfluous attempt to restate NBMC Section 20.30.080.F.] Page 22-71, amendments to Newport Airport Village Planned Community (PC-60): The last sentence of the second paragraph in bold is ambiguous as to what it is trying to say with regard to non-residential uses and Safety Zone 3. 12 INM Version 7.Od may have been the state-of-the-art when EIR No. 617 was prepared, but it has not been used for several years. Aviation noise is currently modeled with the FAA's AEDT. November 14, 2023, City Council agenda comments - Jim Mosher Page 12 of 14 Item 24. Ordinance No. 2023-22 and Resolutions No. 2023-76, 2023-77 and 2023-78: Adding, Amending, and Repealing Provisions of the Newport Beach Municipal Code and City Council Policies I submitted witten comments on this item when it was first disclosed as Item SS2 at the October 24, 2023, Council study session. I urge the Council to table it. Should the Council go through with the recommended actions, it will only add to the "many monuments of deficient wisdom" noted by our nation's Founding Fathers, in this case by a city council doing exactly what it set out to correct, namely perpetrating yet another act of inexperienced legislators enacting laws "so voluminous that they cannot be read, or so incoherent that they cannot be understood." As previously observed, the fundamental problem with this is that what was initiated as a very focused effort to simplify and increase the readability of the existing code, presumably without changing its present meaning, has come back as hundreds of pages of seemingly random and inconsistently -applied cleanup, within which are buried equally random substantive changes to City policy, presented out of context and without explanation. While the general topics of some of those dozens of unrelated substantive changes are listed in the staff report, it gives no hint of what pages they might be found on, effectively precluding any meaningful review. This is exactly how bad laws are enacted. And here, they are being enacted in volume. Even some of the proposed cleanup works counter to the stated purpose. As noted on October 24, many of the changes involve abbreviating references to state codes and regulations. For those unfamiliar with the abbreviations (which is most people), this decreases readability, without decreasing word count. Moreover, as previously noted, abbreviating the code citations in the general NBMC text appears to be based on a misreading of the California Style Manual, used for writing court opinions and legal briefs, which recommends using the abbreviations only in parenthetical notes. Similarly, again in conflict with the California Style Manual, someone has pounced on the spelled out numbers in the NBMC, adding after them the same number, parenthetically, in arabic numerals. This not only makes reading the sentences harder and creates the possibility of inconsistencies between what is hopefully the same number, repeated, but it increases the word count — completely contrary to the objective of the effort. Meanwhile, numerous opportunities to replace tired, officious and overblown legalisms with more concise plain English have been ignored. It is also evident to anyone looking even a little way into the redlining that the list provided in the staff report of substantive changes that are proposed to be enacted is incomplete. And some of those omissions are ironic. November 14, 2023, City Council agenda comments - Jim Mosher Page 13 of 14 For example, only last week, the Central Library, after more than five years of neglect, finally brought up to date the printed copy of the NBMC they keep for public review at the reference desk. But if the proposed ordinance is enacted, NBMC Sec. 1.01.030 will be amended (see page 24-501) to eliminate the obligation to keep more than one (or possibly even one) printed copy of the NBMC, anywhere, and that single copy will be in Clerk's Office. So, if the Library keeps their copy, it will fall into disrepair. Those trying to put the redlining in context by reading the NBMC in parallel with it will also wonder why the sections chosen for revision were chosen, while others that seem equally in need of revision, were not. To prevent a repetition of this folly, I offer this simple suggestion: the Council should consider imposing on itself a "single subject rule," such as our California Constitution imposes on bills considered by our state legislature in Article IV, Section 9 ("A statute shall embrace but one subject, which shall be expressed in its title"), and on voter initiatives in Article ll, Section 8(d) ("An initiative measure embracing more than one subject may not be submitted to the electors or have any effect'). Such a rule allows an "omnibus" cleanup, but only if it is confined to truly cleaning up without changing meaning or conforming references to a changed section. The substantive changes would have to be presented topic by topic for individual consideration and review. The result of each would hopefully be something those enacting it have actually read, understood and know what they are doing. To improve readability, and avoid misinterpretation of the codes we have, I would further suggest some typographic mechanism — such as bold, italics or small caps — be employed to distinguish the terms intended to have specialized meanings. The JWA Phase 2 Commercial Airline Access Plan is an example of a regulatory document employing such a scheme. Being alerted to all terms with special meanings is essential to understanding the code. The comments presented on agenda Items 3, 4 and 22, above, should be sufficient to indicate the complete impracticality of responding in any thoughtful way to the present agenda item. Each page of proposed code generates a similar number of pages of comment, and it would likely take hundreds to cover the pages of revisions suggested here, let alone the thousands of pages of code for which, for unknown reasons, revisions were not suggested. The proposed changes to the NBMC are not expected to be final until voted on at the November 28, 2023, meeting. Last Tuesday, our Parks, Beaches and Recreation Commission was mistakenly told their proposed changes to Council policies (presented as Attachment G), would also receive a second reading on November 28. But since they will go into effect immediately, if enacted as part of this item, I will concentrate on them. These comments are generally confined to the passages recommended for change. Except for one comment about tree numbers, I have not reviewed the unchanged parts. Page 24-1251: "North Start Star Beach- Public hand launch facility;" November 14, 2023, City Council agenda comments - Jim Mosher Page 14 of 14 Page 24-1257: "While the Recreation & Senior Services Director will generally determine Third Party use of the Theatre pursuant to the application process, however, the City Council may, upon a determination that a requesting group substantially complies with the selection criteria in A - F and at a noticed public meeting, authorize Third Party use of the Theatre for multiple or consecutive Reserved Periods subject only to execution of the required permit." Page 24-1265, under "Requests in a Public Park": d [note: RSS is included in all the items. The list is of departments involved other than RSS. Listing RSS is redundant.] Page 24-1282: The redline suggests changing "the" to "their." I can't guess why. The original sounds correct to me. Pages 24-1308 and 1309: 1 believe PB&R has recently approved some removals of Neighborhood Trees and replacement with other species. It is surprising no changes are being proposed to the numbers of trees listed on these pages. Page 24-1318: "3. Openings for existing or new trees will allow for a minimum of 24-inch radius around the tree's trunk. If on existing trees a 24-inch radius cannot be achieved, the artificial turf will be discontinuous, with the area around the tree squared off to allow a minimum of 24-inches on either side." Page 24-1328: In the last paragraph, although not underlined, the phrase "shall be determined by the Risk Manager" appears to be a proposed addition. I have not read the 18 pages of the proposed entirely new Council Policy F-12 (Taxicab Regulations), which is also recommended for adoption as part of the proposed action. However, its formatting looks different from any other Council Policy I'm aware of.