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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 27, 2024 Written Comments February 27, 2024, 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 1. Minutes for the February 3, 2024 Planning Session and February 13, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in 964keou underline format. The page numbers refer to Volume 66. Page 31, Item II, paragraph 5, sentence 1: "In response to CouncilmemberWeigand's reference to the decline in commercial property tax, Finance Director AI -Imam explained that the data is received from the County !s Assessor's Office and preliminary data based on sales and diet► valuation numbers through December 31, 2023 has been received and overall growth is projected." Page 32, Item III, paragraph 2: "In response to Mayor O'Neill's question, Public Works Director Webb clarified the funding for the slated and backlogged projects and noted that staff will be asking for an increase in the CIP budget to,&e $8.5 million." Page 32, Item III, paragraph 4, sentence 3: "Mayor O'Neill expected more development in the airport area and thought it would be an appropriate action to begin transferring more money from the General Fund to the FFP to make sure costs are offset going s""iaFther forward." Page 33, last paragraph: "In response to Councilmember Kleiman's question, Code Enforcement Supervisor Murray stated that the code cases are organized by Newport Beach Municipal Code (NBMC) Sections and £der Title 5 includes violations for STL properties and would show up in the STL section." ["Chapter" may well be what was said, but the reference was presumably to NBMC Title 5 (Business Licenses and Regulations).] Page 35, paragraph 7: "Mayor O'Neill expressed an interest in conducting a Proposition 187 analysis to ensure that the fees are inlin in line and it makes sense." [The video confirms "Proposition 187" is what was said. However, it was probably intended to be "Proposition 218," a 1996 California constitutional amendment prohibiting property -related fees from exceeding the cost to provide the service. By contrast, the best known Proposition 187 was a 1994 measure denying non -emergency services to illegal aliens, later found to be unconstitutional.] Page 36, Public Comments, paragraph 1: "Nancy Gardner stated that she is not a fan of public funding for the arts and noted that the City is a wealthy community and onl$10,000 y is funded by the Newport Beach Lihmy Arts Foundation." [The video indicates she only said "the Foundation," but her reference was clearly to a slide detailing contributions from the Arts Foundation, not the Library Foundation.] February 27, 2024, City Council agenda comments - Jim Mosher Page 2 of 7 Page 36, Public Comments, paragraph 3: "Jim Mosher noted that the pension liability paid down in the next eight years is dependent on CalPERS' results, questioned code enforcement efforts relative to gas leaf blowers; discussed the diversion rate in residential areas, the requirement not to contaminate the black carts with organic material, and refuse enforcement obligations, and ques-tiep questioned if the refuse working group is still meeting; and suggested reviewing and updating City Council Policy 1-10, Financial Support for Culture and Arts." Page 36, Public Comments, paragraph 4: "Mayor O'Neill clarified that he was never is not now on the working group and it no longer exists." [See video] Page 36, Item V, paragraph 1: "Nancy Gardner noted that the State certified the City's Housing Element which calls for twice the Regional Housing Needs Assessment (RHNA) numbers, encouraged the City to focus on affordable housing, such as wei* fence workforce housing, senior housing, and starter homes, suggested considering inclusionary zoning, explore exploring employer incentives for employee -housing, and suppert supporting the Housing Trust in the City that is focused on affordability." Page 39, paragraph 3: "Jim Mosher noted that paper copies of the EIR are at City Hall and all libraries. He stated that November 5, 2024 will be three years into the current eight -year Regional Housing Needs Assessment (RHNA) cycle and questioned housing production, did not think there has been progress in affordable housing development, noted that the airport area is generating less than 10% affordable housing compared to the total housing being approved, suggested that anyone with similar properties in an overlay district should be eligible for the overlay, and thought there would be a cap on the number of overlays in the event the City met its RHNA number." Page 39, paragraph 3: "Debbie Debra Allen Moore thanked Council for recognizing the Newport Center view ordinance from 1958 and expressed support for preserving it." Page 39, last sentence: "He stated that staff will need to preWde further direction te—srt�if Council wants to change the total build -out." Page 40, paragraph 4, sentence 1: "Jim Mosher clarified that he suggested a Citywide "off -switch" once the City as a whole developed all of the required RHNA." Page 44, last paragraph, sentence 3: "He clarified that the TBID if is for group marketing and the Transient Occupancy Tax (TOT) is for overall marketing, stated TBID's sole focus was to enhance group marketing, relayed no specific amount is charged to NB & Co. for MAP services because the costs are contained within MAP, and disclosed he will not have an employment agreement with MAP because MAP contracts with NB & Co." Page 46, first paragraph: "Councilmember Kleiman stated she was encouraged that the City would engage with a new partner to address gaps, but suggested peir4n ap ring the agreement back to a one-year term with the option for two subsequent one-year extensions." February 27, 2024, City Council agenda comments - Jim Mosher Page 3 of 7 Page 46, paragraph 6: "Melanie Martin requested greater accountability for safety during the time between when the information is obtained about the unhoused and their placement." Item 3. Ordinance No. 2024-5: Adding Chapter 10.75 (Prohibition of the Sale and Distribution of Kratom) to the Newport Beach Municipal Code The increasing tendency in Newport Beach to use the Consent Calendar to both introduce and adopt new laws with no discussion by our City Council does not seem particularly healthy to me. In the present case, as the staff report notes, on February 13, the Council unanimously (under Item XI11) agreed to "Consider adopting an ordinance that bans the sale and distribution of kratom in the City of Newport Beach." But that vote was taken without any chance for explanation or discussion. The present staff report continues to provide little in the way of motivation, pros and cons of adopting the proposed measure or possible alternatives to it. Is this a unique or pressing problem that the Police Department has identified and for which it needs this additional tool in its toolbox? If it is a health and product safety issue, could it be a matter better handled by the County Health Department? From my limited research, there seem to be only two California cities that prohibit the sale and distribution of kratom products: the City of Oceanside Municipal Code Sec. 20.55, adopted by their Ord. No. 16-OR0116-1 on March 2, 2016, for which there is a staff report; and the very similar City of San Diego Municipal Code Secs. 52.3301 - 52.3308, adopted by emergency Ordinance No. 0-20660 and regular Ordinance No. 0-20657 on June 14 or 15, 2016. In both those ordinances, kratom is at best a minor footnote to a more general ban on the distribution and possession of otherwise unregulated "psychoactive drugs" (within a sub -listing of "Novel Psychoactive Substances/Drugs") On November 15, 2016, the City of Temecula Council adopted their Ordinance No. 16-10 adding a similar Chapter 8.56 to their municipal code. However, it does not seem to include the "Novel Psychoactive Substances" category, leaving it unclear if it bans kratom distribution and possession.' In the nearly eight years since 2016, it is not clear any other California city has followed suit, so the Council might ask why not? As well as why kratom would be singled out? ' One news report says "The city of Temecula drafted a similar ordinance and the city council voted it down. It was a small victory for kratom consumers." I have not investigated what that refers to, since Ord. No. 16-10, at least, was adopted. February 27, 2024, City Council agenda comments - Jim Mosher Page 4 of 7 Item 5. Resolution No. 2024-11: Approving a Side Letter Agreement with the Newport Beach Police Association It would seem to me that the longevity requirement to reach the two highest salary steps was likely intended to serve as an incentive and reward for staying with the City, as well as to ensure the highest paid officers actually have experience in and are familiar with the city in which they are serving. If that is correct, I would think the side letter should not give the Chief carte blanche authority to make outside appointments to those levels, but rather place some constraints on his or her discretion by defining the limited circumstances in which such an appointment would be appropriate. Item 6. Resolution No. 2024-12: Establishing the Lower Castaways Park Ad Hoc Committee The Council is presumably aware the Harbor Commission also had an ad hoc committee considering options for Lower Castaways, that I believe may have been disbanded at their last meeting (after hearing of the Council's plan to form its own committee). The recent Harbor Commission ad hoc committee was attempting to build on the work of a still earlier joint Parks, Beaches and Recreation/Harbor Commission joint committee that, with the assistance of a City -hired landscape architect, developed a couple of full-blown concept alternatives circa 2014. There are some partial records of the proceedings of that earlier Lower Castaways Ad Hoc Committee in the City's Boards, Commissions and Committees archive. From them, I am reminded that then -Harbor Commissioner and now Council member Brad Avery served on it (as did then PB&R Commissioner Marie Marston, who, as a Harbor Commissioner served on the more recent ad hoc). For continuity, and to ensure the previous efforts are adequately acknowledged, the Council may wish to consider appointing Council member Avery to the new ad hoc committee. As to the proposed enabling resolution, I, as always, object to "Section 3: The Committee shall function as an ad hoc committee and shall not be subject to the Brown Act." It is my belief that all City Council activities are subject to the Brown Act. The distinction is that under California Government Code Subsection 54952(b), "advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies" — meaning the committee members can meet privately, without public notice. But the members' activities are still subject to the Brown Act in the sense that, for example, they cannot invite or allow other members of the Council to join in their deliberations. February 27, 2024, City Council agenda comments - Jim Mosher Page 5 of 7 Item 8. Approval of Professional Services Agreement with Anchor QEA, LLC for Balboa Yacht Basin Marina Design Consulting Services This item is tangentially related to the ongoing discussion before the Harbor Commission about appropriate "rents" to charge for the tidelands occupied by on- and offshore mooring spaces. That rent has been historically pegged to the rent charged for slips at the BYB. However, as evidenced by this agenda item, the City incurs significant expense in constructing, maintaining and administering the BYB slips and the amenities they provide, so only some unknown fraction of the rent charged represents rent for occupation of the tidelands. By contrast, since mooring holders provide and maintain their own tackle, the City's expenses for administering that program would seem relatively minor (but could, presumably, be established through a fee study). Nothing presented to the Harbor Commission has indicated how the City's long range BYB-related expenses (capital and administrative) relate to the rents collected — in other words, whether it operates at a profit or a loss. What that difference might be would be of interest, since it could be argued to represent the premium people are willing to pay to occupy tidelands. As to the present decision, the Council is again confronted with two bidders who staff has rated as, for all purposes, equally qualified. Rather than negotiating a price with just one, it might be hoped the Council could choose the one able to offer the best deal. Item 12. Cultural Arts Grants Fiscal Year 2023-24 At their recent meeting, the City Arts Commission noted the list of applicants and proposed grantees is the same as last year (see Item 12 from February 28, 2023). That, and other matters, may encourage the Council to review the Policy 1-10 (referred to in the staff report) to more clearly define if the intent of the program is to subsidize "tried and true" programming for the enrichment of community members, or to give new organizations an opportunity to get started while they develop non -City funding sources. It might also be noted that many of the programs funded take place in local schools, which themselves receive a far larger portion of the property tax than does the City, so a conversation with the schools as to why they are not paying for the programming might also be appropriate. Finally, if Council members read Policy 1-10, they will find it is a confusing consolidation of at least two previous Council policies, one of which established a sort of lay -away fund for major City arts endeavors and the other of which related to grants such as the present ones. The policy mentions an annual commitment of $55,000, but it is unclear how that was to be divided between the policy's various objectives, and how it relates to the overall Cultural Arts budget. February 27, 2024, City Council agenda comments - Jim Mosher Page 6 of 7 Item 13. Planning Commission Agenda for the February 2Z 2024 Meeting This standing agenda item was originally one in which the Planning Director reported orally to the Council on what had happened at the most recent Planning Commission, giving the Council members a chance to ask questions and possibly call the Commission's decision up for review. It has since moved to the consent calendar, where the public does not know if the Council members have reviewed it, or not. And even if they have, see only a very cryptic indication of what may have transpired. Item No. 2 in the present report (Appeal of Campbell Animal Keeping, PA2022-098) is one which, in the previous format, would likely have elicited discussion and call for review. In my opinion, it still should, as it represents a significant miscarriage of justice and is a prime example of governmental overreach. As to what the matter is about, the present report unhelpfully directs readers to consult the "Draft minutes from the January 4, 2024, meeting of the Planning Commission," an obscure reference to the action having been previously reported to the Council (erroneously as completed on January 4) in consent calendar Item 10 from January 9. For those not having time to disentangle it, the issue is residents' right to keep chickens (hens, not roosters) for their personal use and enjoyment on their single family residential lots in Santa Ana Heights. By way of background, such use is allowed by all our neighboring cities, but not generally in Newport Beach. However, in keeping with its historically rural character, the County -adopted Specific Plan for Santa Ana Heights, inherited by the City upon annexation, allows keeps of dogs, cats and animals weighing less than 300 pounds on the SFR, provided the pens and cages are kept at least 25 feet from the nearest neighbor's window (see NBMC Subsection 20.90.080.D.7.a). Beginning in 2021, a City Animal Control Officer, mistakenly reading what he thought was a phase -out provision in that subsection, informed Ms. Mary Alice Campbell of 1691 Orchard Drive, that since Santa Ana Heights had become part of Newport Beach she had lost the right to keep her hens, but that as a disabled person, she could seek a reasonable accommodation to do so, as provided for in NBMC Sec.20.52.070. Ms. Campbell made such a request, and pursuant to that section it was considered by City Hearing Officer Stephen Graham on July 13, 2023. He granted her permission to keep up to three hens, a number the Animal Control Officer felt could be accommodated without undue burden on the City or neighbors. Hoping to be able to keep more, Ms. Campbell filed an appeal, for which City staff charged her $2,116. The municipal code and the history of the reasonable accommodation ordinance (see Item 20 at the January 22, 2008, City Council meeting) make it clear the City Council, and only the City Council, can review the Hearing Officer's decision, staff misdirected Ms. Campbell's appeal to the Planning Commission (contrast Subsection 20.60.020.A.2 defining the City Council as the body to "To hear and decide appeals filed from Hearing Officer and Commission decisions" with February 27, 2024, City Council agenda comments - Jim Mosher Page 7 of 7 Subsection 20.60.030.B.4 giving the Planning Commission only the right to "Hear and decide appeals for all Zoning Administrator decisions and Director determinations," as well as Subsection 20.52.070.D.7.b (Decision on Reasonable Accommodation) stating "In the event an appeal is filed, the reasonable accommodation shall not become effective unless and until a decision is made by the Council on the appeal..." Despite all this, staff misdirected Ms. Campbell's $2,116 appeal to the Planning Commission, which has no authority to opine on the matter. The Planning Commission heard the appeal on January 4, 2024, and compounding the error, they, like the Animal Control Officer, were misinformed that the right to keep hens on SFR lots in Santa Ana Heights had expired one year after annexation. Although staff recommended they affirm Hearing Officer Graham's grant of the reasonable accommodation, or consider Ms Campbell's appeal to keep more than three hens, the Commissioners instead decided they didn't like the looks of her home and they would require her to "follow the code" and force her to keep no chickens at all - rescinding the reasonable accommodation. Staff, realizing the Commission had not given it a clear legal justification for this unexpected result, brought back a new "resolution of denial" inventing new reasoning — most not considered on January 4 — the adoption of which was the subject of the February 22 meeting now being reported to the Council. Ms. Campbell was told on February 22 that for another $2,116 she could appeal to the Council (the place her appeal should have gone originally) the Planning Commission's taking away of the reasonable accommodation she had been granted in 2023 (but arguably had never needed since her property right to keep animals weighing less than 300 pounds had not expired as staff had claimed). I submitted extensive comments on this to the Commission in advance of their February 22 meeting, suggesting they were never the proper venue to hear Ms. Campbell's appeal, and as such they should step aside and allow staff to refund the original appeal fee, allowing the lawfully -granted reasonable accommodation (whether needed, or not) to stand. Apparently it had no effect on staff or the Commission. I think most reasonable people would regret the unnecessary stress staff's multiple errors have placed Ms. Campbell under, as well the injustice of her being forced to pay another $2,116 to get her appeal to the place it rightfully should have gone — or else lose her accommodation. Hopefully at least one of the seven Council members will recognize this and call the Planning Commission's decision (which they had no authority to make) up for review. 2 Staff should have suspected something was amiss when they noticed the City's Appeal Application form has a box for an appeal of "Hearing Officer Action to the City Council," but none for "Hearing Officer Action to the Planning Commission" — forcing someone to have to hand -write it in.