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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 12, 2024 Written Comments March 12, 2024, City Council Agenda Comments The following comments on items on the Newport Beach City Council are submitted by: Jim Mosher ( iimmosheraasyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS4. Capital Improvement Program (CIP) Early Look It is helpful to have had the presentatior made available with the posting of the agenda, rather than having to wait until the meeting. Item IV.A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS The agenda listing says the Council will be meeting in closed session to discuss "price and terms of payment" to buy or lease the property at 301 E Balboa Blvd, which is a three- or four -unit residence at the corner of Balboa Blvd and Coronado, adjacent to the AT&T building, as shown in this Redfin image: While such private discussion of price and terms of payment is allowed, it is unclear why the public would not be told what the City's interest in the property might be. Is it to acquire a site to store beach grooming equipment (as currently proposed for the Balboa Library/Fire Station location)? Or is the City going into the residential real estate business? Either way, why should it be a secret? Item 1. Minutes for the February 27, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in s��u underline format. The page numbers refer to Volume 66. Page 49, Item SS3, paragraph 2, sentence 2: "She indicated that the Fire Chief has taken on leadership roles which is the main vehicle to collaborate with other fire departments across the State, the City Clerk has taken on leadership roles in Cal Cities' City £-leers Clerks March 12, 2024, City Council agenda comments - Jim Mosher Page 2 of 7 Department, and noted conferences for specific departments and collaboration efforts with the coastal cities group." Page 50, paragraph 2: "Councilmember Grant thanked Mayor Goodman, Councilmember Taylor, and Mr. Conner Medina for listening to the City's concerns, ..." Page 50, paragraph 5: "Councilmember Kleiman echoed the sentiments of her colleagues, thought that Cal Cities is not representing the values of Newport Beach, and expressed concern with the active opposition advocacy in opposition to the City's needs." Page 52, paragraph 1, sentence 1: "Jim Mosher stated that Mary EWs Alice Campbell's appeal for reasonable accommodation was misdirected to the Planning Commission who prevented her from having any chickens on a mistaken belief that it was no longer allowed." Page 52, paragraph 2: "Mary Ellis Alice Campbell noted the medical necessity for her to have chickens, stated she has 10 supportive letters from six doctors, and asked that her matter be called for review by a Councilmember without paying another fee." Page 54, Item 8, paragraph 3: "In response to Councilmember Weigand's questions, Public Works Director Webb stated that a brief pause to explore the matter could occur but cautioned about waiting too long. City Manager Leung noted that the request for proposal process has closed, proposals are currently being evaluated, and it will not be very long until the land portion is settled." Page 55, Item XVII, paragraph 5: "Adam z Leverenz rebutted the public comments on February 14, 2024 by the Harbor Commission and thought the fair market value is flawed, Item 3. Ordinance No. 2024-5: Adding Chapter 10.75 (Prohibition of the Sale and Distribution of Kratom) to the Newport Beach Municipal Code See my comments from when this was introduced as Item 3 on the February 27 consent calendar. I continue to think there has been inadequate discussion of why this particular product has been singled out. Assuming Newport Beach will be the only city in Orange County to enact a kratom ban, it is unclear what the intent is. If it is to reduce use, it is hard to see how it would be effective. Since it is limited to a prohibition on sales and distribution within the City limits, it would seem to do no more than move the sales, and the associated sales tax, to adjacent cities. March 12, 2024, City Council agenda comments - Jim Mosher Page 3 of 7 Item 5. Resolution No. 2024-14: Indefinitely Waiving Section A. 1. of Council Policy B-13 to Allow for Alcoholic Beverages at the Annual Charity Polo Event Held at Peninsula Park Council Policies are adopted by resolution. Council Policy B-13 was last amended by Resolution No. 2023-78, which was part of the massive codes and policies update considered on November 14, 2023.The specific changes made can be found on page 1276 of Item 24 from that date. From the revision list at the end of Policy B-13, Resolution No. 2023-78 was something like the thirtieth resolution adopted to modify the policy. Now, the Council is being asked to once again modify the policy by creating a permanent exception, but this time not by adopting yet another resolution modifying Policy B-13, but rather by adopting a separate resolution overriding the policy language adopted in November. There are at least two obvious problems with creating exceptions to Council policies by separate resolution: 1. It becomes difficult to impossible for the public, and perhaps even staff, to know or remember what exceptions exist. 2. If the justification for creating the exceptions is not articulated in the policy, it becomes impossible to know what the policy truly is. As to the first point, the staff report does not explain if any other standing exceptions to Policy B-13 already exist, or how the public would know. A search of the City's Council resolutions archive suggests that between August 19, 1907, and February 27, 2024, the Council adopted 14,604 resolutions. The not -always -reliable text search suggests at least 116 of them contain the word "alcohol" somewhere in their body and a possibly different 79 the word "alcoholic" Since the public cannot search within the results, without reading each, it would be difficult to guess if any set policies for use of alcohol in parks different from B-13. Glancing at the not -always -reliable titles, I do notice that as recently as August 22, 2023, with Resolution No. 2023-47, the Council authorized alcohol use at a beach volleyball event, although that seems to have been a one-time exception. At the very least, to eliminate this guesswork, I would think Policy B-13, itself, should be amended to add a footnote saying something like "Permanent exceptions to this policy have been granted by Council Resolutions ....." As to the second point, I am truly unsure what the Council's policy regarding consumption of alcohol at City parks and beaches. The current revision of Policy B-13 appears to allow only beer and wine, and then only by special permit at six named locations, most (if not all?) of which appear to be wholly or primarily indoors.' The staff report for consent calendar Item 5 from August 22, 2023, for the beach volleyball tournament, provides no justification I can find for deviating from that rule other than the applicant requested it. That seemed strange, since the applicant's stated goal was to "promote and support youth volleyball and provide good wholesome activities for residents and beach visitors." Encouraging an activity prohibited to beach users hardly seems leading by example. ' 1 would guess alcohol is also served on occasion at the Central Library, but I don't know if the Board of Library Trustees has established rules for that. March 12, 2024, City Council agenda comments - Jim Mosher Page 4 of 7 Similarly, the only justification I can find for the current request is the applicant's statement that polo includes a tradition of "toasting to the players." It is unclear why the toasts need to be made with a substance not normally allowed in City parks, and not with, say, (non-alcoholic) sparkling apple cider. In both these cases, it has also been unclear if the Council is waiving Policy B-13 only as to the locations at which alcohol can be served with a special event permit, or also as to the restriction (even with such a permit) to beer and wine. The implication is it is a complete waiver, but the justification is particularly inexplicable for why the Council feels there should be no restrictions on the kinds of alcohol served. In short, if there is truly some logic to why alcohol should be allowed at locations and in types other than currently listed in Policy B-13, it would seem to me the rules for deciding when staff should grant an exception should be spelled out in the policy.z Otherwise it would appear the Council is quite arbitrarily choosing favorites. Assuming these comments will be ignored, if the Council wishes to adopt the proposed resolution, it may wish to correct the minor typo in the fourth Whereas: "WHEREAS, the Charity Polo Event held in 2016 and 2023 at Peninsula Park was a success, with residents requesting the event be held again, and the Foundation now intends to hold the Charity Polo Event on an annual basis;" Item 6. Resolution No. 2024-15: Authorization to Establish an Other Post -Employment Benefits Trust with Public Agency Retirement Services I could have missed it, but the staff report does not appear to disclose if there would be any transfer costs associated with moving the estimated $35 million trust balance from the care of one agency to the other. It is also unclear if the table of Historical Returns, apparently prepared by PARS staff and presented as Attachment A, represents actual returns over the periods reported, or theoretical returns if the current investment strategies were applied retroactively. If they are the latter, the comparison with CERBT would be much less convincing, since it is easy to invent a strategy that would have worked better knowing what we now know. I would also note that despite its review by the Finance Committee, the recommendation seems based on relatively modest expected differences in return and volatility. As someone trained in experimental science, I know those numbers are not precise (in the sense that examining a different set of years would have yielded somewhat different results). It would have been nice to see some estimate of their uncertainty, so one could judge the likelihood the differences could have arisen by chance for the particular years examined, and might not be repeated in the future. Item 7. Resolution No. 2024-16: Appointing the City Manager as the Plan Administrator for the Public Agency Retirement Services (PARS), 2 The Parks, Beaches and Recreation Commission might be asked to assist in drafting language, as it is their duty under the City Charter to advise the Council on policies affecting City parks and beaches (if not, necessarily, other facilities). March 12, 2024, City Council agenda comments - Jim Mosher Page 5 of 7 and Delegating Authority to the City Manager to Administer Other Employee Benefit Plans I found the staff report difficult to follow. It sounds like a good idea to create uniformity in who is authorized to act on the City's behalf with regard to the various retirement funds, which is what the proposed resolution accomplishes (although it partially overlaps with the resolution in Item 6, which already designated the City Manager to act for certain PARS funds). But mixed with that is Recommendation "c," which has to do with transferring funds from PARS to Empower Trust Company, LLC. The reason for that recommendation is not clearly explained, which is especially strange in view of Item 6 recommendation to move funds into a PARS trust. The explanation, in the second paragraph on page 7-2, seems to be that PARS charges the City a $4,800 annual fee that with Empower would be reduced to $260 and could be passed on to the participating employees. However, the last sentence says that even with the recommendation, the City will still have to pay PARS $4,800 a year. So if there is no savings on the fees, what is the reason for moving? Is the report trying to say the City is currently paying more than one $4,800 a year, and following the recommendation will eliminate one of those fees but not another? Item S. Resolution No. 2024-17: Creating the Destination Marketing Services Ad Hoc Committee The staff report and proposed resolution create the misimpression that Visit Newport Beach has been the City's destination marketing contractor only since 2004. What they describe as the "Original Agreement," effective May 12, 2004, was actually approved by the Council as Item 21 on February 24, 2004, and as the staff report notes, the City had actually contracted with the Conference and Visitors Bureau (now called "Visit Newport Beach") since 1987. The only thing that seems "original" about the 2004 agreement is that it was the first to adopt the current 18% of TOT+Visitor Service Fee funding formula. The truly original agreement (imposing a 1 % Visitor Service Fee to support the Bureau) seems to have been adopted in response to Item 1-1 on the February 9, 1987, agenda. That followed a series of meetings at which there had been spirited debate among the Council members as to whether the City should fund the Bureau at all (the chamber -like Bureau had previously been entirely self -funded by its members, with no government involvement). According to the minutes, the original decision to begin funding the Bureau was made by a bare 4:3 majority. Considering the major hotels' recent decision to discontinue the TBID because they could conduct conference marketing better on their own, without City involvement, the question not just of a destination marketing services agreement, but whether there should be any agreement at all seems a debate that might be worth revisiting. That said, the proposed resolution contains a minor typo near the end of the fourth "Whereas": "marking efforts" should be "marketing efforts." March 12, 2024, City Council agenda comments - Jim Mosher Page 6 of 7 Item 9. Planning Commission Agenda for the March 7, 2024 Meeting Item 2 on the Commission's agenda was the Annual Progress Report on the City's General Plan (including the Housing Element), which will be coming to the Council on March 26. It did not attract much attention before the Council even though it seems important.f Three years into the eight -year 6th RHNA Cycle, the only housing completed seems to have been ADU's. And even looking into the pipeline of residential projects entitled but not yet completed, the fraction of affordable housing appears to be running at less than 10% of total units to be built, and most of those are in the very low income category. The most intractable problem appears to continue to be in producing moderate income housing. I seem to recall that in the 5th Cycle, despite the total RHNA requirement being just five units, the City was long out of compliance because it had failed to produce the single moderate income unit assigned to it. The 6th RHNA Cycle, with its allotment of 1,050 moderate income units looks even more grim The only applications in that category appear to be for ADU's and at a rate of maybe 20 per year, suggesting it will take 50 years to meet the quota.. Item 10. Ordinance No. 2024-6 and Resolution Nos. 2024-18 and 2024-19: Code Enforcement Enhancement Program Associated with the Use of Public Property for Commercial Purposes (PA2024-0015) I do not understand the appeal portion of this produced addition to the Municipal Code, especially the part that "If the person's appeal is upheld, the person shall have any items that were not disposed." As I understand it, a person does not have to file an appeal to retrieve their property. What is being appealed would seem to be only if they need to pay a fee to do so. If they do appeal, is the intent that they have to wait for the result before they have to wait for its outcome before they can have their items back? That makes little sense to me. Instead of an appeal, wouldn't it make more sense to call it a request for refund of the impound fee, which refund could be requested after the items have been recovered and the fee paid? Whatever it is called, the proposed ordinance provides no guidance I can see as to the criteria the hearing officer would consider to decide what, if any, relief to provide. The cited NBMC Section 1.05.070 is of no help in this regard. In fact, if the fee is regarded as a "penalty," it implies the hearing officer might actually impose a higher impound fee than that specified in the code. And if it is not a penalty, it is unclear he or she could reduce it. Item 11. City Membership in the League of California Cities I cannot speak knowledgeably to the question of whether the benefits derived from membership in the League of California Cities (as opposed to the benefits that would be received without it) offsets the $24,800 annual membership fee and other costs associated.' ' I believe participation in conferences and other League activities involves costs above the membership dues. March 12, 2024, City Council agenda comments - Jim Mosher Page 7 of 7 However, if the League is correct in counting 276 of the 282 incorporated cities in California as members, then it would seem able to make a credible claim to the State as representing their needs. The League does not provide a list (at least that I can find) of which incorporated cities are not members, or why. Google shows the City of Torrance voted to discontinue its membership as Item 9A on their October 11, 2022, meeting. The dispute was apparently precipitated by the League's failure to debate the Our Neighborhoods Voices Initiative (aka the Mendoza-Candell-Priforce Land Use Initiative) at its September 2022 conference. The City of Redondo Beach reportedly followed suit on a 3:2 vote on March 21, 2023. It was Item P.1 on their agenda. The City of Santa Clarita reportedly ceased being a member in September 2023 when it ceased paying dues, even though they continue to be listed as a member. It is unclear if there was any formal council action or if they resumed paying. I don't know how long they have been non-members, or for what reasons, but compared to the Wikipedia list of incorporated California municipalities, the others not appearing in the list of CalCities member cities are Guadalupe, Jurupa Valley, Laguna Woods and Turlock. Given that the League will likely continue being seen as a credible source advocating for the interests of California cities, withdrawing only because a particular city does not agree with the majority (or even supermajority) view on a particular issue seems a bit like deciding to protest the outcome of an election by resolving not to vote in any future elections. It would seem to make it even more certain future outcomes will not reflect one's views.