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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 26, 2021 January 26, 2021, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(o-)-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III. PUBLIC COMMENTS I wish to express my appreciation to the City Clerk for instituting what looks like a new practice of posting the Council's agenda documents to the City's permanent Laserfiche archive at the same time they appear temporarily on the Legistar/Granicus/public notices calendar site. I first noticed this happening at the January 12 meeting, and see it is happening again with this one. Formerly, the Council agendas and supporting materials were available prior to the meeting only on the calendar site. Some days after the meeting, they confusingly disappeared from the calendar and moved to the archive. This made it frustratingly difficult or impossible, at the time of the meeting or shortly afterward, to share links to documents that had any permanent value. The archive site has the additional advantage that it provides a simple mechanism to link to images of individual pages within the document. It has the disadvantage, as currently operated, that those archived page images disable any hyperlinks the document may contain, even when retrieved from the archive as a PDF. The hyperlinks, at present, work only in the calendar versions of the documents, which disappear after the meeting. Most other cities seem to store their council documents in a single place and frequently have difficulty providing access to last minute additions, such as public comments. Newport Beach is to be commended on its Laserfiche archive, which is far more extensive, accessible and searchable than any other I have seen. While the above is great for the City Council, a problem remains with Newport Beach's boards, commissions and committees, which also initially post documents to the calendar site, but do not archive them in any consistent way after the meetings. Item 1. Minutes for the January 12, 2021 City Council Regular Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in st�Ft underline format. The page number refers to Volume 64. Page 593, Item SS2, paragraph 3, sentence 1: "In response to Council Member questions, Assistant City Manager Jacobs advised that new businesses will have to comply with parking requirements, but existing businesses may continue operating with +ts their existing parking, ... Page 595, paragraph 3 from end: "An unidentified speaker related his submittal of a letter, highlighted the increase in traffic speeds, volumes, and distracted driving, and noted that only 12% of drivers along Highland Drive comply with the speed limit, which is not acceptable." [comment: although he did not give his name, it is evident from the letter referred to that the speaker must have been Jason Perrin (see page 68 of Item 14 correspondence).] Page 599, paragraph 4: "Dennis Bress urged Council to support Item 7 (Professional Services Agreement with Carpi & Clay, Inc. for Federal Advocacy Services (C-8542-2)) because the City needs help solving the airplane noise issue, and stated that a noise abatement profile has been determined to reduce noise by 75-150%." [comment: the video confirms this is what was said, January 26, 2021, City Council agenda comments - Jim Mosher Page 2 of 7 but assuming a 100% reduction means no noise, a 150% reduction (to negative noise?) seems improbable.] Page 603, paragraph 1, sentence 2: "She stated that the 20-70 businesses currently operating and are exempt from obtaining MAPs will be grandfathered under the proposed Code revisions, confirmed that staff will use business licenses, lease agreements, and internet searches to determine if existing businesses are grandfathered and contact those that need to obtain MAPs, and added that if businesses do not comply with the new regulations, a new code provision will remove them from the grandfathering process." Page 603, paragraph 5: "City Attorney Harp proposed a revision to Section 17.70.020.A-1." [comment: Although it is not clear from the video, the proposed revision was to omit from the ordinance the reference to this section of Title 17 since I had mistakenly said it appeared no changes were being proposed to it. However, on closer reading one number in the first paragraph of the code is changed from "3" to "4" and that revision remains as it was in Section 5 of the ordinance being offered for adoption as Item 3 on the current agenda.] Page 604, paragraph 4: "Noelle Perrinelieyed had heard traffic safety will measures would never pass, but neighbors will not give up, and she pleaded with Council to make changes." [see video: Ms. Perrin's point was she did not believe it was futile to ask for changes.] Page 604, paragraph 8: "Craig Perreault remarked that he has seen many speeding cars and close calls, Highland Drive is unique in the neighborhood because of the low percentage of drivers traveling at an extreme rate of speed, there is a need for roadways to be adjusted, and neighbors want this solution because it will make the neighborhood safer." [see video: Mr. Perreault's point seemed to be that the percentage of extreme speeds near his home, although small, was higher than in other areas. The word "low" appearing in the draft minutes makes him appear to be saying the percentage was lower than in other areas — the opposite of his intent.] Page 604, last paragraph: "Mayor Council member O'Neill stated neighbors were clearly frustrated with those who refuse to sign the petition, Council wishes people would follow the law, Council has to be careful with its language in order not to offer false hope, the goal of havin_g obiective standards is to avoid heightened emotional rhetoric, the data warrants some action, and he would waive City Council Policy L-26 and support traffic calming measures, except speed cushions." Page 605, paragraph 8: "Council Member O'Neill questioned the need for having City Council Policy L-26, stated that Council is trying to reduce speeding and driving under the influence, but believed Council is not following its own policy, and disagreed with it the present process." [see video: The draft minutes make it appear Council Member O'Neill disagreed with Policy L-26 and thought it should be discarded. But to the contrary, his subsequent "no" vote, and his remarks on the previous page, indicate his disagreement was not with the policy but with the Council's inconsistent application of it, and he thought the existing policy should be retained and followed.] Page 605, last paragraph: "Deputy Public Works Director Martin reported that, in 2019, the Parks, Beaches and Recreation (PB&R) Commission formed an ad hoc committee to address specific issues in City Council Policy Policies G-1, G-3 and G-6." [note: despite the agenda title, this was not a comprehensive review of all "G policies" and the Deputy Director did not say it was.] January 26, 2021, City Council agenda comments - Jim Mosher Page 3 of 7 Page 606, paragraph 3: "Council Member Brenner indicated a fungus is destroying the Marguerite Date Palms and believed testing them would be a waste of money, which is why she is uncomfortable with [Since "shall" is what is stated at two places in the video, it's a mystery how, in the draft minutes, this got changed to "may." That said, the Council should be aware that despite NBMC Section 1.08.110 (Interpretive Provisions) carrying over an ancient code provision saying "D. Shall and May. "Shall" is mandatory and "may" is permissive," the meaning of "shall" in laws, regulations and legal documents in general is frequently litigated, and its use is discouraged. A less ambiguous word used in common speech, such as "must," is generally recommended to specify an action in which no discretion is allowed. Although the use of "shall" as a substitute may impart to the uninitiated an aura of legalese, its appearance in new laws and regulations is actually a warning sign they were not carefully crafted.] Item 3. Ordinance No. 2021-3: Amending Chapter 17.10 (Marine Activities Permits) of Title 17 (Harbor Code) of the Newport Beach Municipal Code and Other Related Provisions Because it turns on its head the process of enacting laws, it is disturbing to see news media, and now the staff report, proclaim that at its January 12, 2021, meeting, the Newport Beach City Council "approved" changes to the City's Marine Activities Permit regulations, and is now merely reaffirming its approval. As its members presumably understand, what the Council did on January 12 was merely to introduce possible new regulations for notice, publication and subsequent public consideration at a future meeting. Nothing has been approved until the ordinance is adopted. Indeed, from the extensive discussion at the January 12 study session, it seemed there were so many questions about how the new MAP rules would work that it was surprising to see anything even introduced for publication at the evening session, rather than continued for more staff work as was done with the tree policies. At least in my view, concentrating all the discussion at the time of introduction of an ordinance (when the public and Council have had at most five days to examine and respond to staff's proposal, and none at all to respond to changes made on the day of the meeting) and placing final adoption on the consent calendar signals to the public that the Council is how bad laws are created. It short-circuits the process and makes close to meaningless the notice and publication of the ordinance as introduced. What is the point of reviewing or commenting on the published text, after it has time to soak in, if the Council has already made up its mind and plans no further discussion of it? That said, I think the present law is yet another example of the proposed adoption of a half- baked text that will cause frustration among the public since staff will enforce it based on what staff understands it to mean even though that is not what it says. As an example, the January 12 discussion leads me to believe staff understands the proposed code to require MAPs only of businesses that commercially operate watercraft in the harbor. But that is not what it says, at least as I read it. A good deal of language in existing Section 17.10.020 has been compressed down to a proposed new Subsection 17.10.020.A which reads "No person shall engage in any commercial activity including, but not limited to, scheduling, arranging, operating or renting January 26, 2021, City Council agenda comments - Jim Mosher Page 4 of 7 any bareboat or certified charter, vessel or equipment, on the waters of Newport Harbor without first obtaining a valid marine activities permit pursuant to this chapter." As before, it says it involves "any commercial activity" with commercially -used watercraft being merely examples. Yet, in Attachments B through E, I see no sample MAPs for any activities that do not involve use of watercraft, unless that is under "on -water service providers." From the bottom of page 594 of the draft minutes from January 12, the Council seems to have been told that fuel docks do not (and presumably will not) require MAPs because they "do not operate in the Harbor but on land." I may be missing something about how fuel docks operate but I assume they dispense fuel to a boat tied to a dock, which is, almost by definition, on the water. What in the code distinguishes a fuel dock from a business that offers to clean or repair a boat tied to a dock (which I assume does require a MAP to operate "on the waters of Newport Harbor")? Assuming fuel docks have a commercial pier permit, possibly they don't require a MAP because of proposed Section 17.10.025, which exempts from the MAP requirement "Persons operating with a commercial pier permit, lease or franchise issued by the City unless engaging in commercial activities that would otherwise require a permit pursuant to this chapter"— although what "commercial activities that would otherwise require a permit" might include and not include is completely unclear to me. As previously pointed out, another example of bad law coming about because the legislative body relies on staff's description of how a new law will operate rather than the text of the law itself is the promise in the January 12 staff report (page 13-4) that "Existing operators would be exempt from obtaining a MAP; however, in order to continue to operate, they must register with the City and meet all the MAP requirements except for the parking requirement.... Failure to maintain registration or a substantial change in business activity will require a MAP. The language regarding existing businesses is a key component to the proposed changes. It is estimated that the City may have anywhere between 20-70 businesses operating a commercial business that are not required to have a MAP at this time. These existing businesses would be required to register at no charge with the City annually; meet several insurance, safety and good neighbor related requirements; and provide additional information on their operations." As I said on January 12, while staff may see this as "a key component to the proposed changes," I may unable to find anything in the code as introduced that informs existing operators they need to register, let alone do so annually. And not only does the code as introduced appear to be missing key provisions, but it appears to include inexplicable redundancies. For example, proposed Subsection 17.10.020.13 separately defines the need for a MAP for a vessel used for certain kinds of operations. What is the purpose of this subsection? Since everything described involves operating a vessel, doesn't Subsection 17.10.020.A already say it needs a MAP? Or is the distinction that Subsection 17.10.020.13 is supposed to include even non-commercial operations? If so, why would it be in a section titled "Permit for Commercial Activities"? As previously pointed out, I think there is also a problem with the proposed code being unspecific as to who is eligible to apply for a MAP and how many separate activities (or vessels?) a single MAP can apply to. This is particularly important because of the prohibition in proposed Subsection 17.10.050.J against issuing a MAP to an applicant who previously had a January 26, 2021, City Council agenda comments - Jim Mosher Page 5 of 7 MAP revoked. For example, if a MAP can be issued to a person representing a business (rather than to the business entity) and that MAP is revoked, can a different person successfully apply for a MAP for the same business?' Additionally, as was noted by others at the study session, the ordinance is being introduced, in part, to impose parking requirements. But what those requirements might be is not yet specified in the code titles to which the ordinance refers. Likewise, applicants are assured they will have to pay permit fees established by resolution, but what those fees way be and how they are calculated for a particular MAP does not seem to have been disclosed. As to the four MAP examples provided, I have not had time to study them in detail, but I am mystified by the fact that the "Standard Conditions (Required per NBMC Section 17.10.090B)" do not seem to be the 15 standard conditions required by the proposed NBMC Section 17.10.0908 and that they seem to be different in each variety of MAP. I am also mystified by the carrying over of the "Operator Specific Condition" that "Vessels are not permitted at the entrance to the Harbor" from Attachment D ("Human Powered Rentals"), where it is #27, to Attachment E ("Wind, Electric and Fuel Powered Vessel Rentals"), where it is #31. The appearance of that provision in Attachment D appears to reflect NBMC Sec. 11.12.170 ("Crafts Prohibited in Harbor Entrance"). But that prohibition applies only to human -powered craft. Is this a new restriction prohibiting rented boats from leaving the harbor? If so, why is it being universally imposed? I am further mystified why the variety of MAP to which Attachment B applies is described as "CHARTER VESSELS — FOOD & BEVERAGE SERVICE" (as well as the unexplained "(if MAP covers more than 1 vessel)" annotation). Is a charter vessel2 without food & beverage service in a different category? Does an applicant who sometimes serves food and sometime not need separate MAPs for the two activities? As best I can tell, none of this is explained in the code being proposed for adoption. Item 6. Professional Services Agreement with Cole Huber LLP for Hearing Adjudication Services The staff report is correct in saying hearing officers decide applications for conditional use permits in Newport Beach, but it is also misleading. Under NBMC Sec. 20.60.040, the only CUP applications heard by hearing officers are those for uses in residentially -zoned districts, which are extremely rare. The vast majority of CUPs are approved or denied by the Planning Commission (see Table 5-1 of Title 20). ' It might be noted in passing that Subsection 17.10.050.J, as proposed, is ungrammatical and contains so many "or's" as to be nearly impossible to read. It was likely meant to read: "J. The applicant has a marine activities permit which is (1) currently suspended or (2) had a marine activities permit that has been revoked, or (3) there is a notice of revocation or suspension that is no longer subject to appeal and that has been issued within the past ninety (90) days." 2 NBMC Section 17.01 ("Definitions") says "Certified Charter. The term "certified charter" shall mean any vessel inspected by the United States Coast Guard under Title 46 of the Code of Federal Regulations and which has been chartered for consideration." The proposed MAP code seems to make a distinction between "charters" and "rentals." How that distinction is made is less than obvious. January 26, 2021, City Council agenda comments - Jim Mosher Page 6 of 7 Item 13. Residential Solid Waste and Recycling Franchise Update to Comply with State Organics Recycling Mandates - Request for Council Action on Franchise Extension Options The staff report does not explain if the City has any requirement to go out to competitive bid for contracts over a certain amount. Instead, the Council is being asked to decide to either accept one of two options in a proposal from CR&R or go to bid. But the proposal it is being asked to potentially approve is not provided for review. How is this possible? How can the Council decide based only a summary of what purport to be six new "program elements" compared to the existing contract? Especially when the commentary that precedes this suggests there are numerous other new features, including elimination of the present unlimited service? Shouldn't the Council members who staff have not chosen for the "Solid Waste Working Group," as well as the public, see CR&R's proposal before deciding on it? Item 14. Approval of 2020 Residential Recycling Fee Study and Setting of Public Hearing for Residential Recycling Service Fee Rates The staff report's reference to NBMC Chapter 6.04 does not seem sufficient to explain why the general fund covers the cost of residential trash collection in Newport Coast but not Santa Ana Heights, nor how a recycling surcharge is justified. The language of Section 6.04.140 (Costs Defrayed from Ad Valorem Tax Revenue) clearly applies only to areas which were part of the City on November 1, 1996 (which neither of those areas were), and it says "The cost and expense of collecting, hauling away and disposing of garbage, refuse and cuttings ... shall be defrayed exclusively from the ad valorem tax revenues of the City." A reasonable person would assume any landfill or recycling charges are part of the cost and expense of disposal which is to be borne by the property tax. Beyond this, the purported 2020 Residential Recycling Fee Study seems to be nothing more than a statement of what CR&R charges or proposes to charge. Where is the Proposition 218 required analysis of what the charge arises from and how it is being apportioned proportionately to the service being provided? I see the attachment says the fee is not being used to impose the cost of a new organics program on residents. So has the cost of recycling a pound of recyclables increased (and by how much)? Or has the volume of recyclables generated by residents increased? Do Newport Coast residents dispose of fewer recyclables than others, justifying a lower fee? And are the recyclables truly being recycled (that is, is a service actually being provided for the fee proposed to be charged)? January 26, 2021, City Council agenda comments - Jim Mosher Page 7 of 7 Item 15. Resolution No. 2021-8: Amended and Restated Employment Agreements for City Manager, City Attorney and City Clerk The staff report says that "During the Closed Sessions on October 27, 2020, November 24, 2020 and January 12, 2021, the City Council conducted performance evaluations of the Appointees." I believe the January 12 closed session was noticed under a Brown Act provision that, for unrepresented employees, allows for private discussion of compensation only, not performance. In any event, since the Council has apparently been discussing these contracts in private, it would have seemed helpful to have provided redlined versions so the public can see exactly what changes to the existing contracts are being proposed, and not have to rely on the staff report to describe them. As to their content, the staff report does not explain how the "City -sponsored deferred compensation account"(s) work, or why the Council would want to agree to a fixed contribution to the accounts for the City Attorney and City Clerk, but a "not to exceed" amount for the City Manager. How is the exact amount the Council is agreeing to pay the City Manager determined? Also, I believe the provision for the City Clerk may be mis-written. It says the biweekly payment will be "an amount equal to 1% of Employee's base salary." Since this employee's base salary starts at $155,732, that would be $1,557 every two weeks, or over $40,000 a year, which is much greater than the amount for the other two, more -highly -paid employees. Am I reading this correctly? Or was it meant to specify a City contribution of 1 % of the base pay for that two-week period, so the total for the year would be (the seemingly small) $1,557?