Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 9, 2021 February 9, 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 SS3. Current Status of the Housing Element Update Process If staff has a presentation they plan to give, as they likely do, it would have seemed helpful to post it for review prior to the meeting. That would help to focus questions, including ones about aspects of the process not expected to be covered. Item Ill. Public Comments I am pleased to see the absence of closed session on the present agenda. Item Xl. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA: Consideration of a resolution expressing support for actions to further strengthen local authority and control This item has been handled at recent Council meetings as a "non -discussion" item, meaning the Council members presumably (like the public) have no idea what they are being asked to vote on beyond the words on the agenda. I am unable to understand the logic of this, since it would seem to encourage Council members puzzled by the announcement, prior to the meeting, to privately contact the Council member presenting the issue for clarification of what is being asked for and why, creating a potential for violations of the Brown Act. In the present case, it is completely unclear what "actions" the Council is being asked to support. A recent article in Voice of OC indicates the Orange City Council will be acting on a similarly - titled Item 5.1 on their February 9 agenda.' Is this a recommendation to present the same resolution to the Newport Beach City Council? If so, it's not clear what it accomplishes. Who is it directed to and expected to influence? Item 1. Minutes for the January 26, 2021 City Council Regular Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in s*r�z:t underline format. The page numbers refer to Volume 64. Page 609, full paragraph 7: "Jim Mosher indicated the only concern regarding use of sidewalks raised in the presentation was increased maintenance, discussed Council Member Dixon's concerns about the loss of public parking space, discussed City Council Policy L-21, and enGOuraged thought it was a City _goal to encourage people to walk more." ' It might be noted that the citizens of Orange, through their Council, get to see in Item 3.2 the warrant list of checks written by city staff, and in Item 3.18 the claims presented against their city — two things Newport Beach residents once saw, but no longer do (even though we have or had not only the "Open Budget" but also the "Open Expenditures" software suite). February 9, 2021, City Council agenda comments - Jim Mosher Page 2 of 7 Page 610, full paragraph 1: "Council Member O'Neill believed removing two public spaces for a valet plan gains 10 or 15 spots from people not parking in residential areas, the node idea stimulates private industry, putting in parking structures at locations such as at the Five Crowns Restaurant parking lot would help, designated spaces for rideshare services pr-even revent double parking, Council has to consider how people are driving and getting dropped off, and encouraged people to use more rideshare programs." Page 610, full paragraph 3: "Council Member O'Neill suggested adding to bullet point C a few other areas such as Bayside Drive, the Corona del Mar Plaza, and the Westcliff area to bullet peint and areas that are not part of a planned community text and can benefit from some sort of overlay or curb management plan." [note: the part after the final comma was not spoken by Council Member O'Neil, but rather interjected by Community Development Director Jurjis] Page 614, first paragraph after motion: "Orange County Head of the District 2 Supervisor Transition Staff Tim Whitacre provided the County's check related to Item 7, and Mayor Avery acknowledged receipt of the check." Page 614, Item XVII, paragraph 1: 4-9-11. Ordinance Nos. 2021-1 and 2021-2: Land Use Entitlement Applications for the Residences at 4400 Von Karman Project (PA2020-061) (C- 7904-2) (38/100-20211' [note: this was Item 11 on the agenda, not 10 (which appears near the top of the same page)] Page 614, Item 10, paragraph 2: "Council Member Brenner disclosed ex parte communications with The Picerne Group (TPG), Still Polluting Our Newport (SPON) representatives, Derek ^c+�in Ostensen, Melanie Schlotterbeck, and Adriana and Fred Fourcher." Page 614, Item 10, paragraph 3: "Council Member Dixon disclosed ex -parte communications with the applicant, nearby business owners, TPG, Derek ^s*�i„ Ostensen, Dwight Belden, and the Fourchers." Page 615, paragraph 1 of public hearing: "Greg Nakahira, on behalf of the applicant, thanked staff, the Planning Commission, the Parks, Beaches and Recreation Commission (PB&R), Airport Land Use Commission (ALUC), Koll Company, and community groups, and utilized a presentation to introduce TPG." [note: according to the resolutions, the applicant was "TPG (KCN) Acquisition, LLC."] Page 615, paragraph 2 of public hearing: "Ken Picerne used a presentation to provide an executive summary, the project history, how the Integrated Conceptual Development Plan (ICDP) granted the ability to develop residences, ..., the freestanding garage setback from the closest office building." Page 616, last paragraph of testimony: "Jennifer Hernandez, representing the applicant, advised that the project implements the City's General Plan amendment and the ICDP, objections to the project were not submitted timely, denying the appliGant application based on neighbors' opinions is unconstitutional, and using an addendum is appropriate." [note: like much in the current minutes, correcting the grammar does not correct the distortions of meaning, which in this case differs significantly from what I believe was said. I believe Ms. Hernandez told the Council it is an unconstitutional delegation of regulatory authority for a government body to approve a zoning -related application contingent upon the applicant getting subsequent approval by a non-governmental private party. I do not believe she meant to imply it was unconstitutional February 9, 2021, City Council agenda comments - Jim Mosher Page 3 of 7 for a government body to itself deny an application based on the community opposition it had heard prior to its decision.] Page 619, paragraph 2 from end: "Council Member Blom noted public comments regarding a five-year process and the hydrogen plant, which required Federal approval, this is about a business owner and property rights whether he agree agrees with it or not, he is a Big Canyon resident, noise in Big Canyon is not that loud, ..." Page 620, paragraph 5 from end: "Council Member O'Neill stated it is Council's job to never throw the NBMC out but to ensure the law does not change from item to item, and urged Council Members to consider the pincnipal principle of legitimacy that comes with the unity Council following the law." [see video] Page 621, Item 13, last paragraph before motion: "Jim Mosher discussed the appointment of the working group, the public's understanding of the contract, the lack of CR&R's proposal, a reduction in service for a higher cost, and ung reconcilin_p the proposal with the GiW Charter- Municipal Code." [note: It is good the video is being preserved as a more accurate record, but disturbing that the minutes change things. The video shows I repeatedly referred to the voter -enacted ordinance in our "Municipal Code," not "City Charter." I believe the Public Works Director may have erroneously said charging residents the full cost of trash collection would require a City Charter amendment, but that should not have been attributed to me.] Page 622, paragraph after first motion: "Jim Mosher believed the study is not an actual fee study and shared his research into the history of trash collection fees in the City's Charter Newport Beach." [Again, I did not say "City Charter" and do not how it got in the draft minutes.] Item 4. Resolution No. 2021-5: City Council Policy G -Series Revisions (City Trees) I appreciate staff's efforts to clarify the City's tree policies, but this seems a never-ending effort which I think could have been improved by including the flowcharts (referenced on page 4-3 and in Section IV of proposed Policy G-1 on page 4-12) showing how staff understands the policies to work. That would have allowed the Council and public reading the proposals to assess if they actually work as described. I believe one of the greatest difficulties in reading Policy G-1 is understanding the intended difference between "tree removal" and "reforestation." "Reforestation" involves the removal of an existing City tree and its replacement with another at the applicant's expense. Although it is not obvious from the words "tree removal" involves not only removal but also replacement, this time at the City's expense. There does not seem to be mechanism to obtain a pure tree removal without a replacement. I believe the intended distinction is that "tree removal" (& replacement) is what happens when staff agrees with the request, while "reforestation" is what happens when staff disagrees. But this is not at all apparent from Policy G-1, at least to me. That interpretation seems to acknowledged in the staff report "Discussion" in the first bullet at the top of page 4-3, where it says that a petition process is required for Special Tree removal when "staff disagrees" with a request from a person or association — although exactly what petition process "an association" is required to undertake is also not obvious from the proposed policy, including if there is any February 9, 2021, City Council agenda comments - Jim Mosher Page 4 of 7 difference in the treatment between homeowners associations with mandatory membership and less formal ones. As to proposed Policy G-6, there is a similar lack of clarity as to the significance of the two attachments: the Street Tree Designation List (Exhibit A) and the Parkway Tree Designation List (Exhibit B). For the streets designated in Exhibit A, City staff appears, based on the first sentence of Section II on page 4-32, to have promised to plant, on its own, only the trees listed for that street. But it is not at all obvious from the following sentence if a resident on an Exhibit A street has the same latitude as residents on other streets to choose a different tree for their parkway from the Exhibit B list. Neither the policy nor the exhibits explain. Some more specific comments about proposed Policy G-1 follow: Page 4-8, paragraph 2: As indicated when this was previously before the Council, it is not obvious to me that the current version of Council Policy B-17 is intended to allow trees to be donated "in memory of" specific individuals or organizations. Page 4-10, last paragraph before Section III: Why is only "the Councilperson of the district where the removal is proposed" notified "of the intent to remove a Problem Tree." And why should the policy say "The decision by the City Arborist to remove a problem tree is final unless called up by at least one Councilperson" (most of whom wouldn't even have been notified of the decision). First, we do not elect council members to exclusively represent the district in which they live, so why is only one of seven notified? Second, since they spend more time dealing with tree issues than the Council members, wouldn't it be more appropriate to notify the PB&R commissioners and authorize them to call the decision up for review? Page 4-11, last paragraph ("E"): The statement that in the case of a request for a standard tree "to be removed in conjunction with a commercial or residential project," "the applicant will coordinate and assume all costs" seems to contradict the last bullet on page 4-17, which says "The full costs of removal and replacement of Standard Tree(s) will be the sole responsibility of the City' (which, redundantly, echoes the same policy statement applicable to all City Trees, made in paragraph 3 of Section IV on page 4-12. Page 4-12, Section IV, paragraph 2: As noted above, when the policy refers to "a home owners' association" it is not always clear if it means to include all associations, however organized, only those with mandatory membership, or some other combination of the two. Page 4-13, bullet 3: The reference to "Private property owners, residential communities, neighborhoods, or business organizations who apply for a Special Tree removal(s)" is confusing since paragraph 2 of Section IV, on page 4-12 appears to limit applications to "a home owners' association, or a private property owner." Who are the "residential communities," "neighborhoods," or "business organizations" and do they have to own property? Page 4-13, bullet 4: The command that "Private property owners represented by a homeowners' association with mandatory membership and within the 500 -foot radius must, instead of the above petition procedure, submit a petition through their association" is largely inscrutable. If this is "instead of the previously detailed petition procedure, then exactly what kind of petition is the one that needs to be submitted to an HOA? Is it the same as the one that would be submitted to the City with the same signature requirements? Or is the HOA free to define its own rules for petitioning? The policy, as proposed, does not explain. February 9, 2021, City Council agenda comments - Jim Mosher Page 5 of 7 Page 4-14, first partial paragraph: The closing parenthesis is missing. Page 4-15, last bullet: The statement that "The decision by the Landscape Manager to remove a problem tree is final unless called up by at least one Councilperson" is problematic for multiple reasons. First, again, only the Council member who lives in the district is notified of the decision. Second, it is unclear who the Council members call the decision up to — themselves or PB&R? And finally, it is again unclear why it is not the PB&R commissioners who are notified and authorized to call the decision up to themselves. Page 4-16, part C, bullet 4: Same comment. Why not let PB&R oversee staff, much as the Planning Commission can call up decisions of the Zoning Administrator? Page 4-18, part B, bullet 2: this is one of at least three times what appears to be the identical petitioning requirements are repeated (the others being on pages 4-13 and 4-19). The policy could probably be condensed if the petitioning procedure were described just once and referenced in places where it is needed. Page 4-21, Section VIII, paragraph 1: This policy says "The City Council has adopted tree trimming cycles for trees of different ages and species." It does not explain where the public can find those cycles. Should they be part of a Council policy? Are they in a tree -trimming contract? Page 4-22, last paragraph: The intended applicability of the policy to areas with HOA's because even more unclear with the new references to "an active homeowners association" and "a legally established association." What constitutes "legally established" for purposes of this policy? Is it intended as a synonym for the earlier references to "a home owners' association with mandatory membership"? What are the obligations of a resident who lives in an area with an association that is active but not legally established? How are they to get approval from a legally established one? Item 5. Resolution No. 2021-9: Denying General Plan Amendment for the Shell Service Station Car Wash Located at 1600 Jamboree Road At the January 26 meeting, Council member O'Neill admonished the Council that they should not be using noise as a reason for denying a project that complies with the City's noise ordinances. I disagree, and believe the majority of the Council was correct in responding to resident noise concerns even when they were predicted to be below the levels outlawed in the Municipal Code. As staff notes, the Council has wide discretion in considering General Plan amendments, and (as far as I know) it is never compelled to grant one. As someone who lives at a location with a very high level of ambient noise (from a combination of Irvine Avenue auto traffic and JWA airplane flights), I can testify that the rare moments when those sources subside are precious. I believe the residents of Big Canyon have a right to expect business owners to stay within the General Plan limits for development, and not have their rare moments of quiet filled by added service station operations, however faint. February 9, 2021, City Council agenda comments - Jim Mosher Page 6 of 7 Item 8. Police Station Locker Room Remodel - Award of Contract No. 7872-1 The total cost, when combined with the purchase of new lockers proposed in Item 9, of over $1 million to refurbish a locker room seems high. Has the Council seen the contract it is being asked to approve? The staff report does explain the scope of the work or how the police force will operate during the remodel. Will there be an alternate locker room during the remodel? If so, where and is that part of this contract? Item 9. Police Station Locker Room Remodel - Approval of Purchase Agreement for Locker Room Lockers As best I can tell, the staff report does not reveal how many lockers the Council is being asked to approve purchasing at a cost of $344,546.13. More disturbingly, the contract does not appear to specify the quantity or price, either. Sections 1.1 and 1.3 on pages 9-5 and 9-6 refer to details in an "Exhibit A." But the Exhibit A on page 9- 15 is blank. Possibly the details are in the "Sourcewell Contract #010920 -SPC" referred in Recital D on page 9-5, but how do the Council and public know what is in that? And since the Sourcewell Contract is apparently not specific to this project, it presumably specifies only cost, not quantity. Exactly what is the Council contracting to buy? Item 11. Award of On -Call Plumbing Maintenance and Repair Services Agreements with Verne's Plumbing, Inc. and PHA Professional Services, Inc. The report indicates staff barely awarded the current contractor (Verne's Plumbing) the threshold Technical Score needed for consideration (71 points, with 70 needed for consideration). Have there been problems with this vendor's work? If not, does staff have a policy in place to decide which on-call contractor to use? It appears from the Cost Ratio Scores on page 11-2 that PHA Professional Services, Inc. charges twice as much for the same work. Although staff recommends contracting for equal dollar limits with both firms, in view of their lower cost shouldn't Verne's be preferred for the work they can do? Item 13. Ordinance No. 2021-4: Amending the Local Coastal Program Implementation Plan to Include Balboa Village Parking Management Overlay District and Plan (PA2017-046) It would be easy to attribute to the six year delay in getting the Balboa Village Parking Management Overlay District to its present point to the slowness of getting anything through the California Coastal Commission. February 9, 2021, City Council agenda comments - Jim Mosher Page 7 of 7 However, that would be a misreading of the record, for according to the timeline on page 13-2, most of the six years has been spent with City staff sitting on the proposal — including, most recently a four-month delay between receiving formal notice of the CCC's action (page 13-46) and scheduling a Council hearing on it. With regard to that notice, it might be noted that the CCC says it requires the Council not only adopt of the code changes with the CCC -suggested modifications, but also submit a Council resolution forwarding the adopted changes to the CCC. I don't know how literally that is taken, but I don't see a resolution in the present agenda item. Will a separate resolution be included when Ordinance No. 2021-4 is brought back for second reading? Or does staff think the ordinance itself is sufficient? Item 15. Presentation of Phase VI Recommendations for Sculpture Exhibition in Civic Center Park Each slide, starting on page 15-12, introducing a work being presented for approval shows, in the information on the left, a "Jury Ranking" (referred to as "Panel Ranking" on page 15-4) and a "Public Ranking." My understanding is the Jury/Panel Ranking reflects private voting, conducted in some fashion that has not been disclosed, by the seven City Arts Commissioners plus the two guest curators described on page 15-3. They apparently voted independently, without knowledge of how the public or other jurors had voted. the Jury/Panel Ranking reflects the number of votes received by members of the public, who were each invited to vote for up to three works. It is commendable the City conducted a public survey, but I watched the January 14, 2021, City Arts Commission meeting at which the 13 recommendations were made, and as best I can tell, the Public Rankings had absolutely no effect on them, and there may well be works in the publics top 13 that were not re -considered by the Commission prior to making its recommendations. It might appear from the table on page 15-4 that the recommendations would have been the same had no public meeting been held at all, since, with the exception of "Anna" the Commission seems to have simply affirmed the Jury/Panel's to choices made prior to the meeting. But this is not quite true, for it looks like the Jury's numbers 7 and 8 were eliminated for reasons not explained in the staff report. Since the Council is not bound by the City Arts Commission's recommendations, it may wish to review the complete list of entries, which has been archived, along with the rankings, in the January 14 CAC materials as the "Additional Handouts." I believe the Commissioners were also provided with a summary sheet listing all the jury and public rankings, which does not seem to have been archived.