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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED SEPTEMBER 25, 2018 AGENDA ITEM NO. 1 September 25, 2018, City Council Agenda Item 1 Comments The following comments on an item 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 1. Minutes for the September 11, 2018 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in str keout underline format. The page numbers refer to Volume 63. Page 597, Item SS4, paragraph 3, sentence 1: "In response to Council questions, Principal Traffic Engineer Sommers discussed the types of data that is are received from the system and what it is used for, clarified it does not track the actual number of cars on the road, ..." Page 598, paragraph 2: "Jim Mosher believed the system wassuppesed to be able to generate _generatin_p trip data as advertised, ..." Page 600, bullet 2: "Attended the grand re -opening of Pavilions near the Port S#eet Streets, the OCTA Mayor's Forum hosted by Supervisor Steele Steel, ..." Page 600, last bullet: "..., and thanked Congressman Rohrabacher and Supervisor Steele Steel for their support." Page 600, Item XIV: "..., and believed the way Item 4 is written makes it appear that the floor area ratio limit is increasing when it is not." Page 602, Item XVIII, paragraph 3: "Denys Oberman welcomed City Manager Leung to the City, thanked Council Member Herdman for alerting the public about Council's consideration of city manager candidate Sean Shawn Nelson, took issue with a previous Closed Session announcement directed at Council Member Herdman, discussed the City's response to a Public Records Act Request, and asked which Council Members did not support Sean Shawn Nelson so she could thank them." Page 602, paragraph 2 from end: "Carolyn Dre Carol Anne Dry took issue relative to a letter to the editor written by Bob McCaffrey that referenced Lynn Swain and Susan Skinner and expressed her support for them." Page 603, paragraph before "Hearing no further testimony": "He discussed his belief that increased property values might decrease the affordable housing stock and questioned if some of the homelessness money could assist the Community Development Police Department with its homeless program." Page 603, paragraph after "Hearing no further testimony": "Mayor Pro Tem O'Neill discussed and commended the Senior Home Assistance Repair Program (SHARP) which partners with Habitat for Hu es Humanity, ..." [note: the City seems to have a little uncertainty as to whether the "H" in "SHARP" stands for "Home" or "Housing." "Home" appears to be correct.] September 25, 2018, City Council Item 1 Comments - Jim Mosher Page 2 of 2 Page 603, end of paragraph before motion: "..., and reported that the expected number of people the project would benefit is derived from and is equal to the census data for the number of disabled adults in the City." [This may be what was said, and may be even correct, but it seems strange disabled children would not count as individuals benefitted by ADA improvements.] Page 604, paragraph 1 of public hearing: "Jim Mosher believed "...designated for single unit residential use" in NBMC Section 20.48.200.A should be amended to read; "...to that allow a single unit residential use, "and asked where it is stated there cannot be an ADU in each single family 1Gt unit within a large multi -unit district." Page 604, paragraph 3 of public hearing: "Ken Ressen Rawson expressed concerns with allowing A -DUs- in ADU conversions since there is no minimum lot size limit or requirement to provide parking." Page 604, paragraph 4 of public hearing: "Carmen Ressen Rawson expressed concerns with people using ADUs for short term rentals." [note: Ken and Carmen Rawson's last name is misspelled in the August 14, 2018, minutes, page 583, as well.] Page 605, Item 13, near end of paragraph 1: "..., confirmed the LSS fees are the same as was were recommended in July, ..." RECEIVED AFTER AGENDA PRINTED September 25, 2018 Written Comments September 25, 2018, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher6d.yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 3. Second Reading of Ordinance No. 2018-14 Updating Regulations Regarding Accessory Dwelling Units (PA2018-099) In a sense, it is good to see staff is requesting a continuance of the second reading of this ordinance, especially since from the discussion at the first reading it appeared not all the options available to the City had been fully explored, nor were they understood by the community. That seems to be because in Newport Beach, as in many cities, ordinances seem to be sprung on the public by surprise, and essentially adopted at the first reading, often on the consent calendar, with the second reading being nothing more than a perfunctory affirmation of the previous decision. That is not how it has always been, nor how the process was intended to work. The first reading, and the required public advertising that goes with it, is supposed to be simply the introduction of an idea, with the real debate as to whether that idea should be adopted or not coming at the second reading, after the Council and public have had time to be become informed about the issues. In the present case, staff is apparently having second thoughts about what was proposed and is considering introducing a different text for first reading at a future meeting. But if this item had simply been moved from the consent calendar to the regular business portion of the meeting, the Council and public could have better participated in the debate and ultimate decision. Item 5. Newport Bay Water Wheel Project - Adoption of Mitigated Negative Declaration I appreciate that recent court rulings dictate caution in how environmental decisions are noticed, but I think "Newport Bay Water Wheel Project, including Adoption of Mitigated Negative Declaration" would have been a more appropriate heading, since this item involves more than adoption of a MND. I am not sure if staff regards this item as the final Council approval of this project, or as a preliminary approval, but however well intentioned, it is a troubling example of a significant project that has been effectively approved without any formal public discussion by the full Council of its merits or its possible impacts on those who might be affected by it. While it's true the Water Wheel proposal has been discussed by the Council's Water Quality/Coastal Tidelands Committee, as best I can tell it has appeared on the Council agenda several times, but never with any clear notice. September 25, 2018, City Council Consent Calendar Comments - Jim Mosher Page 2 of 5 As part of May 10, 2016, Study Session Item SS5 ("Proposed FY 17 CIP") it was briefly mentioned as something that staff had put in the Capital Improvement Program (with no prior Council direction to do so). On February 28, 2017, those paying close attention to City Council agendas saw on the Consent Calendar and Item 4, "Resolution Supporting Submission of Grant Applications Under the Orange County Transportation Authority (OCTA) Measure M2 Tier 1 Environmental Cleanup Program (17X12)." That hardly cries out "water wheel." One had to read deep into the staff report to discover "Staff plans to submit one or more applications for trash/debris capture projects such as continuous deflection structures (CDS), trash/debris booms, and/or water wheel collection systems." Even then, it was not at all clear if Council adoption of the resolution was to be taken as approval of the project (the substance of which was not discussed) or merely authorization to explore if funding might be available for it. On March 14, 2017, as part of Study Session Item SS3 ("Update on Harbor Programs and Projects Related to Water Quality"), the water wheel proposal was again briefly mentioned, with the Conservancy present to object to its proposed location, even though it had not been explicitly noticed on the agenda. Finally, on February 13, 2018, in an opaquely noticed Consent Calendar Item 6 ("Resolutions Supporting Submission of Grant Applications Under the Orange County Transportation Authority (OCTA) Measure M2 Tier 1 Environmental Cleanup Program, and the Ocean Protection Council's (OPC) Proposition 1 Grant Program") the Council appears to have given further endorsement to the project without public discussion. The present item continues that problematic tradition by asking the Council and public to review (again on the Consent Calendar, which normally means without discussion) a resolution approving a Mitigated Negative Declaration when as late as Monday evening the link to the MND did not work. The item appears to involve other actions not mentioned in the staff report "Abstract," including approval of a Cooperative Agreement that has not been submitted for review or even explained in the staff report. The description of the MND in the staff report is difficult to follow. It suggests a Mitigation Monitoring and Reporting Plan is required, which implies some impacts requiring mitigation were found. Yet the staff report says "The MND does not identify any project component that would result in a "potentially significant impact" on the environment," but that "Specific mitigation measures have been included to reduce the potentially significant adverse effects to a less than significant level." How can one "reduce the potentially significant adverse effects" if there are no "potentially significant impacts"? And if there are, what are they? And how are they proposed to be mitigated? The staff report goes on to say "An MMRP has been prepared for consideration and is included with the Final Initial Study/MND as Exhibit `B" of the draft resolution." But I am unable to find any Exhibit "B" in the report or mentioned in the draft resolution. September 25, 2018, City Council Consent Calendar Comments - Jim Mosher Page 3 of 5 The resolution does presuppose that oral testimony will be considered by the Council on September 25, which is not at all obvious since this is on the Consent Calendar. I might also note statement 1 on the first page of Resolution No. 2018-67 (staff report page 5-5) says "Pursuant to ..., the proposed amendments ("Project') are defined as a project and as such subject to environmental review." I have no idea what "the proposed amendments" might be, or what they are amending. Statement 6 on page 5-6 says "the mitigation measures will have a less than significant impact upon the environment." I would guess that was meant to say "the project with the mitigation measures will have a less than significant impact upon the environment." It also says "there are no known substantial adverse effects on human beings that would be caused," which seems rather conclusory since it's not obvious the people who live nearby have been consulted. As indicated above, the link to the MND provided on page 5-8 did not work. However, with some effort, I was able to locate the MND in the Planning Division's CEQA folder. It looks like considerable effort went into preparing the MND, but I do not have time to read it all, and I am unable to locate an executive summary detailing its conclusions. I did skim through the comment letters (Section 1.4) and find many of the responses to those comments rather dismissive (as seems typical in CEQA documents). That seems particularly the case for the letter from the Irvine Company, which to me raises a number of important issues for the Council to consider, including thoughtful alternatives. Even though the project was moved to its present location in part because of objections from more distant residents who would have seen it in the Ecological Reserve ("Preserve" in the MND), the responses dismiss concerns about the enjoyment of the area by the less affluent, but much closer, residents of the Baypointe Apartment Homes. Whoever wrote the responses also doesn't seem to understand the meaning of the word ,'vector," imagining that TIC is concerned the Water Wheel's trash dumpsters will be "a vector for rats, birds, or other pests" (page 1.23). A "vector," in this context is "A carrier of a disease - causing agent." The rats, birds, or other pests attracted to the dumpsters are potentially vectors. The trash attracts vectors but is not itself a vector. TIC seems to understand this. But sadly, the MND about to be adopted by our Council does not, making one wonder how credible the rest of it is. The authors also seem unaware of the difference between a "conservancy' and a "conservatory' (page 1.22). It is especially troubling that the MND dismisses out of hand TIC's suggestion (their second "Cl ") that re -activation of IRWD's former upstream trash collection system near the Duck Club might be a cheaper and less impactful alternative. In summary, it would seem wise for the Council to have a full discussion of this proposal, including in the conversation those who will have to live next to it. September 25, 2018, City Council Consent Calendar Comments - Jim Mosher Page 4 of 5 Item 8. Resolution No. 2018-71: Amending Various Responsibilities of the Finance Committee I believe the Finance Committee should retain its presently stated on-going responsibility to recommend to the Council ways of maximizing revenues and minimizing costs. I believe the Committee regards that responsibility as a "mission accomplished," but I don't see this as a "one and done" nor do I recall any recommendations actually going to the full Council. I also think the annual review of the FFP by the Committee remains appropriate. Item 9. Resolution No. 2018-72: Amending City Council Reserve Policy F-2 Staff report pages 9-8 and 9-9 unaccountably display the crossing out of two pages of text that appear unconnected to the present matter. The text starting on page 9-30 appears to be the "Attachment A" promised in Resolution No. 2018-72, but is not so -labeled. Item 11. Cooperative Agreement Culver/Bonita RTSSP Our Public Works Department's map in Attachment A (staff report page 11-3) appears to be mis-shaded. It confusingly shows the three Newport Beach traffic signals in the area bounded by MacArthur Boulevard, Bonita Canyon Drive and the 73 Tollway as being in the City of Irvine (yellow). That area has been part of Newport Beach since 1998. Item 12. Amendment No. One to Temporary Employment Agreement with Former City Employee Michelle Caldwell Erring on the side of caution is always wise, but City Council Policy F-14 actually requires Council review only of contracts with former employees who have retired in the last five years. Since Ms. Caldwell retired in 2012, that review was necessary when this agreement was entered into in 2017. It is not clear it still applies. That said, the staff report repeatedly refers to "FMLA leaves" as the reason an extension is needed. I could be missing something, but I am unable to find an explanation of what "FMLA" is. Google suggests it might be the Family and Medical Leave Act of 1993. September 25, 2018, City Council Consent Calendar Comments - Jim Mosher Page 5 of 5 Item 15. Amendment No. Four to the Agreement with Newport Beach & Company for the Management of NB TV Programming and Operations It is good to see staff is considering the City's options. Newport Beach & Company would appear to have no unique ability to provide video services or to do so in a cost effective manner. If staff is considering partnering "with another city' it would have seemed helpful to indicate what city or cities it has in mind. Costa Mesa would seem most logical to me. Item 16. Amendment No. One to Professional Services Agreement with Harris Miller Miller & Hanson, Inc. for John Wayne Aircraft Noise Abatement Departure Procedure (NADP) Analysis This item, again, like many previous requests that have come to the Council, appears to ask for retroactive approval of payment for work already performed without benefit of a signed contract. As I have repeatedly pointed out, Article XI, Section 10(a) of the California Constitution suggests local governments are required to contract for work before the work is performed, not after (from which it follows that any payment for work performed without a contract is a gift of public funds). That makes disturbing the repeated practice in Newport Beach of approving, after the fact, what purport to be contracts for work already completed. Setting that serious problem aside, since the original contract with HMMH (C-7297-2) appears to have been approved by the City Manager without Council review, it would have seemed helpful to provide a link to it so the Council and public could see its terms for themselves. The statement in the staff report that "The deliverable for this amendment is complete" apparently refers to HMMH's statement on page 16-8 that the results "will be presented in tabular format within the Task 1 technical memorandum." That raises the question of when the public can expect to see any results from this contract. I had the impression that a report from HMMH had been imminent for several months, already. But Contract C-7297-2 appears to involve only a single report at its end, and no time frame for its delivery seems to be prescribed other than the end of the contract on June 30, 2019. Can the public expect to see a completed "Task 1 technical memorandum"? If so, when? Received After Agenda Printed September 25, 2018 Item No. 18 September 25, 2018, City Council Item 18 Comments The following comments on an item 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 18. Call for Review of the Approval of the Variance and Coastal Development Permit for 3200 Ocean Boulevard (PA2017-208) Please see also the SPON Watch List page. Overview As I noted to the Planning Commission, this item is unusual in that the staff reports have never included a written statement from the applicant (at least that I have seen) explaining what is being requested, why it is being requested and how the requested deviations from the established zoning regulations can be rationalized. Instead, City staff appears to have left to carry the ball and pitch the proposal to decision makers on behalf of the applicant. Staff's resulting recommendation for approval, as expressed in the staff report, seems to be based on a number of misconceptions. Among them: 1. That the City is free to grant deviations from the development standards proclaimed in our recently certified Local Coastal Program because, it is said, the Coastal Act was never intended to restrict any of the rights to develop afforded by other regulations (see staff report page 18-47). 2. That there is no relevance to the restriction stated in our Zoning Code that the floor area of homes in Corona del Mar is limited to 1.5 times the buildable area on the lot (after correction for setbacks, a so-called Floor Area Limit of 1.5). Instead, there is an implied property right in Corona del Mar to build homes with a floor area roughly equal to the total square footage of the lot (a so-called Floor Area Ratio of 1). 3. That the supposedly unique configuration of 3200 Ocean Blvd is impinging on that implied "right." In response to those three specific points, I would, as I hope to explain in more detail below, submit that the request for deviations from the Zoning Code and LCP should be denied for the following reasons: 1. The provisions in the LCP are intended to constrain development in the Coastal Zone, and to take precedence over what might be allowed by other more permissive zoning regulations. The City's current authority to deviate from what the Coastal Commission has certified as consistent with the Coastal Act is highly questionable. Coastal Development Permits allowing development exceeding those standards should not be granted until the City's authority to do that has been clarified. 2. The restriction of residential development throughout Newport Beach by FAL rather than by FAR is purposefully intended to limit lots with different shapes and configurations to September 25, 2018, Council Item 18 Comments - Jim Mosher Page 2 of 5 different FAR's. The 1.5 FAL in Corona del Mar is intentional and its enforcement is part of the right of all residents to know the neighborhood they have bought into will develop in a predictable fashion. The resulting lower FAR at 3200 Ocean Blvd is not an aberration that needs to be corrected. It is, instead, an example of how the FAL rule is intended to work. 3. 3200 Ocean Blvd is not unique. It is just 1 of at least 27 cases in Corona del Mar, alone, where long, skinny lots that once backed up to an alley have been subdivided to create a corner lot without alley access — a situation which (if the existing setback rules are not working) I think should be dealt with by enacting a new district -wide or citywide rule, rather than by granting one-off exceptions. In some cases, building into the code - established setbacks, or changing the setbacks, has been allowed. But in no case that am aware of has a CdM property owner been allowed to exceed the 1.5 FAL. About Property Rights Some people have the not -unreasonable idea that a property owner in the United States should be allowed to build whatever they like on their property, without any interference from the government. That attitude is reflected in the letters on pages 18-105 through 18-112 of the staff report. However, it has long been recognized that development on one property affects the rights of others. Zoning regulations, which have been widely around for about 100 years, have been developed on the premise that for people to get along peacefully and safely in a city setting it is necessary to establish clear development rules which property owners can assume will be followed by all. The letters on pages 18-89 through 18-102 are from people who equally reasonably expect their government to strictly enforce the rules it has established. About Setbacks — And a Time Changing Them Was Easier for Developers A requirement to set development back from the property lines is a typical regulation limiting the right to develop on residential lots. In Newport Beach, residential setbacks are legislatively established by the City Council in Tables 2-2 and 2-3 (Section 20.18.030) of the Zoning Code, unless otherwise established by the Council in the Setback Maps of Section 20.80.040. They can be changed by ordinance. Section 20.52.050. B.2 allows discretionary approval of encroachments by up to 10% of the required distance, and Section 20.52.090 allows variances from the standards in exceptional circumstances. Before 2010, in cases where a corner lot had equal exposures to two streets, the Zoning Code also allowed the Planning Director to administratively decide which exposure was the "front" and which a "side" of the lot. Although nothing about that was supposed to change, in the 2010 update of the Zoning Code, that passage became garbled into the "Alternative Setback Area Location" provision of Section 20.30.110_C. September 25, 2018, Council Item 18 Comments - Jim Mosher Page 3 of 5 Despite the high hurdles for changing setback requirements by modification, variance or legislation, staff took this, for a while, as license to arbitrarily change setbacks upon request, with no required findings or public process at all. For example, on June 21, 2011, the present applicant, Nicholson Construction, was able to get the setbacks at 211 Heliotrope changed from the Council -adopted standards simply by submitting a diagram of what they wanted and getting staff to sign off on it with staff approval SA2011-012 (see staff report page 18-69) According to the Case Log, that is how the present application for 3200 Ocean Blvd started. However, staff seems to have had some misgiving about the ease with which setbacks were being changed (and being made inconsistent with those set by the Council), for when an applicant asked for more than staff was willing to give, as in SA2012-002 for 211 Orchid (see staff report page 18-70), staff's position was submitted to the Planning Commission for their concurrence — although still with no clear findings. The present staff report does not mention this messy history of setback regulation in Newport Beach (and the resulting crazy -quilt of changes, encroachments and inconsistencies), but it seems to acknowledge that staff should not just arbitrarily change setbacks as an applicant may request. The staff report also does not explain why a variance procedure is more appropriate than a legislative change applicable to all corner lots. About Floor Area Regulation — FAL vs. FAR The "facts" in proposed Resolution No. 2018-73 that are purported to support a variance to the code -imposed Floor Area Limit of 1.5 for 3200 Ocean appear to be based solely on the idea that 3200 Ocean should be allowed the same Floor Area Ratio as some other properties. It is important to understand that FAL is not the same as FAR. FAL is the ratio of floor area to the buildable area on the lot (the footprint after the setbacks have been removed). FAR is the ratio of the floor area to the total area of lot (ignoring the setback areas). FAL is what is regulated on residential lots. FAR is not. As a result, there is no inherent right to be able to build to the same FAR as a neighbor with a different lot configuration and different setbacks. Requirements for Granting Variances Although not from Newport Beach, the Marin County Variance Fact Sheet is a useful reference explaining the factors that can and cannot be considered in weighing the appropriateness (and legality) of varying from the development standards proclaimed in a zoning code. Among the most fundamental requirements for granting a variance is that there is something unique about the property. September 25, 2018, Council Item 18 Comments - Jim Mosher Page 4 of 5 As a corner lot not abutting an alley, 3200 Ocean Blvd is different from its neighbors, but it is not at all unique. As indicated above, there are something like 27 such lots in Corona del Mar, alone. If there is truly some hardship imposed by the setback rules in the present Zoning Code, that is a large enough number that the Council should be proposing some new setback rule uniformly applicable to them. Whatever the correct setbacks for corner lots should be, none of the corner lots I am aware of have asked, or been allowed, to exceed the 1.5 Floor Area Limit. Granting that would truly be a special privilege given to this one lot for no reason I can perceive. The Deal with 210 Larkspur As indicated by the letter on staff report page 18-103, by offering a private view easement, City staff has won the support of the neighbor at 210 Larkspur for allowing 3200 Ocean to build closer to his property line than the City code allows. Not only is the agreement of a neighbor not a valid grounds for approving a variance according to the Marin County Fact Sheet, but it is unclear why protecting a view necessitates an even larger house than could be built within code. Coastal Act Issues The most obvious Coastal Act issue is that the City's recently certified Local Coastal Program gives the City no authority grant the present requests for deviations from the development standards promised in the LCP. As part of the Maior LCP Clean-up Package, submitted by Resolution No. 2017-56 on September 12, 2017, the City Council has pending before the Coastal Commission a request to amend the LCP to give it power to grant modifications and variances to the development standards in it. The matter has not yet been heard, and the power has not yet been granted. Yet City staff asserts the City has the authority anyway. The authority is claimed to result from a "Director Interpretation" of the LCP. Even though such interpretations are supposed to be appealable, this one appears never have been committed to writing. It the logic behind it is that revealed in the last paragraph on staff report page 18-47, then it relies on multiple misinterpretations of the relevant laws, as indicated in my August 9, 2018, comments to the Planning Commission. In a move similar to what is being requested here, involving the same development company and relying on the same questionable Director Interpretation, on December 7, 2017, the Planning Commission granted variances for a residential project at 2607 Ocean Blvd. The City's authority to do that is currently on appeal. It might be heard in December, but it has not yet decided, aside from the CCC deciding the City's action raised "substantial issues" regarding its compliance with the Coastal Act. The ridiculousness of the City's position is apparent from page 6 of 9 of the proposed Resolution No. 2018-73 (see staff report page 18-10). At the top of that page, the resolution acknowledges it is for development "that exceeds the maximum floor area and encroaches five September 25, 2018, Council Item 18 Comments - Jim Mosher Page 5 of 5 (5) feet into a required ten (10) foot rear setback," followed immediately by facts purported to support a required finding that the development "Conforms to all applicable sections of the certified Local Coastal Program." It seems common sense that the development cannot conform to the sections if it deviates from them. As the two Planning Commissioners who voted against granting the present CDP noted, since their previous approval of deviations without clear authority to do so is under appeal to the Coastal Commission, it would seem prudent to grant no more such approvals until that matter has been resolved. Despite the indemnification clause in the proposed conditions of approval, further granting of variances without authorization has the potential to involve the City in expensive, wasteful and completely unnecessary appeals and litigation. Setting that issue aside, the main Coastal Act issue with development on this property would likely be its impact on the public views of the ocean looking down Larkspur. Although the Larkspur side of 3200 Ocean is currently the front of the home, and is proposed to continue be, it is treated as a "side" and construction is required to be setback only 4' from the sidewalk, compared to 20' at 210 Larkspur and 15' for the remainder of Larkspur. Logically, the setbacks of the buildings should increase as one moves closer to the ocean, opening a public vista. Hence if the 3200 Ocean owner wants to build closer to the rear lot line than the LCP allows, it would seem reasonable that rather than simply allowing that, it be treated as a trade-off, with the open space being lost along the rear lot line being added to the more publicly critical open space along the Larkspur frontage.