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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED February 12, 2019 WRITTEN COMMENTS February 12, 2019, City Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( Lmmosher(Qyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 22, 2019 City Council Meeting I continue to think it would be useful to give the full names of City officers and employees at their first mention in Council minutes, as is the practice in most other Newport Beach minutes, and as is done with the Council members own names (listed in full under "Roll Call"). It was disappointing none of the Council members said anything in support of this suggestion when it was made at the last meeting in connection with the start of this new volume. The passages shown in italics below are from the draft minutes with suggested corrections indicated in str1keeut underline format. The page numbers refer to Volume 64. Page 11, Item SS3, end of paragraph 1: "... and an interactive map that allows users to find where the -best STLs are located, as well as for neighbors to be aware of what homes in their neighborhood are being -used -for permitted or prohibited for use as short term lodging." Page 12, end of paragraph 5: "However, there has have been recent developments in the law to provide more clarity in California." Page 12, Item SS4, end of paragraph 1: "... and the probabilistic projections based-on4he California Coastal Gommi&&ion from the California Ocean Protection Council." Page 13, paragraph 1 (top of page, regarding Sea Level Rise and Coastal Flooding): "Mayor Dixon summarized the presentation and confirmed staff directives. Council unanimously agreed to move forward as discussed." [If this is correctly phrased, it strikes me as inappropriate. The public chooses to attend or not attend City Council study sessions under the assumption they are for education, not for action. This paragraph makes it appear the Council took action without adequate notice or opportunities for public comment, there being, for example, no advance staff report or any other advance indications of what the recommendations or decision requests would be.] Page 13, Item IV: I believe this should read "IV. CLOSED SESSION (cancelled)" and the listing of sub -item "A" should be deleted in its entirety (listing the item in the minutes makes it appear a closed session did happen, in contradiction to the preceding statement that there would be none). Page 17, Item 11, paragraph 2: "In response to Council questions about rate increases, Jim Netzer, City's appraiser from Netzer & Associations Associates, and Real Property Administrator Whitlinger indicated... " Page 19, first paragraph: "If the home is sold, the deed restriction goes with the property and future property owners cannot rent out both the home and the Accessory Dwelling Unit (ADU)." February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 8 Page 19, last paragraph: "Discussion continued between Mayor Dixon, Assistant City Engineer Stein and Associate Planner Nova that included the importance of updating the area, and how the Coastal Commission might be involved, and improving the existing trails in the area." Page 20, Item 15, end of paragraph 1: "... and requested Council amend their motion to replace the existing map with the map that was submitted after the agenda was posted." Item 3. Introduction of an Ordinance Amending Newport Beach Municipal Code Chapter 15.50 - Floodplain Management I appreciate staff providing Attachment B, the redline of the ordinance, highlighting the changes being made to the existing code. However, it is not at all clear what it is a redline from. Some things that are not changes from anything that exists (such as the redlined ordinance title) are highlighted as changes, while others are not, in a haphazard and unpredictable fashion. Even in the areas where changes to existing code are shown, the logic of the redlining is inscrutable. For example, the whole table of contents of Chapter 15.50 is underlined as new text on staff report pages 3-23 and 3-24, yet the staff report suggests only one new section has been added. Discovering which one is truly new seems to be left for the reader to figure out. Hint: I believe it is "Section 15.50.205 Recreational Vehicles" (which is, in fact, not new, but is only being moved from its current, less conspicuous, location as Subsection 15.50.200.C.4; much as the seemingly new definition of "adversely affected" in Section 15.50.050 is also not new, but simply being moved from its current location in Subsection 15.50.220.6.3). What is, or is not, being changed on the other pages is equally difficult to determine. For example, in the definition changes shown on staff report pages 3-24 through 3-26, existing text that is not being changed is sometimes highlighted as if it were new, while some existing text that is being deleted is not shown at all. As a specific example, as best I can tell the three definitions shown as entirely new at the top of page 3-25 are, in fact, the existing definitions with "flood insurance rate map (FIRM)" changed to simply "FIRM" even though the deleted words are not shown Of the definitions where the specific changes are shown, having ones for both ""Floodway" and "Regulatory floodway" seems unwise since they say they mean the same. And the amended definition of "Coastal high hazard area" — adding that they are indicated by VE or V on the FIRM — seems to be contradicted by the later section about them (Section 15.50.230), which says they are designated "V, V1-30, and VE" -- V1-30 being a zone or zones that don't seem to appear on the Newport Beach FIRMs. The significance of many of the other changes is similarly difficult to discern, especially when seen outside the context of the many sections of Chapter 15.50 that are not being changed. Based on the recent study session, I had expected to see new provisions requiring reconstructed homes to be built on stilts. Instead, I find such non -substantive things as a concerted effort — for reasons that are nowhere explained — to purge the Newport Beach Municipal Code of all references to the Federal Insurance and Mitigation Administration (FIMA), even though that agency seems to still exist as a division within FEMA, is still the one that February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 8 oversees the maps, and is indeed the one that issued the most recent Letter of Final Determination regarding the maps that the City has so proudly posted on its website. As to the houses on stilts facing the ocean in West Newport (which the city once had, and apparently will have once again), that requirement seems to have existed all along in Section 15.50.230, which appears to be undergoing some clarification, but no substantive changes. Despite the clean-up effort, I notice the middle sentence of Subsection 15.50.230.A ("The pile or column foundation and structure attached thereto is anchored to resist flotation, collapse, and lateral movement due to the effects of wind and water loads acting simultaneously on all building components.") remains a statement rather than the regulation. Since the author of this code seems very fond of the word "shall," I would have expected "is" to be changed to "shall be" in the clean-up. I am also mystified by the requirement in Subsection 15.50.230.F.2, for applicants to report, in connection with the structures raised above the waves on stilts, "whether such structures contain a basement." I have trouble picturing how a structure that is entirely above the projected flood waters can have underground rooms. Among the substantive changes that are being proposed, the current Floodplain Management chapter (NBMC Chapter 15.50) has what looks like a typographical error in Subsection 15.50.180.D where it refers to the Planning Commission after consistently referring to the Building and Fire Board of Appeals in all the subsections before and after that. I am not able to follow the rationale for expanding on that error by entirely writing the Building and Fire Board of Appeals out of the appeal/variance process and everywhere substituting the Planning Commission for it. As best I can tell, the matters that might be appealed are at least as likely to have to do with building/construction standards as with development siting. The Building and Fire Board of Appeals not only doesn't have much business, but its members seem much more qualified to consider building appeals of the type being contemplated here in comparison to the Planning Commission, whose members' expertise is in planning rather than building standards. In short, this is an extremely confusing item, presented in a confusing way. The staff report, for examples, implies the code changes are being compelled by FEMA, and says such things as "A change to the ordinance includes a definition of "coastal hazard area, " which is required because of the 166 coastal properties now subject to flooding from coastal waves and tidal inundation." No such new definition is being added. Instead, Section 15.50 already has a definition of ""Coastal high hazard area" and, as indicated above, although the redlining makes it appear new, no substantive change, at all, is being made to it. Aside from the clean-up and the elimination of the role of the Building and Fire Board of Appeals, the only real change to the code seems to be the City's formal acknowledgement of the new FEMA/FIMA maps. If there are other substantive changes hidden in the redlining, it would have been helpful to alert the Council and the public to them in the staff report. Although slightly off -topic, as an indication that Title 15 is a dusty section of the municipal code more often referred to than read, and overdue for additional clean-up, I might note that Chapter 15.37, regarding Approvals In Concept, and last amended in 1997, says it was enacted "In order to comply with the provisions of Division 18 of the California Public Resources Code, entitled "California Coastal Zone Conservation Commission, " and the South Coast Regional February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 8 Commission's operating regulations." To the best of my knowledge, the California Coastal Zone Conservation Commission and the South Coast Regional Commission ceased to exist more than 40 years ago (being replaced by a California Coastal Commission without regional commissions) and Division 18 has, since 1994, been the state's "Morro Bay Management Plan," which would seem to have little relevance to Newport Beach. Item 4. Second Reading and Adoption of Ordinances Updating Regulations Regarding Accessory Dwelling Units (PA2018-099) As the minutes of the January 22, 2019, City Council meeting indicate, I asked about the deed restriction whereby the property owner promises to live "continuously" in the either the main home or the ADU. I was told, correctly, that if the property was sold, the new owner could not rent out both the home and the ADU. But my question was intended to be a bit more probing: believe the ordinance allows ADU's to be developed in ways that would not be allowed for a normal dwelling unit on a residential lot. If a new, or the original, owner decides to cease using the structure as an ADU and instead begins treating everything as part of a single dwelling, do the parts inconsistent with R-1 standards need to be removed? Or does building something as a ministerially -approved ADU provide a surreptitious way to exceed the normal R-1 standards? Item 6. Resolution No. 2019-11: Revised City Council Policies F-3, F- 4, F-7, F-8, F-11, F-13, F-14, F-15, F-25 and F-28 I do not feel the presentation to the Council of large packages of policy changes like this serves the City well. It gives most of the other Council members, and the public, little time to give the changes the individual attention they deserve, particularly when they are part of a 1,369 page agenda packet, as they are here. Placing the entire package on the consent calendar, where it will adopted with no public discussion, seems particularly problematic. In short, this is how the Council approved a Policy A-1 without quite knowing what they had approved. The City Manager's Insider's Guide assures us this particular package of policy changes is being presented to the Council "following a detailed review" by the "Finance Commission" [sic]. That review took place primarily at the Finance Committee's December 13, 2018, meeting, with the recommendation on the F-7 policy continued to the January 17, 2019, meeting, but with no further Committee member discussion of it at that time. Unfortunately, no record of the December 13 meeting is currently available to the public online. It would seem good for the full Council to know if there was any dissension within the Committee on any of the policy issues. Among the comments I made to the Finance Committee during their review is that a number of these Council policies refer to "administrative policies" established by the City Manager. While the authority to establish such internal policies is among the powers given to the City Manager in City Charter Section 504, 1 believe it would be useful to both the Council and the public for all administrative policies to be posted in place where they can be seen. I do not believe they currently are. February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 8 F-3 Budget Adoption and Administration Per staff report page 6-2, five substantive revisions are being proposed. The minutes of the December 13 Finance Committee, if they are ever posted, will reveal that most of the public discussion of Policy F-3 came, confusingly, under the heading of Policy F-4. In the Committee's public discussion much time was spent on whether the word "Checklist" in "Budget Checklist" toward the end of Section C (staff report page 6-13) was appropriate. The Committee directed "staff to develop language that would reduce confusion." No such new language is being presented, and instead the full Council is being asked to approve the word the Committee objected to. The Committee also, at the Mayor's suggestion, recommended that "the approved City budget be posted online by a specific deadline each year' and "suggested this item be placed under Policy F-3, Section C." No such deadline has been added, that I can see. Beyond that, I do not agree with what purports to be the Committee's recommendation (per staff report page 6-2) that it should make no recommendations regarding the CIP proposals in the budget. The reasoning that such recommendations are precluded by the Council's decision- making authority over CIP choices seems fallacious to me. The Council has the final decision- making authority over all the items in the budget, and the Committee's analysis of the costs and benefits of the seems like important input for the Council and the public to consider. I do like the suggestion of requiring Council approval of donations of $10,000 or more that carry with them a maintenance obligation. The City Arts Commission is currently struggling with what to do with a 1986 sculpture donation whose current maintenance cost is close to, if not in excess of, the donation's original value. As to the first section, if it is now going to be called "Budgeting Philosophy," then deleting the existing language about "The budget shall incorporate a results -based budgeting approach that allows the public and the City Council to prioritize City expenditures strategically aligned with core community values," seems like it is eliminating much of the core philosophy. F-4 Revenue Measures Public discussion of this was extremely limited. On staff report page 6-19, in the third line of "E," where it says "The purpose of the review of the Finance Committee shall will be to ...," I would suggest the Council select either "shalf' or "wilt' (but not both), although I personally think "is" would be better. I might also suggest that earlier in the same phrase, "by' would make more sense than the second "of'. F-7 Income Property The proposed new name of this policy is actually "Income and Other Property." I attempted to suggest "Income from City Property" would be a more descriptive title, but the suggestion went nowhere. February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 8 Section J (staff report page 6-13) seems to give the City Manager very broad and ambiguous contract approval authority in questionable compliance with City Charter Section 421. And the considerations of Section K, it would seem to me, should come into play when the sale of any City property is being considered, not just those that are currently producing income (as the proposed phrasing suggests). F-8 City Travel Policy Statement The draft minutes from December 13 indicate that when Finance Committee discussed this policy, one of the members "inquired if the City had a continuity of City government policy" and the City Manager "confirmed she would research the matter and return to the Finance Committee with any related information." Since the last section of this policy, both before and after revision, is entitled "CONTINUITY OF CITY GOVERNMENT POLICY," this suggests the current policies and proposed changes were not carefully reviewed by those recommending the changes be approved. I personally don't think this policy is well understood, particularly by the City Council, even though it implements changes required by the 2005 statue that initiated the requirement for local government ethics training (AB 1234). Those requirements, currently found in Gov. Code Sections 53232 - 53232.4, prohibit compensation for travel by Council members unless events qualifying for such compensation have been publicly stated in a policy or by explicitly approved at a public meeting prior to the travel, and the results of travel publicly reported at the next regular meeting. Section "A" of the current policy does not clearly specify any qualifying activities, but instead says they have to be "approved." Allowing staff to privately "approve" Council travel, as this policy appears to do, is clearly inconsistent with the idea that the Council's compensation has to be approved by the Council itself at a public meeting. That said, I like to see the reviser attempting to remove the word "shall" from the policy, because that word is used incorrectly in so many City documents. However, in this case, "shall" was actually the appropriate word to use in some of the instances, as in "The City Manager shall adopt and enforce administrative procedures ..." (staff report page 6-66). As I understand it, "shall," when properly used, means someone is given the power and duty to do something, as is the case there and in "A" on the next page. I have not, myself, reviewed the above policies in any depth, and do not anticipate having time to review the remaining ones before the 5:00 p.m. deadline for submitting comments on this agenda. I would note that Policy F-14 ("Authority to Contract") is a very important one, which had separate discussion at the December 13 Finance Committee meeting. This implements City Charter Section 421 (which allows limited exceptions to the general rule that the City Council is the only body authorized to bind to the City to contracts). I feel the authorizations allowing Department Heads to award contracts up to $75,000, and the City Manager up to $120,000 — on the theory they are for money publicly appropriated by the City Council — are too high. These February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 8 signing limits were raised some years ago when the threshold in City Charter Section 1110, for requiring competitive bidding on public works contracts, was raised from $30,000 to $120,000. There was no particular logic to this at the time, and there still is none. The requirement for competitive bidding is simply part of the required process by which a particular class of contracts is brought before the Council for consideration. It does not mean staffers should be allowed to award contracts for lesser amounts without Council (and, therefore, without public) oversight. Among my concerns, the policy does not make clear that the funds being committed are "in" the Council -approved budget, in part because exactly what the Council -approved budget amounts were requested for is rarely clear. Item 7. Resolution No. 2019-12: Formation of a City Council Aviation Ad Hoc Committee to Review the Roles & Responsibilities of the Aviation Committee I appreciate the Council formally creating this committee and publicly appointing members to it. Other ad hoc committees, in recent years, seem to have appeared out of thin air, with little or no public knowledge of their existence, let alone who is on them. In particular, the three members in question here seem to have previously been "appointed" by City staff to interact with staff on airport issues. Having the group appointed by the Council, and having its function publicly -defined, seems much more appropriate. I am not sure how the committee will proceed, but I would hope it will discuss its recommendations with the Aviation Committee before bringing them back to the full Council. That said, I do not think the Aviation Committee as it presently functions, with its infrequent meetings and little or no materials to review in advance, is very effective. Item 11. Contract with Arts Orange County to Manage Phase IV of the Sculpture Exhibition in Civic Center Park This seems like a very ambitious schedule. The previous contract with Arts OC, approved by the Council on April 11, 2017 (Item 20), resulted in sculptures being selected and installed by October of that year (the grand opening was on October 28, 2017) — a period of six months. The present contract (staff report page 11-17) calls for installation in June, just four months from now. One difference seems to be that the Call for Artists, which is something we will be paying the contractor to manage (per staff report page 11-17), has been initiated before the contract has been approved or signed. February 12, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 8 Item 13. Confirmation of Appointments to the General Plan Update Steering Committee This is an extremely disappointing item. I thought the Council was committed to a transparent General Plan Update process, open to hearing and responding to fresh ideas. The present action contradicts that commitment. The staff report tells us 39 people volunteered to serve on the five -member Steering Committee, but it does not tell us anything about them — not even the names. We are also told some of the applicants may have been interviewed — or they may not have been. The staff report leaves us hanging. If any were interviewed, those interviews apparently took place in private, since no public announcement of interviews was made. We are also told the Mayor reviewed the recommendations of a Council sub -committee. But we are not told what those recommendations may have been. In short, there is absolutely no explanation of how these selections were made or why the remainder of the Council should confirm them. And the selections themselves are the tired and true, same -old, same -old -- including a four - member majority that was so tone deaf as to bring us the failed General Plan Update of Measure Y in 2014. 1 urge the Council to reject this entire group. If the Council is truly committed to reaching out and listening to the great mass of uninvolved in our city, then it seems clear to me they would be best served by appointing a committee of five people whose names none of us have ever heard before, selected based on their applications and interviews. RECEIVED AFTER AGENDA PRINTED February 12, 2019 Item SS2 February 12, 2019, City Council Item SS2 Comments The following comments on items on the Newport Beach City Council agenda are submitted by.. Jim Mosher (j immosher(@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS2. Beacon Bay Home Owner's Association Proposed Rate Change to Current Lease At least on its face, this is one of the most hilariously self-serving requests I have seen in my several years of council watching, on a par with the mooring permitees' pleas for the Council to preserve (through the private resale of mooring spaces) their ability to profit off others' desires to use the public waters, and the increase in its value. Since the Council looked favorably on the mooring permitees' plea, I have no idea what its attitude toward this one will be. I do see staff engaged Keyser Marston Associates to perform a very intricate analysis of the Home Owner Association's claims. Despite the assurance in the staff report that "There is no fiscal impact related to this study session," I doubt Keyser Marston produced their report for free. Although not mentioned in the staff report, I see that at the Council's June 12, 2018, meeting (under Item XIII), four Council members agreed to have staff put a discussion of this matter on a future agenda. I do not recall this Council ever giving staff direction to hire anyone to evaluate the HOA's proposal, but wherever that direction came from, I am disturbed that any public funds have been spent (via the staff -originated on-call contract C-7059-1?) to establish the completely unremarkable conclusion that (despite the HOA's claims to the contrary) slashing rents does not increase revenue. How much did the analysis cost, and did the HOA agree to pay for it? The HOA is asking not only for a 2.5% rent rate to be reduced to 1 %, but also for all the inflationary increases that have been added to existing rents to be eliminated, and no future inflationary increases imposed. The theory seems to be that even at 1 % (that is at 1/2.5th or less of the current rent) the rent is still so vastly over market that when a property sells, and the rent is reset using the sale price, the City will realize a windfall so large as to offset all the other leasees paying their tiny years -ago rents (referred to as the "waterfall effect" in the HOA's proposal). In other words, even at 1 % the new owner is really going to get soaked and make up for the others. But one has only to look at the HOA's own spreadsheet to see that by their projections over the next 19 years the value of bayfront homes will increase by 2.5X while the rent the City receives for use of the land under them will increase by only 1.3X. Much as I appreciate their analysis, I don't think we needed Keyser Marston to tell us there is something drastically wrong with that picture — or that the rent received at 1 % with no CPI increases will be less than the rent collected at 2.5% with CPI increases. As best I can tell Keyser Marston does not address the HOA's contention that slashing the rent charged for the land will increase the resale value of the private homes, thereby generating increased property taxes to the City when homes are sold, which, the HOA says, will more than offset the lost rent. Shifting the land value into the home price would obviously be a very nice February 12, 2019, City Council Item SS2 Comments - Jim Mosher Page 2 of 2 deal for the existing homeowners, not only giving them a right to occupy the public land for as long as they like at much less than its true value, but also allowing them, like the mooring permittees, to privately pocket the increase in the public land's value when and if they choose to sell. Unfortunately, the reasoning that this benefits the City fails to recognize the City's obligation under the Beacon Bay bill, and as a fiduciary for the state, to collect fair market rent for private use of the public's lands and deposit those rents into a special fund dedicated to tideland purposes. Increased property taxes going into the City's General Fund would do nothing to fulfill that tidelands obligation. As to the letter from the State Lands Commission, I hardly think they will accept the HOA's assurances as an "ironclad and indisputable justification and rationale to prove that the reduced amount reflects fair market value." And I think it is the HOA's obligation, not the City's, to provide and pay for that evidence. To me, if the rent currently being charged for the land in Beacon Bay were not fair, people would not be buying homes there. I do not believe that is the case. Indeed, I suspect people would be buying Beacon Bay homes even if the rent were higher. The HOA's theme of eliminating inflationary increases in the rent in the absence of a sale (on the theory that because of the occasional sale, Beacon Bay as a whole will be in compliance) is likewise fundamentally at odds with the City's continuing obligation to collect fair market rent on the individual parcels. Finally, in connection with collecting the current fair market rent, one has to ask if the "consumer price index" (CPI) is really the right correction to be making. Isn't there an index that more accurately reflects increases in land values? In addition to the concerns mentioned above, it should be mentioned that the City has gotten in trouble in the past over its administration of the Beacon Bay properties, and has had to dedicate additional properties to the public trust to compensate for lost revenue (see, for example, Item 34 from December 14, 1998). The 1994 leases were apparently a result of that mis- administration, and from the current staff report and the Keyser Marston analysis it sounds like there are some pre -1994 legacy lease holders who have never had their rents adjusted for inflation, and who would not find it advantageous to switch even to the 1 % suggestion. Quite apart from the issue that is the subject of this study session, Beacon Bay has public access issues. I don't think the public nature of its beaches is widely known, or advertised in any of the City's literature. Formerly, the entrance from Harbor Island Drive had signage strongly suggesting to the public that it was a private enclave. On Boat Parade nights, the entire public area is blocked by security guards and apparently confined to use by residents and their privately invited guests. Beacon Bay still has a fence and gate separating it from the City's adjacent public marina (also on state tidelands). The gate allows people out, but not into those beaches, or onto the public roads, without a code.