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HomeMy WebLinkAbout00 - Written CommentsRecieved After Agenda Printed August 8, 2017 Written Comments August 8, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( limmoshe1Dyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the July 25, 2017 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are from the draft minutes with suggested corrections shown in strikeout underline format. Page 325: Item SS6, paragraph 1, sentence 1: "Municipal Operations Department (MOD) Director Murdoch provided the staff report, ..." Page 325: Item SS6, paragraph 2, sentence 1: " MOD Director (MOD) Murdoch answered Council questions..." Page 331: Item VII, paragraph 3: "Jim Mosher ... requested ... resolution titles be read similar to ordinance titles." That is not actually what I requested. Instead, I noted that the City Charter formerly allowed, as it still does for ordinances, that the titles of resolutions could be read in lieu of a reading of the full text — the implication being there was a clearly defined text that could be read back to the Council and public prior to adoption if so requested. I further noted that in recent months the Council has exhibited an increasing pattern of adopting resolutions with sometimes vague directions to staff to alter the printed text seen by the public prior to the resolution being signed by the Mayor on behalf of the Council. I requested the Council return to the prior practice of, as with ordinances, not allowing the Mayor to sign any resolution unless the precise text had been clearly exhibited and approved at a public meeting. Only in that way does the public know the Mayor is signing what the Council agreed to. In former times, any alterations to the text of a resolution printed in the staff report were shown on a screen or read out loud for all to see/hear, or when more extensive changes to the text were desired, the new text was brought back for review and approval on the consent calendar at the following meeting. That was a better and more transparent system than we have now. Page 333: Item 19, paragraph 1: "Senior Planer Planner Murillo discussed the change in State law, different types of ADUs, ADU standards based on type, and the recommendations." Page 333: Item 19, paragraph 2: "In response to Council questions, Senior Planer Planner Murillo and Assistant City Attorney Torres provided information ..." Page 334: paragraph 4: "In response to Council questions, Community Development Director Brandt and Planning Manage Senior Planner Murillo reported..." August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 8 Item 3. Second Reading of Ordinance No. 2017-11 Establishing Regulations Regarding Accessory Dwelling Units (PA2017-069) I should perhaps apologize for not having been able to provide written comments when the ordinance was presented for first reading and the text could have been easily altered. But to repeat comments I made to the Planning Commission in June: 1. 1 think the two parts of Section 1 of the ordinance (bottom of staff report page 3-5) are unartfully written. a. Section 1.A, as written, seems to give the impression that on each R -A lot one must choose between a single-family residential dwelling unit, an accessory dwelling unit or a light farming use (that is, "pick one of each lot"). I believe it was meant to say one can simultaneously have up to one of each. b. Section 1.13 has the same problem, but in addition contains a misplaced semicolon and the mysterious phrase "a range of (of unknown significance since it is not found in Section 1.A). Likewise, since 1.13 says it "does not include condominiums or cooperative housing," while 1.A does not, it is not clear if this is meant to imply 1.A does allow condominiums and cooperative housing. 2. 1 think Section 6.C.2.b (on page 3-7) is incorrectly written. To me, it says that when an ADU is built above a garage, it must be constructed in such a way as to be set back no more than five feet from the property line. I believe what was intended is that a setback may be required, but the requirement imposed by the City may not be more than five feet. In other words, the builder can set the ADU back any amount they want, but the City cannot force them to do so by more than five feet. That is quite different than requiring the builder to set the ADU back less than five (as it presently seems to say). 3. 1 am pleased the authors felt free, in several places, to write numbers without repeating them in words, and vice versa, although in at one place they revert to the City's odd practice of writing both, as in "five thousand (5,000)" on page 3-7. Item 4. Second Reading of Ordinance 2017-12 Establishing a Pilot Program Allowing A -Frame Signs in Lido Marina Village (PA2014-054) Section 1 of the ordinance implies that Map A-5 in Section 20.80.010 of the Newport Beach Municipal Code depicts the MU -W2 zoning districts in Lido Marina Village. In fact, that map seems merely to define the area to be known as "Lido Marina Village." One has to look elsewhere (specifically at the Zoning Map of Chapter 20.14) to discover that the parcels indicated on Map A-5 are all zoned MU -W2. While Map A-5 presumably shows the "correct" (for purposes of the A -frame program) definition of "Lido Marina Village," it might be noted that Map A-5 defines "Mariner's Mile" as only a subset of the "Mariners' Mile" that was the subject of the recently suspended revitalization effort. August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 8 2. Since the online NBMC clearly indicates A -frame signs are prohibited in this area, will there be a note added to the online text to inform readers of the suspension of the prohibition during its one-year life? Item 5. Non -Exclusive Solid Waste Franchises The "Draft Non -Exclusive Franchise Agreement for Commercial Solid Waste Handling Services Template," referred to on staff report page 5-3 as "Attachment B — Exhibit A to Attachment A" even though it appears to be an integral part of the proposed Resolution No. 2017-52 and is not referred to in that as Exhibit A, is a complex document of 60 pages, and given the 809 other pages of the present Council agenda packet I do not pretend to have studied it carefully (or even read most of it). Looking at the first few pages: Section 3 of Resolution No. 2017-52 (staff report page 5-5) refers to "the City's Source Reduction and Recycling Element," which is explained on page 5-18 as "the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code." Where can the public (or the franchisees) find the City's SRRE, and is this something actually reviewed and adopted by the City Council? Per Resolution No. 95-93, the City seems initially to have deferred to the County's Integrated Waste Management plan which appears to have incorporated a SRRE submitted to the County by City Resolution No. 92-8, although where the County plan might be is not at all obvious. Is that still the case or does the City have a more recent SRRE, and how was it approved? 2. Recital E on staff report page 5-7, by its use of the word "between," appears to inform franchisees that the obligation of certain businesses "to participate in a [organics] diversion program" is limited to the period "between April 1, 2016 and January 1, 2019." 1 believe the business' obligation to participate begins on a date in that range, but never ends. So I suspect this was meant to say "AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program starting on a date between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated." 3. Recital I on staff report page 5-8 seems to respond to the Council's direction on June 27 that franchisees do not need to offer all categories of waste collection, but the use of the term "and/or" leaves a bit uncertain the exact menu of options a hauler must make available. On page 5-2, the staff report refers the Council to Exhibit C, but the only menu provided in Exhibit C (on page 5-55) seems to be the option to request a franchise for "Tier I (Mixed Solid Waste)," "Tier II (Construction & Demolition)," or both. It is not clear one can select instead just "green waste" or "recyclables." 4. In view of the uncertainty about what services a franchisee is obligated to provide, Recital J on staff report page 5-8 would be easier to read, and add less confusion, if it said simply: "Pursuant to this Agreement, City desires to authorize Franchisee to provide those non-exclusive commercial collection, transportation, delivery, and disposal August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 8 or diversion services for reGyGhhh materials food Grapy green waste waste,GonstruGtion and demolition debris, and muniGipal solid as requested in Franchisee's application and for which Franchisee has demonstrated capability." 5. Skipping ahead to staff report page 5-66, the "Responses to Issues" indicates a "customer bill of rights" was removed from the "draft franchise agreement." Since, to the best of my knowledge, the general public did not see the draft franchise agreement, it would be interesting to know exactly what was removed (beyond what can be gleaned from page 5-66). 6. The provision on staff report page 5-69 that the franchises will have "two (2) one (1) year automatic extensions that may be terminated in City's sole and absolute discretion" seems to be in conflict with the promise on page 5-2 that "The proposed franchise term is three years in length with the possibility of two one-year extensions if the hauler meets all franchise responsibilities." If the extensions require review, discretion, and a finding of good behavior, they should not be said to be automatic. 7. On staff report pages 5-70 to 5-71, 1 notice there are 38 haulers in the list of anticipated applications, even though line 1 on page 5-2 says there are currently 37. Is one company being added to the current list? And is the current list being otherwise changed? Item 6. Resolution Amending the Capital Improvement Program Budget to Include Funding from the Road Repair and Accountability Act of 2017 (RMRA) and Budget Amendment No. 18BA-002 Since the MacArthur/University pavement rehabilitation project is already in the approved CIP for FY18 as Project 18R23, it's not clear to me from the staff report, or the report to the state, what new elements, that would otherwise not have been constructed, are being added as a result of the RMRA funding. In other words, why is extra money needed for repaving the same streets as previously planned? That is, how is it being used to supplement what was already planned, as eligibility for the RMRA program seems to require? Item 7. Big Canyon Reservoir Flow Metering Vault and Treatment Improvements - Award of Contract No. 6104 (16W13) The Funding Requirements section (staff report page 7-2) cites expenses to "Water Enterprise" and "Water Capital NMP." One hopes this project is being entirely paid for by the City water customers it benefits (including me), so one hopes "Water Capital NMP," whatever that stands for, falls under the greater Water Enterprise umbrella? That said, it might have been helpful to recap the anticipated total cost of the effort, including prior expenditures since the project was started in Fiscal Year 2016, what that translates to in terms of cost per customer, and why the improvements are important. That is, how will the customers benefit from improved metering of the flow out of the reservoir and more efficient chemical mixing? August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 8 Item 8. Amended Final Tract Map No. 17772A and Amendment No. One to Subdivisions Agreement for 81 -Unit Residential Condominium Development Located at 1560 Placentia Avenue The 95 page staff report indicates the amendment "corrects a map error or omission as approved by the county surveyor or city engineer." Nowhere in the 95 pages is it immediately obvious to me what the error was, how it arose, where it is on the map or what the corrections proposed to compensate for it are. All I can find is it has something to do with a curb somewhere. Item 9. Irvine Avenue Pavement Rehabilitation Project - Approval of Professional Services Agreement with Stantec Consulting Services, Inc. (17R21) The difference of 2 points out of 300 in staff's rating of the top two competing firms would seem so slight as to give the Council no compelling reason to choose one of those companies over the other, particularly without any clearer disclosure of who awarded the points or what their reasoning was. If staff found no significant difference in qualifications, one would think the Council would want to inquire into whether there is a price differential between the two and base its decision on that. It is also not clear what role the Costa Mesa City Council should have in this decision if their city is expected to share the costs. If I understand the staff report, the Newport Beach City Council is being asked to commit to a $198,188 contract with the expectation that Costa Mesa will be happy with our choice and pay for the work related to their side of the street. Whether that's realistic or not I don't know, but since the staff report leaves vague the development of a "cooperative agreement," this seems to highlight the absence of the joint agency "borders issues" committees that once existed and met regularly. Item 11. Approval of Amendment No. 1 to the Professional Services Agreement with Willdan Engineering for On -Call Transportation Engineering Staff Services The staff report leaves unclear why staff would have so grossly underestimated the scope of a contract awarded little more than a year ago. The original $120,000, it says, has already been nearly exhausted, and another $150,000 (more than the original amount) is needed to complete the anticipated work. Not to be cynical, but it appears the contract was originally awarded without public scrutiny by choosing an amount that did not require City Council approval, and now with the contract locked in, Council is being asked to acknowledge a more realistic amount, which if originally disclosed would have required a more public competition and Council approval. Some might call that "gaming the system." August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 8 Item 12. Approval and Award of Agreement to Zebron Contracting, Inc. for As -Needed Sewer Manhole Lining Services Since this is a three year contract, the statement under Funding Requirements that "The current adopted budget includes sufficient funding for this agreement' does not seem entirely accurate. The current budget actually contains only $75,000 for this purpose, which is only enough for the first year of this $250,000 contract. So the statement seems to assume similar and sufficient funding for it will be budgeted in future years, which might, in some way, depend on the success of the pending, but not yet certain, sewer rate increase. Item 13. Request for Waiver of City Council Policy L-6 at 2209 Private Road I have a personal interest in this minor item as it involves a property across the street from my own, and a wall that I am looking at as I write this. What I find most surprising about the item is that if I were not an avid reader of Newport Beach City Council consent calendars, I would have known the matter was before the Council. Apparently in this and other Policy L-6 waiver matters (that appear fairly frequently on the Council agenda), the City is in effect holding a public hearing without telling the public it is doing so. In the present case, I posted a message on our street's electronic bulletin board so nearby residents would at least know the item was on the Council agenda, but I would think that in the interest of efficiency and equity, Policy L-6 should be amended to require at least a simple physical posting of the property so those who might have an opinion about the matter would have an opportunity to make their views known to the decision making authority prior to the decision, rather than some years after. Regarding the substance of this particular matter, the statement in the staff report that "Public Works has no records of the date of construction of the wall" seems slightly strange in that the City's online permit archive for 2209 Private Road easily yields aep rmit from July 11, 1960, for what looks like 65 feet of an up to 6 foot tall block wall — although in the absence of a drawing that could possibly be for a different wall. The staff report asserts that the existing retaining wall in front of 2209 extends roughly 1 foot into the public right-of-way, but I feel that may be an exaggeration, since it is unclear what that 1 foot estimate is based on other than a measurement "from the back of curb." It might be pointed out that he original map for Tract 2513, from November 14, 1958, indicates plans for a 56 foot wide sloping entry road (the public right-of-way) from Irvine Avenue, which to clear seems to have required construction of retaining walls on either side. The measured width from wall to wall at what appears to be the point of greatest contention is a little over 55' 8", so the actual layout is quite close to what was planned, with the combined total intrusion into the promised public space no more than 3 to 4 inches. To the extent an encroachment agreement is needed for 2209 and 2202, 1 can support the staff recommendation since it would seem extremely overbearing of the City to ask the owners, who August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 7 of 8 are friends and neighbors of mine, to demolish and reconstruct their walls to recover less than 2 inches of public space on either side of the road. Moreover, staff seems to assume this segment of Private Road was laid out with a 36 foot curb to curb width and a symmetric 10 foot City buffer beyond that on either side. But the measured width from back -of -curb to back -of -curb is actually 37 feet, so if staff's measurements assume the back -of -curb corresponds to a 36 foot width, they are clearly erroneous. In other words, it seems possible it is the street or curb, rather than the wall, that is in slightly the wrong place, or the measurements that are slightly off, or both. In addition, even if the walls do intrude a couple of inches into the public space, the walls have never materially impeded public access, in part because the sidewalks abutting the retaining walls are several inches wider than the 4 foot standard elsewhere on the street. What has impeded public access, historically, has been the vegetation that has sometimes been allowed to grow on the walls. And while the Council is being asked to excuse only the possible intrusion of the walls into the public -right-of-way, it might be noted that in modern times an additional private open space is expected beyond the public/private border in most Newport Beach front yards as detailed in NBMC Section 20.30.040. One assumes compliance with those provisions is not a problem here, for if the code required a total reconstruction of the walls, whoever's property they were on, then it seems strange the staff report would not apprise the Council, and owners, of that. Beyond that, the agenda announcement contains a recommendation which if adopted by the Council as written would say "...; or d) Provide other direction to staff." That is really not appropriate recommendation for a consent calendar item. For it is always understood that the Council can disagree with staff and ask for any item to be brought back in a different form. But if staff has a recommendation they think is non -controversial, it is that recommendation, and not a request for a recommendation, they should put on the agenda. Finally, while much is being made of this likely very minor encroachment, it appears that Policy L-6, like many City Council policies, contains its share of provisions that are seldom enforced. note, for example, that per clause number 7 at the top of staff report page 13-8, "an encroachment permit and if applicable an encroachment agreement" is required to have a mailbox in a public parkway. Every house I can think of on Private Road, including mine, has such a mailbox, but I sincerely doubt any of us scofflaws could find the supposedly required City paperwork for it, or has been cited for not having it. August 8, 2017, Council Consent Calendar Comments - Jim Mosher Page 8 of 8 Item 16. City Position in Opposition to SB 54 (de Leon), Relating to Law Enforcement Cooperation with Federal Immigration Officers While attempting to influence legislation is a legitimate function of city councils (and less clearly of city staffs), I am always a little uncomfortable when a letter stating "the City's" position on a controversial issue is authorized, since it may or may not reflect the sentiment of a majority of the city's residents. In the present case, it is not entirely clear to me if the urge to want to make a statement about this particular legislation arises from City staff or from the City Council, and why, of the hundreds of bills before the state legislature and the many before Congress, this particular bill rises to the level of demanding a "City position." While I appreciate the carefully nuanced comments prepared by the City Manager and Police Chief, it seems to be the City Council that is being asked to approve the text, and not knowing how a majority of the public feels about it, I would feel more comfortable if this letter was signed by the Mayor and said it was stating the City Council's position on these issues, rather the City's (implying to most, the opinion of the people who live in the city). That said, it might be noted the letter says the NBPD does not want to become an agent of immigration enforcement, yet the various supposedly neutral analyses of the bill by the state legislative offices (which make interesting reading) suggest it is being offered in response to a perceived threat that federal funding may at some time in the future be cut off to local agencies that do not voluntarily enforce federal immigration laws. That is a point which is not evident from the City's staff report, even though the letter suggests Newport Beach staff would not want to be forced into becoming an immigration enforcement agency. While SB 54 may not be the best way to avoid the possibility of such future coercion, stated purpose of the bill is a point the Council may wish to consider in weighing its response. And assuming that like most things in life SB 54 has both good and bad features, the letter might also suggest improvements to the bill, rather than simply opposing it. However that may be, if the Council does approve the letter, I would respectfully suggest the last sentence of the long paragraph near the end of staff report page 16-4 would read more smoothly if it said: "Even during targeted immigration operations, this may result in more collateral detentions — where undocumented individuals at the scene of an arrest aid who were not the initial targets are detained by ICE." Similarly, if the letter were to come from the City Council rather than the City Manager, some other minor textual changes would be needed.