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HomeMy WebLinkAbout12 - AB 2464 (Harper) - CorrespondenceReceived After Agenda Printed March 27, 2018 Item No. 12 March 27, 2018, City Council Item 12 Comments The following comments on an item 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 12. AB 2464 (Harper), Professional Services Agreement with Schmitz and Associates, Budget Amendment This is a supplement to the written comments I submitted regarding the similar Item 16 on the Council's March 13, 2018. As a general comment, it is disturbing this item continues to be discussed at supposedly "open" and "transparent" public meetings with no indication on the agenda that a proposal for a "Port Master Plan" is going to be discussed. Without obtaining and reading the staff report, nothing in the Item 12 caption copied above, or in the verbiage that appears under it on the agenda, would lead anyone other than an insider to know that, or to even think the item had anything to do with the harbor. However that may be, staff's recommendation has five parts, and I would like to comment on three of those: b) Authorize the Mayor to send a letter to Assembly Member Matthew Harper in support of AB 2464 or a similar Harper bill; 1. Assuming Newport Beach has no intention of actually becoming a commercial seaport, this legislation is poorly conceived. 2. To correct my previous comment, the phrase in Pubic Resources Code Section 30700 saying Port Master Plans are inapplicable to "any wetland, estuary, or existing recreation area indicated in Part IV of the coastal plan" is not the show stopper I thought it was. The reference is to the California Coastal Zone Conservation Plan presented to the legislature in 1975 by the temporary California Coastal Zone Conservation Commissions created by 1972's Proposition 20. It turns out none of Newport Harbor south of the Bay Bridge was mapped in any of these ways in the "coastal plan." More specifically, although the water area north of the bridge is mapped as "wetland/estuary," the lower part oceanward of the bridge is shown simply as an extension of the Pacific Ocean. 3. Despite this, adding "Newport Beach" to the list of ports in PRC 30700 does not, of itself, create a "Port of Newport Beach." That is normally done pursuant to one of the mechanisms found in Division 8 of the Harbors and Navigation Code, or by extensive special legislation, as was done in the case of the San Diego Unified Port District or even the Humboldt Bay Harbor, Recreation, and Conservation District (note: the latter may have a Port Master Plan, as does Port San Luis, but as explained in Section 7.1.1 of the Introduction to the Humboldt Bay Management Plan, it does not give them Coastal Development Permitting authority). All of these mechanisms require drawing a boundary and obtaining the consent of the voters who would reside in the new district, which would likely have its own governance independent of the City Council. March 27, 2018, Council Item 12 Comments - Jim Mosher Page 2 of 3 4. Even if adding "Newport Beach" to PRC Sec. 30700 created a new port, doing so would be in conflict with the legislative findings of PRC Sec. 30701(b) that the purpose of Chapter 8 and Port Master Plans is to limit heavy commercial maritime activity to the named locations identified in the aforementioned 1975 Coastal Plan. 5. Assuming Newport's Harbor does not wish to join the list of heavy commercial seaports, but still wants greater local control, a much more rational approach would be to seek to amend the Coastal Act to allow transfer of permitting authority over public trust lands to local agencies' LCP's upon certification of a new document called something like a Harbor Master Plan (for primarily recreational harbors, like Newport Beach and many others). Since the purpose of this would not be to confine "port" activity, and since it conflicts with the Coastal Act's basic precept that state control of public trust "lands" is required to protect statewide interests, the rationale would presumably have to be that it would reduce the administrative load on the Coastal Commission. c) Authorize the City Manager to execute a Professional Services Agreement with Schmitz and Associates, including work with Henschel Government Affairs, with a not -to -exceed amount of $120,000; 1. As mentioned in my previous comments, this is a terrible contract for many reasons. 2. It is now even worse than it was on March 13, for the Council is now being asked to award a $32,000 signing bonus, apparently for unexplained work already performed by Mr. Schmitz. 3. This is in questionable compliance with Article XI, Sec. 10(a) of the California Constitution, which suggests the public should be able to trust municipal services will be provided at a price agreed to before work is performed, not after. 4. In addition to promoting himself, the $32,000 is apparently a reward for Mr. Schmitz' hastily -conceived suggestion that adding the two words "Newport Beach" to PRC Sec. 30700 (at the rate of $16,000 per word) will solve Newport Beach's problems. 5. If I were to point out with equal haste that for Mr. Schmitz' scheme to even be plausible, the existing PRC Sec. 30112 would also need to be amended to read something like: "30112. "Port governing body" means the Board of Harbor Commissioners or Board of Port Commissioners or City Council which has authority over the Ports of Hueneme, Long Beach, Los Angeles, Newport Beach and San Diego Unified Port District." would the Council consider giving me a retroactive award of $80,000 for suggesting five new words? (at a minimum, the two words "Newport Beach" are needed in this section) 6. More generally, if Newport Beach had a really good and sensible suggestion for local Coastal Act control of recreational harbors, I do not think it should need an outside lobbyist at all. March 27, 2018, Council Item 12 Comments - Jim Mosher Page 3 of 3 d) Identify Council Member Dixon and Council Member Peotter as the contacts to work with staff and Mr. Schmitz and Mr. Henschel on this issue as it progresses forward; 1. This is also a terrible idea. Should the public expect to hear no more of this and leave its future entirely in the hands of the four people named? 2. Per City Charter Sec. 300, Newport Beach is supposed to have a "Council -Manager" form of government. 3. Article IV of the Charter, places control over the City Manager and the administrative staff (through that Manager) in the hands of an elected City Council of seven members acting collectively at open public meetings. It places no power different from that of ordinary citizens in the hands of individual Council members, or in the hands of Council members acting in groups of less than a quorum. It even explicitly prohibits interference, by less than the full Council, in the administration of City matters (Charter Sec. 406) 4. Placing power in the hands of individual electeds would mean that the direction given by the Council in public meetings could be countermanded in private by individual members. And if those individual Council "contacts" are expected to be representing the views of their colleagues, they would have to violate the Brown Act to be sure of that. 5. 1 do not think that is good governance, nor consistent with our Charter. 6. We have already seen the problems associated with this style of management in the present case, where at the March 13 meeting the public saw a majority of the Council direct staff to issue a Request for Qualifications for a legislative lobbyist other than Sean Henschel. According to the present staff report, that direction, and that expectation, appears to have been reversed by the City Manager acting in consultation with the two Council members. While it is good that the Manager is, in this case, seeking confirmation by the full Council of this change in direction, it is a terrible model. 7. The Council should instead be doing its job of setting policy and giving direction clear enough to be followed, and the administrative staff should be doing its job of following it. Finally, and as an alternative to rewriting the Coastal Act, I would think Newport Beach might want to try to work as cooperatively as possible with the Coastal Commission within the existing system. As to residential dredging, I thought our RGP-54 permit system already expedited such projects and had solved, to the extent possible, the "problem" that has been cited in that regard. And as to dock modifications, it appears to me that, with enhanced cooperation and proper noticing and reporting, Coastal Commission staff might be able to handle more of those administratively or with "de minimis" waivers. Newport Beach does, after all, already have a harbor plan (that is, the certified harbor development standards of NBMC Chapter 21.30C) in its LCP.