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Home My WebLink About10 - AB 1196 (Harper) and Contract with Don Schmitz and Associates�� CITY OF Q SEW s NEWPORT BEACH <,FORN City Council Staff Report April 24, 2018 Agenda Item No. 10 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager - 949-644-3001, dkiff(a).newportbeachca.gov PREPARED BY: Dave Kiff, City Manager TITLE: AB 1196 (Harper) and Contract with Don Schmitz and Associates ABSTRACT - Following the Coastal Commission's 8-3 vote on Thursday, April 12, to have the Commission take a formal position in opposition to Assembly Bill 1196 (Harper) relating to a Port Master Plan ("PMP") for Newport Harbor, staff seeks the Council's opinion on next steps. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Direct the City Manager to provide the required notice to Mr. Schmitz to terminate the advocacy agreement for AB 1196 and to contact Assembly Member Harper's Office that the City no longer intends to pursue AB 1196, and to report back at a future date with alternatives to a Port Master Plan for Newport Harbor that may achieve similar general goals, including a Public Works Plan or a Master CDP for various in -Harbor activities and projects; or c) Direct the City Manager to discuss with Mr. Schmitz and Mr. Henschel one or more other alternatives to amend AB 1196 and continue advocating for the bill through the bill's first policy committee hearing in the State Senate; or d) End further advocacy and end further pursuit of a Port Master Plan or its alternatives during 2018. 10-1 AB 1196 (Harper) and Contract with Don Schmitz and Associates April 24, 2018 Page 2 FUNDING REQUIREMENTS: The current contract with Schmitz and Associates runs at $16,000 a month and has a 7 - day notice to terminate. The contract has been funded with a budget amendment on March 27, 2018. In an email to me on April 18, 2018, Mr. Schmitz suggested that the monthly retainer would lower to "$8,000 to $10,000 a month .... except for June (which includes Mr. Schmitz' testimony before the Senate Committee) which would be $12,000 (for that month)." DISCUSSION: In recent years, Council members have discussed the concept of a "Port Master Plan" for Newport Harbor, that would be akin to a Local Coastal Program (LCP) for the waters of Newport Harbor. With an LCP, a local community's governing board steps into the shoes of the California Coastal Commission in interpreting the Coastal Act, allowing local residents to avoid following the Commission across the state at its monthly meetings to secure a permit. In effect, having a Port Master Plan may allow the City to process environmental review and permits for modifications, removals, and installations of items like sea walls, private and public docks, mooring cans, swim lines, and more — assuming all of this occurred consistent with the California Coastal Act. Additionally, it could allow the City Council to more effectively manage small dredging projects, especially around private piers. Starting with the Council's planning session on Monday, January 29th, 2018, and then at the Council's evening meeting of Tuesday, February 13, 2018, the Council gave direction to have legislation introduced that would create the Port Master Plan concept in state law. Assembly Member Matthew Harper agreed to introduce the legislation, which is now Assembly Bill 1196 (similar language was included in AB 2464, but now AB 1196 is the primary vehicle for this effort). Assembly Member Quirk -Silva and State Senator Moorlach are co-authors of AB 1196. AB 1196 would essentially align Newport Beach's harbor with other significant harbors, calling out our harbor as a harbor able to have its own Port Master Plan. If the bill become law, the City would then have to develop and submit the Port Master Plan to the Coastal Commission for review and approval, similar to the City's extensive Local Coastal Program effort. Following the Council's discussion of this on March 27, 2018, the California Coastal Commission voted 8-3 to formally oppose the passage of AB 1196. Staff to the Commission suggested that there were other methods that could accomplish some of the City's needs and concerns without amending the California Coastal Act, such as a "Public Works Plan" or a "Master CDP". The Commission's staff report read in part (sections in bold are where I added emphasis): In 2016, prior to the certification of Newport's LCP, the Commission worked with the city to streamline the permitting process for small dredging projects in the harbor that impact eelgrass, an important marine habitat. This was a major efficiency improvement for both the City and the Commission that is working well. At that time, the Commission and the City also discussed the 10-2 AB 1196 (Harper) and Contract with Don Schmitz and Associates April 24, 2018 Page 3 possibility of permitting routine dock work harbor -wide through a "master CDP. " This option would have provided the city with permitting authority similar to what it now seeks through this bill. However, the city ultimately elected not to pursue a master CDP given relatively low demand... Given the Coastal Act mandate to maximize public access and recreational opportunities (PRC Section 30001.5), protect lower-cost visitor -serving opportunities (PRC Section 30213), and maintain the health of marine ecosystems (PRC Section 30230), it is essential for public agencies to carefully balance private and public interests whenever planning new waterfront development. Coastal Commission oversight of waterfront areas is particularly critical, due to the heightened implications for public access, coastal recreation and lower-cost visitor -serving facilities, protection of important biological resources, placement of fill in state waters, and disposal of vital dredge spoils. These are all matters of significant statewide public interest, and should not be wholly delegated to local governments. This was part of the state/local balance struck by the Legislature in 1976, and which remains the fulcrum for California's entire coastal management program. Hence, PMPs are not the appropriate vehicle for cities and counties undertaking development activities in their municipal harbors... The City already has the authority to conduct ongoing dredging activities within a defined area of the harbor under a Commission -issued CDP. The City has the option to amend that permit to address additional needs as necessary, or pursue a Public Works Plan to cover additional activities if they choose to seek additional streamlining measures. At the Council's March 27, 2018 meeting, I said that I would suggest ending the AB 1196 effort and concluding the Schmitz advocacy contract should the Commission oppose the bill, because the Commission's position is taken seriously in various policy committees in the Legislature. However, I rethought that in recent days and believe that it may be appropriate for the Council to at least hear out what the alternatives might be to stopping the process entirely. I still believe that the bill has a tough road ahead with Commission opposition, even with amendments. Options beyond ending the contract and notifying Assembly Member Harper of the City's intention to shelve AB 1196 include - 1 — Push ahead at least to the first policy committee (likely to be Senate Natural Resources in June 2018). This would allow Mr. Henschel to organize possible support from entities like chambers of commerce and more, as well as to secure additional co- authors for the bill. At the same time, Senate Natural Resources is a place where policy opposition by the Coastal Commission is likely to be weighed most heavily. 2 — Amending the bill to attempt to address Commission concerns, as well as seeking additional supporters. Amendments could include: a) Assuring the Legislature and Commission that this bill's intent is not intended to set a precedent with other municipal harbors; b) Allow the Coastal Commission to directly appeal decisions by the City following an adopted PMP. c) Set a defined frequency for review of the PMP by the Commission, such as every five years. Under today's law, once a PMP is adopted, there is no requirement that the CCC has periodic reviews. 10-3 AB 1196 (Harper) and Contract with Don Schmitz and Associates April 24, 2018 Page 4 d) Declare legislative intent that the City recognizes that Newport Harbor is not an industrial port, nor will it ever be one, but due to its unique characteristics, economic importance, and history, it could have its own PMP. Council Member Dixon and Peotter met on this subject via a conference call with me, Mr. Schmitz and Mr. Henschel on Monday, April 16th. Without taking a formal position on continuing with or stopping this legislative effort, the consensus was to develop and show a matrix that attempts to compare what can be done with a Port Master Plan, a Public Works Plan, and a Master CDP. That matrix will be shown as additional materials when complete. ENVIRONMENTAL REVIEW: Staff recommends the City Council find that this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because the adoption of City Council Policy A-3 has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item was noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). 10-4