Loading...
HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED MAY 22, 2018 WRITTEN COMMENTS May 22, 2018, City Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the May 8, 2018 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in cr°�4, �ut underline format. The page numbers refer to Volume 63. Page 501, line 2: "In response to Council questions, Chairman Kenney reviewed the rule for vessels to have personal floatation flotation and sounding devices, emphasized the need for proper safety education and expanding the safety language in the rental agreement." [although seen by some as an acceptable variant, "floatation" is perceived as a misspelling by many] Page 502, paragraph 3: "Dorothy Larson, Chair of the Newport Beach Public Library Foundation, stated the Foundation board supports the proposal and discussed Perkins and Will Perkins+Will's involvement." Page 502, paragraph 4: "Jim Miller, President of the Newport Island Homeowners Association, complimented staff and believed the Peninsula wants the Lower Sunset Ridg View Park pedestrian bridge installed to maximize park use." Page 502, paragraph 3 from end, next to last line: extraneous comma better "directors" and "Mike". Page 503, first line: "needed, and explained the budget and contracts from the previous year, the desire the to maximize the existing mooring rentals, ..." Page 508, paragraph 4 from end: "Mayor Pro Tem O'Neill expressed his objection with the weekday operating hours since there are schools in close proximity to the faGility facilities." Page 510, paragraph 2 before Item XXI: "Council Member Herdman indicated he made a mistake, apologized, and assured Council this will not happen again and he will be more cautious." [Note: My interest piqued by the strong rebuke delivered to Council member Herdman by the Mayor Pro Tem, I requested copies of the emails in question and was unable to find anything in them improperly disclosing any substantive privileged information. One appeared to be advice from Council member Herdman to (rather than from) the City Attorney. The other simply relayed the information that the City Attorney planned to respond to a matter, without revealing what the response would be. I was unable to see the harm in those.] May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 2 of 9 Item 3. Council Policy Manual Update: H-1 Harbor Permit Policy I respect the authors of the staff report, but this doesn't seem to me to be a particularly well thought out proposal. Resolution and Ordinance Should be Consolidated 1. Putting pieces of regulations in different places is generally to be avoided, unless there is some particularly good reason for doing so. 2. An example might be an ordinance referencing a fee schedule the Council might want to change frequently by resolution (although even then the reason for separating the two is not obvious). Another might be some lengthy document inserted into the code by reference rather than completely reprinting it in every copy. 3. No such rationale that I can see exists here. Instead, we have the equivalent of an ordinance establishing a simple rule effectively ending in midsentence, and telling the reader that too find the remainder of the sentence they must hunt for a separate City policy, without telling them where or under what name it might be found. Yet the missing part, once found, appears as compact and permanent as anything in the ordinance. 4. The two brief sentences of the proposed Policy H-1, if they are indeed what the Council wants, could be very easily incorporated into the four brief sentences of the proposed NBMC Sec. 17.35.030, eliminating the need both for a separate resolution and for future readers to search for a current version of the unnamed policy being referred to in the code. Problems with Substance If the proposed Policy H-1 is approved as something separate from the Municipal Code, its title ("Harbor Permit Policy") would remain, as it is now, very confusing. Title 17 appears to contemplate many different kinds of "permits" and H-1 is not, as the title might imply, a policy applicable to all of them. It seems to address only requests for permits to construct docks (that is, piers and floats) — and may not even exactly relate to the (non-commercial) "Pier Permit" of Sec. 17.60.030 (in part because it seems to be intended to apply to commercial docks, as well). 2. Certain provisions of the crossed out existing Policy H-1 of Attachment A are proposed to be moved into NBMC Sec. 17.35.030, as shown in Attachment D. a. The policies moved into the code include the prohibitions on piers on parts of Bay Island and Lido Isle (proposed Sec. 17.35.030 B, C and D — the preservation and codification of which, it might be noted, seems inconsistent with the new philosophy that the Harbor Commission should have complete discretion to approve anything it deems acceptable). b. The crossed out policy H-1 includes (as "W") a similar prohibition on the north and east sides of Collins Isle that are not being moved to the code. Is it the Council's intention that those restrictions on Collins Isle no longer be enforced? c. The crossed out policy H-1 includes (as "V") a requirement for special permits for all new piers on Balboa Island. Is it the Council's intention that review now be required only May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 3 of 9 if the pier extends beyond the pierhead line, and that shorter piers can be added to Balboa Island "by right"? Note: Non-commercial piers on Balboa Island are separately addressed by NMBC Sec. 17.35.060, which like 17.35.030 refers to the "Council policy," and does not allow any non-commercial piers to be added by right, but seems silent on commercial ones – suggesting that perhaps all of this should be deferred to the more comprehensive update of Title 17? d. The crossed out policy H-1 includes (as "V") restrictions on dredging around Balboa Island. Is it the Council's intention that the restrictions on dredging around floats on Balboa Island be removed? 3. The proposed NBMC Sec. 17.35.030 says that "Piers and floats may not extend beyond the pierhead line," but Policy H-1, as written, appears to contradict that, saying extensions beyond the pierhead line are limited only be three considerations regarding potential impacts. In other words, piers out to the pierhead line are apparently "allowed by right" (one assumes to an adjacent land owner) and as far beyond that as the Harbor Commission deems not impactful. This, in effect, gives the established pierhead line no particular significance if the Harbor Commission finds some other line or rule more appropriate. 4. Definition H.2 ("Harbor Lines") in Title 17 says: "The harbor lines in Lower Newport Bay have been established by an act of the U.S. Congress and can only be modified by an act of Congress." 5. Definition M.6 ("Pierhead Line") in Title 17 (and also Title 21) says: "The term "pierhead line" shall mean the harbor water area perimeter lines established in Newport Harbor by the Federal Government that define the permitted limit of fixed pier, floating dock and other in -water structures which may be constructed in the harbor. The pierhead line typically shall define the limit of pier and floating dock structures and defines the limit of construction except as otherwise approved by the City Council." 6. It is not clear to me the ordinance/policy, as written, gives due deference to the pierhead line or provides the Harbor Commission with sufficient guidance as to the extent that it is to be respected. As an example, someone at some time must have decided the Lido Boat Show— filling the Turning Basin with floating docks – did not impact navigation. Does the proposed ordinance/policy give the Commission the discretion to make the harbor like that, with private floats extending willy-nilly into the channels? 7. How about the "project" line? Is that a hard stop on how far the expansion can extend? If so, why is it not called out in the ordinance/policy. 8. As was brought up to the Harbor Commission there is a problem with noticing, of which there appears to be none required. The Commission is, among other things, expected to make a finding that the pier "extension will not negatively impact ... adjacent property owners." It is hard to see how a meaningful decision can be expected without a requirement for the adjacent property owners to be given notice of the pending decision and an opportunity to provide testimony. May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 4 of 9 Problems with Process 1. As alluded to in the present staff report, and the one for Item 4 at the February 13, 2018, City Council meeting, the Harbor Commission, at its January 10, 2018, meeting, recommended a much different revision of Policy H-1, but that was apparently "vetoed" by the City Attorney's Office before it got to the Council, without any clear public process or discussion. 2. Although I thought the earlier revisions to H-1 had their problems, I do not recall any "veto message" explaining what the City Attorney's Office thought was wrong with it, other than its length. 3. When the present, much shortened, version came back to the Commission on April 11, 1 believe they accepted it in the interest of expediency, with inadequate review and discussion. a. The Commission's failure to catch the parts of the existing Policy H-1 not being carried forward into the City Attorney's shortened H-1 is indicative of the lack of adequate review. b. To the best of my knowledge, the Commission was not told about and did not review the proposed ordinance modifying Title 17. Problems with Staff Report Although it is a minor point, Attachment A is not the "redline" it claims to be. It does not correctly show what is being deleted (less than the whole of the present Policy H-1, since the title and revision history survive). And it does not at all show what is being added (most of Attachment B). 2. More seriously, no redline at all is provided to make clear the changes being proposed to Title 17 of the Municipal Code. The Council and public are left to hunt up for themselves what NBMC Sec. 17.35.030 currently says. Ratifying changes to the Municipal Code without clearly displaying what the proposed changes are does not seem like a wise thing to do. 3. Finally, the proposed Ordinance (page 3-11) refers to the authority granted to the City by "the 1978 Beacon Bay Bill, as amended." It would be good for the Council (and public) to know where they can see this mysterious bill, so they might know what it actually says -- and that they are seeing a current copy. I am not aware of any copy or link on the City's website. Item 4. Proposed Re -organizations of the Public Works Department, Municipal Operations Department, Creation of a Utilities Department 1. City management seems to have struggled with finding a "correct" organizational structure for a very long time, with no conclusive result (and with a budget that in many cases bears little resemblance to the job titles and organization charts found on the City's website). 2. 1 have no confidence at all the present proposals (agenda Items 4 and 5) are more than another meander on that unclear path. 3. The staff report asserts that "The City Manager is responsible for recommending changes to the City's organizational structure as provided in Newport Beach Municipal Code 2.12 and May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 5 of 9 changes to classification and compensation as provided in the Newport Beach Municipal Code 2.28." a. This may seem a very technical point, but while it is true that NBMC Sec. 2.28.010 calls for the City Manager to recommend changes to classification and salary, I am unable to find any similar requirement regarding the City's organizational structure which City Charter Section 601 directs the City Council to establish and maintain. 4. Assuming the assertion is correct, it is a bit disturbing to see the staff recommendation coming to the Council from the Assistant City Manager, with no indication the City Manager has reviewed it or concurs. 5. The proposed Ordinance No. 2018-6 of Attachment A is a most peculiar beast in that it appears intended to instruct someone to change Chapter 2.12 ("Administrative Departments") of the Municipal Code, but without actually referencing it and without showing what the amended chapter will look like. a. This makes sense only when one discovers in agenda Item 5 that there is a proposed Ordinance No. 2018-7, like this one, but creating a Harbor Department, and yet a third, proposed Ordinance No. 2018-8 making the changes to Chapter 2.12. Why are these not combined in single comprehensive ordinance? And instead left to separate pieces some of which could, in theory, pass and others fail on first or second reading, causing the whole scheme to fall apart? 6. As indicated at the last Study Session, I think the City would be well advised to stick to a uniform system of "departments" with Department Directors containing "divisions" run by Division Managers, and naming them accordingly, as implied by the City Charter. The proliferation of Deputy Directors and other non-standard titles is very confusing. 7. The rationale to create a few increasingly large and difficult to manage departments, and at same time a few very tiny ones, is also difficult to understand. 8. Regarding the proposal for a new Utilities Department, while I might be able to see the City's water supply and waste water disposal activities as enterprise fund operations logically separate from Public Works, I have trouble understanding why storm drain maintenance and street sweeping would be part of Utilities while park, facility and equipment maintenance would not (see comment on Ordinance No. 2018-8 under Item 5, below: adding to the confusion, "street cleaning" seems to be assigned to Public Works; also storm drain maintenance seems to be something added new, that was not previously assigned [see page 5-35]). I'm not even sure I understand why streetlight operations are in Utilities, since it is not a separate enterprise fund operation and the modernization of our streetlights has been run by Public Works. It all seems very arbitrary. 9. Since there is no "further below," the "In addition, as will be discussed further below,..." at the top of staff report page 4-3 appears to be a reference to agenda Item 5. The connection between the two could have been more clearly explained, but one really has to wonder why they weren't combined as a single agenda item? May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 6 of 9 Item 5. Proposed Creation of a Harbor Department It perhaps goes without saying that the proposed changes to Title 17 have not been reviewed or discussed by the Harbor Commission. And that the structure of the proposed Harbor Department, which the Council is expected to approve, is very difficult to visualize without reference to the organization chart displayed as part of a PowerPoint at the May 8 Study Session, but not provided here (and from which the present scheme apparently differs -- with the elimination of the Dockmaster position, a position that previously appeared to oversee the "Harbor Operations" side, with a separate manager overseeing "Harbor Resources"). a. Despite the purported elimination of the 1 position, the total number in the new Department seems to have increased from 11 (as described on May 8) to 12 in the present plan. b. It is difficult to understand how removing a position increases the count. 2. Ordinance No. 2018-7 (see staff report page 5-4): a. Refers not only to the always mysterious "1978 Beacon Bay Bill, as amended" but also to the newly mysterious "2018 report produced by Beacon Economics." i. Not only do I not know who commissioned the latter, but to the best of my knowledge it has never been formally submitted to the City Council or subjected to public scrutiny — yet its findings are being accepted here as "fact." ii. Was it provided in one of those mysterious "News Splashes" that appear, briefly, on the City website, then disappear forever? b. It also refers repeatedly to "Newport Harbor." i. Does everyone agree on what that term means geographically? Based on recent Council discussions, should we perhaps be creating a "Port Department" rather than a "Harbor Department"? iii. And, indeed replacing all references to "Harbor" with "Port"? 3. On page 5-10, the Harbor Director has duties with regard to Marina Park, but not the Balboa Yacht Basin. Won't this person have responsibility over all City facilities? 4. Regarding Ordinance No. 2018-8: a. The agenda and Recommendation of staff report page 5-1 misreference the title, citing "Section 2.12.018" when it means ""Section 2.12.080." The amended Section 2.12.080 (see page 5-35) attempts to cover existing references elsewhere in the code and contracts to the now -crossed -out definition of "Municipal Operations Department." But it also crosses out "Municipal Operations Director" — a term used quite extensively in recent code amendments and contracts — without explaining what it now means. Doesn't that need to be fixed? May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 7 of 9 c. Proposed Section 2.12.080.G adds a new reference to NBMC Chapter 14.04, which is titled as defining a "Utilities Division." If the present changes are adopted, shouldn't that chapter be cleaned up, as well? d. It seems curious that proposed Section 2.12.018.0 assigns "street sweeping" to the new Utilities Department, while proposed Section 2.12.100.1 assigns "street cleaning" to Public Works. e. In proposed Section 2.12.100.Q, maintenance of electrical equipment was presumably intended to have a line and letter of its own, rather than being run on to the trees sentence. 5. Regarding Ordinance No. 2018-9: a. The extensive proposed changes to Title 17 are very difficult to understand or interpret when only snippets of code are presented, and not the totality of the title. i. For example, pains seem to be taken to define a "Harbor Director" (proposed Subsection 17.01.030.H.3) and assign duties (proposed Sec. 17.05.055), but the person is defined as the same as "Harbormaster" and the "Director" term doesn't appear to be used elsewhere, so why the two names? b. Some of the recommended changes to Title 17 are unrelated to the reorganization: i. Do we know what the deleted references to NBMC Chapter 15 on page 5-73 were about? ii. Why are new provisions about moorings being added, without notice, at the top of page 5-79? c. The extensive removal of functions assigned to the Harbor Resources Manager would suggest the job description for that position needs to be re -written. i. Precisely what the Harbor Resources Manager does do now is unclear from the materials presented (and is presumably defined in sections of Title 17 left unamended). Item 6. Resolution of Intention to Renew the Newport Beach Restaurant Association Business Improvement District and Levy Assessments in Fiscal Year 2018-2019 (Resolution No. 2018-27); and Approve Funding Support Through Fiscal Year 2020-2021 I believe the Council's 2013 commitment to provide $40,000 per year to this organization and that of Item 7 should be explained more thoroughly than it is in the present report. My recollection is it was a stop -gap measure intended to give the organizations time to wean themselves from dependence on it, and was not intended to morph into a permanent subsidy. The same amount of money was promised for the same length of time, on a first-come/first-served basis, to self -declared business associations in the Balboa Island and Balboa Village areas. Again, May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 8 of 9 that was for the former BID's there to be given a chance to reorganize themselves and become truly independent of the City (like the Chambers of Commerce, and as the "Visitors Bureau" once was). I believe the remnants of the BID's instead became organizations totally dependent on taxpayer funding, exacting no dues from their "members" and raising no money on their own. I believe the funding to the two "BID remnants" should definitely be ended, but I see no reason to continue this subsidy to the surviving BID's either. I see no rationale for lavishing taxpayer largesse on selected groups of individuals or geographic areas. If restaurant owners deserve a special payment from the government, why not car dealers? Or dentists? Or any other group one can think of (such as taxpayers)? As to "transparency" in Newport Beach, the staff report tells us that if the $40,000 is approved, "it will be expensed to the City Manager's Office, Economic Development Division, 01020202 841046." That line item, on page D18 of the Proposed Budget Detail, reserves $425,000 for "SUPPLIES & MATERIALS" for the "CITY MGR ECONOMIC DEVELOPMENT" Division, specifically for expenses for Object Code "841046 SPCDEPT EX," which the Budget Glossary tells us is "SPECIAL DEPT EXPENSE NOC." One has to wonder how financial support of a BID comes under the heading of "Supplies & Materials"? One has to wonder what uses the rest of the $425,000 is being approved by the Council for? And one has to wonder whether the City Manager would have felt empowered to give $40,000 of it to a business group (or anyone else?) without a Council action such as the present one? Item 7. Resolution of Intention to Renew the Corona del Mar Business Improvement District; Levy Assessments in Fiscal Year 2018-2019 (Resolution No. 2018-28); and Approve Funding Support Through Fiscal Year 2020-2021 See comment on Item 6. Item 8. Resolution Authorizing the Submittal an Application for the WaterSMART: Water and Energy Efficiency Grant for 2018 This appeared to be a rather innocuous request for the Council to give its approval to a staff proposal seeking grant funding from some not -clearly -named outside agency. It is good to see the actual proposal included in the staff report for the Council to review before approving it. It was shocking to read in the City Manager's "Insider's Guide" (distributed this morning, and with no clear reference to the item number) that this may actually be a request for final Council approval May 22, 2018, Council Consent Calendar Comments - Jim Mosher Page 9 of 9 of and commitment to a $9 million program, and the final details of a program (including, it looks like, the array of above ground transmitter locations), that has received only the slightest public review (the November 28, 2017, "study" session mentioned in the staff report, which staff apparently took as the final green light to proceed). This is shocking because the only thing mentioned on the agenda is an application for a "grant" — which sounds like a gift to the City. There is not the slightest hint of a commitment to pay $9 million. I have trouble understanding why a $500,000 expense for traffic signal maintenance (Item 19) is a "Current Business" item, while a $9 million commitment to something the Council never previously voted on is slipped by, without clear notice, as a "Consent Calendar" item whose title will not even be read. Is this a conscious decision that it's best to decide what's good for the public to know, and what's not? To be sure, the staff report assures us this project, and the funding for it is expected to be included in the FY2019 CIP Budget. But to the best of my knowledge, the Council has not yet approved that, nor has it been publicly presented. It probably goes without saying that this proposal was not discussed, or any alternatives to it debated, before the City's Water Quality/Coastal Tidelands Committee, or by the Finance Committee. Item 9. Debt Management Policy F-6 Revisions The staff report mentions that the proposed policy changes were "recently reviewed" by the City's Finance Committee, but as best I can tell it does not identify exactly when that happened, nor convey to the full Council whatever comments may have been received. I vaguely recall marking up the redline presented to the Committee with possible problems with the proposed language, most of which it was not possible to convey to the Committee in the three minutes allowed for public comment. Before the Council the opportunity will likely be even less, with just three minutes to suggest improvements to not only this, but16 other Consent Calendar items. Item 15. Airport Consulting - Contract with Tom Edwards It seems curious to me that this airport -related contract is coming to the City Council for authorization, while those approved in recent months with other consultants, with much greater ballyhoo, have not. In fact, I cannot recall the City's entire airport strategy having been discussed or approved by the Council as a whole. There was a brief time in the past when each City contract was filed away with a cover sheet detailing who authorized the signing, and when and where the funds to pay it were approved. That would seem a good practice to re -institute, if it is not being done now, electronically, and to let the public see the cover sheets.