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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 13, 2018 Written Comments November 13, 2018, Council Consent Calendar Comments The following comments on items 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 1. Minutes for the October 23, 2018 City Council Meeting The passage shown in italics below is from the draft minutes with suggested corrections indicated in strokeout.underline format. The page numbers refer to Volume 63. Page 624, Item XIV, paragraph 2: "Dorothy Kraus discussed her concerns regarding Item 5 and requested staff gather more information prior to gr vacatin_p the sewer easement." Item 4. Resolutions Approving Submittal of Grant Funding Applications Under Orange County Transportation Authority (OCTA) Comprehensive Transportation Funding Program (CTFP) The first paragraph on page 4-3 says "Please see the attached exhibit for a depiction of the proposed project and the three potential partial right-of-way acquisition areas." I am unable to find any exhibit showing "the three potential partial right-of-way acquisition areas." The final paragraph before "Environmental Review" refers to "meetings with the Parks, Beaches, and Recreation Committee [sic] and City Council working groups." I have a vague recollection of the Parks, Beaches, and Recreation Commission appointing an ad hoc committee to review plans for the Superior bridge and report back to the full Commission. I do not recall the City Council ever publicly appointing an ad hoc committee to perform a similar function. The report could have explained how the Superior/PCH portion of this item relates to consent calendar Item 6, which seems to relate to the same project, but with a much larger stated project cost. As to the resolutions, the titles should probably say "Submission" rather than "Submittal." The words are synonymous but the former is generally preferred. Item 5. Approval of Measure M2 Expenditure Report It would seem helpful if the "Discussion" pointed out to the Council and public any items of note or concern in the report. The significance of the negative balances shown on staff report page 5-4 is not immediately obvious. November 13, 2018, City Council Consent Calendar Comments - Jim Mosher Page 2 of 3 Item 6. Approval of Cooperative Agreement No. C-8-1898 with the Orange County Transportation Authority for the Bicycle and Pedestrian Bridge across Superior Avenue (15T09) Those developing these plans may wish to be aware the City Arts Commission has been discussing restoration of the "Metalphor" sculpture located at the northeast corner of the Superior/PCH intersection. They were unaware the site might become the terminus of a pedestrian bridge or bridges. It would be helpful for them to know how these plans might affect theirs. More generally, these bridge proposals seem to have gone forward more on the basis of grants having been obtained rather than any thorough public discussion of what was wanted prior to the grants being applied for. Item 7. Median Landscape Turf Replacement - Jamboree Road from Ford Road to University Drive - Award of Contract No. 8151-2 (16L02) Staff report page 7-3 justifies a $74,182.56 recommendation for upsized plant material on the basis that "the Jamboree Road median is one of the key entry statements to the City and to Fashion Island." I feel it is divisive to declare any part of the City to be any more "key" than any other. Above that the reported $5.06 cost for upgrading 1 gallon Hesperaloe Parvifolia Brakelights plants to 5 gallon buckets seems remarkably low, even if the contractor is planning to install only one (in which case there might be an argument as to the most "key" place to make a forceful "statement" with that single plant). Item 9. Balboa Village Streetscape Improvements — Award of Contract No. 7489-1 (17R11) It seems like a great deal of public money has been invested in this one small area since 2000. Is the primary purpose of that to increase visitors? If so, is there any evidence it has worked? There also seemed to be an informal understanding most of the more special treatment would be paid using parking revenues collected in the area, yet the staff report indicates a substantial injection of Measure M Fair Share dollars. Is that money that can be spent only here? Or could it have been used to improvements elsewhere in the City? There seems to be a basic inequity with the Corona del Mar business corridor, in which the Business Improvement District has to pay with business owner assessments for a significant portion of the streetscape improvements undertaken by the City. November 13, 2018, City Council Consent Calendar Comments - Jim Mosher Page 3 of 3 Business owners in Balboa Village receive not only publicly -funded improvements, but a $40,000 outright annual gift of City general fund dollars that has never been formally authorized by the City Council. Item 10. Planning Commission Agenda for the November 8, 2018 Meeting The Mariner's Mile Strategic Vision developed with community input and adopted by the City Council in 2000 and acknowledged in the 2006 General Plan, envisioned that the blossoming of auto uses would be confined to the inland sides of the two ends of the commercial corridor — so that the whole of Mariner's Mile would not become a Harbor Boulevard of (luxury) Cars. The Planning Commission's action on November 8 expanded auto sales into the area that had been carefully set aside for non -auto neighborhood and visitor -serving uses. That seems a setback to the plan to create a true village. Received After Agenda Printed November 13, 2018 Item No. SS3 & 13 Comments on November 13, 2018, Council Items SS3 & 13 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) Items SS3 & 13. Sidewalk Vending Program Ordinance Summary 1. The City Council should be creating policy, not City staff. 2. The Council deserves a clear explanation of what the problem is before being told what solution it should adopt. 3. Assuming sidewalk vending violations are not, at the moment, a huge problem in Newport Beach, and that the Council does not see a need to grandfather in a program that is "substantially" but not "completely" in compliance with SB 946, 1 see no urgency about this: the City's options in the future will be exactly the same as they are today. 4. The primary consequence of a failure act immediately would be a temporary lapse in the City's ability to enforce regulations which would, in any event, with or without action, be reduced to the issuance of administrative citations as of January 1. 5. Should Ordinance No. 2018-19 be adopted as proposed, a number of the restrictions it imposes could be challenged as going beyond addressing legitimate "objective health, safety, or welfare concerns," and instead, as SB 946 does not allow, being based on a perceived community animus toward street vendors. Details I believe it is widely accepted that in the Council -Manager form of government, the City Council is responsible for creating policy and the City Manager for implementing it in a fair and politically neutral way through his or her administrative staff. In that ideal world, city staff would have notified the Council of the possible need for a Sidewalk Vending Program and, before doing anything, would have sought the Council's direction as to whether the Council wanted such a program, and what elements the Council wanted it to contain. Instead, in response to the September 17 signing of SB 946, and with no guidance at all from the Council, City staff appears to have spent a month or more developing what is now being presented for adoption as a very long finished ordinance representing "the City's" position on the matter. I would submit that City staff is boxing the Council in to adopting what is, in truth, nothing more than City staff's wished -for policy, and that the result may not at all resemble the policy that would have been developed if staff had begun, as it should, with direction from the Council (after the Council had listened to public input on the matter). 2. At least the new ordinance is not on the Consent Calendar for "automatic" adoption, but staff seems to be using what I believe is a false claim of great urgency to force perpetuation of its practice of having the Council rubber-stamp policies cooked up (as far as the public knows) November 13, 2018, City Council Item SS3/13 Comments - Jim Mosher Page 2 of 6 entirely by staff in private, rather than allowing the Council to publicly create policy of its own. 3. The idea implied by the staff report that for a California city to ever, in the future, be able to regulate sidewalk vending it must have those regulations in place by January 1, 2019, is, I believe, based on a misunderstanding of SB 946's intent and a misreading of its text. a. According both the Senate and Assembly floor analyses (different from the "Legislative Counsel's Digest" reproduced on staff report page 13-35), the primary purpose of the bill was to decriminalize sidewalk vending, so individuals would not face deportation as a result of violating local rules. This required a statewide reclassification of sidewalk vending violations (other than of the state's Health and Safety Code regulations for food sales) as non -criminal "administrative citations" (presumably as provided for in Gov. Code Sec. 53069.4) rather than as the infractions or misdemeanors they may be prosecuted as today (which are regarded as criminal acts). While sidewalk vending would not be a basis for deportation after January 1, it might be noted that undocumented individuals could, apparently, still be deported for numerous other minor violations of municipal codes, such as, in Newport Beach, walking a dog off -leash (NBMC Sec. 7.04.020 and 7.04.055) or using a gas powered leaf blower in an area not designated for one (NBMC Sec. 6.04.55.C), both of which are infractions. ii. It might be further noted that Section 1404(b) of our City Charter (as amended by Measure V in 2010) elevated all violations of Council ordinances to misdemeanors unless they specifically say violations are merely infractions. b. The only reference to "January 1, 2019" in the text of the new legislation is the provision in the new Gov. Code Sec. 51039(d)(1) (staff report page 13-40) that "a violation of any rules or regulations adopted prior to January 1, 2019, that regulate or prohibit sidewalk vendors in the jurisdiction of a local authority, shall not be punishable as an infraction or misdemeanor, and the person alleged to have violated any of those provisions shall not be subject to arrest except when permitted under law." i. This is not, by its plain language, a grandfathering clause requiring local laws to be in place by that date, or prohibiting any future changes to them. ii. It is, instead, an override clause, with regard to enforcement, saying violations of the existing laws cannot be prosecuted as infractions or misdemeanors, or by arrest, regardless of what the local law says. iii. Since any new law adopted by the Council could not make violations an infraction or misdemeanor, it makes no difference, in this respect, whether the law was adopted before or after January 1. iv. The only effect of the Council not acting by January 1 would be that existing prohibitions against sidewalk vending could not be enforced as they were in the past until new legislation consistent with SB 946 is put in place. November 13, 2018, City Council Item SS3/13 Comments - Jim Mosher Page 3 of 6 1. Whether an existing prohibition could still be enforced by administrative citation is likely debatable since SB 946 appears to be silent on that. 2. However that may be, this would not seem to be a matter of great urgency unless there are currently a great many problems with sidewalk vending in Newport Beach. v. The new Gov. Code Sec. 51038(a) (staff report page 13-37) will explicitly give local agencies the authority to adopt sidewalk vending regulations at any time in the future, as long as they comply with SB 946, which the current ordinance claims to do. 4. Regarding the remainder of the staff report: a. Permitting Requirements (page 13-3) i. I'm not sure the proposed Sidewalk Vending Program Checklist of Attachment C, although well intended, will prove particularly helpful to most potential vendors. ii. Rather than explaining most features of the program, it refers them to some 20 pages of densely written municipal code. iii. I doubt they will know what they are allowed to do, and what they are not. In particular, the places in which they might be ticketed with administrative citations. b. Limitation on Hours of Operation (page 13-3) i. Although NBMC Title 20 (Sec. 20.70.020) defines "Late hour operations" to mean "facilities that provide service after 11:00 p.m. any day of the week," it is not obvious where the starting hour of 7:00 a.m. comes from. c. Uniquely Prohibited Locations (page 13-4) i. The "Balboa Island Walking Traif' is strange description never (to my knowledge) used by locals or City staff. 1. When dedicated as Public Trust Land by Resolution No. 98-85, it was called the "Bayfront Walk." 2. In our Coastal Land Use Plan it is referred to as the "Bay Front Boardwalk." ii. The proposed complete prohibitions on sidewalk vending along the main streets of Balboa Village, Balboa Island and Corona del Mar commercial corridor, and in the Civic Center, seem problematic in that those seem precisely the kinds of places SB 946's author would see sidewalk vending as an integral part of a vibrant village atmosphere. d. Additional Locational Restrictions (page 13-5) i. This list is so long it might be easier to say where vending is allowed. November 13, 2018, City Council Item SS3/13 Comments - Jim Mosher Page 4 of 6 Many of these restrictions are rationalized as being necessary to avoid a possible "concentration" of vendors. In SB 946, a fear of concentration is recognized as an objective basis for imposing restrictions only in the case of public parks (see staff report page 13-37) e. Sidewalk Vending in Public Parks (page 13-8) i. This section is particularly poorly thought out. ii. Paragraph 2 parrots the 2006 General Plan and many other documents quoting it in saying the City has "parklands ranging in size from mini -parks, such as the Lower Bay Park to the 39 -acre Bonita Canyon Sports Park." 1. The 2006 General Plan does not identify where "Lower Bay Park" is located, and its whereabouts remain unknown, at least to me. It is apparently one of Newport Beach's "lost parks" (that might make an interesting story for a latter day Ralph Story or Huell Howser). 2. Meanwhile, Bonita Canyon Sports Park has grown to 47.6 acres in more recent versions of this quote. iii. More importantly, City Council Policy B-1 (Attachment D), is not a reliable list of City parks, and it was never intended to segregate "passive" parks from "active" ones. 1. It is rather, as it itself explains, a list of parks of sufficient communitywide importance that park in -lieu fees collected in a completely different part of the City could justifiably be used to improve them. 2. The City's current Recreation Facilities map, identifies 65 City parks, many of which are not listed at all in Policy B-1 (and a number of which are misidentified by number in the new map). 3. As an example, Bob Henry Park is not listed in B-1 (nor is Big Canyon Park and many others); while Buck Gully is listed under "Community and Neighborhood Parks," but is not an "active" park by any accepted definition of that term. Moreover, a number of the entities listed (such as the OASIS Senior Center and Theater Arts Center) are facilities rather than parks. 4. Even if the authors of the currently proposed Ordinance No. 2018-19 had a definitive list of parks available to them, the distinction between "passive" and "active" is rarely clear or clean. Most of the City's parks have both passive and active areas within the same park. For example, Irvine Terrace Park, which the present authors would have us believe is "passive" because it is noted for its views in B-1, is in fact mostly active (the views being from a small passive part). 5. Even if the authors had a handle on passive versus active, it is not clear what they mean by their proposed prohibition on sidewalk vendors "approaching persons." Does that mean vendors are prohibited from November 13, 2018, City Council Item SS3/13 Comments - Jim Mosher Page 5 of 6 pushing their cart toward a person? Or do the authors mean to prohibit an uninvited solicitation to purchase wares? 6. Again, the proposed prohibition against sales at a sports event seems quite contrary to many people's notion of a vibrant village, making it hard to justify as embodying an objective concern as opposed to a perceived community animus against street vendors (which is not an allowed reason for imposing restrictions). f. Enforcement, Penalties, and Appeals (page 13-8) The staff report makes it sound like the recommendation to enforce the program through administrative citations is a Council choice. This is, in fact, not a choice: it is the crux of SB 946, which completely prohibits any other form of enforcement (except with respect to the state's food sales regulations). 5. Specifically regarding proposed Ordinance No. 2018-19: a. In the fourth "Whereas" (on staff report page 13-10), in the statement that "the regulations and requirements provided in this ordinance are directly related to the City's objective in protecting the health, safety and welfare of its residents, businesses, and visitors," City staff is using the word "objective" as a noun meaning "a goal" whereas SB 946 uses it as an adjective, requiring that a "restriction is directly related to objective health, safety, or welfare concerns" (staff report page 13-35) meaning reasons "not influenced by emotion or prejudice." The difference is significant, and many of Newport Beach's proposed restrictions could be regarded as reflecting a "perceived community animus" against street vendors — a reason for imposing restrictions that is explicitly not allowed by SB 946 (Section 51038(e) -- staff report page 13-39). b. In connection with Section 1 (amending NBMC Chapter 5.11 on page 3-11), it's interesting to note that existing Section 5.11.020 prohibits food trucks operating in Newport Beach "except on privately owned commercial or industrial property with the consent of the owner or lessee of the property," even though we allow them to operate on public streets at construction sites, and increasingly on public property at City - sponsored events. c. Subsection B.1 (page 13-12): See earlier comment about "walking trail." d. Subsection B.2 (page 13-12): Refers to a "boardwalk" without explaining what or where it is (later explained under Definitions). e. Subsection B.2 (page 13-12): It is not necessary to say "Grand Canal" separately. It is water, like the rest. Subsection B.3 (page 13-12): The basis for a blanket restriction on beaches is not obvious. Food currently seems to be prohibited (although not likely enforced) on bay beaches, but not ocean ones. g. Top paragraph (page 3-14): last "front" should be capitalized. November 13, 2018, City Council Item SS3/13 Comments - Jim Mosher Page 6 of 6 h. Subsection 13 (page 13-14): The "Definitions" chapters of Title 20 (Zoning) and Title 21 (Local Coastal Program Implementation) of the Newport Beach Municipal Code already contain definitions under "Parks and Recreational Facilities (Land Use)" that distinguish "Recreation, active" from "Recreation, passive." i. It would seem wise to stick with those definitions (playground equipment, for example, is considered an "active" use) and not invent new ones. ii. It would seem wise to impose vending regulations based on the kind of activity taking place in the area were the vending occurs, rather than trying to classify entire parks as "active" or "passive." I have not had time to read the remainder of the 22 pages of code being proposed for adoption. I would not be surprised if they contain additional errors and inconsistencies, both internally and with SB 496.