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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED JANUARY 8, 2019 AGENDA ITEM NO. SS2 January 8, 2019, City Council Item SS2 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(a�yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS2. General Plan Update (PA2017-141) General Concerns: My biggest concern is that any General Plan Update be conducted in a manner compatible with the intent of City Charter Section 423 (Greenlight). a. Over running 10 -year windows, Greenlight gives the Council discretion to add a designated amount of development to the General Plan for each of the City's 51 statistical areas. Additions beyond those limits are supposed to require voter approval on an area -by -area, and ideally a project -by -project, basis. b. The 2006 GPU was seen by many as a ploy to avoid Greenlight. It ended in voters being asked in a poorly -explained, and even more poorly understood, measure to give, in a single yes -no vote, a blanket approval to all the development the Council had added in the previous10 years plus pre -approve generous new allocations for vaguely defined future projects. Approval was given by a mere 53.6% of voters. c. Measure Y in 2014 was a similar effort to use a GPU to gain voter approval both of past changes made by the City Council (most notably in Newport Center) and to new Greenlight goal posts in multiple areas in a single vote. It was rejected by 69.2% of the voters. d. The present situation is complicated by the large amounts of development constructed since 2006 (especially in Newport Center) that are inconsistent with what the 53.6% of voters approved in 2006. At least for me, it is not a very pleasant prospect that this GPU might, like the one that led to Measure Y, be used as a ploy to forgive and forget the Greenlight implications of all past approvals with a single vote and simultaneously pre -approve everything that might happen in the next 20 or 30 years. I do not think that is how Greenlight was supposed to work. 2. My second biggest concern is with the tone of the staff report and its inconsistency with the direction the Council has given regarding the GPU. a. The staff report (largely resurrecting the proposal presented and rejected at the November 14, 2017, study session) is written as if staff has finished deciding how the GPU is going to proceed and is informing the Council of what staff has decided, rather than asking the Council what it wants staff to do. b. On November 14, the Council considered, but later seems to have abandoned, the idea of first appointing a "blue ribbon committee" to evaluate the current General Plan. c. Based on new options presented by staff at the January 29, 2018, Planning Session, the Council then directed that before hiring a GPU consultant and deciding what they January 8, 2019, City Council Item SS2 Comments - Jim Mosher Page 2 of 5 should do, City staff should itself conduct a "Listen and Learn Tour" (the start of which was put off to 2019 by Resolution No. 2018-7). d. Contrary to that direction, the current proposal asks the consultant hired to update the plan to conduct the tour. e. Has staff decided they cannot conduct the tour on their own? f. Is it not still better to separate the tasks, as previously decided? 3. A third overarching concern is whether embarking on so significant an undertaking as a comprehensive GPU at this time is an efficient use of taxpayer money and City resources. a. The plan approved in 2006 claims to have been intended to guide the City through 2025. b. The present staff reports anticipates putting a new GP in place by 2021, four years prior to the "expiration" of the existing 20 year plan. c. In an ideal world, it would seem most efficient to put new plans into effect just as the old ones expire, and not years before. d. By that standard, if City staff's estimates are realistic, we are starting four years too soon. e. The early start seems especially of concern if it means much of the planning will be taking place without the public, planners or decision makers knowing what kind of Regional Housing Needs Assessment the "vision" and details may need to accommodate. i. Closely related to this, what steps are we taking to influence the RHNA process? General Comments on Process: 1. If staff's proposal is followed, this will be the third time the City has gone through a consultant -led "visioning" process: the first having been 1969's "Newport Tomorrow" effort (PDF here), and the second being 2002's "Newport Beach: current conditions, future choices: step up to the future!" (which is the visioning that led to the current General Plan). 2. At least to me, it is not obvious why one would expect a community that sees itself as "nearly built out" to want to completely reinvent itself every 15 or 20 years. a. The more relevant current question would seem to me to be what the Council hopes for staff to learn during their "Listen and Learn Tour," and what it then expects them to do with that information. b. Committing to a final contract before doing that seems premature. c. And if one is truly expecting a different future, 20 year plans seem rather short if it is not being thought of in the context of some much longer range vision. 3. 1 personally find it unlikely the new visioning effort, as proposed by staff, will lead to a substantially different vision than we already have and I think even more emphasis (than January 8, 2019, City Council Item SS2 Comments - Jim Mosher Page 3 of 5 can be found in staff's proposal) should be placed on assessing whether the previous General Plans, especially the current one, achieved their goals, and if not, how it could be made more effective. 4. In a related vein, during the process that led to Measure Y in 2014, the public was told a General Plan "is a living, breathing document." And we are told it is now out of date. Yet despite the many changes that have been made since 2006 to the voter -approved development limits in the Land Use Element, to the best of my knowledge not a single change has been made to its text or policies. I'm not sure I understand the reason for this reluctance to make policy changes, but it has to make me wonder if a culture of on-going incremental refinement wouldn't be better (as well as more compatible with Greenlight and more thoroughly debated) than a system of massive all -in -one revision? 5. Conversely, when asking why some development could be approved without modifying the policies or development limits found in the published General Plan, the public has been told the content of a General Plan does not have to keep step with development because its tables are understood to represent nothing more than "a snapshot in time" — an understanding which makes General Plan updates, comprehensive or otherwise, seem rather pointless. General comments about the RFP: I agree with the Council's previous direction that staff should consider engaging a consultant only after conducting its own "Listen and Learn Tour" to find out what the community is looking for in a GPU (or if it is looking for one at all). 2. When the City is at the point of publishing an RFP: a. I think the present one is too specific in telling potential applicants what we want them to do. b. I think the result would be better if it were left more open-ended. We should tell applicants the goal we are trying to get to, and ask for ideas on how to get there. c. In that connection, many CPU's are taking place in California at any moment. Have we asked if any of those are employing innovative approaches that might benefit Newport Beach? Specific comments about draft RFP: 1. Page SS2-8, end of paragraph 1: "... and complete the process in the late of 2021." a. The highlighted phrase is unfamiliar, at least to me. Should it be something more conventional such as: "... and complete the process before the end of 2021"? b. More substantively, if the GPU includes changes to the land use limits that require a Greenlight vote, is the plan to hold a special election? Or if not, would the drop -dead completion target really be August 2022 (that is, in time for the November 2022 ballot)? c. More generally, the RFP does not seem inform potential consultants about the Greenlight constraints under which they would be operating should they propose January 8, 2019, City Council Item SS2 Comments - Jim Mosher Page 4 of 5 increases in land use densities or intensities. Knowing about that and any other unique planning conditions in Newport Beach seems important. 2. Page SS2-8, paragraph 2, sentence 2: "Second, the City's General Plan needs to be examined to see how it meets..." 3. Page SS2-8, paragraph 2: Does the all-inclusive community include visitors? 4. Page SS2-8, paragraph 3: Per page SS2-18, the consultant may be amending the Arts and Cultural element. Will the City Arts Commission not be involved in that? a. Similarly, the present GP promises to contain the airport. Shouldn't the City's Aviation Committee be consulted regarding that. 5. Page SS2-9, under "Definitions," bullet 5 says: ""Project The preparation of the Land Use Element Amendment." a. Similarly, on Page SS2-23: The opening "No Exceptions" refers to the task being "to prepare an amendment to the Newport Beach Land Use Element." b. In both cases, isn't the project more general in scope than just the Land Use Element? 6. Page SS2-9, under "Proposal Evaluation Criteria," line 3: "criterion" should be "criteria" 7. Page SS2-17: The consultant is asked to refresh the existing General Plan Vision Statement, but that would require establishing a new time horizon for it (currently 2025). As best I can tell, the RFP fails to inform the consultant of what planning horizon the City has in mind. Specifying it seems important. What year is the updated GP to be a vision for? 8. Page SS2-18: The idea that the Circulation Element is to be contracted separately is disturbing. Will that separate process include public outreach and involvement? If so, what will that entail? January 8, 2019, City Council Item SS2 Comments - Jim Mosher Page 5 of 5 RECEIVED AFTER AGENDA PRINTED JANUARY 8, 2019 January 8, 2019, City Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( ]immosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the December 11, 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 64. Page 4, Item XVI: "XVI. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES (combined with Item XI)" [Without an explanation like this, readers of page 4 would assume there were no reports.] Page 5, Item 11, first paragraph: "City Clerk Brown provided a brief staff report and announced that the City's voter turnout was over 74 77%." [The official number was 77.1 %, with 71 % being the number for all of Orange County. The video confirms the Clerk said 77, not 71.] Page 7, Item 16, Elected Council Members' Remarks, paragraph 2: "Council Member Brenner thanked and recognized the volunteers who helped during the campaign and ensured She pled_ped she would be keeping her campaign promises to listen to the voters and work with everyone on the City Council in a harmonious manner to do what is right for the City." [The "and" makes it appear the "volunteers," rather than Council member Brenner, were the ones "ensuring" the promises. And the video shows she said "pledge" rather than "ensure." Council member Brenner also referred to "people" rather than "volunteers."] Item 3. Resolution No. 2019-1: Updating the List of Designated Employees for 2019 Under the City's Conflict of Interest Code Having the Form 700's available for inspection online is very helpful. The lack of any disclosable financial interests or gifts (especially when the cumulative reporting threshold for a year is just $50) received on the part of most employees makes one wonder if the forms are being completed in a uniformly conscientious way, or if there are internal administrative policies (unseen by the Council and public?) governing such things. A lack of uniformity in the way Department Directors waive the requirement for consultants to disclose interests has also been noted in the past, and may still be a problem (are the waivers posted online?). One has to wonder if the City performs any sampling or auditing to insure the disclosures required by this Code are honest, accurate and complete? From the public's perspective, the many exceptions to what must be reported on the Form 700 (such as not reporting the interest in one's personal home or investments in mutual funds), and the long delay in reporting (interest relevant in a given calendar year not being reported until April of the following year), makes such evaluation difficult. For that reason, it is especially important to know if anyone is checking. Otherwise, the Code is generating a mass of essentially useless (now electronic) paper. January 8, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 6 A spot check of the electronic filings suggests their consistency is spotty, at best. Some of the consultants (correctly or incorrectly?) report their interests in and incomes from their own companies. Others do not. Don Schmitz lists his business as an investment, but somewhat implausibly lists his contribution to its income as less than $500, and lists no income to himself from it. The Clerk seems to have Form 700's from several of the Visit Newport Beach/Newport Beach and Company officers, but none from its President and CEO, Gary Sherwin. None seem to report gifts. No one in the entire Community Development Department (at least whose online filings I opened) seems to have any reportable interests. It is good to see our Finance Director reports gifts. It is less clear why so few others do. Regarding the substance of the proposed changes to the Code: 1. In the new Harbor Department, shouldn't some of the employees working under the Harbor Master be subject to disclosure requirements similar to those for building inspectors or code enforcement officers? a. In that connection, are all building inspectors subject to disclosure requirements, or only the senior ones, as it appears from the list? i. If not, why not, since their duties involve regulatory powers and affect real property interests? 2. Under Library Services, while it is true the Support Services position seems to have disappeared, the "Adult Services" position may be one that was inadvertently omitted in the past. There may also be other library personnel whose jobs involve contracting or purchasing. 3. The moving of jobs from Municipal Operations to Public Works and Utilities (and possibly within Public Works?) is a bit difficult to follow due to the many changes in titles. a. Overall, there seem to be something like 15 job titles deleted and 17 added for a net gain of around 2 positions, although exactly what those are and whether they are truly new is difficult to say. b. Some positions, such as "City Arborist" seem to be new and may have been inadvertently omitted in the past. c. For others, such as the former "Equipment maintenance" positions, it is difficult to tell if they have been renamed or lost. 4. Of the disclosure categories listed on page 3-10, it is interesting there is a Category 5, with rigorous reporting requirements, for positions involving the City's self-insurance benefits, yet there do not appear to be any employees in that category. January 8, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 6 Item 4. Resolution No. 2019-2: Adopting a Memorandum of Understanding with the Newport Beach Firefighters Association (NBFA) Substantively, I believe our safety personnel are extremely well compensated and receive very generous benefits. According to Transparent California, several cost more than the City Manager — probably contributing, in large part, to the unfunded pension liability crisis, NBFA and its alumni leading the list when sorted by current benefit costs. And speaking of transparency, one has to wonder why Newport Beach does not itself post these compensation figures as neighboring cities, such as Costa Mesa, do. As to the exact details of the agreement, since the NBFA is said to have ratified the text of the present MOU on November 28, and the Council must now either accept or reject it, further comment on the details seems rather pointless. I nonetheless have these observations: 1. Given the California Constitution's prohibition of retroactive compensation (Article XI, Sec. 10(a)), the retroactive nature of these agreements, although slight in this case, is always troubling to me. It would seem to me it should be the old agreement, not the new one, that governs until the new one is fully approved. 2. Much of the text in these agreements is very opaquely written. The parties involved must understand their exact meanings on some basis other than what the writing says. a. As an example, on page 4-11, in Item 2 under "Term," I am concerned about what could be a statement that the MOU overrides the City Charter, but the whole idea that "The terms and conditions of this MOU shall prevail over any conflicting provisions of ... rules and regulations which ... specifically provide that agreements such as this prevail' (and there is more) is quite a brain teaser whose intended meaning I am unable to entangle ("the MOU prevails over provisions that it prevails"??). I doubt many members of the NBFA could explain what they have agreed to. i. Moreover, in the similar Item 7 on the present agenda (see page 7-5), someone with better understanding of this than me found it important to change "terms and conditions" to "provisions," but not here. b. In the final MOU, new language is indicated by italics, but there is no indication of language that has been removed. So simply scanning the parts in italics by no means provides a complete picture of how the MOU has been changed. The "Release Time" provisions starting on page 4-11 are confusingly written in at first appearing to allow all members full pay for "release time" activities, then placing many restrictions one who is eligible and for how long. In five place in subparagraph 4 it uses the unusual term "designates" to refer to the people who have been designated as eligible. I am not aware of any dictionary that recognizes "a designate" as a noun. To the best of my knowledge, in the rest of the English-speaking world (and indeed in the rest of the MOU, including the rest of subparagraph 4) the term would be "designees." January 8, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 6 d. In subparagraph 5 (on page 4-12), was the reference to "subparagraph (3)" intended to read "subparagraph (2)"? e. Looking at the redline made available as part of Item 8 at the Council's December 11 meeting, it looks like paragraphs F and G (on page 4-13) have been amended to change membership in NBFA from "opt in" to "opt out," although the circumstances that initially cause employees to become members (from which they could, apparently, opt out) are not clearly explained. Section 1's subparagraph L.1, which defines all employees with listed job classifications as members of NBFA also seems to conflict with the provision in paragraph G allowing them to terminate their membership. g. Section 2 provides for extra pay as a percent of something, without always making clear what it is a percent of. For example, in subparagraph B.2, the "paramedic pay" is 17.25% of what? In the table in subparagraph G.1 (page 4-19) it is unclear why the 90 semester/unit line appears twice. It is also unclear if these bonuses are cumulative or if members are eligible for only one. That is similarly unclear regarding "certificate achievement pay" in the new subparagraph G.2 (laden with jargon unknown to me). The final paragraph of it seems to list three or four activities which may or may not separately trigger an accumulation of 3% bonuses. The first part of subparagraph J (page 4-22) ends in a sentence carried over from the previous MOU saying "This section shall terminate upon the expiration of this MOU'— and it continues to say that. Is this provision intended to terminate, or not? k. In Section 4, subparagraph D.2.b (page 4-35), "Tiers ll" (in two places) should be "Tier ll" 3. In short, this is a long MOU and I have not read all of it. The staff report (page 4-2) says, as it did on December 11, that in addition to the changes highlighted on that page, changes have been made to "grievance procedure and other non -economic matters." It would have seemed helpful to explain what those other matters are. a. In the grievance procedure (Section 5, subparagraph H, page 4-46), the word "by" is missing in "presided over bythe Fire Chief' (and possibly before "the City Manager"). b. More substantively, do the Council and the NBFA believe this MOU overrides the role of the Civil Service Board in employee grievances, as defined in Section 711 of the City Charter? January 8, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 6 Item 7. Tentative Agreement with Newport Beach Employees League Association (LEAGUE) Extremely minor note: the intent of "(LEAGUE)" in the agenda caption copied above is unclear. "(NBEL)" would seem to be the more familiar abbreviation comparable to "(NBFA)" in the Item 4 agenda caption. Someone appears to be attempting to achieve some degree uniformity in the layout and terms of these agreements, but as noted in connection with Item 4 on the present agenda, some changes made here (for example, subparagraph B.2 on page 7-5) were not made there. I have not had time to read most of this, but here are some random comments: On page 7-6, the identical verbiage appears once as subparagraph D.2, and then again at the bottom of the page. On page 7-7, is the City no longer an "agency shop"? The dues collection process now seems very vague. On page 7-14, in the note under the table, I am unable to follow how the chart "provides" that the accrual in 3 months is 39 hours. On page 7-14, is "protected classification" supposed to be "protected class"? Item 8. Annual Mayoral Appointments 1. Some of the committees to which appointments are being made are not well known. 2. The City Clerk's Boards, Commissions and Committees page contains informational links describing each, but some remain mysterious. a. For example, the only references Google can find to the "Inter -City Liaison Committee" date from the 1980's and 1990's, which comports with the Clerk's description of it. Will the Mayor and Mayor Pro Tem be sent looking for it? If so, where? And are there no longer any inter -city issues? b. The continued existence of a "Hazardous Waste Material - Joint Powers Authority" is equally difficult to verify. Has its name changed? c. The Orange County Coastal Coalition, which formerly met at in our own Community Room or Central Library, appears to have been inactive since 2015 (1 saw an agenda for April 28, 2016, but don't recall if it happened). Do we expect these to resume? 3. The mystery of the appointments to vanishing committees is compounded by the absence of any regular reports to the Council as a whole (at least at its public meetings) of the activities of the various appointees as to what happened at most of the meetings they attend, despite the standing item for that on the Council agendas (Item XVII on the present agenda). I am at a loss to understand how the appointees can act as January 8, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 6 representatives of the City without ever seeking guidance from or providing feedback to their colleagues. 4. Like some of the moribund outside committees, the City seems to have no posted record of a meeting of the "Newport Coast Advisory Committee." Its "Environmental Quality Affairs Committee" has met only once (June 18, 2016) since 2014, and all its citizen members terms expired in 2017. Does the Mayor's appointment of a Chair (technically there are supposed to be two mayoral appointments) indicate an intention to revive the committee? 5. There is also the always mysterious Countywide "City Selection Committee," which seems to be of some power and influence, but does not appear on the list even though it has been attended by various Council members representing Newport Beach. a. How people are empowered to represent Newport Beach on this committee is unclear to me. b. Yet, for example, at their November 2, 2017, meeting it looks like Scott Peotter voted for our city. On May 31, 2017, Councilman Herdman attended and was appointed to a contested seat on the Airport Land Use Commission. c. If Newport Beach is indeed participating, shouldn't its representative and alternate be named in the present action? 6. It might be noted that in 2012, for the similar Item 16, Council members who would be compensated by $250 or more for their service on the committees were not allowed to participate in confirming their own appointment. It is not clear to me why they are allowed to vote for themselves now. I would guess the change is attributed to the FPPC Regulation 18702.5(b)(3) cited on page 8-4, but the "History" part of the regulation does not seem to indicate that subsection (b) has changed since 2012.