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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed June 11, 2019 Item No. SS3 June 11, 2019, City Council Item SS3 Comments The following comments on an item 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 SS3. Update on Short Term Lodging Based on the attachments, it is good to see staff apparently planning to discuss the detailed language of an ordinance with the Council before it is presented for introduction. It would have been even better if the "clean" version that has been posted for review matched the latest, amended "redline," but this appears to still be very much a work in progress. The attempt to copy court -tested language from other cities is also good, but the Council should understand there no universally -accepted model, and Newport Beach's currently ordinance, which the other's language is being grafted onto, is quite different from others. Indeed, since the fear in regulating internet advertisements is the possibility of challenge an invalidation due to federal preemption, court decisions from other parts of the country may be as relevant as the one cited from Santa Monica. The most recent readily available one opining on this subject seems to be AIRBNB, INC. v. City of Boston, Civil No. 18-12358-LTS (Dist. Court, D. Massachusetts 2019), which noted that a recent ordinance enacted by the City of Boston "echoes ordinances enacted by San Francisco and Santa Monica, both of which survived nearly identical legal challenges by Airbnb," yet might still contain some unique provisions that will require further litigation (such as a provision completely banning an internet host from posting any listings for Boston in the event of repeated violations). Thus, we have at least three examples of court -reviewed short term lodging of municipal code for comparison: • San Francisco's Chapter 41 A -- tested by Airbnb, Inc. v. City & Cty. of San Francisco, 217 F. Supp. 3d 1066, 1071 (N.D. Cal. 2016) • Santa Monica's Chapter 6.20 -- tested by HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 680 (9th Cir. 2019) • Boston's Chapter 9-14 — with possible problems still being litigated in the case cited above It might be noted these codes all look very different from each other, and very different from ours. So reliance on copying a few words out of context may not be sufficient to avoid challenge. One common feature that leaps out of these three, but which does not appear to be part of the Newport Beach proposal as presently written, is that before attempting to regulate internet advertising, each of these cities commits, in its code, to maintaining a readily available registry of all units within the city that can be legitimately advertised at a particular moment, and by June 11, 2019, City Council Item SS3 Comments - Jim Mosher Page 2 of 2 whom. The internet platform operator can then readily compare the listings on their site to the city's registry to determine which listings are legitimate and which are not. In contrast to this, our ordinance (proposed Sec. 5.95.050.C) seems to penalize the internet platform operator if they fail, on their own, to determine, in some undefined way, if each user advertising a Newport Beach location is the possessor of both a valid Newport Beach business license (oddly, attached to the "unit" rather than the person) and a currently valid short term lodging permit for the unit being advertised. The burden that places on the internet operator to first understand our systems and then locate the information seems substantial. To reduce that burden and survive challenge, I would guess Newport Beach would have to commit (in its code) to producing an easily consulted and definitive registry like the other cities. Another clear difference which needs more explanation is the definition of who is allowed to and responsible for conducting the short term lodging operations, and how that definition impacts "home -sharing." The Newport Beach code appears to restrict its application to property owners in the strictest sense, while the other cities include lessees. Santa Monica not only includes sub- lessees, but includes some strange language that places liability on all persons providing services to the unit (including maintenance and even insurance), referred to collectively as the potential lodging "host." Without further explanation, it is not obvious what the intent is in copying language from Santa Monica, but substituting "owner" for "host." In other words, is Newport trying to prohibit a family from renting a room in a house if the person named on the deed is on vacation during the renter's stay? And what if the recorded owner is a trust? Who must be present to have the rental qualify as home -sharing? And if the arrangement does not qualify as home -sharing because the recorded owner is not present during the stay, is it intended to be outside the range of the code, and therefore not subject to TOT, etc.? (one might similarly wonder what the rules are if a paid stay is longer than 30 days) Received After Agenda Printed June 11, 2019 Written Comments June 11, 2019, City Council Consent Calendar Comments The following comments on items 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 1. Minutes for the May 28, 2019 City Council Meeting The corrections suggested below in strikeout.underline format are to the passages from the draft minutes shown in italics. The page numbers refer to Volume 64. Page 107, Item SS2 (announcement of conflicts on CIP), first bullet: "Council Member Avery: Balboa Peninsula Crosswalks Improvements Phase ll and Balboa Boulevard Pedestrian Crossing Phase II projects due to real property interests" [The video (at 12:25) confirms this is what Council Member Avery read from the City Attorney's script, but from the PowerPoint slides, I suspect the reference was to Phase "I" and 11" (not "II" and "ll") of the same project, referred to as Projects 18T03 and 19T11, both reported on page 37 of the proposed CIP budget. See Slide 4 (Completed / Near Completion: "Balboa Peninsula Ped Crossings") and Slide 7 (In Design: "Balboa Blvd Ped Crossings Ph 2")] Page 107, last paragraph: "Public Works Director Webb, Acting City Engineer Sinacori, and Administrative Manager Copeland utilized a PowerPoint presentation ..." Page 114, Item XVI, paragraph 5: "Susan DveraGk Dvorak expressed concerns..." Page 114, Item XVI, paragraph 6: "Pat Vannes Banas spoke..." Page 114, Item XVI, paragraph 7: "An unidentified speaker Peppy Palmer discussed the issues she is having with a construction project next to her home, ..." [see video at 2:42:50; Ms. Palmer, being well known to the Council, forgot to mention her name, but it seems unlikely she intended to speak anonymously.] Page 115, in "public hearing" section, paragraph 2, line 3: "size and length of this dock, the precedence precedent it would set if permitted, the possibility of a large boat" Item 3. Ordinance No. 2019-9: Adoption of an Ordinance Restricting Construction Related Noise on Saturday and Posting of a Project Information Sign for Construction Projects in High -Density Areas I commented on this ordinance when it was introduced as Item 3 on May 28. Since nothing was changed at first reading, all those concerns remain valid. From the May 28 minutes, the Council's rationale for confining the ordinance to a mapped area of the City was that it was neither needed nor desired in gated areas with strong homeowners associations. Yet, as enacted, the ordinance applies to gated communities with strong HOA's (Bayshores, Bay Island, Harbor Island, etc.) while providing no relief at all to vast areas without gates on HOA's (essentially everything west of the Upper Bay, plus Santa Ana Heights. I June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 9 continue to be unable to understand the harm that would be done by requiring the posting of contact information on the already -required construction fences in those areas. Item 4. Resolution No. 2019-48: Approving the Proposed Residential Dock Reconstruction Project at 939 Via Lido Soud It's possible some of the Council members who voted to approve this might want to reconsider their vote as some misleading statements were made at the hearing. In particular, the Conzelman's may have created the impression that when they purchased their home a few years ago, they were assured the could, by right, build a dock of the sort being proposed, but that Council Policy H-1 had since been changed without their knowledge. Administrative Manager Miller may have seemed to confirm this by saying that, in some areas, Policy H-1 had formerly allowed docks to extend up to 20 feet beyond the pierhead line, but now all extensions beyond the pierhead line need Harbor Commission review subject to the new criteria. What Mr. Miller was referring to was the "west" side of Lido Isle (the straight part with sandy beaches facing Marina Park), between U.S. Bulkhead Stations 172 and 174, where the former Policy H-1 (see the 2008 and 2004 versions) did indeed allow 20 -foot extensions out to the project line. But the present property is not in that section, and Policy H-1 has never allowed construction beyond the pierhead line at this location, or anywhere else on Lido Isle (other than between Stations 172 and 174). As Mr. Miller tried to explain, the existing dock, extending several feet beyond the pierhead line, had not been constructed in conformity with the approved plans. Although it may not be completely relevant, since the newly approved dock could go to new owners with different intentions, the Council should be aware they were presented with testimony about the reason for wanting the oversized dock that conflicted with what the Harbor Commission had been told. As the draft minutes indicate, the applicant assured the Council "they do not intend to dock a large boat as it impedes their view." But when the same matter was before the Harbor Commission on February 13, the same person told the Commission he wanted to reconfigure the dock so it "could accommodate as many Harbor 20s as possible for regattas, and could accommodate his wife's dream boat." Later the dock builder "reported the proposed vessel's overall length is 79 feet." (per Harbor Commission minutes, pages 3 and 4 — which were in the staff report, but possibly overlooked). Regarding the proposed resolution: On page 4-5, in the fourth "Whereas," the statement "that the gangway and reconfigured U -shape float (currently permitted to extend up to the pierhead line) would extend 16 feet beyond the pierhead line;" appears to be incorrect with regard to "the gangway and" and those words should probably be deleted. The gangway connects to shore, and does not extend to, let alone beyond, the pierhead line. 2. On page 4-6, in the first "Whereas," it is not clear why it says "on or about February 13, 2019," for the Harbor Commission hearing date, since the date is quite certain. The words "or about" sound needlessly evasive and should probably be deleted (with same June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 9 comment regarding the third "Whereas" on that page). In line 5 of the first "Whereas," the reference to "NBMC" does not explain what code section was used for noticing, and it should probably be inserted since it is not obvious from the context. 3. On page 4-7, in Section 1 (the CEQA determination), the increase from 1,287 square feet to 1,765 square feet of overwater coverage represents a 37% expansion. It is not clear how staff expects the Council to be able to find a 37% increase to be "negligible or no expansion" (as is needed for the first cited exemption to apply). Indeed the need (or lack of need) for such an expansion is likely to be an issue for the Coastal Commission. 4. In Section 2, the resolution, oddly, doesn't quote the required findings but paraphrases and sometimes truncates them. a. In the case of 2.A, the resolution indicates deviations from the Design Standards are allowed in the event of "practical difficulties," but does not explain what the practical difficulties are in this case. b. In addition, as seems increasingly to be the case with variance requests presented to the Planning Commission, the "facts" in support of the findings are marshaled in such a way as to imply the decision maker has no responsibility to use their independent judgment as to whether the proposal might be problematic, but instead has a positive obligation to approve the deviation unless a member of the public is able to supply irrefutable evidence that a required finding cannot be met. However that may be, as best I can tell, Section 2 completely, and without explanation, fails to address the required finding of NBMC Section 17.50.040(B)(3). Namely, that the proposal conforms "to the policies and regulations of the certified Local Coastal Program." Item 6. Resolution No. 2019-50: Adopting a Resolution Pursuant to Labor Code Section 3600.2; Workers' Compensation The description of this item on the agenda, which simply repeats the above title's statement that it involves adopting a resolution related to a Labor Code section having to do with workers' compensation, is not particularly informative. The staff report adequately mentions and describes AB -1749 ("Workers' compensation: off-duty peace officer"), which enacted the new Labor Code Section 3600.2, but does not explain it was prompted by the Orange County Board of Supervisors' denial (based on legal advice from their counsel that they had no authority to grant them) of claims by off-duty Sheriff's Deputies for injuries sustained while allegedly aiding victims of the tragic October 1, 2017, mass shooting in Las Vegas. According to the staff report, the present resolution would allow the City to grant a claim under similar circumstances. And despite AB -1749's author's belief he was simply re -stating existing law, under the new EIA rules the existence of such a resolution is now apparently necessary for June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 9 that agency to assist in paying. But it apparently, as with existing law, does not commit the City to granting such claims. Given that history, it might have been helpful to disclose if Newport Beach has previously honored any workers' compensation claims in connection with the October 2017 tragedy, or any other out-of-state incidents. Item 11. Resolution No. 2019-53: Formation of Ad Hoc Committee on Business Improvement Districts It is good to see this committee/"working group" being formally and publicly created by the Council, rather than appearing out of the blue by staff appointment (as has happened in the past, most recently, with various aviation -related committees). In that connection, although the staff report refers to this ad hoc committee as consisting of "two Council members and City staff," it is presumably understood that the unnamed City staff people are not really members of the committee, but simply resources available to assist they two committee members in their research. If any non -Council -members were part of the committee and had any say in its recommendation back to the Council, then the Brown Act would require all the committee's discussions to be noticed and open to the public. Regarding the substance of the committee's work, I'm not sure who they plan to talk to, but I think it's important to realize most of the City's BID's evolved out of existing private organizations that had experienced difficulty raising enough private funds to sustain themselves. To keep the group going, a small group of enthusiasts then turns to the government to impose involuntary dues on prospective members, with promises the groups will be self-sustaining with no drain on public resources. But then they eventually seek a government "match" to the involuntary contributions, and having established that as a "right," may even evolve back, as has happened with Balboa Island and Balboa Village, into private organizations totally funded by the government "match" with no member contributions at all. That model, it seems to me, is not a particularly good or democratic one. Item 15. Tentative Agreement with the Part Time Employees Association of Newport Beach (PTEANB) The staff report provides no explanation for why the negotiations with this group weren't started until after the previous agreement with them had expired. That said, it is good to see it involves no retroactive raises. The staff report is less clear about what effect approving the MOU with the 55 represented employees will have on the City's relationship with the additional 208 part-time staff who are not represented by the group. It also does not explain the significance of page 15-16 where the tentative agreement has been signed by eight unidentified people, but not by the one PTEANB member whose signature seems to be needed on page 15-15. June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 9 Regarding the substance of the agreement, it is a little disturbing to see the boilerplate statement under "B" on page 15-5 (apparently common to all the City's MOU's) that there may be "decisional or statutory lave' that allows agreements like this to prevail over provisions of the City Charter. Given that Article XI, Section 5(b) of the California Constitution gives charter cities "plenary" (which means "absolute") authority to set the compensation of their employees, it would be good to know what laws those are that allow a council to set compensation contrary to its charter. Item 16. Tentative Agreement with the Newport Beach Fire Management Association (NBFMA) It is very good to see an agreement that has been reached before the old one expired, and that involves no retroactive terms. Item 17. General Liability Third Party Administrator - Approval of Professional Services Agreement with AdminSure, Inc. It is good to see staff concluding from the prescribed procurement process that someone other than the present contractor is not only better qualified to do the work, but also cheaper (at least for the new contract period). The staff report might have acknowledged, however, that AdminSure is (and has been since 2014) the City's current incumbent on another contract (C-5976), for worker's compensation claims. It might also have indicated how much the City is currently paying for the same services ($537,805 plus CPI for the five-year term of C-3366). Item 19. Appointments to the Aviation Committee It is a continuing mystery why one of the deal points in the Newport Coast annexation was that residents there would have a special seat reserved for them on the Aviation Committee. Did residents in Newport Coast want to be sure the City wouldn't push too hard for re -use of the EI Toro Marine Air Station (fearing it might have affected them more than JWA)? Or was there some other reason? In any event, it now has the curious effect that District 7, the district with arguably the least impact from JWA, has the greatest representation on the Aviation Committee. Regarding the other appointments, as City staff is undoubtedly aware, unlike the Airport Working Group and Stop Polluting Our Newport, the name "Citizens Against Airport Noise and Pollution" has not been found among legal entity registrations filed with the California Secretary of State through June 4. 1 continue to object to having seats reserved for "The President ... or his/her designee" of any of these groups. My reasons are these: 1. Although it may not be technically prohibited by the "Maddy Act" (Cal. Gov. Code Secs. 54970 et seg.), it is certainly contrary to the concept that local government citizen appointments should be open to enough people to make them worth posting. Posting June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 9 notice of the opportunity to serve in a position for which a single person qualifies seems rather pointless (indeed, for that reason, I don't think these citizen -appointee positions were actually ever posted or advertised). 2. Requiring membership in a private organization as a pre -requisite for government service is contrary to my notions of civics. 3. In the event the designated President chooses not to serve, giving a person unconnected with the government the power to choose who will fill a government position is also contrary to my notions of civics. Item 20. Board and Commission Scheduled Vacancies - Confirmation of Nominees In commenting on this normally routine item, it is difficult to know where to begin. The recommended actions ask the Council to commit two violations of the City Charter, with one of those supported by written testimony developed in violation of the Brown Act. I would start, however, by wondering how many of those being considered for appointment have ever bothered to attend a meeting of the body they are applying for, let alone having contributed anything to its deliberations, orally or in writing? Of the current crop of applicants, only Renee West, a candidate for the Harbor Commission, cites prior attendance at its meetings as a qualification (although I don't recall her speaking). And I recall Ash Kumra attending, candidate for the Board of Library Trustees, attending one meeting (again, without saying anything, as best I can recall) when he thought he might be appointed a year or two ago. It is probably vain to note I have had an application in continuously for service on the Board of Library Trustees, and attended and participated in nearly all their meetings, since 2009. And have attended and participated in nearly all the Planning Commission meetings since 2011 (and had an application in continuously since an unscheduled opening developed in later 2011). Yet am evidently not considered a qualified candidate for either. Board of Library Trustees First, it might be noted that in nominating and appointing Barbara Glabman, who is currently completing the second year of her 2017 appointment to the City Arts Commission, the Council would be creating yet another vacancy on the latter commission, which the Ad Hoc Appointments Committee was already unable to find qualified applicants for. Also, although there is no Council policy prohibiting citizens from seeking appointment to another position before completing the service they previously committed to, it does not seem like something the Council would want to encourage. To be fair, given the Council's penchant for reappointing incumbents, the current BCC Roster suggests there won't be an "opening" on the BLT until 2023 (when Ms. Ray will be termed out), and perhaps Ms. Glabman didn't want the two year hiatus that would result if she didn't seek reappointment to the CAC in 2021. It might also be pointed out that although the current BCC Roster indicates the incumbent, Janet Ray, was appointed on "6/30/2015," she was actually appointed on September 8, 2015 (see Item 21), which suggests the appointment process can be delayed when there is a lack of June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 9 qualified applicants, as seems, in the Ad Hoc Appointments Committee's opinion, to be the case this year. In 2015, the Council had two positions to fill on the BLT, to one of which it apparently intended to re -appoint incumbent Jill Johnson -Tucker, and to the other, newcomer Will O'Neill. However, the Jack Wu matter caused Mr. O'Neill to withdraw his application and pursue a Finance Committee appointment, instead. Rather than backfilling the list of applicants with another name from the existing pool of qualified applicants, the Council instructed the Clerk to re -advertise the vacancies so the desired appointee (Ms. Ray) would have time to add her name to that pool. A re -advertising of opportunities to serve would seem appropriate again this year in those cases where the Appointments Committee feels there are fewer than two qualified applicants per position. City Arts Commission The recommended action to appoint Arlene Greer for a one-year term would violate City Charter Section 702 ("Appointments. Terms."). While the Council is free to follow the staff recommendation to waive the term limits it has established in Council Policy A-2 (which are not part of the Charter), it is not free to waive the requirements imposed on it by the people through their Charter. Section 702 clearly states that citizens are to be appointed for four-year terms, and gives the Council no latitude to change that. The letter from five sitting City Arts Commissioners supporting that recommendation, attached following Ms. Greer's application and designating her as their desired Chair -apparent, was submitted in violation of the Brown Act — and for that reason, if solicited by the applicant, should result in disqualification. The letter does not cite the public meeting at which the Commissioners reached their decision, and I do not recall there ever having been one. If the letter is accurate, it provides strong evidence the sitting Commissioners illegally discussed this matter outside a public meeting, either together or serially — as they likely do other Commission matters. As the current Chair, and the most experienced of the Commissioners, avoiding such situations should have been especially Ms. Greer's responsibility. Civil Service Board The recommendation to make an appointment based on a single name provided by the Civil Service Board violates Citv Charter Section 710. The asterisked footnote on staff report page 20-3 says "this year's Civil Service Board appointment would generally come from a list of three nominees provided by a majority of the Civil Service Board members." But it is more than "generally." That this seat be filled by appointment come from "a list of three persons nominated by a majority of the [other] four" members of the CSB is a requirement of the Charter. The Charter does not give either the Council or the CSB the latitude to waive the number "three." In short, the vacancy on the CSB needs to be re -advertised until the CSB is able to come up with three names from which the Council may choose. June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 9 And following the Charter prescription is more than a technicality, for allowing future CSB's to present a single name would allow them to name their fellow members without any Council discretion, which is clearly not what the Charter intended. The fact that, in this case, only one person applied is irrelevant. The Charter requires the CSB to present three names, even if that necessitates action on their part to scare up additional interested parties. In their defense, at the June 3, 2019, meeting where the one application received was reviewed and voted on, the CSB members were given a staff memo that did not explain the Charter Section 710 requirement for three nominees. I was present at the meeting, but did not bring the problem up to them since I, too, was unaware of it at the time. Harbor Commission As with the Planning Commission (see below), it is disturbing to see just three names being offered from which the Council is expected to fill two "open" positions (that is, ones for which no incumbent has applied for re -appointment). In the case of the Harbor Commission, it is a bit difficult to fathom why the Appointments Committee could produce only three names. In this case, we have both an unexpected "retirement" as well as an incumbent choosing not to apply for re -appointment, resulting, too the extent that was known, in 11 applications being submitted. Without an explanation of what criteria were applied, it is hard to believe that 8 of the applicants could not be recommended to serve on the Commission. And it would be interesting to know what the criteria were. Since the Commission makes recommendations, including on spending, that affect everyone, and not just harbor users, I personally believe it would be useful to have people on the Harbor Commission who are not intimately familiar with harbor matters. Plannina Commission As with the Harbor Commission, having only three candidates from which to fill two "open" positions on something as important as the Planning Commission is not, in my opinion, a good thing. And it seems more than a bit insulting to the remaining 9 applicants (including myself, there being 12 total) to declare they are unqualified to serve. As explained above having happened with the Board of Library Trustees in 2015, 1 would suggest the Council use its discretion to re -post the existence of these vacancies. Having sitting PC Chair Peter Zak (and HC Chair Dave Girling) choose not to apply for re- appointment is highly unusual. And extending the application period would be similar to the (mandatory) provision in the Elections Code that when an incumbent does not file for re- election, the normal deadline for filing nominating papers is extended. Compounding this problem, I believe that in attempting to follow Council Policy A-2, the City Clerk has discarded applications of persons who may have assumed they were still active candidates. Some of these may have had their names in the running for so many years, and June 11, 2019, City Council Consent Calendar Comments - Jim Mosher Page 9 of 9 have become accustomed to the annual inquires about whether they are "still interested," that they may have incorrectly assumed their names were still in the hat. But as it turns out, each month prior to May the Clerk's Office discards all applications with date stamps older than two years without alerting those people that they need to re -apply. The email they received the previous year to enquire about their continued interest will have likely lulled them into a sense the Clerk is watching over their application and keeping them informed about its status. But she is not. To remedy this, I think it would be appropriate to send a one-time email notifying appointment seekers whenever an existing application has been discarded and informing them that if they are still interested they need to submit a new one.