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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 9, 2019 Written Comments July 9, 2019, 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 June 25, 2019 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in cr°�4, rkeout underline format. The page numbers refer to Volume 64. Page 130, Item 11: "PUBLIC COMMENTS — none" Page 130, Item VII: "CLOSED SESSION REPORT— none" Page 130, Item VI 11: "INVOCATION — Father Michael Laffoon, St. Mark Antiochian Orthodox Church" [?] Page 137, Item XVI, paragraph 4, sentence 2: "Public Works Director Webb discussed the traffic study that was conducted and noted that the community is opposed to installing bike lanes." [note: the spelling of the preceding speaker's name, "Cari Mock," may or may not be correct] Page 137, Item XVI, last paragraph: " LindsejF Lindsay Fox discussed traffic issues on Clay Street, ..." Page 140, last paragraph before Item 21: "With Mayor Pro Tem O'Neill, Council Member Duffield; and Council Member Avery voting no, the amended motion carried 4-3." In addition to these suggested corrections, it might be noted that on page 130, Council member Duffield commented on efforts to "keep the City's water clean" and at the top of page 131 Council member Brenner is quoted as commenting on efforts of the "Back Bay Conservancy." In both cases, the minutes reflect what was said, but the latter was most likely a misstatement (to the best of my knowledge, the organization being referred to calls itself the "Newport Bay Conservancy") while the former is an example of comments sounding different when quoted out of context: those present and hearing his full comment understood Council member Duffield was talking about efforts to "keep the water in the bay clean," but readers of the minutes will most likely assume he was talking about efforts to "keep the City's drinking water clean." Such likely misunderstanding of what is written in the minutes is common. For example, in paragraph 5 on page 136, 1 am quoted as making what could be read as a recommendation that the City offer $40,000 per year to every business in the City. I hope those reviewing the video will understand I did not "recommend" such a thing, but, on the contrary, suggested the Council reflect on the inequity of offering money to some groups and not others, and the obvious economic impracticality of correcting that unfairness by offering such a large sum to all. When I encounter such things in the minutes (which is frequently), I rarely suggest a wording that might be better understood, and have not done so here, in part because I have seen little chance the suggestions will be adopted. July 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Item 3. Ordinance No. 2019-11: Amending the Newport Beach Municipal Code to Allow Homeowners' Associations to Opt Out of the Saturday Construction Noise Restrictions and Project Signage Requirements The introduction and adoption of ordinances on the consent calendar, with no debate, discussion or revision, is always problematic. This ordinance -- prompted by some last minute direction to staff from Council related to yet another consent calendar ordinance adopted on June 11, but not yet in effect -- is no exception. Originally part of something intended to address construction parking, the Saturday noise ban and construction contact signage requirement was made applicable to a limited older "high density" portion of the City based largely on a theory that residents in most of the rest of the City paid dues to Home Owner Associations (HOA's) that already regulated construction activity and signage in those areas in the way desired by the residents. That assumption was flawed, and is now compounded by staff's belief, expressed in the report, that residents who want one part of the original ordinance (say, the signage requirement) but not the other (say, the Saturday ban) can do so by asking their HOA to opt out of the entire thing and then enact regulations, binding on the properties within their area, to do whatever part or parts they want. The flaw in this is that most of the neighborhood associations in Newport Beach, including most likely most of those listed in Attachment C to the staff report, and most likely including the Newport Shores Community Association whose request seems to have prompted this amendment, are not common interest developments with a governing board having real power over their members' land use given them by the Davis -Stirling Act. Simply put, Newport Beach is not Irvine, and even Irvine has areas that are not governed by a local Davis -Stirling board having power to regulate activities in that area (see their footnote 2). Before embarking on this attempted "fix," it might have been helpful to contemplate the only similar opt -out provision I am aware of in the Newport Beach Municipal Code, which was the 2014 gas -powered leaf blower ban (see NBMC Sec. 6.04.055.B.3.a), where the opt -out capability was indeed limited not only to true "residential common interest developments," but to ones "responsible for establishing regulations or operating rules controlling the management and maintenance of their exterior residential environment." The Leaf Blower Opt -out Procedures were published on the City website, resulting in the patchwork of opt -outs illustrated on the City's Leaf Blower Exemption Map. My intuition is that having a complex system like that in which City rules apply to some areas, but not to others, means they are likely to be enforced nowhere — as in my observation has been the result of the gas -powered leaf blower ban. By its own description in Attachment B, the Newport Shores Community Association, although possibly seeing itself as a "community association," appears to be nothing more than a cooperative group operating a shared one -acre recreational facility, likely with a dues requirement arising out of shared ownership of the facility. There is a similar group on my street, July 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 7 where we have a shared pool and park. I find it likely the NSCA governing board can regulate use of the shared lot. But if it's like my street, I find it equally unlikely they have any authority over what the members can do on their own lots, or have any power to speak for them on things unrelated to the shared lot. The letter also only says the Directors personally believe their members would be opposed to the Saturday construction noise ban. It says nothing about whether they want contact information posted on construction fences. Staff naively suggests the NSCA Board ask the Council to opt them out of both and then have the NSCA impose the local rules Newport Shores homeowners want. I doubt they can. The above said, I have these additional thoughts about the proposed Ordinance No. 2019-11: 1. It's unusual to see an ordinance proposed without displaying a redline version showing how it changes the existing code text. Perhaps in this case that's because... 2. Ordinance No. 2019-11 confusingly proposes to amend sections of the Municipal Code which do not technically yet exist. a. The staff report refers in multiple places to Ordinance No. 2019-9, which was adopted on June 11, 2019, but the "Whereases" of the proposed new ordinance make no mention of it. b. Don't the "Whereases" need to explain this is amending a previously -adopted ordinance? 3. Given the loose definition of "homeowners' association," Section 1 of the new ordinance (top of staff report page 3-6) seems to place on the City the job of determining its "geographical boundaries," which may not be as easy as it seems, since there may be associations within associations and some of them may be self -declared chamber of commerce like booster groups with vague boundaries. a. I am also bothered by the idea that an exhibit adopted by ordinance may later be, in effect, modified, willy-nilly, by resolution of the Council is strange. 4. Section 2, thankfully, and unlike the Leaf Blower Ordinance, does not give the purported associations the power to unilaterally opt out of the City's laws, but only allows them to petition the Council for an opt -out. a. Even then, given it may be uncertain who the board submitting the letter actually represents, it is unclear what kind of public noticing and hearing (before the Council) on the matter staff contemplates — especially problematic since the Council is supposed to make a finding as to how the opting -out of on area will affect adjacent areas. b. And whatever the merits of the organizations, it also bothers me that citizens have to petition their government through a third party organization. That seems un-American. 5. Section 3 is possibly the worst. In the previous Ordinance No. 2019-9, the Council appears to have placed an identical map in two separate and unrelated portions of the Municipal Code (specifically one copy in Title 10 and another copy in Title 15). The July 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 7 present ordinance reaffirms the map is being added, separately, to the two titles, but now makes the maps alterable by Council resolution. a. Section 2 provides a mechanism that is clearly intended for altering the "Designated High -Density Area" map in Title 10 per Section 1. b. Section 3 appears to give a procedure for altering the "Designated High -Density Area" map in Title 15, but it relies on Section 2 (which is part of Title 10). It is completely unclear if the "resolution" referred to in Section 3 is the same as the resolution referred to in Section 1, or could be a separate resolution. d. Staff (in its narrative on page 3-2) implies it believes a single Council resolution alters both maps. i. If that is the intent, wouldn't be wise to replace Section 3 with a statement that for purposes of Title 15, the "Designated High -Density Area" is as defined in Title 10. ii. But that inextricably links the "Saturday Construction Noise Ban" with the "Contact Information on Construction Fences Requirement," and it sounded from the Council discussion on June 25 that the Council wanted to be able to apply the two regulations independently of each other. If this is the intent, it needs to be spelled out more clearly. Item 8. Resolution No. 2019-70: Establishment of a Design Committee for the Proposed Newport Beach Library Lecture Hall Implicit in this hastily -conceived item seems to be the notion that the Board of Library Trustees — an institution that has existed since 1920 (see Ordinance No. 166) and whose importance, like that of the Council, was re -ratified (in Section 708) by the people's adoption of a City Charter in 1954/5 — is, at present, incompetent to guide and make recommendations regarding library - related matters and needs a separately created body to handle aspects of them (much like the Parks, Beaches and Recreation Commission was at some point deemed, likely without consulting it, to need a separate, independent Commission to oversee our recreational harbor). I am concerned: 1. The making of citizen appointments without advertising the opportunity to volunteer to serve is arguably in violation of state law. 2. The committee is being created at the request of the Mayor, rather than the City's Library Board. 3. The committee's purpose seems to be to cut the appointed Library Board out of further involvement in the process. 4. In a reversal of roles, the proposed lecture hall, although described as a "Library Lecture Hall" and on library grounds, seems to be envisioned more as an amenity for use by the private Newport Beach Library Foundation than as a library facility. July 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 7 To elaborate: Impropriety of Appointments without Applications When the Council agreed to put this item on the agenda, the request (June 25 Item XII, see also Item 1 of the present agenda, the draft minutes of that meeting, page 131) included waiving compliance with City Council Policy A-2, presumably regarding the appointment process for committees. Nothing in the present staff narrative mentions this, but I find such a provision buried in Exhibit 1 to the proposed resolution, near the bottom of agenda packet page 8-6. Presumably, the procedure being ignored is the requirement to advertise unscheduled citizen vacancies on City -created boards, commissions and committees (page 3 of Policy A-2). I do not believe it is within the Council's power to waive that procedure, nor even if within its power, do I believe it any more appropriate to name citizen members to this committee without a formal application process than it would have been to name members without an application opportunity to the recently created Homeless Task Force. In the latter case, the Council was pleasantly surprised by the wealth of volunteer community expertise it had a chance to tap into, and it is not clear why it would want to forgo such a surprise in the current case. The chance for local governments to avail themselves of such unexpected talent is, in fact, the stated premise behind the so-called "Maddy Act" (Cal. Gov. Code Secs. 54970 - 54974). Indeed, Sec. 54974 requires all California cities, counties, and other local agencies to advertise every unscheduled opportunity for public members to serve on "any board, commission, or committee" — and that is a mandate that cannot be waived, even by a charter city like Newport Beach. I appreciate that our City Attorney reads Sec. 54974 so narrowly as to make it to apply only to openings that occur as a result of "resignation, death, [or] termination" (ignoring that it continues with "or other causes"), but this leads to a doubly absurd result: If the present vacancies being filled by appointment were not "unscheduled," then they must have been scheduled — but if so, when and by whom? And if scheduled, why were they not advertised then? 2. Although by the City Attorney's reasoning none of the present openings need to be advertised, if any of the pre -selected citizen appointees refuse appointment, then the identical opening does need to be advertised (because something similar to a resignation has occurred). and the law abhors interpretations that lead to absurd results. Bypassing the Board of Library Trustees The proposed resolution, worrisomely, says nothing about passing recommendations through the BLT. Apparently all matters having to do with the Lecture Hall are being taken out of their hands. July 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 7 Indeed, under the proposed scheme, not only will the BLT have no role in making recommendations about the design (or siting?) of the Lecture Hall -- aside from its one vote out of five on the LHDC -- but it won't even be allowed to choose that one representative on the LHDC. The Mayor will make the choice for them. Role Reversal The staff report opens with a statement that "The City Library Department runs and manages many popular programs and community events, including speaker forums." In fact, the vast majority of the "speaker forums" at the Central Library are presented not by the Library Department, but by the Newport Beach Library Foundation as completely independent functions, with both content and presentation determined solely by the latter and its various private committees. Prior to posting an amended version, the staff report also telling opened by saying City staff was working with the Foundation, rather than the Board of Library Trustees, on the Lecture Hall project. The Foundation was established in 1989 to assist in building, and creating an endowment for, the expanded Central Library by supplementing the money raised by the existing Friends of the Library organization. It was re -incorporated in 2000. There is also a Cooperating Agreement with the BLT from that same year. The Foundation's sole stated purpose is to serve as a conduit for contributions to fuel City programs and capital needs. It was never intended to provide independent programming in competition with or as a replacement for the functions the money was supposedly being raised to fund. Disturbingly, at the June 25, 2019, Council meeting (where Mayor Dixon presented her request to create the LHDC) the Council also made its annual appointments to the City's boards and commissions, and, as part of that, Council member Brenner mentioned that in evaluating candidates to replace the termed -out Ms. Johnson -Tucker (who is proposed to go onto the LHDC) on the Board of Library Trustees it was important to find someone with fundraising experience, as that would be needed to support the Lecture Hall process. This would appear to be in conflict with former Council Policy A-5, now part of A-2, which memorialized the division of labor between outside foundations and the City's boards by prohibiting the city's boards, commissions and committees from engaging in fundraising. As Ms. Johnson -Tucker herself said when on the BLT, administration and fundraising "require different skillsets." But Policy A-2 does say "An exception to this policy may be granted by the City Council on a per project basis when circumstances justify the exception." So it looks now like the Council sees such a justification, and expects the BLT to drive fundraising to enhance the Foundation. July 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 7 Additional Concerns Beyond the above concerns, Exhibit 1 describes the committee reviewing and making recommendations regarding the responses to a "Request for Proposals." It does not explain who, if anyone other than staff, will participate in preparing the RFP or if there might be more than one RFP and if so, who will be involved with them. And although called a "Design Committee," the Purpose & Responsibilities section of Exhibit 1 ends (page 8-7) with a catch-all Provision E that could be read as empowering the LDHC, at its own discretion, to take over all matters related to the Lecture Hall project, including possibly its future use, even more completely bypassing the BLT — an impression enhanced by the thought that the LDHC will continue to exist through the "opening" of the new facility. Finally, Exhibit 1 empowers the Mayor to appoint the Chair and Vice Chair of the LDHC. It would have seemed a courtesy to the remainder of the Council to have revealed who those will be if the proposed list of members is confirmed. Item 12. Amendment No. One with Hardy & Harper, Inc. for On -Call Asphalt Repair Services The staff report seems a bit confusing and incomplete. The original request to Council (Item 6 on the July 11, 2017, consent calendar) involved two asphalt vendors and resulted in two three-year contracts (C-8508-1 with Hardy & Harper and C- 8509-1 with NPG). Although the 2017 staff report did, at the very end of the discussion, mention $200,000 per year for each vendor, the action requested of and approved by the Council was clearly indicated as 1200,000 per vendor," presumably for the full three-year term as indicated in the contracts. Since a contract amendment has not previously been made, it appears that after two years the originally approved $200,000 has not been entirely spent, and if staff is now anticipating a $400,000 increase will be sufficient to cover three additional years of contracting with Hardy & Harper (in addition to the dollar increase, staff is asking to extend the original term by two years), it sounds like the actual spending has been, and is expected to remain, more in the range of $100,000 per year. It would have been helpful to indicate what the actual yearly expenditures on asphalt repair are, and what the status of the separate on-call contract with NPG, Inc., is: that is, why does it, too, not need amendment?