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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 28, 2020 Consent Calendar Comments January 28, 2020, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 14, 2020 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in s*r�At underline format. The page numbers refer to Volume 64. Page 272, first full paragraph: "Council Member Dixon recommended condensing the timeframe for the Housing Element Update Advisory Committee application period and selection process, suggested that staff may need to determine how much sae acreage is available for development in the City, ..." [The video confirms this is what was said, but the extra word was presumably an accident: acres are a measure of area, modifying them with "square" doesn't make sense, as I'm sure the speaker knew.] Page 273, paragraph 2 from end: "In response to Council Member Dixon's question, Deputy Community Development Director Campbell advised that an inclusion provision, which was removed from the City Gharter Subdivision Code, could require projects over a certain size to include a percentage of affordable housing." [Jim Campbell mentioned the "Code" and the "Subdivision Ordinance." For those interested, the Council adopted the Inclusionary Housing Chapter of NBMC Title 19 ("Subdivisions") with Ordinance No. 2010-9, and, after learning of its unexpectedly low 5th cycle RHNA number, repealed the chapter with Ordinance No. 2013-28. The official name of Title 19 is "Subdivision Code." In any event, no one said, at least in the response, that this has ever been part of the City Charter.] Page 274, Item 111: "Lanae Q'Sbeilds O'Shields, Public Affairs Manager for Southern California Company, reported..." Page 275, Brenner, last bullet: "Displayed a slide announcing a mental health forum scheduled for January 29, 2020 at 6:30 p.m. in the Gommunity room Community Room" Page 280, paragraph 3: "Ryan Reza Farsai expressed concern regarding the modern-day civil war that is taking place in the country and construction of housing on Glean dirty property." Page 281, Item 21, paragraph 5: "At Mayor O'Neill's request, City Attorney Harp explained Council Policy A-2 regarding service on only one Board, Commission or Committee, adding that he did not believe Ms. Wood's service on the Civil Service Board and the VNB Executive Committee would raise a conflict." Comment: To the best of my knowledge, the restriction in Policy A-2 against serving on more than one standing BCC arose not out a concern about "incompatible offices," but rather (like the limit to at most two full terms) out of a wish that opportunities to serve on the City's BCC's be open to as wide a pool of applicants as possible, and not monopolized by a few. I don't think the absence of "conflict" is a valid reason for waiving the policy. Indeed, if it were, and selection were based solely on "experience counts," we would likely have the same small group of seasoned appointees serving simultaneously on all the City's BCC's, with "new" people having no chance. January 28, 2020, City Council Consent Calendar Comments - Jim Mosher Page 2 of 6 Item 3. Ordinance No. 2020-2: Amending Chapter 14.12 of the Newport Beach Municipal Code to Comply with SB 998, the Water Shutoff Protection Act I was surprised to read near the top of page 3-2 of the staff report that in a typical (?) year, the City shuts off water service to 105 customers. Are those for failure to pay? Are some of those currently occupied residences? And do the residents live there with no running water? How many such situations currently exist in the City's service area? Beyond those questions, the introduction of new staff -written laws on the consent calendar, with no expectation of discussion or debate, always seems problematic to me, as does the marked tendency for such things to be placed on the consent calendar at the last possible moment, creating a sense of urgency to pass something, good or bad. As an egregious procrastinator who does not see waiting to the last moment as a good quality in myself, I do not see this as a good quality in my City. In this particular case, staff has waited not only to the last possible moment, but beyond: the opening paragraph of the Discussion on page 3-2 says that compliance with SB 998 (a law enacted 16 months ago) is required by February 1, yet the proposed ordinance will not be effective until March 12, six weeks after the deadline. In addition, the proposed changes are presented to the Council and public with no context. The ordinance says it is amending Chapter 14.12' of the Municipal Code, but the amendments are shown only as snippets of change without showing the surrounding portions of code in which they fit. Indeed, the opening sentence of the redline (staff report page 3-6) notes Section 14.12.085(D) is being repealed, but gives no hint what the current words consist of. As a threshold policy question that merits discussion by the Council, the purpose of SB 998 is to ensure agencies adopt a lenient policy with regards to shutting off water service to certain impoverished residents when doing so would endanger their health or safety. But Newport Beach, in its existing NBMC Sec. 14.12.090.C.3, already has what appears to be in some ways a more expansive policy prohibiting the City from ever discontinuing service to any customer (regardless of income or payment status) when doing so would endanger an affected person's health. Staff proposes to renumber this as Sec. 14.12.090.0.2 and then to add provisions that appear to allow disconnecting a poor customer, even if it affects their health or safety, if they default on a payment plan. In other words, the minimal compliance with SB 998 which staff seems to be recommending seems to allow disconnecting service to a poor customer despite their assertion it will endanger their health. Is the new provision allowing disconnection supposed to always be overridden by the older policy prohibiting City actions that endanger health? If so, enacting contradictory policies doesn't help to make the City's policy clear. Likewise, the existing policy, parts of which are retained, appears to allow payment plans for all customers. The new provisions, while providing some new protections for certain poor and health -endangered persons, creates more hoops they have to jump through. The Council previously amended NBMC Chapter 14.12 by Ordinance No. 2019-16, which went into effect January 1, 2020. However, those changes are not reflected in the online code. Fortunately none of the currently -proposed amendments appear to overlap those apparently forgotten ones. January 28, 2020, City Council Consent Calendar Comments - Jim Mosher Page 3 of 6 Finally, according to the last sentence on page 3-4, the City Manager is expected to post the City's "discontinuation" policy by this coming Saturday, February 1 — well before the Council has acted to adopt its policy. As to the substance of the proposed "clean" version starting on page 3-14: 1. The existing code appears to refer to a shut-off as a "discontinuance" of service. SB 998 uses the term "discontinuation." The proposed ordinance uses both terms, most likely with the same intended meaning, yet the City's use of different words suggests it sees some difference in them. I believe the City should decide on one spelling or the other and use it throughout Chapter 14.2. 2. Page 3-14, title: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING CHAPTER 14.12 OF T►T► c 14 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO WATER SERVICE DISCONTINUATION FOR NONPAYMENT' 3. Page 3-14, third Whereas: "WHEREAS, sections of Chapter 14.12 of Title 14 er the Newport Beach Municipal Code must be amended to conform with the provisions of SB 998." 4. Page 3-14, proposed Section 14.12.090.A.2: "A customer's service may be discontinued for any of the following:... 2. If ordered turned off by the owner or tenant...." I have not attempted to trace the history of this chapter, but I see the new "2" is copied from existing Section 14.12.090.A. The use of the word "ordered" seems odd to me. Should it be "requested"? Beyond that, I am a bit bothered by an owner being able to "order" termination service to a tenant, when per Section 14.12.160 the tenant appears able to avoid termination only when service is being terminated for non-payment. 5. Page 3-16, paragraph 1: "The customer is deemed financially unable to pay during within the normal billing cycle if.- any member of the customer's household is a current recipient of Ca1WORKs, CalFresh, general assistance, Medi -Cal, Supplemental Security Income/State Supplementary Payment Program, or California Special Supplemental Nutrition Program for Women, Infants, and Children; and or the customer declares that the household's annual income is less than 200 percent of the federal poverty level." [The first change is needed to match the wording in the preceding subparagraph "b". The second change is critical to match the definition in H&S Code Section 116914(b) as enacted by SB 998. City staff appears to have misread an "or" as an "and". Customers are potentially eligible for this relief if they meet either condition. They do not have to meet both. 6. Page 3-16, paragraph 2: "A customer who meets all of the above conditions set forth in this subsection shall be permitted to amortize any unpaid balance of the delinquent account over a reasonable period of time, normally not to exceed twelve (12) months." [The hard limit of full repayment within 12 months proposed to be imposed by the Council seems incompatible with H&S Code Section 116910(b)(2), which recognizes the agency "may grant a longer repayment period if it finds the longer period is necessary to avoid undue hardship to the customer based on the circumstances of the individual case." January 28, 2020, City Council Consent Calendar Comments - Jim Mosher Page 4 of 6 7. Page 3-17: "14.12.095 Customer Requests Billing Disputes" [Staff proposed no changes, but in a Chapter entitled "Water Rates and Charges," this section seems misleadingly named. It has to do not with requests for service, but rather with complaints about the bill. In fact, it appears to implement what proposed Section 14.12.090.C.1 refers to as a "a customer formal dispute of a bill or the appeal thereof." Consistency in terminology would help to tie the sections together. 8. Page 3-17: The end of the first sentence of the long paragraph under the above heading was presumably intended to read "... shall be given an opportunity for review of the complaint, investigation, or request by the QW City's Revenue Division." [Such a change is needed to tie this to the reference to "City's Revenue Division" in the following paragraph — and the possibility of appeal to the Finance Director.] 9. Page 3-18, Section 14.12.120 Discontinuance Notice.: This section formerly applied broadly to discontinuance (discontinuation?) of service any customer for any reason. As revised it at first appears to apply discontinuance (discontinuation?) of residential service for any reason, but then meanders into a series of qualifiers suggesting it applies only to "discontinuation of residential service for nonpayment." As re -written it leaves these questions open: a. Are there still reasons, other than nonpayment, for "discontinuation"? If so, how are they noticed? b. How are non-residential customers notified of an impending discontinuation? 10. Page 3-19: the ordinance amends Section 14.12.125(A), but it does not amend the existing Section 14.12.125(B). a. The latter says a credit for erroneous disconnection of water service "shall be set by Council ordinance." Since it is not set in the current ordinance, it is difficult to guess which ordinance it might be set in. Likewise, the meaning of existing Section 14.12.070, dealing with charges for "unspecified" water uses has become increasingly obscure: the "specified" uses, whatever they may have been, seem no longer clearly specified. b. As to the modified Section 14.12.125(A), it is not clear if the $100 fine on top of the "restoration charge" applies to the customers described in subsection 3. As I read it, it would seem to, but charging a fine larger than and in addition to the statutorily - capped restoration charge does not seem in keeping with the intent of SB 998. 11. Page 3-20: end of paragraph 1: "Beginning January 1, 2021, such charges shall adjust annually for changes in the Consumer Price Index for All Urban Consumers in the elec-ted local area e Los Angeles -Long Beach -Anaheim, California area." [As written, it sounds like someone is supposed to apply a different CPI each January to each "local area" within the City. I don't think such detailed street -by -street information is available] Item 4. Ordinance No. 2020-3: Introduction of Ordinance Establishing Lobbyist Registration, Reporting and Disclosure Requirements As indicated in my comments January 22, which have been appended to the staff report as Attachment C (beginning on page 4-19), 1 believe the ordinance as proposed has a number of January 28, 2020, City Council Consent Calendar Comments - Jim Mosher Page 5 of 6 problems, including particularly the requirement for lobbyists to report all campaign contributions they made in the 12 months prior to registering. I assume the intent was to limit the contribution reporting to Newport Beach City Council candidates, but if so, that needs to be stated. I continue to believe a complete ban on gifts and contributions by paid lobbyists would be both legally defensible and better. The proposed action is also missing a concurrent Council resolution setting the filing fees. Will that be coming if the ordinance returns for adoption on February 11? For the benefit of the four Council members who were not part of the writing of this ordinance and are presumably having a chance to discuss this version for the first time on the consent calendar, it seems important to note that it has a very narrow focus: namely, to allow certain persons being lobbied to ask if the person lobbying them is being paid, and if so, to insist they register. It does nothing to inform the public about who is being lobbied, or what information is being given to them. To achieve that, and to give the public a chance to counter the possible misinformation being conveyed, would require some type of real-time reporting by the lobbyists and/or posting of calendars by those being lobbied. This measure offers neither. Item 7. Resolution No. 2020-8: Opposing the Modified RHNA Allocation Methodology Approved by the Southern California Association of Governments Regional Council The middle sentence of the operative Section 1 (staff report page 7-6) is missing at least one word: "The modified RHNA allocation methodology undermines the integrity of what is mandated to be a collaborative RHNA process, negating months of local participation conducted in good faith and posing a significant threat of lasting damage to the region as well as to the City of Newport Beach if permitted to stand." While not technically an error, the first paragraph on the preceding page ends with the word "predominately' where most people would expect the far more common spelling "predominantly." As to the substance of the resolution, given HCD's ringing endorsement of the revised methodology in its January 13, 2020, letter to SCAG, it's hard to imagine Newport's appeal to HCD accomplishing anything. Personally, I think it's important for the City to challenge both the 1.34 million units assigned to SCAG by HCD and SCAG's method of allocating those among jurisdictions. As to the latter, I think it's important to challenge the numbers used to describe Newport Beach in the SGAG methodology. In particular, the number of existing housing units, taken from some version of SCAG's Connect SoCal Regional Transportation Plan/Sustainable Communities Strategy, seems outdated and too low. The theory behind the 1.34 million units assigned to SCAG seems to be they represent the represent the difference between the existing occupied units on June 30, 2021, and the expected population need on October 15, 2029, to which have been added very large corrections to mitigate perceived defects in the existing housing stock (overcrowded, over -expensive and January 28, 2020, City Council Consent Calendar Comments - Jim Mosher Page 6 of 6 insufficient vacancies). Newport Beach needs to be sure its allocation is not based on an erroneously low current number (penalizing it to "catch up" to a level it has already achieved), as well as getting full credit for what it has already planned for beyond what has already been built. The current General Plan, including its Housing Element, planned for far more housing than was needed for the 5th cycle. The 6th cycle should, at most, require an incremental increase to what has already been planned for, but not yet built, not all new planning for units on top of what has already been planned for. Item 8. Resolution No. 2020-9: Formation of an Ad Hoc Committee to Explore Opportunities for Private Funding of the Proposed Central Library Lecture Hall For reasons that are not entirely clear, the City has continuing difficulty correctly stating the name of the company it has contracted with: Robert R. Coffee Architect + Associates. While I appreciate the transparency of the Council publicly acknowledging who it is appointing to this committee, I have many reservations about the propriety of these committees that meet out of the public view. In this particular case, I was under the impression that some of the "identified party(s)" felt they would be nominating members for service on the committee, which would have required it to deliberate in public. Evidently that is not the case. As to the possible one-year term of the committee, at the most recent meetings of the Library Lecture Hall Design Committee, the architect has repeatedly stated his goal of presenting his concept design to the Council in July. If the MOU is to be presented at the same time, the committee will need to complete its work in much less than a year.