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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 25, 2020 Consent Calendar Comments February 25, 2020, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@-vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the February 11, 2020 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in s*.�, wilkeout underline format. The page numbers refer to Volume 64. Page 302, Item SS1, paragraph 1, last sentence: "City Attorney Harp added that the Harbor Commission will also review all commercial uses as part of the Marine A-cti►FiActivities Permit chapter. Page 306, Item III, paragraph 1: "Liz MGBeth McNabb, Assemblywoman Pettie Petrie -Norris' Office, provided legislative updates to City Manager Leung." [see handouts provided] Page 306, Item III, paragraph 3: "Colonel Stephen Sharma noted ratepayers pay 10-12 cents/kilowatt-hour for electricity while a nuclear fusion power plant charges 1.2 cents/kilowatt- hour, and suggested replacing California's fossil -fuel supply with nuclear fusion supply." ["kilowatt-hour" is normally hyphenated. It might also be noted that while this sentence accurately reflects the statement made, no commercial fusion power plants currently exist, nor have any workable designs for one been demonstrated.] Page 308, Item 7, end of paragraph "b)": "... and directing the Harbor Commission to consider commercial uses as part of the Marine AGtivitJf Activities Permit process, commercial leases, dock encroachments, and City Manager authority to sign leases." Page 312, Item 20, paragraph 2: "Council Member Dixon stated that the ad hoc committee received input from property management companies, residents, and staff, noted that District 1 has the most short-term rentals and are they welcome in the City; however, with the inception of online rentals, short-term lodging has become burdensome to many neighborhe neighborhoods, ..." Page 313, paragraph 6: "Kris Murray, Expedia Group, advised that Expedia Group represents VRBO and Home Away HomeAway, ..." Page 315, paragraph 1: "In response to Council Member Muldoon Muldoon's questions, City Attorney Harp advised that the California Coastal Commission may require a coastal development permit or modifications to the Local Coastal Program, and discussed cities rights to regulate things within their police power." Page 315, paragraph 7: "In response to questions from the public, Community Development Director Jurjis and License Supervisor Navarrete explained that the total TOT is 10 percent, the ad hoc committee wanted to scale back where possible and to allow the existing 59 short-term lodging permits outside the Coastal Zone to continue for ten years and not allow any additional permits." February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 2 of 10 Page 315, paragraph 2 from end: "City Attorney Harp noted the revision to Section 5.95.045.A.6 of the notice shall be in substantial compliance with a template created by the City, which will be available on the City website." Page 316, end of motion in partial paragraph at top of page: "..., with amended language to SeEtien Sections 5.95.050.A and 5.95.045.A.6 and requiring a of two night minimum stay, and pass to second reading on February 25, 2020; and c) direct staff to return with a provision regarding Newport Island ^^d *^ reyis ce,.�:,,., 5.95.040.A. 6 " [See video. At 4:22:55, City Attorney Harp reads an addition to Section 5.95.045.A.6 (misstated as "5.95.040.A.6") requested by Council member Brenner, which was added to the motion. Earlier, at 4:22:08, Mr. Harp indicated he could add language requiring a two night stay, minimum. But exactly what the language would be, and where it would go, was not indicated. The continuing confusion as to what Newport Beach Councils are voting on — in this case not understood even by the transcriber of the recording — could be largely avoided if the presiding officer followed the procedure dictated at the bottom of page 4 of Council Policy A-1, namely the requirement to restate the motion immediately prior to the vote. Saying nothing or asking "does everyone know what we're voting on?" doesn't comply and doesn't, usually, hack it.] Page 316, paragraph 2 before Item IV: "Jim Mosher discussed his understanding of the issues and believed Council should not sue the California Coastal Commission because it is likely to lose and the dispute involves the California Coastal Commission andrip vats individuals." Item 4. Ordinance No. 2020-8: Updating the Newport Beach Municipal Code for Short Term Lodging Ordinance Text Concerns I commented on this ordinance when it was introduced at the February 11 meeting. As one always hoping the City will, whatever their merits, at least enact clearly written laws, I remain concerned this ordinance contains poorly and confusingly written passages, including less -clear -than -they -could -be definitions and the deliciously obscure last sentence of Subsection 5.95.065.A.3 (currently on agenda packet page 4-18, with its clearly unintended "prior to the passage of fourteen (14) calendar days from the mailing of notice to the owner'). I am also concerned about Subsections 5.95.045.B and C which give the City Manager a vaguely-defined power to expand the provisions of the ordinance by adding new standard and special conditions to permits. The range of what those could be seems to me to be a legislative matter that should not be delegated to a non -legislative person. Process Concerns I now have additional concerns about the process, which I believe has violated the letter of the procedure for adoption of ordinances required by Newport Beach City Charter Section 412. Recognizing the importance of the exact way in which laws are phrased, that time-honored February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 3 of 10 procedure requires an introduced text to be publicly agreed to by the Council and to be retained "in the custody of the City Clerk" at a first reading to which neither the Council nor staff can make any changes save "correction of typographical or clerical errors." Prior to the introduction of the present ordinance on February 11, staff suggested to Council in writing a revised wording of proposed Subsection 5.95.050.A which, per the motion recorded in the draft minutes, was clearly made part of the first reading. As is less clear from the minutes (see note regarding page 316, above), the City Attorney (misstating the section number) also read to the Council and public changes to Subsection 5.95.045.A.6, which were also made part of the first reading. However, a proposed change to prohibit single -night rentals was agreed to without any clear statement of what words would be added or where. An exact comparison of the ordinance presented to the public at first reading on February 11 and the version being presented for adoption in the present agenda packet is difficult because neither version was presented in a machine-readable format.' But based on a visual comparison, an entirely new clause 16 has been added to Subsection 5.95.045.A. It appears on page 4-15 of the current agenda packet. That is clearly more than a correction of a typographical or clerical error. Although the addition was sanctioned by the Council, this is new language not seen on February 11 and it suggests a new interpretation of Charter Section 412 in which, rather than placing, at the meeting, a copy of the introduced text in the custody of the City Clerk, the Council merely provides staff with direction as to what they want an ordinance to do and staff will subsequently work out the details with the fruits of staff's efforts to be posted for public inspection at least five days before their adoption. I do not believe this new practice is a valid interpretation of the City Charter, or within the Council's powers. It will lead to the introduction by "first reading" of ever more vaguely defined ordinances, with the public left guessing and uncertain about what the Council agreed to and whether staff correctly divined their direction — as well as uncertainty about whether any ordinance brought back by staff for adoption is the same as the one that was introduced at first reading. Despite what the agenda says ("Conduct second reading and adopt Ordinance No. 2020-8"), 1 believe this is the first reading of modified ordinance text developed by staff subsequent to the February 11 meeting. Litigation Concerns As expressed in my February 11 comments, I am also concerned that the adoption of these new regulations without a more rigorous review of their consistency with the City's Local Coastal Program needlessly exposes the City to potential litigation as to their enforceability in the Coastal Zone portion of the City. 1 State open -data standards require web postings to be electronically searchable. February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 4 of 10 Despite the Coastal Commission's December 6, 2016, advice to community development directors that "We do not believe that regulation outside of that LCP/CDP context (e.g., outright vacation rental bans through other local processes) is legally enforceable in the coastal zone, and we strongly encourage your community to pursue vacation rental regulation through your LCP," the February 11 staff report dismissed such concerns with a terse statement (page 20-6 of that agenda packet) that "Staff believes the proposed changes do not violate the Coastal Act and will not require a Coastal Development Permit. Short-term rental units are considered visitor -serving accommodations and the number of allowed units in the coastal zone is not proposed to be reduced." At the February 11 meeting, the City Attorney suggested Newport Beach's police powers allowed it to regulate STL's independent of Coastal Act concerns. To that it could be added that "police powers" are the theoretical justification for all government -imposed land use regulations, including those of the state 2, and it is unclear when a city's police powers exceed those of the state — and, as the City Attorney further indicated, the case law on the specific interaction between city STL regulation and the Coastal Act is far from clear.3 2 See Miller v. Board of Public Works (1925) 195 Cal. 477 and Euclid v. Ambler Co. (1926) 272 U.S. 365. The longstanding (but evidently not unlimited) "police power" of California cities is said to originate in the basic recognition of their legislative function in Article XI, Section 7, of the state Constitution: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." 3 Ewing v. City of Carmel -By -The -Sea, 234 Cal. App. 3d 1579 (October 9, 1991) declared a city's ban on STL's in R-1 districts to be a constitutional exercise of its police power, but failed to address any possible conflict with the Coastal Act. The question of whether a Santa Monica city ban on STR's (but not home -sharing) was "development" under the Coastal Act was raised (among other issues) in the U.S. District Court case of Rosenblatt v. City of Santa Monica (Case No. 2:16-CV-04481-ODW-AGR). A March 30, 2017, decision by the trial judge reportedly included an observation that "California case law makes it likely that the Commission does not have unrestricted authority to override local land use regulations." However, on May 24, 2017, the judge dismissed the challenge based on the other arguments and declined to rule on the Coastal Act claim, as other federal courts seem consistently to have done. In an unpublished January 17, 2018, opinion in Johnston v. City of Hermosa Beach (8278424) a California Court of Appeals panel affirmed a trial court opinion that the enactment of a city ban of STR's in residential districts did not constitute "development" under the Coastal Act, and therefore did not require Coastal Act review through a CDP or otherwise. This unpublished appeal opinion, rather than the Santa Monica one, may be the source of the June 7, 2018, statement by a Santa Monica City employee that their "STR regulations were upheld by a recent Court decision, finding the Home -Sharing Ordinance is a proper exercise of the City's police power and is not preempted by the Coastal Act. The Court specifically concluded that the Ordinance does not require a Coastal Development Permit from the Coastal Commission because it is not "development" under the Coastal Act. Further, the Court concluded that the Ordinance is not an improper amendment to the City's existing certified Coastal Land Use Plan" (quoted on page 6 of a July 23, 2018 City of Long Beach Development of Short -Term Rental Program and Regulations memo comparing model city STL regulations, including the former one of Newport Beach). Alternatively, a superior court judge may have separately ruled on something like the Rosenblatt challenge. But the March 27, 2018, California Court of Appeals published opinion in Greenfield v. Mandalay Shores Community Assn., 21 Cal. App. 5th 896, reached the opposite conclusion at least as to the authority of a homeowners association to enact a ban, deciding it clearly was development. However, in declaring that "The decision to ban or regulate STRs must be made by the City and Coastal Commission" it did not February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 5 of 10 In view of that uncertainty in the City's authority and the inconsistencies that arguably exist between the proposed regulations and the policies declared in the City's LCP it would have seemed prudent for the City to have either: (1) granted itself a CDP (which could have been appealed to the CCC) finding the regulations consistent with the LCP, or (2) worked with the CCC to amend the LCP to make it clearly consistent with the regulations. Our City's Coastal Land Use Plan has long contained two policies related to STL's: Policy 2.3.3-6 promises the City will to "Continue to issue short-term lodging permits for the rental of dwelling units as a means of providing lower-cost overnight visitor accommodations while continuing to prevent conditions leading to increase demand for City services and adverse impacts in residential areas and coastal resources." Policy 2.7-3 qualifies that by adding the City will "Continue to authorize short-term rental of dwelling units pursuant to permits and standard conditions that ensure the rentals will not interfere with public access and enjoyment of coastal resources." Both policies are preceded by narrative sections that explain the need for them.' discuss how the decision would be divided between the two. See also City of Oxnard STIR staff report — the city affected by the case — from March 25, 2019. They are working with the CCC to amend their LCP. More recently, in a March 8, 2019, final decision in a Superior Court case (Kracke v. City of Santa Barbara, Case No. 56-2016-00490376-CU-WM-VTA) the trial judge followed Greenfield in finding a city council's approval of "enhanced enforcement" on STR's to be coastal development requiring either a CDP or justification under the city's certified LCP. That city claims to be working with the CCC to better integrate its STIR regulations with its LCP. Still more recently, pages 10 and 11 of a May 16, 2019, brief filed by attorneys for the City of Pacific Grove in a challenge to that city's imposition of a cap on the number and density of STL permits argues (relying on 2013's City of Dana Point v. California Coastal Com., 217 Cal. App. 4th 170) that city ordinances never require a CDP to enact (much as Newport's recent changes to its Harbor Code were enacted without benefit of a CDP or harmonization with its LCP). ' The narrative in Section 2.3.3 (Lower Cost Visitor and Recreational Facilities) notes that in Newport Beach "a significant number of single-family homes, condominiums, and apartments serve as overnight visitor accommodations," often "within walking distance to the water." "Because they typically provide additional sleeping accommodations and fully equipped kitchens, they provide an accommodation option comparable to or less expensive than staying in hotels and going out to restaurants for meals. Particularly for large families, these dwelling units provide an affordable alternative to hotels and motels." That in Chapter 2.7 (Residential Development) observes "Hundreds of dwelling units in coastal zone residential areas are rented for 30 days or less. The vast majority of these rentals occur during the summer when the demand for parking and City services is greatest. Overcrowding and public nuisances associated with these short-term rentals have resulted in adverse impacts to residential areas, coastal access, and coastal resources. Since 1992, the City has required short-term lodging permits to assist in controlling overcrowding and unruly behavior. Short-term lodging permits require the owner of the short- term rental to agree to limit overnight occupancy of the unit to a specific number of occupants not exceeding that permitted by the Building Code. Short-term rental owners are also required to use best efforts to insure that the occupants and guests are law abiding, do not create unreasonable noise or disturbances, or engage in disorderly conduct. Short-term rental owners are also required to use best efforts to insure compliance with all health and sanitation regulations." February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 6 of 10 Despite that, when on November 10, 2015, the City Council finally approved an Implementation Plan for submission to the Coastal Commission, and although it showed STL's as an as allowed use in certain residential coastal zoning districts per the proposed Table 21.18-1, it contained no regulations to implement that use (see Item 15). Somewhere during the certification process, someone inserted the present NBMC Section 21.48.1155, which was ultimately accepted by the City Council and certified by the CCC. Section 21.48.115 of the resulting LCP-IP confirmed the grandfathered status of STL's "legally established on or before June 1, 2004," and copied most of the standard conditions from Section 5.95.050 into the new Subsection 21.48.115.C. The present action creates a possible conflict with the LCP by completely rewriting Section 5.95.050 without making corresponding changes to Subsection 21.48.115.C. In addition, the LCP is unclear as to whether individuals operating STL's in the Coastal Zone require CDP's in addition to the business permits of Chapter 5.95.6 As previously indicated, it is also unclear if, in taking the present action, the City's police powers preempt other considerations. But aspects of the present action which could be taken as changes to intensity of use in the Coastal Zone, and which, therefore, could be said to be "development" requiring Coastal Act review (or at least justification under the LCP) include: Imposition of a parking requirement that will render illegal many STL's that were formerly legal. 2. Imposition of a cap on the number of STL permits, when no cap previously existed. 3. Prohibition of one-night rentals when no such regulation previously existed. 4. Imposition of an occupancy limit lower than that mentioned in Subsection 21.48.115.C.1. Based on their approvals in other cities, I would guess the CCC would approve such actions, but they have not been asked, and it is not clear they are consistent with the LCP as it is currently written. Again, since the City did not chose to approve a CDP in conjunction with the adoption of the present ordinance, and in view of the possibility that all STL permit holders could, under the present regulations, be required to obtain a CDP in addition to their business permit, it would seem wise for the Council to consider revising the LCP to clarify the STL regulations in it. 5 See insertions on pages 22 and 336-337 of November 7, 2016, City Council Item 11. 6 Operation of an STL is not listed in Section 21.52.035 as a development exempt from CDP requirements, but then many other uses impacting access are not listed and it is not clear if they require CDP's, either. February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 7 of 10 Item 5. Resolution No. 2020-20: Approval of the 2018 Urban Areas Security Initiative Grant Program Transfer Agreement with the City of Anaheim It would have been helpful to give some hint of what specific equipment or programs the grant funds might be used for, as well as a recap of the amount of support received by the City under this program over the years. I have the impression the grants have been quite small. I am unable to find a similar resolution in last year's Council agendas, and there seems to have been some confusion in the past as to whether the administrating city is Anaheim or Santa Ana (see, for example, Item 4 from March 8, 2016). In that connection, it seems curious this agreement with Anaheim is still described as the "Fiscal Year 2018" program and that it says (staff report page 5-10) it is being entered into on May 8, 2019. Also, Section 2 of the proposed resolution (staff report page 5-5) authorizes the City Manager to execute the agreement, but page 5-35 anticipates it will be signed by the Mayor. Item 6. Resolution No. 2020-21: Amending the Membership of the Housing Element Update Advisory Committee; and Confirming Appointments to the Housing Element Update Advisory Committee Given the importance of what this committee will be doing, I hope the Council will, before its meetings commence, give direction that those meetings be video recorded and made available on the City website as was the case with the General Plan Update Steering Committee that it replaces. Since the Council is amending the resolution empowering the committee, it would have been good to also amend items D and E of the Purpose and Responsibilities on staff report page 6-10 to clarify the division of labor between committee, staff and consultant. Item C makes clear the committee will be making a recommendation to Council regarding the selection of the consultant. Items D and E do not provide similar clarity as to who will be recommending changes to the various General Plan elements. As written, D and E appear to say staff and the consultant will be developing and recommending the changes, with the committee only called on to provide guidance when requested by staff and the consultant. This is nearly the same language as appeared in Resolutions No. 2019-7 and 2019-20 (see item F) empowering the General Plan Update Steering Committee, and that was indeed how it seemed to work. It did not work well, suggesting different, and clearer, language should be used for this new committee. As to the committee's task of finding willing owners of land that is currently zoned or could be rezoned to accommodate the construction of something like 4,832 net new dwelling units by October 15, 2029, Banning Ranch and the Airport Area figured prominently in the seven Newport, Together workshops watched by the GPUSC, as well as in presentations by the Community Development Director. The Council should be aware that page 2 of SCAG's published explanation of its 6t" Cycle RHNA Draft Allocation Methodology Approved by Regional Council on November 7, 2019, says: February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 8 of 10 "The jurisdictional boundaries used in the recommended RHNA methodology will be based on those as of August 31, 2016. Spheres of influence in unincorporated county areas are considered within unincorporated county boundaries for purposes of RHNA."' The great bulk of Banning Ranch was not within the Newport Beach city limits in 2016, nor is it now. It is, rather, an unincorporated county area within the City's sphere of influence. As such it was apparently not used in determining the RHNA allocation assigned to Newport Beach, and it seems unlikely Newport Beach could use it to claim fulfillment of that allocation. Any units SCAG envisions as belonging there would have been assigned to the County. Any effort by Newport Beach to get SCAG to include Banning Ranch in the City's RHNA exercise would presumably result in an even bigger allocation being assigned to the City. Item 7. Police Station Gun Range Remodel — Award of Contract No. 7080-1 (19F12) The Facilities Financial Plan reviewed by the Finance Committee on February 13 anticipates a completely new Police Station will be designed in 2032 and constructed starting in 2035. $765,000 seems like a large investment for something that will last for only 14 years. Was a more modest renovation considered? Item 9. Concrete Alley and Street Replacement (65802 & 20R07) — Approval of Professional Services Agreement with DMS Consultants Civil Engineers, Inc., Contract No. 7753-1 The last paragraph of the staff report (page 9-3), and to a lesser extent the agenda listing, makes it appear the contractor's "Scope of Work" will include not just the design work, but also completing the construction.8 This would be a great bargain if that were true. But it is apparent from page 9-19 that the actual Scope of Services covers primarily the preparation of design documents. Work during the construction phase (page 9-22) is limited to assistance with plan interpretation. This is statement in the November 14 version is repeated near the bottom of page 2 of the February 14 update of the Draft Methodology document. 8 "The proposed Scope of Work includes removing the existing alley and street pavement, constructing new concrete alleys and streets, reconstructing deteriorated concrete alley approaches, adjusting utilities to grade, installing street signs and pavement striping, and performing other appurtenant and incidental items of work. Construction is tentatively planned for fall of 2020." February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 9 of 10 Item 11. Approve Professional Services Agreement with Cathyjon Enterprises, Inc. dba HB Staffing for Temporary Labor Services The staff report (page 11-2) says "Staff reviewed the cost proposal for the highest-ranking firm and found the proposer's cost to be reasonable and feasible based on previous and comparable contracted services." Why were the cost proposals of the other two proposers not reviewed? And why are they not disclosed to the Council (and public) in the staff report? Knowing the relative costs seems as important as knowing the technical scores (particularly since experience seems to have factored into the scores, and a new vendor could well gain experience, if chosen, and move up in the scores). Item 12. Approval of On -Call Professional Services Agreement with NV5 Inc. for Assessment Engineering Services As with the previous item, it would have been helpful to disclose the cost proposals submitted by the three bidders. Although the staff report (page 12-2) extols the advantages of NV5's employment of retired SCE employees, the difference in overall technical scores seems slight. That suggests their firm was ranked deficient in other areas. Item 14. Approval of a Purchase Order with Allstar Fire Equipment, Inc., for Self -Contained Breathing Apparatus It is commendable the Fire Department obtained the FEMA grant as explained in the September 24, 2019, staff report. But as best I can tell the present staff report does not disclose the number of units being purchased or how their cost compares to the $9,000 per unit estimated last fall. Nor does it explain why the Request For Bids was limited to Scott products. Item 15. Planning Commission Agenda for the February 20, 2020 Meeting As Item 5 on the January 14, 2020, agenda, the Council adopted Resolution No. 2020-3 initiating amendments to the Zoning Code (and LCP) to comply with new state ADU laws. As Item 4 on its February 20 agenda, the Planning Commission reviewed a revised staff proposal for Zoning Code amendments. Being concerned about the state's intrusion into local affairs, they decided to pass the staff proposal (with some minor corrections suggested by me) on to the City Council without making a recommendation for its approval or denial.9 9 See the Plannina Commission Action Re February 25, 2020, City Council Consent Calendar Comments - Jim Mosher Page 10 of 10 The Council should be aware that passing a Zoning Code amendment on to the Council without a recommendation is not technically an option available to the PC under the current rules for amendment of the Zoning Code. NBMC Section 20.66.040 requires them to "recommend approval, approval with modifications, or denial of the amendment to the Council." Even though initiated by the Council, the absence of a recommendation for approval by the PC is supposed to cause staff's proposal to die at the PC unless appealed (or, presumably, called for review) to the Council. This may seem an obscure technicality to many, but for the City to comply with its own codes, it would seem that in the absence of an approval recommendation from the PC, if the Council is to take action on this a Council member should call the non -recommended staff proposal for ADU amendments up for review.