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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed May 12, 2020 Written Comments May 12, 2020, Council Agenda 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 April 28, 2020 Special Meeting and April 28, 2020 City Council Meeting Comment: In addition to the minutes being offered for approval, it should be noted the Council held an emergency meeting on April 30 and another special meeting on May 2, for neither of which minutes are being presented here. Possibly the City is unaware that given the possible abuse of emergency meetings (the April 30 one seems to have been held on less than two hours public notice and was totally unknown to me until after it happened), an absolute requirement of holding one is to prepare minutes of what happened "as soon after the meeting as possible" and to post them, together with other required information, in a public place for at least 10 days (Gov. Code Sec. 54956.5(e)). I do not believe any of that has happened. So although the City has posted a video of the April 30 meeting (available to internet users, only), I do not believe the City has complied with the Government Code section which permitted it to hold the April 30 meeting on such notice. It might also be noted that at the April 28 special meeting (for which we do have the present draft minutes), the Mayor appears to have given a presentation which does not seem to have been archived as part of the agenda packet. Suggested corrections: As to the draft minutes that have been posted for review, the passages shown in italics below are from them,' with suggested corrections indicated in *rte, okeout underline format. The page numbers refer to Volume 64. Page 365, Item III, paragraph 2, sentences 2 and 3: "He discussed research and interviews with Hoag Hospital physicians, including Dr. Michael Brandt-Zawadski's, and provided crisis phone numbers to the public. He shared aerial photos of beachgoers, as provided by Newport Beach Police personnel, agreed that some beachgoers were not social distancing, ..." [As to the first suggested change, I would drop the "'s". Including it in a parenthetical like this produces a puzzling reverse reference to something that came before (either Dr. B -Z's research or the interview with Dr. B -Z or both — it's not clear which). As to the second, much as I might like the approved minutes to contain this statement from the Mayor contradicting his subsequent statements, a review of the audio at 16:40 shows his comment was that most of the beachgoers were practicing social distancing and that those who did not were the exception to the rule and needed to be dealt with.] Page 366, paragraph 8: "..., nine adjustable electronic message signs will indicate indicate that there is no beach parking and ask that visitors stay home, ..." ' The printed version of the minutes distributed to the public (and likely to the Council) on Thursday afternoon contained a number of typographic irregularities in which random letters were shown oversized and bold. These comments are based on the draft posted online, which does suffer from that anomaly. May 12, 2020, City Council agenda comments - Jim Mosher Page 2 of 13 Page 367, paragraph 3: "Theresa Teresa Hernandez indicated most people have followed the Governor's request to stay-at-home, ..." [note: I do not know the accuracy of the spelling of many of the other speaker names] Page 367, paragraph 9: "Lorne Lori Morris closing of the beach restroom facilities..." Page 369, paragraph 2: "Randy Duarte expressed concerns with groups gathering which prevents his family access to exercise and leave leaving home while feeling safe, and suggested Council close the beaches or close the roadways to the beaches." Page 372, Item XI, Section 5: "Council Member Duffield: • Announced he has been working on Harbor issues with staff' [Isn't Council Member Duffield supposed to be recused from advocating on harbor issues?] Page 374, paragraph 2 from end: "In response to Mayor Pro Tem Avery's questions, Mr. Laidlaw stated that the new building will have 20 parking spaces on the lower level and -24 20 on the upper level to accommodate the rear trellis." [see audio at 01:24:00. Mr. Laidlaw said the plan as submitted showed 21 spaces on the upper level, but it was reduced to 20 to accommodate the trellis.] Page 375, paragraph 2, end of line 4: "..., and reported on requirements contained in the Appellants' easement,—i#. If further CEQA review does not occur -.-He,. he further presented non- negotiable starting points for additional conditions of approval, ..." [see audio at 1:57:30. Mr. Ehrlich did not say the absence of additional CEQA review would change the easements, but it would change the conditions demanded by the appellants.] Page 375, end of same paragraph: "..., and requiring that the upper level can only be used only for parking." Item 3. Ordinance No. 2020-13: Amending Section 6.04.170 Prohibiting Commercial Properties and Businesses from Disposing of Solid Waste in Public Waste Containers I commented on this ordinance when it was introduced on April 28. 1 continue to believe this ordinance is unnecessary and that there is nothing in the current code preventing the Council from adopting a resolution doing what staff says it will be proposing at a future meeting with regard to modifying the Washington Street Bin(s) service. I also continue to believe that if the Council thinks a revision of the code section is needed, it would be better to prohibit businesses from placing any material in City bins without Council permission, rather than trying to enumerate the prohibited categories. Enumerating categories of prohibited waste implies there are some that are not prohibited, which I believe is not the intent. May 12, 2020, City Council agenda comments - Jim Mosher Page 3 of 13 Item 4. Resolution No. 2020-42: Increase of On -Street Parking Time Limit on Bayview Way The staff report does not indicate what prompted this proposal. Was there a complaint about the time limit from coastal visitors? Or from the car dealership? It is also not clear from the report how fully utilized the parking is or what fractions of it are used by the dealership versus coastal visitors. Furthermore, the existence the six spaces designated "Coastal Access Only" makes it sound makes it sound like they may have been part of some agreement with the Coastal Commission or conditions of a Coastal Development Permit. If so, was the time limit also part of that agreement and is the Council free to unilaterally change it? Finally, the proposed Resolution No. 2020-42 does not, in its opening "Whereas" clauses indicate why it is being enacted or what it seeks to change compared to the resolution it repeals. In the absence of a redline version, the Council and public can only hope nothing other than the single time limit mentioned in the staff report is being changed. Item 5. Resolution No. 2020-43: Summary Vacation of Existing Public Utilities Easement at 700 Malabar Drive According to the map on page 5-8 of the staff report, there is nothing unique about the property at 700 Malabar Drive. Many other lots in the vicinity are burdened by the same or similar easements, and the abandonment of this segment would appear to make a substantial section discontinuous and likely unusable. What is the status of the other parts of the easement? Have none of them been vacated? And if the easement is truly not needed, why is just this one segment (instead of all) being vacated now? Item 6. Calling the November 3, 2020 General Municipal Election Resolution No. 2020-44 (calling the election): Section 1 (stating the reason for calling the election): I strongly object to the statement of purpose and suggest it be changed (in conformity with the City Charter) to: "electing members of the City Council to represent from the Second, Fifth and Seventh Districts for the full term of four years." Nothing in our City Charter says council members "represent" districts (despite the markedly increased tendency of many to see themselves that way with references to things like "my district'). Instead, in what one assumes was nothing more than an attempt to ensure geographic diversity, Section 401 imposes a residency requirement whereby to be eligible for election the candidate must reside in a delineated district. Nor, per Section 403, can they continue to serve on the Council unless they continue to live in the designated district. May 12, 2020, City Council agenda comments - Jim Mosher Page 4 of 13 This is very different from "representing" that district. Indeed, under our Charter each eligible candidate is selected by vote of the entire city and therefore represents all those voters equally. As Section 400 puts it, the Council members in Newport Beach are elected "from" the districts, not "to represent" the districts.2 If, contrary to the Charter, the Council members feel they want to represent districts, I strongly urge them to put that possibility to voters in the form of a charter amendment proposal whereby they would be elected solely by the voters they wish to represent (that is, modifying Section 400 to institute "by district" voting in place of the current "from district" system). Just as taxation without representation is abhorrent, being "represented" by someone chosen by others is equally abhorrent — and that is what I have if the one person who claims to represent me is in fact selected by people in other districts. Conversely, I should not have the power to select who represents the people in those other districts. Our present system is like having my personal senator and congress person selected by a nationwide ballot.' Section 4 (describing Vote Centers and Ballot Drop Boxes): This seems something up to the Registrar of Voters, and (unless he is receptive to the City's wishes) not something the Council has the power to decree or order. In addition, the list is incomplete since it does not mention the option for mail -in voting or what the requirements will be to exercise that option. Section 7 (describing the handling of tie votes): The point of including this section is unclear. As it indicates, the procedure for breaking ties is specified in City Charter Section 400 and the Council seems powerless to change that even if it wanted to. Resolution No. 2020-45 (requesting consolidation of the election): First Whereas: Again, I object to the statement about the purpose of the election (see comment on Section 1 of the previous resolution). Resolution No. 2020-46 (regarding candidate statements): Section 1, line 4 from end: I believe "type written" is more commonly written as a single word: "typewritten" Item 7. Calling the November 3, 2020 General Municipal Election Proposed Charter Amendment From a procedural point of view, this item is extraordinary on many levels. Inadequate Noticing First, a basic principle of California's Brown Act is that citizens are supposed to be able to determine whether anything of interest to them will be discussed at a meeting of a public agency 2 Per the existing Section 400, the nominations are "by district," but the elections are not. May 12, 2020, City Council agenda comments - Jim Mosher Page 5 of 13 by reading the agenda alone. With the suggestion that "A brief general description of an item generally need not exceed 20 words" Section 54954.2(a). In this case, instead of a brief general description we have something like 290 words in 21 lines of densely packed text that, despite its generous length, provides not the slightest hint of what the charter amendment announced in the title might be about. As a result, the noticing of this item is totally inadequate and seems intended not to invite interested parties to attend, but to hide what is to be discussed. Unexplained Timeline I have to question the very short timeline being proposed for submittal of possible arguments in opposition to this measure. Particularly in view of the lack of publicity with which the present items are being slipped into the consent calendar, it seems likely the May 26 deadline will have passed before the possible opposition even knows the matter is proceeding to the ballot. The quick turnaround is said to be necessary to get materials to the Registrar by their deadline. But May 26 seems arbitrarily and unnecessarily short for that purpose. By comparison, the last measure placed on a ballot by the Council was Measure T (regarding voter approval of certificates of participation and lease revenue bonds). The item equivalent to the current one was Item 23 on the June 26, 2018, agenda. It set July 9 as the deadline for submitting direct arguments. And even that seems quicker than required. The Orange County Registrar of Voters has instituted a website that is unusually difficult to navigate when looking for less common documents. As a result I have been unable to find their November 3, 2020, Election Calendar, so I am going by the November 6, 2018, calendar. It set August 10, 2018, as the date for city clerks to file "the Resolution to consolidate the election, the Text, Impartial Analysis, Fiscal Impact Statement (if applicable), Bond Project List (if applicable), and Direct Arguments" (with an extension to August 13 for arguments filed with the clerk on August 10, 2018). The due date for rebuttal arguments does not seem to be indicated, but evidently August 10 (or possibly August 7, correcting for the difference in election dates) is quick enough. So why do ballot arguments in Newport Beach have to be filed by May 26, more than two months before the County Registrar needs them? Regarding the May 18 deadline for the City Attorney to file an impartial analysis, what is the purpose of this, and how is it expected to differ from the Government Code Section 34458.5 ballot description provided on page 7-9? The latter seems to be all that is printed in the sample ballot (see the printed version of Measure T from 2018). Unexplained Text I believe the staff report misstates the record when it says "The City Council unanimously agreed, on June 11, 2019, to move forward with bringing the proposed City Charter amendment on the November 3, 2020 ballot." May 12, 2020, City Council agenda comments - Jim Mosher Page 6 of 13 According to the notation at the bottom of page 4 of June 11, 2019, minutes, what happened then was merely a Policy A-1 show of hands to bring the matter back for discussion at a future meeting. Nothing was said about a "November 3, 2020 ballot," nor was any discussion or clarification allowed by either the Council or the public. And such matters are no demonstration of ultimate support for the item. For example, on June 11, 2019, there was a similar unanimous Policy A-1 show of hands to bring back discussion of forming a Marine Avenue Projects Committee. But when that came back as Item 20 on September 24, 2019, it failed 2-2-1. Not only did the Council not review the present proposed City Charter amendment on June 11, 2019, but, to the best of my knowledge, the proposed language has not been publicly reviewed by anyone, including, remarkably, the Harbor Commission. This might be partially understandable if it merely moved into the Charter the Harbor Commission's present responsibilities as specified in Ordinance No. 2013-14, but it does not. Who selected the proposed language? Where did it come from? Why are such things as the present responsibility to review the Tidelands Capital Plan omitted? Who decided to do that and why is the Council expected to agree without discussion? None of this is explained. Apparently, exactly what goes into the City Charter, and why, is thought not to be important to the present City Council (leave it up to the voters?). But it matters to me. Undisclosed Cost Normally when making a decision when weighs its benefits against its costs. Like the claim that the Council already decided to put this on the ballot, the statement under "Funding Requirements" on page 6-1, that "Funding has been budgeted to conduct the November 3, 2020 General Municipal Election," does not seem to be correct. Not only does it not disclose how much funding has been allocated, or where, but the basic statement seems false. The total amount currently budgeted for elections (in the City's FY19-20 budget) appears to be $5,000 (page 78 of the 473 page PDF) — far too little to put this measure on a ballot. Costs for the November 2020 election will presumably come in FY20-21, for which no budget has yet been proposed to or approved by the Council. And one has to assume the cost with a ballot measure will be greater than the cost without one. In fact, in her report on the Item 15 at the Council's February 28, 2017, meeting, the Clerk estimated the cost of adding the Museum House referendum (without exhibits) to the November 2018 general election ballot would be approximately $95,000. Will the cost of this be similar? Particularly in a time of tight budgets, the Council and the public need to know. May 12, 2020, City Council agenda comments - Jim Mosher Page 7 of 13 Questionable Provisions As to the content of the proposed Resolution 2020-47, the inclusion in Section 3 (on page 7-5) of the declaration that "The vote requirement for the measure to pass is a majority (50% +1) of the votes cast" does not inspire confidence. This is not something within the Council's power to decide: Article XI, Sec. 3 of the California Constitution sets the vote requirement to adopt, amend, revise or repeal a City Charter. It is "by majority vote of its electors voting on the question." As to the content of the proposed new Charter Section 713 on page 7-8: 1. It fails to clarify the ongoing uncertainty as to what a power and duty to advise the City Council means. Are voters requiring the Council to seek advice from the new Harbor Commission before acting on any matter listed? Or is the Council free to seek advice when and only if they want it (former Newport Beach City Council's bypassed the Harbor Commission by seeking advice from a Tidelands Management Committee, and other commissions have been bypassed by seeking advice for ad hoc advisory committees, instead). 2. It also fails to address the ongoing uncertainty as to the division of labor between the current Council -created Harbor Commission and pre-existing voter -created Parks, Beaches and Recreation Commission (some of whose duties it seems to have usurped in a not -clearly-defined fashion). a. Whose province are the harbor beaches? b. And which commission advises on recreational aspects of the harbor? 3. The inclusion in paragraph (d) of a reference to "the Harbor and Bay Element of the General Plan" is at risk of becoming dated. There is no guarantee future City General Plans will contain an element with that name — much as the reference to the "Harbor Area Management Plan" in Ordinance No. 2013-14 (even though also mentioned in the current General Plan) was evidently regarded as dated by whoever wrote the current resolution, and removed. 4. It does not explain if the existing Harbor Commissioners will remain in office or if this a new Commission replacing them. a. Likewise, do voters need to repeal Ordinance No. 2013-14, or will there be two Harbor Commissions? 5. Generally this deserves further review (including by the Harbor Commission) before being placed before voters. Item 10. Underground Utility Assessment District No. 117 - Notice of Completion for Contract No. 7337-1 The staff report indicates the project costs went over the nominal contract amount by 24.8%, exceeding the originally anticipated maximum contingency of 15%. May 12, 2020, City Council agenda comments - Jim Mosher Page 8 of 13 It may have been covered in earlier reports, but the present one does not explain if or how those unexpectedly high costs were passed on to the participants in the Assessment District. Will the City be fully reimbursed? Or is the City paying whatever extra was required? Item 12. Community Room Audio -Visual Improvements - Award of Contract No. 7817-1 (19F02) It is true the existing projection system is less than ideal. But at a time of anticipated fiscal belt tightening this doesn't seem like a terribly high priority. Item 13. Approval of Amendment No. 1 to Water Meter Reading Service Agreement with Alexander's Contract Services I do not object to the extension, but I thought the Automated (Water) Meter Infrastructure project was in a testing phase and no decision had yet been made to fully implement it (see Item 15 from January 22, 2019). Item 14. Approve the Professional Services Agreement for Potable Water Laboratory Services with Sierra Analytical Labs, Inc. The staff report seems to leave as a mystery which of the six bids is from the current provider.3 Item 15. Approval and Award of On -Call Professional Services Agreements for Marine Engineering and Harbor Related Services As has been previously noted with regard to these multiple on-call contracts for the same service, it is not clear the City has a definite procedure for staff to using when deciding which to call on for a particular need. It seems like there should be one. With regard to on-call contracts in general, it has also been claimed the public has visibility to the letter proposals accepted for specific work to be performed under them when the amount exceeds $10,000. It is not yet clear how that works. 3 Per Item 9 from May 12, 2015, the incumbent seems to be "Testamerica Laboratories, Inc" at a cost of $60,000 per year — leaving this still something of a mystery since no company of that name is listed in the table on page 14-2. May 12, 2020, City Council agenda comments - Jim Mosher Page 9 of 13 Item 17. Emergency Ordinance Nos. 2020-003 and 2020-004: Review and Consider Extending the Prohibition on Short -Term Lodging Activity As to both proposed ordinances: I am not quite clear on intended significance of Section 4 on page 17-14 ("Any person occupying a lodging unit as of April 3, 2020, may continue such occupancy"). It would seem to me anyone that has been occupying a unit since April 3 is no longer a short- term occupant. 2. 1 am likewise unclear on the intended difference in Section 5 between a 1 -year suspension and a 1 -year revocation. Does the past misbehavior make it more difficult to obtain re -approval at the end of the 1 -year revocation? If not, (and unless the City enacts a cap on the number of permits and is at that cap at the time of re-application) they seem pretty much the same penalty. In addition, like the original, the two proposed ordinances contain a Section 11 saying that even without a formal repeal, they will terminate if the Governor's State of Emergency is terminated by proclamation or (if sooner) if "the local emergency proclaimed on March 15, 2020 and ratified by the City Council on March 18, 2020, is terminated by proclamation of the City Council." Since the intent of this seems to be for the ordinances to last no longer than the duration of the shortest state emergency, it seems important for the Council to be aware of Government Code Section 8630 (as noted in my comment regarding Item 19, below). Its purpose, similarly, seems to be to ensure that local emergencies end as quickly as possible, either by failure of the Council to ratify the City Manager's declaration within 7 days, by failure of the Council to review within one of the 60 day deadlines, or by a Council proclamation of termination at any earlier date. Considering no review since the initial one has taken place, it appears the local emergency ratified on March 18 will cease 60 days from then, that is, on May 17. As a result, it could be argued that even without a formal terminating proclamation, the intent of the present ordinances, if adopted on May 12, will be for them to end then, too. In any event, it would appear the Council cannot proclaim an end to the emergency after May 17 since, in the absence of a review for its need, it will have automatically ended on that date. Item 19. Novel Coronavirus (COVID-19) Update The Laguna Beach City Council is also meeting on May 12, and their agenda Item 4 involves a vote on a possible extension of the resolution they adopted on March 17 proclaiming the existence of a local emergency. Does Newport Beach, having adopted a similar Resolution No. 2020-25 on March 18, need to do the same? According to their staff report, and as discussed further in my comment on Item 17, above, for a local state of emergency to continue, Government Code Section 8630(c) requires the need for the proclamation to be reviewed by the Council every 60 days. While the Council can, by May 12, 2020, City Council agenda comments - Jim Mosher Page 10 of 13 proclamation, terminate the emergency earlier, it appears that in the absence of a timely re- affirmation the emergency ends automatically after the 60 days. Laguna Beach also has an Item 5 seeking OCTA assistance in obtaining federal CARES Act to mitigate COVID-19-related loses of trolley and parking revenues. COVID-19 has not yet affected the trolley operation in Newport Beach, but it has impacted parking revenue. I would also be curious to know if any Newport Beach residents have died of COVID-19? The County posts data on "cases" by city (which has more to do with the amount of admittedly imperfect testing conducted on residents of each city), but seems to provide only countywide totals for hospitalizations and deaths. It would be good to know the places of residence of people in the latter two categories, and that would seem to be a matter of public record. Item 21. Resolution No. 2020-33: Appeal of Planning Commission Approval for The Garden Office and Parking Structure Proposed at 215 Riverside Avenue Arguments for a Continuance of this Hearing to a Future Date This is clearly a controversial, but non -urgent, issue and in my opinion it should be continued to a date at which all interested parties will have an opportunity to address the entire Council in person, face-to-face. It has already been continued twice. First, it was continued from the originally scheduled April 14 hearing because of a claim "the parties" were close to agreement. I found that a false argument at the time, and continue to do so. Under our municipal code, appeal hearings are held "de novo," meaning the issues affecting the project are re -heard from a completely fresh perspective and the hearing is not limited to matters raised in the appeal.4 The four appellants happen to be homeowners adjacent to the proposed structure who have specific issues with it. But in addition to them, and although they are not appellants, many residents of Newport Heights have expressed concerns not so much about this project but about the proposed new nearby restaurant with roof -top dining which they believe the approval of this project will make easier to approve. Once an appeal hearing has been scheduled, the Council has an obligation to hear those non -appellant homeowners and their issues just as much as those of the appellants. A private settlement of the four appellants' issues, even if one is achieved, does not allow the Council to cancel the hearing without listening to and considering the many non -appellants' concerns. 4 See NBMC Sec. 20.64.030.C.3.b: "The review authority is not bound by the decision that has been appealed or called for review, or limited to the issues raised on appeal or at the lower hearing." May 12, 2020, City Council agenda comments - Jim Mosher Page 11 of 13 Second, on April 28, the continued hearing had to itself be suspended and continued to the present date due to the technical difficulties of attempting to hold a hearing remotely with all participants, including each individual decision maker, in different locations. Despite City staff's best efforts, I suspect difficulties will persist on May 12. 1 think it would be universally agreed that virtual hearings are, at best, an imperfect substitute for in-person ones, and although temporarily allowed by an order of a Governor whose judgment a majority of the Council questions, should be resorted to only when reasonable alternatives are available. In the present case, postponing the hearing till a date at which an in-person hearing is possible is an entirely reasonable alternative due to the non -urgency of this project being approved or denied — a non -urgency that arises because of the absence of any obvious immediate need to construct the project. This proposal was originally presented to the Planning Commission as Item 3 at its August 22, 2019, meeting. At that time, as was evident from documents provided to the Council on April 14 but no longer included in the printed staff report, its purpose was clearly indicated as being to provide parking for a proposed restaurant at 2902 West Coast Highway in The Garden shopping center.5 At that time it even came with a Parking Management Plan that explicitly identified just 12 tandem spaces as serving onsite purposes, with the bulk being built to serve the future restaurants Several planning commissioners asked why the two applications were not being brought forward together so they could evaluate the project in its totality. Staff indicated that could be done if was the Commission's pleasure, but they thought the two interrelated applications could be reviewed independently. When the project returned, serving the new restaurant was emphatically claimed not to be its purpose, but what it is being built for has never been explained: the proposal reduces the amount of available office space and builds a parking structure with no demonstration there is any demand for one. In fact, the applicant's representatives have presented evidence it is not needed: namely by presenting an agreement showing that the proposed 2902 West Coast Highway restaurant can be fully accommodated using existing parking in the area. I see no urgency about approving or denying a purportedly unneeded parking structure and suggest the hearing be postponed until the normal direct in-person format can be resumed. 5 See page 9-318 of the April 14, 2020, staff report: "The project is intended to support off-site parking for future restaurants within The Garden shopping center located south of the project site across Avon Street. A separate conditional use permit is requested as part of a proposed restaurant at 2902 West Coast Highway for off-site parking and to establish a parking management plan for the shopping center including valet parking for the proposed structure." I See page 9-335 of the April 14, 2020, staff report: "the remaining 35 non -tandem parking spaces onsite will be utilized for overflow parking from restaurant use located at 2902 West Coast Highway." May 12, 2020, City Council agenda comments - Jim Mosher Page 12 of 13 Transparency Issues The progress so far of this hearing has raised a couple of issues about the transparency of City processes. First, this is a quasi-judicial proceeding, and the decision makers in such a proceeding would normally be discouraged from engaging in ex parte communications' concerning it, and to the extent such communications have occurred, disclose them at the start of the hearing. To date, I do not recall hearing any such disclosures, but perhaps we haven't reached that point in the hearing? Second, on February 11, the Council adopted Ordinance No. 2020-3, which went into effect March 12, enacting NBMC Chapter 1.28 which requires those paid to represent others before the City to register as lobbyists. As best I can tell, not a single person has yet registered as lobbyist. Yet in the present hearing the public has heard from at least three persons who appear to be acting as lobbyists as well as experiencing confusion as to who is who. As to the latter, the draft April 28 minutes (Item 1 in the present agenda packet) refer to Scott Laidlaw as "architect and Applicant," to Susan Hod as "counsel for Applicant" (that would be, for Mr. Laidlaw) and to Aaron Ehrlich as "Appellants' counsel." But the currently proposed Resolution No. 2020-33 on page 21-10, says more specifically, and hopefully more accurately, "an application was filed by Laidlaw Schultz Architects representing the property owner, 215 Riverside, LLC ("Applicant")." A business search with the California Secretary of State on 215 Riverside, LLC indicates it is a real estate investment company formed in Delaware on June 21, 2018, and registered in California on August 22, 2018. It is managed by a Mr. Gary Jabara. If one believes the resolution, Mr. Laidlaw (for whom I have great respect having observed his participation on the Corona del Mar Business Improvement District board), or more precisely his firm, has been hired not only as an architect, but also to represent the owner before the City, presumably for compensation. It is unclear if Mr. Laidlaw is a partner in 215 Riverside, LLC, but if not, and despite the exemption in Chapter 1.28 for architects acting as architects, it appears Mr. Laidlaw is acting additionally as a paid lobbyist. As to Ms. Hori, it is unclear if she is working for Mr. Laidlaw, as the minutes indicate, or for Mr. Jabara. Either way, although Chapter 1.28 contains an exception for attorneys doing work only an attorney can do in connection with litigation, and although litigation could well result from the City's action, the present matter is not litigation and it appears she is being paid to act as an advocate for the project (albeit making mostly legal arguments for its approval). I believe that under our code this requires registration, as is allowed, even of lawyers, by California Business "Ex parte communications" has the same meaning here as on page 10 of City Council Policy A-1, but its application there is confined to Council members and City employees trying to influence Board, Commission or Committee members. Here it is being used in broader sense of disclosing parties who have tried to influence the Council members outside of the formal hearing, as well as any independent investigations or research conducted by the Council members on their own. May 12, 2020, City Council agenda comments - Jim Mosher Page 13 of 13 and Professions Code Section 6009, which quite clearly empowers cities to collect the same basic lobbying information from attorney lobbyists as from non -attorney lobbyists "notwithstanding any other provision of law." Similarly, Mr. Ehrlich, although an attorney, has, at this stage, been hired, and is presumably being paid, to advocate for his clients in a matter that is not yet (and may never be) litigation. It appears to me that these three people (and likely others that have appeared for pay before City officials since March 12) are acting as lobbyists. Why have none of these people registered? Have they been asked to? Item 23. Resolution No. 2020-51: Community Development Block Grant - 2020-24 Consolidated Plan, 2020-21 Action Plan, and Citizen Participation Plan Amendment Page 23-6 of the staff report mentions the substantial amount of federal "CARES Act" money the City expects to receive through the CDBG program to mitigate COVID-19 impacts. The HUD website appears to indicate there is additionally a possibility of postponing Section 108 loan repayments, which, per page 23-5, are one of the largest line items in the City's projected CDBG budget. Should the City pursue that opportunity? The change in choice of CDBG administrator, also mentioned on page 23-6, could use more explanation. This seems to be a contract decision that did not come before the Council. And a copy of the contract does not yet seem to have been placed in the City's online archive. Received After Agenda Printed May 12, 2020 Written Comments Subject: FW: City Council Session of 5-12-20: Comments to Agenda Items From: Denys Oberman Sent: Monday, May 11, 2020 5:41:34 PM (UTC -08:00) Pacific Time (US & Canada) To: Dept - City Council; City Clerk's Office Cc: Denys Oberman; Fred Levine; Laura Curran Subject: City Council Session of 5-12-20: Comments to Agenda Items PLEASE DISTRIBUTE AND ENTER INTO THE PUBLIC RECORD. Mayor and Council Members: Please see my comments to the Agenda Items as identified, below: AGENDA ITEM 11 -Pavement Rehabilitation Contract –Bonita Canyon Dr and Ford Road: A Budget Amendment of $2.252, 925.00 plus 10% is requested by staff to enable this contract. Given that a) There has been an adverse impact on the City's revenue resulting from COVID-related matters, the extent of which has yet to be determined, and b) That the upcoming Budget plans have not yet been vetted by the Council and the public, it is our request that the Council exercise prudence, and that this project be deferred and considered as part of the Budget Plan for the upcoming Fiscal, or future Fiscal years. AGENDA ITEM 13- Water Meter Reading Service Agreement: We request that staff clarify the terms of the basic contract, and explain why an additional $500,000. Is appropriate/necessary. AGENDA ITEM 17- Emergency Ordinance No.s 2020-003 and 2020-004 re. Short Term Lodging: Staff has proposed several alternatives in bundled form related to Short term Lodging Activity. It is difficult to follow the summaries provided in the agenda. The scope of some of the alternatives varies considerably from that contemplated in the Emergency Ordinance. (b) proposes no additions in scope of the City's current STL, or its Emergency Ordinance; and, lets the Emergency Ordinance simply expire on its set date of May 20,2020.We propose that the City extend the Emergency Ordinance re STL until June 10. The issue of Short Term Lodging is a significant one in our City. Any proposal to change the existing Ordinance beyond The Emergency Ordinance which imposed temporal restrictions needs to be studied, carefully crafted and vetted in public hearings and according to the proper administrative process.. We ask that the Council not consider or approve either of the (c) or (d) modification sets proposed by staff at this time. If the Council wishes to consider any of these modifications to the foundational ordinances re STL, we ask that these be subject to the proper process, which would be administered at a subsequent time in the proper manner. At first blush, the concept of modifying the ordinance to allow for Short term rentals to individuals who have come to Newport "to aid with the COVID Outbreak" appears noble—however, a) we already have a surplus of medical professional capacity to address this issue, and b) those individuals without professional Health protocols in place and administered by a licensed facilitiy, would actually create increased risk of COVID spread. AGENDA ITEM 18 -Review of Various Capital and Fiscal Budgets...: We have not had adequate opportunity for the Council and the public to vet the impacts associated with the COVID pandemic—although all can conclude that the City's (a) need for certain services may increase, and (b) the City's revenue base will be impacted , likely significantly, for at least the next 12 plus months. We ask that the Council remand to staff to provide a more insightful analysis estimating the loss of Revenue stream in the various City streams, conduct public hearing, and propose more thoughtful contingency planning that clearly states priorities. Another approach that is recommended for consideration would be to establish a plan with essentials addressing horizon of the next 6-12 months. ( Note -we should not be considering Budget Amendments to CIP unless they are for essential items unless a direction correlation with revenue increase can be demonstrated.) Thank you for your consideration and service. Denys H. Oberman Resident and Community stakeholder Regards, Denys H. Oberman, CEO OBERMAN Stfatogy and Flnanckol Advkwts OBERMAN Strategy and Financial Advisors 2600 Michelson Drive, Suite 1700 Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax (949) 752-8935 Email: d h o(cD_obe rma n associates. com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 9491476.0790 or the electronic address above, to arrange for the return of the document(s) to us.