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HomeMy WebLinkAbout00 - Written CommentsJuly 14, 2020, Council Agenda 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 ll. PUBLIC COMMENTS ON CLOSED SESSION I suspect it is through last minute inadvertence rather than design, but the recently added announcement of a desire to discuss "existing litigation" pursuant to Government Code § 54956.9(d)(1) fails to disclose what existing litigation is to be discussed. In failing to make that disclosure, City staff has violated the provision of City Council Policy A-1 (page 11), which requires "The closed session agenda shall strictly conform to the format specified in the Brown Act." The "safe harbor" format for Section 54956.9(d)(1) existing litigation, specified in Section 54954.5(c), calls, in turn, for printed disclosure on the agenda of either "reference to claimant's name, names of parties, case or claim numbers" or a statement that disclosing the identity of the case "would jeopardize service of process or existing settlement negotiations." Neither of those is provided here. Item 1. Minutes for the June 23, 2020 City Council Meeting and June 25, 2020 Special Meeting Notes: 1. The City's standard for clarity of content in the Council minutes is not terribly high, and I try to read the draft version with sympathy for those tasked with preparing them. Nonetheless, in reading the present set I was struck by their falling significantly below the normal standard. In many places, the content of comments and responses can, at best, be guessed at. In others, what transpired is totally unintelligible. I have neither the time nor interest to invest the many hours that would be required to review the entire videos and make sense of each sentence in the minutes, but I would hope the Council might be concerned about this. 2. As I discovered after the fact, on July 1, the Council held yet another "emergency" meeting on barely an hour's notice.' Despite a previous reminder, City staff is perhaps still unaware of the requirement that when an emergency meeting is held, Government Code Section 54956.5(e), requires "The minutes of a meeting called pursuant to this section, a list of persons who the presiding officer of the legislative body, or designee of the legislative body, notified or attempted to notify, a copy of the rollcall vote, and any actions taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible." I do not recall seeing any of that, and I would have no idea what happened without having sat through the entirety of the posted 1 hour 40 minute video. That is not how it is supposed to work. ' Since the meeting dealt with City actions to be taken on July 4, 1 believe nothing would have been lost by holding a more widely -known "special meeting" (on 24-hour notice), rather than an "emergency" one. July 14, 2020, City Council agenda comments - Jim Mosher Page 2 of 8 Suggested corrections: The passages shown in italics below are from the draft minutes with suggested corrections indicated in s*'°�at underline format. The page numbers refer to Volume 64. As indicated above, these are suggested corrections of clear errors of grammar or content. They are not, for the most part, attempts to add clarity. Page 435, Item SS1, paragraph 2: "In response to Council Member Brenner's question regarding Agenda Item No. 9, Deputy Public Works Director Houlihan advised that staff has been working with Als the A Restaurant and Caltrans on a land swap, ..." [see pages 442 and 443 where the same restaurant is referred to] Page 436, first full paragraph: "Jim Mosher ... did not believe CR&R sends its trucks to Perris." [I did not review the video, but the intended meaning was I do not believe the trucks Newport Beach residents see picking up their trash at the curbside drive to Perris to refuel. Other trucks drive organic waste (only), some of which is separately recovered (in Stanton) from Newport Beach residential trash, to the anaerobic digester in Perris, and they might.] Page 439, O'Neill, first bullet: "Reported the Transportation Corridor Agency (TCA) & San eaquin Hill (T -GA) Boards adopted a new debt policy modeled on Newport Beach's policy." [As I understand it, the TCA has two boards that meet jointly, with Newport Beach having a seat on the San Joaquin Hills one. There is no overall board, but as written it makes it appear there is. The report was that both boards adopted a new policy.] Page 446, note "f)" near top: "Invite Coastkee^Coastkeeper and Newport Ocean Sailers Sailing Association (NOSH) to provide Council with information." Page 448, paragraph 9: "Don Abrams advised that his company manages vacation rentals and rents to families, supported most of the new restrictions, believed most complaints about vacation rentals are not true, and he opposed the limit on total fine sep rmits and losing permits if not used after two years." [The objection was to the proposed 1,600 permit cap. See video at 4:03:25.] Page 449, paragraph 2: "Charles Klobe stated named the Council Members who could not have short-term lodging near their homes, stated that short-term lodging lowers property values, residents' quality of life is negatively affected by short-term lodging and supported limiting short-term lodging on Newport Island." [See video at 4:21:20. This is one of several examples of unintelligibility in the proposed draft on this page.] Page 449, paragraph 8: "... He reported that the City's online database for short-term rentals can include the occupant load, occupant load is based on the Building and Fire Codes and is calculated by dividing the floor area in square feet by 200, ..." Page 449, paragraph 9: "Council Member Brenner remarked that long-term renters and property owners should not behave in the manner of that __generates complaints about short-term renters, the City needs to make sure citations are issued, the majority of people who have bought duplexes are business people and are losing tenants because of nearby short-term lodging, and hoped Council has come up with some fair and equitable solutions." Page 450, motion at top of page: "Motion by Council Member Dixon, seconded by Council Member Herdman, to a) find this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this July 14, 2020, City Council agenda comments - Jim Mosher Page 3 of 8 action will not result in a physical change to the environment, directly or indirectly, b) pursuant to City of Newport Beach Charter Section 412, waive full reading, direct the City Clerk to read by title only, and adopt amende Emergency Ordinance No. 2020-006, An Emergency Ordinance of the City Council of the City of Newport Beach, California, Prohibiting the Rental of Any Lodging Unit on Newport Island for a Period of Four Consecutive Nights or Less, to Any Person Other Than a Medical Professional or Emergency Responder Coming to the City of Newport Beach to Aid with the COVID-19 Outbreak." [See video at 4:47:25: Mayor O'Neill specifically verified the motion was to adopt staff's recommendation without any modifications. It might be noted, however, that the title read by the City Clerk and listed here says the ban is for rentals of "Four Consecutive Nights or Less." In other words, to be legal, the minimum stay five nights. Yet the body of the body of Emergency Ordinance No. 2020-006 (Section 2) bans rental "for less than four consecutive nights." That is, a four night stay is legal under the body, but banned under the title. As to the justification for an emergency ordinance, there was none: first there was no need to do implement this on a faster -than normal emergency basis; and second, reopening rentals would not in any way assist in dealing with the health emergency (instead, the ordinance itself said the reopening would likely increase the spread of coronavirus).] Page 450, paragraph 2 from end: "Council Member Muldoon indicated he has been told the New York Times article that states that New Yo patients from other counties are being sent to Orange County hospitals is accurate, those patients count toward Newport Beach's numbers, the City's ranking compared to other Orange County cities is dropping, more testing is good because it provides data, and Newport Beach and the County are being very responsible." [See video at 5:02:30] Page 451, Item XII: Items 11 and 12 are listed immediately under this. The title line for Item 12 should be deleted, as it appears on the next page. Page 452, Item 11 votes reported at top of page: The reporting is correct, but it might be noted Mayor Pro Tem Avery voted "no" both on denying the relief and on approving it. Page 452, Item 21: "Mayor O'Neill opened the public hearing. Hearing no further testimony, Mayor O'Neill closed the public hearing." Page 454, motion at top of page: "Motion by Mayor O'Neill, seconded by Council Member Muldoon, to waive Council Policy A-1 and to discuss the final agenda item since it is past 11:00 p.m." Page 454, Item 23, paragraph 3: "In response to Council Member Dixon's question, City Attorney Harp advised that the resolution will return the matter to the Planning Commission, who will work to develop something to prevent historical signs from being eliminated." [note: see video at 5:39:30: the motion shown at the bottom of this page was made before the present paragraph, and a comment made at that point by Mayor Pro Tem Avery is missing from the draft minutes.] Page 454, motion at bottom of page: "Motion by Council Member Muldoon, seconded by Council Member Dixon, to a) find this project categorically exempt from the California July 14, 2020, City Council agenda comments - Jim Mosher Page 4 of 8 Environmental Quality Act ("CEQA') pursuant to Section 15305 under Class 5 (Minor Alterations in Land Use Limitations) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3; b) waive full re• d44 direct the /amity /dark to rear/ by title only, L2eaeh, California, adopting 7enin- /'`e rle Amend ment No. Q42019-007 to Amend l'entieBeaGh MuniGipai Cede to EK -tend the Amortization of Nenc-onforming Signs n 20.42.140(A) (NencnenfbFming S�gns) of TVe 20 (Planning and Zoning) of the Newpor f and pass to second reading on iuy SIA X020 G) adopt Resolution No. 2020-66, A Resolution of the City Council of the City of Newport Beach, California, Initiating Amendments to the City of Newport Beach General Plan Natural Resources Element and the Local Coastal Program Coastal Land Use Plan Related to the Amortization of Nonconforming Signs (PA2019-184)." [The Council was presented with option of two ordinances or one resolution. It chose not to adopt either of the ordinances.] Page 458, paragraph 6: "The McKenney €amillf family indicated they picked the community to live in because of the trees and believed in children's safety, but felt the trees are a big part of the community." Page 458, paragraph 3 from end: "Charles Klobe related that the Board of Education made a finding that the project was exempt from the California Environmental Quality Act (CEQA) because there was no environmental damaged. He hoped Council would stop or slow this project so that a respectful discussion could occur." Page 459, paragraph 1: "Mr. Covert suggested everyone think about the safety and security of the children, noted that the Government Code section about trees does not apply to School District property and the c^hee/ site GGunGi► School Site Council supports the project, ..." Page 459, paragraph 4: "In response to Council Member Herdman's questions about the four required findings, staff indicated the curb -cut driveways Gan extend to do not exceed 10% slope " Page 459, paragraph 4 from end: "Tim Holcomb, Assistant Superintendent, indicated the State standard for parking does not deal with student parking at high schools. Instead, it is based on but with teachers and staff and the standard at all schools is 2.25 spaces per teaching station." Page 460, end of paragraph 6 from end: "..., and stated that the issues are the afibG effects on the instructional program, staff, students, campus life, school spirit, and most importantly on the community surrounding the school." Item 3. Ordinance No. 2020-15: Amending the Newport Beach Municipal Code Restrictions for Short Term Lodging I have trouble with this ordinance because it was introduced on June 23 without a clear printed copy, but rather with rather extensive modifications to the printed text, read by the City Attorney (see Item 19 video at 4:44:15). While I appreciate that those changes were made in response to the comments I submitted for the June 23 meeting, it is disappointing that instead of correcting what is likely an unintentional July 14, 2020, City Council agenda comments - Jim Mosher Page 5 of 8 misstatement of the definition of short-term lodging in parts of our code, adoption of the proposed code will expand the misstatement and confusion. As indicated in the note near the top of page 3 of these comments, staff has an ongoing difficulty appreciating that "XX days or less" is not the same as "less than XX days". NBMC Section 3.16.020 of our Municipal code, dating from 2003, "correctly" defines a "transient" from whom California Revenue and Taxation Code Section 7280(a) allows the TOT to be collected as one who stays "thirty (30) consecutive calendar days or less." The existing NBMC Section 5.95.010, dating from 1992, likewise "correctly" defines short-term rental in the same way. As does our webpage explaining STL rules. Unfortunately, when our Zoning Code was comprehensively updated in 2010, a new and inconsistent definition of the terms "Visitor Accommodations (Land Use) -- "Bed and breakfast inn" and ""Short-term lodging" were added to Subsection 20.70.020.V citing a rental for "less than thirty (30) days — inconsistent with Titles 3, 5, the Revenue and Taxation Code and our online explanation of STL's. This error in definition propagated into Title 21 (our Local Coastal Program Implementation Plan) when the latter was adopted in 2017, with definitions copied from Title 20. It was further propagated with the recent addition of Subsection 20.38.060.A.3.f to the Zoning Code, prohibiting short-term rentals on properties taking advantage of the cottage preservation exemption for floor area expansion. The present action still further propagates the error by overwriting the existing "correct" definition in Title 5 with the new "wrong" one. In other words, instead of attempting to contain and correct the error introduced in 2010, we are encouraging its spread. This bothers me because the reason the City would want to change the definition of short-term rental from "30 days or less" to "less than 30 days" (creating an inconsistency between the collection of TOT from hotels versus STL's) has never, to my knowledge, been publicly discussed. Item 4. Resolution Nos. 2020-67 and 2020-68: Modifying the Start Time for the Holding of Regular City Council Meetings This is a terrible proposal, and the idea that it would be placed on the consent calendar for adoption without discussion or debate is unfathomable, at least to me. Since I have no recollection of any Council member asking for such a change, it appears it is being advanced for the convenience of City staff, without consideration of its impact on the public that staff (and the Council) are supposed to serve. It is bad on so many levels I don't even know where to begin. There is a very long tradition in Newport Beach, going back, almost unbroken, to the City's founding, that to enable the public (as well as gainfully employed Council members) to observe July 14, 2020, City Council agenda comments - Jim Mosher Page 6 of 8 and participate, the Council's decisions should be made at meetings held in the evening after the normal dinner hour. The City's first regular meeting on September 11, 1906, began at 7:30 p.m., as did all regular meetings through the outbreak of World War II. To improve the ability of residents and Council members to attend without violating WW II nighttime "dim-out" restrictions, the hour was changed to 4:00 p.m. by Resolution No. 2659 on August 17, 1942. Although new habits die hard, the inconvenience of this was recognized, and the hour reverted to 7:30 p.m. with Resolution No. 3596 on May 24, 1948. At some point, the 7:30 starting hour became enacted into Section 2702 of the Municipal Code, 2 eventually renamed Section 2.04.020.3 The Council flirted briefly with moving the start time to 7:00 p.m. by adopting Ordinance No. 1803 on April 9, 1979, but after five months went back to 7:30 with Ordinance No. 1820, adopted September 10, 1979. For reasons that are not entirely clear, the Council went back to 7:00 p.m. with Ordinance No. 89-41, adopted January 8, 1990, but only with assurances that any study sessions or other non - regular business would be concluded by 5:30 p.m., to create a break between those and the evening meeting (see page 15 of the minutes for December 11, 1989). Although the time set for study sessions has frequently changed, the regular business meetings have started at 7:00 p.m. ever since — that is, up until the City's recent practice of starting the business meetings at odd and unpredictable hours, in violation of Council Policy A-1, which holds they start earlier than 7:00 only if business demands it. The present meeting is example of that recent disregard for policy, precedent and the public, being arbitrarily scheduled to start at 5:00 p.m. even though there is no business requiring that. In addition to precluding working people for participating in items decided upon at 4:00 p.m., the new policy would mean those who can attend will have no idea when their item may come up, having to come at 4:00 and sit through a study session of unknown length, a closed session of unknown length, and a Council dinner break of possibly unknown length — only to hear their business item, tired, hungry and disgruntled. There are at least two easily -imagined solutions: 1. Return to scheduling study sessions earlier in the day, to ensure a sizeable break between their end and the start of the evening meeting. 2. To allow all to attend, meet only in the evening, but more frequently (say, weekly). Making all meetings continuous marathon meetings that run, without break, from 4:00 (or earlier) till whenever is the present problem. It is not a solution. 2 See, for example, Ordinance No. 900 3 The start time having, for many years, been independently set by Council policy/resolution, the duplicative code section was eventually repealed by Ordinance No. 94-57. July 14, 2020, City Council agenda comments - Jim Mosher Page 7 of 8 In the hopefully unlikely event that the Council does adopt this bad staff suggestion, it might be noted that proposed Resolution 2020-67 screws up the formatting of page 3 of Policy A-1 (staff report page 4-7). It is supposed to read: "Continued Business Current Business" (on two lines) not: "Continued Business Current Business" (on three). Page 2 (staff report page 4-6) is also screwed up: the lines "Study Session (if any)" and "Regular Meeting Agenda Items (at 4:00 p.m. or, if there is Study Session and/or Closed Session, when the meeting is reconvened)" are unnecessary and confusing unless the intent is to ensure the Regular Meeting Agenda Items will never be heard before 4:00 p.m. (which is not what the policy on page 1 says). What is really needed, and not addressed at all here, is clarification of what the rules for study sessions are, including what kind of business can be transacted or decisions made at them. I believe their purpose has become perverted over time. I assume they were originally intended (as the name implies) strictly for learning, and that no direction at all was supposed to be given to staff at them. Item 9. Approval of COVID-19 Economic Relief Funding Support for the Newport Beach Restaurant Association Business Improvement District First, I hope the Council is aware the "Restaurant Association" includes many retail food -serving businesses the average person would not think of as a restaurant. For example, a retail bakery, juice bar, or the take-out section of a supermarket. The Council may also wish to ask about Newport Beach & Company's projection on agenda packet page 9-12 projecting hotel occupancy running at 85% this month. That would seem to contradict the City's expectation of sharply reduced TOT revenue. They may also wonder not only if a restaurant month in August is a realistic expectation, but also how the sweepstakes illustrated on page 9-16 could favor certain cuisines, such as "Mexican restaurants" without disfavoring others (such as "French" or "Indian" or whatever), or "Ice Cream" without "Bakery" and so on. July 14, 2020, City Council agenda comments - Jim Mosher Page 8 of 8 Item 12. Tourism Business Improvement District (TBID) Annual Report and Fiscal Year 2020-21 Budget I have no idea what the Council may have heard from its newly appointed (Item 21, January 14, 2020) watchdog on the Visit Newport Beach Executive Committee, but they may be interested to know that, to the best of my knowledge, Gary Sherwin, the CEO of that small organization is paid more than our City Manager.