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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 13, 2021 Written Comments July 13, 2021, City 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 SS6. Updated Draft of the General Plan Housing Element Update (PA2017-141) I have not had much time to review this latest draft, but on a quick perusal it seems, charitably, to be a mess not yet ready for submission to HCD. The only version of the Draft Element available for review seems to be a redline. It is not clear what previous version it is redlined from, but even if we were told, my experience is that City redlines are not reliable. For example, there seems to be an entirely new Appendix D, whose newness is not highlighted with redlining, even though none of it existed in the version presented to the Council and public at the April 27 meeting. While redlines are valuable, they are also difficult to read, and I doubt HCD would be happy trying to decipher what is intact and what is deleted. So, it would also be nice to see the "clean" version staff is (presumably) proposing to send them. Among other things, the previous versions had a table of contents. Based on the redline — although it's not shown as crossed out — the table of contents is gone. So it appears staff is asking permission to submit the Housing Element to HCD without one. One has to wonder why. It makes navigating and comprehending the document immensely more difficult. Is that the reason? It was also puzzling to me that in the updated Sites Inventory of Appendix B, most all the unbuilt 5th Cycle housing carryover is assigned to the "Dover -Westcliff' area. I never realized that Mariners Mile, Lido, Cannery and Balboa Villages were all in the Dover -Westcliff area, but one lives and learns. Given the urgently -adopted new procedure allowing four major hotels in Newport Beach to use their existing hotel room allocations to build dwelling units instead (see comments on Item 7, below), I am certainly interested in how that impacts the Housing Element. Curiously, I have been able to find no mention of it. I am also curious about the impact of new legislation pending in Sacramento, and wondering why we are rushing to submit a plan before we know the outcome of those. As to the staff report, it is comforting to read on page SS6-3 that with regard to the Introduction that there are "No changes to this Section since previous draft." But having read that, it is a bit disconcerting to open the Introduction and find a great deal of redlining. Apparently this is a follow-on to Item 7 (see comments, below), where words in Newport Beach may not mean what they seem to mean. Since there appear to be changes from both the March 10 draft and the April 27 draft (which, it seems, was never officially posted other than as part of a Council agenda packet), I am not sure which "previous draft" there are no changes since. Similarly, but more substantively, when the staff report tells me on page SS6-8, regarding Policy Action 1 K, that "This Policy Action was updated to reflect City Council direction to clarify the July 13, 2021, City Council agenda comments - Jim Mosher Page 2 of 4 inclusionary policy will be preceded by a study to support ultimate Inclusionary requirements," am completely unable to reconcile these words with the words I find on pages 4-8 and 4-9 of the redline draft. While some of the introductory verbiage refers to an "investigation," the boxed "Timeline" summary at the end sounds like an absolute commitment to "Adopt interim inclusionary policy within 6 months of Housing Element adoption" and "adopt an Ordinance within 36 months of Housing Element adoption." Not only am I unsure what the difference may be between the legal enforceability of a "policy" versus an "ordinance", but do we expect HCD to have the clairvoyance to know that what look like commitments are not commitments at all, but rather merely possibilities that may come to pass based on the outcome of a study, including, I assume, the possibility of not doing them at all? Item 1. Minutes for the June 22, 2021 City Council Regular Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in sfh*eou underline format. The page numbers refer to Volume 65. Page 65-79, last bullet: "Attended meetings of the Newport Beach Restaurant Association BID with Council Member Dixon, Corona del Mar Residents Association (CdMRA), Orange County Mosquito and Vector Control Board, the Good Neighbors Group, and the Newport - Mesa Unified School District with Council Member O'Neill, and parents and Deputy Recreation & Senior Services Director Levin to discuss playground equipment at Grant Howald Park" Page 79, first bullet: "Attended opening day at the Lido Isle Yacht Club, opening day at the OASIS Sailing Club with Council Members O'Neill and Brenner, the Newport Harbor High School' Mentorship Program Annual Lunch with Council Member O'Neill, and opening day for the Newport Beach Junior Lifeguard Program with Council Member O'Neill' [delete apostrophe after "School'] Page 85, Item XVII, last paragraph: "Sandra Ayers was disappointed with Council for not requesting a future agenda item to study Mariners' Mile and the West Coast Highway development." [It appears from the video that Ms. Ayers, who is not normally shy about identifying herself, omitted stating her name not because she didn't want it in the minutes but because the Mayor had already identified her (by first name) on her way to the lectern.] Page 87, Item 16, paragraph 4: "Mayor Pro Tem Muldoon expressed the opinion that abuses of power occurred, disparate outcomes and processes in some States correlate to abuses of power, education is better than mandates, local government is a sub jurisdiction of the State, and added that police powers are relegate delegated to the Governor and State Legislature, otherwise the City Council would have removed the emergency sooner." [note: the video shows the actual words spoken were "fall under." If they must be changed, I believe "delegated" is closer to that meaning than "relegated." Exactly how the Mayor Pro Tem found this very specific delegation of power spelled out in the 28 words of the 10th Amendment to the US Constitution is unclear to me, but he is a legal scholar with the apparent backing of a majority of the US Supreme Court, and I am not.] July 13, 2021, City Council agenda comments - Jim Mosher Page 3 of 4 Item 7. Planning Commission Agenda for the July 8, 2021 Meeting As indicated by the Planning Commission Action Report, the primary item of business at their July 8 meeting was the hearing and unanimous denial, by the six commissioners in attendance, on the appeal of a Director's Determination allowing 30% of approved hotel rooms at four hotels in Newport Beach to be converted to residential dwelling units. While it is true the Director could claim to the Commission that the Council had directed him to make this Determination, it would be wonderful if one of the Council members had the integrity to call the Planning Commission's approval of the Determination up for review, for this whole debacle marks a true low point in public process. To make his Determination, the Director had to expand his powers to "interpret" ambiguities in the code to go far beyond what any reasonable person would call "interpretation" and instead venture far into the realm of creating entirely new legislation, but without any public legislative process by the City's legislative body. To make his Determination, the Director had, among many other things, to completely ignore the words "transient guests" in the Zoning Code's definition of a hotel as: "an establishment that provides guest rooms or suites for a fee to transient guests for sleeping purposes. Access to units is primarily from interior lobbies, courts, or halls. Related accessory uses may include conference rooms and meeting rooms, restaurants, bars, and recreational facilities. Guest rooms may or may not contain kitchen facilities for food preparation. Hotels with kitchen facilities are commonly known as extended stay hotels. A hotel operates subject to taxation under California Revenue and Taxation Code Section 7280." and decide that "transient guests" was intended to include "permanent residents." And that structures that operate under Revenue and Taxation Code Section 7280 include those that do not. And he had to determine dwelling units were not an allowed use elsewhere in the City. Moreover, he had to completely ignore our General Plan's definition of "hotel," which the Zoning Code is supposed to implement (see page 14-52). Namely: "A facility in which guest rooms or suites are offered to the general public for lodging with or without meals and for compensation, and where no provisions is made for cooking in any individual guest room or suite." The contradiction as to whether hotels are allowed to provide individual cooking facilities (which would prohibit "dwelling units" at those sites since "dwelling units" must have them) is not a matter of ambiguity. It is a flat-out contradiction that would have to be resolved by new legislation by the Council. Short of that, the General Plan is supposed to prevail over the Zoning Code. Simply put, there is no way the hotel room allocations approved by voters for incorporation in the General Plan in 2006 could ever have been understood to be interchangeable with allocations for dwelling units. July 13, 2021, City Council agenda comments - Jim Mosher Page 4 of 4 It might be good public policy to make them so. But that requires new legislation and cannot be accomplished by mere "interpretation." And then, after explaining to the Commission that changing some 250 voter -approved hotel rooms in each of two statistical areas of the General Plan into dwelling units, when done by the Director rather than the Council, was "not a General Plan amendment," he attempted to explain how even if it was a Council -enacted General Plan amendment, it could not possibly have triggered the need for a City Charter Section 423 (Greenlight) vote. To do so, he had, with a straight face, to assure the Commission that taking 250 hotel rooms "off-line" and adding 250 dwelling units instead does not change "density" or "intensity" (see video at 14:13) -- even though the very next line in Charter Section 423 explicitly defines adding "over 100 dwelling units" as a significant increase in density. Not to mention the Zoning Code, which the Director is so adept at interpreting, defines "density" as "the number of dwelling units per unit of land," of which hotel rooms constitute none. The Planning Commission's loyalty to staff and the Council seem to have blinded them to recognizing this poorly -executed flim-flam. But one might still hope there is at least one Council person who believes the laws they, and the voters, enact, and the words within them, have meaning. For if it stands, words and laws will have no meaning in Newport Beach municipal affairs. Please call this up for review. Item 9. Confirmation of Voting Delegate and Alternates for the 2021 League of California Cities Annual Conference - September 22, 2021 to September 24, 2021 It would be helpful for the staff report to indicate if this item is regarded as authorization under the Council's murky travel policy (FF=8) and Government Code Sec. 53232 for the entire City Council to be reimbursed for travel expenses to Sacramento in September, should they all choose to attend. The last time this item required actual travel (and, in that case, only to Long Beach), only one delegate and one alternate was named (see Item 17 from June 25, 2019). Authorizing the entire Council to travel to Sacramento seems unnecessary unless some clear public benefit to that can be offered. Should the "Recommended Action" limit the total number authorized to attend at public expense?