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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 27, 2021 Written Comments July 27, 2021, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(d-)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III.A. CONFERENCE WITH LEGAL COUNSEL -ANTICIPATED LITIGATION At the Council's last meeting, I expressed orally my deep and sincere appreciation for the City Attorney's effort to improve the agenda's disclosure of the matters to be discussed by the Council in closed session (see draft minutes for July 13, 2021, proposed page 92 of Volume 65). When I went last Thursday evening to pick up the agenda packet for the present meeting, I was pleased to see this effort continuing. The present item was, at that time, noticed on the agenda as "CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION (Government Code § 54956.9(d)(2) (e)(2)): 1 matter" and went on to describe "correspondence dated July 15, 2021 from Christopher L. Pitet" exposing the City "to litigation associated with the potential formation of Assessment District No. 124 based upon allegations that the ballot process did not comply with applicable legal requirements." It goes on to say "A copy of the correspondence from Mr. Pitet is on file with the City Clerk." On Thursday, I was surprised to learn that the Clerk, apparently based on instructions from the City Attorney, did not allow copies of Mr. Pitet's letter to be taken home with the rest of the agenda packet, where it could be read at leisure. Instead, I was only allowed to inspect it in the Clerk's office. That seemed strange to me, and suggests the City may be unfamiliar with last year's California Appeals Court decision in Fowler v. City of Lafayette, 46 Cal. App. 5th 360 (2020). In that decision dealing with the noticing of closed sessions called to discuss threats of litigation, the court held: 1. "Subdivision (e)(5) of section 54956.9 specifically addresses a public agency's obligations when a person has threatened litigation outside a public meeting. Like the trial court, we conclude this provision, and not subdivision (e)(2), applies here." In other words, closed session discussion of a threat of litigation should be noticed with a reference to Government Code Section 54956.9(d)(2)(e)(5), not (e)(2). 2. Subdivision (e)(5) of Section 54956.9 refers, in turn, Section 54957.5, and the court concluded that: "Read together, sections 54956.9, subdivision (e)(5) and 54957.5 require public agencies to include with the agenda materials litigation threats to be discussed in closed session." In other words, even though it relates to a closed session, a copy of the threat to be discussed there must be provided to the public as part of the regular agenda packet, for the public's review July 27, 2021, City Council agenda comments - Jim Mosher Page 2 of 7 in advance of the meeting, just like the materials supporting any other agenda item. It should not have been treated differently, with a "to be read in office only" restriction. As to the substance of the letter, I cannot recall if Mr. Pitet explicitly threatened litigation, but that was clearly his intent, for based on the agenda as amended late Friday, a case had already been filed in Superior Court. Based on my recollection of his letter, Mr. Pitet cited possible non-compliance by the City with Article XIIID, Section 4 of the California Constitution and Government Code Section 53753 (both of which are also cited in the proposed resolution approving the undergrounding). His claims were: 1. That the City had improperly delegated the mailing of ballots to a private third party with a financial interest in a positive vote. 2. That the third party had sent the ballots based on an outdated list of property owners, and not always to "the owner of a parcel whose name and address appears on the last equalized secured property tax assessment roll," which is the definition of "Record owner" in Section 53750. The second of these seems particularly serious to me, for, if true, not only would this be a clear violation of the law, but, in addition, even if the ballots had gotten to the correct addresses, the listing of non -current owners would have created confusion. For, if I recall correctly, the examples of ballots provided in Mr. Pitet's letter instructed the recipients that only those to whom the ballots were addressed were eligible to vote. I think Mr. Pitet has a point that the vote needs to be redone with correctly addressed ballots, especially if the result is close. California Revenue and Taxation Code Section 616 requires the County assessor to complete the assessment roll for the coming fiscal year by its start on July 1. So, at the time the ballots were mailed, there should certainly have been a roll available for the July 1, 2020 through June 30, 2021, fiscal year. The code excuses certain errors that may appear in the roll, but it does not appear to excuse using a non -current roll. Item 13. Proposed Assessment District No. 124 - A Roughly 50-Block Area of Central Balboa Island Please see comments on Item III.A, above. In addition to the question of whether the correct list of record owners was used for mailing the ballots, I find it surprising that neither the staff report nor the proposed resolution contain anything (at least that I can find) to confirm that the ballots were mailed at least 45 days prior to the present hearing, as required by Cal. Const. Article XIIID, Sec. 4(e). Presumably, the mailing could not have occurred until after the June 8, 2021, City Council meeting at which "the City Council preliminarily approved the Assessment Engineer's Report, declared its intention to levy assessments and to issue bonds to finance the undergrounding, and set July 27, 2021, as the time and place for a Public Hearing." July 27, 2021, City Council agenda comments - Jim Mosher Page 3 of 7 From June 8 to July 27 is just 49 days. Were the ballots indeed mailed by June 12? An additional question not addressed in the staff report or resolution is whether the creation of the district is contingent upon the City obtaining approval of a coastal development permit for the proposed work? Under the terms of City's certified Local Coastal Program, "development" generally requiring a permit includes "construction, reconstruction, demolition, or alteration of the size of a structure, including a facility of a private, public, or municipal utility." (definition is NBMC Sec. 21.70.020) The permitting process is intended to ensure the project will be executed in such a way as to not negatively impact coastal resources. Although it would seem strange for the code to define a class of development subject to permit requirements and then completely exempt it, the City might argue the project being considered here is exempted from the requirement for a CDP as a "Repair and Maintenance" activity under NBMC Sec. 21.52.035.C.4. However: 1. This seems a major change to existing structures, not "repair" or "maintenance" of them. 2. Some of the work seems likely to involve placement of mechanized equipment or construction materials within 20 feet of coastal waters (for example, replacement of pole at 1411 North Bay Front), which makes it ineligible for the exemption. In any event, as best I can tell, neither the staff report nor the proposed Resolution No. 2021-71 creating the district (Attachment A) address how compliance with the Coastal Act will be achieved. If the project is exempt, they should state why. Finally, I would note the Resolution No. 2021-72 that is offered in the event the Council should wish to abandon the creation of the district (Attachment C), seems predicated on the assumption (stated in Section 2) that a majority of ballots being cast in opposition is required for such action. I suspect the "Recommendation" on pages 1 and 2 of the staff report states the rule more correctly. Namely, majority opposition prevents the Council from forming the district. But majority opposition does not have to exist for the Council to abandon the proceedings. Stated in different terms, majority support allows the Council to form a district, but even then the decision to proceed remains at the Council's discretion. Majority opposition would be one of many possible reasons for abandoning the proceedings. It is not, as Section 2 of draft Resolution No. 2021-72 suggests, the only one. Such rules seem wholly in keeping with a fundamental principle of American freedom and governance: that the majority does not have unfettered power to impose its will on a minority. Item SS1. Council Redistricting (PA2021-035) In 2011, the recommendation for redistricting came from a committee of three termed -out Council members, created by Resolution No. 2011-42. Unfortunately, the proceedings of that committee, unlike some other Council committees, do not seem to have been archived to the July 27, 2021, City Council agenda comments - Jim Mosher Page 4 of 7 Boards & Commissions section of the City's Laserfiche system, although isolated documents can be uncovered through the search function on the City website. The creation of the committee is required by Section 1005 of the City Charter. However, the Charter (which originally required a committee to be created every four years) is silent as to who should be on the committee: citizens, council members or both. Although Article XI, Section 5(b) of the California Constitution gives charter cities some latitude over the process for electing council members, the state legislature has, in Elections Code Secs. 21620 - 21630, imposed rules applicable to redistricting of charter cities. These include required number of hearings, opportunities for public input and completion deadlines. Among the requirements for public outreach, the City has to post information about its redistricting process on its website, for which the templates published by the California Secretary of State are said to be sufficient. The legislature has also, in Elections Code Secs. 23000 - 23004, established rules for the possible appointment of non -council restricting committees. With any discussion of redistricting in Newport Beach must come the question: should Newport Beach have districts at all? While the original scheme may have made some sense, there is a pervasive and seemingly unavoidable tendency for our electeds to say they are representatives for a district, rather than simply from a district, as seems to have been the original intent (Newport Beach did not have council districts before the charter). Given this culture, I feel increasingly strongly that we should either: (1) eliminate the districts and elect all council members citywide, or (2) continue with councilmanic districts, but hold elections by district (that is, with only residents of that district eligible to vote for their member). My primary reason for believing this is that if council members continue to say they represent districts, I feel I have no right to tell the residents of any district other than my own who should represent them. I wish all the council members felt they represented the whole city, but if they don't, I have no more right telling the residents of Corona del Mar or the Peninsula or "the Heights" who should represent them on council than I have telling the residents of Modesto or Atlantic City or Shreveport who should represent them in Congress. Conversely, I don't think they should not be dictating who represents me. Again, I think the original wish for geographic diversity on the Newport Beach City Council, which was the only reason for creating districts, was a good one. But in practice it seems impossible for persons elected from districts to not feel and act as if they were elected for districts. Keeping districts but switching to "by district" voting seems the only obvious way to ensure we both maintain geographic diversity on the council and have representatives directly answerable to those they claim to represent. July 27, 2021, City Council agenda comments - Jim Mosher Page 5 of 7 Item 1. Minutes for the July 13, 2021 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c*�,,.eou underline format. The page numbers refer to Volume 65. Page 90, paragraph 3 from end: "Nancy Scarbrough, representing Good Ne4hber Neighbors Newport, displayed a slide to discuss the effect of ..." [the plural is used elsewhere in these draft minutes, pages 91 and 94] Page 91, paragraph 6 from end: "Sandra Ads Ayres thanked Council and the HEUAC, ... [I made this same error in suggesting a correction to the draft minutes submitted at the last Council meeting, but to verify the correct spelling of Ms. Ayres' last name, see recent correspondence from her.] Item 6. Resolution No. 2021-69: Supporting Local Schools as they Return to Normal and Parental Choice in Deciding Whether Children Should be Masked or Vaccinated at School Although I appreciate the sentiment of the resolution, I have trouble seeing how it's the business of the City Council to opine on this. Residents of Newport Beach pay far more in taxes to the school district than they do to the City, and they elect a separate set of persons to represent them in making decisions about how it is used as well as setting policy for the schools. This seems quintessentially a topic for decision by the governing body of the School Districts, not the City Council. Indeed, if a public speaker were to begin speaking under Item XVII (Public Comments on Non - Agenda Items) about rules imposed by school districts regarding masks and vaccines, I would not be surprised to hear the City Attorney cut them off with an admonition that it was a topic not "generally considered to be within the subject matter jurisdiction of the City Council." Beyond this, the proposed Resolution No. 2021-69 makes numerous references to unverifiable supporting information from such vague sources, if any, as "recent studies," "numerous studies" and "many highly credentialed, well -respect medical professionals" without specifically identifying any. And it is proposed to be adopted before soliciting or hearing any public testimony on the matter. Item 9. Approval of an Exclusive Negotiating Agreement with Lido House Hotel, LLC for the Lease of Property at 475 32nd Street (PA21- 00712) The Council has met several times in closed session to discuss with City negotiators the "price and terms of payment" for leasing this land, with no result of those meetings ever having been publicly announced. July 27, 2021, City Council agenda comments - Jim Mosher Page 6 of 7 This, then, is the first public disclosure of any information with regard to this possible transaction. As the Council is likely aware, the City of Anaheim is in potential hot water over not complying with the state's Surplus Land Act in connection with their agreement to sell the city -owned Angels Stadium land. The present staff report fails to provide any assurance this proposed transaction complies. Was the property properly advertised as surplus? Or if not, is it this easy to evade the act? The present staff report likewise fails to explain to the public, in understandable terms, what the proposed agreement means. For example, at the top of the second page (staff report page 9-6), it appears the lease rate would be negotiable. But the same sentence sets the rate at $50,000 per year. Is the rate negotiable? Or has the Council agreed to $50,000? If not, what is its significance? The staff report also, as best I can tell, does not say who will be doing the negotiating or how the public will be informed of its progress. As to obvious technical issues with the proposed Agreement, Recital C on staff report page 9-5 defines the "Site" that is the subject of the negotiations as that "more particularly depicted in Exhibit "A"." However, Exhibit "A" (on page 9-13) shows the entire former City Hall property, including the fire station, with no boundary depicted between the two, when I believe the "Site" is supposed to be only the portion not current leased by Lido House, LLC. Finally, it might be noted that both the City's General Plan and its Coastal Commission -certified Coastal Land Use Plan limit non -governmental development on the entire area depicted in Exhibit "A" to 103,470 gross square feet. I could be mistaken, but I believe that is already entirely used by the existing hotel structure. The staff report does not mention if what is being negotiated could be accomplished without a General Plan and CLUP amendment, and how much amendment is being considered. One can only guess the Council, in privately discussing an appropriate lease amount, had some concept of the proposed magnitude of development and what the reference to "construction of public parking spaces" is about. The public does not. Item 11. FY 2020-21 Donations Report for the Quarter Ending June 30, 2021, and Annual District Discretionary Grant Report I commend the Council members who had the restraint to not spend the full $6,000 allocation allowed them City Council Policy A-12, and especially the two (O'Neill and Blom) who apparently spent none of it. I have long felt the District Discretionary Grants program is inconsistent with our City Charter, which places decisions over spending and all other discretionary matters collectively with a Council of seven, and not with any of its members individually. July 27, 2021, City Council agenda comments - Jim Mosher Page 7 of 7 Moreover, it is evident from the spending choices disclosed in the table on staff report gape 11- 4 that the program undermines the City's efforts to dispense community grants in more formal, open and equitable way, as outlined in the same policy. Especially when a city has mechanisms in place for its entire council to publicly approve support to community groups (through, in our case, Community Programs, Special Events, Culture and Arts, and Community Development Block Grants), there is something fundamentally wrong about these same groups privately soliciting individual council members for more, not to mention the awkward position such solicitations put those members in. I hope the Council will consider revising Council Policy A-12 to eliminate the District Discretionary Grants.