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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 16, 2021 Written Comments November 16, 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 SS2. Housing Element Update Discussion Given the present 1,388 page agenda packet, even without the Study Session items, I would not realistically expect to have time to study it prior to the deadline for submitting comments, but it is still disappointing that no link is provided in the agenda to the revised Housing Element that staff has quietly posted (in nine parts) and which will presumably be the subject of study under this heading. To the much that has been said about the illogic of the state mandates underlying this exercise, I would add only that they seem to be based on a flawed vision of all areas of California offering dwelling units with exactly the same mix of affordability. As I understand it, somehow the City government is supposed to make accessible to families of a given income the same percentage of units as are accessible to them in La Palma or Stanton. Without taking anything away from the pleasures of living in either of those cities, it defies any concept of a free market that a dwelling unit on a beach or harbor front would rent at the same rate as one there. Item SS4. Water Conservation Ordinance Update As with Items SS2 and SS3, no links are provided in the agenda. If staff is truly hoping "to receive feedback on concepts and principles" prior to assembling an updated ordinance as the agenda announcement says and is very commendable for it to do, why would it not provide a link to the "new State requirements" prompting the discussion, or at least say where they can be found. Item 1. Minutes for the October 26, 2021 City Council Regular Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in strikeoui underline format. The page numbers refer to Volume 65. [Once again, the minutes contain many passages whose meaning is likely inscrutable to anyone who did not witness and remember the meeting. Fortunately, the video has been preserved. As usual, these comments are confined to suggested corrections toss obvious errors of grammar and misstatements of meaning.] Page 167, paragraph 2 from end, sentence 1: "In response to Mayor Avery's question, Community Development Director Jurjis shared that the City falls in the middle of the paEt pack in comparison to the pages of comment letters received by other cities." Page 167, last paragraph, last sentence: "She ^� Gere offered her assistance in the effort." Page 168, paragraph 1: "Laura Curran commented on occupant limits pertaining to residential care facilities, believed most individuals in the facilities are not residents of California, suggested Council fight back against stated state -imposed regulations, and encouraged the City to vigorously team up with other cities to address these issues." November 16, 2021, City Council agenda comments - Jim Mosher Page 2 of 8 Page 169, Council Member Brenner, first bullet: "Attended the Joint School Board and City quarterly meeting with Council Member O'Neill, three school board members, and new Superintendent Wes Smith; ..." [note: the City of Costa Mesa, the Costa Mesa Sanitary District and the Mesa Water District also hold a quarterly meeting with NMUSD trustees and staff. It is regarded as a Liaison Committee, with posted agendas, and conducted subject to the Brown Act. The present CNB-NMUSD meeting does not appear to be so regarded by the City (it does not appear on the Clerk's Roster) and it is unclear who appointed Council members to it. Page 169, Council Member Dixon, first bullet: "Attended ... the Council Ad Hoc Redistricting Committee meeting, ..." [note: Although advisory in nature, this was created by Resolution No. 2021-86 on September 28 as a Brown Act committee, meaning all meetings were to be publicly noticed. I do not recall seeing notice of any meeting prior to the one held in the Council Chambers on November 8.1 Page 169, Council Member Blom, first bullet: "Attended the Police Department Promotion Ceremony, Corona del Mar Rett Residents Association meeting,..." Page 170, end of paragraph 2: "..., and suggested an ongoing management plan with expert legal counsel and lobbying resources to work with County and legislature legislators to pursue policy and build relationships with the new Director of the Department of Health Care Services (DHCS)." Page 173, Item XVII, paragraph 5: "Nancy Scarbrough shared a California initiative, the Tripartisan Land Use Initiative, that will likely be on the November 2022 ballot .... City Attorney Harp added that Council Member Brenner previously requested an item for the consideration of a resolution supporting this, which will be on the next agenda." [It doesn't seem to be] Page 173, Item XVII, last paragraph: "Mayor Pro Tem Kevin Muldoon cautioned Council to be thoughtful of what is said about the Santa Ana Heights issues, believed that funds could be allocated to government relations in Sacramento, and requested a future agenda item to consider persuading legislature legislators to step up and do the right thing." Page 174, paragraph 1 after motion: "Council Member Dixon stated that the Development Agreement preserves and protects the entitlement rights for future development by Hoag in the lower planned community area, and proceeds of the agreement are static for 20 years through 2040 and will be directed to the City's homeless programs at the Center Bridge Shelter." [The facility has previously been referred to in City documents as "the Bridge Shelter" or the "Costa Mesa Bridge Shelter." This would be the first I've seen it called the "Center Bridge Shelter."] Page 174, paragraph 2 after motion: "In response to Council Member Blom's questions, City Attorney Harp clarified that the City previously extended the agreement for 10 years, for which Hoag has already paid $600, 000 of the $3 million, and that this extension is for another 10 years for a proposed additional $3 million; however, the motion is to decrease this amount to $1.5 million, leaving the original $3 million alone." Page 175, Item 14, paragraph 2: "... ; reasons for placing the ballet measure on the primary election ballot versus the general election ballot, and..." November 16, 2021, City Council agenda comments - Jim Mosher Page 3 of 8 Page 175, Item 14, paragraph 4: "Susan Skinner opposed the direct election of the Mayor and opined that the decision would contribute to long-term damage to the City by eliminating the City Manager's ability to put items on the agenda as the voice of the day-to-day operations, create a dependency on the Mayor, attract a second-rate City Manager versus a top-notch candidate, affect employee morale, meet the needs of one person andremake remake the City's form of government, reshape the balance of power on the City Council, andslut an abnormally powerful Mayor in charge." Page 176, paragraph 10: The "unidentified speaker" was George Leslie. Page 177, paragraph 7 from end: The "unidentified speaker" was Sandra Ayres. Page 177, paragraph 3 from end: "Phillip Greer urged Council to table the item for a few months, establish an ad hoc committee, return with public input, add more defined language, and include a plan Aw to avoid disenfranchising people with the consolidation of seven districts into six districts." Page 177, last paragraph: "Tom Baker asked Council to let the citizens vote on petition for the decision." Page 178, paragraph 1: The "unidentified speaker" was Portia Weiss. Page 179, full paragraph 3: "Council Member Brenner related that the amendment is a complex issue with much to consider, and conversation is required. She supported Council Member Dixon's proposal to form a citizen group to review all Charter issues, expressed the opinion the measure is not ready nor , strong indicator c f to assure the City's success without more discussion and modification, and noted the potential for creating a legacy of having turned the City over to politicians with personal gain intentions." [see video at 4:40:45] Page 179, full paragraph 4: "Council Member Brenner related that the amendment is a complex issue with much to consider, and conversation is required. She supported Council Member Dixon's proposal to form a citizen group to review all Charter issues, expressed the opinion the measure is not ready nor , stung indicator G f to assure the City's success without more discussion and modification, and noted the potential for creating a legacy of having turned the City over to politicians with personal gain intentions." [see video at 4:40:45] Page 179, full paragraph 5: "Council Member Dixon stated that moving forward with the amendment should be because it is the right thing to do, district realignment is a huge topic and issue requiring discussion, the Mayor in the current form of government is the first among equals, the City Charter states that the Mayor has protected ceremonial power and presides over Council meetings, the words may take on a different meaning when coupled with an elected Mayor, history of the current form of government comes from the Mayor form of government to a professionally managed City with many roles to disperse power amongst Council Members." [see video at 4:44:55] Page 180, paragraph 2 from end: "Finance Director Catlett continued the presentation to share recommended uses for surplus funds on hand with a deviation #er from the regular policy." November 16, 2021, City Council agenda comments - Jim Mosher Page 4 of 8 Item 5. Resolution No. 2021-108: Authorizing the Recreation and Senior Services Director to Apply for the Per Capita Grant Funds Under Proposition 68, Parks and Water Bond Act of 2018 to Construct Pickleball Courts at Newport Ridge Park The staff report does not mention that should the grant be awarded, Section 7 of the proposed resolution (on page 5-5) commits the City to initiating numerous programs, many of which may eat into the funds provided. Is the Council aware of these strings attached to the grant and comfortable with them? Also since none of the current council members were on Council at the time, it seems appropriate to remind them that the entirety of Newport Ridge Park (and Crestridge Park) was offered to the City as a public park by the Irvine Company at no cost other than that of maintaining it. A previous Council rejected that offer for reasons that remain unclear (see Item 17 from May 14, 2013). Item 10. Resolution No. 2021-114: Supporting the Water Infrastructure Funding Act of 2022 Is this a Poseidon -backed initiative as some news reports suggest? If so, why would the Council be going out of its way to support it? I thought the City had always taken a neutral stance with regard to Poseidon. Item 21. Professional Services Agreement for Pier and Boardwalk Safety I am unable to understand the comment at the top of page 21-3 that the proposer's hourly rates are higher than their current ones because, at least in part, "they include the legislated increase to the California State Minimum Wage of $1.00 per hour, effective January 1, 2022." The hourly rates indicated, $27.11 and up, are far above the minimum wage, so how are they affected by changes in it? Or are there additional employees not mentioned in the staff report or contract who work at the minimum wage? Also, even though the other two proposers are said to have not reached the technical score necessary for their costs to be considered, it would have seemed helpful to indicate what those scores were, and, in the absence of any other prices to compare these with, to reveal to the Council (and public) what their proposed rates were. Item 28. Ordinance No. 2021-25: Solid Waste and Divertible Material Container and Bulky Item Requirements This item is deeply disturbing to me. November 16, 2021, City Council agenda comments - Jim Mosher Page 5 of 8 Newport Beach (along with San Diego) is one of only two cities in California with a voter - enacted ordinance' declaring curbside trash collection to be, like street sweeping, an essential municipal service funded by the base property tax collected from the property owners generating the waste. Although voters were asked and did approve an amendmentz removing business properties from its scope, that ordinance still stands (as Municipal Code as Section 6.04.140) with respect to curbside residential trash collection, including the complete cost of disposal of what are now called recyclables. Meanwhile, in the 1990's, faced with state mandates requiring diversion of recyclables from landfills, and faced with the options of (1) asking residents to do the separation curbside or (2) paying a vendor (who makes money from the recyclables) a nominal fee to do the separation for them, the Council had decided residents would prefer paying the nominal fee. And rather than paying the fee out of the basic ad valorem property tax the Council (without consulting the voters) decided to impose the sorting charge as a special "recycling fee" on the residents3 — presumably on the logic that if property owners objected that this was not the "free" service guaranteed by the Municipal Code, they could revert to sorting at curbside. In 2013, as part of the switch from staff -provided curbside collection to an outside contractor,4 containerized collection was introduced with residents being given an option of voluntarily separating recyclables. Curiously, residents volunteering to do their own curbside separation do not seem to have been offered any relief from the recycling fee, even though its sole purpose was to pay a vendor to perform the separation. On March 23, as Item 18, the Council held a sham Proposition 218 hearing to increase the recycling fee, with no rational connection of the new fee to the differential cost of recycling vs. landfilling, let alone the vendor's cost of sorting, alone, the possible profit generated by the sorting contractor or the number of residents already doing the separating for the vendor.' Now, despite the City still being bound by a voter -enacted ordinance which states that "The cost and expense of collecting, hauling away and disposing of garbage, refuse and cuttings6 ... for any dwelling or dwelling unit, existing or future, within the boundaries of the City as of November 1, 1996, that receives curbside container refuse collection service from the City, ' Ordinance No. 878 from 1959. 2 Ordinance No. 96-46 3 Ordinance No. 90-6 (adding Chapter 2.30 to the NBMC) 4 Item 27 from November 12, 2013 (the original contract with CR&R). 5 See my previous comments on that item. 6 The voter -enacted definition of "garbage, refuse and cuttings" is much broader than staff would lead residents to believe. The act uses the definitions in Ordinance 1403 and Ordinance 1558: "The term ' garbage' shall mean and include all animal and vegetable refuse incident to preparation or handling of food." "The term " refuse" shall mean and include rubbish and trash such as paper, newspapers, rag, cardboard, fiber, metal, glass, carton, container, box, bottle or jar, and other articles or materials of a similar nature normally discarded as household or business refuse." "The term ' cuttings' shall mean and include trimmings from trees or shrubs, plants, grass cuttings, or removed or discarded branches, shrubs, or plants." November 16, 2021, City Council agenda comments - Jim Mosher Page 6 of 8 shall be defrayed exclusively from the ad valorem tax revenues' of the City," and without asking voters to change that, it appears all residents will be required (and face the threat of penalties for noncompliance) to separate materials yet continue to pay a "recycling fee" originally intended only to avoid their having to do that. While this trampling on the direction given the City by voters bothers me, that is not the thing about the present agenda item that most bothers me. What bothers me most is seeing a banner ad on the City's home page announcing details of a complete new four-phase residential trash collection program that the Council has never formally approved. It further bothers me that the sketchy staff report does not provide any clear connection between the newly -announced collection program and the ordinance being considered under this agenda item, other than the rather opaque statement under "FISCAL IMPACT" that "Containerization improves operations, allowing for more efficient refuse collection. Negotiated contract pricing with CR&R is based on containerization. If the proposed amendments to NBMC Chapter 6.04 are not adopted, contract pricing would be higher and require additional negotiation." It bothers me perhaps even more that all this has apparently been debated and agreed to by a three-member "City Council Solid Waste Working Group" — requiring just one more vote for adoption — even though no such group has ever been publicly appointed or empowered to do anything by the remainder of the Council. That is the opposite of transparency. As to the proposed ordinance, which is likely expected to be adopted without much explanation or debate since it is being presented to the full Council at the last possible moment to meet the state -mandated effective date of January 1, it looks, like much the City produces, to be poorly written. Especially troubling is its continued reliance on the existing Municipal Code Section 6.04.130 that delegates to the City Manager most details of how the residential trash collection program will work. For comparison, I would note that CalRecycle has posted a model ordinance for compliance with SB 1383 on its education page (under "Model Tools"). According to the associated PowerPoint and video, one of the questions an agency would first ask itself would be whether it wishes to adopt the "standard" or "performance-based" collection service model? I cannot tell from the staff report which model staff thinks it is recommending, or if this has even been discussed with the mysterious Solid Waste Working Group. The three -cart system that staff is announcing on the City's home page would qualify, according to CalRecycle's materials, for a performance-based ordinance with fewer regulations and potential penalties imposed on residents. Yet the ordinance being presented here looks like a standard one. Why would the City be doing this? Locally, staff's efforts to craft an ordinance might be compared to the SB 1383 compliance ordinance adopted in October by our neighbors in Costa Mesa (see their October 5 and October 7 "Ad valorem" means the basic 1 % assessment allowed by Proposition 13 and does not allow any additional fee to be charged. November 16, 2021, City Council agenda comments - Jim Mosher Page 7 of 8 19 agenda items) and the one being considered by the Costa Mesa Sanitary District (which will affect residents in Santa Ana Heights, see their November 9 study session item). The CMSD, which also contracts with CR&R for curbside residential trash collection, and was an early -adopter of organic landfill diversion, does not believe a three -cart system is necessary for SB -1383 compliance. They use one cart for organic waste and a second cart for all other waste. In this connection, it might be noted the City of Costa Mesa SB 1383 ordinance contains explicit carve -outs allowing CMSD to continue its two -cart system. Does the Newport Beach ordinance need to do so as well? Or is it the City's intention to force CMSD, now or in the future, into a three -cart system in the areas of Newport Beach it services? As to the details of the ordinance shown in the staff report attachments, I do not expect to have time to review or understand them all in detail,$ but I would note: 1. The current system of dividing the definitions among chapters is quite confusing. 2. For example from Attachment C, it appears staff is proposing to insert the term "divertible materials" in multiple places in Chapter 6.04, but one has to look to Chapter 6.06 to discover what it means. 3. Meanwhile, "solid waste," a term "divertibles" is frequently paired with, remains defined in Chapter 6.04. And it excludes from that definition a category of waste -- "liquid wastes, abandoned vehicles, auto parts, hazardous, biohazardous or biomedical wastes" — which may or may not have a collective name somewhere, and seem likely to be "divertible," although not certainly so. 4. One of the more curious divertibles is "wood," which would certainly seem something commonly discarded by residential households, but which, as best I can tell from City staff's description of their proposed three -cart system, cannot be placed in any of the carts unless reduced to sawdust, in case it is required to be placed in the new green - topped cart. 5. Other curiosities I know of from CMSD are pet waste, bones and palm fronds, none of which are allowed in CR&R's green carts, but which the present ordinance seems silent on (I have been told the CalRecycle SB 1383 regulations may somewhere define pet waste as not an "organic"). 6. Page 28-47: The new provision allowing City agreements with haulers override the ordinance is a strange one. Don't ordinances, with their more elaborate system for adoption, normally take precedence? 7. Page 28-49: In the fourth line under "Contamination," "food scarps" was likely intended to read "food scraps." 8. Page 28-51: Under "Generator," "both" does not fit with "o►". 8 As is common with work product from the City Attorney's Office, some have not been provided as separate machine-readable/searchable files, making that task even more difficult. November 16, 2021, City Council agenda comments - Jim Mosher Page 8 of 8 9. Page 28-52: "Municipal solid waste" is defined both here and (a bit differently) on page 28-86, arguing, again, for a consolidation of all definitions, and perhaps all regulations, in a single place. 10. Page 28-53: Although it is apparently encouraged by SB 1383, calling a five -unit dwelling "single family" is quite non -intuitive. I believe SB 1383 and the CalRecycle regulations give municipalities the latitude to define more meaningful local terms as long as they accomplish the bill's purpose. 11. Page 28-56: In proposed Subsection 6.06.030.A, what does "preventing" their food scraps, green waste and wood waste mean? Shouldn't "reducing" be sufficient? If a stronger word is needed, wouldn't "eliminating" be a better choice? 12. Page 28-58: In proposed Subsection 6.06.050.13, how is a residential green waste generator supposed to know if their collected waste is being used as ADC, let alone prevent that? 13. Page 28-59: The lines at the top of the page appear to place on generators responsibilities (beginning at the bottom of the next page) that are, again, beyond the control of many generators. Are residents not "generators"? It appears from the definition on page 28-53 that they are. 14. Page 28-63: To make sense of the two "is"'s, Subsection D seems to be missing one or more words. 15. Page 28-65: In Subsection E, should "receive" be "accept." As written, it sounds like residents are commanded to snitch on their neighbors. 16. Page 28-81: New paragraph 1 at the top of the page appears ungrammatical. The above is simply a somewhat random review of isolated passages in the proposed ordinance. I have not been able to read the vast majority of it by the due time for comment submission.