HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
February 22, 2022
Written Comments
February 22, 2022, 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 1. Minutes for the January 29, 2022 Planning Session and
February 8, 2022 City Council Meeting
The passages shown in italics below are from the draft minutes with suggested corrections
shown in&&eeut underline format. The page numbers refer to Volume 65.
Page 242, Item II, sentence 1: "Jim Mosher reminded Council that they voted to place a
ballot measure on the June 2022 ballot and noted that there is still time to place a ballot
measure on the November 2022 ballot to conduct by -district elections with instant runoff,
ranked -choice voting."
Page 242, paragraph from end of page: "Finance Director Catlett utilized a presentation to
report on the current unfunded liability paydown strategy, the roll -forward of
2020 valuations to June 30, 2021, the impact of investment returns and additional payments,
and staff pension funding recommendations."
Pages 243-246, page header:
"City of Newport Beach
Planning Session (Special Meeting)
January 30 29, 2022"
Page 244, start of full paragraph 3: "Council Member Brenner agreed that this topic can be
discussed for days, but pertinent to today's discussion, is that the residents are saying to
spend the money needed to take care of this problem ..." [delete second comma]
Page 244, end paragraph 2 before Item V: "..., and discussed the articles in Stu News
regarding the changes to the Newport Beach Marriott Hotel and Spa (soon to become VEA
Newport Beach), noting it is within the Coastal Zone and the City is responsibility
responsible for obtaining approvin_g a Coastal Development Permit."
Page 246, paragraph 6: "Paul Watkins stated his support for the Balboa Library
Re haeme, and Fire Station replacement projects, as well as the Library Lecture Hall
project; ..." [See top of page 245, where the title of the January 29 PowerPoint slide is
correctly quoted: "Balboa Peninsula Fire Station and Branch Library replacement project."
The word "replacement" applies to both the Fire Station and the Library, not just one.]
Page 246, next paragraph, last bullet: "Including the Balboa Library ReplaGement and Fire
Station replacement project in the budget"
Page 246, next paragraph ("Unanimous straw votes"), last bullet: "Having a Council
subcommittee look at purchasing land for the future Police Department headquarters"
[Comment: Hopefully this was understood as not authorizing staff or the Mayor to
immediately appoint members, but rather as only a request for staff to bring back a future
agenda item formally creating such a committee and more clearly defining what it is to do
and by when.]
February 22, 2022, City Council agenda comments - Jim Mosher Page 2 of 7
Page 250, Item III, paragraphs 2 & 3: "Walter Stahr urged a no vote on the June 2022 ballot
measure to change the City Charter. City Attorney Harp announced that it is not
appropriate for speakers to advise people on how to vote during the City Council
meeting."
[Comment: I believe that under federal case law, city council meetings are regarded as
"limited public forums," which means the council is free to set reasonable, "content -
specific" but "viewpoint -neutral" restrictions on what can and cannot be said at them.
There are also clear prohibitions in California law against public officials using public
funds or resources for campaigning, including Government Code Sec. 3201 et seq. and
Sec. 54964. However, those specific sections would not appear to apply to private
citizens speaking to the Council, even when the meeting is being broadcast at public
expense.
The only restrictions the Newport Beach City Council has placed on "Public
Comments on Non -Agenda Items" its Policy A-1 (page 4) are that they be
"considered to be a municipal affair and within the subject matter' jurisdiction of
the Council" and that ("To ensure that all members of the public have an
opportunity to address the Council during public comments") they be limited to
three minutes.2
Since the City has in the past allowed the use of public facilities for hosting election
forums at which both sides of pending election issues could be heard, posted links to
them on its website, and in some cases even streamed them, some may have felt that
City Attorney Harp's admonition against public speakers recommending how others vote
was an improper creation by him of a policy that had not been promulgated by the
Council, and an infringement on their free speech, and in particular, their political free
speech rights.
I believe City Attorney Harp was referring to the possibly ambiguous "or permit others to
use" phrase in the related Section 8314, which states, in part: "it is unlawful for any
elected state or local officer, including any state or local appointee, employee, or
consultant, to use or permit others to use public resources for a campaign activity,
or personal or other purposes which are not authorized by law."
Allowing comments on matters "within the subject matter jurisdiction of the Council" implements a
requirement imposed by Subsection 54954.3(a) of the Brown Act. The word "matte" seems to be
inadvertently omitted in the other use of this phrase near the bottom of page 3 in the most recent revision
of Policy A-1. That error appears to have originated when former Policy A-10 was rewritten as part of a
comprehensive February 26, 1996, policy review.
2 This three-minute limit has been enforced even when there was only one person asking to speak and
the limit was obviously not necessary to accomplish the stated purpose of giving all those wishing to
speak an opportunity to do so. A three-minute limit on agenda (as well as non -agenda) items — an idea
that been formerly resected when proposed as part of Item 13 on February 22, 2013 -- was imposed by
Item 5 at the January 8, 2013, meeting without making the findings required by California Constitution
Article I, Section 3(b)(2). The limit for agenda items had formerly been five minutes, dating back at least to
1972.
February 22, 2022, City Council agenda comments - Jim Mosher Page 3 of 7
Assuming the City Attorney is correct about how this statewide restriction applies to public
speech during televised meetings, or even if the Council simply wants to impose a
restriction regarding electioneering on its limited public forum, it is the Council, not the City
Attorney who sets policy. So, it would seem wise to clearly spell out any restrictions
on electioneering in City Council Policy A-1 (as well as to distinguish it from the policy
that seems to permit the recording, broadcast or promotion of election forums taking place
at other venues).
Under no circumstances do I believe it would be proper for the Council to prohibit non -
agenda speakers from commenting (without express advocacy of a vote one way or the
other) on the merits or demerits of a City ballot measure. Such measures are clearly
"municipal affairs" within the "subject matter jurisdiction" of the Council.
It would seem especially improper to prohibit comments about defects in the June 2022
ballot measure that prompted the City Attorney's February 8 warning, since the City
Council voted to place the Elect Our Mayor issue on the ballot, and, according the Orange
County Registrar of Voters' extended calendar, the Council has until March 16 to withdraw
the measure if public comments persuaded it to do so.]
Page 252, top paragraph, last bullet: "Elaborated on her conversation with the Exchange
Club and gratitude for the annual Avenue of Flags"
[comment: The video confirms this is what was said, and I have heard the annual event at
Upper Castaways Park referred to as the "Field of Flags," but the Exchange Club's official
name for it appears to have always been "Field of Honor."]
Page 255, Item 9, paragraph 1: "Library Services Director Netherton introduced Richard
Stein, Arts Orange County President and CEO, and Joseph Lewis, Arts Orange r.,...,
f.,
CEO a UCI Professor." [The introductions are quite clear in the video, so it unclear why
the transcriber transposed them. According the Arts OC roster, Professor Lewis was once,
but no longer is even, a member of Arts OC's very large Board of Directors, let alone the
organization's CEO. Mr. Stein, by contrast, has been both President and CEO since 2008.]
Page 255, Item 9, paragraph 5: "Jim Mosher suggested a voting system alternative and
noted a lighting discrepancy relative to the Bird mast on a Towe bird nest on a tower
sculpture."
[I was describing the sculpture, not reciting the artist's name for it, which is "Where Have
All The Birds Gone?"]
Item 3. Resolution No. 2022-16: Notice of Intent to Comply with SB
1383 Pursuant to SB 619f
The attachments to this staff report, and the intended attachments to the proposed resolution
are quite confusing.
The resolution, which is provided as "Attachment A" starting on page 3-4 says (on page 3-8)
that it is adopting an "Exhibit A," which appears to be the document on pages 3-9 through 3-13.
February 22, 2022, City Council agenda comments - Jim Mosher Page 4 of 7
However, that document appears not to be what the resolution is adopting. Instead, seems to be
the blank form with examples on the CalRecycle website.
Staff report "Attachment B," appearing on pages 3-14 through 3-21, appears more likely to be
the document intended as "Exhibit A" to the resolution.
And then staff report "Attachment C," on pages 3-22 to 3-24, appears, inexplicably, to be an
exact repeat of what was just presented on pages 3-19 through 3-21.
That said, in answering required question 4, City staff has, for unexplained reasons, chosen not
to follow the format suggested by CalRecycle in its example shown on pages 3-13 (and
repeated on page 3-18). That may well be acceptable, but it would not seem likely to streamline
processing of the application.
In addition, page 3 of the staff report for Item 9 on October 22, 2019, said the franchise
amendments made at that time required implementation of an AB 1826 organics recycling
program for business and multi -family properties. If anything came of that, it might be helpful to
inform CalRecycle of what has been done so far, rather than just saying it did not implement SB
1383.
Item 4. Approval of Maintenance and Repair Services Agreement for
Graffiti Abatement Services with Superior Property Services, Inc.
The staff report says at the bottom of the first page that "It is the Utilities Department's goal to
remove graffiti the same day or within 12 to 18 hours of it being reported, i.e., the next morning."
It is unclear how that goal can be attained under the terms of the proposed contract and within
its cost cap of $860,000 for five years.
Not only does no obligation for the contractor to complete graffiti removal within 12 to 18 hours
of its being reported to them appear in the Scope of Work (starting on page 4-16), but the staff
report estimates there are 3,000 incidents requiring graffiti response.
The basic contract for five days service a week at $500 per day (per the billing schedule on
page 4-20) accounts for $650,000 of the contract amount, leaving a cushion of just $210,000 for
extra work.
But since there are seven days in a week, one would expect 2/7ths of the incidents (857 per
year) of the incidents to need service on the two days not covered by the regular contract. At
$250 to $300 per incident (based on the 2 -hour minimum call time guaranteed on page 4-20),
that would amount to an anticipated extra service of $214,000 or more per year or $1.1 million
over the five years.
Is it anticipated, instead, that a 12 to 18 hour completion time will not be expected when that
would require the contractor to work on a Tuesday or Thursday?
3 Paragraph 6 on page 4-16 requires a response within 2 hours, but that is only in the event of
"emergencies."
February 22, 2022, City Council agenda comments - Jim Mosher Page 5 of 7
Finally, Scope of Services paragraph 13 on page 4-17 is garbled: the first "sentence" is not a
sentence, and it is not clear what the second sentence would be "Subsequent" to. Was
"Subsequently" intended to read "Consequently"? If so, it adds nothing and could be omitted, as
well as the opening "As"—to have this read:
"13. As this This service engagement may occasionally require interaction with members of
the public who wish to notify graffiti technicians of occurrences of graffiti. ubsequentt
graffi Graffiti technicians assigned to this project must be able to communicate clearly in
English."
Item 5. Approval of Agreement for On -Call Building Maintenance and
Repair Services with Carmody Construction Services, Inc. and Ramco
Construction Services, Inc.
The staff report says three proposals were received, of which one apparently didn't earn "the
minimum score required to be qualified."
Why is the identity and scoring of that proposer not disclosed?
Item 7. Professional Services Agreement for Citation Processing,
Parking Permit Processing, Parking Adjudication Support Services,
Parking Citation Issuance Hardware, and Citation Collections
Services
1. At the top of page 7-2, the staff report describes parking permits as a revenue source to the
City. While that is certainly true, people presumably buy the permits because they believe
the permit cost is less than they would spend on parking without it. Hence, they could also
be described as revenue loss to the City.
2. The method of reporting the "Cost Ratio" of proposals described later on the same page
seems very strange to me:
"The cost score was determined by assigning the maximum (30) points to the proposal
offering the lowest overall cost. Points were deducted from the cost scores for the other
proposals based on the percentage that their cost proposal was higher than the lowest
cost proposal."
So, does the Cost Ratio Score of 17.21 for Turbo Data Systems, which is 12.79 points lower
than the 30 points assigned to T2 Systems, mean TDS's bid was only 12.79% higher than
T2 Systems rather than the much larger 30/17.2 ratio one might have guessed without
reading the explanation?
In other words, TDS, with a score of 17.21, appears to have bid $1,403,221.
Did T2 Systems, with a score of 30, bid $1,403,221 / 1.1279 = $1,244,101?
Or did they bid $1,403,221 x (17.21/30) = $804,981 one might think if the scores were
truly cost ratios?
February 22, 2022, City Council agenda comments - Jim Mosher Page 6 of 7
PlanetBids, the City's bidding platform, shows the 6 bids from 17 prospective bidders, but
does not the disclose the bid amounts, so it is impossible to check.
Also, PlanetBids confusingly shows the contract as "Awarded" even though the Council has
taken no action yet, and the reference seems to be only to a Notice of Intent to Award,
posted on November 10.
Item 8. Tentative Agreement with the Part Time Employees
Association of Newport Beach (PTEANB)
The recent agreements with the many bargaining units for the City's many regular employees
have all featured one-time cash bonuses of the $2,000, which the Mayor explained as one of
the City's uses of the COVID relief money it received — in this case to award those employees
for their "essential service" during the local emergency (even though there was no requirement
they actually worked during that time).
I have the impression any of the City's part-time employees, such as library workers, provided
essential services during that time. Yet there doesn't seem to be any special bonus proposed
here.
Is that equity?
While I appreciate there may be some difficulty identifying who should qualify, couldn't a bonus
be paid based on the hours worked during a designated period of special peril?
Item 9. Planning Commission Agenda for the February 17, 2022
Meeting
The Action Report indicates that as Item 3 the Planning Commission approved the Coastal
Development Permit for a residential project on the ocean -facing bluff at 3625 Ocean Boulevard
that requires multiple variances to the City's Zoning Code and Local Coastal Program, including
exceeding curb height. And as Item 4 it recommended the Council approve an application for a
193 apartment unit project at 1300 North Bristol Street.
Residences at 1300 Bristol (PA2021-161)
Regarding the apartment project, it is a bit ironic that the Council's consideration of this item is
tentatively scheduled (per Item 6 on the PC's agenda) for March 22, the same day the Council
is scheduled to hold a study session on a proposed inclusionary housing ordinance.
This is ironic because the proposed apartment complex is in the Newport Place Planned
Community, which is the one (and as far as I know) only part of Newport Beach that requires
housing projects to dedicate 30% of the base units for housing affordable to low or very low
income families, yet the applicant is seeking approval of a project with only 15% affordable
units.
The proposal would add 12 very low and 12 low income units, which would provide modest, but
welcome, progress toward the City's 2,386 unit obligation in those categories in the our adopted
General Plan 2021-2028 Housing Element. But a transfer of development rights is cleverly used
to reduce those to 15% of the proposed base units in an area where 30% is officially required.
February 22, 2022, City Council agenda comments - Jim Mosher Page 7 of 7
In addition, the applicant is using the affordable component of the 77 base unit project to seek
relief from numerous local building standards, even though the relief (for such things as building
a 78 -foot tall tower where only 55 feet is allowed) is needed not to make the 77 -unit project
feasible, but rather to accommodate the 77 market rate units being arbitrarily moved to the site.
Beard Residence at 3625 Ocean Boulevard (PA2021-130)
The Council should be aware this is a controversial project, and should consider calling the
Planning Commission's approval of it up for review. Without that it is likely to be appealed to the
California Coastal Commission, as it violates a fundamental and longstanding promise in the
City's LCP to protect public views by bringing new development on the seaward side of Ocean
Boulevard in Corona del Marl below curb height.'
The Planning Commission received at least 39 letters opposing the project and a petition with
28 signatures supporting it.
In my own written comments to the PC, I reviewed the history of the curb -height restriction,
which dates back to 1979.
I believe the PC was misled into believing that since 1979 all comparable properties have been
granted similar relief from the curb height requirement, when in fact only two have, and such
relief has twice been denied to the immediately adjacent homeowner at 3631 Ocean, who was
able to build a compliant home.
Many of the Commissioners also appeared to have been misled into thinking there were unique
constraints on this particular property making the construction of a compliant garage impossible,
even though the applicant had provided (on handwritten page 55 of the staff report) a diagram
showing it was quite feasible if the garage, instead of being built right up to the front property
line, as was approved, was pushed back to provide the normally -required front setback
(although possibly creating addition view issues that staff had apparently not evaluated).
There is, in fact, no difference in the difficulty of building a compliant garage from lot to lot, since
the garage floor is set at an entirely arbitrary height determined by the floors below it. The slope
of the driveway needed to access its entrance is determined solely by the arbitrary height at
which the garage floor is set and how far back it is from the sidewalk. Aside from a possible
need to excavate (which is not the case here), it has nothing to do with the bluff topography.
Additionally, as the PC pointed out to the neighbor in 2001, there are alternatives available to
reduce the driveway slope, including a curved or zig-zag approach rather than a straight -
downhill one. And unique to 3625 Ocean Boulevard, there is even a possibility of eliminating a
blufftop garage and the attendant home -front approach from Ocean Boulevard, by instead
tunneling into parking at the structures' lowest levels, which could be accessed from an existing
connection to Inspiration Point.
4 There is another segment of Ocean Boulevard in Peninsula Point, to which the restriction does not
apply.
5 Specifically, Coastal Land Use Plan Policy 4.4.2-4. Prohibit projections associated with new
development to exceed the top of curb on the bluff side of Ocean Boulevard.