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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 22, 2022 Written Comments March 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 SS3. Financial Evaluation and Framework for Future Inclusionary Housing Ordinance (PA2022-045) I hope the Council will laugh off the letter from the Building Industry of Southern California Vice President suggesting the City wait to see if its "tried and true" method of meeting state low and very -low income housing production requirements isn't sufficient to meet the new ones. This is laughable because, according to Table B on page 14-16 of the present agenda packet, the existing RHNA requirement the "tried and true" method succeed in fulfilling called for adding just 1 unit of each in the last eight years. And although that table indicates the City actually added 96 very low income units, it added just 5 low income units in those 8 years, far short of what it needs to meet the new 8 -year RHNA requirement of 930 low and 1,456 extremely low/very low income units. Item 1. Minutes for the March 8, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in str4keGu underline format. The page number refers to Volume 65. Page 264, Item SS2, first line: "Council Member O'Neill introduced Bill Lobdell, host of the Newport Beach in the Rearview Mirror podcast, who recounted the Freeway Fighters battle against the development of a coastal freeway through Newport Beach, and introduced Robert Curci who participated in the charge resulting in a 1971 vote to ban the coastal freeway." [Comment: Although it did not make it into the minutes, according to the video at 0:03:56, Mr. Lobdell attributed the rise of the Freeway Fighters to their opposition to a 6:1 vote by the City Council in 1970 approving an agreement with the state. I am not sure what vote he had in mind. As indicated in my own detailed comments submitted in writing, the 1971 ballot measure promoted by the Freeway Fighters rescinded an agreement approved unanimously by Resolution No. 6890 on October 28, 1968. As reflected in the minutes of that meeting, only a single member of the public bothered to comment on it, expressing mild concern and a wish to be notified of the final plans for Fifth Avenue in Corona del Mar. By 1970, things appear to have turned around, with the Council at least officially voting in unanimous opposition to the agreement (see, for example, the June 8, 1970, vote on Resolution No. 7194), although they do not seem to have agreed on how to modify or get out of it, and a majority opposed the later Freeway Fighters measure. The presentation may also have given the impression there was something unique or entirely original about the freeway revolt in Newport Beach. In fact, it was one of many similar movements, both before and after, as detailed on the Wikipedia Highway revolts in the United States page (unfortunately, not clear on chronology). One of the most notable was the successful freeway protests in San Francisco that preceded those in Newport Beach by several years. In fact, the Highway Revolts page doesn't even mention the Newport Beach March 22, 2022, City Council agenda comments - Jim Mosher Page 2 of 10 Freeway Fighters, and instead attributes the demise of the Pacific Coast Freeway to "Opposition by residents of Malibu, Santa Monica, and the coastal cities of the South Bay region [of Los Angeles County]." Nor were the Council members in Newport Beach as creative as their brethren in Santa Monica who offered Caltrans the audacious alternative of avoiding a freeway through their city by instead routing it along an offshore causeway creating a vast new pleasure harbor. That said, in my earlier comments I forgot to mention that those with a continuing interest in Newport Beach's Freeway Fighters may enjoy Chapter 4 of an apparently unpublished book by Bob Rogers (who was present at the March 8 ceremony) intended to accompany his documentary film "The Wedge", shown on local public television a few years back. Starting on page 388 (page 13 of the PDF) it provides some 60 pages of news clippings and other memorabilia from the year (and mostly the week) leading up to the March 9, 1971, public vote, focusing, naturally, on his father, Council member Howard Rogers (who, in 1968 had voted for the agreement he later campaigned against). Page 266, Item III, paragraph 1, last sentence: "She further noted the consequences for nonassertive discussions with legislatures legislators and thanked the Board of Supervisors for hosting the hearing." [see video at 1:05:05] Page 272, paragraph 5: "Council Member Brenner expressed the importance of L2in_g equitable and following a consistent policy." Page 272, paragraph 1: "David Bahnsen explained PCHS' fundraising goals and scholarship opportunities and requested continued use of the no fee agreement originated with Kobe, Inc., recalled the fair market value process on the 15th Street PCHS property lease, reported approximately $2 million paid by PCHS in the form of City tax rent, noted PCHS' nonprofit status, donor dependency, monetary property investments, and operational needs, and questioned fair market value dete minat determinations." [see video at 2:10:45, the $2 million is rent, not a tax] Page 272, paragraph 2 from end: "In response to Council MemberAvery's inquiry, Community Development Director Jurjis confirmed that PCHS negotiated with the City for the 15th Street C,,.,,.,,unit., Center 1499 Monrovia Avenue property after purchasing it from Kobe Bryant and received a no fee license agreement with a potential recall by the City to accommodate Banning Ranch." [The video at 2:28:10 is a bit confusing, but the negotiation with Kobe Bryant was about 1499 Monrovia, not the Community Center.] Item 3. Ordinance No. 2022-9: Amending the Newport Beach Municipal Code Pertaining to Raft -Ups, Live-Aboards, On -Shore Moorings, and Other Miscellaneous Provisions The staff report is commendable in that it provides a clear explanation of why each proposed revision to the existing code is being recommended. That said, I cannot say if each achieves its intended purpose, or does so in the best possible way. In particular, having reviewed them only very casually, it seems unusual and problematic to me to create "final and non -appealable" decisions by the Harbormaster in the proposed revisions on March 22, 2022, City Council agenda comments - Jim Mosher Page 3 of 10 pages 3-5 and 3-7. This seems completely out of harmony with the spirit of the existing Title 17, in which Chapter 17.65 implies that all decisions of the Harbormaster can be appealed to, or called up for review by, the Harbor Commission, and all decisions of the Harbor Commission can be appealed to, or called up for review by, the City Council. Adding "final and non -appealable" decisions therefore requires "clean-up" of that chapter on page 3-11. I do not believe that is "clean-up" for I am unable to find any other example of a non -appealable decision in the existing Title 17. That is, the "clean-up" is not repairing an existing defect. Moreover, I believe giving such absolute authority to a staff employee is a bad idea, incompatible with most notions of representative government, for, even though the correction would come after the fact, the absence of an appeal process seems to foreclose the possibility of the public and its representatives correcting a future employee if they should misuse the power invested in them. I think this slipped past the Harbor Commission without them noticing it, for they had previously objected to and recommended the removal of an older provision that quite controversially appeared to give a contracted hearing officer authority to make decisions from which there was no possibility of appeal. The impetus for the present change seems to be a wish to give the Harbormaster authority to immediately stop a disruptive raft -up or use of mooring by revoking the permit he issued for that use, and without the decision to revoke being delayed by an appeal. But ability to take such actions with immediate effect, even if they are appealed, is already handled by NBMC Section 17.65.030, which says "C. Effect on Decisions. Except where this title authorizes the revocation of a permit by the Harbormaster, decisions that are appealed or called for review shall not become effective until the appeal or review is resolved." [emphasis added] In other words, permit revocations that can be issued by the Harbor Master, like the two in question here, are already effective immediately, and even if appealed the revocation remains in effect until it has been overturned on appeal. So the insertion of language making the Harbormaster's revocation of raft -up and sub -permittee permits "final and non -appealable" is not only problematic, it is completely unnecessary. Leaving the appeal option available, as it is everywhere else in the code, seems a necessary relief valve to prevent the perception of abuse of power. Item 4. Ordinance No. 2022-7: City Council Districting Map (PA2021- 035) The Council should understand that public input into this process has been minimal. The City Council Ad Hoc Redistricting Committee was created, without discussion, as Item 6 on the September 28, 2021, consent calendar. I had the impression that like the previous committee established by Resolution No. 2011-42 (whose records no longer seem to be publicly accessible), it would conduct all of its business and make its decisions in public. But that does not seem to have been the case. March 22, 2022, City Council agenda comments - Jim Mosher Page 4 of 10 The committee held exactly two public meetings. The first was a general overview of the redistricting process. At the second, members of the public were supposed to have used a poorly -explained online mapping tool to submit possible new maps' of their devising. At both they had only three minutes to comment or ask questions about the process. For 68 years, the seven districts established by the City's Charter have been defined, as they were when last revised at the recommendation of the previous City Council Ad Hoc Redistricting Committee by Ordinance No. 2011-27, by a clear verbal description legally establishing the boundary line positions along the centerlines of named roads and other geographic features, as illustrated by a map. In that traditional scheme, the boundary lines in the Harbor and Upper Bay ran along the centerlines of named channels, while on ocean -facing beaches the districts ended at the mean high tide line, with the area beyond not assigned to any district: SAL & OA ISLAND 4 � i ti�l+�n 'y IP/ ;art ra. r wEoee . Detail from current District Map adopted in 2011 The present Redistricting Committee has, apparently meeting privately and without any clear public discussion, agreed with City staff that the City should now dispense with the traditional legal descriptions of its district boundaries, and instead, like the online mapping tool, divide the City by census blocks, of which there are at least 1,372 in Newport Beach.2 While City staff ensures us the Orange County Registrar of Voters is happy with districts defined by census blocks, and, indeed prefers them to verbal descriptions of boundary lines, they have multiple problems. In particular, although it is not the intent of the Census Bureau to cross any ' Because it was based on census blocks, the mapping tool was incapable of precisely reproducing he City's existing districting map, and may not have given the correct population totals of those existing districts, which the whole point of the exercise was to balance. 2 This is the number of blocks assigned to districts in the equivalency file.To fully cover the City's southeastern water boundary as established by the annexation from the County of Newport Coast, at least one additional census block would have to be added to the 1,372 blocks the Census Bureau associates with Newport Beach. March 22, 2022, City Council agenda comments - Jim Mosher Page 5 of 10 existing local geographic or political boundaries, their nationwide network of polygons only approximate those legal lines, and do not typically even try to recognize some things we have traditionally used as district boundaries, such as the centerline of our harbor channels. Instead of legally -described boundary lines, staff is asking the Council to adopt a map and a "Census Block Equivalency File" without clearly defining which, in the event of dispute, takes precedence. As to the proposed map, unlike any previous one, it shows only the district designation of the City's land areas and not where the district boundaries lie in the water, even though those areas (including ones never previously assigned) are assigned to districts in the census block file: % ff I fl, rl 0 1, If A": I I I I I ol ksiNi M.;H11rd—WIL F BAI.BOA ISLAND Detail from proposed District Map (Exhibit "A") of Resolution 2022-7 Community Development staff has assured the Council that designating the land areas is all that is necessary, for in the case of a potential candidate for Council or a signer of a nominating petition living on a vessel in the harbor, they will necessarily have a mailing address on land and that address will determine the district in which they are registered to vote. While that may indeed be how the Orange County Registrar of Voters handles such questions, I would respectfully suggest that is a misreading of California's Elections Code and the intent of the City Charter, which purposefully divided the Harbor in creating the original districts. As explained by the Santa Clara County Registrar of Voters, the mailing address is supplied to the Registrar merely as a matter of convenience for receiving election materials. In keeping with Election Code Section 349, one registers based on one's "domicile" -- the place at which one lives, which could be a street corner or a boat. And under NBMC Sec. 17.40.030 requires that to live on a March 22, 2022, City Council agenda comments - Jim Mosher Page 6 of 10 boat in Newport Harbor one must declare their intent to make that boat — not some land-based mailing address — their "principal residence." At the March 8, 2022, Council meeting, staff itself recognized the problem with trying to use census blocks to define the seven districts when it disclosed private conversations with, and apparently direction from, the Redistricting Committee as to how to achieve the division between red and yellow at EI Paseo Drive (facing Balboa Island in the detail shown above) and not inadvertently include in the yellow a large swath of homes extending east and south along the water side Bayside Drive and Bayside Place. This, they said, required splitting one of the census blocks (060590627011023), as shown in Exhibit "C' to the proposed resolution. Although as I tried to explain on March 8, achieving what is shown in that Exhibit actually requires splitting two census blocks (060590627011023 and 060590627011024). Yet, for unknown reasons, staff refuses to list the second block as split. In any event, if the census block assignments being proposed for adoption by the Council will be the definitive definition of the City's seven districts for the next decade, the Council and the public should at least know that the districts will look not as depicted in Exhibit "A" but more like this map3 obtained by importing the block equivalency file back into the mapping application that was provided for public input: Census Block Equivalency File district assignments as displayed by DRA2020 3 One has to zoom in on Newport Beach to see the map. As imported, "Block 1023" is shown assigned entirely to District 5, before being split in accordance with Exhibit "C" of the resolution. The mapping tool is incapable of splitting census blocks. March 22, 2022, City Council agenda comments - Jim Mosher Page 7 of 10 The most obvious difference compared to the current map, is that vast areas of offshore water, never previously assigned to a district, have been assigned to District 1. Less obvious is how the inland waters are divided, and how District 5 has a little appendage descending between Districts 1 and 6 even after splitting "Block 1023" between the two. To more accurately illustrate problems with that split, I also imported the block equivalency file into a different mapping application that seems to show the block boundaries with greater precision, once with "Block 1023" assigned to District 5 and once with "Block 1023" assigned to District 6 - This detail shows how that application believes that even after splitting "Block 1023" and assigning its eastern part to District 5, if one leaves the adjacent "Block 1024" unsplit, as staff propose, then some of the houses on Bayside Place bisected by the proposed District 5 to District 6 boundary: Bisected homes on Bayside Place per MyDistrictBuilder Although it may not have been their intention to do so, since they define census blocks by polygons that only approximate legal lot lines on a nationwide basis, the Census Bureau's own mapping of census blocks confirms this is what they have done (even though neither of the mapping tools precisely reproduces their depiction of the block boundaries): March 22, 2022, City Council agenda comments - Jim Mosher Page 8 of 10 Census Bureau mapping of boundary between Blocks 1023 and 1024 If this line is indeed the new official boundary between Districts 5 and 6, then according to California Elections Code Section 2034, a person living in one of these bisected homes could inform the OC Registrar that they want to register to vote in District 5 or District 6 at their discretion, and hence run for Council from either district. In any event, if "Block 1024" is left unsplit, as is being proposed, it is clear that the homes along Bayside Place and much of Bayside Drive will be in one district, and their docks in another, which would not make a lot of sense — especially if the City ever went to "by district" voting using these districts. Although there are likely to be other problems with defining districts by census blocks rather than the traditional legal description, this particular problem could be solved simply by splitting both Blocks 1023 and 1024. Moreover, as I attempted to point out on March 8, it would seem cleaner to split them both along the extension of EI Paseo Drive, and not create the yellow tongue of District 5 protruding south in Exhibit "C" (staff report page 4-12). Finally, it might be noted the present recommendation for adoption of districts by 1,302 census block assignments comes entirely from our Community Development Department, and not from the City's Elections Official, who, according to City Charter Subsection 603(8), is our City Clerk. March 22, 2022, City Council agenda comments - Jim Mosher Page 9 of 10 Item 5. Ordinance No. 2022-8: Amendment Authorizing Staff to Extend the Time to Complete Construction for One -Unit and Two -Unit Dwellings Under City Charter Section 412, to adopt an ordinance the City Council has to first introduce it at one meeting, and then, after publication, adopt it at a later meeting. Although it does not have to read in full, the proposed text has to be provided for debate and correction at the time of introduction. Any alteration to the introduced text, other than "correction of typographical or clerical errors," requires reintroducing the ordinance At the March 8 meeting, as Attachment A to Item 11, staff proposed a text they hoped would be introduced for Ordinance No. 2022-8. During its discussion, a majority of Council appeared inclined to add a "sunset clause" to that text, although there did not appear to be agreement as to whether they wanted the measure to auto -repeal after two years or three. In the draft minutes, the City Clerk records an original motion with a two-year sunset period and an amended motion changing that to a three-year sunset. I personally did not hear any formal amendment to the original motion, and was uncertain whether the Council had settled on a two- or three-year sunset. As usual, the Mayor did not follow the Council Policy A-1 requirement that "The Presiding Officer or such member of the City staff as he or she may designate shall verbally restate each question immediately prior to calling for the vote." And when the Clerk read the outcome of the vote at 3:06:05 in the video, there was no mention of the ordinance having been amended to add any sunset provisions at all. Whatever may have been said, since there was no verbal reading of proposed alterations, it was unclear exactly how the sunset provision, if any, was going to be added to the ordinance, which obviously takes more than the "correction of typographical or clerical errors" subsequent to the Council meeting. In fact, someone has, subsequent to the Council's vote, rewritten Section 5 on page 5-9 of the present staff report to incorporate what they believe was an agreement among the Council to add a 3 -year sunset clause, and make it quite different from what the public and Council saw it Item 11 on March 8. In view the present action is a re -introduction ("first reading") of the altered ordinance, not a second reading and adoption. Item 8. Central Library Boiler and Civic Center Hot Water Heater Replacement Project - Award of Contract No. 8730-1 (20F02) Considering the unusual situation in which only one bid was received, it would have seemed helpful on page 8-2 to have indicated how many potential bidders attended the February 16, 2022, mandatory pre-bid site walk. And it would also have been helpful to mention where the Central Library boiler is located, so readers could understand the concern, by those who chose not to bid, about construction access to it. March 22, 2022, City Council agenda comments - Jim Mosher Page 10 of 10 Item 14. 2021 Annual General Plan and Housing Element Progress Report (PA2007-195) I would hope the Council would pull this item for discussion, particularly for what it has to say about actual past housing production compared to what the City faces with its new RHNA requirements. Item 15. Resolution Nos. 2022-16 and 2022-20: Land Use Entitlements for the Residences at 1300 Bristol Project (PA2021-161) It seems more than a little ironic to me that this land use proposal is being heard on the same day the Council is holding a study session on the economic viability of inclusionary housing requirements. To the best of my knowledge, the Newport Place Planned Community is the one and only area of the City that currently has an inclusionary requirement: namely that 30% of the units in new housing developments be affordable. Yet this developer, by transferring development rights in from elsewhere, is managing to build a project on Newport Place property with only a 15% affordable component. Moreover, the state requires the City to approve incentives that are ostensibly required to make feasible an affordable housing project. But here the developer is requesting incentives (increased height, etc.) that are not needed to make possible the construction of the affordable housing project, but rather allow a market rate project to be built on top of it using the transferred entitlements. Beyond that, I continue to object to City staff's belief the General Plan allows the City to transfer entitlements around without updating the tables in the General Plan that list the entitlements (or, as a former Director preferred calling them, "allocations") for each parcel. At best, it is confusing to see numbers listed in one document, only to be told they were altered in some other document. At worst, it can be used to evade Greenlight, when entitlements in one land use category are not only transferred, but converted into some other land use category. Item 17. Resolution No. 2022-21: Seventh Amended and Restated Employment Agreement for City Attorney I don't think this transition, which began with the City Manager's contract approved as Item 12 on January 25, from evergreen 1 -year contracts with a maximum severance of 6 months pay to fixed -term contracts with exceptionally more generous severance provisions, is in the public's best interest. They appear to me to reduce the options available to future City Councils who may want to make a change in personnel, but find themselves constrained by having to gift 18 -months pay to do so. And since this involves the City Attorney, who reviews this for the City?