Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 12, 2022 Written Comments April 12, 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 March 225 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in&&ee t underline format. The page number refers to Volume 65. Page 276, paragraph 2, sentence 1: "In response to Council Member Avery's questions, Kathy Head explained that the in -lieu fees are tied to the affordability gap based on resulting from the rental supp inclusionary requirement, indicated the analysis is conservative, balanced, and avoids a constraint to housing, and agreed with lower numbers if the City desires." [Comment: In the present draft minutes, the entire discussion of inclusionary housing is confusingly written to the point of near unintelligibility. The above passage refers to the video starting at 30:15, which is itself nearly unintelligible. As a result, even with the suggested revision it is not obvious it expresses what was said.] Page 276, paragraph 3, sentence 3: "Community Development Director Jurjis clarified the difference between available housing opportunities and what is remaining in the General Plan, reported approximately 350 housing units remaining in the Airport Area with 11, 000 housing units to be added citywide after rezoning and updates to the Land Use Element, ..." [note: see video at 36:50. The comment about "350 units" was qualified as referring to the Airport Area, and was likely based on the table on page 4 of the Item 15 staff report, for the 1300 Bristol Project heard on the evening agenda, which shows 353 units remaining out of the 2,200 allocated to the Airport Area in the current General Plan.] Page 276, paragraph 4: "Mayw Council Member Avery relayed the challenges of making the Housing Element work, discussed problems created by the State Density Bonus Law, and expressed concerns related to parking, a supportive market, building costs, and keeping expectations low." Page 276, last paragraph, sentence 2: "With an adoption of an inclusionary housing ordinance, he stated that developers who choose to not include affordable housing units would pay the City an equivalent inclusionary housing fee that inGludec in -leu fees, anrJ added there would he lost housing opportunities to meet the affordable housin ret,.menf n but state law provides a very -low income incentive for rental units even with no inclusionaryordinance." [note: This sentence claims to relate Principal Planner Murillo's comments starting at 48:55 in the video. But the transcriber has attributed to him a garbled version of an intervening question by Council member Brenner, asking if without an inclusionary ordinance, affordable housing might not get built. Mr. Murillo did not say adoption of an inclusionary ordinance would result in lost affordable housing opportunities, or anything similar to that.] April 12, 2022, City Council agenda comments - Jim Mosher Page 2 of 10 Page 277, paragraph 3: "Council Member Brenner said she could support delaying implementing an inclusionary housing ordinance if development agreements could be relied on to accomplish the same in the interim. In response to Council Member Brenner's questions, Community Development Director Jurjis confirmed that development agreements can be used for community benefit, discussed affordable housing funding requirements until City rezoning, and noted there there are approximately 100 projects in the City that do not require development agreements. As , result, r,,.. Gil Me.,,►,e.. Brener expressed her support for delaying implementing an inc-lusionary housing ordinance." [note: By reversing the order of statements, the transcriber has distorted the record. Council member Brenner's tentative support for delaying the adoption of an inclusionary housing ordinance was not "as a result" of Director Jurjis' statements, but rather preceded them, and was instead "as a result" of Council member Dixon's comments earlier on the same page as to how development agreements could be used to assess inclusionary fees. In this exchange starting at 59:05 in the video, Council member Brenner was seeking assurance that there were no loopholes in this. Director Jurjis cited the 100 projects not needing development agreements as a possible loophole. Contrary to what the draft minutes state, we do not know Council member Brenner's position after hearing that.] Page 277, paragraph 4: "Nancy Scarbrough supported applying in -lieu fees to current a#srdable housing projects, implementing a a-7% or 8% inclusionary amount, and moving quickly with more studies." [note: The confused transcriber appears to have incorrectly inserted the word "affordable." Ms. Scarbrough was advocating for applying in -lieu fees to housing projects without an affordable component, not to the affordable ones.] Page 279, Mayor Muldoon, first bullet: "Utilized a presentation to announce the Compost Giveaway, Paper Shredding, E -Waste Disposal, and Organics Kitchen Pail Pick -Up on April 9, 2022, from 8:00 a.m. to noon" [comment: I attempted to take advantage of this opportunity to dispose of a load of e - waste and pick up a bag of compost. I arrived, initially, at 8:05 a.m., but turned back after seeing a single -file line of hundreds of idling cars lining the Superior Avenue curb, back at least to Placentia and possibly beyond, and being very slowly admitted, one at a time, into the fueling station entry on Industrial Way. I returned at 11:45 a.m., expecting a much shorter line, but encountered what looked like exactly the same extremely slow-moving one, still extending as far as the eye could see down Superior, and only a tiny fraction of which could be served by the noon closing time. In frustration, I left my a -waste at the Goodwill Collection Center, a short distance away, on 19th Street in Costa Mesa, which accepts the same list of a -waste items (and more) without waiting. I don't know if the event remained open after the announced noon closing time to accommodate those waiting patiently in line at 11:45, but I would suggest it is a mistake to hold four separate events at the same time and location when only a single entrance is provided for all. April 12, 2022, City Council agenda comments - Jim Mosher Page 3 of 10 With regard to the compost giveaway, while that is the product CR&R produces (in Yuma, Arizona!) from our greenwaste, and the giveaway is part of their contract, I would suggest that what the City should be giving away, and what those coming for compost may really have been looking for, is mulch. Mulch, spread in garden beds, not only improves soil but saves water by reducing evaporation. CR&R does not produce it, but it is produced in abundance by the City's tree -trimming contractors, who grind the trimmings, and requires little or no further processing. Many cities, large and small, around the nation make this product freely available year-round by piling it at a location for self-service pickup, or by delivering a load to residents' driveways on request. Los Angeles and Long Beach are two nearby examples. The City of Newport Beach would do well to consider such a program. It would save water, energy, money and frustration.] Page 282, Item 15, paragraph 2: "Ken Picerne, President and CEO of The Picerne Group, utilized a presentation to review the multifamily, ^wxed Ase project, reviewed the One Uptown Newport project, and noted the project will have 169 market rate rental units and 24 affordable housing units." [note: It is a mystery why the transcriber inserted the words "mixed-use," meaning a project with residential and non-residential components. Mr. Picerne made no such claim and there was nothing "mixed-use" about his proposal. He called it, instead, a "multifamily community." See video at 1:45:25] Page 284, paragraph 1, sentence 1: "Human Services Director Salvini mentioned the current City Attorney employment agreement effective January 26, 2021, and provided an overview of the terms and conditions of the proposed City Attorney em.,!.,, me„f agreement through December 20, 2028, including terms and Genditionc effective Janua a 26� , a five percent merit adjustment upon the effective date, cost of living adjustments tied to those received by executive management employees beginning January 2023 and each January thereafter, deferred compensation for City contributions to a 401(a) account as of the agreement's effective date in the amounts of $14,500 with an increase of $2,500 in January of each year for the remainder of the employment agreement term, and severance provisions if terminated without cause providing a cash settlement from the City equal to the monthly salary multiplied by the number of remaining months on the unexpired agreement term subject to conditions." [note: See video at 2:10:53. The transcriber has again changed the meaning of words by stringing sentences together in an order different from that in which they were spoken. In this case, they incorrectly make it appear the new terms would be retroactive to January 26, 2021.] Item 8. Cultural Arts Grants Fiscal Year 2021-2022 As indicated on page 7 of the recently posted draft minutes of the City Arts Commission's March 10, 2022, meeting, when the Commission made its recommendations, they asked staff to group the grants, for the Council's convenience, in such a way as to readily distinguish the programs intended for children as opposed to those for adult or mixed audiences, as well as to distinguish those being offered with free admission from those that require attendees to buy tickets. April 12, 2022, City Council agenda comments - Jim Mosher Page 4 of 10 This does not seem to have happened, and they remain in alphabetical order, as they were when the longer list was considered by the Commission. Item 9. Confirmation of Appointments to the General Plan Update Steering Committee I have previously expressed concerns about having the General Plan Update overseen by just three persons. While I understand Ms. Gardner's involvement in the previous General Plan Update, it is not clear to me why Mr. Brown and Ms. Carter are being recommended, other than their applications were the first two in the Clerk's alphabetically -arranged pile of twelve. As usual, it would seem useful, and respectful to the other applicants, for the Council and public to know who else applied. I appreciate Ms. Carter has, after just two year's residence, become regarded as a Distinguished Citizen of our City, but based on the City Clerk's archive of meeting records, neither she nor Mr. Brown have ever expressed, to our Council or any of its boards, commissions or committees, any previous interest in our General Plan, or any other matter. I also appreciate there may be some merit in seeking input from the previously uninvolved and unknown, but it would not seem to me to make them a majority of the small group overseeing the process. As to the appointees' responsibility to "Make reports to the City Council, at least bi-monthly," it might be noted that "bi-monthly" could mean equally well twice a month or every two months. It will presumably be one of their first orders of business to decide which was intended and report back to the Council. Item 10. Ordinance No. 2022-10 and Resolution No. 2022-23: Approval of the Fiscal Year 2021-22 Fee Study Update Attempting to unpack agenda Item 11 has taken so long I have not been able to carefully review Item 10, but I am pleased to see staff's continuing promise to make the fee schedule more readable and accessible in next year's iteration of this. That might help to clear up such questions as what the cost of color copies at the Library is. Finance Department staff seems to believe it is $0.45 per page, but since the last update, NBPL has thought, and has been charging $0.75. And I am thankful to see some improvements have been made to the item from when it was presented to the Finance Committee on March 10. I do not, however, understand staff's reluctance to recommend making the waiving of appeal fees for successful appeals an across-the-board policy. With the recommended revisions to the Cost Recovery Table, the Planning Division seems to be the last holdout on this, and I'm not sure how additional study would change the decision, or how the Council could rationalize charging successful planning appellants when it does not charge any others. April 12, 2022, City Council agenda comments - Jim Mosher Page 5 of 10 As to a very small part of that table, on pages 10-57 and 10-58 regarding the Animal Shelter, believing dogs, cats and humans to all be animals, I am not entirely clear how one distinguishes small "animals" from small dogs and cats. I note with slight amusement (or is it sadness?) the continuing consternation over the consultant's finding that it costs our City staff $25.17 to take a passport photo, and whether the City should charge $25 for that, or absorb a loss and offer them at $15, comparable to what private passport photo providers in the city charge (and presumably make a profit at) I found it ironic on March 11, the evening after the Finance Committee meeting, to read County Supervisor Foley's Friday Newsletter, in which she called special attention to Item14 on the Board of Supervisor's March 8 agenda, where "The Board reduced the Clerk -Recorder's Passport Photo Fee from $10 to $7. This cost decrease is a testament to Clerk -Recorder Hugh Nguyen's commitment to efficiency and innovation, which will save taxpayers money. This is government at its best!" One has to wonder how County employees are able to do something for $7.00 which NBPL employees take $25 or more to do. Item 11. Ordinance No. 2022-9: Amending the Newport Beach Municipal Code Pertaining to Raft -Ups, Live-Aboards, On -Shore Moorings, and Other Miscellaneous Provisions Comments on Process This item is developing an increasingly peculiar history Originally posted for Council consideration as Item 3 at the March 22 meeting, a last-minute staff memo requested a continuance to the present date, citing the receipt of "multiple inquiries regarding how the proposed modifications to Title 17, if adopted, will be implemented" and a wish "to solicit feedback from the public regarding the proposed changes." The present staff report provides no insight into what concerns were raised in the inquiries received prior to March 22' or what further feedback may have been received. It simply resubmits the previous proposal, with an expanded explanation, but, as best one can tell, no changes whatsoever. Moreover, while the present staff report, like the previous one, mentions two attachments in the text (A and B), and acknowledges a third (Attachment C, the proposed ordinance) in the list of attachments on page 11-5, close inspection reveals it includes a fourth (Attachment D, starting on page 11-28), which consists of an email sent by the Harbormaster on April 6, the day before the City Clerk publicly posted the current agenda. The "To:" line has been suppressed, but the Correspondence received regarding agenda items is normally archived with the meeting materials. The only comments I can find related to this in the March 22 meeting archive are my own, questioning the proposed authorization of "final and non -appealable" decisions by the Harbormaster. April 12, 2022, City Council agenda comments - Jim Mosher Page 6 of 10 email of Attachment D appears to have been addressed to the City Council, and provided them with an advance copy of the portion of the staff report dealing with raft-ups.2 I continue to not know what concerns were raised about the raft -up language, or whether they have been addressed, but I find the Harbormaster's April 6 email to the Council highly deceptive. He says "The Commissioners definitely feel adding this language to Title 17 supports efforts to keep Newport Harbor clean, safe and well -enjoyed for all," and quoting from the revised staff report provides a list of five Harbor Commission meetings at which the public (it is implied) had an opportunity to comment on the proposed language, and a sixth meeting, on February 9, at which "the proposed changes had a full, robust and complete public hearing." The disturbing implication seems to be that if a matter has been considered and approved by the Harbor Commission it is somehow disruptive and inappropriate for the public to question the same matter when it goes to Council for final consideration — despite the frequent assurances by the Harbor Commission to those attending its meetings that the Commission is only empowered to make recommendations and the public will have a further chance to air its concerns. Setting aside that "keeping Newport Harbor clean, safe and well -enjoyed for all" seems to be a motto adopted by the Harbormaster, and never, to the best of my knowledge approved by the Harbor Commission, and that the reference to the "December 6" meeting is a typo for "December 8," no minutes of any of the meetings are provided to support the contention that the present language was discussed or debated by the Commission as implied. For clarity, the "subcommittee responsible for Harbor Commission Objective 1.1" referred to in the staff report is one of well over a dozen Harbor Commission subcommittees that meet privately and report very briefly, if their leader has anything to say at all, at each regular meeting of the full Commission. This particular one, seems to have become a standing committee because it assigned the same vague and never-ending task year after year (see Harbor Commission Objectives presented to Council for 2021 and 2022: "Conduct an annual review of Title 17 and recommend updates to the City Council where necessary"). The public has little ability to know what changes they may be contemplating in a particular year. 2 Sending an advance copy of an agenda staff report to the Council without simultaneously notifying the public this has been done is arguably a violation of California Government Code Section 54954.1, the Brown Act provision requiring mailing of agenda materials to requesting parties "at the time the agenda is posted pursuant to Section 54954.2 and 54956 or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first." Although the Harbormaster assured the Council he would forward the same portion of the staff report "to the three constituents 1 am aware of that reached out to you on this matter" and "to one other interested constituent," he was perhaps unaware I and others have long requested notification of Council agenda materials through the City's e -Notification service. I was not among the constituents to whom the Harbormaster forwarded his email, and I received no notice that agenda materials had been distributed to a majority of the Council. But for that matter, the entire Council agenda packet is normally posted and sent to the Council at 4:00 p.m. on the Thursday before the meetings, as it was on April 7, and I do not normally receive a link to it until the afternoon of the following day, when a single -file PDF version has been added, as it was at noon on April 8. April 12, 2022, City Council agenda comments - Jim Mosher Page 7 of 10 I am unable to find any reference at all to Title 17 revisions in the minutes for the first two meetings cited by the Harbormaster: September 8, and October 13.3 The 18 changes to Title 17 being considered by the private Objective 1.1 subcommittee at that time were revealed and some were discussed by the Commission as a whole at the November 10 meeting, at which this was a separate agenda Item 6.2. Much of discussion related to proposals not currently being presented to the Council, including about allowing auxiliary floats and lifts, and the much of the remaining language was quite different than what is being now proposed to the Council (including no mention of making any of the Harbormaster's decisions "final and non -appealable." The total discussion related to the raft -ups proposal was this "In reply to Vice Chair Beer's inquiry regarding Recommendation 15, 1 C, and how the number seven was formulated, Harbormaster Blank explained that the language was suggested by code enforcement staff and that was the discretionary number they chose. Vice Chair Beer mentioned that he has seen many raft -ups that are larger than seven. According to the minutes, the total discussion of this topic at the December 8 meeting was: "Chair Kenney reported with respect to Objective 1. 1, the object [sic] is in process." Something closely approximating (but not the same as)4 the changes now being considered by the Council was presented to and discussed by the full Commission at its February 9 meeting. As in November, this was a separate agenda Item 6.2. However, describing that as "a full, robust and complete public hearing" is highly deceptive. Not only was it not noticed as a "public hearing," but I appear to have been the only member of the public present. Most of the discussion was about the November provisions regarding floats and lifts which were not then before the Commission and are not now before the Council (see pages 6 and 7 of the minutes). At no time was there any discussion of making any of the Harbormaster's decisions "final and non -appealable," since that language was never presented to the full Harbor Commission. Comments on Substance of Proposed Ordinance 2022-9 Section 8 (page 11-22): • The language of Subsection M.1 was revised as directed by the Harbor Commission on February 9. • M.3 should be changed to begin: "3. The Harbormaster may issue a permit if he the Harbormaster determines the raft -up will not interfere with the natural flow of traffic, or negatively impact surrounding property owners. The Harbormaster may impose conditions on the permit to protect persons and property and to ase ensure that the raft -up will not create a nuisance or interfere with the reasonable use of Newport Harbor by other vessels or persons...." 3 See agenda packet starting on page 420. 4 As partially detailed below, without any disclosure to that effect, several provisions have been substantially changed between being "approved" by the full Harbor Commission and presented to the Council. April 12, 2022, City Council agenda comments - Jim Mosher Page 8 of 10 M.5 should be revised to read something like: "5. Raft -up permits are nontransferable and shall be in addition to any license, permit or fee required under this Code or any other provision of law, including any separate permit required by the City's Fire Code." [The present staff report is the first mention of the requirement for a "rafting" permit under the "NBMC Section 9.04.350 Amendments to Section 3603.6 Berthing and Storage and the City's Guidelines and Standards A.10 Multiple Berthing and/or Rafting at Special Events." But reference to a precise Fire Code section number is difficult because the numbers change with the revisions every three years.] M.6: For the reasons stated on March 22, 1 object to the final sentence, added on page 11-23, saying "The decision of the Harbormaster shall be final and non -appealable." This was never in the text presented to or approved by the Harbor Commission, even though the staff report section on Enforcement (page 11-4) is slyly written to give the impression it was. Section 9 (page 11-23): • The next to last sentence, with its references to two other sections of Title 17, replaces what in the version approved by the Harbor Commission was two sentences describing dye tablet tests. • The final sentence saying "The decision of the Harbormaster shall be final and non - appealable" was not in the version approved by the Harbor Commission. Section 10 (pages 11-23 to 11-24): • The Harbor Commission approved deleting the current reference to "Marine Activities Permit" as shown on page 11-10, but the remainder of the passage needs to be revised to complete that change: "A. All sailing clubs; and marinas with a capacity of fifty (50) or more vessels shall install a vessel waste pump -out system solely for the use of vessels associated with that activity. The pumpout facility shall be installed on dock space under the control of the club; or marina or permittee with convenient access to all vessels owned, leased or chartered by the club, or marina or permittee. The pump -out facility shall have a capacity commensurate with the capacity of the holding tanks of the vessel or vessels of the club, or marina or permittee. " Section 11 (pages 11-24 to 11-25): • 1 am unable to find any part of this long passage regarding the issuance of mooring sub -permits in the text presented to or approved by the Harbor Commission on February 9. Section 12 (page 11-25): I am unable to find any part of this brief passage about revocation of mooring permits in the text presented to or approved by the Harbor Commission on February 9. April 12, 2022, City Council agenda comments - Jim Mosher Page 9 of 10 Section 13 (page 11-25): • 1 am unable to find any part of this passage limiting the ability to appeal or call for review in the text presented to or approved by the Harbor Commission on February 9. Section 14 (page 11-26): I am unable to find any part of this passage amending NBMC Section 17.70.050 regarding Citations and Other Remedies in the text presented to or approved by the Harbor Commission on February 9. Inadvertently Missing Section (?): Equally strangely, the proposals approved by the Harbor Commission on February 9 included a sentence added to the end of NBMC Section 17.70.040 (Abandoned Vessels or Structures) which I do not find in the present ordinance even though the February 9 staff report said "This recommendation is required by the State of California to continue participation in the Vessel Turn in Program (VTIP) and Surrendered and Abandoned Vessels (SAVE) grant programs" and the present staff report says on page 11-2 that the proposals include "establishing fines for specific infractions related to abandoning vessels in Newport Harbor"— even though they do not seem to. The previously -reviewed addition to Section 17.70.040 read: "In accordance with Section 525(a) through (c) of the California Harbors and Navigation Code the Harbormaster may issue the last registered vessel owner a citation for abandonment of the vessel and impose a fine of not less than $1,000 nor more than $3,000 for violation of this section." Concluding Thoughts It bothers me that the staff report strongly implies everything being presented to the Council for approval has been thoroughly vetted by the Harbor Commission and has their unanimous stamp of approval, including new provisions about enforcement and appealability. In fact, much of that was never publicly reviewed by the Harbor Commission, let alone publicly recommended by them — and at least one matter they did recommend has not been forwarded to the Council. When I commented on this on March 22, after a very quick skimming of the item, I thought the insertions in three places making the Harbormaster's decisions to revoke permits non - appealable must have "slipped by" the Commissioners, since ensuring that all decisions be ultimately appealable to our elected officials had been a central feature of their last major revision of Title 17 — triggered by what I believe was a misinterpretation by staff of a previous provision that made the revocation of a mooring permit by the Commission appealable to a hired Hearing Officer, whose decision supplanted the Commission's with no recourse to the Council. I see now that these passages enhancing the Harbormaster's powers did not slip by the Commission. They never saw, let alone approved, them. April 12, 2022, City Council agenda comments - Jim Mosher Page 10 of 10 As I indicated on March 22, making permit revocations by the Harbormaster "final and non - appealable" is not only (in my view) unwise, but also unnecessary to make the revocations immediately effective. As I wrote then, NBMC Section 17.65.030 already 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] Removing even the theoretical possibility of an appeal after action by an administrative officer removes one of the most fundamental checks the public has on the abuse of authority and ability to correct inappropriate behavior. And the Council should keep in mind what I think was an equally -ill-conceived revision to City Charter Section 1400(b), approved by voters in 2012 as part of the infamous take -it -or -leave -it 38 -revisions -in -one Measure EE, which appears to authorize administrative officers to delegate the powers given them to their deputies. Hence making the Harbormaster's decision non - appealable, means he can make the decisions of any Harbor Department employee equally final and non -appealable. The most comparable part of the existing NBMC that I can think of are the provisions related to the issuance of an operator's license by the Chief of Police in Chapter 5.25. The Chief may feel an equally urgent need to revoke a previously -granted license. But under Section 5.25.080, that decision does not even seem to take immediate effect, and it is appealable (to the City Manager). Similarly, the extremely confusing and horribly written Chapter 11.03 on Special Event Permits appears to give the City Manager authority for immediately -effective revocation in Section 11.03.090 (similar to what the Harbormaster is requesting for raft -up and mooring sub - permittees), but Section 11.03.100 appears to make the City Manager's decision appealable, after (or before?) the fact, to the Council. Admittedly, there are places in the NBMC (including, contradictorily, in Chapter 11.03) in which a decision by the City Manager (or in rare cases a Department Director) is declared "final," but I don't think that's a good practice or one that should be extended unnecessarily, as is requested here.