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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 26, 2022 Written Comments April 26, 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) Note: For those who might wish to review the Council's meeting materials electronically, but offline, it is disappointing that the agenda packet for this meeting was not, as it usually is, made available for the public as a single PDF, but instead has to be downloaded as long series of separate files. Item SS3. Residential Refuse Program Roll -Out Update I live in one of the first areas to experience the three -cart roll-out, and it was not without its hiccups, including the several weeks it took for the CR&R drivers to manage to pick up all carts on the newly appointed day, and their failure to recognize and empty some of the older carts with different -colored lids (the earlier recycling carts, continuing in use, having black lids, distinguished only by a "MIXED RECYCLING" sticker). As to the effectiveness of the program, which is ostensibly only about diversion of organic waste, and not about recycling in general, the Council may be interested to know that the Costa Mesa Sanitary District, which also contracts with CR&R for residential solid waste collection and disposal services, including Newport Beach residences in Santa Ana Heights, has had separate green -topped organic collection for more than six years (since 2015), albeit with a two -cart rather than a three -cart system. They recently completed their first required characterization how much organic waste continues to go in the mixed -waste carts (see Item C.2 from their March 8 study session agenda). The route selected was in Newport Beach, in East Santa Ana Heights, near Bayview. According to the report, despite six -plus years of attempted education, 22% of the weight collected in the mixed carts was improperly disposed of food waste, and another 2% was incorrectly placed green waste. Unfortunately, no estimate was available of how the amount of food waste in the mixed carts compared to the amount correctly placed in the green carts. Given the great difficulty of getting residents to put food waste in kitchen pails and ultimately into the green carts, it would be good to know if the state mandate has a separate requirement for 75% diversion of food waste, or only a requirement for 75% diversion of organics in general. If there is a separate requirement for food waste, it would also be good to know the City's best estimate of how the volume of residential food waste compares to that of commercial food waste in Newport Beach. Although CMSD does not currently have separate recycling carts, I would suspect similar problems exist with getting residents to properly place recyclable materials, and only recyclable materials, in the blue cart, and to not place any recyclables in the landfilled (black) cart. Unlike with kitchen scraps, I would also suspect this would arise not so much from a willful decision to ignore the City's rules, as from a sincere uncertainty as to what those rules are, including lists posted, mailed and stamped or affixed to the cart lids contradicting one another. I have suggested to City staff that the most useful thing would be a list from CR&R of the things it most commonly finds in the Newport Beach recycling carts that end up rejected and landfilled, as well as a list of the things it most commonly finds in the black waste carts that could, and April 26, 2022, City Council agenda comments - Jim Mosher Page 2 of 8 should, have been recycled.' I have yet to see such a list of most common placement mistakes on either the City or the CR&R website. Regarding contract fulfillment, when the Council approved the new contract with CR&R as Item 20 on January 11, CR&R asserted (see page 20-6 of the staff report) that it would be authorized to bill 9,967 households (of the roughly 24,000 total) $8.30 per month for what it called "standard valet service" in which the pickup requires a helper to move the cart 15 feet or less to the collection vehicle, generating roughly $1 million a year of extra revenue for them. Last week I received a letter from CR&R (which I do not find on their website) dated April 1 and titled "To Avoid Incorrect Account Charges, Actions are Required by April 24th, 2022" and warning me I needed to check my online account to see if, starting May 1, 1 was going to be billed for a host of things, including the "standard" or "premium" valet service. The letter and accompanying diagram imply there would be no valet charge if the distance the cart has to be moved is 8 feet or less. Has CR&R scaled back its estimate of the number of households it is currently providing standard valet service for? If so, what is the new number? And do those residents have any option other than paying the valet charge if they want their trash picked up? As indicated in previous comments (see February 8, page 4), if any homeowners have no option other than paying the $8.30 per month fee to have their trash collected, then even though this may be billed by CR&R it would seem to be a City -imposed property -based charge requiring a Proposition 218 hearing. If the number has been reduced, has the City agreed to pay for the remainder of the 9,967 households CR&R claimed were currently receiving standard valet service? Or has it been decided that this service for the remainder was included in the approved contract? Likewise (see previous comments, January 25, page 4), has the City decided if the free cart allotment obligates CR&R to provide one set per household or one set per lot? On a closely related issue, I continue to object (see previous comments, January 11, page 4, and November 16, page 5), to the imposition of a recycling fee on residents who according to our voter -enacted ordinance are supposed to receive free curbside trash service, paid out of our basic residential property tax. Especially when the fee was originally imposed to pay a vendor to do the sorting, and the residents are now required to do the sorting they are paying for themselves. And especially when the fee calculated in recent Proposition 218 process bears no rational connection to the cost required to sort the trash (as opposed to the cost to collect and dispose of it). In fact, residents have been told the City's commitment to providing free trash service applies only to non -recyclable, landfilled material, and residents are expected to bear the full cost of disposing of anything that goes anywhere other than the landfill. ' Since we have been told that the black carts will now go directly to the landfill with no attempt at sorting, this would require an occasional characterization of a sample of the contents — similar to that conducted by CMSD for organic contamination in their mixed waste carts. April 26, 2022, City Council agenda comments - Jim Mosher Page 3 of 8 Not only is that contrary to the plain language of the voter -enacted ordinance (which the Council is not free to alter without presenting the proposition to voters), but it discourages waste reduction: it makes it in the interest of cost-conscious residents to put all their waste in the mixed cart whose collection and disposal they don't have to pay for, maximizing landfilled waste and thus minimizing the recycling fee they will be charged in future Proposition 218 adjustments. Item SS4. Housing Element Update This item references the letter from HCD dated April 11 and posted on the City's "Housing Element Adopted" page. At last week's Planning Commission meeting, Deputy Community Development Department Director Campbell said the fact the letters were getting shorter made him optimistic the City was very close to certification While the letter may raise fewer issues that need to be resolved before compliance can be achieved, the second full paragraph on the last page is rather ominous as it says that even if the City makes the recommended revisions, it will fall back out of compliance unless Policy Actions 1A through 1 F to rezone the City to accommodate the Regional Housing Needs Allocation is not completed by October 15 of this year. City staff has previously said that is not possible. In addition to the cutting off of eligibility for the funding mentioned in the letter, does staff believe a failure to rezone by October 15 will trigger the monetary sanctions we have been told about? Item IV.0 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITI GA TION It has been a relief to see the last few agendas containing no announcements of the Council meeting privately to discuss litigation. However, the present item invokes the most questionable of justifications for private discussion of anticipated litigation without disclosing what the nature of that litigation might be. This is Government Code 54956.9 (d)(2), (e)(1), in which "A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency," yet the local agency believes the "Facts and circumstances that might result in litigation ... are not yet known to a potential plaintiff or plaintiffs" and "discussion in open session concerning those matters would prejudice the position of the local agency in the litigation." It seems highly unusual for the City to have done something over which it could be sued but which the injured party doesn't know was done to them. A search of the Council's minutes reveals at least three previous instances of this exception since January 2019: May 26, 2020, April 13, 2021, and May 11, 2021. April 26, 2022, City Council agenda comments - Jim Mosher Page 4 of 8 That may seem like a small number, but to me it is too many for such a rare confluence of circumstances to be likely to have occurred. The following item, in which the Council will privately discuss initiating litigation, with no hint to the public as to what that litigation might be about is similarly uninformative. While such an announcement is allowed by the Brown Act, it is unhelpful for those who might wish to offer guidance to the Council and it is difficult to see whose interest this serves. Item 1. Minutes for the April 12, 2022 City Council Meeting The passage shown in italics below is from the draft minutes with suggested corrections shown in sh4keeu underline format. The page number refers to Volume 65. Page 294, top paragraph: "..., the Harbor Commission subcommittee recommended the seven %essel raft -up limit ^ems weekend " [see video at 3:22:15: Harbormaster Blank said "the current Department practice is a 10 - vessel limit and a 4 raft -up limit per weekend." The proposal was to reduce the vessel limit from 10 to 7. 1 am unable to find any reference to a change proposed in the number per weekend limit, where that is currently specified, or exactly what it means (4 permits total? 4 to the same person?).] Item 3. Ordinance No. 2022-9: Amending the Newport Beach Municipal Code Pertaining to Live-Aboards, On -Shore Moorings, and Other Miscellaneous Provisions I am pleased to see some additional clean-up has been applied to what is now proposed as Section 7 of Ordinance No. 2022-9 (page 3-17), even though Attachments A and B to the staff report (pages 3-7 and 3-13) do not reflect the cleanup, and the body of the report continues to claim (next to last paragraph on page 3-2) that the language before the Council was unanimously approved by the Harbor Commission, even though they did not see much of it. I continue to think making the Harbormaster's revocation of a mooring sub -permit non - appealable is unnecessary and adds unnecessary uncertainty to Title 17. It is unnecessary because as pointed out in my written comments from April 12, 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] In other words, the Harbormaster's revocation of a permit is already effective immediately, whether or not it is appealed. It adds unnecessary uncertainty to Title 17 because prior to this proposal, Section 17.65.010 could make the simple and easily -understood statement that (all) decisions of the Harbormaster "may be appealed to the Harbor Commission by any interested person" and that (all) decisions of the Harbor Commission "may be appealed to the City Council by any interested person." Ensuring this consistency and simplicity of interpretation was quite important to the Harbor Commission in their last comprehensive revision of Title 17. April 26, 2022, City Council agenda comments - Jim Mosher Page 5 of 8 Now, without seeking the Harbor Commission's review or approval, the City Attorney and the Harbormaster have decided to ask the Council to add to the provision about appeals of "Decisions of the Public Works Director, Community Development Director, Risk Manager, and/or Harbormaster" the phrase "except as otherwise provided herein,"' as well as taking away the Harbor Commission's ability to call those decisions up for review (if otherwise provided). This will now require a person objecting to a decision of the Public Works Director, Community Development Director, Risk Manager, and/or Harbormaster to have to read through the entirety of Title 17 to discover if there is a provision somewhere in it providing something other than the normal rule as to what can be appealed, and/or by whom, for the particular item of interest to them. Likewise, the Harbor Commissioners themselves would be at the mercy of all of Title 17 as to whether they have the authority to call a particular decision up for review. Considering the Harbor Commission's previous interest in appeals and who they should go to, it is unfortunate staff did not invite them to debate this provision and how it should be worded. In oral comments on April 12, the Harbormaster suggested that immediate revocation was important to address safety concerns, and non -appealability was somehow related to that. But the Harbormaster (as does any other code enforcement officer) has many situations in which immediate revocation of a permit is necessary to abate an unsafe condition, but, as indicated, the law is already equipped to handle that without making the revocations non -appealable. The Harbormaster emphasized that while the revocation could not be appealed, any citations issued (meaning, presumably, monetary sanctions) could still be. This is something like saying it would be OK to authorize a police officer to permanently suspend a driver's license for anything the officer alleged was unsafe conduct, and there would be no opportunity to question the officer's decision unless a fine was imposed (and presumably even then only the fine could be refunded). Not allowing even the Harbor Commission to review, after the fact, the Harbormaster's decision to revoke a sub -permit seems especially problematic, and unnecessary, to me. Item 5. Ordinance No. 2022-12: LCP Amendment Related to Tattoo Establishments (PA2020-030) I am a bit surprised the Coastal Commission agreed to certify this proposed amendment as submitted, for it effectively allows no new tattoo establishment permits to be granted in the Coastal Zone. Apparently, they did not see that as a Coastal Act issue. 2 The highly ambiguous "herein" is apparently intended to refer to the whole of Title 17, although that intention may well be lost on future readers who might well assume it refers just to the section in which it appears — or, alternatively, that it refers to the entire Municipal Code. April 26, 2022, City Council agenda comments - Jim Mosher Page 6 of 8 Item 6. Ordinance No. 2022-10: Amending Newport Beach Municipal Code Sections 3.36.010, 3.36.020, and 3.36.030 Related to Cost Recovery When this ordinance was introduced, I commented I did not understand why the concept of refunding appeal fees to successful applicants was not being extended to Planning Division appeals (for which the proposed Cost Recovery Table continues to indicate a $1,715 fee, win or lose). I since spoke to the Finance Committee about this, noting that searching the Clerk's Laserfiche archive for Planning Commission agenda items with the word "appeal" in the title, I found just 17 in the last 12 years. Of those, at least 3 were recent ones for which there was no fee charged because they involved coastal development permits. And of the remainder I would suspect most were denied. As a result, although a significant cost to the appellant, the financial impact on the City budget of refunding the fee charged for successful Planning Division appeals would be quite small. As to the completeness of the Cost Recovery Table, and the attendant code, that is always a work in progress. As an example, I understand from Item 15 on the present agenda (top of page 15-5), that the initial cost of the Be Well mental health services program was recovered using a special CDBG allotment from the CARES Act. The City is presumably committed to continuing to provide the service at no charge, but I do not see it in the Cost Recovery Table being presented for approval. There would similarly appear to be a number of homeless services provided at no charge to the beneficiary. Will those be included next year? Or do they fall within the new "for the public benefit generally' catch-all? Item 8. Resolution No. 2022-25: Opposing Senate Bill No. 1464 The proposed statement of opposition to this bill appears to be based on the belief that in a public health emergency, law enforcement officers with no public health training should be allowed to substitute their judgement for that of trained public health officials as what orders should be enforced, and which not. And possibly a belief that the enforcement of public health orders is inherently unconstitutional. That does not sound like a very rational position to me. As best I can tell, none of the Supreme Court Justices who heard last year's challenge to California's COVID order as applied to church services believe health orders are inherently unconstitutional, but they all believe some aspects of some orders could be unconstitutional if 3 The US Supreme Court order cited appears to have also been published as 141 S.Ct. 716 (2021). A final opinion does not appear to have been rendered yet. The docket record indicates that on April 26, 2021, the Supreme Courtrg anted the petition to hear the case, but at the same time remanded it to the Ninth Circuit "for further consideration." April 26, 2022, City Council agenda comments - Jim Mosher Page 7 of 8 they single out certain entities without justification. However, there is always a possibility a law or regulation law enforcement officers are expected to enforce may, at some future time, be overturned by a court. The bill in question, SB 1464, which seems likely to die in committee, and which the Newport Beach Police Association, among many others, is already listed as opposing, substitutes a "shall" for a "may" in existing California law. That may not be as mandatory as the proponents of the present resolution may believe, for the legal meaning of "shall" is quite flexible and seldom clear. It is certainly less strong than "must." Moreover, there is nothing I can find in the bill that would penalize a law enforcement agency for failing to prioritize the enforcement of public health orders over other duties, as the resolution says it would. The penalty, which consists of redirecting to the County health agency state funds that would otherwise have gone to the law enforcement agency, is triggered not by failure to prioritize or even failure to enforce public health orders, but rather by making a public announcement that the agency will not follow the health officers' orders. Some might view that as an infringement of the law enforcement agency's right of free speech. But as far as I know, government agencies, unlike private individuals, have no right to say whatever their leaders may want. Given the huge quantity of legislation pending in Sacramento, the already long list of opponents to this particular measure and the likelihood it will undergo further amendment before it gets to the chamber floors, if it ever does, it is unclear why SB 1464 would be singled out for the Newport Beach City Council to take a position on. Item 10. Amendment No. One to Agreement for On -Call Streetlight Electrical Repair Services with Yunex, LLC (formerly Siemens Mobility, Inc.) This item is unusual in that it requests a three-year extension to a five-year on-call contract (C- 8511-1) approved as Item 8 on the July 25, 2017, Council agenda, but requires no increase in the originally -agreed -to $2,500,000 not -to -exceed amount to cover the additional three years. How much has been spent to date? And is there an understanding of why the volume of work was so much less than that anticipated for the next five years in 2017? As to the assignment of the contract to a newly -named unit, mentioned at the top of page 10-2 and memorialized in Agreement C-8511-2, that appears to have been completed quite recently (barely in time for the present staff report). And according to a January 17 Siemens press release, it looks like it will be followed by a sale of the new unit to a completely different company, Atlantia S.p.A. The latter company managed and maintained the bridge in Genoa, Italy, that collapsed in 2018, killing 43 people. Fortunately, the present contract is not for bridge maintenance. April 26, 2022, City Council agenda comments - Jim Mosher Page 8 of 8 Item 15. Resolution No. 2022-26: Community Development Block Grant - 2022-2023 Annual Action Plan I think using $30,000 on delivery of meals to homebound seniors is a very worthy use of the federal CDBG money. I was, however, surprised to see the reference on lines 3 and 4 of page 15-4 of the staff report to "homebound senior citizens, who make up approximately 24 percent of Newport Beach's population." That seemed like a lot of homebound people. I suspect a misplaced modifier, for, according to Figure 2-1 on page 2-2 of our proposed but - still -to -be -certified General Plan Housing Element, in 2018 all people age 65 and over, homebound or not, comprised 22.7% of the City's population, up from 18.3% in 2010. But if nearly everyone in Newport Beach over 65 is now homebound, as the current staff report implies, I have to wonder why we would be contracting to deliver meals to only 100 of the 19,000 or so eligible people.