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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed June 14, 2022 Written Comments June 14, 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 IV.A. CONFERENCE WITH LABOR NEGOTIATORS This item announces a closed door discussion of negotiations with what looks like all the City's employee bargaining units. That is surprising to see, since I had the impression the Council had nearly completed its most recent round of negotiations with all of them (see, for example, Items 8 and 16 on the present agenda, presenting terms quite recently agreed to by what may be the last two of the eleven units listed). It is very difficult to guess what could have prompted this need to reopen negotiations so recently concluded, and why the issue or issues that prompted this could not be publicly revealed. One might also note that one of the "Employee Organizations" listed is "Key and Management - unrepresented employees." Aren't two of the representatives negotiating on behalf of the City -- City Manager Leung and Human Resources Director Salvini -- Key and Management employees? Doesn't that create a conflict of interest? Item IV.B. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION As I have observed many times before (most recently in connection with the April 26 agenda), the specific exception to California's open meeting law cited to justify this closed session is one that is expected to occur with extreme rarity, and even then, may be ethically questionable. It requires the City to be exposed to litigation in which the potential plaintiff is either unaware of the injury done to them or of their ability to obtain judicial relief — and for which publicly stating the subject to be discussed would harm the City. Such circumstances are extremely hard to imagine, so even if these notices appear on Council agendas only once or twice a year, that frequency seems improbably high to me. And one has to wonder if it wouldn't be a better policy to be more forthcoming with those the City may have injured, rather than keeping the wrong that may have been committed secret (as this exception allows). June 14, 2022, City Council agenda comments - Jim Mosher Page 2 of 8 Item 1. Minutes for the May 24, 2022 Special Joint Meeting of the City Council and Finance Committee and the May 24, 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 313, Section 111, 2nd bullet, paragraph 1: "Mayor Pro Tem Blom read the proclamations and presented it them to Coach Ross Sinclair who thanked the City Council for honoring the tea teams and expressed his pride for both teams' accomplishments." [The video shows two separate proclamations being read, but presented together.] Page 315, Item SS2, paragraph 5: "In response to Council Member Dixon's question, Deputy Public Works Director Houlihan confirmed that of the the $31.5 million for facilities, in public and private contributions represents approximately half of the total cost." [The comment referred to a slide showing $31.5 million proposed to be budgeted for "Facilities." The response was the $31.5 million included anticipated private contributions of $7 million for the Library Lecture Hall and $1.7 million private contribution for the Junior Lifeguards Building which, when combined with ARPA funding, would account for nearly half.] Page 315, Item SS2, paragraph 6, sentence 1: "In response to Council Member O'Neill's questions, ... City Manager Leung confirmed the inclusion of the Civic Center and fire station in the transfer of funds from the General Fund (GF) to the Facilities Financing Plan." Page 316, full paragraph 4: "Charles Klobe questioned whether the oil well refurbishments include remediation in lieu required of the new existing Banning Ranch owner, ..." [See video at 1:37. The comment seemed mostly an announcement that a sale of the adjacent Banning Ranch property was imminent and would require the seller to perform oil operation related remediation. In that context, "in lieu of the new owner" makes no sense.] Page 316, full paragraph 7: "In response to Council Member Dixon's question, Public Works Director Webb indicated that costs related to oil barrels are .,art of the price per barrel of oil is factored into the revenue stream." [See video at 1:44. The question was about the the effect of the fluctuating sale price of a barrel of oil, not the cost of oil barrels.] Page 316, full paragraph 8: "Mayor Pro Tem Blom relayed that the gas byproduct from the oil well wells is used to power some of the systems at Hoag Hospital." [See video at 1:44:40. The Mayor Pro Tem qualified his comment as shown, and did not suggest gas from the City's oil field is the sole, or even primary, power source for Hoag Hospital.] Page 320, full paragraph 8: "In response to Council MemberAvery's questions, Utilities Director Vukojevic noted residential water use is the primary water consumption user in the City, this^ sed , 15% of water use is for irrigation -only accounts, and confirmed having obtained landscaping measurements per house for a water budget." June 14, 2022, City Council agenda comments - Jim Mosher Page 3 of 8 [See video at 2:41. Director Vukojevic estimated residential use accounting for 65% of total water consumption, with an additional 15% in irrigation -only accounts (including those of HOA's) and another 15% in commercial water accounts.] Item 2. Ordinance No. 2022-14 and Resolution No. 2022-34: Eastbluff Preferential Parking Zone Revisions The statement in the last Whereas at the bottom of page 3-9 of the proposed Resolution No. 2022-34 ("a majority of residents and property owners in the Eastbluff community request removal of the one (1) hour parking time limit on Alder Place, Aleppo Street east of Arbutus Street, Almond Place, and Alta Vista Drive between Aleppo Street and Arbutus Street") does not appear to be accurate. According to page 3-6 of the letter from the Eastbluff Homeowners Community Association, the request is coming from 30 of the 146 homes in the area affected. That is certainly not a majority of residents and property owners in the entire Eastbluff community, nor even of those in the area affected. It is a majority of the responses to the HOA's survey of homes in that area. In the first Whereas at the top of page 3-10, 1 believe "recession" was intended to be "recission." As to the proposed Ordinance No. 2022-14, the first Whereas at the top of page 3-13 (stating that a majority of adjacent residents request the removal) has the same problem as the Whereas in the resolution: it is at best an extrapolation by the Council, based on an assumption that the homes that did not respond would answer in the same proportions as those that did. That Whereas supports one of the findings for imposing preferential parking listed in NMBC Section 12.68.030. Section 12.68.030 is ambiguous as to whether all the findings listed have to be made, or just one or more of them, or a majority of them. Chapter 12.68 is even more silent on what the required findings are to remove preferential parking restrictions. I would guess removal of restrictions would be appropriate when the conditions that allowed their imposition no longer exist. Which is to say, among other things, that a majority of residents on the streets where removal is being considered no longer support the restrictions (or, equivalently, that they now object). In that regard, the HOA letter indicates 19 of the homes on the Upper A Streets object to the parking restrictions, 4 favor them and 34 did not respond. From that it seems very likely, but not certain, that a majority of the 57 adjacent homes do object, for to reach the 29-vote majority threshold, only 8 of the 34 non -respondents would have to be in the "remove restrictions" camp. Assuming the Council agrees with staff that reenacting Preferential Parking Zone 3 with a smaller size is appropriate, one might ask why Zone 3 differs from Zone 2 (the only other preferential parking zone addressing high school student parking) in both hours and duration? Why are Corona del Mar High School students restricted to one hour parking while those at Newport Harbor High are allowed two hours (on all streets but one)? And why are the streets June 14, 2022, City Council agenda comments - Jim Mosher Page 4 of 8 near one school restricted from 7:00 a.m. to 4:00 p.m. while those near the other are restricted from 8:00 a.m. to 6:00 p.m.? It would have seemed useful for the staff report to review these differences and consider whether they are still necessary and appropriate. Finally, the resolution seems completely redundant with the ordinance. It would make sense if the ordinance said there were details to be fleshed out by Council resolution. But it does not. The resolution simply repeats content established by the ordinance, adding nothing to it. Does the proposed Resolution No. 2022-34 serve any purpose other than rescinding Resolution No. 2016-100? Item 4. Ordinance No. 2022-13: Amendment to Municipal Code Chapter 14.16, Water Conservation and Water Supply Shortage Program As indicated on page 320 of the draft minutes being considered as part of Item 1 on the present agenda, when the present ordinance was introduced at the May 24 meeting, I "expressed concern over the removal of definitions from the ordinance, water consumption expectations at fitness centers, and relief to fitness centers with water usage increases resulting from water restrictions." I learned after the meeting that a fitness center would likely be granted relief from the restrictions applicable to other businesses if they claimed they had experienced increased water use as a result of the changed behavior of patrons facing restrictions on use at their residences. I believe a policy question remains as to whether that relief should be granted, for this would represent simply a shifting of where water is used, and negate the reductions in how much is being used at the original locations. I continue to believe the removal of definitions from the Municipal Code proposed by this ordinance is both unnecessary and unwise. Item 5. Resolution No. 2022-35: Initiation of Amendments to the General Plan Land Use and Noise Elements, the Zoning Code and the Newport Place Planned Community Development Standards (PA2022- 110) How will these amendments affect the City's 2006 Cooperative Agreement (C-3885) with the County, also known as the "Spheres Agreement"? In that Agreement, the Board of Supervisors made certain concessions, including a commitment to not extend the John Wayne Airport runway to the south or add a new commercial runway without City approval, in return for which the City promised to attain and maintain consistency of land use planning with the County's Airport Environs Land Use Plan. June 14, 2022, City Council agenda comments - Jim Mosher Page 5 of 8 As Item 8 at the February 8, 2022, meeting, the Council overrode the Airport Land Use Commission's determination that our proposed Housing Element would be inconsistent with the JWA AELUP. The Council and public were assured in the staff report for Item 16 on the October 12, 2021, agenda (the notice of intent to override), that it would require additional action by the ALUC for the City to become an "inconsistent agency." But it would certainly seem actions such as the present one increase the likelihood of the ALUC taking those additional steps. Are we not in danger of abrogating the Spheres Agreement? Regarding the proposed relaxation of the present requirement to incorporate affordable housing at the rate of 30% of base units in residential projects in the Newport Place Planned Community: 1. Wasn't the 30% requirement based on something? Has that been reviewed, and do we know why the recent Keyser Marston study reached a different conclusion? 2. On February 21, 2019, the Planning Commission, as Item 2, approved the Newport Crossings project in the Newport Place PC, with 78 (30%) of the 259 base units restricted to low-income households for a minimum of 30 years. Doesn't this call into question the Keyser Marston conclusion that 30% affordability in infeasible? Item 6. Resolution Nos. 2022-36 and 2022-37: Adoption of Fiscal Year 2022-23 Appropriations Limit and Amendment to the Fiscal Year 2021- 22 Appropriations Limit On June 8, 2021, the Council adopted Resolution No. 2021-49, declaring the City's appropriations limit for FY2021-22 to be $218,535,203. The new Resolution No. 2022-36 changes that to $220,661,795. Just as in Item 3, where a resolution adopting new parking restrictions contains a statement the Council is rescinding an earlier resolution setting different restrictions, doesn't the proposed Resolution No. 2022-36 need to contain a statement it is rescinding Resolution No. 2021- 49? Or is it OK for the Council to enact contradictory resolutions? It is also not entirely clear why Resolution No. 2022-36 reaches a different conclusion than Resolution No. 2021-49. Both resolutions say the Population Adjustment Factor is "Based on Orange County population growth." And both staff reports (at least for the current year) say (in the "Discussion") that it is "Based on Orange County population growth as provided by the California Department of Finance" from May of the resolution's year. Where did the "alternative population factor" referred to in the staff report (apparently -0.64% instead of-0.84%) come from? Did the DOF change its estimate? Or was a different month used? June 14, 2022, City Council agenda comments - Jim Mosher Page 6 of 8 Item 11. Ocean Boulevard Sidewalk Improvements between Carnation Avenue and Fernleaf Avenue - Notice of Completion for Contract No. 7623-1 (18R25) Contract No. 7623-1 was approved as Item 11 on the September 28, 2021, consent calendar. The contract award amount was $449,470 with a contingency of $45,000 to cover unforeseen work. The staff report suggests the contracted for items may have been completed at a cost of $427,135, well under the approved mount, with no need to dip into the contingency. But it looks like another $86,167 of additional work was requested, raising the cost to well over the maximum amount anticipated in the Council's 2021 approval, even with the $45,000 contingency.' Shouldn't the staff report acknowledge that the 14.2% Percent Contract Cost Change shown at the bottom of page 1 is greater than the 10% previously approved by the Council? Item 12. Peninsula Point Encroachment Removal Project - Award of Contract No. 8814-1 (22M14) The schedule of proposed fund uses on page 5 of the staff report, arriving at a total of $648,024, appears to be based on seven Private Encroachment Removals adding $52,500. But page 2 of the staff report says only six such removals are now anticipated. Shouldn't the $52,500 be revised to $45,000 and the total to $640,525? Item 16. Tentative Agreement with Newport Beach Police Management Association (NBPMA) This is the only one I can recall in the current crop of agreements for which the staff report does not mention a $2,000 "signing bonus." If that omission is intentional, why would the Police Management Association be treated differently from the Fire Management Association (Item 8 on the current agenda)? That said, according to Attachment B, the Flex Leave Increase and Leadership Compensation proposals being recommended for approval for Police Management only, appear to provide higher percentage Total Ongoing2 Compensation Increase in each year. ' An alternative reading of the staff report is that the items that were completed as originally contracted cost $427,135 and the additional $86,167 that was spent represents a combination of (1) items constructed differently from the way anticipated in the original contract, and (2) work on items not anticipated in the contract. 2 It is unclear if "ongoing" includes the signing bonus. June 14, 2022, City Council agenda comments - Jim Mosher Page 7 of 8 Item 17. Community Programs and Special Events Grants Recommendation for Fiscal Year 2022-23 Were any of the programs or events funded in the present year impacted by COVID? Doesn't the City have multi -year agreements with some of the "Signature Event" providers? If so, shouldn't the agreements, any obligations they create and their current ending dates be mentioned in the report? For example, the Clerk's contracts database shows a C-8082-lA with the Newport Beach Film Festival which it says was approved on June 25, 2019, and expires in a few days on June 30, 2022, which committed to $150,000 each July 1. Is the proposal for the new grant of $149,000 to be for one year only with no longer term commitment? Item 18. Board and Commission Scheduled Vacancies - Confirmation of Nominees The nomination of Mayor Pro Tern Blom's father for appointment to the City Arts Commission may raise some eyebrows since the staff report gives the impression the nomination comes from a committee on which the Mayor Pro Tern sat. Did Mayor Pro Tern Blom participate in the nomination? Although Council appointment of close relatives to boards and commissions is neither illegal nor unheard of in Newport Beach, it seems self-evident that having to vote on a relatives of a Council member places all the other Council members in an awkward position, and if they should be appointed, a similar awkwardness would arise again if the relative presented a recommendation from their body to the Council — not to mention the extra deference the other commission members may feel they have to pay to the relative. It has generated enough controversy recently in Irvine, Laguna Niguel and Westminster for at least two of those cities (Irvine and Laguna Niguel) to have adopted policies prohibiting the practice. From my own observations of her four years on the Arts Commission, the incumbent seeking appointment to a second term, Wayan Kaufman, has served with distinction. As to my own nomination by the same committee to the Board of Library Trustees, I would like to confirm that my wish to serve on that body, as described in my application, is both sincere and long lasting. One of the other nominees notes he has "applied several times already." I have applied every year since 2009. Item XVI. PUBLIC COMMENTS ON NON -AGENDA ITEMS As most of the Council members are likely aware, on May 12, the Planning Commission approved a 159-unit residential tower to be built on the Marriott Hotel & Spa property at 900 Newport Center Drive. On May 25, 1 filed and paid for an appeal of that decision to the City Council, which was accepted by the City Clerk. June 14, 2022, City Council agenda comments - Jim Mosher Page 8 of 8 On June 7, 1 received an email from the City Clerk (followed the next day by a 400-page package in the mail), announcing that the City of Newport Beach had rejected my appeal on the grounds that staff thought the appeal was of something other than the decision stated and that reason for the appeal lacked merit. It was strongly implied that staff's decision on the appeal and no opportunity to correct the purported defects was offered. Whatever the details may be, this suggests the Council needs to review the appeal process set forth in our Municipal Code. If the Council wants to allow staff decide appeals for it, such authorization needs to be clearly stated in the Code. Likewise, if the Council wants to authorize staff to reject appeals after they have been accepted, and with no opportunity to correct defects pointed out after the fact, that, too, needs to be stated. On a quick review of other cities that appear to allow staff to reject an appeal based on their evaluation, after filing, of its merits, I found the City of Sacramento, which requires the Clerk to allow five extra days to correct a deficiency he or she perceives,3 and Jackson, California, which authorizes a City Planner to reject an appeal they find incomplete, but gives the appellant seven days to correct the deficiency. Newport Beach staff has no such rules they can point to, making their blockage of a citizen's request, and perceived right, to have their concerns, whatever they may be, heard by their City Council appear arbitrary and capricious. Item XVIII. MOTION FOR RECONSIDERATION As indicated on page 318 of the draft minutes being considered as part of Item 1 on the present agenda, Item 3 on the May 24, 2022, regular meeting consent calendar was approval of the Notice of Completion for Contract No. 8695-1 (20F13) [38/100-2022] (Cliff Drive Clubhouse Rehabilitation). The Newport Heights Association held a community event in the area adjacent to the Clubhouse on May 25, the day after that meeting. However, Council member Avery, speaking at the event, apologized to the audience that the work did not, in fact, appear to be complete. Apparently, the public restrooms were not functional. Is it possible the Notice of Completion for Contract No. 8695-1 was accepted in error? 3 South Lake Tahoe appears to have copied their code from Sacramento (on vice versa).