Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 26, 2022 Written Comments July 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) Item SS2. Design Standard Changes for Residential Properties Located in the VE Flood Zone Item 3 on the Planning Commission's July 7, 2022, agenda was a request to demolish an existing duplex in the VE Special Flood Hazard Area at 4607 Seashore Drive and replace it with a 3,362-square-foot, single -unit residence and 376-square-foot junior accessory dwelling unit. Approval of the plan required the Commission to grant variances to allow construction of access stairs in what would normally be side and ocean -facing setback areas. This was said to be the first rebuild in the VE area in which the architect thought variances would be necessary. The Planning Commission was told they would not be required if the Council and California Coastal Commission approved the contemplated code amendments. It was not explained why those amendments, initiated by the Council on March 26, 2019, have taken so long to prepare. At least one Commissioner questioned whether the stairs actually needed to be in the setback areas. Although unrelated to VE issues, I noted that in view of the purported statewide housing crisis, when faced with requests to replace existing duplexes with single family residences in other cities, the Coastal Commission has expressed skepticism about ADU's being adequate replacement for the second unit. If approved at all, they typically condition the approval on assurances the ADU will actually be used as an independent dwelling unit, and not simply as a bonus room for the single-family dwelling. They might be especially skeptical of the application seen on July 7 because of the highly disproportionate size of the proposed units compared to the two units there now. Item IV. CLOSED SESSION B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS The agenda announcement suggests there are negotiations between the City and the Orange County YMCA about 700 Dover Drive," and the Council will be meeting privately to provide instruction "regarding price and terms of payment." The City's GIS mapping identifies 700 Dover Drive as the whole of Upper Castaways Park (minus the City -owned portion of the connected parking lot to its north). It seems unlikely the City is considering selling or leasing the entirety of Upper Castaways Park to the YMCA. What is it considering? It would seem that could be revealed without compromising the City's ability to negotiate price and terms of payment. July 26, 2022, City Council agenda comments - Jim Mosher Page 2 of 10 Item Xlll. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) I would again note that I believe the listing of this as a "Non -Discussion Item" is misleading, especially since Council Policy A-1, as revised last year, now lists it as "Matters which Council Members have asked to be placed on a Future Agenda (non -discussion item — Council Members may ask clarifying questions)." It is difficult to guess what distinguishes clarifying questions and answers from discussion. Moreover, the history of the item was to provide Council members a formal opportunity to discuss whether a topic was worth having staff take the time to prepare a report about, before asking staff to do so. It is hard to see how that discussion can take place, or an informed decision be made, when it is listed as a non -discussion item. Additionally, since this is an agenda item that the Council will take action on, the Brown Act requires the public to be allowed to comment on it. So even though that invitation has not recently been offered, at least the public should be allowed to discuss these future agenda item proposals prior to the Council's votes on them. That said, under this heading at the present meeting it looks like the Council will be asked whether staff should be directed to bring back two closely related proposals to create subcommittees to consider simplifying the City's codes and policies: one proposal under which the Council would appoint a committee to recommend simplifying revisions, and the other under which various boards and commissions would be asked to do the same. As to the second proposal, it is not entirely clear why various boards, commissions and committees have been omitted from the exercise: the Building and Fire Board of Appeals, the Civil Service Board, the Aviation Committee, the Finance Committee, the Water Quality/Coastal Tidelands Committee, the moribund -seeming Newport Coast Advisory Committee and possibly the even -more -moribund Environmental Quality Affairs Committee. It might be noted a similar, but staff -level, effort to remove deadwood from the Municipal Code (and also to update outdated provisions) was initiated about a decade ago, but not a great deal came of it (see Item 16 from February 26, 2013, introducing Ordinance No. 2013-7, and Item 4 from May 14, 2013, introducing Ordinance No. 2013-11). One of the marquee accomplishments was repeal of what was regarded as an unnecessary requirement to obtain a permit to hold a going out of business sale. It might also be noted that regarding City Council Policies, as part of the massive revision to them approved as Item 18 on the August 8, 2018, agenda, the former Policy D-3, which called for an annual review of the Council policies, was repealed. Those earlier efforts differ a little from what seems to be contemplated here, for they could potentially have included updates and additions, whereas the proposed focus seems to be exclusively on reducing length. In connection with that goal, it was a bit amusing to see the present Council agenda announcing this proposal to reduce the length of the code posted at 4:00 p.m. on July 21, when at 6:30 p.m. on the same day, the Planning Commission, as Item 4 on their agenda, was set to consider a July 26, 2022, City Council agenda comments - Jim Mosher Page 3 of 10 150-page staff proposal (their Item 4) recommending greatly lengthening the code. See comments on the present Item 10 (Planning Commission Agenda for the July 21, 2022 Meeting), below. Item 1. Minutes for the July 12, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c*r�r,**out underline format. The page number are intended to refer to Volume 65. However, the approved minutes of the June 28, 2022, meeting cover pages 335 through 349. The present draft begins, again, on "Page 335," which appears to be a mistake. Page "335," Item SS4, paragraph 2: "Council Member Dixon thanked staff for the presentation, acknowledged the City's current policy, referenced a complaint by one merchant in Balboa Village who was displeased with the suspension of business during filming, relayed an interest in mGdWying modifications on the margins of the current regulations, suggested a 7:00 p.m. end time and consideration during the holidays and summer months, and supported filming with consideration for the impact to businesses and residents." [See video at 21:58.] Page "337," Item XII, Dixon, bullet 1: "Attended the July Fourth Peninsula parade, and Southern California Association of Governments (SCAG) Regional Council monthly meeting a-nd. At her invitation, Community Development Director Jurjis discussed the Senate Bill 197 Housing Element rezoning deadline extension to February 2025, as well as the Housing Element certification and adoption by October 2022" [This should at least be two sentences.] Page "341," full paragraph 3: "In response to Council Member Brenner's questions, Senior Planner Zdeba clarified air space subdivisions of duplexes into condos in Corona del Mar and dated they are prohibited under the ordinance. Community Development Director Jurjis added that lot splits for SB 9 projects cannot include condos and must be detached dwelling units." [The draft minutes make it appear Mr. Zdeba said the ordinance would prohibit air space subdivisions in Corona del Mar. That was not his intent. He was, instead, attempting to say what Director Jurjis stated in the second sentence. See video at 1:20:30.] Item 3. Ordinance No. 2022-17: Code Amendments Related to Implementation of Senate Bill 9 (PA2021-277) See comments on Item XIII, above, and Item 10, below: if the Council wishes to reduce the volume of our municipal codes, couldn't this item, which is largely a restatement of state law, be reduced to a reference to that law and a statement of the few areas in which our City differs from it? Attempting to read the proposed ordinance, which I have not previously reviewed, I notice: The sentences labeled "b." and "c." at the top of page 3-14 do not fit grammatically with the phrase they are said to complete. Comparing to the text of SB 9, it appears they were intended to be indented and labeled "iii." and "iv." with the subsequent sentences renumbered "b." through "f." July 26, 2022, City Council agenda comments - Jim Mosher Page 4 of 10 2. In paragraph "F." on page 3-14, line 2, "make" should be "makes." 3. The statement seems odd in Section 19.90.040 (page 3-15) that development on both lots subsequent to a split has to adhere to ADU standards. An existing home cannot be replaced? This seems to be contradicted by provisions "d.ii." and "e.F on page 3-21. 4. Section 20.48.205 (page 3-18) opens with a sunset clause in the event the related SIB 9 sections of state law are repealed. Why do the other NBMC sections being amended not have a similar provision? 5. Sentence 1." near the bottom of page 3-18 should end with an " or" like "ii." does — and the preceding sentence "b." should probably say "... of any of the following ..." All of these should probably read "A dwelling unit..." rather than "Dwelling unit..." 6. In sentence "i." on page 3-19, it is not clear why "Either" is used with "or," as a prohibited property might be both things listed. 7. In sentence "ix." on page 3-20, ending with "and/or" is redundant since the list began "that is any of the following." 8. In section 'T" on page 3-20, it is not clear the City has authority to prohibit SB 9 activity in the Coastal Zone pending further Council action. 9. Provision "f.i" on page 3-22 seems subjective, and hence discretionary. 10. Paragraph "5." on page 3-23 seems to say all the normal zoning standards apply even though elsewhere it appears there are multiple exceptions to that rule. I have not had time to read pages 3-24 through 3-27 prior to the 5:00 p.m. due time for written comments, nor to assess the extent to which this proposed ordinance correctly implements and is allowed by SIB 9. Item 6. Approval of Professional Services Agreement with Michael Baker International for Balboa Island Street and Drainage Improvements (Project No. 22R13) Recommendation "b)" seems a little misleading since those reading "authorize staff to engage with M81 for Tasks 1 (Project Management) and 2 (Preliminary Engineering) of the services to be provided for a total amount of $195,000" might assume $195,000 is the total anticipated cost of performing Task 1 and 2. Yet, as obliquely acknowledged on page 6-3, the contract the Council is being asked to approve is (per page 6-6) for a not to exceed amount of $1,081,297. As best I can tell, the $195,000 limitation appears only in Recommendation "b)". It does not seem to be part of the contract, nor does the proposed agreement with the contractor appear to describe what they are expected to deliver for $195,000. Shouldn't it, so that at least the Council knows what it is approving? July 26, 2022, City Council agenda comments - Jim Mosher Page 5 of 10 Item 9. Five -Year Licensing and Support Agreement with Tyler Technologies Inc. for the Tyler Munis Enterprise Resource Planning System It is good to see the City normalizing this fairly expensive relationship with Tyler Technologies. With regard to Recommendation "c)," asking the Council to "Retroactively approve purchase orders executed with Tyler Technologies over the prior four fiscal years," the Council should be aware of the general prohibition against local governments offering compensation for prior work performed without benefit of a contract (California Constitution, Article XI, Sec. 10(a)). It appears to be staff's position that Tyler Technologies did have a valid contract, but that the bills submitted exceed staff's signing authority. As to the proposed new contract, it is unclear to me why it says in the opening paragraph (page 9-4 of the staff report) that it "is made and entered into as of this 24th day of June, 2022" (a date repeated in the body). Since the Council has not yet approved it, how could it be entered into prior to its approval? Is it, too, intended to be retroactive? If so, is it raising the rates previously agreed to for what at time of the new signing will have been past work already performed between June 24 and July 26 — something that would seem problematic given the Constitutional prohibition against such increases. Item 10. Planning Commission Agenda for the July 21, 2022 Meeting The Planning Commission meeting included two items that seem particularly relevant to the current Council agenda. First, as mentioned in my comments to the Council's Item SS 2, above, as Item 3 the Commission considered an application to construct a new single-family residence in the VIE Special Flood Hazard Area. Staff told the Commission that it would be inequitable to deny the requested variances to the existing code and that code amendments in the pipeline (presumably the subject of Item SS 2) would allow similar projects to proceed without variances in the future. Second, as alluded to in my comments on the Council's Item XIII, above, the Planning Commission endorsed a staff recommendation to amend the City's Density Bonus Code. Our present Density Bonus Code, NBMC Ch. 20.32, is already rather long, some 3,200 words, or 8 pages, and very out of date. Since it was adopted in 2010, many changes having been imposed by state law, that are not reflected in it, and continuing changes to state law are expected. When, as Item 3 on the April 14, 2020, agenda, staff asked Council to initiate updates to it, staff noted the difficulty of keeping code like this current and suggested "the City may also consider amending the code to simply maintain a specific approval process for the City and refer to State density bonus law for implementation of the minimum standards and allowances. This would eliminate the need for future amendments if State law subsequently changes." July 26, 2022, City Council agenda comments - Jim Mosher Page 6 of 10 That is an approach that has been adopted by at least some other cities. See, for example, the exhibits presented for approval to the Coastal Commission by Encinitas (Th17d-2-2018, 3,300 words), San Luis Obispo County (Th 1 8a-7-2021 — less than 1,700 words) and Carlsbad (Th13c- 2-2022 — 3,700 words, replacing a much longer earlier proposal). Instead of adopting this streamlined approach which it had itself previously suggested, staff is now proposing to replace the present 3,200 words of the City's outdated Density Bonus Code with a roughly 8,400-word restatement of the current 11,100-word state code; and not only that, but to add two nearly identical copies of this restatement, one in the Zoning Code and one in the Local Coastal Program Implementation Plan — thus increasing the length of the NBMC by about 2x8,400-3,200 = 13,600 words, or about 36 pages. Not only does this fly in the face of a possible future Council directive to reduce the volume of City codes, but attempting to restate the state's code seems a bad idea to me. That is because the restatement will inevitably include passages that could be interpreted differently from the state law. But, as the staff report indicates, locally adopted variations can only be more generous than the state code, not less. So, any misstatement that seems less generous than state law will be held invalid, while any misstatement whose clear reading is more generous will become the law in Newport Beach, even if the Council didn't intend to be more generous. And keeping the restatements in the City code aligned with changes to the state code will create a maintenance nightmare: it is already expected that as a result of pending, but not yet adopted, state legislation, changes to what the Planning Commission saw may be needed before the many pages of proposed new City code are presented to the Council for adoption in September. Item 11. Tourism Business Improvement District (TBID) Annual Report and Fiscal Year 2022-23 Budget As I have noted in prior years, the TBID appears to duplicate and augment, for the benefit of the participating hotels, their private group sales marketing efforts. It seems to me a strange enterprise for the government to be involved in, and the only reason I can think of it allows those marketing expenses to be tacked rather surreptitiously on the bills of other guests, identified as a governmental tax. And since the government is involved, it bothers me that to secure bookings, Visit Newport Beach offers personal paybacks to the agents who book their clients with them, something that would not likely be allowed in a government contracting setting. Item 12. Visit Newport Beach, Inc. FY 2023 and FY 2024 Destination Business Plan and Budget, and FY 2022 Performance Standards Report It has never been clear to me why my city government is spending tax dollars promoting tourism, rather than leaving the tourism industry to promote itself as all other business sectors seem to have to do. July 26, 2022, City Council agenda comments - Jim Mosher Page 7 of 10 That said, it is nice to see staff's very brief explanation of these reports. It would have been even nicer to see a candid analysis from the Council's appointed representative on the VNB Executive Committee. Does the City ever hear from her? I believe some of the Council members have themselves noted that an increasing share of the tax revenue diverted to VNB is generated by short-term lodging rentals. It is not clear from anything provided what VNB is doing to promote them, specifically — or if the City even wants VNB to promote them. However, if VNB were to promote hotels over STL's, that would seem extremely inequitable since they have an equal obligation to pay in, and the two are, in a sense, in competition with each other. As to the materials presented, Attachment C (Visit Newport Beach, Inc. Leisure Marketing (TOT) FY 2022 Performance Standards Report), starting on page 12-70, strikes me as a PowerPoint presented without the words one would need to understand the slides. I have no idea, for example, if on page 12-80, 152,609 (and growing!) "Total Leisure Room Nights Booked," against a goal of 30,000, includes STL rentals, is all rooms booked or only the extra rooms booked as a result of some campaign conducted by VNB, or what the goal was based on. Judging from the preceding slide (on page 12-79) this is referring to the statement that "Steering most of its marketing dollars into advertising in these drive markets paid off in dividends for our hotels and the City of Newport Beach."' But dividing by 365 days in a year, the 30,000 goal would appear to represent an average 82 overnight leisure visitors per day. Even if that is only extra leisure visitors as a result of the campaign, it seems low for all of Newport Beach. How does it compare to the number that would have been expected without the campaign? Likewise, dividing the "Total Economic Impact" by the "Leisure Room Nights Booked," I get an average impact of $116.64 per (extra?) leisure room night. Doesn't that seem small, suggesting either the numbers are wrong or the results of the campaign were rather marginal? Regarding the budget (page 12-76), note the "Advertising Expense" related to the Christmas Boat Parade. I do not see any offsetting income under "Operating Revenue." So, it appears that in addition to the grant the City publicly awards to the Chamber of Commerce for this event, additional tax money, with much less visibility and over which the City has little control (other than through approval of this budget), is going to the same event (see page 12-64). Also, why does this budget (page 12-77) have a large (nearly $3 million) unitemized "NB&Company Fees" expense, whereas the TBID budget (page 11-8 through 11-10) appears to have none? The reference to "our hotels" suggests the campaign was not intended to market STL rentals. July 26, 2022, City Council agenda comments - Jim Mosher Page 8 of 10 Item 13. Resolution Nos. 2022-49 and 2022-50: Collection of Certain Sewer and Recycling Fees and Charges Through the Property Tax Roll Since a long list of Assessor's Parcel Numbers is difficult to visualize, it would have been helpful to provide a map of the areas this proposal would affect. It apparently affects properties that receive City sewer or residential trash service, but not City water. Since the sewer service this item considers is overseen by the City's Utilities Department, it is a bit odd that the Finance Department doesn't regard it as a utility. It also seems odd to me that it does not I also find it odd that the Finance Department does not regard trash collection as "service from the City that can be disconnected for nonpayment." Can't trash pick-up be stopped as easily as turning off a water supply? And am I the only one who finds it strange the lists of APN's attached as "Exhibit A" to each resolution are sorted in reverse order, but even then, not completely sorted (with reverse -sorted sections appearing in bunches without apparent rhyme or reason)? Was it intended that these exhibits be called out by that label in the resolutions? And since they are apparently the annual Sewer Fee and Recycling Fee Reports being adopted by the Council for some period via the resolutions, should they be more clearly labeled as to what billing period they are intended to cover? As to the Recycling Fee Report, I have previously, and repeatedly, expressed my reasons for believing this cannot be lawfully charged as given the voter -enacted ordinance requiring the City to provide free curbside trash disposal to most residences, and even if it could be charged, the amount being assessed has not been correctly calculated.' Item 14. Resolution No. 2022-51: Amending City Council Policy A-2 Relating to the Process for Appointment to a Board or Commission It is good to see this being presented as a discussion item, since under July 12's Item XIII, only a bare majority, four, of the Council voted for it to be brought back at all (see current Item 1, draft minutes, on page "338"). The purpose of such votes' is presumably to decide if it is worth asking staff to take the time to prepare a report on the issue (which inevitably involves some cost). 2 See, most recently, my comments on Item 20 at the January 11 meeting 3 Anaheim recently abandoned its relatively short-lived requirement for multiple council members to support a future item agenda request, ostensibly put in place to prevent waste of staff resources on proposals that are almost certain to be rejected, but now seen as having been used to suppress public discussion of the proposed Angels Stadium sale. I have seen agenda -setting policies from other cities that adopt a hybrid approach in which a single council member can themselves, without using staff July 26, 2022, City Council agenda comments - Jim Mosher Page 9 of 10 Typically, the report will present staff's professional opinion of the pros and cons of possible actions the Council might take, including alternatives, and possibly survey similar policies in other cities. In the present case, without any analysis, the Clerk simply proposes' to insert the July 12 future topic description, verbatim, into the existing policy. That July 12 future topic description was: "To ensure diversity of opinions and to avoid the appearance of a conflict, consider adopting a resolution amending City Council Policy A-2, Boards, Commissions, & Committees, to discourage the appointment of a person to a Permanent Board or Commission where: (1) the person supervises or is supervised by another member of the Permanent Board or Commission; or (2) the person is a member of the same household as another member of the Permanent Board or Commission." The only detectable changes, made without explanation are: 1. A seemingly superfluous opening phrase ("In determining whom to appoint to a Board or Commission,") is proposed. I believe it could be omitted without altering the meaning in any way I can detect. 2. The part of the July 12 statement of purpose about "To ensure diversity of opinions" is proposed to be included, but "to avoid the appearance of a conflict' has been omitted. 3. "in their professional capacity' has been inserted before the parts about supervision. 4. "Permanent' has been deleted as a qualifier to "Board or Commission," apparently under the assumption that all Boards and Commissions are appointed by the Council are permanent (although that may not be true). 5. "family' has been substituted for "household.115 Since there was no discussion on July 12, rather than taking or leaving staff's policy proposal, it would seem wise to me for a majority of the Council to decide what it wants to do, and then instruct staff to come back at a later meeting with proposed policy language it believes implements it. resources, write a report to be placed on the agenda for a discussion the result of which will be a decision as to whether to request a more complete professional analysis from staff. ' The last part of the redline at the top of page 14-7 is not entirely accurate. In the last sentence, it shows a number of words as proposed to be changed that are not actually changed. A sentence reading "The City Council prefers that members of Boards, Commissions, and Committees represent different geographical areas of the City, but residence is a consideration only when applicants are otherwise equally qualified' is already part of the existing Policy A-2, and has been part of it since the August 12, 1996, revision (albeit, originally without mention of "Committees"). The only part of this sentence proposed to be altered is "The" being changed to "Also, the." 5 "family' seems a less well defined term to me July 26, 2022, City Council agenda comments - Jim Mosher Page 10 of 10 Among the discussion topics I would think are needed to arrive at that policy language: 1. Is it the Council's wish to merely "discourage" such appointments or to prohibit them? a. In the latter case, being in these categories would, like being termed out or on another standing body, normally be disqualifying. So, a policy waiver would be needed whenever such an appointment is made. b. In the former case, it is unclear what a directive to "discourage" mean. Does it mean people in these categories are discouraged from applying, but if they do they might be appointed? How would they know this? Or does it mean Council members are discouraged from appointing such people, but can do so if they wish? 2. Whatever the policy means, if the change is adopted, is the Clerk proposing to add questions to the application form asking applicants if they fall in any of these categories? 3. Why is this policy proposed to apply only to boards and commissions, and not to Council -appointed committees (some of which are equally "permanent")? 4. Should it address the broader problem of similar relationships between potential appointees and the Council members appointing them? 5. Should the remainder of Policy A-2 be reviewed?