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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 10, 2023 Written Comments January 10, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher[a@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item XIII. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) I think the Council should reconsider its present cumbersome way of placing items of interest to individual Council members on the agenda for discussion by the full Council. The "rule of three" Newport Beach has adopted (where the concurrence of three members is needed to put an item on the agenda) was recently adopted and promptly discredited in Anaheim, where it was used to block a minority of members wanting public discussion of the Angel Stadium deal. The original idea of this, dating from around 2013, was that City staff should not be burdened with having to prepare a report and presentation on a matter that a significant part of the Council had no interest in discussing (or have political reasons for not wanting to take a position on). But I have reviewed these "A-1" agenda item requests from the Council' 2022 meeting minutes. I found about 20 of them, not a single one of which failed to receive the three votes necessary to put staff to work investigating the matter. So unless one assumes that high rate of success results from Council members not making an A-1 item request without knowing they have two additional votes, that would seem to mean these votes are a pointless exercise generating nothing but delay. And if one assumes the requesting Council members know they have two other votes, that might mean they asked three or more of the other members, which would violate the Brown Act. Either way it seems a bad idea, and contrary to the practice of all the City's boards, commissions and committees, where the agendas end with an opportunity for members to request future agenda items (and which do not require anyone else's concurrence). To avoid the problem of overburdening staff with non -starter requests, I have seen other cities' council rules of procedure in which individual council members are invited to themselves prepare their own report regarding an item of interest to them. Their report is then agendized for discussion by the full council, the outcome of which can be to direct their city's professional staff to investigate it further, or not. That seems a far better system to me Item 1. Minutes for the December 13, 2022 City Council Meeting I have no corrections to the draft minutes to suggest, but I do have one comment. Page 459, paragraph after Item 8 listing: "Regarding Item 8, Mayor Muldoon recused himself due to potential business interest conflicts, Mayor Pro Tem Blom recused himself due to real property interest conflicts, and City Clerk Brown recused herself due to real property interest conflicts." January 10, 2023, City Council agenda comments - Jim Mosher Page 2 of 6 Comment: The video confirms the minutes accurately reflect the conflict of interest statements made orally at the December 13 meeting. However, as I noted on page 2 of my written comments submitted prior to the meeting, such cryptic recusals do not meet the requirements set forth starting at the bottom of page 18 of the FPPC's May 2022 publication entitled An Overview of Conflicts of Interest Under the Political Reform Act. The public is supposed to be able to understand, without further inquiry, the specific nature of the conflict — not just its general category -- from what the conflicted official says. In particular, the announcement of a conflict due to a real property interest is required to include identification of "the property's address, assessor's number, or identification that the property is the official's personal residence." A recusals due to a business interest is required to include "the name of the business, a general description of its activities, and any position held by the official." These directions are not mere guidance, but state law (albeit, in part administrative regulations implementing Section 87105 of the Political Reform Act). They are specifically found in 2 CCR 18707 ("Disqualification Requirements"). Item 3. Resolution No. 2023-1: Updating the List of Designated Employees for 2023 Under the City's Conflict of Interest Code See comment under Item 1, above. The "GC §87200" employees (Council members, Planning Commissioners, City Manager, City Attorney and Finance Director/City Treasurer) appear to need better instruction on the requirements for stating their conflicts when required to do so at a public meeting. 2. 1 am able to find only two proposed changes in the Attachment B redline of Exhibit 1: a. Changing "Assistant" City Clerk to "Deputy" City Clerk. b. Inserting "IT Manager" as a Disclosure Category 2 employee. c. Adding 'A" to the Disclosure Categories for Real Property Administrator. With regard to (a), the City's system of naming employee positions is confusing. In the City Manager and City Attorney offices, "Assistant" designates a higher position than "Deputy," while in most other departments it appears Assistants are lower than Deputy Directors. With regard to (c), I don't understand the reason for adding the 'A." While it is true the Real Property Administrator makes "decisions that may affect real property interests," the Real Property Administrator is already in Disclosure Category 1," which provides all the disclosure requirements as "4" and more. No other Category 1 employee has an additional category appended to it. Why would the Real Property Administrator be different? January 10, 2023, City Council agenda comments - Jim Mosher Page 3 of 6 Item 6. City Bridge Deck Maintenance (Project No. 21R13) - Notice of Completion for Contract No. 7679-2 According to the staff report this contract was completed at less than the originally agreed to price because part of the work (Balboa Island Bridge joint repairs) was removed from the contract's scope. But the report does not disclose what the contracted price was for the remaining work actually performed As a result it is not possible to tell if the $242,053.29 completion cost was above or below contract for that lesser amount of work. Item 9. Approval of Professional Services Agreement with COAR Design Group (Contract No. 8865-1) for Balboa Branch Library and Fire Station No. 1 Replacement Project (Project No. 23F12) Staff appears to be suggesting the Council's approval of this contract will put it on a path to replicate the City's success in combining a library and fire station in Corona del Mar. That prior involved extensive public participation in the design. It is, therefore, disturbing that although the Abstract to the staff report assures the Council they will be contracting "with COAR Design Group (COAR) to conduct public outreach," the only items I can find related to public outreach in the Scope of Services are that their "3D modeling tools will assist in providing communication tools to be used at public forums and presentations" and that "Consultant shall seek Parks, Beaches and Recreation Commission and Library Trustees approval prior to presenting the concept design to City Council." It therefore appears to me that despite what the Abstract says, COAR will not itself be agreeing to conduct the public outreach, but only to provide materials for use in it, and to react to the results of it. As to the prior process, considerable thought went into the selection of WLC Architects (now apparently PBK) based on their experience designing both fire stations and libraries (see Item 19 from March 24, 2015), and there was extensive public interaction on the design (see Item 23 from November 24, 2015) at many of which I seem to recall the architect, Kelley Needham, was present (even though that responsibility may not be evident from WLC's Scope of Services, either). For the last year or more, I have been unable to attend most of the Board of Library Trustees meetings because the City has been holding its Aviation Committee meetings on the same day at the same hour. So, I know of their proceedings primarily through their minutes. To be fair the COAR website suggests experience similar to WLC (PBK) in both fire station and library design. But unlike the 2015 staff report, the present one does not indicate if anyone from Library Services, let alone the Board of Library Trustees, was part of the "4-member panel" that evaluated the RFP's and rated COAR over PBK. While that is possible, or perhaps even likely, it doesn't say. January 10, 2023, City Council agenda comments - Jim Mosher Page 4 of 6 And while the BLT has a Balboa Branch Replacement subcommittee, my impression is the BLT was not closely involved in the recommendation of COAR and is quite uncertain as to how the ultimate design will be arrived at. This is also quite different from the more recent, and even more open, design process for the Library Lecture Hall, where the Library Lecture Hall Design Committee publicly interviewed architects prior to selecting one. An additional very significant difference is that there was a small, but very vocal Friends of the CdM Library behind the 2015 process, and the Library Lecture Hall had the Library Foundation very active in overseeing it. I am not aware of a comparable group here, even though this is a more remote area, arguably even more benefited than CdM by good independent library access. One hopes for the best and that COAR does not deliver a project there will later be regrets about. Item 10. Approval of Professional Services Agreement with Glenn Lukos Associates, Inc. (Contract No. 8020-9) for the Superior Avenue Pedestrian/Bicycle Bridge and Parking Lot Project (Project No. 15T09) I have to question staff's logic that a firm hired by the City to prepare a plan of action should automatically be awarded the contract to implement it. In this case, Glenn Lukos Associates is also the City's contractor for our Western Snowy Plover Management Plan (see, most recently, contract C-7619-2) a project mired in years of stumbles and delays that may finally go to the Coastal Commission in February. Although the work may be specialized, doesn't the City have experience with other entities doing coastal restoration in Buck Gully and around the Upper Bay? Shouldn't they have at least been invited to bid to see if they could have performed the same services at lower cost? In addition, although presented as a "professional services"Pconsulting" agreement it appears to include the actual restoration of 9,300 square feet of habitat by sub -contractors who GLA is expected to enter into subcontracts with (per page 10-17 of the Agreement). The staff report does not make clear if these construction costs are part of the "consulting" fee proposed to be paid to GLA, or if the City will be paying for them separately. If they are part of the GLA fee, it would be good to know that part of the total they entail. In any event, it raises even more questions as to why that work would not be put out to public bid as construction work normally is. January 10, 2023, City Council agenda comments - Jim Mosher Page 5 of 6 Item 11. Planning Commission Agenda for the January 5, 2023 Meeting The Planning Commission Action Report is missing a report on the outcome of Agenda Item 7 ("Fractional Homeownership Code Amendment (PA2022-0202)"). The outcome was that despite Council direction to produce a recommendation by January 5, the Commission was told' its subcommittee had reached no conclusion, and that the same report of no progress would be submitted to the Council at its January 24 meeting. It is not clear why the report to the Council would be delayed until then, and it seems telling no action was taken to repopulate the subcommittee after one of its members was elected to the City Council. Item 12. Annual Mayor Appointments It is good to see, as we do each year, that the Mayor's suggested appointments require confirmation by a majority of the full Council. This reinforces the understanding that a Mayor under the Newport Beach City Charter occupies a ceremonial position, not one with independent authority. As to the recommended appointments themselves, the Council may wish to know that the idea of appointing Council members to chair citizens committees, such as EQAC or the Water Quality/Coastal Tidelands Committee is a relatively recent idea, and contrary to the City Charter's expectation (in Article VII) of a Council seeking independent recommendations from boards and commissions on which sitting Council members (and any other paid City employees) are explicitly prohibited from serving. The rationale for the Council making these appointments is further blurred by the listing in the present report of the Aviation Committee as our sole Category II ("City Council/Citizens Committee), while those in Category III are listed as "Citizens Advisory Committees" with no suggestion they would have Council members on them, let alone as their chairs. Although arguments can be made either way, I think the City would be better served if its Council received truly independent advice, as the Charter contemplates. I believe the Council would be well advised to review the enabling resolutions and remove the references to Council members on them, and rely, instead, on reports from the committees to the full Council. ' This link to the PC Item 7 staff report is from a saved copy of the agenda. It is not currently accessible from the City's website because the January 5 PC agenda materials have been erased from the Legistar/Granicus site, but not yet posted to Laserfiche. January 10, 2023, City Council agenda comments - Jim Mosher Page 6 of 6 Item 13. Ordinance No. 2023-1 and Resolution Nos. 2023-4 and 2023-5: General Plan Amendment to Increase the Development Limit for Bay Island Reading the staff report more carefully than I did when this was before the Planning Commission, it seems clear "23" was an error in the approved number of residences, but it is less clear "25" is correct. The difference hinges on the intent for the "Caretaker Residence" area mentioned in Resolution No. 2004-23 and illustrated on what was apparently the exhibit to it, presented on page 13-70 of the present report. Note 1 to that exhibit clearly indicates the plan was for 24 single family residences on sites 1 through 22, 25 and 26. Without any clarifying note, the map also shows a central square labeled "Caretaker Residence" Of these Section 1.5.3 ("Land Use") of Resolution No. 2004-23 says only: "Each site designated on the map of Bay Island shall permit the construction of only one single family unit. The existing caretaker's residence and the tennis court are permitted as accessory uses to the single family units." What is not obvious is whether the "existing caretaker's residence" was actually a dwelling unit at the time the plan was considered and approved for use as one continuing into the future, or if it was a "residence" in name only, and, as we were told it is today at the Planning Commission meeting (see minutes on page 13-38), actually a non-residential clubhouse structure located in the central open space corridor -- as it seems to have been interpreted in the 2006 General Plan and 2010 Zoning. If "caretaker's residence" has, for a long time, been the name for a clubhouse rather than a residence, then the present proposal is adding one dwelling unit to the 24 previously understood to have been approved with UP3618 (and reducing the planned open- space/common area). The staff report also does not explain why the proposed ordinance and resolutions say UP3618 was approved on November 24, 1997, when the document showing the Council's approval via Resolution No. 2004-23 is clearly dated March 9, 2004. The Item 20 staff report from the latter date explains the mystery: as the Council minutes from November 24, 1997, record, the original hearing ended in Use Permit No. 3618 being approved "without objection," "by acclamation," but apparently without the formal adoption of any resolution — an oversight not corrected until 2004.