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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 14, 2023 Written Comments March 14, 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 1. Minutes for the February 28, 2023 City Council Meeting The passage shown in italics below is from the draft minutes with suggested corrections shown in str4keeu underline format. The page numbers refer to Volume 65. Page 503, Item XVII, paragraph 2, sentence 1: "Wade Womack, Newport Mooring Association (NMA) Board Member, utilized a slide to discuss moorings in the Harbor, thanked Mayor Blom for advocating before the Board of Supervisors for the new boat slips and public dock at the Balboa Yacht Basin Marina, and noted the history of the moorings and the costs." [Newport Beach has two similarly -named marinas: the Balboa Yacht Basin Marina, which is a City -owned operation at the end of Harbor Island Drive, opposite the north shore of Balboa Island; and the Balboa Marina, with is an Irvine Company -operated facility on the south side of Coast Highway just east of the Upper Bay Bridge and facing Linda Isle. Mr. Womack was speaking about a proposal to expand the Balboa Marina with public docks on partly City -managed and partly County -managed tidelands at the site to the former Reuben E. Lee "paddleboat" barge. The video shows Mr. Womack clearly saying "Balboa Marina." How that got changed to "Balboa Yacht Basin Marina" is a mystery.] Item 3. Resolution No. 2023-15: Reestablishing the Newport Beach City Council Homeless Ad Hoc Committee How does this proposed Council -created committee relate to the staff -created Homelessness Task Force or group that the public has heard exists? Do Council members participate in that? If so, would they be the same members? It is disappointing that the committee the Council established for this same purpose one year ago expired without holding any publicly -noticed meetings or making any recommendation. Is there any reason to expect this new incarnation to be any more productive or transparent? Item 4. Approval of Amendment No. Two to On -Call Maintenance/Repair Services Agreements with Quality Fence Co., Inc. and Red Hawk Services, Inc. What is the "Pirates Cove cage installation" (page 4-2)? I am unable find any such activity listed in the current Capital Improvements Project budget. March 14, 2023, City Council agenda comments - Jim Mosher Page 2 of 8 Item 5. Approval of Uniform and Floor Mat Service Agreement with Prudential Overall Supply and Authorization to Terminate the Current Agreement with Mission Linen Supply It seems ironic that (based on the RFP scoring table on page 5-2) Mission won the contract last year because of expected lower costs than Prudential. Yet, among other problems, the staff report implies they are submitting inflated charges. That said, comparing the schedules of billing rates on pages 5-21 to 5-22 (Prudential) to those on pages 5-46 to 5-47 (Mission) it does appear there was a basis to expect Prudential to be more expensive on many items. Yet the proposed contract is for the same annual amount as with Mission ($50,000). Doesn't this mean either (1) a lesser quantity of service is anticipated from Prudential or (2) the contract with Mission had an unnecessarily large dollar limit? Item 7. Belcourt Park and Bonita Canyon Residential Refuse Collection Service The agenda, under Item XIV, says "All matters listed under CONSENT CALENDAR are considered to be routine." This item being offered on the Consent Calendar does not appear to be at all routine. Indeed, the proposed action, does not even seem to be honestly stated on the agenda, which implies it is a proposal to offer trash collection service to a particular set of residents "provided they are willing" to pay the recycling fee, when in fact it is proposal for the taxpayers of Newport Beach to cover, apparently in perpetuity, the much larger costs those residents are currently paying for the collection service — and without offering similar relief to the City's many other residents who pay for trash collection (namely, all those in areas, other than Newport Coast, annexed into the City since 1996). Especially since staff indicates a completely different path, less costly to taxpayers, is available (namely, requiring those residents' current hauler to obtain a franchise and comply with SB 1383), it is hard to believe staff would think this item so "routine" that there would be unanimity among the Council that the more costly path is the right one. That is, unless they have privately polled the Council members in violation of the Brown Act. The item is especially touchy because it directly benefits the sitting District 4 Council member, who happens to live in neighborhood being offered this special benefit, which some might question as being a possible gift of public funds. I believe there are major inequities in Newport Beach in terms of some residents having to pay for trash service, and others not. But I don't think the solution is to rather arbitrarily (and on the consent calendar!) offer relief to some impacted residents, and not to others. It seems particularly problematic to offer full monetary relief to the residents who have chosen a "bad" (non -AB 1383-compliant) provider (Waste Management), while offering no relief at all to the many residents (in Santa Ana Heights and elsewhere) who use a "good" (AB 1383-compliant) provider (CMSD). This only exacerbates the sense of unequal treatment. March 14, 2023, City Council agenda comments - Jim Mosher Page 3 of 8 As to the staff report, it is good to see staff finally recognize that the free curbside residential trash collection environment in Newport Beach arises from two voter -enacted ordinances (Ordinance No. 878 in 1959 and Ordinance No. 96-46 in 1996, that the Council must follow until modified by the voters),' and it does not arise from "some provision in the City Charter," as they repeatedly told the last City Council. It is, however, still not clear they have read or understand them. In particular, the discussion of Belcourt Park on page 7-2 implies there is some significance to the year in which housing was built. As I read Ordinance No. 96-46, it has nothing to do with when housing was built, but only as to whether the land on which it is built was within the City limits on November 1, 1996 (which the land under Belcourt Park was, and the Bonita Canyon land was not). Similarly, they seem to continue to believe the City's obligation under to cover "The cost and expense of collecting, hauling away and disposing of garbage, refuse and cuttings as those terms are defined by Sections 6.04.010, 6.04. 020 and 6.04.030" does not include an obligation to cover not cover recyclables, allowing a charge to be imposed for disposing of them (but not "trash"). However, if they read the Sections 6.04.010, 6.04. 020 and 6.04.030 referred to in the ordinance, they would discover that "garbage, refuse and cuttings" includes every item that would be regarded as a recyclable today. The recycling fee was imposed (without seeking voter approval) as an alternative to the residents having to source -separate their refuse. Now that the residents are required to do that, there is no justification for the fee. The only justification I've heard staff offer in recent years is that "It's been around a long time and nobody [influential enough?] has complained." Finally, according to the City's Annex By Decade map, the annexation date for Bonita Canyon is February 5, 1998, not the 1997" cited on page 7-2. Item 9. Professional Services Agreement for On -Site Mobile Car Washing and Detailing Services for Police Vehicles This item is requesting a little over $100,000 a year to clean 97 vehicles, or more than $1,000 per vehicle. Given, for example, the possible waste of water this involves, it would have been helpful for the report to indicate how many times a week the police vehicles are washed, so the Council (and public) could consider if it might be excessive. One might also ask: Are other City vehicles washed with the same frequency? And are the rates charged per wash comparable? ' The voter -initiated ordinance in 1959 created a sweeping obligation for the City to pay for trash collection service out of the property taxes collected. The Council -initiated 1996 measure limited that obligation to curbside residential collection. March 14, 2023, City Council agenda comments - Jim Mosher Page 4 of 8 Item 10. Planning Commission Agenda for the March 9, 2023 Meeting Item 2 on the Planning Commission agenda was their consideration and approval, pursuant to City Council Policy L-6, of private encroachments into what the staff report referred to as the "Tustin Avenue parkway." It is not clear under what authority the Council assigned to the Planning Commission the task of reviewing parkway improvements, for under Section 709 of our City Charter the people of Newport Beach have very clearly designated our Parks, Beaches and Recreation Commission as the body with the power and duty to advise the Council "in all matters pertaining to parks, beaches, recreation, parkways and street trees." Section 707 of the charter, setting forth the powers and duties of the Planning Commission, contains no duplicate assignment of authority over parkways, and Subsection (c) limits the Council's ability to assign additional functions to the Planning Commission to ones consistent with the Charter. Moreover, the Charter requires the assignment of new powers must be done by ordinance (not Council policy). I do not believe PB&R has ever advised the Council on the appropriateness of the parkway policies in Policy L-6 or why they should have no role in reviewing proposals for improvements in them. Item 12. Code Update Recommendations Related to Fractional Homeownership (PA2022-0202) Judging from the volume of correspondence received before the agenda had even been posted, I suspect this is an item on which the Council will receive considerable input. Since I will not have seen most of that, it will be difficult for me to avoid duplicating some of it. And while there are serious substantive issues the Council will need to resolve, this has, at least for me, also become an issue of process. Process Issues First, the "Preferred Recommendation" from the Planning Commission, per page 12-4, is for the Council to direct staff to "Broaden the definition of timeshare to include fractional homeownership" so as to effectively prohibit the use in all residential zoning districts, using an approach similar to that other jurisdictions have taken. But this is essentially exactly what the Council already directed the staff to do back on September 27, 2022: see the video at 1:08:15, where, after rejecting the enactment of an immediate moratorium, Council member Will O'Neill tells Council member Diane Dixon they would be voting to direct the Planning Commission to graft something from the St. Helena CA definition of timeshare into ours so it would include (and thereby prohibit) fractional ownership, but not homes shared by family or friends; at 1:11:15, where Community Development Director Jurjis explains to Ms. Dixon he will show the Commission the ambiguities in the current code and ask them what pieces of the St. Helena code need to be worked into it to fix them; and at 1:23:45, where Mr. Jurjis shortens the anticipated timeframe he had given her earlier, March 14, 2023, City Council agenda comments - Jim Mosher Page 5 of 8 promising it's simple enough he can go to the Commission on October 6 and be back to the Council with a draft ordinance incorporating the St. Helena timeshare definition by "the first or second meeting" in November. So with such clear direction and promise as to what to do, why has our Planning Commission spent five months privately pursuing (and apparently reluctantly, based on Commissioner comments) an "Alternative Recommendation," seemingly based on a draft ordinance submitted by Pacaso (the present Attachment A)? Second, if that were not enough of a process -related problem, page 12-3 of the present staff report says the secretive Planning Commission committee "concluded its efforts" on February 14, 2023, and publicly presented its recommendations to the full Planning Commission on "February 24." It was actually February 23, as is evident from the attachments; but what is not evident is that prior to the meeting the public (and presumably the other Commissioners) were given no inkling of what the subcommittee recommendation might be. The Council members may notice there is no copy of the February 23 Planning Commission staff report in the present packet. For there was none. All the public (and presumably the other Commissioners) had to go by was an online notice (not reproduced in the current packet) that "Staff will give a presentation to the Commission.,, Even at the meeting, the public was kept completely in the dark about the "Draft Ordinance Submitted by Pacaso" (the present Attachment A) and saw only the unveiling of the slides appearing in the present packet as Attachment B (and mislabeled "February 23, 2023 Planning Commission and Ad Hoc Committee Recommendations" even though they are not the "February 23, 2023 Planning Commission Recommendations," but only the "Ad Hoc Committee Recommendations"). The absence of any advance knowledge of what, after five months, might be recommended by the Planning Commission made it virtually impossible for non -subcommittee members to comment intelligently on any specific recommendation on February 23. That is clearly not good public process on engagement. Substance Issues One of the many things that bothers me about this is the repeated claims by City staff and some Council members that this is a "very/extremely" "complicated/complex" issue. What bothers me about this is that while, like any issue, it can be made complicated, other cities have not found it saw. As indicated in the Sagecrest review commissioned by the City and presented to the prior Council at its September 13, 2022, study session, in many cities staff has simply issued cease and desist orders to Pacaso-like operations for violations of their existing timeshare prohibitions. Some that lacked clear existing prohibitions adopted moratoria or emergency ordinances. Most recently, last week, on March 7, the City of Carmel by the Sea City Council completed the second reading of their ordinance affirming that Pacaso-type operations fall within the ambit of their existing citywide timeshare prohibition and additionally making it illegal to advertise such March 14, 2023, City Council agenda comments - Jim Mosher Page 6 of 8 investment opportunities in Carmel by the Sea, much as Newport Beach can go after those advertising unpermitted short term lodgings. Carmel by the Sea did not find this complicated or controversial. And last Thursday, March 9, the Planning Commission in Beverly Hills completed their review and recommendation to the City Council of an ordinance to make permanent the temporary prohibition the Council had enacted by "interim ordinance" on July 15, 2021. Beverly Hills, which had previously prohibited only short term rentals, did not find this complicated or controversial. They recognized that what distinguishes these operations is not the ownership model, but rather the legal restriction to exclusive use of the property for brief periods, creating to a distinctively transient use. Their Planning Commission did, however, as their Council had before them, recognize the possibility of exceptions to the rule, such as a divorced couple continuing to share a home but legally barred from being present at the same time, and made provision for that (in terms of a mechanism to appeal the notice of violation). Legal Issues At its September 27, 2022, meeting, some of our Council members expressed fears of being sued by Pacaso, as the City of St. Helena was, as well as warning about the need for caution in light of the costly legal entanglements the City got into in attempting to stem the proliferation of residential care facilities. Some of our Planning Commissioners echoed those concerns when they received the directions from the Council at a special meeting on October 6, 2022, with "Option A" — following the Council's direction to broaden the timeshare definition — being downplayed by City staff over this concern about litigation. I believe these fears are unfounded. Although formal resolution is apparently still a long way off, the Pacaso case against St. Helena seems a very weak one. Pacaso's lengthy initial complaint is reproduced as Appendix O of Newport's Sagecrest report as well as under Sample Documents on the Stop Pacaso Now website. Although filed in federal court, the very lengthy document seems to be almost entirely based on the state and local law challenges detailed in a July 14, 2020, report by a former St. Helena City Attorney to their City Council. The only federal issue I can find raised is a vague claim of being denied equal protection under the 14' Amendment to the U.S. Constitution. As to the former City Attorney's report, it does not, as Pacaso implies, say that St. Helena cannot prohibit Pacaso, but rather that they need to be careful to regulate how the property is being used, not who owns it. The report recognizes the difficulty of city officials being sure how a property is being used, but implies the Pacaso-type operation can be distinguished from family or friends sharing ownership and use of a property, which it sees as `joint ownership scenarios that do not necessarily trigger the same concerns as commercial transient uses or that do not qualify as a prohibited timeshare under the City' s ordinance". March 14, 2023, City Council agenda comments - Jim Mosher Page 7 of 8 "For example, multiple members of an extended family may all wish to purchase a residence together. The family members may not all necessarily live in the home together at the same time, but they also did not set up an arrangement where they each have a timeshare interval. While this residence may be owned by multiple people who each do not choose to live in the residence, the joint or partial ownership of the residence would not be considered a timeshare as each family member could have equal access to the residence (as opposed to purchasing a limited amount of time). These challenges do not necessarily preclude regulating or prohibiting timeshare uses but should be considered in determining whether additional or amended regulations are desired." As to the difficulties Newport Beach got into on its path to regulating residential care facilities, over which it was also sued in federal court, the problem was that the residents of those facilities are a federally -protected class of disabled persons and the City was accused of running afoul of definite federal fair housing laws. But cities have long been recognized as having a right to regulate land uses, and here, by contrast, Pacaso, in its complaint alleging "discrimination" by the City of St. Helena, is unable to cite any specific federal law that city might be violating. In all of this it should be recognized that the same words and phrases can have different meanings in different contexts. "Timeshare" and "Fractional ownership" are two of those, and Pacaso is using that to create a fog of confusion. "Timeshare" can be used, loosely, to describe a whole property or development. Or it can be used to describe a particular kind of use that can occur within many different kinds of properties, with many different possible kinds of ownership. "Fractional ownership" can mean the Pacaso model. Or it can mean an investment property owned by many individuals who lease or rent it to others, with the owners never having any intention (or even special right) to occupy or use it themselves. Pacaso says they are not a "timeshare" because their "fractional owners" buy units of the land, while "timeshare" owners buy units of time. But, in reality, Pacaso investors buy both. Unanswered Questions I have expounded at length (see, for example, my correspondence on pages 12-44 and 12-45 of the present agenda packet) why I believe our existing Municipal Code already prohibits the Pacaso model of land use, and why, in anything it does, the Council should be careful to say, as many other cities have, that it is affirming its existing prohibition on timeshare uses in residential areas and not creating new regulations. The garbling of once clear and freestanding code through the rearrangement of sections in various "comprehensive updates" is unfortunate (and a bit like a game of telephone), but there has never been any stated intent to change the rule, which was to allow only the specific kinds of timeshares described in what is now Section 20.48.220, to allow them only in the Zoning Districts specified in Part 2 of Title 20, and even then, to allow them only with a Conditional Use Permit and a Development Agreement. March 14, 2023, City Council agenda comments - Jim Mosher Page 8 of 8 That is not completely the same as the total, citywide ban of 1982, but for purely residential districts it is, for they are not listed as an allowed use. Two questions I have not seen answered in any of the public discussion so far are (in the unlikely event the Council is to go against public sentiment and allow Pacaso-style timeshares in purely residential districts): How would a city allowance of the use affect homes within the legal jurisdiction of a Home Owners Association. Could the HOA choose to prohibit the use even if the City allowed it (as we were once told was possible with Accessory Dwelling Units)? If so, that would make any allowance by the City particularly inequitable, as some areas could immunize themselves from the problem, while others could not. 2. How does the Pacaso model interact with Proposition 13? Property tax is the City's primary source of revenue, yet the City gets a boost in revenue only when there is a change in ownership triggering a new assessment to market value. I have heard that when an LLC owns a property, there is a change in ownership only when someone new gains control of the LLC. But since Pacaso apparently never allows any co-owner to own more than half, no single person would ever seem to be in control. So there might never be a change in control even though the property gradually moves into the hands of completely new owners. Is this true? Or does each change in co-owner have to be reported, so a reassessment to market value is triggered whenever more than half the co -owners are different from those reported at the previous assessment? If so, who keeps track of this?