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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 25, 2023 Written Comments April 25, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@-vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item IV.A. CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION When I went to pick up the printed agenda materials at the City Clerk's office on Thursday I was both surprised and pleased to see the extensive description of this closed session item on page 2 of the agenda and to find attached to it a copy of the multi -page letter potentially threatening litigation against the City. My first impulse was I should compliment the City Attorney's Office on what looks like its commitment to a new level of transparency regarding what will take place in closed session discussions. However, Subsection 54956.9(e)(3) of the Brown Act has actually long required making available for inspection (although not necessary physically attached to the agenda) any threat used to justify a closed door discussion. And that raises two questions: (1) How are threats of litigation against the City normally handled and who decides if the Council gets involved? and (2) Have there been prior closed door discussions of "anticipated litigation" prompted by a threat the availability of which for public inspection was not so clearly disclosed? In any event, the subject of the letter is the City's plan — or lack of plan — to protect the Western Snowy Plovers on the beaches at the east end of the Balboa Peninsula. This was the subject of a Council study session on February 28. According to the extensive staff report (unusual for a study session), the City's application to the California Coastal Commission had been deemed complete and was expected to be heard by the CCC in April. The PowerPoint went over several aspects of the plan that staff was concerned about, and suggested final refinements were being negotiated ahead of the CCC hearing. Study sessions being for study, the minutes of the February 28 Council meeting indicate no formal action was taken or direction given. In particular, there is no mention of withdrawing the application, which is something different from continuing it for further negotiation. Yet, according to the CCC letter, someone on behalf of the City appears to have withdrawn it, and this, coupled with the withdrawal of a previous application, apparently leads CCC staff to suspect the City has no intention of ever submitting a plan it ever actually wants considered for approval. Who withdrew the most recent plan? On what authority? And does the City intend to resubmit a plan? While the City Attorney's decision to post the CCC letter along with the agenda is commendable, those are all areas in which transparency is lacking. April 25, 2023, City Council agenda comments - Jim Mosher Page 2 of 4 Moreover, the entire matter presents a situation in which a program or wildlife preserrvation that initially appeared to have community interest and support has turned into one of demonizing the CCC, which now expresses understandable frustration with the time and effort it has expended working with the City to find good -faith solutions having come to nothing. At least to me, this is not a proud moment for Newport Beach. Item 3. Resolution No. 2023-20: Declaring a Portion of City -Owned Property at Eastbluff Park Located at 2401 and 2555 Vista del Oro as Exempt Surplus Land, and a Lease Agreement for the Property with Boys and Girls Clubs of Central Orange Coast for Recreation Facilities Although it seems to be prompted by a new state law requirement, it is a bit disturbing to see the titling of this item as one involving a declaration that City -owned property is "surplus" (which I would take to mean "permanently unneeded by the public"). While I am sure the Boys and Girls Club is a worthy organization, in reading the staff report I am a bit puzzled both by (1) the claim of their present right to use the land and (2) its status as "exempt" under the revised Surplus Land Act. In both cases, the staff report cites the terms of the 1967 Grant Deed of the property from The Irvine Company to the City, which I find attached to the proposed Resolution No. 2023-20 as Exhibit B on pages 3-12 through 3-14 of the staff report. In particular, the staff report cites the Club as an allowed use under that deed. But without further written permission from TIC, the deed (page 3-14) only allows the City to use the land as "a public parK' and "for the construction and maintenance of a fire station, a public library, and a community center building for cultural and recreational purposes." The City of Newport Beach operates several fire stations, public libraries and community center buildings. Although the City may have some access to it, the Boys & Girls Club of Newport Beach is not listed as one of them. Nor, given those other examples of true community center buildings, would I think a building constructed by and for the use of a private non-profit is the kind of community center building contemplated in the 1967 deed. So, did the City ever seek The Irvine Company's written agreement to the original lease of the gifted land to the BGC? As to the City's obligation under the Surplus Land Act as revised in 2019, 1 would guess this "disposition" might be exempt under the grandfathering provisions mentioned in the HCD FAQ since the same land was previously "disposed of" to a private party prior to 2019. It is much less obvious it is subject to a deed restriction prohibiting housing on the site. The deed does not say housing is prohibited. It simply says The Irvine Company's written "consent and approval" is required for uses other than those listed. I would not be surprised if TIC refused to allow housing; but since the deed, by itself, does not say that, I think the City would at least have to ask TIC before it could claim such a restriction exists. April 25, 2023, City Council agenda comments - Jim Mosher Page 3 of 4 Item 3. Resolution No. 2023-21: Supporting Submission of Grant Application Under the Orange County Transportation Authority Measure M2 Tier 1 Environmental Cleanup Program Although it appears this resolution does not have to be specific (other than about the Council's commitment to provide at least 20% matching funds), I am surprised to see staff plans to submit a grant request to OCTA to acquire, along with state -required roadway catch basin screens, "three floating trash/debris collection devices to be located in Newport Harbor." Although it may not be clear from the report, the devices in question are "Roomba"-like autonomous, self-propelled robotic trash skimmers, specifically the WasteShark costing about $45,000 each with full anti -collision software. While three WasteSharks may be the ultimate number desired by the Harbor Department, this matter was, as the staff report describes, discussed by the City's Water Quality/Coastal Tidelands Committee on April 6, 2023. 1 was present and distinctly recall the recommendation was to buy only one to see how it works, before committing to any more. Should the grant request be to buy three if the immediate plan is to buy only one? Item 7. Central Library Lecture Hall Building Project - Reject All Bids for Contract No. 7444-2 (19F11) Considering the public interest in the Library Lecture Hall, this seems an unusually significant matter to be placed on the consent calendar as a "routine" item to be approved without any public discussion. Usually a staff recommendation to reject bids is accompanied by a recommendation to rebid the contract with some modifications. In this case, that, too, is rejected. But no clear plan for what to do is offered in its place, leaving a much -anticipated project for which much private money has been raised, in some kind of indefinite limbo. Does staff have advance knowledge that a majority of the Council supports its recommendation? If so, how was that knowledge obtained? I believe four of the current members were not on the Council the last time I recall any public discussion of the Lecture Hall. And at the March 28, 2023, first look by the current Council at the CIP budget for the coming year, it was relegated to a single line (followed by ??) on Slide 6, presented without comment. Although the minutes show several public comments, there appear to have been no comments about it from the Council members. Since I am generally supportive of the Lecture Hall concept, I don't think the path forward is so obvious as to put its rejection on the consent calendar. At the same time, I do not support the March 28 speakers' attempts to recharacterize this as a much -need civic auditorium. My recollection is that throughout the design process great emphasis was put on the idea that what was being designed was a lecture hall, not a general purpose auditorium. In that connection, I am unclear on what has become of the Library Lecture Hall Design Committee. From the City's documentation it might appear it last met on April 12, 2021, although I have an agenda packet from May 9, 2022. April 25, 2023, City Council agenda comments - Jim Mosher Page 4 of 4 Is Diane Dixon still a member? Why has it not made a recommendation to the Council about what to do about the bids? Item 11. Agreement with Airwave Communications Enterprises, Inc. for Police Vehicle Customization Services The need for police vehicle customization services does not sound like a new one. Normally the staff report would describe who is currently providing the service, and at what cost, and whether this replaces an existing contract. Oddly, this one does not. However, I see that as Item 7 at the September 10, 2019, meeting, the Council approved three-year on -call contracts for these services for all city departments, including police. One of those contracts, C-7508-2, appears to have been extended by staff through September 9, 2024. That vendor, Joslin Mobile, would appear to be the incumbent. Is the Police Department currently receiving these services from them? If not, from whom? And since the City has a vendor, why is a separate contract for police vehicles now necessary? Item 14. Balboa Chamber of Commerce Request to Waive City Council Policy B-13 for Newport Beach Polo Match One learns a lot by reading Council agendas. Like the Internal Revenue Service's Tax Exempt Organization Search, I was aware Newport Beach had a Newport Beach Chamber of Commerce and a Corona del Mar Chamber of Commerce. I, like the IRS, did not know we had a Balboa Chamber of Commerce, as well. But I see the California Secretary of State Business Search is aware of such an entity filing papers of organization on June 17, 2022. 1 also missed the 2016 polo match at Peninsula Park, but then I miss a lot. A Google search of the 2016 match in Newport Beach turns up only Newport, Rhode Island, which appears to have a much larger field, properly designed for the sport. Aside from the alcohol issue, isn't Peninsula Park quite small for a polo match (raising onlooker safety issues, among other concerns)? And doesn't the game cause a lot of damage to the turf? Who will pay for the restoration after the event?