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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed May 9, 2023 Written Comments May 9, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III.B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS The stated topic for this closed session discussion is "Instruction to City Negotiators regarding price and terms of payment" regarding the American Legion Newport Harbor Post No. 291 property located at 215 15th Street. That property is currently under a 25-year lease (C-1772), publicly approved as Item 23 at the Council's November 26, 2002, meeting, and running through November 26, 2027. It is unclear why it is being renegotiated at this time. Price and terms of payment are a valid closed session topic, but whether a publicly -approved lease should be re -opened would seem a matter that should have received public discussion prior to the opening of any new negotiations. Item XII. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) The second proposed future agenda item — consideration of an ordinance requiring reinvestment of 10% of rent collected into short term lodging properties — is a rather strange one, especially strange to be coming from our libertarian Mayor. Setting aside the question of whether the proposal is to require a 10% expenditure in one single year out of every three, or whether the 10% can be spread out evenly over every three year period, wouldn't monitoring the expenditures on the 1,550+ short term lodgings in the City put a large additional burden on our administrative staff, even if it relies on self -reporting that would have to be audited? And if this is a good idea, should it be extended to all rental properties of any kind? Or perhaps the City should require all property owners to reinvest some percentage of what they pay in property tax on maintenance of the property being taxed? Or require everyone living or doing business in Newport Beach to spend a certain fraction of their income each year on purposes the Council has decided benefit the city? And although the money would not pass through the government, could any of these government -required and government -tracked private expenditures be regarded as a tax requiring citizen approval? Or would all of these possibilities be a clever evasion of the tax limits in our state's constitution and laws? Item 1. Minutes for the April 25, 2023 City Council Meeting The only possible error I noticed in reading these draft minutes, is that near the top of page 532, the Oasis in "Oasis Sailing Club" was not all caps, as it normally would be when referring to our senior center (as opposed to a watering hole in the desert). May 9, 2023, City Council agenda comments - Jim Mosher Page 2 of 9 That said, further down on page 532, in the second paragraph under Item XIV, the draft minutes correctly state what was said about April 25th's Item 13 (Confirmation of Appointments to the General Plan Advisory Committee and Co -Chair Positions) and how a recommendation of three (or four) names turned into a recommendation of just two. However, what was said at the April 25 Council meeting seemed a bit misleading to me. At its March 22 meeting, the three -member General Plan Update Steering Committee was under the impression they had been asked to nominate three candidates for appointment to the GPAC. The GPUSC minutes show the list of recommendations "included Charles Fancher, Matthew Brady, Susan DeSantis, and Harrison Rolfes, as a back-up candidate." The video further clarifies the recommendation appeared to be: Charles Fancher (3 votes), Matthew Brady (2 votes) and Susan DeSantis (2 votes) with Harrison Rolfes as a backup, with no preference expressed between Brady and DeSantis. While the Clerk had a reason to allow the Council to make only two appointments, it remains unclear why only Fancher and Brady were presented to it as GPUSC recommendations. It would seem the Council should have been presented with Fancher as the GPUSC's top choice together with their tied recommendation of Brady and DeSantis. The Council should have been allowed to decide between the latter two, and not been given a single name to consider. Fortunately, the failure to report Ms. DeSantis as a GPUSC recommendation on April 25 is made moot by the recommendation to appoint her as part of Item 11 on the present agenda. Item 3. Resolution No. 2023-25: Initiating an Amendment to the Newport Place Planned Community Development Plan to Reduce the Minimum Percentage of Affordable Residential Units (PA2023-0082) While it is true Council Policy A-1 allows an item requested (without discussion) by three or more Council members to appear on a future agenda "for discussion or action," staff's decision to put this particular Council -requested item on the agenda for action without any further public discussion seems to me a perversion of citizen expectations of open and transparent government. The report (on page 2) contains what looks like a link (but doesn't actually seem to be one) to "a study prepared by Keyser Marston Associates for the City of Newport Beach in February 2022." The present City Council had a chance to discuss that just once, at a January 24, 2023, study session, at which it appears to have been told (Slide 11) the Airport Area could support a requirement for 7% low income units, and at which, according to the minutes, "Mayor Blom gained consensus from Council to ruminate on the item and return to staff with guidance." I, at least, assumed those private ruminations would have been about a citywide approach to inclusionary housing. So, without further public discussion it is hard to understand how the Council could be assumed to unanimously agree that the longstanding Newport Place requirement should be singled out for change. I took the April 25th straw vote to be a vote to discuss the matter further. May 9, 2023, City Council agenda comments - Jim Mosher Page 3 of 9 Additionally, while the staff report suggests we have decided requiring anything more than 15% affordable anywhere in Newport Beach makes projects infeasible, this seems to ignore the fact that two projects honoring the 30% requirement in Newport Place have already been approved. The first was Newport Crossings, approved by the Planning Commission on February 21, 2019, with 78 of 259 base units restricted to low income (52 below 60% of Area Median Income and 26 below 80% of AMI, qualifying the project for 91 additional market -rate units). The other was the Residences at 1300 Bristol, approved by the Planning Commission on February 17, 2022, with 24 of 77 base units dedicated to low income (12 "very low" and 12 "low"). While is true the affordable ratio at this site was diluted to 15% by transferring 77 entitled but unbuilt market -rate units from Uptown Newport, that action increased the affordable ratio at the latter site. And the affordable component qualified the project for 39 market -rate bonus units, bringing the total units to 193. 1 would further note, that while the proposed Resolution No. 2023-05 notes Council member Weigand's April 11 request (under "Council Annoucements") to consider reducing the Newport Place affordable ratio to 15%, it does not mention the April 25 vote to put the present matter an agenda, and the actual direction to the Planning Commission is only to consider "an amendment to Newport Place Planned Community Development Plan to lower the minimum affordability percentage of the Residential Overlay." One result of this being approved on the consent calendar without further discussion is it will go to the Planning Commission without clear direction as to whether the Commission is to recommend a percentage or to consider only 15%. Item 4. Resolution No. 2023-26: Adopting Revised City Council Policy G-1 (Retention, Removal, and Maintenance of City Trees) It is slightly odd the Council has not been provided the minutes of the April 4, 2023, PB&R meeting so it could review any discussion that may have taken place relevant to the present recommendation. And, although some improvements have been made in recent years, Policy G-1 remains the one "council" policy so convoluted staff feels it requires a flow chart for readers to understand how they intend for it to work. So it is slightly odd a copy of the flow chart has not been included in the agenda packet to assist in reading. And it is also slightly odd the staff report does not explain what, at its September 27, 2022, meeting, prompted the Council to request a revision to Section V (Reforestation of City Trees) of Policy G-1. The matter at hand on September 27 was a call for review of the Parks, Beaches and Recreation Commission's denial of a request to replace a tree in the face of no community opposition to the replacement. Denial of the request was a conclusion the Commissioners felt compelled to reach under the current policy, in which the degree of community support or opposition was not a factor it was directed to consider. But at least some of the Council members thought the City should have a policy that encourages neighbors to love their trees, May 9, 2023, City Council agenda comments - Jim Mosher Page 4 of 9 and requests to replace one they don't love should be honored when there is no opposing sentiment. The present recommendation attempts to rectify that by listing (see agenda packet page 4-19) factors that can be considered in making the decision to approve or deny a reforestation request (including "level of community support and/ or opposition" — which might be weighed against "value of the existing tree(s) versus the value of the replacement tree(s)" as well as, although not mentioned, the loss of urban canopy, the replacement trees generally being smaller than the existing ones for many years to come). While that is a positive development, I believe the recommendation fails to address some other existing problems with Policy G-1 and introduces some new problems. Among the existing problems, in several places the policy directs staff to give notice to "the Councilperson of the district in which" a tree is located. This is contrary to our City Charter's intent that all Council members are expected to represent all districts. It is also inconsistent with the policy passages that give all Council members the right to call up certain tree decisions. The right to call up is not very meaningful for the Council members who have not been notified something that could be called up has happened. The existing policy also empowers the City Manage to initiate calls for review without indicating who those would be to (the Council? or the City Manager themselves?). A more serious existing problem is with the Commission's authority to order emergency removals. The current policy authorizes staff to immediately remove trees that, in their professional opinion, pose an imminent threat to people or property. But one aspect of the current policy, not evident from staff's flow chart is that in the absence of such an emergency, all tree removal decisions (and especially removals of special trees) are supposed to be appealable, ultimately to the people's elected representatives on the council. The public's ability to appeal PB&R tree decisions is a bit murky in both the existing and revised policies. Although staff has told PB&R the public in general has a right to appeal its reforestation decisions if they pay the appeal fee, it is not clear an appeal fee has ever been set and the policy actually says (agenda packet page 4-19) "The decision of the Commission shall be final unless called up by a Councilmember," giving the public no appeal option other than through a Council member (which seems to explain why the September 27, 2023, Item 16 reforestation discussion that prompted the current item was not an appeal, but rather a call for review by former Council member Brenner). The public's right to appeal PB&R standard tree removal decisions to the Council (or even a Council members right to call them up) is unclear (see agenda packet page 4-16). For special trees (see agenda packet page 4-13), the public's right to appeal to the Council is supposed to be made known by a 30-day posting, after PB&R's decision, of any trees targeted for removal. The problem is that PB&R has become increasingly convinced that requests brought before it are more urgent than staff seems to believe, and if been told by staff they can waive this May 9, 2023, City Council agenda comments - Jim Mosher Page 5 of 9 provision if they wish to, effectively eliminating any public right to appeal — even though professional staff did not think a tree failure was imminent. This has happened twice. First with regard to removal of a landmark tree adjacent to the parking lot at the Balboa Branch Library (which, despite PB&R's order to remove the tree immediately without posting, staff ultimately decided to defer for months out of respect for the herons nesting in it). And more recently with a decision to immediately remove seven special neighborhood trees in the Westcliff/Dover Shores area without posting and therefore without the 30-day appeal period — even though staff, in its professional opinion, did not think failure was imminent, but did think PB&R was free to waive policy provisions. Among the new problems created, staff's flow chart indicates they believe Council has dictated a two -track process for reforestation requests: one for people who live in "mandatory HOA's" (for whom requests must come from their board), and a different one for people who don't (who must submit a petition circulated by the requestor). But if the Council looks at agenda packet pages 4-40 through 4-42, they will see that most of the language that made that distinction is proposed (for unknown reasons) to be deleted. As a result, the most straightforward reading of the proposed "clean" language (agenda packet pages 4-17 through 4-19), is that all requestors must now circulate a petition, and that those who live in a mandatory HOA must additionally submit it to their board and obtain a resolution of support from them. Staff told PB&R this is not what it meant. But if their intent is to exempt anyone who lives in an HOA from the petitioning requirement, then the proposed policy would appear to say such a person living in an HOA needs only the support of their board to request a PB&R hearing on the removal of a tree outside the HOA (as often happens when distant trees are said to be creating private view issues) — but a person not living in an HOA, making the identical request ,could obtain a hearing only if they obtained the support of 60% of the people living within 500 feet of the tree. In short, I think it is a mistake to delete the existing language that makes a much clearer and more useful distinction between a reforestation request submitted by a private individual and one submitted by an HOA for which the 500-foot radius notification area falls entirely(?) in "their respective area." Item 9. Approval of Professional Services Agreement with Kitchell/CEM, Inc. for Park Condition Assessment and Park Maintenance Master Plan Services I seem to recall a Park Maintenance Master Plan, funded to the tune of $1 million, was mentioned during the Council's March 28 early -look at the 2023-2024 Capital Improvement Program budget (Slide 14, as well as a separate $300,000 Playground Refurbishment Program). While this planning would seem to be a positive development, I see nothing in the report about our Parks, Beaches and Recreation Commission having played any role in preparing either concept or that it will have any future role in them. May 9, 2023, City Council agenda comments - Jim Mosher Page 6 of 9 That is a little disturbing since through Section 709 of our City Charter, the people of Newport Beach have placed on their PB&R Commission both the power and a requirement to "Act in an advisory capacity to the City Council in all matters pertaining to parks, beaches, recreation, parkways and street trees" and to "Assist in the planning of parks and recreation programs for the inhabitants of the City."' Item 10. Planning Commission Agenda for the May 4, 2023 Meeting As can be seen from the agenda and action report on Item 4, staff has been trying to ram through General Plan and Zoning Amendments that would allow housing in high noise areas close to the airport, where it is currently prohibited. This is the third time item has been on the Planning Commission agenda without any action. The first time, the Commission failed to meet. The second time it was continued. And at this meeting it was continued yet again ("for the purpose of examining alternative approaches"). I am member of the Council's General Plan Advisory Committee, and more specifically, a member of its Noise Element reviewing subcommittee. However, that latter group has never met, and neither it nor the larger group have advised on these recommended amendments to that element. I have no idea why this is being pushed forward ahead of other amendments supposedly necessitated for consistency with the recently adopted Housing Element. Since a General Plan is supposed to be a self -consistent whole, I would think this matter should be considered together with those other matters, as a package, and not come to the Council piecemeal. Item 12. Ordinance Nos. 2023-4 and 2023-5: Code Amendments Related to Time Shares (2022-0202) I have trouble writing about this item, because I strongly support continuing our longstanding prohibition on time share uses in purely residential neighborhoods, but feel the proposed modifications to the existing codes were too hastily prepared. I find it particularly troubling that a year and a half after first hearing public testimony regarding this matter (on November 16, 2021), the Council has before it a proposal that has had only the most cursory review by the Planning Commission, and has, even then, not been seen in its ' Section 709 originally also explicitly required PB&R to "Consider the annual budget for parks, beaches, recreation, parkways and street tree, purposes during the process of its preparation and make recommendations with respect thereto to 'the City Council and the City Manager." While that requirement was removed from our City Charter at the November 2012 election as part of the 38-amendments-in-1 Measure EE, I doubt stripping the City government of this requirement was a conscious wish or high priority of most voters (who were asked to vote for the measure to prevent automated redlight ticketing cameras from coming to the City). And despite such budget review by the City's boards and commissions no longer being a requirement, it does not mean it is no longer a good idea. May 9, 2023, City Council agenda comments - Jim Mosher Page 7 of 9 present form by anyone other than City staff until the agenda packet for this meeting was posted last Thursday. While I am pleased to see some features added since the April 20 Planning Commission review of an earlier text -- such as restrictions on advertising and sale of time shares in unpermitted districts -- it is further disturbing that, despite what the brief staff report says, the Council has not been provided with the minutes of that Planning Commission meeting at which the review took place,2 or even the correct resolutions of recommendation (the relevant Planning Commission resolutions for time share code modifications, as cited in the two proposed ordinances, were PC2023-017, for Title 20 revisions, and PC2023-018, for Title 21 revisions, but Attachments E and F to the staff report provides copies of Resolutions No. PC2023-018 and the unrelated PC2023-019). Moreover, neither the staff report nor the (correct) PC resolutions accurately reflect the Planning Commission's unanimous April 20 recommendation, which was, according to the video, that Council approve the hastily-written3 draft the PC had seen with direction to staff to "carefully study' revising the time share definition to make it not include "any multi -generational housing or tenants in common." Instead, we have two proposed ordinances unlike anything I recall seeing, in which readers have to wade through 300 or more pages of exhibits' before finding the very few pages of what is actually being recommended (first appearing on agenda packet page 12-298). It is particularly puzzling to me that staff has found it appropriate to include in the ordinances copies of correspondence sent to city councils in other cities, but none of the correspondence it has itself received. As to the proposed ordinance modifications, I am not sure the change to the time share definition accomplishes the Planning Commission's goal of excluding from its reach "any multi - generational housing or tenants in common" — or that that is even a realistic goal. Our original Ordinance No. 82-14 definition was essentially copied from the then -extant definition in the state Business and Professions Code, as found in Chapter 601 of the Statutes of 1980, while the proposed update to the definition is copied from the updated version introduced by the state as part of its consolidation of the earlier codes into the Vacation Ownership and Time Share Act of 2004. Since the purpose of the state code is to protect consumers from unscrupulous marketers, those definitions are written as broadly as possible. 2 The staff report (page 12-3) says the April 20, 2023 "Planning Commission resolutions and draft meeting minutes are in Attachments D, E and F," but as best I can tell the minutes and one of the resolutions are not. 3 Even the current agenda title appears hastily written, saying "(2022-0202)" where "(PA2022-0202)" was presumably intended. 4 This is not counting the length of items referenced by links, including, for example, Exhibit D of both ordinances, which is a complete copy of the City's 6t" Cycle General Plan Housing Element, that, if printed out in full, would, by itself, add 588 pages. May 9, 2023, City Council agenda comments - Jim Mosher Page 8 of 9 While I agree with staff that any exception could likely be exploited by one of those unscrupulous marketers,5 the staff report is not clear on how it believes home sharing by friends or relatives avoids being swept up in either our existing or proposed definition. I would guess they think the "purchaser, in exchange for consideration" component excludes them, but I see no evidence anyone has actually looked into the unobjectionable "family and friends" arrangements existing in Newport Beach that the Council and Commission hoped to protect. In the materials attached to the staff report, the only other city that appears to have directly confronted the "family or friends problem" is Hermosa Beach. See, for example agenda packet page 12-73, where they suggest limiting the sweeping state definition by adding the phrase "... or similar device, facilitated, offered, or organized by a third -party non -purchaser, ... I have noticed that a more recent coastal California city to consider the Pacaso problem is Malibu, whose council heard a staff report on April 10 (their "14. Item 6D Initiate Amendments to MMC and LCP to Address Home Sharing"). In addition to the usual California suspects, that report mentions the village of North Haven on Long Island in New York state. This may be because the New Haven time share ordinance has a number of unique features that restrict its application to "3 or more unrelated property owners" and that the "Use of the property is commercial in nature based on an agreement, arrangement, or any other means or scheme whereby the owners retain, hire, or otherwise utilize a third -party individual or entity for a fee (service, management, etc.) to control, manage, or facilitate scheduling the use or occupancy of the property." I am even more bothered by the proposal that our restrictions on management and marketing of time share uses in residential districts will "not apply to any time share use that was lawfully established prior to the effective date of the ordinances. I do not believe any such time shares were ever "lawfully" established. The case that they have never been lawful seems particularly strong in the coastal zone, since the both the Coastal Land Use Plan and the Implementation Plan already include fractional ownership as a species of time share, and time shares are not listed as an allowed use in any of the purely residential districts. Moreover, the provisions about the kinds of time shares we do allow in commercial and mixed use zones (resort developments with 100+ units) —which staff at one point said "flipped" our definition — have never been part of the Implementation Plan (NBMC Title 21). Additionally, although the staff report does not explain this, the coastal zone ordinance includes an Exhibit Y (starting on agenda packet page 12-605) implying staff intends to present this to the Coastal Commission as a minor "de minimis" revision of the Implementation Plan language 5 The ordinances contain an Exhibit C which is a letter from California attorney Andy Sirkin, who acknowledges the Pacaso home sharing model "matches exactly" the current California state definition, yet evades other regulations. And a review of his website indicates he not only claims to have promoted the Pacaso model before Pacaso, but that he is in the business of finding loopholes in state and local time share regulations. The Planning Commission's direction to exclude homes held by tenants in common seems particularly problematic, for Mr. Sirkin appears ready and able to devise a Pacaso-like time sharing agreement for them. May 9, 2023, City Council agenda comments - Jim Mosher Page 9 of 9 that can be approved by their Executive Director without a full Commission hear. This requires, among other things, that "The amendment does not propose any change in use of land or water or allowable use of property." If the amendment clarifies the Pacaso-type use is not allowed, and if that is not a change, it is hard to see if it could have been "lawful" before the amendment. I have many other suggestions, but do not have time to write them out in full before the deadline to submit comments. Regarding the proposed Ordinance No. 2023-5 (revising Title 21), I am not sure the Coastal Commission will be happy to receive a 300+ page document to certify, especially if it is told it makes trivial changes to the existing code. Of the many attachments from other cities, only Carmel -by -the -Sea is in the Coastal Zone. I think the "Whereas" clauses should not just mention the short term lodging amendments, but emphasize the Commission certified them. I think the changes on page 12-681 are ill-conceived and will require a CDP to issue or remove a short term lodging permit. The Council should also be aware there is a provision in the Coastal Act that prevents cities from requiring a CDP for the conversion of existing multi -unit residential buildings into time shares (cities can also not add requirements to time share plans for more than 10 units). I think it is both unnecessary and undesirable to delete the existing definition of "LUOVA" (page 12-685). 1 believe the CCC wrote it, and it is used elsewhere in Title 21. I think it would be better to simply add a note: "see Time share use"