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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed May 23, 2023 Written Comments May 23, 2023, 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 1. ROLL CALL — 4:00 P.M. A note above this item, informs readers the Council members will be involved in a separate meeting with a separate agenda, starting in the same location at the same hour. Since it is difficult to picture how two different meetings could take place at once, this leaves the public who might want to attend one or the other to wonder which will come first. My guess is the separate Special Joint Meeting of the Newport Beach City Council and Finance Committee will start at 4:00 p.m. and the one to which the current agenda pertains will start sometime after 4:00 p.m. Assuming it will start after 4:00 p.m., it would make sense for the Roll Call for this meeting to be taken when it starts, not at 4:00 p.m. Item IV.A. CONFERENCE WITH LEGAL COUNSEL EXISTING LITIGATION The two cases listed sound like they may be challenges to the City's plan to place dredging spoils in a Confined Aquatic Disposal pit within Newport Harbor. Since it is not obvious from the titles, is the City a named defendant or "Real Party In Interest" in these cases? Or is the Council simply being informed about their progress? If it is the latter, it would seem like it should be an open session item. Item XIV. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) Without discussion, the intent of this proposed agenda item is quite unclear. First, since it begins with the word "Direct," will a positive "straw" vote be taken as the Council having directed the Planning Commission to do what the rest of it says? Or, will a positive vote be taken as direction to staff to schedule a future Council agenda item at which the Council will discuss whether it should direct the Commission to do those things? One would hope it is the latter, for otherwise, since a show of just three hands is considered a positive vote on these matters it would be allowing less than a majority to take action on behalf of the full Council. Second, whether the direction is given at this Council meeting or a later one, the item asks for the Planning Commission to be directed to "facilitate" something about new visitor serving accommodations and multi -unit residential developments in the MU-W2 and MU-CV/15th Street zoning districts, but it is unclear what "facilitate" is intended to mean (as opposed to, say, "allow") and exactly what new accommodations they are being asked to facilitate. Those two zoning districts already allow multi -unit residential development and, with approval of a Conditional Use Permit, visitor serving accommodations, both stand-alone and mixed use, including hotels, motels and time shares. Is this a proposal to lower the 100-unit threshold for May 23, 2023, City Council agenda comments - Jim Mosher Page 2 of 7 time share projects (which the Council is being asked to reaffirm with adoption of the Item 3 ordinance on the present agenda) to 20 units or less for these two zones? Third, the second sentence of the request is ungrammatical. What, exactly, is "Consider as part of this review professional management, amenities, and where there are no parking impacts that could reduce the availability of parking in residential neighborhoods" intended to mean? Is "where there are no" intended to be read as "whether there are"? Finally, shouldn't new policies as to what kinds of development are appropriate in what areas be part of the General Plan Update process? Why would the Council be moving to modify the Zoning Code and Local Coastal Program ahead of that? Item 1. Minutes for the May 9, 2023 City Council Meeting The passage shown in italics below is from the draft minutes with suggested corrections shown in c*r�u underline format. The page number refers to Volume 65. Page 540, Council Member Avery: "Attended the Newport to Ensenada International Yacht Race Kick-off with Mayor Pro Tem O'Neill at the Balboa Bahia Corinthian Yacht Club and the Newport Harbor Yacht Club opening day" Item 3. Ordinance Nos. 2023-4 and 2023-5: Code Amendments Related to Time Shares (2022- 0202) It is good to see some minor typographic errors have been corrected prior to adoption. However, on the final page of the second ordinance (page 3-600), 1 suspect the Coastal Commission will be puzzled to see "#######" where dates are expected. And in the last paragraph on that page I see at least one remaining typo: "There would be net no change to the allowable uses within the coastal zone as established by the LCP." And if it is true the City is proposing no change to the allowable uses within the coastal zone, I fail to see why enforcement of the new Title 20 provisions banning development, conversion, advertising and management (the amended Section 20.48.220.A starting on page 3-294) would have to be delayed in the coastal zone until the Coastal Commission approves the proposed non -change to Title 21. 1 also continue to think it is a mistake to pad an ordinance presented as a "de minimis" clarification of an existing definition with hundreds of pages of largely irrelevant material (including ordinances from non -coastal cities). And I continue to think it is a mistake to insert provisions unnecessary to accomplishing the goal of clarifying the existing definition of time shares and their confinement to certain commercial and mixed use zones. I find the proposed amendments to Subsection 21.48.025.A (page 3-592) particularly problematic. It says "The conversion of property that was not used as a visitor accommodation into a time share accommodation shall constitute the development or creation of a new visitor accommodation." Which might be fine except it also says, as best I can read it, that for purposes of that section any kind of dwelling unit, however used, will be regarded as a "time share May 23, 2023, City Council agenda comments - Jim Mosher Page 3 of 7 accommodation." Hence, by its own terms, the conversion of anything that was not previously used as a visitor accommodation into a dwelling unit of any kind (whether it is to be used to accommodate visitors, or not) will be regarded as constituting the development or creation of a new visitor accommodation. I don't believe that was the intended meaning. The first sentence was likely intended to describe the conversion of property into a "time share property" or "time share use" — but if it was, it is hard to explain why such pains were taken to repeat, out of its intended context, the definition of "time share accommodation." Also, as previously pointed out, the insertion of the words "or creation" into the first paragraph of Subsection 21.48.025.A would clearly seem to mean any application to begin or end use of a residence as a short term lodging would require a coastal development permit reviewed subject to all the provisions of Subsection 21.48.025 (other than the "Feasibility Analysis," from which they are explicitly exempted. Again, I doubt that was the intent Item 4. Ordinance No. 2023-6: A Code Amendment Updating Commercial Parking Requirements (PA2021-104) It remains unclear, at least to me, why the existing and proposed tables provide parking standards for only six of the seven kinds of "Eating and Drinking Establishments" defined in Title 20. In addition to "Food service, no late hours," "Food service, late hours" and "Take-out service, limited" (redefined as "Take-out service -- Fast -casual"), the existing code defines a "Take-out service only" use. It differs from "Take-out service -- Fast -casual" in that instead of sales being "primarily for off -site consumption," sales are entirely for off -site consumption. The existing Title 20 tables explain neither where the "Take-out service only" use is an allowed use, or what their parking requirement is. Shouldn't this amendment correct that? Item 5. Approval of Traffic Signal Maintenance and Repair Services Agreement with Yunex Traffic The statement of the proposed contract term, as stated on the agenda -- "one year with the option to extend the agreement for an additional four years" -- may be technically correct, but it is a bit misleading. The straightforward reading is the initial term would be one year, and the optional extension, if granted, would be for four years. It would be quite unusual, although not inconceivable, to enter into a contract with an optional extension (presumably contingent on good performance) lasting longer than the original commitment, as this wording implies. But that is not how this contract is written. As found on page 5-4, "The Original Term shall be for one (1) year with the City's option to automatically renew the Agreement for four (4) additional one (1) year terms (each a "Renewal Term')." So, all five potential terms, original and extended, are of one year duration each. May 23, 2023, City Council agenda comments - Jim Mosher Page 4 of 7 As to the substance of the contract, it is good to see the City is looking out for public safety by constantly upgrading the traffic indicators. Since the City has long been committed to promoting bicycles as an alternative mode of transportation, one improvement that might be prohibited by state regulations, but would, I think, significantly increase safety and be appreciated by many would be if the count -down Walk/Don't Walk display units (page5-34) could be programmed to always display the count of seconds to the next red light, whether or not the unit has been activated by a pedestrian pushing the button. The reason this is important is that a cyclist on a non -electric bike is rarely going fast enough to get across an intersection, especially a wide one, during the brief segment of yellow between the green and red lights for their direction of travel. Especially since they are usually riding close to the limit line for the cross -traffic, if they enter an intersection on a green light, only to see the light turn yellow, then red, before they can get across, they risk being instantly T-boned by a driver of one of those cross -traffic cars, who, focused on waiting for their own red light to turn green, is unaware of the oncoming bike. For example, I personally experience this situation every time I approach the PCH/Jamboree intersection, going west, riding back from City Hall, and find the westbound PCH light already green. I never know if there is time to get across before the light turns green for the southbound Jamboree cross -traffic. I experience the same problem, even worse, going east to City Hall, since I am in the crosswalk on the north side of PCH, and can't even tell if the signal for oncoming (westbound) PCH traffic is green. But in both cases, I am facing a pedestrian count -down unit, and if it were running, it would tell me if enough seconds are left to safely cross. Item 8. Purchase of Six AutoPulse© Automatic Chest Compression Devices The originally -posted agenda for this item listed proposed actions to approve purchases (of a truck and storm water pumps) and make budget adjustments unrelated to the above title. Shouldn't the new agenda, indicating the item is indeed to approve the purchase of six chest compression devices, say "Revised"? As to the substance of the item, the staff report says the cost of the devices is higher than was anticipated when the current budget was prepared, but does not say how much the cost has gone up. Also, a large amount is being spent on a 4-year warranty for a device the staff report says has an expected life of seven years, and for which "new warranty costs" were not an anticipated expense. What is the story on this? May 23, 2023, City Council agenda comments - Jim Mosher Page 5 of 7 Item 10. Appointment to the Aviation Committee to Fill an Unscheduled Vacancy Considering that dealing with airport impacts has long been a top City priority, and especially considering that parts of Council District 1 are among the areas most impacted and most capable of receiving relief, why has it taken more than a year to fill this vacancy? And is it true that after receiving notice of a resignation in 2021, the City waited until April 4, 2023, to post notice a vacancy existed? I believe it was noticed much earlier, but if not, why not? In any event, how many applications were received and when? The application selected (dated April 6, 2023) does not appear to have been specific to this, but rather in response to a general call for applications for boards, commissions and committees, with "Aviation" listed as the second or third choice out of four. Does the applicant understand the Aviation Committee has been reduced to meeting quarterly and doing very little, and that accepting the appointment will preclude him from serving on those other bodies? The Council members confirming the appointment may wish to be aware the Aviation Committee has its own peculiar rules of tenure set by Resolution No. 2019-26. The Council appointees are allowed to serve two six -year terms (compared to the two four-year terms normally expected in Council Policy A-2). So, in addition to serving the 2+ years until June 30, 2025, Mr. Teicheira will be eligible to server another 12 years, until June 30, 2037 (four of the other Aviation Committee members, reappointed in 2022, are allowed to serve for up to 15 years, while the non -Council appointees can serve for life). The Council members may also wish to know there has been a longstanding vacancy in the "Newport Coast Member" member position. That there is a "Newport Coast Member" member is a requirement of the Newport Coast annexation agreement. But since Newport Coast is in Council District 7 and there is already a District 7 member, it seems strange one of the areas of the city least impacted by the airport would have double representation. Item 11. Conversion of Boardwalk Ambassador Program to Boardwalk and Quality of Life Enforcement Program This item characterizes itself as a "notification to the City Council" as of what the Police Department plans to do, and not a request for direction or a decision from the Council. Since the Council approved the current agreement with the vendor as Item 21 on November 16, 2021, and effective through December 1, 2026, shouldn't it have some say in whether the program should be terminated ahead of schedule? Or is this part of the theory that the Police Department reports only to the City Manager and the Council can't tell it what to do? That theory seems to me to fall a little flat in that the Police Department appears to be bypassing the City Manager in reporting this directly to the Council, May 23, 2023, City Council agenda comments - Jim Mosher Page 6 of 7 and I would hope our Council has the power to tell the City Manager what it wants the City's police to do. While this change may be a positive one, when, where and among whom did the "April 2023" discussions (mentioned on page 11-2) take place? As to the substance, the Daily Pilot has posted an article about enhanced safety efforts in Huntington Beach, which will be using speed indicator signs. While that concept appears to have been deemed a failure in Newport Beach, it might be revisited based on their results (with a 10 mph speed limit, their signs will say "Slow Down" above 15 mph; ours could be set at a lower level). Item 15. Ordinance No. 2023-8 and Resolution No. 2023-32: Recommendations Resulting from Harbor Commission Objective 2.3 to Improve Navigation Safety, Allow for Additional Moorings Within the Fields and Mooring Size Exchange Requests At recent Harbor Commission meetings, I have heard multiple expressions of concern about the safety of the proposed mooring re -configuration and the language of the proposed changes to the Harbor Code (Title 17) — some of them captured in Attachment F (Feedback). The first uncomfortable question that should be asked about this item is whether the author of the 493-page staff report is a mooring holder, and if so, whether he should be participating in proposals the outcome of which may affect his personal interests differently from the interests of a member of the general public. The second uncomfortable question that should be asked is why the City has long treated yacht club moorings differently from the others. Two of the clubs have been allowed to essentially self - manage the use of public water the City seems to have dedicated to them. Within those, the clubs, and no one else, have been invited to use what looks from aerial photos like a very space -inefficient single -anchor anchor system in which the boats swing about that point with the tides. The present proposal would apparently not change that. Yet, in the past, the clubs have been invited to test safety and berthing efficiency improvements such as anchoring floating platforms to be used as multiple vessel mooring systems. If the double -row system is such an improvement to safety and efficiency, and given the club's interest in their members' safety and their unique capability to organize and communicate with the members who would be affected by it, why wouldn't the clubs be chosen to test the pilot program? Regarding Title 17 — cobbled together from various policies and seemingly existing independent of California Coastal Commission review or oversight even though it affects access to, use of and development in our most obviously coastal public resource (the Coastal Act being Division 20 of California's Public Resources Code) -- from past experience I know it is even more of a mess than most of our Municipal Code. May 23, 2023, City Council agenda comments - Jim Mosher Page 7 of 7 Attempts to change one part can introduce conflicts with others, and the present changes seem likely to introduce still more uncertainties as to interpretation. As to transferability, I have a very different view from most of the current mooring permit holders. As the Orange County Grand Jury found in its 2006-2007 report (Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?), the City has created a monster in which private parties, by ostensibly selling mooring tackle, control the public's ability to access public water, freezing out many boaters of modest means by making what was intended as a low-cost opportunity into a very high initial cost one. This could be avoided if the City owned and maintained the mooring tackle and rented the spaces, much like managing a campground with hook-ups. Even after passing on the cost of maintenance to the renters, new boaters could obtain a space without having to pay the outrageous "entry fee" they currently have to pay to an existing tackle owner to gain access to a space. The City Council eventually responded to the Grand Jury report by adopting a plan to phase out private transferability over a 10-year amortization period, but then quietly repealed the plan. Item 16. Ordinance No. 2023-9: A Code Amendment Related to Reinvestment and Improvements of Short -Term Lodging Units (PA2023-100) I expressed misgivings about this item when, at its May 9 meeting, the Council voted to put it on a future agenda. It is surprising to see the staff proposal come back so quickly. The staff recommendation is presumably based on some kind of research, but I see nothing in it about whether any other cities have instituted similar programs, what "best practices" are, or if it is even legal. How, for instance, was 10% of gross rent received arrived at as the proper figure? Whatever the percent is, I continue to wonder how requiring citizens to spend a certain fraction of their income on a specific public purpose is not a tax by another name? Regarding the redline (starting on page 16-19), it is unclear why the Section 1 changes are shown out of context leaving readers wondering why what looks like a list of findings is being reordered. On page 16-28, the last sentence could be read to require the permit holder, in the second and all later reporting periods, to invest "all rent collected," not just 10%. On page 16-29, the requirement to file a request for an exemption 180 days before the reporting date seems rather extreme — although the sentence in which that appears could be read as saying it is the Council that has to set the hearing fee by that date. Actually, I cannot tell which reading is correct. When does the Council plan to set the fee? And how far in advance, if at all, does the permit holder have to file their hearing request?