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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 24, 2023 Written Comments October 24, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (jimmosherno_yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS2. Newport Beach Municipal Code and City Council Policy Update Background This began as an "A-V request by Mayor Pro Tern O'Neill for a future agenda item, which was voted on under Item XIII at the July 26, 2022, meeting. The requested cited a passage in The Federalist Papers, No. 62, in which, in arguing for the adoption of the U.S. Constitution, James Madison (or possibly Alexander Hamilton) lamented the tendency of untrained and inexperienced legislators to enact laws "so voluminous that they cannot be read, or so incoherent that they cannot be understood" — for which he suggested the solution was the creation of a senate with longer -serving, more carefully -selected members. While the request to form a committee to recommend reducing the length of the Municipal Code seems to have been well-intentioned, it may have failed to note that in The Federalist Papers, No. 62, our founding father also branded "all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes" as "so many monuments of deficient wisdom." The boards and commissions invited to participate in the pruning were particularly puzzled with how deleting words was expected to increase clarity, and why the effort was confined to the "sole purpose" of "deleting or reducing language," and not improving it.' Concerns While I think codes need periodic review and updating, while I agree simplification is a worthy goal, and while I have no doubt about the committees good intentions, I have many concerns about this process of proposing mass revisions without any explanation to either the public or their Council colleagues as to why these particular changes are being recommended. Appreciating the difficulty of rephrasing something without altering its original meaning, and without knowing why the original words were chosen, I am concerned that what may seem no change to one person may create a possible new reading for others or destroy some subtle interaction that was critical to the original drafting. I am even more concerned that slipped in among the many innocuous revisions are some real substantive changes of policy that will be enacted without any real public, or even Council, scrutiny. ' The wish to reduce the length of the Municipal Code is a bit ironic in view of recent additions to it, such as the 29-page Ordinance No. 2022-18, attempting to restate the entire voluminous state code of the moment on residential density bonuses, rather than simply referring to it. October 24, 2023, City Council agenda comments - Jim Mosher Page 2 of 7 And while I think what is being presented is already much too much to consider at one time, it seems implausible to me that only a single Council policy — among the dozens last reviewed in 20172 — would benefit from, or is in need of, revision. Style Much of the revision seems to be devoted to changing references to state codes from things like "California Government Code" to an abbreviated form, like, in this case, "Cal. Gov. Code." Not only does this not reduce words, only characters, but for those not familiar with what is being abbreviated, it reduces the readability of the Municipal Code and increases its obscurity. Why we would be doing this is unclear to me, but it appears someone is trying to conform the Municipal Code to the California Style Manual, and misreading it. That manual, approved by the California Supreme Court, is used by the court reporter service to process court opinions for publication, and is apparently required to be used by lawyers in preparing pleadings to California courts. Since writing laws is a different art from filing legal pleadings and issuing rulings on them, much more relevant to the present effort would have been one of the many legislative drafting manuals. California does not appear to have any, but there are many, with links to some listed by the National Conference of State Legislatures on their Online Drafting Manuals page. None of them I can find recommend the kind of abbreviation taking place here. Nor does the California Style Manual. Indeed, while § 2:8 promulgates the official state code abbreviations adopted here, § 2:6 says "Outside parentheses, use unabbreviated code names and spell out "section" before the code section number." Only rarely does a code reference appear in parenthesis in our Municipal Code, and only then would it be abbreviated. Note also, that if we were following the California Style Manual, the word "section" would be in lower case, not capitalized, as it is in our code. Another aggravating recommendation is the many instances in which our code is recommended to be degraded by repeating a written -out number with the same things as numerals in parenthesis. I don't know where this came from, or any style manual that recommends it. It diminishes readability, as in "the proposal is to build on two (2) acres two (2) two (2)-unit two (2)-story buildings," and makes what would already be difficult to read even more challenging to decipher. The infection could be found as earlier as 1992, in the ballot measure that added term limits to our previously unblemished City Charter (see the last page of Resolution No. 92-75). But it seemed to be under control. However, in about 2013, the redundant numbers starting sprouting up in new ordinances. One would have hoped that since the goal of the present effort was to reduce language, the recommendation would have been to delete these redundancies, but instead it seems to be trying to add them wherever they don't already exist. 2 The results of the last systematic review of the Council Policy Manual were presented as Item 18 on August 8, 2017. Among the recommendations, without explanation, was deletion of Policy D-3, which had called for annual review. October 24, 2023, City Council agenda comments - Jim Mosher Page 3 of 7 And it isn't even doing that very consistently. For example, on page SS2-8, four easily understood numbers are turned into "two (2)," "three (3)" and "four (4"), yet on page SS2-4 there seems no compulsion to turn "one copy" into "one (1) copy" — even though "one" is the only one among these that could be used for something other than a number. Similarly, if reducing language is an objective, most legislative drafting style manuals contain examples of flowery legalese that can be reduced to briefer, simple and more understandable English. I believe the committee would find our Code is replete with them. For example, our Code's Advanced Search - View All Hits option for the exact phrase "shall mean" 3 finds 849 instances (some in the City Charter), all of which could likely be replaced by the simpler, more direct and less pretentious "means." Also existing typos persist and some new ones are introduced. For example, in existing NBMC Section 12.56.030.B.5, "To a" which should be "A" is left uncorrected. And on page SS2-135, in the new definition of "Substantially located," "primary' should be "primarily." On page SS2-22, "Public park of public facility" appears intended to have read "Public park or public facility" Substance There is much too much to review with any care. So the following are random comments: 1. I appreciate the committee's effort to remove the severability clauses added to the code by some ordinances, but not by others (see, for example, existing Section 3.04.170 not being shown as stricken on page SS2-54). However, I wonder if they need to be replaced by one general, consolidated statement about severability. 2. One of the largest proposed deletions seems to be of Chapters 20.34 and 21.34. Since these deal with conversion or demolition of affordable housing, but apparently only in coastal zone, I understand why their language would belong in Title 21, rather than Title 20. But I suspect its proposed deletion may reflect a misreading of the state code. At the October 19 Planning Commission meeting, the Commission heard the provisions were unnecessary because the City has less than the 50 acres of privately owned vacant land within three miles of the coastal zone, as referred to in NBMC Secs. 20.34.030.0 and 21.34.030.C. Perhaps what has changed since these were enacted is that Banning Ranch (now the Randall Preserve) is no longer privately owned. But California Government Code Sec. 65590(b) does not appear to say that exempts a city from its requirements.By its plain language, the requirement remains if "the local government determines that replacement of all or any portion of the converted or demolished dwelling units is feasible." 3. Many sections of the code refer to fees set "by resolution." Since the public has no idea where the referenced resolution can be found (assuming it even exists) it would be better to refer to the "Master Fee Schedule." s The codifier's "exact phrase" search option seems to work for me for this phrase. It does not seem to work for other phrases, such as "in the event that," which can be simplified to "when." October 24, 2023, City Council agenda comments - Jim Mosher Page 4 of 7 4. In the proposed revisions to Council Policy L-1, the list of "Shared Bicycle/Pedestrian Facilities" would seem like it would need to be coordinated with some master list of bike -allowed sidewalks maintained elsewhere. It may also not be current, no are all the segments listed relevant to sidewalk dining. For example, much of the sidewalk on the west side of Jamboree from Campus to MacArthur is too narrow for shared bicycle/pedestrian use nor is it close enough to buildings to be a likely site for dining. 5. In the PB&R recommendations, as I noted to them, some are for entirely new policies, not simplifications of existing ones. For example, page SS2-594 introduces an entirely new requirement for property owners to install automated irrigation systems for parkway trees. So does the recommended change on page SS2-600. I would also note the policy numbers are not identified in the revised copies of them in the present agenda packet, which is hardly a very transparent way of announcing potential policy changes to the public. Item 1. Minutes for the October 10, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in strikeout underline format. The page numbers refer to Volume 65. Page 637, paragraph 1: "City Attorney Harp agreed that there is an over concentration of State -licensed facilities in this neighborhood and discussed the 1621 Indus Street mental health license application to the State. State laws prohibiting local regulation, the two letters sent last week to the State in opposition to allowing additional facilities, the City's work since 2006 with litigation, the request for State legislators to return local control and regulation, and the City's continued efforts." Page 643, Item 14, paragraph 2, sentence 1: "In response to Councilmember Grant's question, Associate Planner Perez relayed that the update is inline in line with how the Newport Beach zoning code has blended parking rates for shopping centers with outdoor dining and the Planning Commission Planned Community text will be consistent with the zoning code." Item 5. Resolution No. 2023-61: Opposing Assembly Constitutional Amendment 13 (Voting Thresholds) If the resolution was prepared with a word processor, it is surprising it did not catch the grammatical error in the first line: "WHEREAS, since the adoption of the California Constitution in 1849, there #as have never been different thresholds for the approval of constitutional amendments based on the content of the amendment."' It would have seemed helpful to include a copy of ACA-13, the proposal the Council is being asked to oppose, and which many other California cities are on record supporting. The 4 It appears Article X, Section 1 of our 1849 Constitution required, for its amendment, agreement by a majority of the state's qualified electors. Article XVIII, Section 4 currently requires agreement by only a majority of those electors voting on the amendment. October 24, 2023, City Council agenda comments - Jim Mosher Page 5 of 7 resolution gives the possible misimpression that ACA-13 is a tax -related measure weakening Proposition 13. While ACA-13 may have been created to partially invalidate a tax -related initiative it may be competing against on a 2024 ballot (see the bill analysis), it also appears to be an effort to correct an anomaly in the constitution that allows a simple majority of voters to enact measures that require a much larger portion of voters to make changes to them or do new things, whether tax -related or not. Fixing that patently undemocratic loophole seems like a good thing to me, but I agree the fix should apply equally to measures placed on the ballot by initiative or by the Legislature — something ACA-13, for reasons unknown to me, does not seem to do. Item 6. FY 2023-24 Traffic Signal Rehabilitation Project - Award of Contract No. 9416-1 (24T01) The Location Map, provided as Attachment A on page 6-4, shows only the location of three traffic signals to be replaced. It fails to illustrate the full scope of the contract being sought. If limited to the three signals, the amount, over $400,000 per signal, seems high. But it does involve more work than that, and the other bids are higher still. It might have been helpful to indicate why they are all over the Engineer's Estimate. Item 7. Newport Coast Pickleball Courts (Project No. 22P13) - Award of Contract No. 9018-2 The offer by Road Safe Traffic Systems, Inc. to complete this work for $5,750 seems like a steal, considering the other bids ranged from $1 million to $3 million. Too bad the City is unable to take Road Safe up on the offer. Item 11. School Resource Officer Program Agreement I am unable to find an explanation of why the Agreement is being proposed for so short a term (less than one year), but the Term clause (Section 1) at the bottom of page 11-3 was likely intended to read either: o "The term of this Agreement shall commence on the Effective Date and shall expire on June 30, 2024 unless extended pursuant by written agreement of the parties or terminated as specified in Section 7. " or o "The term of this Agreement shall commence on the Effective Date and shall expire on June 30, 2024L unless extended pursuant by to written agreement of the parties or terminated as specified in Section 7. " It is unclear how often or by whom the Agreement could be extended (it seems beyond the City Manager's spending authority) • Page 2 of the Agreement is missing (it would be expected between agenda packet pages 11-3 and 11-4). In Section 2.3.5, the requirement for "a legitimate educational interest' to justify an officer's request to examine records seems strange to me. Unless the officer is pursuing October 24, 2023, City Council agenda comments - Jim Mosher Page 6 of 7 a master's degree, or some other educational pursuit, shouldn't it just be ""a legitimate interest'? • The opening sentence of Section 4.2 seems awkwardly written, and appears to commit to providing officers only four days a week, which contradicts the last sentence promising "at least one" will be present every day school is in session (which one would assume is five days a week). Similarly, the staff report suggests it is understood the Agreement relates to District schools in Newport Beach and that there would be an officer at each of the two high schools in the city (and available for their associated middle schools), but the pages of the Agreement that have been provided in the agenda packet say nothing I can see about where or how the officers would be deployed, and the last sentence of Section 4.2 implies that on some school days there may be a single officer serving the entire Newport Beach portion of the District. • Is the City offering its officers for use at schools outside the City? Item 12. Planning Commission Agenda for the October 19, 2023 Meeting As of this writing on October 23, 1 don't see an "action report" posted for Council review as to what happened at the October 19 Planning Commission meeting. As Item 2, the four Commissioners present heard, and continued its December 7 meeting, the appeal of a controversial staff approval of a modification to an existing use permit from 1973 that affects what are now two separately -owned pieces of property. Among other irregularities, the request appears to have been considered with the consent of only one of the affected owners, and to have been inconsistent with some of the key assumptions and conditions allowing the original approval. That would normally disqualify it for a staff approval, and require a different process. As Item 3, the Commission saw, and recommended to the Council, staff's response to a possibly -misunderstood Council A-1 request to explore expanding visitor -serving opportunities on 20-unit and larger residential sites in two mixed use districts on the Peninsula. Staff guessed it was being asked to allow owners of 20 or more units in a district to have short-term lodging permits, although the request may have been to allow larger facilities to operate as timeshares, or to allow only larger facilities to have STL's within them, or something else entirely. This underscores a problem with the Council giving direction, without explanation or discussion, through A-1 items. In any event, the Commission recommended the Council consider making all residential units in the two districts eligible for STL permits. As Item 4, at the end of a long meeting, the exhausted Commission recommended to the Council, without much thought or discussion, a portion of what the Council is seeing as Item SS2 on the present agenda. October 24, 2023, City Council agenda comments - Jim Mosher Page 7 of 7 Item 14. Annual Review of Visit Newport Beach Audited Financial Statements and Expenditure Report For the agenda item title, I had hoped the Council might be seeing more of the Expenditure Report, regarding which some members previously sought additional information. I see this is only the audit of the report, asserting it is accurate, but adding no further detail. Does the Council ever receive any independent assessments from its members on the VNB/NB&Co Board (as best I can tell they are the same) of how and how effectively the City's money is being spent?