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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 9, 2024 Written Comments January 9, 2024, 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. Minutes for the December 12, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c*r�u underline format. The page number refers to Volume 66. Page 11, Item 10, paragraph 2: "Mayor Pro Tem O'Neill indicated that the November 12, 2024 City Council meeting cannot be moved a week earlier because the Presidential election is on November 5, 2024, and suggested keeping the first meeting on November 12, 2024, and mGving the second meeting #e on November-19 261 2024." [see video and following note] Page 11, Item 10, paragraph 2: "Motion by Mayor Pro Tem O'Neill, seconded by Councilmember Stapleton, to a) determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) select November 49 26, 2024 as the date for the second meeting in November; and c) adopt Resolution No. 2023-85, A Resolution of the City Council of the City of Newport Beach, California, Setting the Time and Dates of City Council Regular Meetings for Calendar Year 2024."' [The video is very clear that Mayor Pro Tem O'Neill's motion was to keep the second meeting date on November 26. His exact motion was "171 move staffs recommendation with the date staying on the 26th of November." This is consistent with the December 12 staff report and draft resolution, which both recommended leaving the dates on "November 12 and 26," "but will be amended should the November 26, 2024 date be changed." The video also indicates the Mayor Pro Tem may not have understood the staff recommendation, since in asking for his colleagues' concurrence prior to making the motion, he said he would recommend staying with the 2611 "rather than moving it to the Tuesday of Thanksgiving" — when the 26th is in fact the Tuesday before Thanksgiving. Did he mean "19" despite twice saying "26"? Or did he mean to say "from" instead of "to"? It's impossible to know, but the motion was clear, and it is what it was. Yet Resolution No. 2023-85 as signed by the then - Mayor shows November 19 as the second meeting date in November 2024, as does the City's City Council Meetings page and its online calendar. This is not what the public heard the Council approve.] Page 13, Item 15, paragraph 1: "At the request of Mayor O'Neill, Senior Pastor at Mariners Church Eric Geiger provided a prayer." [The new Mayor did not mention the pastor's name prior to the prayer, but did thank "Pastor Geiger" after it.] Resolution No. 2023-85 as signed by the then -Mayor shows November 19 as the second meeting date in November 2024, as does the City's City Council Meetings page and its online calendar. This is not what the public heard the Council vote on. January 9, 2024, City Council agenda comments - Jim Mosher Page 2 of 11 Item 3. Ordinance No. 2024-1: Amending Sections 17.35.030 (Bayward Location of Piers and Floats) and 17.35.060 (Balboa Island - Noncommercial Piers) of the Newport Beach Municipal Code and Repealing City Council Policy H-1 A virtually identical Item 3 was on the Council's November 14, 2023, consent calendar, but withdrawn upon receipt of a critical letter from the State Lands Commission. The contents of the SLC letter were not disclosed, but in the withdrawal notice, staff promised to address its concerns. It seems curious the present report makes no mention of that episode, including what the SLC concerns were, how they were answered, or if any changes were made in response. We find only in a new last sentence to the staff report Discussion that "In addition, staff also reviewed the proposed revisions with the State Lands Commission staff, and they were satisfied with the amendment." I have seen a copy of a November 14 email from SLC to the City that was apparently obtained by a Public Records Act request to them. It raises a number of serious concerns, the answers to which it asked be provided in a revised staff report: 1. It points out that federal law, 33 USC section 424 and 33 USC section 424a, set the lines in Newport Harbor, including the line beyond which piers cannot extend, and authorizes only the Secretary of the Army to change them. 2. It also points out that California Government Code section 39932 prohibits California cities from fixing or establishing harbor lines "beyond or outside harbor lines established by the United States," and asks how this ordinance, which seems to do precisely that, complies. 3. It asks how the proposed limits were calculated. 4. It asks whether the proposal would allow extensions beyond those allowed by the present Policy H-1, and whether it would allow any piers to extend further than the existing ones. 5. It asks how the proposal protects the general public's navigational rights. It would seem the Council would want answers to all of those before enacting something in apparent violation of state and federal law. It might be noted that the Harbor Commission does not bring code amendment recommendations to the Council by means of a clear resolution, as the Planning Commission does. We are told only in the staff report that "The Harbor Commission supports the recommended NBMC amendment," and in the preamble to the proposed ordinance that "at the September 13, 2023 Harbor Commission meeting, the Harbor Commission by a vote of 5-0 (with two Harbor Commissioners absent) approved the recommendation to incorporate the entirety of H-1 into the Code as part of Title 17." This is disturbing because what is being recommended is not incorporating the entirety of the existing H-1 into the code, but rather incorporating into it a new and untested H-1. And none of this provides any assurance that what the Council is seeing is the same as what the Harbor Commission reviewed, or is it a version "improved" by staff after receiving input from the Commission? January 9, 2024, City Council agenda comments - Jim Mosher Page 3 of 11 It also seems curious that the Council is not provided even with minutes from the Harbor Commission meeting at which the proposal was recommended -- leaving the Council completely in the dark as to how thoroughly it was reviewed, and whether it was the result of debate and compromise. The Council is also not provided a copy of the earlier Policy H-1 whose limits the staff report implies it is restoring; nor a map showing the locations of the numbered bulkhead stations referenced in it, without which the ordinance is essentially incomprehensible. Having seen the SLC's concerns, I share them: The adoption of pier limits outside the federal ones appears in violation of state and federal law. The proposed limits appear to have no basis other than to justify whatever already exists and not inconvenience those who may wish to duplicate it. It appears to allow extensions beyond those allowed by the existing regulations. And its deference to the public's navigational rights seems symbolic at best. As to the latter point, at my suggestion the Harbor Commission, as a last-minute correction, carried forward a finding from the current policy, that an approved pier extension would not impede navigation. However, since every pier impedes navigation by diminishing access to public water, if they were to honor that finding, they could not approve any extensions at all. I believe the Commission did not incorporate my suggestion that in order to approve dock extensions it should be required to make all the findings listed. That is important since those who attend Harbor Commission meetings know that at least some of the commissioners regard the findings in previous versions of H-1 as no more than general guidance from the Council which they need to make only on balance. I do not have time to compare what is being presented to the Council to what was seen by the Harbor Commission on September 13, or to the former H-1 it is supposed to be based on. I will make only these specific comments: Proposed Sections 17.35.030.A.10.a&b (pages 3-9 and 3-17): These two subsections contain provisions governing the allowable width parallel to the bulkhead of floats on lots of various widths abutting the West Newport Channels, and examples for two. These provisions have nothing to do with the "bayward location of piers and floats" and belong in some other section of Title 17 or in the Harbor Design Guidelines. They may be a holdover from the days when Policy H-1 was a catchall for all harbor -related regulations, but they do not belong here. 2. Proposed Sections 17.35.030.A.19.b&c (pages 3-11 and 3-19). These refer to U.S. Bulkhead Station No. 259 and a rule for extensions that changes at that point (from allowing 10 feet beyond the pierhead line to allowing 16 feet). I believe Commissioner Marston pointed out this marker bisects the private pier at 200/202 South Bay Front on Balboa Island and there was no rule to decide which limit prevailed. I suspect that problem persists, and may exist elsewhere. 3. Proposed Section 17.35.030.A.17 (pages 3-11 and 3-19): The ordinance is proposed to allow piers only to the pierhead line "From U.S. Bulkhead Station No. 141 southerly to No. 140." The problem with this is U.S. Bulkhead Station No. 141 is on Harbor Island, southeast of the bridge while U.S. Bulkhead Station No. 141 is on the island northwest of the bridge. So, the direction between them is "northerly," not "southerly." In addition, January 9, 2024, City Council agenda comments - Jim Mosher Page 4 of 11 allowing piers throughout this stretch is in direct conflict with proposed Section 17.35.030.E.5, which prohibits piers from the bridge to Station No. 141. Evidently, not only the direction, but one or both of the station numbers in proposed Section 17.35.030.A.17 is wrong. How many other errors there are in the proposed ordinance is anyone's guess. 4. Proposed Section 17.35.030.E.2 (pages 3-13 and 3-21): "Lot 849" in the earlier versions of H-1 is being arbitrarily changed to "Lot 847." As I pointed out in written comments submitted to the Council on November 14, there appears to be no reason for this other than to provide a special privilege to the owner of 300 Via Lido Nord who has a pier in an area where piers have long been prohibited — crossing what is supposed to be a public beach with no piers: Similarly, areas where piers exist around Collins Isle where all previous Policy H-1's prohibited them would be allowed by this new ordinance. While the Council may choose to make such changes, the fact that they are being made should at least be clearly and explicitly disclosed. In summary, I do not believe the Council should delay introducing this ordinance until it has been more carefully reviewed and the concerns raised by the State Lands Commission publicly answered. It should have a formal resolution of recommendation from the Harbor Commission so it knows what it is seeing is what they reviewed and recommend. Item 5. Resolution No. 2024-2: Establishing the Ad Hoc Transit, Transportation, Parking and Mobility City Council Committee As the Council knows, the City is currently in the midst of what is supposed to be a citizen - driven comprehensive General Plan Update, likely to include a re-evaluation of the recently updated Circulation Element. But Council ad hoc committees rarely announce their meetings or provide progress reports, so public interaction with them has historically been minimal to nonexistent. How will the efforts of this Council committee coordinate with those of the citizens' committees of the GPU? January 9, 2024, City Council agenda comments - Jim Mosher Page 5 of 11 Also, the last sentence of the Discussion says "The ad hoc committee would terminate upon bringing its recommendations back to the full City Council or on December 31, 2026, whichever is sooner." I do not see the second part of this provision in the proposed enabling resolution, which says only (in Section 4) "The Committee shall expire upon making its recommendations to the entire City Council, at a noticed public meeting of the City Council." Why does staff think it might take three full years for a committee with a focused task to come back with a recommendation. Item 6. Assessment District No. 124 - Phase 1 (Central Balboa Island) - Award of Contract No. 9451-1 How does the contract cost being substantially lower than the Engineer's Estimate impact those who prepaid the undergrounding assessment? Item 7. Newport Boulevard Landscape Improvements (Industrial Way to Pacific Coast Highway) and West Coast Highway Landscaping Improvements (West City Limits to Highland St.) - Award of Contract No. 9226-1 (23L 01) Recommendation 'T' is to "Approve Landscape Maintenance Agreement with Caltrans for Newport Boulevard." This presumably refers to approval of Attachment C to the staff report. However, as best I can tell, the attachment is not mentioned, identified or explained in the Abstract or Discussion. Does the City already have such an agreement for the portion of West Coast Highway where the contractor is being asked to perform work? Why was the work there not performed previously? Item 8. West Coast Highway Joint Manhole & Valve Adjustments - Award of Contract No. 9417-1 (24R09) It would seem that the lowering and re -raising of manholes during a repavement project would be something closely coordinated with, if not provided by, the primary paving contractor. It would have been helpful to provide more background on why Caltrans no longer includes this task in their contracts and simply asks for reimbursement, and instead provides agencies the option of independently contracting for it. Although the staff report says doing this "avoids damages to the utilities and provides for a better paved finish surface once completed," does Caltrans have a different opinion? Has it developed paving procedures that it believes makes it unnecessary (for example, by accurately repaving to the existing height and not leaving the fixtures exposed to traffic during the intervening steps)? If so, this seems a large expense for something that may not be needed. January 9, 2024, City Council agenda comments - Jim Mosher Page 6 of 11 Item 10. Planning Commission Action Report for the December 21, 2023 Meeting and Agenda for the January 4, 2024 Meeting The Planning Commission is the only board or commission that routinely provides reports of its activities to the Council. It is also the only one whose meetings are coordinated with those of the Council, coming on the preceding Thursday. My understanding is the purpose of these reports, originally accompanied by an oral report and discussion, was not only to inform the Council of what the Commission was doing, but also to give Council members an informed chance to consider calling PC decisions up for review — something that has to be requested within 14 days, or less, of the original decision. In the case of the December 21 PC hearings, the Council did not hold a meeting the following week, so the opportunity to call for review any of the decisions made then has long since expired. But three of the decisions made then will be coming to the Council anyway, since they need its final approval. As I attempted to point out to the PC and staff, one of them, Item No. 4 Baldwin & Sons Medical Office (PA2022-158), a request for a General Plan amendment to allow the expansion of an office space in Newport Center, is troubled by confusion over what the Council approved in connection with the Tennis and Pickleball Club at Newport Beach back on November 14, 2023. Many believe the Council approved a 41-room hotel on that site. But as I tried to point out to the Council at the time, the approved Exhibit A to Resolution No. 2023-70 does not include a hotel. This impacts the Charter Section 423 analysis of all subsequent General Plan amendment requests in Newport Center. Regarding the January 4 Planning Commission meeting, it is evident from the agenda and action report, the PC had a single substantive matter: a hearing on a request to keep chickens on a lot in West Santa Ana Heights zoned for single family residential use. What is not evident is the multiple problems with staff's handling of this request and the subsequent action by the Commission. Animal Control and Planning staff seem to have proceeded on the assumption that our City codes prohibit the keeping of chickens on single family lots in Santa Ana Heights. This is at odds with the Planning Division's previous conclusion, presented to the Council as Item SS3 at the February 14, 2012, study session, where (in connection with controversy over a Corona del Mar flower streets resident keeping chickens) it was reported that chickens are allowed in the single family districts of Santa Ana Heights. It is also at odds with NBMC subsection 20.90.080.D.7.a of the Santa Ana Heights Specific Plan, which, carrying forward pre -annexation County regulations, allows keeping pets and animals weighing less than 300 pounds on those lots, as long as pens and cages are kept more than 25 feet from neighbors' windows and it is accessory to the main residential use and for noncommercial purposes. Even those rules can be relaxed through granting of a use permit. Staff seems to have misread Subsection 20.90.080.D.7.c as having been intended to terminate this privilege one year after annexation. January 9, 2024, City Council agenda comments - Jim Mosher Page 7 of 11 As a result, they instructed the resident to seek a "reasonable accommodation," which a hearing officer granted, but the PC denied, largely on their mistaken belief the resident was requesting a prohibited use. Compounding the error, the original hearing officer decision was never publicly noticed, but resulted from a "closed private hearing," in clear violation of NBMC 20.52.070.D.1.b, which says "The reasonable accommodation request shall be heard with, and subject to, the notice, review, approval, call for review, and appeal procedures identified for any other discretionary permit." Title 20 contains no provisions for waiving notice or holding "closed" reviews. It was painfully evident during the January 4 hearing that the Planning Commissioners had not read the codes they were being asked to interpret and were relying on staff's misinterpretations of them. It is also disturbing that staff accepted a decision from the PC (no chickens allowed) contrary to their and the hearing officer's recommendation (three chickens), without requesting time to prepare a modified resolution with findings justifying it that they could approve at a later meeting. In other words, the PC Chair and Secretary will evidently sign a resolution unseen by their colleagues, leaving the resident uncertain what was approved, and what in it they might challenge on appeal. There could well be sanitation problems at this particular residence that need to be remedied through code enforcement, but in the end our Planning Commission completely denied a resident a use of their property that our Council's codes allow. This may well be a decision a Council member wants to call up for review, saving the resident the cost of an additional appeal on top of one that should not have been necessary. Item 11. Annual Mayor Appointments This is the second year Council Member Blom has been appointed chair of, and only Council member on, the City's Environmental Quality Affairs Committee, a body with no citizen members that has not met since 2016 (and not actively since 2014). First, it should be noted that what I believe is the most recent EQAC enabling Resolution No. 2012-116 requires two Council member appointments, not one. Second, according to page 3 of the January 10, 2023, minutes, then -Mayor Blom said he was appointing himself as EQAC Chair to "assess the future" of the committee. The public has not heard that assessment yet. Will it be continuing this year? Regarding the proposed citizen appointment to the Newport Coast Advisory Committee, I appreciate Ms. Carey's eagerness to serve. However, like other Brown Act committees, it can meet only with public notice. It is difficult to determine when the NCAC last met, since the City Clerk does not appear to have an archive for its materials. I have been watching the City's actions since 2009, and carefully since 2011. During that time, I do not ever recall seeing a notice of a meeting of the NCAC. It might also be noted there may be some confusion about the NCAC's current membership. The web page linked above is vague about the terms of the members it lists. Three are unspecified and another three are listed as "until sunsetted." This is inconsistent with Resolution No. 2000-81 and the page, which clearly state the terms are "three years." January 9, 2024, City Council agenda comments - Jim Mosher Page 8 of 11 Item 12. Harbor Commission 2024 Objectives At its meetings, the Harbor Commission sometimes tells the public its objectives have been "approved" by the City Council. That seems to be a misunderstanding, for although the staff report says "the Commission requested the objectives be forwarded to the City Council for review and consideration," and the first sentence on the last page of Attachment A says "These updated objectives are subject to the review and approval of the Commission, and final approval by the Newport Beach City Council," this is being presented to the Council as a purely informational "receive and file" item with no discussion or "approval" anticipated. In receiving and filing Attachment A, the Council and public may similarly misunderstand the significance of the commissioner names appearing in the list of "Goals and Assignments" on the attachment's last page. My understanding this is a list of goals the Commission as a whole hopes to accomplish in the coming year. It is not meant to imply that the individual commissioners listed are tasked with individually executing them or directing staff. Rather, the commissioners listed are expected to bring back recommendations for what the Commission as whole needs to do to accomplish the goals. Item XVI. PUBLIC COMMENTS ON NON -AGENDA ITEMS I notice that since no resolution of intent to renew has been adopted, the Council is allowing the City's last BID, the Tourism Business Improvement District, to terminate on January 31. Does the City need to take any special action to ensure hotel guests are not charged a TBID fee after that date? Or to ensure the affairs of the TBID are wrapped up correctly? So far, no date for a final meeting of the TBID Board appears on the City's online calendar for January (its last meeting seems to have been on June 26, 2023). Item 13. Lecture Hall Building - Approval of Third Amendment to the Memorandum of Understanding with the Newport Beach Public Library Foundation; and Adoption of Resolution No. 2024-3: Dissolving the Newport Beach Library Lecture Hall Design Committee Part "d" of the staff recommendation is to adopt a resolution dissolving the Newport Beach Library Lecture Hall Design Committee. a. Since that is unrelated to the Library Foundation, yet intimately related (in staff's view) to the award the contract to construct a particular design, such an action belongs with agenda Item 14, where the award of a contract is considered, not with this one. b. It is also inconsistent with Resolution No. 2019-70, which anticipated the Committee would be a vehicle, through public meetings, for making recommendations "Throughout the duration of the Library Lecture Hall project," and on page 4 says: "EXPIRATION: The Committee's existence shall expire and sunset without further action upon the opening of the Library Lecture Hall." 2. Regarding part "b," the Third Amendment to the Memorandum of Understanding: January 9, 2024, City Council agenda comments - Jim Mosher Page 9 of 11 a. It would have been helpful to provide a redline of the MOU being amended, which is apparently City contract C-7444-4. Without seeing the existing agreement, how is the combined impact of the amendments and the parts not being changed supposed to be understood? b. The parts of the proposed amended Sections 2.1 and 3.1 referring to "fifty percent (50%) of the Estimated Project Cost or Eleven Million Seven Hundred Forty -Three Thousand Nine Hundred Sixty -Eight Dollars and 00/100 ($11,743,968.00), whichever is less" could be simplified to "Eleven Million Seven Hundred Forty -Three Thousand Nine Hundred Sixty -Seven Dollars and 50/100 ($11,743,967.50)" or simply "$11,743,967.50.11 2 i. This is because the "Estimated Project Cost" is not an unknown quantity, but rather a fixed amount, $23,487,935.00, agreed to in amended Section 1.3, 50% of which is $11,743,967.50. ii. The lesser of the two is known at the time of signing and does not need to be recalculated. The last sentence of amended Section 2.1 says "The Foundation agrees that it shall take appropriate legal action to collect all outstanding pledges." This implies pledges are legally binding. Is that true of those for the Lecture Hall? d. In line 4 on page 13-9 of the agenda packet, a word seems to be missing: "The Foundation shall place Seven Million One Hundred Thousand Dollars and 00/1003 ($7,100, 000.00) ("Escrowed Funds') of the Foundation Commitment into an escrow account at First American Title Company in Santa Ana, CA ..." Without "of," this would seem to be redefining "the Foundation Commitment." e. With regard to amended Section 3.6: I am pleased to see the Foundation's guaranteed use is limited to a maximum of 50 days per year, which helps to clarify the Foundation is helping to build a City facility, rather than the City helping to build a Foundation facility.4 ii. I am not sure the intent of the final sentence is clear: "The use of the Lecture Hall shall be subject to user fees in accordance with a cost study 2 As noted many times, the City's practice of listing numbers twice, once in words and once in numerals, is a poor one. Not only does it make documents significantly harder to read (creating mouthfuls like "Eleven Million Seven Hundred Forty -Three Thousand Nine Hundred Sixty -Eight Dollars and 00/100" which technically should be "Eleven Million Seven Hundred Forty -Three Thousand Nine Hundred Sixty - Eight and 00/100 Dollars and 00/100'), but it invites uncertainty since there is no stated and agreed to rule as to which prevails. At best the two agree, at worst they differ. 3 Again, "00/100" belongs before "Dollars," not after. 4 1 have long been troubled that although the Foundation's sole mission is supposed to be raising funds to support the public library, its marquee event, the "Witte Lectures," is not a fundraiser, but rather a private, ticketed exercise, organized and operated independent of the library and requiring extra donations to pay its costs. January 9, 2024, City Council agenda comments - Jim Mosher Page 10 of 11 to be prepared periodically on behalf of the City and approved by the City Council." The staff report for the following agenda Item 14 anticipates the maintenance and operation costs for the Lecture Hall will be at least $421,500 per year, or about $1,155 per day. 2. The Council typically charges only a fraction of the full maintenance and operation costs of the facilities it rents to those renting them, and offers additional discounts to community -based nonprofits. 3. Is this sentence meant to say the Foundation will be charged the same user fee as other local nonprofits? Or some other amount? 4. More significantly, do the parties understand the user fee is to be paid for each of the 50 guaranteed days used? Or only for events in excess of that? iii. Just before this, the section states that "During the Cure Period, the portion of the Foundation's annual endowment fund allocated to the Newport Beach Public Library, shall be paid to the City towards the Remainder of Final Payment of Foundation Commitment until the Foundation Commitment is paid in full." 1. Does anyone know what the amount of the Foundation's annual endowment fund allocated to the Newport Beach Public Library is? (I believe this refers to interest raised on the endowment) iv. Section 3.6 was formerly titled "Use of Library Lecture Hall," and provided "To the extent the City controls the use of the Library Lecture Hall, the Foundation shall have the right to use the Library Lecture Hall in accordance with the Board of Library Trustees Policy NBPL 15 attached hereto and incorporated herein as Exhibit 'B"." 1. The amendment deletes any reference to the "Library" or its Trustees, calling the facility simply a "Lecture Hall" (even though elsewhere in the MOU it continues to be referred to as a "Library Lecture Hall"). 2. Does this mean City staff now regards it as a City facility unaffiliated with the Library and out of control of the Trustees? 3. If so, how can the Foundation's contributions to it be justified? January 9, 2024, City Council agenda comments - Jim Mosher Page 11 of 11 Item 14. Central Library Lecture Hall Building Project - Award of Contract No. 7444-3 (19F11) Projects are typically put out for rebidding only when it is thought either a more favorable bidding environment will be found or cost -reducing modifications can be made to the project description. In this case, the engineer's estimate for the rebid was higher than it had been at the first bidding, and the lowest bid received was higher than all but one of those received in the first round. The public has not heard an explanation of why the Engineer's Estimate increased. Is this because errors were found in the previous estimate? Because a less favorable bidding environment was anticipated? Or because project enhancements, rather than reductions, were added to the description? Item XX. MOTION FOR RECONSIDERATION See note on Agenda Item 1, above. Resolution No. 2023-85 erroneously shows the Council selecting November 19 as its second meeting date in 2024. It in fact voted unanimously to select November 26. Resolution No. 2023-85 should be corrected to show what the Council approved on December 12. 1 concur with staff that November 26 is the better date. If any of the Council members want November 19, they should ask to reconsider their vote.