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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 13, 2024 Written Comments February 13, 2024, 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 SS5. Housing Element Implementation Program Amendments The agenda announcement indicates the purpose of this study session item will be to provide an overview of the "Revised drafts of the Land Use Element, Housing Opportunity Overlay Zoning Districts, and Objective Design Standards have been made available for community review," the EIR and the timeline to complete the implementation. It is surprising it provides no means to access any of these documents, especially the drafts of the first three, which are linked to from the City's 6th Cycle Housing Element Implementation Program page. I differ from staff's recommendations in at least two important respects: 1. 1 feel it is inequitable to make housing overlay opportunities only to pre -selected property owners in designated focus areas. I believe all owners of similarly zoned and situated properties should have equal access. 2. 1 remain puzzled not to see what I thought was the promised "sunset" provision whereby all new overlay opportunities in the City would cease when and if the City as a whole met its 6th Cycle RHNA requirement. While each individual focus area has a limit in the staff proposal, development fully to that limit remains available regardless of whether the RHNA quotas have been met by development in other areas, potentially allowing development substantially over the requirement for the City as a whole. In view of the risk of bringing down a state ruling invalidating Greenlight (City Charter Section 423), 1 also continue to think the most important issue continues to be how the requested capacity increases are presented to voters in November. I continue to think the safest approach is to note the addition of a certain amount of housing is a state mandate sufficient to trigger Section 423's "savings" clause precluding voters from rejecting the required increase. And then, in lieu of the normally required Greenlight vote, offer at least two distinctly different ways of adding the required housing with a promise the one receiving the most votes will be chosen, even if it does not receive a majority vote. That would save Greenlight from challenge, yet give voters some choice. With regard to the just -posted EIR, a quick review suggests its authors are unaware of the still -binding 2002 Pre -Annexation Agreement for Santa Ana Heights, which requires any changes to the General Plan or zoning affecting that area to be approved the Orange County Board of Supervisors. Some of the opportunity sites for the Airport Area Environs focus area lie in that area where the County has worked diligently to remove airport -impacted housing. It seems unlikely the Board would support an overlay allowing it to return to housing. February 13, 2024, City Council agenda comments - Jim Mosher Page 2 of 6 Item 4. Resolution No. 2024-8: Resolution of Intention to Disestablish the Newport Beach Tourism Business Improvement District and Fixing the Time and Place of a Public Hearing Does the TBID need to disestablish itself? This item seems unnecessary to me, and likely inconsistent with state law. The staff report says "Per its amended MDP, the NBTBID expired on January 31, 2024. In lieu of renewal, each member of the NBTID submitted letters requesting the disestablishment of the NBTBID." Since the TBID was a creation of the City Council, it seems entirely logical that Council action might be required to ensure its affairs will be properly wound up, including disposition of any final assets. Nonetheless, I am unable to find anything in the Property and Business Improvement District Law of 1994 (found in Streets and Highways Code sections 36600 - 36671) requiring (or even allowing) the Council go through the proposed disestablishment process. On the contrary, the fact that the TBID's term has expired without renewal seems sufficient. Nor can I find anything giving the Council discretion over how any lingering assets or assessments will be disposed of. To be sure, prior to the BID's normal expiration, Section 36670 requires the Council to provide a 30-day opportunity each year for a majority of the assessees of a "1994 BID" to petition for its earlier disestablishment and if such a petition is received, requires notice and a hearing on the matter before it can be disestablished. However, 1994 BIDs also expire on their own, without such a petition, if the council fails to go through the renewal process specified in Section 36660, in which case Subsection 36671(a) mandates exactly how the final assets will be disposed of (namely, after payment of debts, assets existing on the date of expiration, will be refunded to the assessees, and assessments collected after expiration will be spent on the activities described in the management plan). The proposed Resolution No. 2024-8 (Attachment B) claims "the City received the written petition of the owners or authorized representatives of businesses in the NBTBID who pay fifty percent (50%) or more of the assessments levied requesting the disestablishment of the NBTBID." However, the January 25, 2024, resolution from the TBID Board (Attachment A) is in questionable compliance with Section 36670, first because it does not bear the signatures of people claiming to represent 50% of more of the assessees (and hence would not seem to be a petition), and second, because it does not appear to have been signed during the annual 30-day petitioning period specified in the Act (which starts on the anniversary of the establishment date and runs for 30 days after it). Does the TBID really intend to end? Even if this were a valid disestablishment proceeding, the proposed resolution does not appear to comply with the 1994 Act, and seems, instead, to be part of the TBID members' effort to continue their existing operations free of City oversight, as a new "non-profit," February 13, 2024, City Council agenda comments - Jim Mosher Page 3 of 6 In particular, as to the disposition of assets that may be "discovered" after disestablishment, Section 3 of the proposed resolution says "(1) all remaining assets, if any, acquired with revenues from the assessments levied within the NBTBID shall be donated to a nonprofit organization." That is in clear conflict with the Act, which, in Subsection 36671(a), is explicit as to how assets and revenues of a 1994 BID must be disposed of, and does not list donation to a nonprofit as an option. Yet, seamlessly transferring operations to a new non-profit calling itself the Meetings Assessment Partnership (MAP), rather than ceasing operations and refunding assets, seems to be exactly what the TBID Board has in mind. And despite assurances in the "NBTBID Resolution Requesting Disestablishment" (Attachment A), to be accepted by the Council in Resolution No. 2024-8 (Attachment B), that the TBID has no assets, it appears from the Professional Services Agreement between NB&Co. and MAP approved by the TBID Board at its tast public meeting on January 25, 2024 (see agenda and TBID Asset / Liability Schedule a/o January 31, 2024 attached to it and the Agreement), that the TBID anticipates having $4,594,728 of cash on hand as of January 31, 2024, all of which (to the penny) will magically be "encumbered," and all of which it will transfer to the new non-profit to expend on previously -identified activities through the end of the fiscal year on June 30, 2024. As to the MAP, details do not seem to be readily available, but judging from the address in the Agreement, it looks to be yet another addition to the constellation of "independent" organizations operating under the Newport Beach & Company umbrella. Unlike the TBID, which exacted a 3% of gross revenues fee from its members, the MAP will expect a 5% contribution from its clients (members?) starting February 1. If formally passed on to hotel guests, it will apparently, along with any other surcharges, be itemized in quotes and bills starting July 1, as required by the new SB 478. Given the importance of the Council (and public) understanding the TBID's ending financial status, it is not clear why the Owners' Association's "annual report for the 2023-2024 fiscal year ("Annual Report'), which is on file in the City Clerk's Office, reflecting the NBTBID's outstanding unpaid debt, assets, and identifies the amount of funds remaining for distribution" (as it is referred to in the final "Whereas") was not included with the present agenda packet, or at least linked to from the staff report. Has Visit Newport Beach met state transparency requirements? Although the 1994 Act does not appear to require a council resolution to disestablish a BID whose term is ending, one thing it does require (in Section 36612) is that the "Owners' association," although not a government entity, comply with the Brown Act whenever discussing BID business. In this case, the TBID Management District Plan approved by the Council designates Visit Newport Beach as the Owners' Association (see Resolution No. 2014-7). VNB's compliance with the Brown Act has not been stellar. February 13, 2024, City Council agenda comments - Jim Mosher Page 4 of 6 To begin with, at some point its board seems to have delegated governance of the TBID to a separate TBID Board. Whether that happened at a noticed public meeting is difficult to verify since it is outside the range of agendas and minutes archived by the City (2013-2024). Most, if not all, of the TBID Board members appear to be members of the larger VNB Board, which does not meet publicly. One has to suspend belief to imagine that nothing relevant to TBID business is not discussed at those non-public meetings. One especially has to suspend belief to imagine there was no non-public discussion, and indeed agreement to transition from the TBID to MAP prior to the only public meeting at which the question of non -renewal and disestablishment of the TBID was on the agenda (the January 25 meeting). To this observer, who attended the January 25 meeting, it certainly appeared that the same set of hotel general managers had just concluded a private meeting (most likely as the MAP Board) before admitting the public and reconvening as the TBID Board. Council members may note that a recommendation to approve the "NBTBID Resolution Requesting Disestablishment" (Attachment A) was not on the January 25 agenda, and even though the Brown Act prohibits anonymous actions, it does not identify who voted for it. A recommendation to approve the Professional Services Agreement between NB&Co. and MAP was on the agenda, but the actual agreement says it is between VNB and the MAP, and it is not clear who authorized the TBID Board to act on behalf of VNB. Moreover, neither of the signatures, purporting to be the chairs of the VNB and MAP Boards, is identifiable. In short, transparency has not been a hallmark of TBID operations nor their end Item 5. Slurry Seal Program (FY 2022-23 and FY 2023-24) - Award of Contract No. 9380-1 (24R04) The staff report is less than clear on which of the communities listed were missed in FY 2022-23, and whether they will be revisited in six years rather than the usual seven. Item 7. Approval of an On -Call Maintenance and Repair Services Agreement with Cal Building Systems, Inc. for Fire Systems Maintenance, Repair, and Inspection Services The intended scope of this contract is not clear to me from either the staff report or the contract itself. The staff report mentions four facilities in the Abstract ("the Civic Center (including the parking structure), Utilities Yard, Public Works Corporation Yard, and the Back Bay Science Center"), but at the end of the Discussion, it mentions the Animal Shelter, the new Library Lecture Hall and the Junior Lifeguard Training Center, as if they would be included as well. The Scope of Services on page 7-20 omits several of those, but includes "Corona del Mar State Beach." Whatever the list, it is not obvious why these have been singled out, for surely there are many other City facilities with fire systems. Are those serviced by the City itself? Or by a different vendor? I cannot tell. February 13, 2024, City Council agenda comments - Jim Mosher Page 5 of 6 As to the Jack Bay Science Center, my understanding is that is a shared facility, of which the City is only one of four partners. Do the others share the cost of fire system maintenance? Item 8. Approval of Professional Services Agreement with Moffat & Nichol for Newport Harbor Seawall Replacement / Rehabilitation Design It appears the Qualifications Based Selection process did not include consideration of cost other than that "The fee proposed by Moffatt & Nichol is reasonable." Yet according to the table on page 8-2, the City has two proposers with essentially identical qualifications. Under such circumstances, wouldn't it be prudent to choose the one able to complete the work at the lowest cost? Item 9. OASIS Senior Center Site Lighting Project — Award of Contract No. 9009-2 (23F02) It is not uncommon for the City to receive widely different bids. But in this case it seems unusual there are two very similar low bids and two very similar high bids, nearly three times greater than the low bids. Does staff understand what about this project would have resulted in such different estimates of how much it would cost to complete? Item 11. Modifications to 2015 Pierce Aerial Ladder Truck with Pump It is refreshing to see the Fire Department's candor in admitting its trial of a "quint" was unsuccessful and disclosing the reasons it would be wise to remove the water pump. It might be noted, however, that in the original approval, as Item 12 on the June 11, 2013, consent calendar, the Council does not appear to have been informed of the internal disagreement over whether including a pump was a good idea, or not (as detailed at the top of page 11-2 of the present staff report). It is also unclear if the manufacturer warned of possible problems. Instead, readers of the Abstract were promised "A new fire apparatus will replace an aging unit and provide a higher level of service while reducing costs and staff time for maintenance." Presumably the City paid extra in 2013 to include the pump, yet has since paid more, not less, for maintenance, and will now need to pay even more to have the pump removed. Item 13. Ordinance No. 2024-4: Termination of Development Agreement No. 2008-005 for Sober Living by the Sea, Inc. dba Sierra by the Sea, Inc. Zoning and Public Benefit Agreement (PA2008-199) As I said at the Planning Commission meeting, it is unclear why Sober Living by the Sea is requesting termination of its agreement, since it pays no annual fee to continue it, and seems to be able to assign it to a successor, for which one would assume it could receive significant compensation. That said, it might be noted it is unclear if this agreement is now, or was ever, enforceable for most SLBTS properties. February 13, 2024, City Council agenda comments - Jim Mosher Page 6 of 6 This agreement purports to apply to properties in the City's coastal zone, yet for cities that do not have a fully certified Local Coastal Program on the date the agreement purports to be entered into, Government Code Section 65869 makes the agreement's provisions inapplicable within the coastal zone unless approved by the California Coastal Commission. This agreement was entered into on September 30, 2009, and Newport Beach did not have a certified LCP until 2017. 1 have never seen any evidence that approval by the CCC was sought or received. Item 14. Resolution No. 2024-9: Intent to Override Orange County Airport Land Use Commission's Determination of Inconsistency for the Residences at 1400 Bristol Street (PA2022-0296) I cannot support this notice of intent to override the ALUC's determination of inconsistency. ALUC members thought this was a "terrible" place for housing, since it is directly under a location where small planes departing John Wayne Airport are turning at full power and relatively low altitude. Not only do I agree with the ALUC that this is a poor location, but I am concerned about the issue of liability. The staff report notes on page 14-5 that "Public Utilities Code Section 21678 states that if the City overrides ALUC's action or recommendation, the operator of the airport shall be immune from liability from damages to property or personal injury caused by or resulting directly or indirectly from the City's decision to overrule the ALUC determination." In this case, the City's proposed action will relieve the County of liability. Common sense would suggest that liability moves to the City. City staff has never explained why it is not concerned about this. Possibly it assumes the City will be protected by the indemnification clauses it puts in all land use approvals. While it is possible that may provide some protection, in overriding the ALUC, the City is in effect telling the developer "The ALUC says this is an unsafe place to build, but we know better and can assure you it is OK." Indemnification clause, or not, in the event of an accident, it would seem extremely naive to imagine a jury would not find the City at least somewhat responsible for the consequences of its bad advice. Item 15. Resolution No. 2024-10: Intent to Override Orange County Airport Land Use Commission's Finding of Inconsistency for the Residences of 1401 Quail Street (PA2023- 0040) Same comment as for Item 14.