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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 26, 2024 Written Comments March 26, 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 1. Minutes for the March 12, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in sWkeeu underline format. The page numbers refer to Volume 66. Page 56, Item SS3, paragraph 2: "Council Member Blom announced he would be recusing himself during discussions relative to Utility Undergrounding Assessment District Nos. 120 and 124, the Balboa Island Main Water Main Project, Balboa Island Street Drainage and Pump Station Improvement Projects, Santa Ana Avenue and San Bernardino Avenue Streets and Drainage Project, and the Peninsula Tidegate Improvement Project due to real property interest conflicts." Page 57, paragraph 1: "Deputy Public Works Director Houlihan utilized a presentation to review the look, -purpose of the CIP, allocations to the CIP, projects totaling $24 million completed to date during FY 2023-24, and projects totaling $102 million that are currently under construction." [The transcriber appears to have entered the title of the title slide. The presentation began with "purpose of the CIP." The early look review starts in paragraph 3.] Page 62, Item 11, paragraph 6: "Councilmember Kleiman thanked Mr. Medina and Mayo Councilmember Grant for their work, questioned whether Cal Cities Cities has done any material advocacy relative to RHNA, noted Cal Cities' influence on Proposition 1 and its impact to the City, and expressed concern for the responsible use of the City's dues to represent Newport Beach and its furtherance to reinstate local control." Page 62, Item 11, paragraph 8, sentence 2: "Mr. Medina stated that the availability ef her seat would be -`r--` ve become vacant immediately in the event of nonrenewal." ["Effective immediately" was in response the question "When will the seat become vacant?"] Item 3. Ordinance No. 2024-6: Amending Chapter 10.08 of the Newport Beach Municipal Code Regarding the Use of Public Property for Commercial Purposes (PA2024-0015) As the draft minutes reflect, at the introduction of this ordinance on March 12, a member of the public, Adam Leverenz, asked if it would subject to potential impoundment a vehicle parked on a public street or a dingy at a public dock if they were displaying a "For Sale" sign. City Attorney Harp indicated there were special protections under state law for vehicles being sold, so it wouldn't apply to that. That is comforting, but it is unclear what those special protections are. California Vehicle Code Section 22651.9 actually allows cities and counties, by ordinance or resolution, to enact regulations allowing the impoundment of vehicles "found upon a street or any public lands" March 26, 2024, City Council agenda comments - Jim Mosher Page 2 of 5 where "(blecause of a sign or placard on the vehicle, it appears that the primary purpose of parking the vehicle at that location is to advertise to the public the private sale of that vehicle" (subject to certain technical requirements in executing the impoundment). While there may be first amendment issues involved, the City of Los Angeles, for example, in its municipal code Section 87.55, has, since at least 2011, allowed impoundment of parked cars displaying "For Sale" signs or an increasingly long list of streets. More locally, Anaheim, in Section 14.32.181 of its codes, has similar impoundment regulations against cars advertised for sale on arterials and streets close to them, at least if the streets are posted with warnings. And the City of Bell, in its Section 10.44.040, prohibits parking on any public street in that city a motor vehicle with a "For Sale" sign. Although it is presumably not the Council's intent to impound cars or boats with "For Sale" signs, it seems the original ordinance may have been broadly enough worded to have long made that illegal, and now subject to impoundment, provided the procedures in Vehicle Code Section 22651.9 were followed. To avoid future claims of unequal enforcement, do personal vehicle sales need to be added to the list of permitted activities in proposed NBMC Subsection 10.08.030.B? Also, while found in a section entitled "Use of Public Property for Commercial Purposes," NBMC Section 1.08.020 says the section headings are of no significance. So it is not obvious that in the longstanding prohibition in Subsection 10.08.030.A, now subject to impoundment, against using "any public right-of-way or parkway or other public property for the purpose of storing or displaying any equipment, materials or merchandise, or any other commercial purpose," that the "storing" or "displaying" must be "commercial." Should it perhaps say "for the purpose of commercially storing or displaying any equipment, materials or merchandise, or any other commercial purpose"? Or is it indeed the intent that anything stored on public property can be impounded under this section (in which case, even if the section title is not significant, it should be revised to reflect that broader intent)? Item 4. Underground Utility Assessment District No. 111, Underground Utilities District No. 22 Phase 2 & 3, & Utility Undergrounding for McFadden Alleys and Court Street - Notice of Completion for Contract No. 7833-1 (21A11) City staff maintains a helpful Assessment District Status page, including AD 111 (created by Council Item 16 on January 12, 2016, at an estimated cost to property owners of $3,425,886), although there has not been an update on its status posted since April 2022. From that and the present report, it is not entirely clear to me if the completion of this contract awarded as the Council's Item 10 on August 25, 2020, represents the completion of the City's portion of the AD 111 project. The accounting is a bit difficult to follow since a lot of extra work (including some as far afield as 12th Street and Medina Way), much if not all apparently funded by outside utilities, seems to March 26, 2024, City Council agenda comments - Jim Mosher Page 3 of 5 have been added to the original contract, which had already included the non -resident -funded Underground Utilities District No. 22. Although there is an assurance at the end that this "did not require any additional assessment district funding," I would think the bottom line question from the AD 111 residents' point of view is where their share of the expenditures (however that is unentangled) stands relative to the amount assessed from them. Will they be due a refund? Or is it premature to ask that? Item 5. 38th Street and Lake Avenue Landscape Improvement Project - Reject All Bids for Contract No. 9008-1 (23L01) I am puzzled by the statement in the staff report that "there is no pedestrian access to the beach." While it is true there is a low wall bordering much of the sidewalk, as shown in this Google Street View from June 2017, people of ordinary mobility can (and do) step over the low end of the sidewalk wall and reach the sand: Subsequent photos show the concrete trash receptacle and some of the planting around the base of the streetlight pole was removed, so one does not even have to step over the wall. Nonetheless, it is good to see Public Works staff is working to improve access. I don't know if they recall the possibly still active planning application PA2019-113, which seeks to turn this streetlight pole into a cell phone station. The plans do not seem to indicate the need for any ground level equipment cabinets, but they do require work around the base of the pole. The application was approved by the Zoning Administrator on August 27, 2020, and again (on appeal) by the Planning Commission on October 22, 2020, but subsequently appealed to the Coastal Commission. March 26, 2024, City Council agenda comments - Jim Mosher Page 4 of 5 Item 6. Approval of Amendment No. Six to Professional Services Agreement with Chambers Group, Inc. for Superior Avenue Pedestrian/Bicycle Bridge and Parking Lot Environmental Services - Contract No. 8020-4 (15T09) The staff report says amendment to extend the duration of the contract is being requested, in part, due to the need for the contractor's continued assistance with the West Coast Highway Intersection Improvements and Pedestrian Bridge project. However, the location of the WCH Project is not indicated on the Location Map (Attachment A). Item 7. Budget Amendment No. 24-059: Allocate Additional Funds for the Comprehensive General Plan Update (CIP Project No. 20M11) Since "capital improvements" generally refer to alterations to physical things, it has always seemed a bit strange to me to find the budget for the General Plan Update (which has at best a tenuous connection with the City building anything) listed in the CIP. Wherever it belongs in the budget, I have some trouble understanding the specifics of the request. Table 1 of the staff report suggests the request is precipitated by the Dudek contract, and, together with the narrative, it appears that in the first 7 months (from July 2023 through January 2024), $464,645 has been spent on a $1,478,029 contract with 23 months left to go (February 2024 through December 2025). At the initial spending rate of $65,000 per month, another $325,000 is expected to be spent in the remaining 5 months of FY24 (February through June), followed by $1,170,000 in the final 18 months of the contract. Table 1 also indicates there is currently only $130,703 left in the CIP budget, so it is expected another $325,000 - $130,703 = $194,297 to get through FY24, to the start of FY25. But an immediate injection of $750,000 is being requested with a promise that "The remainder of funds needed will be addressed next year through the regular budget process." As to that remainder, a steady $65,000 per month spending for the 30 working months from July 2023 through December 2025 would come to $1,950,000, which is $471,971 over the initial contract amount. So it's possible a contract increase may be needed in calendar year 2025. What I don't understand is, with this year's regular budget process for FY25 underway and expected to be completed in less than 3 months, why is $750,000 being requested when less than $200,000 is needed to get to the start of FY25? Item 8. 2023 Annual General Plan and Housing Element Progress Report (PA2007-195) This annual report regarding the Clty's current General Plan has long seemed to me to deserve more attention than it receives. March 26, 2024, City Council agenda comments - Jim Mosher Page 5 of 5 While much of it is devoted to progress on housing, pages 8-13 through 8-16 and 8-32 through 8-66 deal with progress towards achieving the goals and policies found in the elements other than the Housing Element. This is done by citing activities in support of the many Implementation Programs found in Chapter 13. As I have pointed out at the GPAC meetings (of which I am a member), the problem with this is that a single Implementation Program (such as "update City codes") can be used to support multiple policies. So examples of actions being taken to implement one or more policies does not ensure there has been any action on other policies relying on the same implementation program. Even allowing for that, some of the reports of progress can be misleading. As an example, as I pointed out at the March 14 Finance Committee meeting, where the annual fee updates were being reviewed, Implementation Program 7.2 reminds staff to "Revise Fair Share Traffic Contribution Ordinance," and the annual report, which may seem compliant, says, on page 8-35, "Partially Complete and Ongoing - The City continues to adjust the fee annually for changes in the Consumer Price Index." But the CPI adjustment is just a stop -gap measure and not what the Implementation Program 7.2 requires, namely to conduct the periodic assessment that NBMC Subsection 15.38.050 calls for, in every fifth budget cycle, of anticipated transportation infrastructure improvement costs and how to allocate them. Similarly, for the GPAC Safety Element subcommittee, staff prepared a policy -by -policy review of what had been done to implement each policy in that element, and there were a number that had been neglected — something one would not guess from the present report. As to housing, readers of the report may notice the City continues to make very little progress producing housing for "low" and "moderate" families. This is because the state gives developers an incentive, in the form of luxury "bonus units," to include "very low" income units in their design, and they have an obvious economic incentive to produce "above moderate" units. The report indicates what little has been produced in the "low" and "moderate" categories has been in the form of Accessory Dwelling Units, and (as HCD anticipated) the numbers of ADU's are much too low to meet the City's RHNA requirement (compare Tables A, A2 and B on pages 8-17 to 8-18) . Item 9. Ordinance No. 2024-7: Terminating Two Non -Exclusive Franchise Agreements for Commercial Solid Waste Attachment B, the "Notice of Default — Haul -Away Rubbish Service Co." dated December 7, 2023, requires an emailed response from Haul -Away by "by 5:00pm Friday, January 5, 2023." Since January 5 fell on a Thursday in 2023, but a Friday in 2024, the "2023" is likely a typo. If not, the request for Haul -Away to respond months before the notice was sent would require them to have access to time travel, a technology that has not yet been entirely perfected.