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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 10, 2024 Written Comments September 10, 2024, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosherC@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the August 27, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in st#ikeeu underline format. The page numbers refer to Volume 66. Page 154, paragraph 1: "Jim Mosher questioned the transparency of who and how many staff members would be receiving a bonus in Item 4 (Side Letter Agreements with Labor Groups Representing City Employees), voiced concern about the message being sent to the public about drinking alcohol on the beach in Item 5 (Waiving Council Policy B-8, and Section A.1 of Council Policy B-13 to Permit an Annual Charity Volleyball Tournament and To Allow for Alcoholic Beverages on a City Beach), and public education about waste management programs and the validity of green waste diversion statistics in Item 20 (Response to the Recommendations of the Orange County Grand Jury Report "Talking Trash: Recyclables and Organic Waste')." Comment: The minutes omit my opening remark about the difficulty of the public commenting on 21 separate consent calendar items in a single 3-minute minute statement — which is the primary reason I submit written comments in advance of the meeting. Although not reflected in the minutes, in my August 27 remark, I mentioned (again) the City of Benecia where, for the edification of both the Council and the public, the mayor reads the agenda title of each consent calendar item before inviting requests for individual discussion of any of them. See, for example, the video of the most recent mayor's reading of the consent calendar from their September 3 meeting,' followed by his invitation to members of the council and public to pull items for discussion. Page 159, Item 12, paragraph 3: "Bill Gromes-ki Grabowski expressed his dissatisfaction with and opposition to the proposed surf park and asked to not approve the project." Page 161, paragraph 3 from end: "Jim Mosher inquired about the ratio of Be Well fepfesentatives calls helping the general Newport Beach population to the homeless population and asked if tithe ordinance makes it legal to sHew.allows people to sleep on the grass during the day and move at night or if it is prohibited by another law." [see video] Page 162, paragraph 8, next to last sentence: "She supported the police department and an alternative policing regimen regimen, allocating resources to -for the new team, focusing on quality of life and street exits, and beginning in-house prosecution." Page 162, paragraph 9: "Councilmember Avery noted this issue is his number one disappointment, the importance of public input, and the City needs to deuble redouble its efforts and quickly." ' As I also noted, the city council in Benecia is scheduled to meet three times a month, on the 1st, 2nd and 4th Tuesday, although they don't always do so. I misstated that they meet weekly, as the Council in Santa Barbara does (with exceptions) per Section 506 of their charter. September 10, 2024, City Council agenda comments - Jim Mosher Page 2 of 7 Item 3. Ordinance No. 2024-20: Adding Chapter 5.98 (Acceptance of Cash by Brick -and -Mortar Businesses) to the Newport Beach Municipal Code As I have commented many times, introducing and then adopting ordinances on the consent calendar, without Council discussion and with minimal public awareness, seems like a poor practice (see contrasting comment about the City of Benecia under Item 1, above). And this one seems particularly odd coming from a Council that generally seems to believe cities should impose minimal restrictions on businesses. For consistency between jurisdictions, don't the rules governing processing transactions seem like a matter that should be dealt with on a statewide or national level? Additionally, the staff report does not address any possible negative consequences of adopting the measure, including real concerns about crime surrounding the accumulation and handling of cash which this requires of business owners. The Loomis armored car company, which naturally has an interest in promoting cash transactions, maintains a database of Pro -Cash Legislation. As of October 2023, they were aware of only two other California cities requiring acceptance of cash transactions: San Francisco (with Ordinance No. 100-19 in 2019) and West Hollywood (with Ordinance No. 19-1085, also in 209). The West Hollywood version has no exceptions as to kinds of business or size of transaction other than that business people are not required to accept denominations larger than $100. The proposed ordinance appears similar to the San Francisco one in its findings and structure, although some of the detailed rules are different. For example, our Council is being asked to substitute a $50 denomination limit in place of San Francisco's $20 bill limit. Additionally, San Francisco, with a more limited "Professional Services" exception, requires medical and dental providers to accept cash. Since the source' of the proposed code is not revealed, the reasons for these differences are not explained in the staff report. I might observe that the proposed exception for single transactions over $5,000, identical in wording to the San Francisco ordinance, makes little sense to me. The purported purpose of the legislation is to empower consumers with no means to pay other than cash. But as illustrated in the example provided in the San Francisco code (but not copied into ours), for a $7,500 purchase, the code requires a merchant to accept the first $5,000 in cash, but allows them to refuse cash for the amount over $5,000. That means the only consumers who can complete the transaction will be those with a non -cash means of payment. If so, why not require them to pay the full amount that way, and avoid forcing the merchant to handle and store $5,000 in cash? 2 SB-926, co-authored by California state Senator Scott Wiener in 2020, who the Council in the past has cited as an author of bad ideas, and banning refusal to accept cash at retail stores statewide, died in committee. 3 Since I have not reviewed the other ordinances in the Loomis database, I do not know if the present proposal was "borrowed" from a jurisdiction other than San Francisco. September 10, 2024, City Council agenda comments - Jim Mosher Page 3 of 7 It would seem that if the intent is to empower cash -only consumers, there should be no limit on the size of the transaction. Otherwise, they remain unable to participate in the larger purchases. I might also note that although they would already be excluded as not providing services at a permanent fixed location, City staff has found it important to include an exception for "services provided at a person's residence, such as, construction, home repair, plumbing, cleaning, and landscaping, or professional services." While I don't understand the theory under which those would not have to accept cash, while the others would, I believe "person's residence" should be "customer's residence," since it is unclear if the "person" referred to is the service provider or the consumer. I would additionally note that in its otherwise very similar definitions, San Francisco has switched from the older, stuffier "shall mean" construction to the more concise and accurate "means." I thought Newport Beach had made that switch in recently -adopted codes, as well, and am disappointed to see it regressing. Finally, I would note that San Francisco capitalizes defined words, such as "Brick -and -Mortar Business," Cash" and Professional Services" when they appear in the code. That would seem a useful practice for Newport Beach to adopt. Without it, readers cannot tell if they are encountering a specially -defined word, or not. Item 4. Ordinance No. 2024-18: Approving a Development Agreement for the Residences at 1600 Dove Street (PA2022-0297) The entitlements proposed to be protected by this Development Agreement were adopted without much discussion at the August 27 meetings. I previously commented that the Greenlight implications of adding 49 dwelling units not previously allowed by the General Plan were not clearly disclosed, but instead relegated to a May 23, 2024, Planning Commission staff report (page 22-182 of the August 27 Council staff report). The 49 units were, in fact, all the Council could approve in statistical area L4 without a vote of the electorate in view of the previous approval of the same applicant's request to add 64 units to its 1400 Bristol Street project. And with the Charter Section 423's 80% of previous approvals rule, there will now be only 9 more units the Council is free to add to the Airport Area. The pending approval without a public vote of a 2,577-unit Airport Area Environs residential overlay (mostly in statistical area L4, but partially in other areas) will, of course, muddy that calculation. Although discussed in the staff report, there also seemed insufficient discussion of the proposed extremely high density (for Newport Beach) seeking to be entitled, which was also relegated to the prior Planning Commission staff report (see bottom of page 22-184). As indicated there, the "planned" community in which this project would be built anticipates residential densities of 30 to 50 dwelling units per acre. The pending Airport Area Environs overlay would not increase the upper limit, and would, indeed, allow densities as low as 20 du/ac. Density bonus units, by definition, are offered in excess of the maximum density allowed by the code. But in this case, even without considering the bonus units, the applicant is proposing to convert enough existing office space to create a density of 55.8 du/ac, Waiving the code upper limit to allow both that and adding the 49 extra base units raises the density to 75.5 du/ac, and then allowing the September 10, 2024, City Council agenda comments - Jim Mosher Page 4 of 7 density bonus ends up with 113 du/ac. Allowing 113 du/ac where just 50 du/ac (75 with 50% bonus units) was planned seems rather extreme. It caused one Planning COmmissioner to vote "no," and may have provoked discussion by the Council if it had been more clearly disclosed. Additionally, as I pointed out on August 27, this development agreement would be guaranteeing a project that far too few affordable units to meet the Council's goal of entitling 2,707 units through the addition of just 8.174 total base units to our General Plan. That requires 33% of approved base units to be affordable. Here, with just 28 of 188 base units promised to be affordable, we have just 15%. Finally, there was no clear disclosure of how the public benefit fees associated with this development agreement compare to the development impact fees discussed at the August 27 study session. One would think that to secure the additional privileges and guarantees of a development agreement, a payment larger than the normal impact fees would be required. Will this agreement generate more or less revenue than would have been generated without it? For all these reasons, the Council may wish to rethink its support of this agreemen. Item 5. Ordinance No. 2024-19: Amending Chapter 10.08 (Interference with Public Access), Chapter 10.14 (Prohibition Against Camping in Public Places), and Section 11.04.070 (Prohibited Conduct) of Chapter 11.04 (Parks, Park Facilities, and Beaches) of the Newport Beach Municipal Code At the August 27 meeting where this ordinance was introduced, I asked if it would allow a person without money for lodging to exist in Newport Beach by sleeping (next to their possessions) during the day on the grass in a public park and staying moving (with their possessions) during the night. I did not receive an answer. I guessed we could not make it illegal to be without a place of lodging, and surmised this might be an option for a person without one. That was based on "open grass areas" being excluded from the definition of ""Landscaped area" (staff report page 5-7) where sleeping is prohibited (page 5-9), and the definition of "Unattended" (page 5-8) not seeming to require the person claiming ownership of property to be awake (albeit they have to be present). Item 7. Resolution No. 2024-67: Supporting Proposition 36, the Homelessness, Drug Addiction, and Theft Reduction Act It is good, and presumably non -controversial, to see that our City Council wants to reduce homelessness, drug addiction, and theft. However, the resolution supporting a proposition on the November 2024 ballot which it seems to think will accomplish those goals, seems oddly disconnected from the election itself, both because those goals do not seem things one can ensure through legislation and because no proposition with such a title is expected to appear on the ballot. September 10, 2024, City Council agenda comments - Jim Mosher Page 5 of 7 Instead, I find a Proposition 36 whose official title is "Allows Felony Charges and Increases Sentences for Certain Drug and Theft Crimes." That seems more reasonable, since one can, by legislation, define the charges and sentences associated with crimes. The idea that creating felony charges for certain drug and theft crimes and increasing the sentences imposed upon conviction will reduce homelessness, drug addiction, and theft seems pure speculation. Indeed, I am unable to find anything about "homelessness" or "addiction" in the official analvsis. The alternative, and much more far-reaching, title seems to come, along with arguments in the measures favor, from the proponents' petition. Indeed, Section 1 of the petition says "This Act shall be known as The Homelessness, Drug Addiction, and Theft Reduction Act." But that is proposed as an uncodified section, and as I understand it, laws are interpreted to do what they say, not what is said about them. While the word "addiction" occurs a few times in the codified text, "homelessness" does not, other than in the proposed Government Code Subsection 7599.200(a): "This section shall be known as "Funding for the Homelessness, Drug Addiction, and Theft Reduction Act." I suppose it is the prerogative of proponents to pick whatever title they want for their petitions. But why not call it something so good sounding that even fewer voters would ask for details, such as the "Make America Safe for Babies Act"? Item 9. Resolution No. 2024-69: Creating the Human Capital and Compensation Ad Hoc Committee I don't believe it's a good idea to form these ad hoc committees that meet privately and produce recommendations, generally rubber-stamped by the rest of the Council, based on information from unknown sources and of unknown accuracy, That said, it is good to see staff seems to be attempting to be more transparent about their creation in comparison to the recent past when the recommendations of "Council working groups" were announced without who created the working group, or what it was tasked with, ever being explained.' It might be noted these are now being created at a rate making it difficult for the City Clerk to keep track of which currently exist and which have terminated. Under "II. Council Committees" on the current Boards, Commissions and Committees page the Clerk lists (without further details) a "Ad Hoc Committee on Homeless Task Force," a "Ad Hoc Municipal Code and Council Policy Review Committee" and a "Ad Hoc Residential Care Facilities Committee." While under the same title, the Roster of Boards, Commissions and Committees lists (with more information and membership) a "Ad Hoc Transit, Transportation, Parking and Mobility City Council Committee," a "Destination Marketing Services Ad Hoc Committee" and a "Lower Castaways Park Ad Hoc Committee." ' This still seems to be the case with development agreements and other matters where Council members will announce they participated in the negotiation, with no record of any publicly -announced authority for them to do so. September 10, 2024, City Council agenda comments - Jim Mosher Page 6 of 7 The absence of overlap between the two lists is a bit troubling, and leaves one wondering if there are more or less than the ones listed. For example, at the August 27, 2024, Council meeting, it was unclear if Item 24 (Homeless Outreach Services Biannual Update) included concluding recommendations from the Ad Hoc Committee on Homeless Task Force (assuming it still exists), and if it did, whether it has concluded its deliberations or will be continuing as a standing committee (in which case, all its meetings should be noticed and open to the public). The other disturbing trend is some of these ad hoc Council committees appear to end their stated terms without providing any recommendation. Item 14. City Hall and Limited Off -Site Holiday Closure (Beginning Tuesday, December 24, 2024, Through Wednesday, January 1, 2025) My recollection is these holiday closures originated because a former City Manager wanted to have a week in which he didn't have to worry about managing City employees. Even if their bargaining units acquiesce to this, I don't think it's fair to force employees to use their personal time off at a particular time of year. I also don't think it's fair to residents and businesses to have City services inaccessible. I think continuing to operate with a reduced workforce would be preferable. Additionally, a review of the Council meetings archive will reveal that prior to about 1985, the Council, also, did not seem to feel a need to take off the last weeks of the year. Item 15. Dismissal of a Civil Service Board Member It is strange that City staff would have lost contact with this person appointed as part of Item 20 on June 27, 2023. 1 hope she is well, but also that the announcement of an unscheduled vacancy will result in more applications than were previously received (with only three having been available according to the draft minutes5 of the June 5, 2023, Civil Service Board meeting). Although it is of limited relevance to the present agenda item, I might note that this board is somewhat misnamed. I believe that based on its name, some of the applicants assume its purview is limited to issues affecting the City's civil service employees, which are basically only our sworn safety officers. However, City Charter Section 711 (Civil Service Board - Powers and Duties) assigns to it a much broader scope. In addition to recommending changes to the civil service rules and regulations, it is supposed to advise the Council "on problems concerning personnel administration" (not necessarily confined to civil service employees), "Receive and hear appeals submitted by any person employed by the City' (with its decisions final as to civil service employees, but not as to others), and "Make any investigation concerning the administration of personnel in the municipal service" when requested by the Council, City Manager or any City employees association. In the years I have watched its activities, I have never seen the Board receive an appeal from anyone other than a civil service employee, nor conduct any investigation. That makes me think these Charter -assigned powers and duties overseeing our non -Civil Service employees may not be widely known. 5 Approved minutes of the June 5, 2023, meeting do not seem to have been posted. September 10, 2024, City Council agenda comments - Jim Mosher Page 7 of 7 Item 17. Ordinance No. 2024-21: Amending Title 21 of the Newport Beach Municipal Code to Update Density Bonus Regulations to Comply with State Law (PA2020-032) Our Mayor, who is proud of the claim that the number of words in the Municipal Code has been reduced rather than expanded during his time on Council, may be pleased that the Council's August 23, 2022, request to the California Coastal Commission for permission to add over 7,000 words6 to Title 21 (mostly copying the obsolete words in Chapter 20.32), has been reduced to an addition of under 400 words, confined to describing the special treatment of density bonus applications in the City's coastal zone. It may be less evident from the current staff report and the record of the April 12, 2024, CCC meeting, where this matter was heard, that the suggested reduction in length was recommended in a CCC staff addendum responding to correspondence received from a certain resident of Newport Beach. One might wonder if the lengthy Chapter 20.32 might benefit from similar treatment, rather than yet another round of amendments and additions in late fall, as the current staff report suggests may happen. Chapter 20.32 was last considered for amendment as Item 19 at the same August 23, 2022, meeting where the original Title 21 addition was proposed (and where a similar comment was made by the same resident). In my comment on Item 10 on the July 26, 2022, Council agenda, I observed that in 2020, City staff itself had suggested shortening the code by deferring to state law without attempting to restate it. s 7,319 is the word count of a plain text print-out of NBMC Chapter 20.32, which is similar to the originally proposed Chapter 21.32. Part of that is likely to be a count of numbers rather than words. It also seems to differ from earlier estimates for reasons unclear to me. But whatever the correct count, the proposal was to add a lot of words to Title 21.