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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 24, 2024 Written Comments September 24, 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 September 10, 2024 City Council Meeting and Special Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in sb4keeu underline format. The page numbers refer to Volume 66. Pages 164 and 165: There are four references to a "9-11" ceremony or memorial. Is there some reason for deviating from the conventional way of writing "9/11" as used by nearly everyone, including American Legion Post 291, where the memorial in question happened? Page 168, Item XI: "4effy Terry Moore, Trellis representative, thanked the City for the three years of grant funding and noted the impact the program had on the community." Page 170, Item 11, paragraph 2: "Regarding Item 3 on the regular meeting agenda (Acceptance of Cash by Brick -and -Mortar Businesses), Mijanou Pham, resident and owner of Celebrity Cleaners Newport Beach, expressed concern for her employees' safety with having money onsite, noted that the business when went to a cashless system to mitigate robberies, and hoped Council will vote against the proposal." Item 3. Ordinance No. 2024-22: LCP Amendment Related to Nonconforming Uses and Structures (PA2022-076) Background The "Abstract" describes this item as making amendments to Title 21 (Local Coastal Program Implementation Plan) of the NBMC "complementary" to those made to Title 20 (Planning and Zoning) in 2022. More specifically, as explained in the "Discussion" section of the 134-page report supporting the 9-page ordinance, the proposed amendments have three separate purposes: (1) in view of the state currently prohibiting reductions in residential density, clarify that while units cannot be removed from lots with more units than their zoning allows, they can be improved; (2) on certain lots, allow the extension of the side exterior walls of homes legally built to a smaller -than -current setback; and (3) correct an internal reference error created during a previous amendment. Suggested Changes to Ordinance While the Council has to adopt the body of the ordinance ("Exhibit A" starting on page 3-11) exactly as reviewed by the Coastal Commission,' the portion preceding Exhibit A can be corrected, and I suggest these changes: Page 3-6, title block: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING SECTIONS 21.18.030 (RESIDENTIAL ZONING ' With the exception of the amendment to NBMC Section 21.38.020 (Applicability) proposed in Section 7 at the top of page 3-13, which the CCC seems to have authorized to be added "administratively." September 24, 2024, City Council agenda comments - Jim Mosher Page 2 of 11 DISTRICTS GENERAL DEVELOPMENT STANDARDS) 21.38.020 (APPLICABILITY), 21.38.040 (NONCONFORMING STRUCTURES), AND 21.38.050 (NONCONFORMING USES) OF TITLE 21 (LOCAL COASTAL PROGRAM IMPLEMENTATION PLAN) OF THE NEWPORT BEACH MUNICIPAL CODE TO CONFORM WITH STATE LAW AND CORRECT ERRORS RELATED TO SETBACKS (PA2022-076)" [Reason: Although the CCC may be allowing the change to Section 21.38.020.13 to be made administratively, it is still being made by this ordinance.] Page 3-6, second "Whereas": "WHEREAS, in 2005, the City of Newport Beach ("City') adopted the current Coastal Land Use Plan portion of its LCP, ineluding the Coastal Land Us Playas amended from time to time;" [Reason: As indicated in the adopting Resolution No. 2005-64, the City adopted its CLUP in 1981 (not "2005"), with certification in 1982. What happened in 2005 was a comprehensive update of the CLUP. A full LCP, including an Implementation Plan, was not adopted until 2016, with certification in 2017.] Page 3-7, first "Whereas": "WHEREAS, SB 330 established and SB 8 (2021) extended the Housing Crisis Act of 2019, which temporarily prohibits the City until January 1, 2030, from approving a housing development that results in a net loss of residential density;" [Reason: Since state bill numbers repeat with every legislative session, it is not meaningful to cite bill numbers without indicating the year of their enactment. Additionally, SB 330 (2019) created, but did not "extend" the Housing Crisis Act of 2019. The extension (ending on January 1, 2030) was accomplished by SB 8 (2021). It might be noted that despite the limited duration of the Housing Crisis Act, the proposed amendment does not contain a sunset clause reverting to the former NBMC on that date.] Page 3-9: "Section 1: The City Council does hereby approve LCP Amendment No. LC2022-002 (PA2022-076), amending Sections 21.18.030 (Residential Coastal Zoning Districts General Development Standards), 21.38.020 (ApplicabiliW, 21.38.040 (Nonconforming Structures), and 21.38.050 (Nonconforming Uses) of the NBMC, as set forth in Exhibit "A, " which is attached hereto and incorporated herein by reference." [Reason: see page 3-6, above] Additional Comments My further comments are primarily about the objective "(2)" of the amendments, as described in the "Background" section above, which, according to the staff report (page 3-2) is supposed to provide relief to owners of homes in certain zoning districts "constructed with lesser side setbacks under the County's jurisdiction, prior to City annexation." It is a topic I have a particular interest in both because I am the owner of an originally "R1-B" (and now "R-6000") property in the coastal zone, which the amendment could potentially affect, and because I have spent many frustrating hours trying to understand the existing sections of affected code and how they apply to allowed additions to non -conforming structures in the coastal zone, which I read differently from City staff. September 24, 2024, City Council agenda comments - Jim Mosher Page 3 of 11 Indeed, the staff proposal and its acceptance by Coastal Commission staff, seems a classic example of how poorly -written laws come into existence — a pattern I have noticed since first paying close attention to the City's activities in 2009. In that pattern, those entrusted to enact the laws for us (our Council members) seem to rely on staff to find the correct words to express what needs to be expressed, without themselves considering whether the words chosen actually express what the decision makers want to express or say what staff claims they say; and the staff members seem to assume the exact words don't matter as long as they (the staff tasked with enforcing them) knows what was meant. In the present case, this may be of little importance, since as I indicated at the end of the comment letter I submitted to the California Coastal Commission in connection with their May 8, 2024, meetina, there do not seem to be any former R1-B homes in the coastal zone "constructed with lesser side setbacks under the County's jurisdiction, prior to City annexation," and there may not even be any built to earlier City setback requirements that were later increased.2 As explained on page 3-2 of the staff report, the purported purpose of the amendment is to allow the owner of home with an external wall built to an originally legal 5-foot side setback to extend that wall with the same sub -standard side yard, and not have to "jog inward" by 1 foot to create the current 6-foot minimum side yard. As explained in my comment letter to the CCC, this very -limited exception to the rules for dealing with non-conformiing structures was clearly articulated in the Zoning Code of the 1960's, but as with a "game of telephone," with each subsequent iteration it became more and more garbled. The present iteration, which the Council is being asked to adopt, as shown on pages 3-11 and 3-12 of the agenda packet, is to add a footnote to the tables setting the 6-foot side set back standard. The footnote qualifying that standard will read: "An addition to the principal structure shall be allowed to be constructed to the side yard setback in effect at the time the principal structure was constructed provided the addition meets applicable building and fire code standards." Staff understands this to apply only to a principal structure originally built with a wall encroaching closer than 6 feet to the property line, and to permit, at most, a continuation of that wall at no more than the original encroachment, whatever that was, provided it was legal when built. But that is clearly not what it says. There is nothing in staff's sentence saying the principal structure had to originally be built with a wall encroaching into the currently required side yard. 2 My own R-1-6000 home was built in 1959 on property annexed into the City in 1956, at which time the minimum side setback requirement for a R1-B lot of its width was 6 feet, the same as it had been since 1950 and the same as it is today. I do not believe any of the R-1-7,200 or R-1-10,000 properties described in the staff report (which currently have 5- and 10-foot side setback requirements) exist in the coastal zone. September 24, 2024, City Council agenda comments - Jim Mosher Page 4 of 11 Instead, it is a clear instruction that if a less than 6-foot setback was allowed at the time of original construction, a new addition can be built to that original, lesser setback, irrespective of whether the original structure took advantage of it, or not. In other words, if I have home on a R-6000 lot that was built with a 10-foot side yard, and I can show that in the year it was built only a 3-foot side yard was required, this amendment says that in building an addition to that home, I can jog the walls outward to create a 3-foot side yard, even though the standard would otherwise require preserving at least a 6-foot yard. My suggested solution was to dispense entirely with adding the footnote modifying the setback standard, and instead expand the exception in the code governing additions to legally -nonconforming structures, as had been done in the code in the 1960's — specifically, adding to Subsection 21.38.040.1.3 something along the lines of: "3. R-1-6, 000, R-2-6, 000, and RM-6, 000 Coastal Zoning Districts. Existing principal structures in the R-1-6, 000, R-2-6, 000, and RM-6, 000 Coastal Zoning Districts whose only nonconformity is having been built to a legally nonconforming side yard setback can be extended in alignment with the previously approved setback provided the extension complies with all other provisions of this code." Neither City nor CCC staff seems to have understood either the suggestion or the problem with their proposed amendment. They did not ask for clarification, and instead dismissed the suggestion as "essentially our proposed LCPA amendment, just more wordy' (see page 3-118) and "unnecessary and makes the same point as the currently proposed language." Again, the language to be adopted (and that has already been adopted outside the coastal zone) says something quite different. The thought that staff understands it to mean something different from what it says — and that the lawmakers (if they consider it at all) accept the validity of an interpretation contrary to the clear language — is disturbing. Item 4. Ordinance No. 2024-20: Adding Chapter 5.98 (Acceptance of Cash by Brick -and -Mortar Businesses) to the Newport Beach Municipal Code In my written comments regarding this ordinance when it was introduced as consent calendar Item 3 at the Council's September 10, 2024, meeting, I noted San Francisco (with Ordinance No. 100-19) and West Hollywood (with Ordinance No. 19-1085) had adopted similar laws in 2019. As I said orally, I since learned that Berkeley had done so as well (with Ordinance No. 7,681, also in 2019), although Berkeley requires acceptance only of up to $20 bills for transactions of up to $500. Those remain the only California cities I am aware of with cash acceptance laws. The City of Los Angeles is apparently considering a ban on cashless business, but it is unclear what its prospects for adoption may be. Does staff know of any additional California cities that have enacted bans on cashless businesses? Or for that matter, any that have done so since 2019? September 24, 2024, City Council agenda comments - Jim Mosher Page 5 of 11 It is especially troubling that this item continues to careen toward adoption with zero discussion by Council and no further explanation by staff, despite uniformly negative feedback from the public at its introduction. Shouldn't there be a recommendation from the City's chambers of commerce? And from its Police Department? Why is staff recommending the $5,000 requirement of San Francisco and West Hollywood rather than the $500 limit of Berkeley? And since a requirement to accept large payments in coins will be especially burdensome on business owners, why is there no separate limit on those? It would seem from the article about the debate in Los Angeles, linked to above, that there may be legitimate reasons for some consumers to want the anonymity of cash, and equally legitimate reasons for some merchants to not want to deal with cash. But even in the cities that have enacted regulations, there is not agreement as to which specific businesses should be required to accept cash. Why would that not prompt discussion in Newport Beach?3 Item 6. Resolution No. 2024-70: Approving Side Letter Agreements with Labor Groups Representing City Employees The cryptic staff report accompanying the resolution is extremely confusing. The "Abstract" says "The City Council wishes to address the continued inflationary pressures City of Newport Beach employees are experiencing by extending prior side letters of agreement which provided a reduced employee retirement benefit contribution." But the "Discussion" says "Side Letter Agreements have been executed which temporarily reduce the employee retirement contribution through the last full pay period in December 2025, thereby adding a one-year extension to the prior side letters of agreement for these groups which provided for the reduction through December 2024." If Side Letters extending the reduction through December 2025 have already "been executed," what is this item about? Does the Council "wish" to extend the reductions beyond December 2025? If so, for how long? Equally disturbingly, despite the repeated references to "prior side letters," no hint is given anywhere I can find in the agenda packet to where those prior letters can be found. It appears the reference is to agreements approved as Item 26 on the Council's November 29, 2022, agenda. But that staff report is equally obscure, and like this one, provides no hint of how large the reductions were. I assume the Council gives preliminary consent to these agreements in closed session. Is the intent to make it as difficult as possible for the public to guess what their Council has agreed to? 3 If the intent is to ensure goods and services are equally available to poor, "bankless" people, exempting doctors and dentists from having to accept cash is particularly puzzling. September 24, 2024, City Council agenda comments - Jim Mosher Page 6 of 11 Item 7. 16th Street Pump Station Upgrades and Back-up Generator - Notice of Completion for Contract No. 7693-2 (18W13) Adding it to this contract may have been an efficient way to jump start work on the Collins Island sewer lift station upgrade, but one would not guess from either the "Abstract" or the "Location Map" that it was part of the work being approved. Item 11. Approval of Professional Services Agreement with Anchor QEA, Inc. for Balboa Yacht Basin Marina Design Consulting Services As Item 15 at the July 23, 2024, meeting, the Council approved a negotiating agreement for improvements to the upland improvements on the same property. Shouldn't there be some coordination between plans for the landside and waterside improvements? Item 14. Professional Services Agreement with Townsend Public Affairs, Inc. for Grant Writing Services There seems to be a disconnect between the City's expectation in Section 4.1 of the contract that the consultant will be paid on "a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B" (page 14-5) and consultant's expectation in Exhibit B (page 14-19) that they will be paid a fixed $6,000 retainer each month, independent of the level of activity. Item 15. General Plan Update Steering Committee (GPUSC) Bi-Monthly Update to the City Council and Confirmation of New Appointments to the General Plan Advisory Committee (GPAC) California Government Code Subsection 65302(f) makes a Noise Element, and certain features within it, including documentation of current and projected contours from major noise sources, a required component of every general plan. Health and Safety Code Section 46050.1 further authorized the development of guidelines for the creation and updating of noise elements, which the GPAC subcommittee I lead, tasked with recommending updates, is attempting to follow, even though the office that created them no longer exists. As may or may not be clear from the staff report, no work related to the Noise Element is included within the scope of the existing contract with GPAC's outside consultant, and as a result the subcommittee is struggling to follow the guidelines with very limited technical support. Hence, staff is seeking the Council's encouragement to bring back a possible contract amendment. Those reading the consultant's June 27, 2024, informal assessment memo provided as Attachment B may have the impression they think very little updating is required. I believe their position may have changed after meeting with the subcommittee and after further review of the contours provided in the existing plan. As indicated in the staff report, in addition to updating the theoretically modeled noise contours, an important step in the guidelines, for which outside assistance is needed, is to complete a September 24, 2024, City Council agenda comments - Jim Mosher Page 7 of 11 community noise survey, consisting of actual measurements at selected locations. The survey is needed to document, both in comparison to past measurements and for future reference, whether the City is making progress on reducing noise or becoming noisier. Item 6. 16. Resolution No. 2024-71: Denying an Appeal and Upholding the Decision of the Parks, Beaches, and Recreation Commission's Decision to Remove a Special City Landmark Blue Gum Eucalyptus Tree at the Balboa Branch Library and Fire Station; and Resolution No. 2024-72: Approving Coastal Development Permit and Zoning Exemption (PA2024- 0140) to Allow the Demolition of the Existing Fire Station No. 1 and Balboa Branch Library, and Construct a New Two -Story Fire Station No. 1 with an Attached City Library Since this item seems to have come before the Council primarily to resolve the appeal of one of the proposed tree removals, it is a bit surprising to see that the largely unrelated approval of the Coastal Development Permit and "Zoning Exemption" for the Fibrary construction included in the item. Regarding the tree matter, since this is an appeal of a PB&R decision, it is very strange that no record of the PB&R meeting in question is provided for the Council's (or public's) review. Not even the minutes of the March 5, 2024, meeting at which their decision was made. The authors of the staff report seem largely unaware that the Canary Island Date Palm along Balboa Boulevard (also approved for removal by PB&R, but apparently not appealed) is also a Special Landmark City Tree (see Policy G-1, Exhibit A, on page 16-152) — originally one of three as explained in the missing PB&R staff report (page 20 of the 108-page PB&R agenda packet 4). The staff report also deceptively implies (at the top of page 16-3) that both the Board of Library Trustees and PB&R support the layout being considered for final approval by the Council through the CDP process. The BLT has officially seen and voted on only the rough concept, unveiled literally at (and not before) their January 16, 2024, meeting; while if the March 5, 2024, PB&R minutes had been provided, it would be seen that while approving the tree removals, PB&R sought continued refinement of the building and playground plans: 4 For reasons unknown to me, several of the City departments post materials to the Laserfiche archive as large files that can only be retrieved (slowly) and then viewed as a unit, rather than in the more accessible page -by -page retrievable format used by the City Clerk. September 24, 2024, City Council agenda comments - Jim Mosher Page 8 of 11 Farks, Feacher. & Recreation Commission Minuter. March .5, 2o24 rage 9 Motion by Commissioner Chair Kate Malouf� seconded by Commissioner Anne Yelmy to: a) Approve the removal request of the Special City Blue Gum Eucalyptus (Eucalyptus globulus) Mee ID 3h18o) and Canary Island Date Palm (Phoenix canariensis) (Tree ID ghl 74) located at the Balboa Branch Library (100 E. Balboa Boulevard) under City Council Policy G 1 (Retention, Removal and Maintenance of City TI em). Staff will compile and present their findings to the PB&R Commission following the removal of both trees. Staff will remove the trees after ensuring that nesting season is over and all birds have vacated, trees will be removed no sooner than September of 2025. b) Continue to refine the Branch Library and Fire Station Site Concept Plans, Building Elevations and accompanying recreational components and layout. The motion carried by the following vote: Ayes: Malouf, Ignatin, Granoff and Yelsey Nays: Daruty, Kirby and Archer Such further refinement, if it has happened, has not been reviewed by either the BLT or PB&R. The implication that this project requires a "zoning exemption" from the City Council is also misleading. It is certainly not necessary. The normal procedure would be for the plans, after further review and recommendations by the BLT and PB&R, to be presented to the City's Planning Commission, who would apply their expertise to grant the code -required Minor Use Permit and conduct the Site Development Review required to grant the modest building height increase, along with the CDP. Why that process, and the possible improvements that would result from it, is being bypassed is completely unclear to me. Although most of the City Council members lack the experience and expertise provided by the Commission, I would hope that in reviewing the proposed Resolution No. 2024-72 (Attachment D) they would question these anomalies: Page 16-26: In the second "Whereas," I believe the "Public Works Division" is really the "Public Works Department." Page 16-26: In paragraph "b", 31 feet is not the maximum height allowed by the NBMC. It is the by -right "base height" to which increases can be allowed through a discretionary approval. Page 16-26: In the "Whereas" below that, the existing 4,500-square foot library was not built in 1929. A much smaller structure was built in that year. September 24, 2024, City Council agenda comments - Jim Mosher Page 9 of 11 Page 16-28: In "Section 2," "(Class 2 — Replacement of Reconstruction)" was presumably intended to read "(Class 2 — Replacement or Reconstruction)." Page 16-29: The first sentence of the first full paragraph refers to "the tree." There are more than one trees being proposed for removal. Page 16-31: In paragraph "4.1" it is unclear what body of water is being referred to as "the bay." he references. The water of Lower Newport Bay is about 640 feet to the north of the site's northern property line. The water body of water separated from the property by East Balboa Boulevard, is not the "bay" but the "ocean" (with the nominal water line about 850 feet south of the site's southern property line). The sandy beach is about 300 feet south of the southern property line. Page 16-32: Paragraph "9" recognizes the removal to two landmark trees, which is correct, but inconsistent with previous references to "the tree." Page 16-37: In Condition of Approval 2, isn't the prohibition against storing construction debris on public property an unnecessary (and impractical) constraint when the entire site is public property? Page 16-38: Condition of Approval 10 requires compliance with City regulations unless specifically waived by a condition of approval — yet the MUP and height requirements are not waived in any condition of approval I can see. Doesn't that defeat that part of the resolution's purpose? Page 16-38: In Condition of Approval 12, is the Zoning Administrator the appropriate person to modify the permit when he did not grant it? Page 16-39: Conditions of Approval 16 and 17 appear to be identical. Page 16-39: It will be extremely difficult, if not impossible, for a fire station to operate in compliance with the noise limits provided in the table in Condition of Approval 20. The second sentence and the table that follows it should be deleted. Page 16-39: Regarding Condition of Approval 21, will the Applicant (the Public Works "Division") really be paying the Planning Division for its review? Page 16-40: Regarding Condition of Approval 24, what is the significance of the Applicant (the City's Public Works "Division") indemnifying the City? Page 16-40 to 16-41: 1 number of the Building Division's "Conditions of Approval" sound like they may be citing errors noticed in the plans that need correction. I believe the Planning Commission, had they been given the normal chance to review this application, would have noticed these problems, as well as possibly other defects in the design. I hope the Council will, as well. September 24, 2024, City Council agenda comments - Jim Mosher Page 10 of 11 Item 17. Resolution No 2024-73: Amending Portions of the Adopted and Certified 6th Cycle Housing Element, and Ordinance Nos. 2024-16 and 2024-17: Amending Title 20 (Planning and Zoning) to Create the Housing Opportunity (HO) Overlay Zoning Districts and Establish Multi -Unit Objective Design Standards (PA2022-0245) This item is predicated on the assumption that the proposed City Council actions are consistent with City Charter Section 423 ("Greenlight"), requiring voter approval of certain major amendments to the General Plan. Since all the City's employees and its elected and appointed officers (including me as an appointed member of the General Plan Advisory Committee) have sworn to uphold the California Constitution, and since Article XI, Section 3 of that Constitution empowers the voters of a city to adopt a charter, as the voters of Newport Beach have done, that through Article IX, Section 5 constrains the actions of their local government, there should be no question of whether the Council must follow Section 423, even if they think doing otherwise would be in the best interest of their constituents. The only question, then, is whether, in the words of Section 423, a "state or federal law precludes a vote of the voters on the amendment," in which case the section would be inapplicable, and the Council freed of its obligation to schedule a vote. As someone who, fearful of the consequences of a negative Greenlight vote and the litigation that might follow it, has long suggested the City look into whether there could be a way to invoke that preclusion in connection with meeting the state's RHNA requirement, I am pleased that it has. However, I do not think staff has found a solution. Staff claims to have accomplished this by asking the Council to insert a statement (top paragraph of page 17-19) into the Housing Element stating that "a Charter Section 423 vote is precluded," after which they will ask HCD to certify the Element as consistent with state law, as an HCD staffer has promised to do. However, a statement written by the City, whether certified by HCD, or not, is not a state or federal law precluding a vote of the voters on the amendment. Indeed, City staff, in its proposed amendment, has cited no state or federal law prohibiting votes on housing plans, and it seems unlikely there could be any, since other California cities have held and are planning to hold votes of their electorates on plans to meet their RHNA obligations. Moreover, both the current and the proposed -to -be -certified Housing Elements give the City considerable latitude in how it may implement sufficient rezoning to fulfill RHNA. Specifically, under Implementation Actions in Section 4 (Housing Plan) they say "It is expected there may be deviations from the targets with future implementing zoning actions. New opportunity sites may be identified, and other sites may be deemed unsuitable, or densities may be modified, all based on new information received over time. The City may adopt future zoning strategies that are more or less than the identified targets in this Housing Element provided the total unmet RHNA need by income category is accommodated within state -defined deadlines." September 24, 2024, City Council agenda comments - Jim Mosher Page 11 of 11 If HCD has not constrained the City Council to a particular rezoning strategy (and by extension, the exact Land Use Element amendments allowing that strategy), by what logic could it preclude the voters from making a choice? Alternatively, if the Council is truly now constrained to adopting exactly the rezoning/Land Use Element amendment strategy dictated by the Housing Element adopted on September 13, 2022, then the Greenlight vote should have happened then, before proceeding any further. Either way, the Council is not following the Charter unless the vote is held. Regarding the ordinances presented for second reading at this meeting, I thought it very inappropriate for them to be introduced on July 23. Because the issue at that meeting was whether a Greenlight vote would be needed before the Council could consider them (or at least the 6th Cycle Implementation one), they did not receive any meaningful discussion then. And since this is now the second reading, making changes, even if they could be improved, is strongly discouraged. The City will be the poorer for this, and there seems no excuse for the rush, since even by the most conservative reckoning they didn't need to go into effect until February 2025.