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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 8, 2024 Written Comments December 8, 2024, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosherCLDyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS3. Recommendations Made by the City Council Ad Hoc Committee on Proposed Aquatic Complex at the Lower Castaways Park Site The agenda says "Staff will provide a project overview and discussion on a proposed Aquatic Complex at the City's Lower Castaways Park Site, recommendations from the Ad Hoc Committee and seek community and Council input, as well as any direction on moving forward with a potential project." However, since the Ad Hoc Committee meets privately and without public knowledge, and since no further advance information has been provided, the public (and presumably the Council members not on the committee) have not the slightest idea what the "proposed Aquatic Complex" may be. Yet, staff is expecting to receive "direction" on it, suggesting decisions will be made. I would suggest this is a poor way to proceed, and that study sessions should be confined to "study," and not include decision -making of any kind. I believe that at the study session, staff and the committee should present their ideas and answer questions about it, but "any direction on moving forward" should come as a separate, properly agendized item scheduled for a future meeting after the Council members (and public) have had a chance to digest what has been "studied." Item IV. CLOSED SESSION Item IV.A is noticed on the agenda as a performance evaluation of the City Manager. As the notice indicates, the City Manager is a public employee, and more specifically one of the three public employees reporting to the City Council (the other two being the City Attorney and the City Clerk). Typically, employers evaluate their employees annually. Although the current City Manager's contracts have allowed the Council to set performance goals and evaluate performance, it has been many years since a City Manager's contract in Newport Beach has required annual goal setting and performance review. It appears from the Clerk's Council minutes archive, that the performance of our City Manager, City Attorney and City Clerk were last reviewed in April and June 2023, so we are not far from a 1-year cycle. However, prior to that, it does not look like their performance had been reviewed since October and November 2020 — a three-year lapse. It seems like this lack of regular, formal oversight could be improved. The transparency of the process could also be improved. As it is, the public has no idea if the Council sets goals for these key employees, and if so, what those goals may be. Of the few public agencies with which I am familiar, this may be compared to the Costa Mesa Sanitary October 8, 2024, City Council agenda comments - Jim Mosher Page 2 of 8 District (my sewer service provider), whose governing board, at the start of each year, publicly discusses its annual goals for its General Manager (see, most recently, Item E.5 from its January 22, 2024, agenda). That seems like a good practice to me. Although the public is not privy to the board's closed session evaluation of the General Manager's management of the goals, at least they can see some rationale for their recommendations as to compensation. I would note that many of CMSD's publicly -set General Manager goals look like organizational goals, and setting those does not seem to me to be a proper topic for closed session discussion. I would hope that if the City Council sets goals for the City Manager in closed session, they would be confined to goals related to management style, and not the substance of what the City wishes to accomplish. I would also hope the City Attorney, or someone from his office, will be present to ensure the Council does not stray into topics that need to discussed in public. Item 1. Minutes for the September 24, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in s*�,4keeu underline format. The page numbers refer to Volume 66. Page 176, Item XIII, paragraph 1, sentence 1: "Adam Leverenz utilized slides to display and discuss the tidelands boundary at the Balboa Yacht Basin and email exchanges with Mayor O'Neill." [The paragraph makes little sense without identifying the area being discussed. Even with this correction, it fails to indicate the subject was allegations of conflict of interest.] Page 177, Item 17, paragraph 1: "Assistant City Manager Jurjis and Planning Manager Zdeba utilized a presentation to provide background, discuss community outreach efforts, the Housing Element Update process, key changes, focus areas, the housing strategy for compliance, summary of the Regional Housing Needs Assessment (RHNA) status and site inventory, the no net loss prevention provision and the importance of a buffer, the Housing Element implementation legislative amendments, ..." [Neither word appears in the video, but "provision" seems what was intended.] Page 177, Item 17, paragraph 2: "Councilmember Blom thanked staff, noted that the City has eked pushed back against the State from the start, expressed concern for loss of local control to the State, questioned the motivation for a developer to fund the lawsuits, and emphasized Council's goal to protect the City and maintain local control." Page 177, paragraph 6 from end: "Tony Hereka Khoury thanked Council for their hard work and relayed the importance of having detailed plans for an increased population, e.g., health care, and education." {Longtime Airport Working Group representative on the City's Aviation Committee.] Page 177, paragraph 5 from end: "Jeanie Massingill supported allowing a vote by the people." {Was this spelling of the first name requested? If not, I believe the minutes may have inadvertently substituted her pronunciation her name, which is spelled "Jeanne."] Page 178, paragraph 9, sentence 2: "She relayed her goal of wanting to secure the minimum amount of land use development standards in order to protect the City and its October 8, 2024, City Council agenda comments - Jim Mosher Page 3 of 8 villages." [Comment: The video confirms that this is the phrasing Councilmember Grant used. However it is difficult to see how minimizing development standards could protect "villages." I suspect she wants minimum development with strong, protective standards.] Item 3. Ordinance No. 2024-23: Amending Chapters 5.95 (Short -Term Lodging Permit) and 15.02 (Administrative Code Related to Construction & Demolition Waste Permits) of the Newport Beach Municipal Code Although I am sure this item is well intentioned, I think it has many problems. Among them: 1. As I have stated many times before, I don't think introducing ordinances, and subsequently adopting them, on the consent calendar, without any public discussion, is a good idea. Creating laws should be serious business. Each is presumably needed to solve a problem, and they deserve discussion of: (a) what the problem is, (b) what alternatives are available to solve the problem, (c) whether the alternative proposed is the best one, and (d) whether the precise text proposed accomplishes what is claimed to do. 2. Although Article IV of our City Charter does not seem to include a "single subject" rule for ordinances,' this particular ordinance appears to address two subjects with little or no obvious connection. That, too, seems a poor practice since it deprives the Council of the ability to vote on the issues separately. 3. Perhaps most importantly, there appears to be significant doubt as to what the second subject of the ordinance is. a. The agenda notice quoted above indicates it is "Related to Construction & Demolition Waste Permits." b. The proposed ordinance title on page 3-5 (quoted in Recommendation "b" on page 3-1) says, instead, the second part relates to "Administrative Procedures Related to the Extension of Deadlines and the Handling of Deposits and Fees" without indicating what kind of permits it might affect. c. The body of the staff report and the Whereas clauses of the ordinance suggest the changes will apply only to permits for the complete demolition of a structure. 4. The redlines provided as Attachments B and C lack the context necessary to understand the proposal. As an example of problem #4, on page 3-12, a Subsection 5.95.043.0 is proposed to be added to the NBMC and existing Subsection 5.95.043.13 modified. But both redlines reference and seem to modify the effect of Subsection 5.95.043.A. Yet that subsection is not shown. 1 In contrast, Subsection 275(b) of the San Diego City Charter provides such a rule. October 8, 2024, City Council agenda comments - Jim Mosher Page 4 of 8 Similarly, on the same page, two subsections of NBMC Section 5.95.065 are shown, one modified and one added, but at least three other subsections, which could affect the reading of the two shown, are hidden from view. How are the public and Council expected to understand whether the proposal does what it claims without seeing them? As an example of problems #3 and 4, the opening sentences of the code snippet shown at the top of page 3-14, proposes to say: "Prior to issuance of a building permit for construction having a valuation over $100, 000 or a demolition permit for complete demolition of a structure, the permittee shall certify that a City franchised solid waste hauler shall be used for the handling, removal and disposal of all construction and demolition waste. A permit deposit and fees, set by Resolution of the City Council, shall be paid at the time of submitting the building or demolition permit..." By its plain reading, the section proposed to be modified applies not just to "complete demolition" permits, but also to any construction permit valued over $100,000.1 Which is correct? Are there some other code sections, not shown, that change this interpretation and make the changes applicable only to complete demolition? Is it a problem to introduce an ordinance affecting construction and demolition permits with a staff report and an ordinance preamble assuring readers it will affect only demolition permits, when it will, in fact, apparently affect both? Or is it staff's intention to have the Council pass a law clearly saying it applies to both, but, in practice, apply it only to "complete demolition permits"? As to the substance of the proposals, both give City employees (in one case the Finance Director and in the other the Building Official) the ability to take action based on what the employees regard as "good cause." Shouldn't the ordinance include some examples of what "good cause" might be, and at least equally importantly, examples of what the Council would not regard as "good cause"? While I am all for leniency in the administration of our laws, lack of clarity invites their arbitrary and unequal application. Item 4. Ordinance No. 2024-22: LCP Amendment Related to Nonconforming Uses and Structures (PA2022-076) See previous comments on Item 3 from September 24. This ordinance proposes to copy into Title 21 (Local Coastal Program Implementation Plan) of the NBMC changes previously approved to be added to the parallel provisions in Title 20 (Planning and Zoning). Although its stated purpose is to correct an existing oversight or ambiguity, as I have previously indicated, I believe this copies into Title 21 a new ambiguity previously approved for Title 20. 2 The requirement to use a franchised hauler for both makes sense to me, since construction projects can generate substanial amounts of waste even if they do not involve a complete demolition. October 8, 2024, City Council agenda comments - Jim Mosher Page 5 of 8 Specifically, the ordinance is supposed to have a very limited and nuanced application, effectively grandfathering in outdated setback requirements, but applicable only in very limited circumstances detailed in the sections on non -conforming structures. However, as shown on pages 4-9 and 4-10 it proposes to add what I believe are unnecessary footnotes to the tables setting our City's current setback standards. A little reading of the footnote is that for these properties to which the footnote applies, the setback standard in effect when the home was constructed, if more lenient than the one stated, is the current standard for that property. As a result, neither the existing structure (should it have been built relying on the old standard) nor any new construction built based on the standard in effect years ago would be "non -conforming" and hence the more detailed "exception" provided in the newly -revised section on non -conforming structures is inapplicable to it. Item 6. Newport Beach Junior Lifeguard Building Project - Notice of Completion No. 7524-2 19F13) This report is a little unusual. Usually a "notice of completion" includes authorization to release bonds, but that is not included here. I assume the omission is intentional but I do not see an explanation. Similarly, the cost summary on page 6-2 shows $469,962.79 of change orders. Normally there would be some description of what changes were ordered. I do not see that. The explanation of the dispute over the walls is also not entirely clear. The cost summary indicates the City charged TELACU $137,500 in "liquidated damages" for 55 days of delay, but TELACU is now seeking $1,259,028.96, and another $388,808.75, from the City. I assume they are not seeking a bonus for screwing up, so I take it these claims represent unexpected additional costs they claim to have incurred as a result of what they claim to be improper actions by the City? Item 8. Utilities Locker Room Maintenance - Award of Contract No. 9501-1 (25F03) I appreciate that, as is common with Public Works Department projects, the staff report says "The project plans and specifications will be available for review at the October 8, 2024, City Council meeting or upon request." Nonetheless, it would seem like it would have been useful to include, maybe, one or two pages from the plans, so people could visualize the size of the locker room, the extent of the work, and why its "maintenance" would cost more than $200,000. As it is, I don't believe it even says how many lockers there are. October 8, 2024, City Council agenda comments - Jim Mosher Page 6 of 8 Item 11. Purchase of Four Model Year 2028 Pierce Manufacturing, Inc. Fire Engines Page 11-2 of the staff report says "Per City Council Policy F-9: City Vehicle / Equipment Replacement Guidelines, fire engines shall be replaced every 13 years. Frontline units going into reserve status may be kept for an additional five to seven years." This seems to be correct, but it differs significantly from the treatment of non -emergency vehicles, where the Replacement Schedule is intended primarily for financial planning purposes and the actual vehicles may be in service for a longer or shorter time depending on their condition. By contrast, the last paragraph of Policy F-9 says "Fire engines, trucks and ambulances are placed within stations as frontline vehicles when they are purchased. They will remain in a frontline status until the expected useful life is over. At that time, the engines and trucks will be placed in reserve status for an additional period of time as described above." The "will" in the last sentence appears to be the basis of the statement in the staff report that "fire engines shall be [i.e., are required to be] replaced every 13 years" even if they seem to still be in good condition. On the other hand, applying the same interpretation to the "will" in the sentence that precedes that would indicate the Fire Department is required to retain equipment "in frontline status" even if it has become unusable. That makes no sense, so the Council may wish to rethink this as a statement of policy. As to the substance of the report, it goes into some detail about the 2013 purchase of the four engines proposed to be replaced, but does not describe the more recent purchases in 2015 and 2020, other than to list them in the table at the bottom of page 11-3. Approval of the purchase of the last of these was evidently approved as Item 8 on the Council's September 8, 2020, agenda, and would presumably have been fully impacted by COIVD supply chain issues, but the table indicates they were delivered in less than a year. What is the plan if the equipment is delivered well ahead of the expected 4-year delay? And despite the discounts, isn't the resulting 50% increase in price over four years rather large? Is there a chance the prices have peaked and may abate? As to the 260 pages of attachments, the Fire Department is, as usual, very thorough in its disclosures, and has provided a very fat addition to the agenda packet. It allows the Councilmembers and public to review such things as the proposed position, size and caps for the outlet elbows. While this makes fascinating reading, given that few members of the Council or public are experts on best practices in fire engine design, might some of this detail be overkill? Compared to Item 8 on the present agenda (see above), where the Council is being asked to approve one -fifth the cost of a fire engine based on only the vaguest description of what features that will purchase in an un-depicted locker room, and with no detailed specifications at all, might there be some happy medium? October 8, 2024, City Council agenda comments - Jim Mosher Page 7 of 8 Item 12. Approval of Services Agreement with Mueller Solutions LLC for Sentryx Software and Extended Warranty for Repeaters and Collectors With the completion of the installation of digital meters, this ongoing contract presumably replaces the one for the hand reading of mechanical dials. Although other benefits are cited, it might have been helpful to remind the public and Council of what that previous method cost. Item 13. Amendment No. One to Option to Ground Lease Agreement with Balboa Fun Zone Realty Investments LLC for Use of Palm Street Parking Lot Located at 200 Palm Street The staff report is very sketchy as to what the Council would be agreeing to with this agreement, and why having it is to the City's advantage. Many difficult to understand legal documents are attached for the public and Council to try to decipher. Wouldn't it have been more helpful to include the staff report for from November 25, 2014, which set this in motion. Are the terms of the possible lease that the Council is being asked to provide an option for the same as they were then? Or have any of the attached documents changed them? I understand how this agreement, for which the other party pays very little, is of advantage to them. I'm not sure I see how it is of advantage to the City. Wouldn't it be better to negotiate a lease when and if it is requested? I am also concerned about the reference to the Surplus Lands Act. If the City has to declare the parking lot surplus before it could complete the deal, is there a risk it could be lost to parking entirely? If so, does continuing an agreement predating recent changes to the Act provide some protection? Item 14. Temporary Staffing Services - Approval of Professional Services Agreement with Temporary Staffing Professionals and The Intersect Group The staff report is not clear as to the types of employees whose positions these contracts would be used to fill. I am also unclear as to the significance of the graphic and table on page 14-2 showing the composition of the City's workforce by age. Are all employees of age 50 and up eligible to retire? Aren't most of the employees who are eligible to retire with a pension at age 50 fire or police safety employees? These services do not provide replacement police officers or fire engineers, do they? How many vacancies that could be filled by these agencies are expected to arise each year? Do we have agencies currently providing this service? Are they the same as the two proposed? October 8, 2024, City Council agenda comments - Jim Mosher Page 8 of 8 Item 17. Resolution No. 2024-75: Establishing the Fair Market Value Per Acre for Assessing In Lieu Park Dedication Fees I need to study this more carefully, but the proposal seems to be to increase the current in -lieu fee of $38,400 per new residential unit (found on page 17-2) to $59,575 (not found until page 17-4). Assuming that is the recommendation, and since it seems to be the most essential part of the item, would it have been difficult to provide that information in the Abstract on page 17-1 or even in the agenda notice? The Abstract also may create confusion for many by suggesting that whatever the item recommends, it will apply only to subdivisions of 50 lots (units?) or less, leaving readers to guess how larger projects are handled. The implication would seem to be they have no park requirement. Is that correct?