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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 14, 2025 Written Comments January 14, 2025, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosheranyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III.B CONFERENCE WITH REAL PROPERTY NEGOTIATORS This appears to be at least the tenth time a closed session has been announced for the Council to privately discuss "price and terms of payment" regarding public right-of-way adjacent to the identical properties, the first announcement having been as Item IV.A on February 23, 2021. And the only change has been the initial "approximately 845 square feet' increasing to the "approximately 1,105 square feet' when it came back as Item IV.A on November 12, 2024. And while the purpose of the announcement is, in theory, to invite public comment to guide the Council in its decision, at no time has there been any public disclosure of why a sale or lease is being considered. This may be contrasted with earlier, more transparent announcements, for example Item IV.0 from July 26, 2011, where it was at least disclosed that "price and terms of payment" needed to be discussed "with respect to resolution of boundary dispute between Tidelands and Uplands." Why is public property in play adjacent to 929 Zurich Circle and 944 Via Lido Nord? Item 1. Minutes for the December 10, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in stii#eou underline format. The page numbers refer to Volume 66. Page 220, Item IX, paragraph 1: "Dennis Bress thanked the outgoing members of Council for service and noted continued efforts to work with the Aviation Committee to have simrafts flyer high -aircraft fly higher, slower, and quieter." [See yLdaQ. "Aircraft" is recognized as a noun that does not require an "s" to make it plural, and Mr Bress did not add one. Similarly, he add "er" to "high" not "fly."] Page 222, Item 15 (Administration of Oath of Office): "His wife, Marin, administered the Oath of Office..." "Former Mayor Will O'Neill administered the Oath of Office..." [Comment: I am not much of a believer in loyalty oaths, but it does seem reasonable for citizens to have some assurance those elected to office are committed to upholding the rules under which governments are expected to operate. Indeed, the first page of the official minutes of our City Council begins with Notary Public Clyde Bishop administering the Oath of Office' to the five newly -elected trustees at their first meeting on September 3, 1906. ' The oath, in Article XX, Section 3 of the California Constitution at that time consisted solely of: "I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of California, and that 1 will falthfully discharge the duties of the office of _, according to the best of my ability." January 14, 2025, City Council agenda comments - Jim Mosher Page 2 of 6 Since then, through 2012, it seems to have been the invariable practice for the City Clerk to administer the oaths. However, in 2014, with the election of "Team Newport," Orange County Superior Court Judge James E. Rogan administered the oaths. And after that, a variety of judges continued to perform this role with the exception of 2020, when former Mayor Evelyn Hart administered the oath to re-elected Council Member Brad Avery, and 2022, when former Mayor Steve Rosansky administered the oath to newly -elected Council Member Robyn Grant. This new practice of having the oath of office administered by private citizens who, whether former elected officials or not, do not seem authorized by law to do so,2 seems a bit like attending a wedding at which a private party administers the vows while the minister, judge or government clerk sits to the side as an observer rather than a participant. It seems strange to me. Is it a new trend?'] Item XIII. PUBLIC COMMENTS ON CONSENT CALENDAR Since I believe this may be a first in the City's history, it seems noteworthy that the public portion of the current agenda contains no items requiring a Council decision other than those on the Consent Calendar.4 As a result those watching the meeting without access to the agenda will be at loss to know what, if any, City business was conducted. It might be noted that Newport Beach didn't always have a Consent Calendar. And, as I have noted before, there is at least one other California city, Benecia, where the Mayor reads the titles of the items on the Consent Calendar so that the public at least knows what their Council is consenting to. There are likely others with similar practices. For example, in Del Mar, the City Clerk reads the consent calendar item titles. In both cases, not only the council members, but members of the public are invited to pull items for discussion by their elected representatives. It also appears other cities may be more judicious in what items they place on their consent calendar for approval without discussion. It seems to me the consent calendar may be overused in Newport Beach, for it seems unlikely none of the seven Council members would have any questions about any of the items on the Consent Calendar, or that all would agree each of those items should be approved exactly as presented. As a result, the public is left with the impression that information is being exchanged, z In 2022, Krista Weigand administered the oath to newly -elected Council Member Erik Weigand, but she did so as a Trustee of the Newport -Unified School District. The law, Government Code Sections 1360 - 1369, is ambiguous, saying only the oath must be taken "before" a person authorized to administer oaths. a For a fee of $125, the Santa Cruz County Clerk offers to appoint private citizens 18 or older as "Deputy Commissioner of Marriage for a Day," authorized to officiate at a specified wedding anywhere in California (as do Los Angeles County, Nevada County, San Diego County and likely more). At one time, the Orange County Clerk -Recorder offered this service, as well. It is unclear if he still does. a I recall one or two previous agendas where all the business items were on the consent calendar, but I believe the agenda included either a study session or suggestions for future agenda items, where Council input was solicited. January 14, 2025, City Council agenda comments - Jim Mosher Page 3 of 6 and decisions made, outside public view. In other words, that the public's business is not being done in public. Item 4. Resolution Nos. 2025-2 and 2025-3: Amending the General Plan Advisory Committee and the General Plan Update Steering Committee This seems to me to be an example of the overuse of the consent calendar. As the staff report explains, this is on the agenda because, pursuant to City Council Policy A-1, at the November 19, 2024, meeting, the previous Council voted, without discussion, to bring the subject back at a future meeting "for discussion and/or action." Yet, staff has placed it on the consent calendar, where a specific proposal that has never been publicly discussed is expected to be approved, again without any discussion. One might think that, at a minimum, before voting the Council members would want to ask about the status of the General Plan Update and its expected timeline. If they did so, they might learn that the entire process is expected to be completed, and the advisory committees dissolved, before the end of the current year. Given that context, establishing a procedure by which the advisory committees' membership will be reassessed each February seems strange — because there will be no future Februaries other than the coming one. As to changing the composition this February, as a current GPAC member, but commenting as a private citizen, I have seen no reason offered for what seems both unnecessary and disruptive. While the process to date has been a very imperfect one, and could have been better, changing the participants, but not the structure, in the final months hardly seems likely to produce a better result. On a more technical note, the Council may wish to know how the City Clerk plans to advertise the unscheduled vacancies and how long the application period will be left open. Finding 20 to 30 new members will be difficult, and Government Code Section 54974 requires only that at least 10 working days elapse between the posting and the appointment, but does not seem to say how long the invitation to apply needs to be "open." As to the existing members, there seems to be a discrepancy between the proposed resolutions, whose Attachment As say "Members who are in good standing at the time their term has expired are eligible for reappointment and need not reapply' and the staff report, which says "As drafted, if a current GPAC or GPUSC member is in good standing with an application on file that is no more than two years old at the time of City Council's appointments, there would be no need to submit a new application." The City's GPAC page indicates most of the current members were appointed on November 15, 2022, and its GPUSC page indicates all three members were appointed on April 12, 2022. All of these people's applications would now be more than two years old, and they would need to reapply according to the staff report, but not according to what would seem to be the plain language of the resolutions. Which is correct? January 14, 2025, City Council agenda comments - Jim Mosher Page 4 of 6 Additionally, the Council members may wish to discuss whether the rules for achieving geographic and institutional diversity in appointments to the GPAC detailed in the table on page 4-6 of the staff report is still appropriate, and how the table should be used. In particular, many applicants will have multiple affiliations and it is not clear how the limitations to "not more than one" from each "sample" is intended to apply to them. As to the substance of what the committees do, there is an existing uncertainty in that the GPAC is instructed to make recommendations to the GPUSC, but there is no provision as what the GPUSC is supposed to do with them. Are they obligated to pass them on to the City Council? Or does the GPUSC have veto power over the GPUSC recommendations? Item 5. Resolution No. 2025-4: Approving an Amendment to the Key and Management Compensation Plan The staff report (page 5-1) implies the maximum bonus available for scholastic achievement is 8.5%, however the actual proposed language on page 5-6 shows a 7% bonus for achieving the BA/BS level, and a separate 8.5% bonus for the MA/MS/JD level without making it clear if members can qualify for only one or for both. Will that be a problem? Also shouldn't there be a requirement that the achievement is in a field related to the employee's work? More generally, the amendment is offered to the Council for approval as a snippet without being able to see the context in which it will occur or the prior language it replaces. Compounding that problem, the public does not seem to be able to easily see or review the current Key & Management Compensation Plan. Instead, on the HR Department's MOUs & Benefit Summaries page one finds a 2022 version and what seem to be 12 adjustments to it, some of which are not machine searchable, making it particularly challenging to piece together what the current plan is. However, as best I can tell, the (non -machine-readable) Sixth Amendment made Policy Safety Key & Management employees eligible for the same scholastic achievement benefits as members of the Police Management Association, with language essentially identical to that for Fire Safety Key & Management employees. What was wrong with that? Is Fire Safety Management eligible for a larger benefit than Police Safety Management? If so, how large is the change? And why wouldn't Police Management want the same benefit? The report does not seem very transparent. Item 6. Resolution No. 2025-5: Creating the Ad Hoc Council Policy Review Committee This is another case where, rather than being on the consent calendar, one might think the Council members would want to discuss the matter to give direction to the committee as to the scope of their assignment, and possibly as to who should be on it. Although I cannot find it mentioned in either the staff report or the proposed resolution, the last comprehensive review of the Council Policy Manual took place in 2018, and culminated in the massive 338-page on the August 8, 2017, agenda, making changes that neither the January 14, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 public nor the Council members not on the committee had time to thoughtfully consider or review. I would strongly recommend the present committee be asked to review the policies in more digestible pieces, and through a more public process — including, for example, presentation at a study session at a meeting prior to the meeting at which adoption is proposed. Item 14. Memorandum of Agreement with the City of Long Beach Acting By and Through the Port of Long Beach Board of Harbor Commissioners Authorizing Disposal of Lower Bay Dredged Material Into the Port's Pier G Slip Fill Project Part (2) of Condition 8 on page 14-8, causing the Agreement to terminate on "the commencement of the placement of the Newport Bay Material at a site other than the Project' seems slightly strange. Does this mean that if any of the "approximately 225,000 cubic yards of material from the Lower Newport Bay channels" identified as "Newport Bay Materiaf' is found to be suitable for disposal outside the Port of Long Beach, and disposed of at some alternate location, the Port will refuse to accept any more? Also, if the Port of Long Beach location becomes unavailable before all the unsuitable material has been disposed of, does the City have a plan to construct a smaller CAD than was originally planned? And, finally, how does this Agreement affect the private homeowners who were promised use of the CAD? Item 15. Planning Commission Agenda for the January 9, 2025 Meeting Those new to the Council may be wondering why they are receiving a report on the actions of the Planning Commission and not of any of the City's other boards or commissions. Originally, this was not on the consent calendar, but scheduled as a full discussion item. And its purpose, then as now, was to apprise Council members of the Planning Commission's decisions, so they would have a chance to call for review, as allowed, currently, by Municipal Code Chapter 20.64.1 In the present case, the Council is receiving reports of two Planning Commission decisions, both of which seem problematic to me. In the first, the PC approved remodeling of a warehouse as a fitness training facility for exclusive use by students of a neighboring high school, even though the property is designated for industrial uses and and other uses "ancillary" or "accessory" to the primary industrial uses. While, as staff indicated, fitness facilities are allowed "by right" in this area, the assumption is they will be serving the needs of the primary industrial users. A facility serving exclusively students from a neighboring district is clearly not supporting the industrial uses. Staff seems to be reading "ancillary" or "accessory" not as "supporting," but rather as anything that occupies 5 One might still wonder why the Council does not receive similar reports regarding decisions by the Harbor Commission, since there is a parallel call for review provision in NBMC Chapter 17.65, Or for decisions of the Parks, Beaches and Recreation Commission, even though the opportunity to review is found only in Council Policies. January 14, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 less than a majority of the district. To me, that seems clearly not to have been the intent of the code. In the second hearing, the PC had to deal with a tennis club consisting of two separately -owned parcels, but originally approved and allowed to be subdivided only under the assumption they would be operated together. Without making any changes to that existing permit for the two parcels to operate together, and without seeing any evidence of consent by the owner of one of the parcels, the PC approved a staff -proposed, new, separate permit for the second parcel, allowing it to be used as a separate pickleball facility. The result seems to be both to have caused the other parcel to become landlocked, and to have transferred to it all the entitlements of the original permit. Additionally, it seems quite possible the approval will create land use incompatibilities, with noise from the pickleball activity disturbing future guests at the neighboring hotel and, possibly, residents across Jamboree Road at Sea Island. I took some grief from the Commissioners for suggesting City staff did not have the expertise to independently verify the conclusions of the applicant noise analysis (which nowhere addressed the highly impulsive nature of pickleball noise), but I do believe that to be the case. Council members may wish to consider calling one of both of these decisions up for review. Item 16. Confirmation of Nominations to Fill an Unscheduled Vacancy on the Parks, Beaches & Recreation Commission Since the Council is being asked to "confirm" just two nominations, it would have been helpful to at least list the names of any other citizens who might have applied. It would seem they deserve at least that minimal recognition,6 and other Council members may wish to propose adding some of the names from that list. Item 17. Confirmation of Mayor Joe Stapleton's Appointments Since this item is scheduled to be adopted without discussion, it presumably involved some non-public discussion of who wanted to serve on what committees. While that is not necessarily illegal, it would seem like a discussion that could better have taken place at the public meeting. That said, I have, for a number of years, been puzzled by the continuing appointment of a Council member as chair of the Environmental Quality Affairs Committee, especially considering that committee has not met since August 16, 2016 (and before that, on November 20, 2014) and currently has no members other than the Council appointee (of which there are actually supposed to be two). I see from the minutes of the similar Item 12 from January 10, 2023, that I raised the same puzzlement, and that year's appointee, Mayor Blom, volunteered that "as Chair of EQAC, he will assess the future of EQAC." But as Item 11 on January 9, 2024, he was reappointed as Chair, and, as I noted then, one might wonder how long the assessment will take? One continues to wonder. 6 In other cities, such as Costa Mesa and Laguna Beach, I believe the full council publicly interviews all the applicants before making appointments.