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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 23, 2025 Written Comments September 23, 2025, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmoshera-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the August 26, 2025, Special City Council Meeting and the August 26, 2025, Regular City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in s-trikeou underline format. The page numbers refer to Volume 66. Page 397, Item IV, bullet 2: "Mr. Lobdell provided a PowerPoint presentation on the defeat of the Coastal Freeway Plan that included the process and approval of the proposed Coastal Freeway, kigminen eminent domain scenarios, and the images of how the Coastal Freeway would have dissected key areas of the City." Page 398, paragraph 1: "City Manager Grace Leung requested that Fire Marshall Gillespie provide an update on the GEQA grant for Buck Gully." [See video: The City Manager did not say "CEQA." The request seems to have been for an update on the grant for brush clearing accepted by the Council as Item 6 at its November 19, 2024, meeting. While Fire Marshall Gillespie began by saying they were working on CEQA documentation, that was not the primary purpose of the grant, but rather an incidental requirement of acceptance mentioned in the grant application form, and possibly not even paid for by it.] Page 399, last paragraph: "3. Jim Mosher spoke on ... Agenda Item No. 10, Street Pavement Repair Program Fiscal Year 2024-25 - Notice of Completion for Contract No. 9716-1 (25R06), commented on waiving of the tree policy and thought it should be under the purview of the Parks, Beaches & Recreation Commission; ...." [Note: The video indicates I misspoke saying 10" when I should have said 13." The item I was commenting on was "Agenda Item No. 13, Request to Waive City Council Policy G-6 for Alternate Palm and Tree Species at the Sherman Library and Gardens (2647 East Coast Highway)."] Page 406, Public Comments, first paragraph: "1. Mr. Mosher spoke on the inconsistency of this project, noted that a maximum of 388 people ean par4ieipate daYy are normally expected to be present at one time, but the location could have twelve special events per year with no limit: and reiterated that he was against the override." [Note: The suggested revisions are necessary to correctly state what I said at the meeting, but on reflection, my comment that there would be no limit on the number of people that could be present at one time during Snug Harbor Surf Park special events may or may be accurate. One of the Planning Commission's recommended conditions of approval limits "daily occupancy" to 1,698, but the special event conditions refer to requests for higher levels of attendance, making it unclear to me if the normal "daily occupancy" limit applies to them or can be waived by the special event permit.] September 23, 2025, City Council agenda comments - Jim Mosher Page 2 of 6 Item 3. Ordinance No. 2025-26: Adding Chapter 6.30 Prohibition of Sale and Distribution of Flavored Tobacco Products The September 9th agenda included an "A-1" request to put an item on a future agenda to consider directing staff to review existing City regulations related to smoking. Although some aspects of that appear as Item 23 on the present agenda, true to form Items 3 and 4 appear to represent the fruits of the review prior to the Council formally directing the review to begin. And once again, even assuming the review took place prior to the Council voting to conduct it, we have an ordinance being introduced on the consent calendar, not only without Council discussion or comment, but without a redline and minimal explanation, so even those interested in the matter have to guess how the proposal would change the existing codes. The present proposal appears to consist of two main parts: one altering existing rules on smoking, and a second adding a new regulation prohibiting the sale or distribution of flavored tobacco products.Both these are presumably being proposed to tighten the already extensive state regulations in these areas, although exactly how they tighten state regulations is not clearly described. The regulations on smoking revise NBMC Chapter 6.25, which was last revised as part of former Mayor O'Neill's revision of the entire municipal code, introduced as a single 1,342-page single "yes or no" Item 24 on the November 14, 2023, Council agenda. Although a redline was provided at that time, it is unclear how carefully it was aligned with California Smoking Laws as summarized by the state Air Resources Board, for the total explanation provided was "The smoking regulations were combined and updated to reflect changes in state law and eliminate ambiguities.." As to the present item, it appears intended to build on that previous unexplained revision by changing, again without explanation, the phrasing of prohibitions A through K (apparently without intentionally changing their meaning) and adding a single new substantive prohibition L, creating a ban on the smoking of flavored tobacco more expansive than that on smoking unflavored tobacco. Since the municipal code makes no reference to the state smoking laws, those reading it may incorrectly assume that in Newport Beach smoking is allowed in places not listed as ones where it is banned. Shouldn't some reference to state law be included? Of those listed, aren't A through D likely duplicative of the state's regulations on smoking in enclosed workspace areas? And as to D's ban on smoking in theaters, the state law appears to allow it by actors as part of the production. Is the omission of that exception in Newport Beach intentional? In the absence of any explanation, it is hard to tell. Similarly, no explanation is provided of how or why the proposed regulations on the sale and distribution of flavored tobacco products. As best I can tell, the proposed new Chapter 6.30 extends the statewide ban described by the Tobacco Control Branch of the California Department of Public Health to "any person" whereas the state ban applies only to retailers, and to include "distribution" (possibly for free) in addition to the sales prohibited by state law. But, again, it is hard to tell if that is the intent. In summary, before proposing the adoption of specific changes to our existing regulations, wouldn't it have been helpful to wait for the Council to vote on whether it wanted to direct staff to conduct "a comprehensive review," and then actually conduct the review and present the results to the Council, rather than proceeding with little to no explanation? September 23, 2025, City Council agenda comments - Jim Mosher Page 3 of 6 Item 4. Ordinance No. 2025-27: Adding Chapter 6.40 Prohibition of Sale, Distribution and Use of Nitrous Oxide This is another part of the September 9th "A-1" request presented before the Council has directed the "comprehensive study" it was to consider directing. It also seems to be part of the flurry of local ordinances dealing with sale of nitrous oxide as reported in a September 8th Voice of OC article. It may be unique that in addition to banning sale for recreational use, it bans the recreational use itself. The staff report mentions California Penal Code Section 381 b which already makes it a misdemeanor, statewide, to possess or use nitrous oxide for recreational purposes. It is not clear what the proposed new NBMC Section 6.40.020 (Use of Nitrous Oxide Prohibited) would add to this, which is perhaps why other jurisdictions have not added such provisions to their codes. The staff report does not mention Section 381 c, which makes it a misdemeanor for anyone other than a medical professional to sell or furnish nitrous oxide to a person under the age of 18. Or Section 381 d, which makes it a serious crime to provide nitrous oxide to anyone who uses it recreationally in a way resulting in serious injury or death. Or Section 381 e, which requires most persons distributing nitrous oxide to keep written records, available for inspection by law enforcement, of the names and addresses of all persons to whom it is distributed as well as providing written notice to those receiving it stating that its recreational use is illegal. Given that existing regulatory framework, the staff report says the local ordinances are needed to close the "culinary use" loophole in state law, although exactly where that loophole can be found is not explained. "Culinary use" seems to refer to legitimate use of nitrous oxide canisters in whipped cream and mousse creating machines used in commercial food operations. We are apparently to assume the proposed ordinance closes that and any other conceivable loophole by restricting sales and distribution to a limited set of stated reasons. One of those, the exemption for wholesaling nitrous oxide (proposed NBMC Sec. 6.40.040.B), may be intended to preserve that commercial food preparation market, although it apparently would no longer be allowed in Newport Beach for similar food preparation operations in a home setting (unless that is included in the ambiguous Sec. 6.40.040.A exemption for "When nitrous oxide is contained in a food product and used solely as a propellant"'). Yet, proposed Sec. 6.40.040.0 opens the "enhancing vehicle performance" exemption. So what is to prevent anyone over the age of 18 from saying they need ni trous oxide to enhance the performance of a car? Three other minor points might be made: 1. The preamble to the proposed ordinance (agenda packet page 4-4) describes nitrous oxide as "an odorless, colorless chemical." The author may have more experience with the chemical than I, but to the extent the public can trust government information, the U.S. National Library of Medicine's PubChem data sheet for nitrous oxide describes it as "a colorless, sweet -tasting gas" and the vapors from the refrigerated liquid product as "a 1 This seems more likely intended to allow continued sales of Reddi-Wip and similar products. September 23, 2025, City Council agenda comments - Jim Mosher Page 4 of 6 colorless gas that is sweet-smelling and moderately toxic." That is hard to square with it being odorless. 2. The better definition on page 4-5 omits "odorless" but says the gas is "sometimes identified as N20." That is more than an "identification," it is the chemical formula, and it should be written with a subscript "2" and a capital "O" — not the number "20" as if it were pronounced "N-twenty." 3. Although copied from other ordinances, the outlawing in proposed NBMC Sec. 6.40.030 of the distribution of "any device that contains any quantity of nitrous oxide" may be a bit extreme. As Wikipedia explains, nitrous oxide is a commonly occurring chemical produced by a variety of natural and human -driven processes. According to the National Oceanic Administration's "Trends in N,O" page, it is currently present in sea level air at concentrations a little over 300 parts per billion. In other words, any device that contains any amount of air will contain some quantity of nitrous oxide. While 300 ppb may seem small, it is considerably larger than the 3 ppb goal for copper in Newport Harbor. Item 5. Ordinance No. 2025-28: Amending Subsection B of Section 10.04.010 of Chapter 10.04 to define Possession of an Open Container Although part of the "A-1 item" that appears to have resulted in the two preceding items, we have here yet another public safety ordinance scheduled for introduction on the consent calendar without Council discussion. Helpfully, this one includes a redline and states that its purpose is confined to providing a definition of "possess." Of that definition, I am a bit puzzled by the use near its end of the phrase "a person knowingly exercises control or dominion over the can, bottle or other receptacle." My vague understanding of "exercising dominion" is that it is a more absolute form of control than ordinary control. So if "dominion" is a form of control, and already included in that word, what is the point of adding it? As to the parts of NBMC Section 10.04.010 that are not being revised, it is not clear to me why the section specifically refers to the County property known as the Newport Dunes, but not to the similar County properties in the Upper Newport Bay Nature Preserve, or more generally to the Ecological Reserve. While it is helpful to improve the definition of "possession," it could be argued that it is similarly not clear if the definition of "in or on" a "beach" is intended to include or exclude water -covered areas, which would determine whether it is lawful or unlawful to open and consume an alcoholic beverage while in or on the water. I understand some boaters may do that, but are surfers and paddlers allowed to as well? September 23, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 Item 6. Ordinance No. 2025-29: Adding Section 11.04.085 (Prohibiting the Use of Electric Bicycles and similar devices on the Newport Elementary School Playground) and Amending Section 11.04.130 (Exemption) of Chapter 11.04 (Parks, Park Facilities, and Beaches) of the Newport Beach Municipal Code I do not believe the area described as the playground is fenced, and while the proposed ordinance prohibits e-bikes in that area during the hours when the school is closed, it is not clear how use of that area is regulated during hours when the school is in session. Are e-bikes allowed then? It is similarly unclear why specific days and hours are listed in addition to the general reference to the ordinance being applicable whenever the school is closed. Is the intent to prohibit e-bike use during those hours even if the school is open? Item 7. Ordinance No. 2025-30: Amending Section 2.12.110 of Chapter 2.12 (Administrative Departments) of the Newport Beach Municipal Code to Include Education and Enforcement Related Provisions as a Function of the Recreation & Senior Services Department It would have been helpful to include a redline so it could be easily verified that no changes other than the one described in the staff report are being slipped through. Item 9. Ordinance Nos. 2025-23, 2025-24, and 2025-25: Adoption of the 2025 California Building Standards Codes with Local Amendments, the 2025 California Fire Code with Local Amendments, and the 2025 California Wildland-Urban Interface with Local Amendments I attended the meeting on August 19th, where the City's Building and Fire Board of Appeals received an overview of proposed changes to these codes, but I did not read the details when these ordinances were introduced to the Council in September 9th agenda packet, nor have I read the 96-pages being presented for their adoption. I hope someone has, as I believe these will be the law in Newport Beach for the next 3 years, and possibly longer since the state seems to have put a pause on any further changes to residential building codes through June 1, 2031, as part of AB 130, the recent budget bill signed by the Governor. Item 13. Professional Services Agreement with Planeteria Media LLC for a Redesign of the City's Website, Content Management System and Hosting It seems telling that the "Website Created by Vision Internet - Innovators of Online Government" link at the bottom of pages on the City's current website produces a "Page not found" message,2 and there are problems with the site, including undated pages making it impossible for readers to tell if they are seeing current or ancient (and possibly outdated) information. 2 Vision Internet seems to have been acquired by Granicus, the company I understand provides the City's initial agenda postings, which, in another peculiarity of the current site, disappear from public view once they're moved to the separate Laserfiche document center. September 23, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 I also remember well the previous redesign, which appeared one day in 2015 without any public outreach, input or prior announcement: according to the Internet Archive's Wayback Machine residents saw the old site at least as late as June 23, 2015 and the new one on or before July 2, 2015, although that seems to have been a change in format rather than vendor, with Vision Internet having been listed as the creator (as they are now) back at least to July 27, 2009, with what seems to be its original contract, C-4121, dating from 2008. The website prior to this was http://www.city.newport-beach.ca.us/. Even though it is supposed to enhance the user experience, I am quite concerned the new redesign will also occur without meaningful community input. I am also concerned about the recommended vendor. The Planeteria Media LLC website does not list any experience I can find designing a city website. The closest I can find mentioned there is a site for Clackamas County, Oregon, which does not seem exceptionally intuitive to me. They have apparently recently contracted for a redesign with Lake Elsinore, and the letter to them suggests they have designed the site for Pleasanton in California, which I also don't find particularly intuitive.3 Has our staff contacted other cities with Planeteria Media websites to inquire about their staff's experiences with the vendor and the public's reaction to their product? Before moving on this item, it would seem prudent for the Council to ask for some public discussion of what alternatives are available, including especially from other vendors. The public's perception of the usefulness of different models and interfaces may be quite different from City employees'. a The Pleasanton City meetings calendar, for example, is completely non -intuitive to me, and appears to require multiple non -obvious steps to display anything. Whether they have community events calendar is also not at all obvious. In addition, the link to Pleasanton System Status on the copyright line at the bottom of the pages indicates ongoing problems some of which appear to take days to resolve.