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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 18, 2025 Written Comments November 18, 2025, City Council Agenda Comments The following comments on items on the Newport Beach City Council are submitted by: Jim Mosher ( iimmosheraasyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the October 28, 2025, and November 4, 2025, City Council Meetings The passages shown in italics below are from the draft minutes with suggested corrections shown in sh4keett underline format. The page numbers refer to Volume 66. Page 438, last paragraph, sentence 1: "Acting Community Development Director Jaime Murillo introduced Assistant Planner Laura Rodriguez, who referenced a PowerPoint presentation regarding Fire Station Number 1 and Balboa Branch Library Landscape Changes Appeal." [see archived PowerPoint] Page 441, Public Comment, paragraph 2: "... Dr. John Bussard, Sheila Collins, Dan McBenegh McDonough, Paul Burnett, Foster Hoose, Elijah Spyer, Jeff Nelson, Mario Mal�ofevie Marovic, Tim Bumem Burnham, Scott Watson, Kaleigh Gilchrist, Nick Rigali, Chad Towers, Jason Shelton ..." [I did not attempt to verify the other spellings, but these, at least, appear wrong.] Page 445, Item 2, full paragraph, last sentence: "Feedback indicated #-hat the business community strongly supports streamlining approvals and prioritizing parking solutions, while residents expressed support for existing businesses and don't support introducing housing within the corridor." Page 445, paragraph 3 from end: "John Pakne Pomer thanked staff and Council for providing thoughtful solutions." Page 446, Councilmember Barto, bullet 2: "Announced a Water Quality Coastal Tidelands Committee (WQCTC) meeting taking place Thursday, November 6, 2025." [I'm not sure what the point of the parenthetical initialism is since it isn't used later.] Item 2. Reading of Ordinances This item directs the City Clerk to read by title (only) "all ordinances under consideration," which would include both first and second readings. While that was the practice of some previous City Clerks, it does not appear to be the practice of the present one, so the Council may wish to investigate the origin of the prior practice and modify its direction as appropriate. November 18, 2025, City Council agenda comments - Jim Mosher Page 2 of 9 Item 3. Ordinance No. 2025-35: Repealing and Replacing Chapter 12.56 (Bicycles - Registration and Regulations) of the Newport Beach Municipal Code - Second Reading Although this is on the consent calendar, the second reading of a proposed ordinance is supposed to provide the public, after a set period to reflect on the posted text, an opportunity to express to the Council its concerns about that text and the merit of the proposal in general. There seems little doubt that the present NBMC Chapter 12.56, which is ambiguous as to whether it addresses at all the throttle -type Class 2 e-bikes that can be operated without human power, is in need of updating.' But I urge the Council to direct staff to reconsider its recommendation and, after further public input, come back with a revised ordinance for introduction at a future meeting. As someone with some experience riding bicycles, I have some concerns about the specific regulations being proposed, as well as a concern that some of the provisions may exceed the limited authority of municipalities to regulate vehicle operations. Have State Vehicle Code Preemptions Been Properly Considered? Regarding the latter, one of the principal objectives of the California Vehicle Code is to create uniform and consistent regulation of vehicles throughout the state, and to that end, Section 21 prohibits cities from enacting any regulations regarding matters covered by the code unless the code expressly authorizes them to do so. Some of the provisions allowing local regulation are found in Sections 21100 - 21118. Others are scattered throughout the code. For example, Section 21206 gives cities limited authority to augment the rules for parking and operating bicycles on "pedestrian facilities" (including sidewalks). But the rules of "Safe Operation" in proposed NBMC Chapter 12.56 purport to apply not just to bicycles and "electric bicycles" (which are included in the Section 231 definition of "bicycle"), but to any ""Motorized wheeled conveyance," which is defined very broadly to include any "electrically motorized board, motorized bicycle, or motorized scooter, or any similar electric or combustible motorized wheeled conveyance." While safe operation of all vehicles is certainly worth promoting, the DMV has a helpful webpage illustrating various kinds of smaller motorized conveyances and the Vehicle Code ' As an example, the existing NBMC Chapter 12.56 defines, in Section 12.56.010, a "bicycle" as "any device upon which a person may ride, which is propelled by human power through a system of belts, chains or gears, and which has two wheels at least twenty (20) inches in diameter and a frame size of at least fourteen (14) inches," yet when prohibiting operation of bicycles on sidewalks in Section 12.56.030, feels compelled to create an exception for certain kinds of tricycles, even though the tricycles described don't fit the definition of "bicycle" and don't need an exception. This anomaly arises because the existing "bicycle" definition was copied from Vehicle Code Section 39000, which is part of a division allowing cities to create bicycle licensing programs, and as added to Chapter 12.56 in 1975 by Ordinance No. 1600 when the City decided to create one, without thinking how the change in definition would affect the pre-existing language about riding "bicycles" on sidewalks. November 18, 2025, City Council agenda comments - Jim Mosher Page 3 of 9 rules applicable to them, some of which may be inconsistent with the proposed NBMC Chapter 12.56 rules. • Motorized bicycles, also known as mopeds, require license plates, a driver's license (as acknowledged in proposed NBMC Section 12.56.025) and wearing a helmet regardless of age . • Motorized scooters also require a drivers license to operate and helmet for riders under 18. Vehicle Code Sections 21220 - 21235 regulate their operation. • Sections 21290 - 21296 regulate the operation of motorized boards, which are restricted to operators 16 and older with helmets. • Sections 21200 - 21214.7 regulate the operation of bicycles (including electrical bicycles) on roadways, some bikeways and to some extent on sidewalks. For example, Subsection 21201(d) specifies the lights and reflectors required on a bicycle operated in the dark on "a sidewalk where bicycle operation is not prohibited by the local jurisdiction" (making the last part of proposed NBMC Subsection 12.56.060.B.1 superfluous). Beyond the limited authority regarding bicycles on sidewalks granted in Section 21206, none of those other sections appear to give local entities authority to enact regulations supplementing or deviating from the general rules established for those other kinds of conveyances in the vehicle code. So it is not clear which, if any, of the proposed regulations applicable to things other than riding bicycles (including e-bikes) on sidewalks are valid. In addition, the broad definition of "Motorized wheeled conveyance" may create confusion because proposed NBMC Section 12.56.030 singles out bicycles (and, redundantly, the "electric bicycles" included in the definition of "bicycle") as being prohibited from operating on sidewalks, which, by implication, suggests that in Newport Beach the many "Motorized wheeled conveyances" not named (mopeds, motorized scooters, etc.) are not prohibited from sidewalks — leaving readers unaware the Vehicle Code generally prohibits all vehicles from sidewalks with the exception of the bicycles subject to local control. Problems with the Proposed Ordinance Setting aside the question of whether the City has the power to create some of the regulations in the proposed ordinance, I see a number of problems with it, some minor typos, some more serious. Here are a few: Title: "BICYCLES AND SIMILAR DEVICES —REGISTRATION AND REGULATIONS" Comment: "Registration" is not addressed or mentioned anywhere in the text of the ordinance. It does describe a "Voluntary Licensing" program. Sec. 12.56.010 Definitions: ""Bicycle lane" means a portion of a roadway that..." Comment: Bicycle lanes are defined in Streets and Highways Code Subsection 890.4, but the "bicycles" for which they are intended, as defined in Section 890.2 of that chapter, are for exclusively human -powered bicycles, which may differ from the understanding of their use in the Vehicle Code. November 18, 2025, City Council agenda comments - Jim Mosher Page 4 of 9 Sec. 12.56.010 Definitions: ""Motorized wheeled conveyance" means any electric bicycle, electrically motorized board, motorized bicycle, or motorized scooter, or any similar electric or combustible motorized wheeled conveyance." Comment: Newport Beach would not be the first to use such language, but "combustible" means "capable of burning" (flammable) and the image of a "combustible vehicle" may strike many as humorous. I assume the author is trying to say something like "or any similar wheeled conveyance powered by an electric motor or internal combustion engine." Sec. 12.56.010 Definitions: ""Pedicab"has the same meaning as defined in California Vehicle Code Section 467.5." Comment: This Vehicle Code Section 467.5 definition appears restricted to operators with paying passengers. That does not seem to have been the intent of the current Section 12.56.010, which seems intended to distinguish 3-wheeled pedaled -vehicles from 2- and 4-wheeled ones, and says nothing about the device having to be used for "transporting passengers for hire." Sec. 12.56.010 Definitions: ""Surrey cycle" means a bicycle or electric bicycle with seating for one (1) or more persons whichiswhieh-has four (4) or more wheels." Comment: Typo. Sec. 12.56.030.A : "Prohibition. No person shall operate or ride a bicycle or electric bicycle upon any sidewalk except..." Comment: The inclusion of "or electric bicycle" is redundant since the cited definition of "bicycle" says "An electric bicycle is a bicycle." Sec. 12.56.030.B.4 : "Sidewalks fronting residential dwelling units in residential neighborhoods, unless otherwise signed or marked." Comment: What "fronting" means would likely need a definition. If it means a sidewalk abutting a front property line, this would create problems since the sidewalks along many residential blocks end in corner lots along which the sidewalk may abut a side property line interrupting what is presumably the intended line of allowed bike flow. It is also unclear who would decide which sidewalks should be "otherwise signed or marked." Sec. 12.56.040.A : "No person shall operate or ride a surrey cycle or pedicab upon any sidewalk, boardwalk or any public pier in the City." Comment: The prohibition of surreys and pedicabs on the piers is clear. It is not clear if the Council intends to prohibit bicycle riding on the piers. The prohibition on riding on undesignated sidewalks would not seem to bar that. Sec. 12.56.060.A : "No person shall operate or ride a motorized wheeled conveyance upon any public right-of-way, or within any public park in a manner that is unsafe or that creates an unreasonable risk of injury to any person or damage to any property." Comment: First, I don't understand why safe riding regulations should apply only to "a motorized wheeled conveyance." Shouldn't this apply to "a bicycle or a motorized wheeled November 18, 2025, City Council agenda comments - Jim Mosher Page 5 of 9 conveyance"? Second, is any regulation needed regarding riding on private property, especially without the consent of the property owner? Sec. 12.56.060.13.1 : "Riding on a sidewalk designated as permissible without due caution for pedestrians, which shall include, but not be limited to, weaving between pedestrians, operating an electric bicycle at full power on crowded sidewalks, riding while distracted, or riding at night without lights." Comment: As previously noted, "riding at night without lights" is already prohibited, with much more specificity, by Vehicle Code Subsection 21201(d). Sec. 12.56.060.B.2 : "Riding on a public right-of-way against the flow of traffic." Comment: It is not entirely clear what this is intended to mean. The Vehicle Code already requires bicycles operating on roadways (as opposed to sidewalks) to observe all the rules of the road, including direction of travel. The proposed definition of public right-of-way includes sidewalks, alleys and more, which do not normally have a designated direction of flow. If this is intended to mean that a bicycle on a sidewalk can be ridden only in the direction of flow of an adjacent vehicular traffic lane, then this is highly problematic and would largely nullify the usefulness of the network created with designated bike -legal sidewalks. As a somewhat random example, to go from Newport Heights to the Lido Theater, one would normally proceed down Riverside Drive to PCH, cross PCH and then proceed west on the bike -legal sidewalk on the south side of PCH, riding opposite to the direction of the adjacent vehicular traffic. There is nothing inherently more dangerous about this than riding east on the sidewalk, and If the current permission to use that wide sidewalk in both directions were to be eliminated, it is unclear what alternative route the City would recommend. Sec. 12.56.060.B.3 : "Failing to yield to vehicles or pedestrians when required by the California Vehicle Code." Comment: As far as I know, the primary requirements in the Vehicle Code for bicycles to yield to vehicles and pedestrians are while riding on roadways. If this is intended to avoid conflicts on sidewalks, I don't think it does so. In my experience, most dangerous behavior on sidewalks is for bicycles, especially electric bicycles, on sidewalks to unexpectedly overtake and pass a pedestrian or other bicycle from the rear without warning. Not knowing they are about to be overtaken, they could easily step or ride into the path of the oncoming vehicle creating a collision. In my view, the ordinance should include a requirement for all sidewalk riders to give an audible alarm before passing any other user from the rear. Sec. 12.56.060.B.4 : "Intentionally swerving or riding around stopped or slowed traffic." Comment: Section 21658.1 of the Vehicle Code allows motorcycles to ride around stopped or slowed traffic, also known as "lane splitting." It is not clear if this is trying to say that in addition to being prohibited from obviously reckless behavior, a cyclist on a roadway, such as in a bike lane, cannot move past stopped cars, or move to the front of the line at a turn signal. If so, it is not clear why that would be prohibited. Sec. 12.56.060.B.5 : "Carrying passengers on bicycles or electric bicycles not designed or equipped for multiple riders." November 18, 2025, City Council agenda comments - Jim Mosher Page 6 of 9 Comment: On "highways" this is covered by Vehicle Code Section 21204 and would presumably have to be consistent with it. Sec. 12.56.060.B.6 : "Disobeying posted traffic signs, pavement markings or traffic control signals." Comment: Isn't this already covered by the Vehicle Code. Sec. 12.56.060.B.7 : "Riding without a properly fitted and fastened helmet when under the age of 18." Comment: I believe the Vehicle Code fully covers helmet requirements in California, which vary with vehicle type and age, and if applied to every "motorized wheeled conveyance" would be in conflict with at least some of those (including when and if the Vehicle Code is amended). Sec. 12.56.070 : "Whenever this Code or any ordinance or resolution of the City designates any portion of a sidewalk to allow cycling, the City Traffic Engineer shall place and maintain signs giving notice thereof." Comment: This section seems to be ignored. I am not aware of any signs currently designating bike -legal sidewalks. Is it the Council's intent to bring it back to life?2 Resolution No. 2025-78 Should Be Reconsidered Riding bicycles on sidewalks in Newport Beach has been prohibited since at least 1928, initially via Section 26 of Ordinance No. 345, Over the years, a growing list of exceptions, the bike -legal sidewalks, was added, first by ordinance and eventually by a Council resolution. For the most recent 43 years, the set of bike -legal sidewalks in Newport Beach had been defined by the list in Resolution No. 82-148. That list clearly specified the starting and ending points of each street segment and what side of the street sidewalk riding was legal on. The resulting network was fragmented and problematic, but at least well-defined. On November 4, as part of agenda Item 10, in association with the first reading of the present ordinance, the Council adopted Resolution No. 2025-78, replacing the list with a map. The staff report did not inform the Council or the public of how the map differed from the list. The map is defective in a number of respects including: (1) it does not clearly specify where many of the bike -legal segments begin or end, (2) it does not indicate at all if the intention is to allow bikes on the sidewalks on both sides of the mapped streets or only one (and if only one, which one), and (3) it does not provide safe ways for inexperienced riders to get to many destinations without using streets. I believe the adoption of Resolution No. 2025-78 should be brought back for reconsideration, including a list similar to that of Resolution No. 82-148, legally defining the bike -legal segments, with the map being something provided for illustrative purposes only. Ideally, the staff report would include exhibits illustrating how the new list differs from the old. 2 The signs that once instructed motorists to yield to pedestrians and cyclists crossing "free right turn" lanes have also disappeared. November 18, 2025, City Council agenda comments - Jim Mosher Page 7 of 9 Item 6. Amendment No. Two to the Professional Services Agreement with Schmitz & Associates Coastal Commission lobbyists primarily advocate for private clients, and few government agencies appear to employ them, most relying, instead, on their own staff to make presentations to the CCC. Prior to staff quietly signing the present contract, which it asking the Council to amend, the City used Mr. Schmitz's services under an earlier contract that brought some embarrassment to the City and loss of credibility with the California Coastal Commission, as with his advocacy of the City wresting control from the CCC through the creation of a Newport Beach Port Master Plan. Based on that experience, I thought the Council had come to the conclusion that relying on its own staff was not only less expensive, but more effective, since the Commissioners seem more trusting of the honesty of a humble public servant than a high -paid professional lobbyist. I would recommend the Council return to that philosophy and not add any more money to this contract. The request, on page 6-30 for a "flat fee" of $4,500 to "represent" the City at a CCC meeting, in addition to reimbursement for all hourly and travel costs seems quite extraordinary to me. What is the "flat fee" for? Item 12. Cooperative Agreement with Orange County Transportation Authority It seems a bit improbable to me that OCTA would find feasible the relocation of the Newport Transportation Center from its current site north of the City Hall to a new site at 3848 Campus Drive since, according to their bus route map, of the four routes currently served, only "57" travels anywhere near the proposed new hub, leaving the other three to find some new way to interconnect. However, if it is found feasible, I have never heard what the City's long range plan for the 3848 Campus Drive property is. When and if acquired, does it plan to let OCTA use it at no cost? Does it plan to lease it to OCTA? Or to sell it to OCTA? Item 16. Ordinance No. 2025-36 and Resolution No. 2025-80 Approving the MacArthur Court Development Agreement and Affordable Housing Implementation Plan (PA2025-0090) As I pointed out to the Planning Commissioners when they heard this item on October 23, the City's official map of the HO-1 opportunity sites shown in Figure 2 on page 16-4 does not include the whole of the property, which it would have to be per NBMC Subsection 20.28.050.A ("To be eligible for the provisions of this chapter, the property must be listed on the HO area map as an "opportunity site."'). A footnote on the preceding page says the missing parts were added by Director's Determination (PA2025-0117) on June 6, 2025. Not only is it unlikely anyone other than the Irvine Company knew this was happening or had a chance to challenge it, but it does not appear the Director had the authority to make such changes, which may be November 18, 2025, City Council agenda comments - Jim Mosher Page 8 of 9 why the map has not been updated to reflect it, since I don't believe the Director has the authority to change maps. Moreover, Policy LU 4.4 (Rezoning to Accommodate Housing Opportunities) of our General Plan Land Use Element says of the overlay areas: "other sites or adjustments may be identified in the future through rezoning unless precluded by state law." Again, I do not believe the Director has the authority to rezone properties. Without taking the necessary legislative steps, we live in a strange world where we have a map that clearly says one thing, and a Director who uses his powers of "interpretation" under NBMC Section 20.12.020 to interpret a map to say something different from what it clearly says. I believe that power was intended to resolve ambiguities, not to change clear meanings. I therefore think it improper for the City Council to approve a development agreement that appears intended to lock in improperly granted "property rights." Moreover, the entire basis of those supposed rights, granted through "housing overlays" has been thrown into doubt by the October 10, 2025, published California Court of Appeals opinion in NEW COMMUNE DTLA LLC v. City of Redondo Beach (B336042), which found erroneous the state Housing and Community Development Department's advice to cities that housing overlays without further rezoning, could be used to fulfill more than 50% of their affordable housing RHNA requirements. Unless overturned or modified by the California Supreme Court, this will presumably force Newport Beach to rethink its entire housing plan. Again, it seems improper to let the Irvine Company use a development agreement to vest rights obtained on shaky ground — especially when no definite project is being proposed. Regarding the proposed Affordable Housing Implementation Plan, the staff report suggests the offer to provide 7% affordable units, since "voluntary," is a generous one. However, I believe our General Plan Housing Element promised the properties would develop with 40% affordable units. It would have been helpful for the staff report to indicate the exact number of affordable units promised for these properties when they redeveloped, and the shortfall that will result from producing only 49. 1 believe the shortfall eats into the City's "buffer" in each income category, and when the buffer is exhausted, the Land Use Element and Zoning will need to be amended to increase the number of units in the overlays, which many residents feel are already too high. Moreover, I believe the state requires the affordable units to be dispersed throughout the City, but this proposal contains no promise any affordable units would be developed in the Airport Area, or indeed that any at all will be developed, with the City possibly receiving a cash payment, instead. Item 17. Certification of Responsible Housing Initiative Petition and Consideration of Council Action Options According to their website, the proponents of the initiative expected the Council to be placing it on the June 2026 ballot, rather than the November 2026 ballot. I understand the Clerk's reading of Elections Code Sections 9215 and 1405, and the logic by which she believes the only options are the City's November 3, 2026, regular municipal election or a February 24, 2026, special election. The logic appears to be based on the assumption that once an election is ordered, it has to be either a regular City election or a special election held between 88 and 103 days from the date of the order. However, I notice a slight ambiguity in November 18, 2025, City Council agenda comments - Jim Mosher Page 9 of 9 Section 9215. It requires the initiative to be adopted as written within 10 days of receipt of the City Clerk's certification of it, or for the initiative text, without alteration, to be presented to the voters. Just as there is a 10-day deadline for doing the former, I would assume there is some time limit for doing the latter, but I don't see one clearly spelled out. Does the Council have the option of accepting the certification on November 18, and promising to put the measure on a ballot, but not actually ordering the election until the state's June 2026 date is within the 88 to 103 day range? I am also a little puzzled about the election cost estimates. The staff report predicts $113,986 — $143,606 for a November 3, 2026, General Election, and $1,037,188 — $1,201,138 for a February 24, 2026, Special Election. By contrast, news reports indicate that on November 4, the Fountain Valley City Council directed their staff to prepare a single -paragraph city charter for placement on a future ballot. According to their staff report,' their Clerk's estimates were $8,500 - $17,000 for their regular election and "over $200,000" for a special election. I understand it would be a shorter measure and that Fountain Valley reportedly has 39,351 registered voters compared to 61,278 in Newport Beach, but the difference in cost estimates seem more extreme than those factors could easily explain. As to the initiative measure itself, I appreciate its attempt to remedy the lack of opportunity voters had to weigh in on the Council's housing plan, but it seems to rely on the existing structure of housing opportunity overlay zoning districts, which could have the same problems as the current plan with respect to the October 10, 2025, California Court of Appeals opinion in NEW COMMUNE DTLA LLC v. City of Redondo Beach (B336042) described under Item 16, above. But like the existing General Plan Land Use Element it does direct the City to "Accommodate housing opportunities through the adoption of housing opportunity overlay zoning districts or other land use regulatory policy," so if overlays are not acceptable, it could be interpreted as requiring the City to actually rezone for housing (rather than just overlay) sufficient properties within the focus areas. Item X. MOTION FOR RECONSIDERATION I believe Resolution No. 2025-78, adopted on November 4 to define sidewalks on which bicycle riding is legal should be reconsidered. See the last part of my comment on Item 3, above, for an explanation. ' It is interesting that Fountain Valley does not seem to provide easy access to individual agenda items, but only to the entire agenda packet, whereas Newport Beach no longer seems to provide online access to complete agenda packets, but only access to the individual agenda items, most of which are broken into multiple files.