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HomeMy WebLinkAbout00 - Written CommentsJanuary 13, 2026, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item IL STUDY SESSION From the agenda notice, it appears City staff has some very specific code and policy changes it plans to present to the City Council under this heading. Most likely they will involve revising Municipal Code Chapter 20.49 (and possibly Chapter 21.49) and City Council Policy L-23. It is unfortunate staff has not provided any preview of their presentation, so that the Council members and the public could research their suggestions and not have to make snap decisions as to which should be advanced. There is not even a reference to Item VI at the November 18, 2025, meeting, where as a future agenda item, the Council voted to direct staff to more specifically: "As part of the City's update of the Municipal Code related to wireless communications, direct City staff to prepare amendments to the Municipal Code as well as associated policies and procedures to streamline the permitting and deployment of wireless communication facilities. Staff's updates and recommendations should include, but not be limited to, simplifying the permitting process for wireless facilities on both public and private property; establishing clear, predictable, and expedited review timelines; implementing standardized application requirements and processes; and reducing carrier costs associated with deploying wireless facilities." As I indicated then, the creation of NBMC Chapter 20.49 in 2014 was an effort to improve the transparency of, and assure public participation in, decisions about the location of cell sites. I fear the revisions will diminish that transparency. As to City Council Policy L-23 ("The Siting of Wireless Telecommunications Equipment on City -Owned Land"), that was not revised as part of the 2014 effort to increase transparency. It was changed as part of Item 5 on the Council's August 14, 2018, consent calendar, which was itself part of former Mayor O'Neill's push to reduce the volume of City regulations. The redline changes made at that time start on page 176 of the staff report. Those changes had previously been reviewed, but with no additional explanation, as part of Item 4 at the June 21, 2018, Planning Commission meeting. The minutes of that meeting indicate I pointed out, among other things, that the policy continues to imply on its last page that there is something about "Encroachment Permits (Telecom)" in NBMC Chapter 13, even though the word "Telecom" does not seem to appear anywhere in that chapter. Much more importantly, Policy L-23 continues to enshrine a highly problematic process by which contracts for siting wireless facilities on public property are approved by a process of private inaction by the City Council. In effect, the City Manager is instructed to seek approval through a private hub -and -spokes polling of the Council, unknown to the public. It is the opposite of a transparent public process January 13, 2026, City Council agenda comments - Jim Mosher Page 2 of 10 PUBLIC COMMENTS ON AGENDA AND NON -AGENDA ITEMS 1. See "PUBLIC COMMENTS ON CONSENT CALENDAR," below for two items expected, but not found on the consent calendar. 2. The absence of an item number for this agenda item suggests, once again, a need for the Council to revise its Policy A-1 to show an accurate and predictable sequence of events for it and the public to expect at Council meetings. While the "frequently asked questions, City Council Meetings 101" link on the City's City Council Meetings page seems to have gone missing, those who read the "City Council Meeting Information" at the bottom of the City Manager's On the Agenda page will find a description of the Council meeting format that bears increasingly little resemblance to the reality, including its reference to the regular meetings starting at "6 p.m." and its instruction to look for the consent calendar as Item XIII on the agenda. 3. Another matter of concern regarding Policy A-1 is the lack of clarity from the Council as to the desired level of accessibility to Council agenda materials in Newport Beach. The boilerplate at the bottom of the first page of the current agenda continues to say "staff reports are available in the City Council Chambers lobby." For most of the City's history this meant the City Clerk made paper copies of the reports freely available, so the public could follow along with what the Council was deliberating. This is still the case at most City board, commission and committee meetings. However, the new City Clerk feels this is not in alignment with state law and has chosen to provide the public with a single shared printed copy located in a "Do Not Remove" binder in the lobby, and insists any additional copies must be paid for by those asking for them (even though there does not appear to be a mechanism for making such requests at the meeting). Although in theory people attending the meetings with electronic devices in tow can access the materials online, the electronic device most audience members are likely to have is a cell phone, and the electronic versions of the agenda documents are hardly planned for readability on one. The predictable result is the public attending Council meetings will be even more in the dark than ever on what they are witnessing. It seems worth noting that although the Council members, unlike the audience, have desktop -sized screens on which to view the proceedings, at least three appreciate having printed copies, as well, to refer to, which are provided to them. The City Attorney also appears to refer to a printed copy. Although the Council has not set such a fee, the City Clerk refers to Government Code Section 54954.1 (part of the "Brown Act"), which allows a city council to set a fee for people asking that printed copies of the agenda materials be mailed to them. The Clerk might be reminded of Section 54953.7, which states that: "Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal January 13, 2026, City Council agenda comments - Jim Mosher Page 3 of 10 standards set forth in this chapter. In addition thereto, an elected legislative body of a local agency may impose those requirements on appointed legislative bodies of the local agency." In other words, while a city may charge, they are not required to. The decision is up to the Council, not the Clerk. The Council may also wish to be aware of the Declaration of Rights in Article I. Section 3(b) of the California Constitution which guarantees the people's "right of access to information concerning the conduct of the people's business" and says that the Brown Act shall be liberally construed to promote access. The suspension of ready access to information about what is going on at the Council's meetings seems inconsistent with that right. Indeed, that the Brown Act finds it necessary to allow a legislative body to impose a fee for mailing agenda packets implies that imposing a fee is understood to be the exception to the rule, and that if not mailed, there would be no fee charged for obtaining copies of agenda materials. As to the practical effects of restricting access to printed copies, I can certainly testify that at least for me, printed copies of materials have a physical reality that encourages more careful review than is likely to happen when something exists only virtually. An additional problem is there does not seem to be any mechanism provided for downloading or viewing the equivalent of the former paper staff reports: the electronic versions require multiple separate files to be viewed and those files lack the sequential page numbers that the printed copies had in the lower right of each page. Item Ill. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) At the December 9 meeting, the Council unanimously requested a future study session on the topic of whether surplus funds, including those currently used to pay down CalPERS debt, could be better directed to other investments — a topic that would normally first be (and has been) discussed by the Finance Committee (but without participation by the full Council). Now the Mayor is requesting the Council consider suspending the Finance Committee meetings while a three -member Council ad hoc committee reviews whether there is a better way to conduct business. While I agree that discussion and re-evaluation is almost always valuable, I do not think it's a good idea to shut down the existing Finance Committee's meetings while that re-evaluation is going on. The existing committee, which will be meeting on Thursday, has a fairly substantial work plan for the year, including a first review of the staff -proposed budget in May. Suspending the meetings will likely result in most of the things on the work plan never being publicly discussed at all. That hardly advances the objective of increasing transparency. . PUBLIC COMMENTS ON CONSENT CALENDAR 1. The consent calendar at the first Council meeting of the year, such as this meeting, normally asks the full Council to confirm the Mayor's appointments of Council members to the various January 13, 2026, City Council agenda comments - Jim Mosher Page 4 of 10 committees, local and external, on which Council members serve. The City Clerk's Roster of Boards, Commissions and Committees shows many of those appointments ending on January 13, 2026. The absence of a Council appointments item on the present agenda leaves uncertainty as to who is and will be representing the Council in those positions. 2. Speaking of appointments, as best I can tell, the last time the Council received on its consent calendar one of the requested "bi-monthly" reports on the progress of the General Plan Update was as Item 19 on September 9, 2025, more than four months ago. The absence of those reports from the Council agendas is not for lack of activity on the part of the 3-member General Plan Update Steering Committee or the 24-member General Plan Advisory Committee. What makes this relevant to appointments is that, despite the direction in the enabling resolutions that a decision to terminate the committees is up to the City Council, Community Development staff has apparently instructed the City Clerk to not advertise the vacancies on these two committees that are, per the enabling resolutions, scheduled to occur at the Council's first meeting in February. Given that Council Policy A-2 calls for scheduled vacancies to be advised two months in advance, this means that if the Council wished to continue the committees beyond February 10, re -appointments could not be made in a timely way. If staff does want the Council to terminate the committees, there should be an item on the agenda asking the Council to do that. The decision is not up to City staff on its own. Item 2. Minutes for the December 9, 2025, City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in sh4keout underline format. The page numbers refer to Volume 66. Page 463, Item II. PRESENTATIONS, bullet 2, paragraph 2: "Mayor Pro Tem Kleiman expressed gratitude for the volunteers who make 3rd Thursdays possible, emphasizing that their dedication and hard work bring bringing the community and local businesses together and highlighted the event's success in fostering stronger community connections and engagement." Page 463, PUBLIC COMMENTS ON AGENDA AND NON -AGENDA ITEMS, paragraph 2: "Jim Mosher questioned if there were any recommendations from the Council Policy Review Committee and suggested amending Council Policy A-1." Page 468, paragraph 1: "Motion by Mayor Pro Tem Kleiman, seconded by Councilmember Blom, to approve the Consent Calendar, including amendments to Agenda Item No. 1, the Minutes; noting the recusal of Mayor Stapleton on Agenda Item No. 11, and the removal of Agenda Item No. 13 for further discussion." [comment: Normally the reason for the recusal would be stated in the minutes, usually as a note following the item. I do not see the reason for this recusal in the present minutes.] Page 470: The paragraphs are indented in a confusing way. "Proclamation Honoring Grace Leung" and two segments of "Public Comments" appear to be listed as subsections under Item 19. (Appointment to Fill an Unscheduled Vacancy on the City Arts Commission). January 13, 2026, City Council agenda comments - Jim Mosher Page 5 of 10 Page 470, last paragraph of first set of "Public Comments": "Following public comments, City Manager Leung stepped down from the dais and Assistant City Manager Seimone Jurjis took his proper place at the dais." [comment: Since the Assistant City Manager did not become City Manager until December 27, it is a bit difficult to see how sitting in the City Manager's seat was his "proper place" on December 9. Should it be "future place"?] Page 471, Item 21, paragraph 1: "City Clerk Shumway, in presiding, placed all members of the City Council on an equal basis to nominate and elect the mayor." Page 471, Item 22, paragraph 1: "Mayor Kleiman in presiding, placed all members of the City Council on an equal basis to nominate and elect the mayor pro tem." [comment: The minutes record what was supposed to happen according to the last page of the printed agenda: "The Mayor presides over the election of the Mayor Pro Tem. The Mayor, in presiding, places all members of the Council on an equal basis to nominate and elect." However, the video indicates it didn't happen that way. Instead, Mayor Kleiman directed the City Clerk to conduct the election.] Page 471, Item 23, last lines: "Councilmembers decided on the seating arrangement for the Council dais pursuant to City Council Policy A-1. The following seating order was determined (left to right): Erik Weigand — Michelle Barto — Robyn Grant — Lauren Kleiman — Noah Blom — Joe Stapleton — Sarah J. Weber ' [comment: This breaks with tradition and will be confusing to many readers who will find this opposite to the order in which they will see the Council members in photos and video. Normally,' the minutes list the members in the order they are seen by the public and staff (that is, starting with Councilmember Weber on the left). These minutes, instead, use "stage" directions, listing the members as seen from the rear of the dais, looking out toward the audience. While it is true page 12 of Council Policy A-1 says "the Mayor Pro Tempore shall always be seated immediately next to and to the right of the Mayor," this was probably meant to be understood as "at the Mayor's right." In any event, staff and the audience see the Mayor Pro Tem seated to the left of the Mayor, and it would seem best for the minutes to list the names in the order seen by everyone other than the Council members themselves. Alternatively, the draft minutes could be amended to say "(left to right, as seen lookina toward the audience)" ] Page 472, Item 234, New Mayor Remarks, sentence 3: "Her focus for the upcoming year prioritizes four "Cs":" ' See, for example, the minutes of Dec. 10, 2024, Dec. 12, 2023, and I suspect all prior minutes, which list the Council seating as seen from the room, not looking toward the room. January 13, 2026, City Council agenda comments - Jim Mosher Page 6 of 10 [comment: It might be noted that City Charter Section 404 places on the Mayor "the primary but not exclusive responsibility for interpreting the policies, programs and needs of the City government to the people, and, as occasion requires, the Mayor may inform the people of any change in policy or program." I believe this means the Mayor is expected to communicate to the public the policies set by the full Council, and any changes to them that the full Council agrees to. I do not believe it was meant to empower the Mayor to unilaterally set or change the City's priorities, especially since mayors in Newport Beach do not campaign on a platform that is publicly revealed prior to their selection.] Item 3. Ordinance No. 2025-37: Amending Various Positions of the Newport Beach Municipal Code to Reflect Organizational Restructuring to the City Attorney, Finance, Human Resources, and Public Works Departments The staff report acknowledges that an error was made in the number of positions being moved from one department to another at the time Ordinance No. 2025-37 was introduced for a first reading on December 9. It does not inform the Council or the public that the text being introduced for second reading and adoption differs from the text introduced on December 9. The changes seem to be largely (although, since they are not listed, I cannot be sure entirely) in response to comments I submitted to the December 9 meeting citing "Technical Defects" in the original version. Some of those might be what are called "scrivener's errors" that might come within the compass of the City Clerk's City Charter Section 412 authority to correct "typographical or clerical errors" between the two readings. However, the Council does not seem to have ever codified the procedure for making such corrections, including whether the Council needs to be informed of what has been changed. In other cases, it might not be obvious what the original intent was, making any revision to create some new meaning more than the correction of "typographical or clerical errors." In the present case, due to the elimination in the second reading of a change that was proposed on December 9, we now have the odd circumstance of Subparts 41 (electronic agenda packet page 48) and 43 (electronic agenda packet page 49) which purport to "amend" NBMC Sections 3.30.010 and 3.32.320 actual amend those sections to "new" wordings that are identical to their present wording (which will surely be confusing to the contractor we pay to make the changes online). As to NBMC Section 3.32.320, it might be noted that to be grammatical, the existing title ("Establishment or Changing Appropriations Limit") would need to be changed to: "Establishing or Changing Appropriations Limit." But for reasons unknown to me, City staff does not seem inclined to recommend that change to the Council. Assuming the adoption of this ordinance is approved, when will the City website be revised to reflect the new departmental structure? Immediately? Or when Section 6 (agenda packet page 25) says it will be effective (30 days after adoption)? January 13, 2026, City Council agenda comments - Jim Mosher Page 7 of 10 Item 4. Resolution No. 2026-1: Updating the List of Designated Employees for 2026 Under the City's Conflict of Interest Code This item seems to assume the Council will approve the departmental restructuring being proposed in agenda Item 3, but does not fully embrace it. For example, on electronic agenda packet pages 106 (clean) and 111 (redline) it changes the former title "Finance Department" to "Administrative Services & Finance Department." Yet, my understanding of Ordinance No. 2025-37 is that what was formerly the Finance Department will become a division within the new Administrative Services Department. There will no longer be a Finance Department (see the revised NBMC Chapter 2.12 (Administrative Departments)), and indeed, Ordinance No. 2025-37 went to great lengths to eliminate all references to the Finance Department in the Municipal Code. I am also unable to correlate the positions listed under the new Municipal Operations Department with the list of positions provided in Attachment B to the present agenda Item 3. For example, I do not see a "Deputy Director of Municipal Operations" or the various "Manager" positions listed in Attachment B. It is also unclear to me what has happened to the City's Risk Manager position, which has moved from the former Human Resources Department to the City Attorney's Office. I am guessing it was formerly a position in the "Human Resources Manager" category, but I don't see any new "Manager" positions being added to the City Attorney's Office. Item 6. Amendment to On -Call Services Agreement with Vortex Services, LLC, for Pipe Lining Services The staff report indicates the entire funding anticipated to be needed for a five-year contract has been exhausted in half the time, so an equal allotment is needed for the final two -and -a -half years. Why was the original estimate so far off? It might also be noted that at the time of the original Council approval of contract C-8558-2 as part of Item 10 on June 13, 2023, a separate $250,000 contract (C-9337-1) for the same on -call services was approved with a different vendor (Southwest Pipeline and Trenchless Corp.). This is not mentioned in the staff report. What is the status of that other contract? Is it also over budget? Item 9. Amendment to Landscape Services Agreement for Medians and Roadsides with Brightview Landscape Services, Inc. (Contract No. 8651-1) This contract for a total value of a little over $21 million is quite large. Does the City have any plan to evaluate the possible advantages of "insourcing" the bulk of these services and using contractors only to provide workload flexibility? January 13, 2026, City Council agenda comments - Jim Mosher Page 8 of 10 Item 10. Corporation Yard, Utility Yard and Oilfield Gate Rehabilitation - Notice of Completion for Contract No. 9749-1 The staff report is a bit confusing in that only the Corporation Yard, Utility Yard and Oilfield are mentioned in the title, yet the body of the report mentions the contract also rehabilitated a gate at the Big Canyon Reservoir. This was apparently not a last-minute add -on, as the same discrepancy between title and body existed when the contract was awarded as Item 5 on April 15, 2025 (which has been archived as presented, with an unrelated and erroneous project location map), Item 11. Accept a Restricted Donation from the Newport Beach Police Foundation and Approve Purchase of New Patrol Rifles The generosity of the Newport Beach Police Foundation is appreciated, but ils 120 the total number of patrol officers and sergeants or the number deployed at any one time? It seems reasonable to have a rifle available in each patrol vehicle. But if there are fewer than 120 vehicles, it is a bit hard to envision a situation in which 120 assault rifles would be needed at one time. Item 14. Authorizing Receipt of Services Under the Regional Early Action Planning (REAP) 2.0 Program for Housing Element Implementation I don't know how much dues Newport Beach pays to be a member of OCCOG, but if I understand the staff report OCCOG is offering, at no additional cost to the City, to assist with completing "Action 4H" promised in our 6th Cycle General Plan Housing Element. That sounds like a good deal for us, but setting aside that the Housing Element promised Action 4H would be completed within 12 months of its adoption on September 13, 2022 (which would mean we are already a couple of years beyond the original deadline), it is not clear how the new deadline of completing this sub -task by June 30, 2026, can be accomplished. As I read the timeline presented on page 263 and 264 of the electronic agenda packet, the consultant to be employed by OCCOG proposes to complete their work a month early (in May 2026), but to accomplish that, they would have to have completed by December the 3 months it takes to prepare a draft Mixed -Use Zoning Evaluation Report. Since they have presumably not yet even begun work on that report, and it is already January, is a May completion date still reasonable? Regardless of the deadline, the need to understand the viability of mixed use zoning seems especially urgent in view of the recently published California Court of Appeals opinion in the case of New Commune DTLA, LLC et al. v. City of Redondo Beach et al., 115 Cal.App.5th 111 (2025). As I understand it, the court found that despite certifications by HCD, Housing Elements that, like Newport Beach's, merely provide an opportunity to construct housing are not compliant with state law. To be compliant, cities have to actually rezone properties so that when and if they redevelop, they will be required to add housing. In particular, a city cannot rely on more than January 13, 2026, City Council agenda comments - Jim Mosher Page 9 of 10 50% of its lower -income unit RHNA requirement to be accommodated on non -vacant sites unless those sites, if they were to redevelop, are required to devote at least 50% of the floor area to residential development. Item 15. Grants and Donations Report for the Quarter Ending December 31, 2025 It is interesting to know the City received an Emergency Management Performance Grant of $12,901 from FEMA. It would be even more interesting to know what Emergency Management it was for. Item 17. Confirmation of Nominations to Fill Two (2) Unscheduled Vacancies on the Water Quality/Coastal Tidelands Committee The City's Water Quality/Coastal Tidelands Committee is one of only two Newport Beach standing Boards, Commissions and Committees that I can think of (the other being the Aviation Committee) that have a small, but devoted, citizen audience sufficiently interested that they would seemingly attend regardless of the topics on a particular agenda. It is not clear from the staff report if the nominations committee interviewed the nine applicants. If they did, I would be curious to know if they asked whether the applicants had ever bothered to attend a meeting of the committee? Given all four nominees' professed interest in the committee's work, I am straining to recall seeing any of them at one. Item 18. Professional Services Agreement with Kimley-Horn and Associates, Inc. for Preparation of the Airport Area Specific Plan (PA2025-0035) It seems odd that while the staff report goes to some length to describe the multi -step vendor selection process, it does not provide the scores obtained in any of those steps, but only an overall score. My comments on Item 14, above, mention a recently published California Court of Appeals opinion in the case of New Commune DTLA, LLC et al. v. City of Redondo Beach et al., 115 Cal.App.5th 111 (2025). The City of Redondo Beach has petitioned the California Supreme Court to review that opinion, and a decision on that is expected by February 18. However, unless accepted for review and overturned, this opinion would profoundly alter the City's housing plans. Instead of having a wide variety of sites in the Airport Area on which housing is an option, the City would have to rezone specific properties to require housing to be built on them when they redevelop (and with a reasonable expectation that they will redevelop). It is not clear to me how that eventuality would affect this task. Might it be premature to contract for a specific plan before it is known if rezoning will be required? January 13, 2026, City Council agenda comments - Jim Mosher Page 10 of 10 Item 19. Sculpture Exhibition in Civic Center Park - Phase X Given the wide variation in artistic tastes, I applaud the Council and the Arts Commission's continuing commitment to allowing the public to decide on at least the 10 primary selections. That said, the selection process remains imperfect. The 30 choices submitted for public review (which can be seen in a handout to the Commission's December 11, 2025, meeting) were winnowed from a list of 79 submissions (which can be seen in an earlier handout to the Commission's October 9, 2025, meeting). Since the Commissioners themselves did not agree on the merit of most of the submissions, some of each individual Commissioner's top choices did not make it into the public poll. Had they been included, it is quite possible they would have been among the public's top 10, just as it is likely that if a different set of 230 residents had been polled, their top 10 would have been different from the top 10 of those who did vote. It is not obvious how to improve the process, but its imperfection should be recognized. Written Comments Received on Agenda and Non -Agenda Items after Agenda Posting I do not know why, but pages 351 through 360 of the 360-page electronic agenda packet for the present meeting, which I downloaded on January 8, 2026, and which I am basing these comments on, consist of written comments I submitted on December 8, 2025, in advance of the December 9, 2025, City Council meeting, and refer to that agenda. My written comments regarding the January 13, 2026, agenda items are those provided above.