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HomeMy WebLinkAbout0 - Public Comments - Agenda ItemsReceived After Agenda Posted April 23, 2013 Public Comments Comments on April 23, 2013 Council Agenda Items The following comments on items on the April 23, 2013 Newport Beach City Council agenda are submitted by: Jim Mosher ('immosher(a).vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) STUDY SESSION Item 3. First Look at City Hall Reuse Proposals According to the supplemental staff report, one of the potential proposing firms that chose not to submit a proposal is Pacific Hospitality Group. The letter of non - response is signed by Kory J. Kramer, a Newport Beach Planning Commissioner. Why did staff include Pacific Hospitality Group in its Request for Proposals? Assuming the Planning Commission would have had to make a recommendation on the development plans, would there not have been a Government Code 1090 problem in the Commission taking action on a matter in which a member had a direct financial interest? Or do we understand the liberalized Measure EE Charter to allow such problems to be cured by recusal (a "cure" that would not be sufficient in a general law city)? If the `old" City Hall site retains its "3300 Newport Boulevard" address, as at least one of the three proposals (Shopoff) suggests it might, how does City staff plan to handle mail sent to that address pursuant to some 60+ years of City contracts and other documents citing 3300 Newport Boulevard as the correct mailing address for correspondence to the City? Also, I remain curious as to why the new address was selected as 100 Civic Center Drive" and not the easier to remember " 1 Civic Center Drive "? Since there are no other addresses on Civic Center Drive, are the two interchangeable? REGULAR MEETING Item 1. Minutes for the April 9, 2013 Meetings The page numbers in these suggested corrections refer to Volume 61 of the draft minutes as submitted for the Council's review. Page 116: • First paragraph under 11.1: "In response to Council Member Gardner's question regarding Item 10 (A pr-e• al Gf On Call Repair- ce. es Agreement s r Ridewal ^....,, ing Sep4G" Emergency Services Consulting International (ESCI) Professional Services Agreement), ..." Page 118: • Last paragraph before Item 3: "In response the to Mayor Curry's question regarding timing, ..... April 23, 2013 Council agenda item comments - Jim Mosher Page 2 of 9 Page 120: • First full paragraph from end: "Jim Dest;: Dastur referenced a staff report presented to the Tidelands..." Page 123: • Under Item IX: "Mayor Curry read the proclamation and presented it to the Donate Life Representatives representatives." • First paragraph under Item XI: "She reported that a specific brochure has been created by Lety Youn s Letty Giang ..." Page 128: • Paragraph 3 under Item XV: "Reid Ling and Kira Wandrocke, Newport Harbor High School Environmental Surf Class, believed..." Item 3. Resolution No. 2013 -35: Tidelands Management Committee • The idea of a "Citizens Advisory Panel" (CAP) appointed by, but separate from and not part of a Council committee, was invented in 2010 to allow the former "Ad Hoc" Tidelands Management and Neighborhood Revitalization Committees to circumvent the Brown Act (the term cannot be found in any City document prior to 2010). Yet, this item is essentially an acknowledgement that the former "Ad Hoc" Tidelands Management Committee was always anticipated to have a continuing role, making it from the start a standing committee fully subject to the Brown Act, whether or not its meetings involved a CAP. At the last meeting of the "old" Tidelands Management Committee, Deputy City Attorney Torres asserted that the old Committee had always met in compliance with the Brown Act rules, anyway. This is not true. The three Council members are presumed to have met privately, out of public scrutiny, to consider many matters, including selection of CAP members. • To me CAPs are inconsistent with the City Charter (Article VII), which provides a clear, voter - mandated mechanism for addressing the Council's need for citizen input on an issue: namely, the appointment of a purely citizens' board or commission to investigate the issue. The CAPs also seem a particularly backhanded way to avoid the state law (Government Code Section 54970 et seq.) requiring opportunities for citizen service through Council appointment to be clearly noticed and identified on the Clerk's roster. None of the prior CAP opportunities have ever been so listed. • If citizen membership on joint Council- citizen committees is permitted by the Charter, I think the citizens should be full decision- making members as they are on the other existing Council- citizen committees (Aviation, Water Quality, etc.); not relegated to second -class status. • However the citizen component of the Committee is structured, it is unclear how the advice received from the CAP is supposed to be weighed against the citizen advice on similar matters the Council is required by the Charter to consider from the Parks, Beaches and Recreation Commission, and required by ordinance to consider from the Harbor Commission. April 23, 2013 Council agenda item comments - Jim Mosher Page 3 of 9 Finally, it is unclear why the resolution seems to go out of its way to avoid mentioning: (1) ocean - facing beaches and piers, and (2) the new tidelands fund structures that were recently set up. Item 4. Resolution Supporting Submission of Grant Applications under the Orange County Transportation Authority (OCTA) Measure M2 Environmental Cleanup Grant Program • Claiming the City's share of this countywide tax revenue seems a good thing to do, but as usual I unable to see how, since specific proposals have not yet been written, the Council can truthfully make the statement in Section 1 that it has reviewed them. Why can't the resolution wait until a detailed proposal is actually available for submission and can be publicly reviewed? • The map provided as "Attachment B" will not make clear to most of the public exactly what is being considered. Item 5. Resolutions of Intention to Disestablish the Balboa Village and Marine Avenue Business Improvement Districts Under "Funding Requirements" on page 1 of the staff report, is this similar to the normal publication cost for Council notices? Or is there something unusually expensive about publishing these particular resolutions? Does the $2500 include the cost of sending copies of the resolution by first class mail to the individual members as required by Street and Highways Code section 36523? • The latter publishing requirement (cited in Section 5 of the resolution) seems to be saying the present resolution has to be published once each day for at least seven days prior to the hearing. How will this be accomplished since there are two days of each week on which the "Daily" Pilot is not published? • Implementation of Section 3, regarding liquidation of assets, seems problematic. o Does "assets" include cash balances? • If it does, and the cash is donated to a non - profit, does this mean there will be no "remaining revenues" to return to the members? • Does "assets' include street furniture and other improvements in the public right - of -way that the BID may have contributed towards with its levies? • If so, under what circumstances could a non - profit take ownership of property in the right -of -way? Would encroachment permits have to be issued? • How does one distinguish the portion of the assets that is derived from member assessment levies from the portion derived from general City taxpayer contributions via "matching funds'? • Since the latter were not contributed by the BID members, it would not seem they should be "returned" to them. April 23, 2013 Council agenda item comments - Jim Mosher Page 4 of 9 o Is the non - profit to which the assets will be sold or donated the proposed merchants association? Or any non - profit? How is the group receiving this largesse selected? And how large and broadly based would a merchants association or other non - profit have to be to qualify? • The boundaries of the two BIDs are not at all apparent from the Attachments A and B provided either in the on -line scans of the staff report or in hardcopy versions distributed by the City Clerk. Item 6. Amendment No. One to the Amended and Restated Professional Services Agreement with Central Parking System, Inc. ( "CPS ") For Parking Meter Services • The agendas posted on April 18 and 19 referred to this as an amendment to an agreement dated "May 22, 2013." The staff report suggests the restated agreement was dated "May 22, 2012," although it fails to give the details of how and where it was approved, nor to provide a copy of the original or restated agreement. • 1 continue to think that if the Council wanted staff to issue parking citations using automated license plate recognition ( "LPR ") technology, it should not have asked residents, at the November, 2012, election to ban use of automated traffic enforcement systems. The statement on page 4 of the staff report that "The amendment will also authorize the use of LPR enforcement vehicles outside of the Parking Lots, if requested by the City' suggests staff's intent is to pressure the Council to venture even farther into defiance of Section 426 of the amended Charter, inviting the litigation it said it wanted to avoid. I continue to think that deployment of LPR is allowed under the City Charter (which I doubt), then it would be much more efficient to use a fixed system monitoring the cars as they enter and leave the lots. Not only would this provide more accurate information on the length of stay (and current occupancy of the lot), but it would eliminate the cost of two vehicles, the personnel to drive them and the attendant safety and environmental issues. • On page 2 of the staff report: o It is unclear if the statement that "annual parking meter revenues have increased by 24.4% during their first complete year of operation" by CPS refers to net (corrected for the differential in personnel costs ?) or gross revenues? • Likewise, is the $500k "revenue uplift" predicted on page 3 referring to gross meter receipts? Or something else? o What does the phrase "capturing escaped parking revenues" refer to? Will the LPR data be searched for outstanding citations? • Regarding the proposed amendment: o It is difficult to fully evaluate the new Exhibit A and Exhibit without knowing how they are referenced in the Restated Agreement, which is not provided in the staff report. It would probably have been useful to provide a red -line version illustrating what has been changed. April 23, 2013 Council agenda item comments - Jim Mosher Page 5 of 9 • Section 1 of Exhibit "A" promises to define "Original Spaces," but the closest it comes to doing so is saying in Section 2.1(c) that they consist of `approximately two thousand six hundred and seventy -five (2,675) City -owned metered parking spaces," without saying where they are. If that is meant to signify all City -owned meters as of a certain date, such as today, it should say so. • In Section 2.1(a) and 2.2(a), what is "electronic ticketing "? Do we currently do this? Does it mean the violator is notified of the citation by email only or by automated electronic debit? My guess is it means violators will not receive a ticket on their windshield on the day of the alleged violation, but will instead later receive a notice in the mail that a violation was detected by the City's automated enforcement system. • In Section 2.1(g) leaves unclear who is authorized to speak for the City in requesting suspensions or emphasis of enforcement, and whether the request has to be in writing. • Section 2.2(a) refers to "red curb enforcement, loading and unloading zone enforcement" in parking lots. Is CPS expected to provide such enforcement in areas outside of off- street parking lots? • Section 2.2(d) does not appear to include any requirement that the pay stations accept cash. Is that an oversight, or is not planned to accept cash payments? • In Section 2.5.1(c): "The uniform must display an approved insignia ..." • In Section 2.7.2(e) the reference to "Restated Agreement (May 2013)" ( ? ?) is inconsistent with terminology introduced on the first page of the Amendment One, where a May 22, 2012 document is identified as the "Restated Agreement," and the April 2013 document (the present one) as an amendment to that. • Section 2.10 ( "Optional Services "), especially Section 2.10(d), seems extremely open- ended, and it is not clear if public review before the Council is required to authorize further services of a completely undisclosed nature. • In Attachment 2, the terminology `Per Original Agreement (May 2012)" and "Per Restated Agreement (May 2013)" is confusing. My understanding from the rest of the staff report is that May 2012 is the Restated Agreement and May 2013 (actually April 2013 ?) is Amendment One to the Restated Agreement of May 2012. • Exhibit "B" is especially hard to evaluate without any indication of what the current version says • Sections 2.1(a) and (f) of Exhibit "B" appear related to the Newport Beach Municipal Code Section 12.44.025 requirement that "fifty percent of the gross meter fees collected as a result of the operation of parking meters within the on- street parking meter zones" be deposited into a special Charter Section 1113 restricted Off - Street Parking Facilities Fund which is to be used only for improvements in the immediate vicinity of the area where the revenue was collected. What are the current balances in the funds for each zone? April 23, 2013 Council agenda item comments - Jim Mosher Page 6 of 9 Item 10. Code Amendment for Mixed -Use Zoning Districts on the Balboa Peninsula • Since the term "density' is defined in the Zoning Code as the number of dwelling units per acre, the references in the staff report to a "minimum lot area/density standard" are confusing at best. The problem, as I understand it, is with the minimum number of residential units requirement arrived at by dividing the actual lot area by a number specified in a table. It does not involve waiving a "minimum lot area" requirement for mixed -use development. In fact, I believe the problem is that dividing by the number labeled "maximum lot area" in the table yields too large a quotient. • This item seems unusual in that, as acknowledged on pages 3 -4 of the staff report, the City Attorney's Office has altered the Planning Commission's recommendation without asking for their reconsideration of it. The added language requiring a finding of "unique site constraints" echoes Section 3.1 from the Planning Commission resolution recommending approval, however Section 3.1 suggests unique constraints always exist on the Balboa Peninsula, so it is not entirely clear what the new language adds. • The item is also unusual in that staff seems to have chosen to ignore the Planning Commission's explicit directive to, so that the proposed changes to the tables could be evaluated in context, present the entire text of Municipal Code Section 20.22.030 for the Council (and public) to consider, not just the modified tables contained within it. • The chosen manner of presenting the amendment in the form of the modified tables alone is arguably in violation of City Charter Section 418 (even as amended in November, 2012, effective January 9, 2013), requiring amendment of full sections or subsections of the code. Because Section 20.22.030 contains no numbered or lettered subsections, this is an attempt to amend something that is neither a section nor a subsection of the code. Since the remainder of Section 20.22.030 consists merely of the title and a single sentence of 44 words, it is unclear why the full amended text, separately included as Attachment CC 3 on handwritten pages 33 -36, was not simply made part of the proposed ordinance. • As it is, it takes nearly as many words, and due to the unnecessary repetition and explanation introduced a typo at the top of handwritten page 10: "Section 2: Table 2 -11 of Section 20.22.030 of the Newport Beach Municipal Code is hereby amended to add new Note No. 6 and read:" • It would have seemed helpful to let the decision makers know how the two modified tables are referenced elsewhere in the code. • Since the tables are being amended, their readability could have been improved by changing "Density Range" to "Number of Residential Units' and "Minimum /maximum allowable density range" to "Allowable range determined by dividing the lot area by the following areas" (although the "Minimum" and "Maximum' labels are then backwards). • As mentioned at the March 21 Planning Commission meeting, it would also have been helpful to clarify whether in setting the whole number of residential units, the quotients obtained by dividing the two areas are intended to be rounded up or down. One might guess the minimum number is intended to be rounded up (but subject to the possible waiver in the footnoted zones), and the maximum number is to be rounded down. April 23, 2013 Council agenda item comments - Jim Mosher Page 7 of 9 In Table 20 -10, in the MU -MM column, there is a reference to "For property beginning 100 ft. north of Coast Hwy," implying there are properties that are not 100 ft. north of Coast Hwy, but leaving it unclear how the range is to be determined for them Item 11. Community Development Block Grant, Fiscal Year 2013 -2014 Action Plan • The staff report provides no explanation of the "Statutory Caps" noted in the table on page 3. Must 65% of the CDBG funds be spent on capital improvements? Or are there other options? • $58,000, the great bulk of the allowable program administration costs, appears to be being paid to a "qualified consultant." Why are the staff report and resolution silent on specifying who the consultant is likely to be? How much time is involved in preparing the largely boilerplate Annual Action Plan? Could a City employee do this for less? And is there additional City staff time /cost involved, beyond the administrative costs listed? • At the bottom of page 7 of the Action Plan (handwritten page 19), it is difficult to understand how the statement "No public comments were received during the public review and comment period or during the Public Hearing." could be made prior to the hearing and prior to the end of the public review period (that is, prior to April 23, 2013). Item 12. Development Agreement No. 5 Annual Compliance Review - 2013 Hoag Memorial Hospital Presbyterian • Contrary to the recommendation of "good faith compliance," the staff report, in the final sentences under `Background" on page 2, suggests that Hoag is not actually in compliance with the Development Agreement, but that Council has previously acquiesced to the lack of compliance. With regard to the $150,000 promised by Hoag for improvements to Sunset View Park and Superior Avenue (handwritten pages 16 -17), when does the City plan to submit the invoice? With the agreement expiring in 2019, it would seem this needs to be done. Item 13. Review of the Request for Proposal (RFP) Outline for the Residential Solid Waste Program • As the staff report indicates on page 1, there are some areas of the City in which residential trash service is not currently provided by City crews. • Having not yet had time to carefully review the RFP, I have the impression it does not provide a map of exactly where those areas are, who provides the service, and at what cost. Such information would seem of interest to the public, and possibly to the respondents since they might want to integrate those areas into their proposal. April 23, 2013 Council agenda item comments - Jim Mosher Page 8 of 9 • To the public it is of particular interest to know if there are disparities in the way residential trash service is paid for in different areas. It is my belief that in some areas (such as Santa Ana Heights) residents pay a surcharge on their property tax bills, while in others it is regarded as a core service funded with a portion of the basic pre - Proposition 13 tax levy, and while still different arrangements might prevail in other areas (the November 27, 2012, Council agenda Item 27 study says Newport Coast residents pay neither a collection nor a recycling fee). It would be helpful for the public to understand the origin of these disparities, and how they might be affected by the outsourcing plan. • With regard to the recycling data provided in Attachments 2H through 2J, it is probably important for the public to understand that the percent of what is sent by the City to CR Transfer that is reported as going to the landfill (59.17 %), and the percentages claimed to be coming out of the Materials Recovery Facility (MRF) in various categories of recyclables never change (at least over the three years represented) because these are not real tallies of the recyclables recovered, but rather the theoretical amounts that could be recovered if the composition of the trash, and efficiency of the MRF, matched a small sample taken some years ago. • The Costa Mesa Sanitary District (CMSD), which is responsible for the contracting in Santa Heights, and uses the same MRF, receives rather different (but also fixed and unvarying) percentages for the trash collected there, and there is some doubt as to the overall accuracy of the numbers. • As part of a yet- to -be- completed audit, CMSD obtained the following information from CalRecycle on the total amount of CRV redemptions claimed for all recyclables (not just from CMSD and Newport Beach) coming out of the CR Transfer MRF in Stanton (as reported as Item 8 at an April 16, 2013, CMSD Operations Committee meeting): Aggregate Volumes for the Dropoff /Collection Program in the City of Stanton A IMcai�d Welghn M Pm"s lib,l Cert 10 Program Name Address city Year Aluminum GLASS Mixed Amber Flint Green CP0225 OR Transfer Inc 11232 Knott Ave Stanton 2010 358,098.00 5,252,509.00 CP0225 CR Transfer Inc 11232 Knott Ave Stanton 2011 287,601.00 4,904,090.00 CP0225 CRTransferinc 112321(nott Ave Stanton 2012 289,257.00 6,901,238.00 PLASTIC a14ti:11:.1 764,573.00 359,453.00 653,405.00 557,475.00 737,646.00 593,654.00 RC 934,956.00 17,057,837.00 2,155,624.00 1,510,582.00 City Of Stanton Total 934,956.00 17,057,837.00 2,1SS,624.00 1,510,582.00 The problem is that the tons of, for example, of aluminum cans claimed in the recycling reports to be recovered from Newport Beach (or CMSD) residential trash alone (for Newport Beach in 2011: 160.5 tons " 2,000 Ibs /ton = 321,000 Ibs of aluminum cans), would account for or exceed the full amount of CRV redemptions claimed for the entire MRF, even though the residential trash from each of those districts is thought to account for no more one -fifth of the total input to the MRF. Even if the numbers were accurate, it is probably also important for the public to understand that since 2007, the state - mandated recycling goal is not to meet certain percentages "diverted' from landfills, but rather to reduce the amount going to the landfill April 23, 2013 Council agenda item comments - Jim Mosher Page 9 of 9 below a certain number of pounds per person per day (ppd) based on a level set using 2003 -6 data, and that the total attributed to per person consists not just of the residential waste going to landfills, but rather all waste generated within the City, of which residential is only a small component. According to CalRecvcle, the goal for Newport Beach is 9.6 ppd (if based on residents) or 11.5 ppd (if based on persons employed in the City) and in 2011 we claimed to be at 5.7 and 7.1 ppd going to landfills, to which, again, residential curbside waste is a relatively small contributor (at most 1.9 ppd, if one believes the "disposed" total reported for 2011 in Attachment 21, and a service area population guessed at 58,000). But if the major discrepancies in residential recycling reports suggested by the CMSD audit is any indication, it would be very difficult to assess the reliability of any of these estimates. Item 14. City Council Direction Relative to Appointees Serving On Multiple Boards, Commissions, or Committees. • I do not believe the footnote on page 2 of the staff report is correct. It says the BID boards appointments "are made by the City Council pursuant to the California Streets and Highways Code rather than City Council Policy A -2." o Streets and Highways Code section 36530 requires, the Council, if it chooses to create a Business Improvement District, to appoint an advisory board, but it does not say how. All it says is: "The city council may designate existing advisory boards or commissions to serve as the advisory board for the area or may create a new advisory board for that purpose. The city council may limit membership of the advisory board to persons paying the assessments under this part. The city council may appoint the advisory board prior to adoption of the resolution of intention to create the area, so that the advisory board may recommend the provisions of the resolution of intention." o Although the necessity for creating a board arises from the Streets and Highways Code, I see nothing about the mechanism for creating the board or the mechanism for making appointments, so assume the Council would fall back on the guidance given it by City Charter Article VII and by Policy A -2.