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HomeMy WebLinkAbout0 -Public CommentsCommr�eris onW&y =1 45, 2013 Council Agenda Items The following comments on items on the May 14, 2013 Newport Beach City Council agenda are submitted by: Jim Mosher (limmosher(ilyahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 - 622'9) Item 3. Budget Overview and FY 2013 -14 Proposed CIP Y lq -13 With regard to the CIP (Capital Improvement Program), I am curious to know if our staff continues to maintain the dedicated and inviolable Capital Improvement Fund required by City Charter Section 1113, and how much of the capital improvement budget goes into and comes out of it. I tZI Lxell 91E1 %' it.i L L_ f t►d i Item 1. Minutes for the April 23, 2013 Meetings In addition to the usual typographical errors, the draft minutes for the Study Session, at least as initially posted, appear to have been prepared from the archived video, which, for unknown reasons was truncated at 2h:55m:26s, even though that was not the end of the session. According to my handwritten notes, comments on Item 3 (City Hall Reuse Proposals) by at least 12 members of the public (Charles Griffin, Lucinda Boswell, Fred Barnes, Claudia Morehead, Linda Klein, Drew Wetherholt, Brian Park, a "Balboa Point" resident, Judy Rosener, John Domacher, Denys Oberman and Cindy Koller) have been omitted, as have the concluding comments and direction provided by the Council members. Similarly, but less importantly, the last page of the draft minutes provides the posting time for the Study Session agenda, but not that for the Regular Meeting. Regarding the typographical errors and ambiguities, the page numbers in these suggested corrections refer to Volume 61 of the draft minutes. Page 134: 1. Paragraph 3: "In response to Council Member Selich's question, Mr. Marquez said that load testing on alley light poles in Balboa Island are is part of the regular inspections performed by SCE." 2. Paragraph 4: "Council Member Henn reported the that he lives on t he Peninsula and that... Page 137: 3. Paragraph 2 from end: "He highlighted hotel projects with which they have been involved in ...." or "He highlighted hotel projects with which they have been involved in Page 139: May 14, 2013 Council agenda item comments - Jim Mosher Page 2 of 8 4. Paragraph 2 from end: "Regarding relocation of the fire station site, Mr. Shopoff believed that it would add intrinsic value to his project, but noted that they are at a cap with 99 units." Page 142: 5. Last paragraph: "Mayor Curry congratulated the Concordia University University Men's Volleyball Team for becoming the National Champions for NAIA this year. He reported participating in the Daughters of the American Revolution Scholarship Ceremony at Newport Harbor High School, the his installation as President of for the Association of California Cities - Orange County on April 11, and the annual Corona del Mar Residents Association open house." Page 145: 6. First paragraph: "City Manager Kiff indicated that only one of the proposals received did not address a catering opposition operation." Page 149: 7. Paragraph 3 from end: "Jim Mosher discussed City Council Policy A-2 and asked about the Tidelands Management Committee Citizens Advisory Panel membership." Item 3. Code Amendment with Respect to the Periodic Review of Development Agreements 1. This proposed ordinance would move the annual compliance reviews of Development Agreements (DA's), from public hearings before the City Council to a non - public, and possibly non - noticed, reviews by the Community Development Director. 2. Since the passage of ordinances is among the most significant legislative acts a City Council can perform, it seems a poor idea to introduce one on the Consent Calendar, and especially this one, since the Council is being asked here to select between alternatives and no clear consensus was apparent at any previous meeting that I am aware of; let alone, the matter of the proper venue DA reviews ever having been previously agendized for proper discussion. 3. 1 believe staff is correct in its assertion that although California Government Code Section 65865.1 requires that every DA be subjected to a compliance review "at least every 12 months," it does not explicitly state, or even imply, that the review has to take place at a public hearing before the City Council. However, I believe many of the existing DA's have included an annual hearing before the City Council as an explicit part of the Agreement language (for example, Section 7.3 of the Uptown Newport DA), and I believe the proposed ordinance would be ineffective at changing that, since any changes to an existing DA require a public hearing on each pursuant to Government Code Section 65868. 4. Although I would have no problem with the annual compliance review for future DA's being conducted in a public hearing before the Planning Commission, or even the Zoning Administrator (suggested as "Alternatives" on page 3 of the staff report), it has been my observation that with the existing DA's the mechanisms of public notice and public hearing elicit comments and information that would otherwise not have been known or available for consideration as part of the review. I therefore think that subjecting future DA's only to a May 14, 2013 Council agenda item comments - Jim Mosher Page 3 of 8 non - public and non - noticed annual review by the Community Development Director is a poor idea. 5. Assuming the Council wants to tinker with Chapter 15.45 of the Municipal Code (Attachment 3 to the staff report), there are other sections it might want to improve at the same time. For example, staff has noticed a "scrivener's error" where Section 15.45.080 referred "to the public notice provisions of Section 15.45.040" where a reference to Section 15.45.050 was intended as the result of a renumbering in 2007. But more substantively, the existing Section 15.45.020.13 reads: "a development agreement shall not be required for a project that includes remodeling of existing building floor area, without the addition of new floor area," which, if read literally, says a project is exempt from needing a DA if anywhere within it it includes such an element. I suspect this was meant to read renumbering in 2007. But more substantively, the existing Section 15.45.020.B reads: "a development agreement shall not be required for a project confined to remodeling of existing building floor area, without the addition of new floor area," and this would seem an opportunity to correct that. 6. A final curiosity of this staff report is the great prominence given to Council's CEQA determination, both as a separate action listed on the agenda and as recommended action 1.a on page 1 of the report. This stands in strange contrast to Agenda Item 4, where the identical CEQA determination is buried in the report with no special mention, and particularly odd since the determination is redundantly included in the ordinance, if it were to be adopted. Why is a separate CEQA action required for this item, and not for others? Item 4. Ordinance Amending Various Provisions of the Newport Beach Municipal Code 1. 1 commend staff for taking the time to review the Newport Beach Municipal Code, however, as with the previous item I don't think it's a good idea to introduce ordinances on the Consent Calendar, where they will not receive adequate scrutiny, and a particularly bad idea to mingle non- substantive changes (such as routine corrections of out -dated cross- references) with substantive ones (such as the proposed changes to rules regarding parking meter payments, parades and "service of process "). I know I will not have the time to review these carefully, or even to verify that most are non - substantive (as asserted in the staff summary), and I suspect others will not as well. This reminds me of the Measure EE process in which a huge number of poorly vetted and unrelated changes are being proposed to be adopted in a single vote, based almost entirely on staff's assurance that they are routine and innocuous. 2. It is comforting to see an acknowledgement of the existence of the California Government Claims Act (formerly Tort Claims Act) in bullet point 3 on page 2 of the staff report. This is particularly timely in view of the California Supreme Court's April 25, 2013 opinion in the matter of McWilliams v. Long Beach (S202037), which found, contrary to what voters were told in being exhorted to vote "yes" on Measure EE, that charter cities lack any power to modify the claims procedures promulgated by the state legislature in of the Government Claims Act, including the rules governing class claims, especially class claims for refunds of improperly charged taxes. How does staff propose to correct the mess created by Measure EE, and sever our new, unconstitutional Charter provisions from those voters may actually have wanted to vote "yes' or "no" on? May 14, 2013 Council agenda item comments - Jim Mosher Page 4 of 8 Many of the proposed changes seem to be related to a (to me foolish) stylistic choice that numbers need to be presented in both English and Arabic forms as in "one (1)." What is the reason for this? Aren't Newport Beach residents capable of reading numbers in one form or the other? o Despite this apparent wish, it has not been applied consistently. For example, a number of expressions have been left in, for example, the straightforward "five business days" form and not always transformed into the more cumbersome (but apparently clearer to some) "five (5) business days" 4. In Section 145 of the proposed ordinance, regulations that don't accord with either practice or the stated objectives have been retained (such as the present posted year -round closing of the Grand Canal on Balboa Island to non - resident traffic, probably much to the surprise of the Coastal Commission in view of the "public" steps adjacent to the Park Street bridge). This again emphasizes that when stylistic changes to the code are being proposed, the section as whole should be given a more comprehensive review by the Board, Commission or other body it affects. 5. In Section 163 of the proposed ordinance the term "Harbor Master" is used, where elsewhere it has been changed to "Harbormaster." Item 5. Mined -Use Zoning Districts on the Balboa Peninsula An opportunity to further amend the code to improve clarity, for the public, as to how the numbers in the tables being amended are used to calculate the allowable limits on the number of residential units remains unfulfilled. Item 8. Professional Services Agreement for Old Newport Boulevard and West Coast Highway Modifications Aren't some aspects of this design work likely to be premature in view of a Bicycle Master Plan still being in its formative stages (see Item 16 on the current agenda)? Item 99. Budget Amendment for Personal Trainers Setting aside the question of whether it is appropriate for the government to be participating in the personal trainer field, it is good, probably, to see the City is generating a "profit" on the enterprise, although one assumes most, if not all of that profit is needed to maintain the facility where the training is offered. However, as best I am able to understand the staff report, the budget amended is needed to cover revenue and expenses associated with a single trainer, and since there is little more than a month left in the fiscal year, I have to assume it is related to revenue already received and expenses already committed to. Does the Council really have any alternative to approving the request? If so, what would it be? May 14, 2013 Council agenda item comments - Jim Mosher Page 5 of 8 Item 92. Ordinance Disestablishing the Marine Avenue Business Improvement District I applaud staff's decision to ask for discontinuance of the Business Improvement District, but find unconscionable the suggestion to dump $50,000 (per year ?) of taxpayer money into the black hole of a vaguely defined private merchants association with no real accountability to the City, and as best I can tell currently having only four interested members. In my opinion, and according to my reading of the Street and Highways Code, there should never have been any taxpayer money going to these organizations, which are supposed to be funded by the levies on the "members." The existing "advisory' boards are already highly conflicted (making recommendations and taking actions that expressly intended for their personal financial gain). The recommendation to continue funding them, but going from the openness of a conflicted public group to the opaqueness of a private one makes a bad situation worse. Item 93. Ordinance Disestablishing the Balboa Village Business Improvement District Although this is a group with a somewhat wider and more active membership than the Marine Avenue BID, the same comments as to the previous item apply. Assuming the Council chooses to go ahead with the budget proposal to fund the successor group, it is unfathomable to me why the size of the group and the past record of activity and its effectiveness would have no effect on the proposed amount of the grant. Will any group of four people in Newport Beach claiming to have banded together as a private merchants association by automatically eligible for a grant of $50,000 of taxpayer money? Item 94. 2094 -2 029 Housing Element /Update I find unusual the prominence given to a last minute letter submitted to the Planning Commission (PC) at their April 18, 2013, hearing (Attachment No. CC 2) by a representative of the Building Industry Association (BIA), and the recommendation that based on his letter the Council consider repealing Newport Beach's 2010 Inclusionary Housing Ordinance. If the City Council is being asked to revisit this issue, I would think that at a minimum their discussion should be informed by providing for their review a copy of the discussion before the PC, as well as the 2010 hearings on this matter. I find the deference given the BIA letter particularly strange in view of the fact that I also submitted written comments to the PC based on reading the first 33 pages of the March draft of the Housing Element, yet beyond the acknowledgement of the typographic corrections that were made in response, those comments are not provided, or even mentioned in the staff report. In particular, I thought the draft element did not accurately depict the Newport Beach housing status at any clearly defined time. For example, the May 14, 2013 Council agenda item comments - Jim Mosher Page 6 of 8 possibility of housing at the old City Hall site does not seem to be mentioned (see page 5- 195 in Draft 1.2, April, 2013), yet certain approved projects, such as Uptown Newport, are still depicted in some places as future "opportunity sites" (page 5 -235). 1 was also unable to find such basic comparative data as the median home sale price in Newport Beach (as opposed to in specific sub - areas, see page 5 -29). 3. At the PC hearing, I made the erroneous observation that the Greenlight (City Charter Section 423) restrictions on housing approvals may not have been properly disclosed, but upon finding the proper passages (pages 5 -81 and 82) after the meeting, I see that the California Government Code sections quoted there no longer read as cited. In fact there no longer is a California Government Code Section 65915(g)(5). Even if it did, I don't think it would answer the question of whether the density bonus is to be included, or not, in the calculation of whether the number of allowed new housing units in a development approval triggers the need for approval by the people. The language of Charter Section 423 is ambiguous enough that it could be argued either way. 4. 1 take such oversights as the erroneous references in the previous item to be an indication that the draft element has not been carefully or systematically reviewed. The Planning Commissioners similarly said at the hearing that they had noticed errors in the pages they had examined, and I don't know how many of those may have been corrected. 5. Some additional minor comments on random pages read: a. Page 5 -42, footnote 6: "Sgt. Evan Sailer Sailor. Newport Beach Police Department." b. Page 5 -44 under "Farm Workers ": "The 2006 -2010 U.S. Census American Community Survey estimates farm workers comprised of less than 1 percent (approx. 149) of the population in Newport Beach" c. Table H32 (page 5 -46): Isn't the conversion of single family homes to condos in RT areas a significant housing opportunity? d. Page 5 -47, last paragraph: "... an RM parcel that are is currently occupied by a dirt parking lot' e. Page 5 -49, paragraph 3: "Mixed -use parcels have a maximum floor area ratio of 1.25 with a maximum floor area to land ratio of 0.35 for commercial and a maximum of a 75 for residential purposes." [ ? ?, 0.35 + 0.75 doesn't add to 1.25] Also, why is the old City Hall site not mentioned under Lido Village? f. Page 5 -50, under Balboa Village: "The average size of parcels designated as MU -V in Balboa Village is 0.10 acre or 4,356 square feet." g. Page 5 -51, under Newport Center: How is the conversion of hotel units to residences considered in evaluating the need for a Greenlight vote? h. Page 5 -52: Why is Uptown Newport not mentioned under "John Wayne Airport Area "? i. Page 5 -79, under "Land and Construction Costs," the construction cost estimates seem low compared to those recently adopted in connection with flood plain remodeling. May 14, 2013 Council agenda item comments - Jim Mosher Page 7 of 8 Item 95. 449 Old Newport Medical Office Building Appeal I believe the Council should uphold the Planning Commission's carefully thought out decision to deny the permit, as requested. My understanding is the applicant is not being denied the right to develop and use their building, but only being limited to developing /occupying the square footage of medical office space that can be supported by the available on -site parking under the direct, and permanent, control of the applicant (I am not sure the statement at the top of page 5 of the staff report is, or should be, accurate, as it implies the only alternative to full medical use is 20% medical). If the use is to be supported by off -site parking at an adjacent, as yet to be developed lot, it would seem that lot should either be permanently merged with the applicant's one, or at least a direct opening created between the two. As pointed out by the Planning Commission, expecting patrons to navigate between the lots by way of Old Newport Boulevard seems neither practical nor realistic. The alternative of freeing up adequate on -site parking by requiring employees to use the off -site lot might seem plausible at first, but as the Planning Commission observed, if the applicant is at some time in the future denied their somewhat tenuous right to use that lot, the original problem would return, and to comply with the parking ordinances, existing tenants would have to be asked to vacate their offices — something than seems neither practical, or perhaps even legal. Item 97. Rejection of Irrevocable Offer of Dedication for Newport Ridge Park and Crestridge Park This doesn't smell right to me. I have not had time to try to decipher the previous Council actions on this matter, but understanding is that parkland dedications extracted pursuant to the Quimby Act are intended for public use. It seems now the only guaranteed access the public in general will have is to the sidewalks bordering the public streets? Item 98. Approval of an Agreement for the Purchase of Three Fire Engines The staff report lists, on page 2, and 18 year old Spartan /Salusbury Pumper, apparently still active and 6 years older than any other engine in the current fleet. Since Spartan was one of the proposers (albeit at a higher price), does this mean their product is more durable? Or is there some other reason for this anomaly? In recommending Pierce, the staff report mentions references from Kern and San Diego counties, yet the report suggests the two most recent engines in our own fleet are also from Pierce. What has been our comparative experience with those? And do we know why American LaFrance (manufacturer of 8 of the 11) did not bid? Item 90. Council Policy Manual Update for 2093 This item is odd in that the draft minutes to be approved as Item 1 on the current agenda announce (last page of second paragraph from end of page 149) that "Council will be May 14, 2013 Council agenda item comments - Jim Mosher Page 8 of 8 considering a revision to the City Council Policy Manual at its second meeting in May." This is the first meeting in May, not the second. As with Item 4 on the present agenda, and last November's Measure EE, it is disturbing to see many unrelated proposals, most of which, in this case, have never before been the subject of any public discussion, being offered for a single vote. We have often heard it said that the Council makes policy and the staff implements it, but the effect, it seems to me, is that Council is being reduced to ratifying policy created by staff, and the public is deprived the opportunity of having Council comprehensively review the policies for changes they might wish to suggest, had they reviewed them. Having staff both create and implement/enforce policy does not seem wise to me. Of the policies that have previously been publicly reviewed by the Council's Finance Committee, as I have separately commented to them with regard to Policy F -2 ( "Reserve Policy "), I believe there are more City funds than the six listed in the proposed revision that are subject to restrictions beyond the Council's control. I also believe such significant changes as the switch from a 5% ceiling to a 3% floor on the annual General Fund contribution to the Facilities Financial Planning Reserve fund will get lost in the shuffle (found under F -28 in the table on page 6 of the staff report) and receive no discussion at all. Yet, if the purpose is, as it says, to "minimize the 'peaks and valleys" in General Fund support," it is understandable that a floor needs to be added to eliminate valleys, but why is ceiling no longer required to eliminate peaks? I cannot honestly say I have had time to review the other proposed changes, but one might wonder, for example, if the new Policy A -3, restricting direct Council interaction with City staff is intended to apply to Board, Commission and Committee members, and other appointive positions, and if so, why it doesn't say so? Picking another item at random, the proposed addition to Policy A -2 of the final clause "The appointment of Business Improvement District advisory boards or the designation of an owners' association is exempt from this Council Policy, but shall be consistent with the California Streets and Highways Code' will be recognized as meaningless by those who have actually read the California Streets and Highways Code. Although it requires the Council to appoint a BID advisory board, but it provides absolutely no guidance as to the mechanism by which that is to be accomplished. Item 20. Total Compensation Philosophy What is attached to the staff report appears to be an undated draft of the original resolution, rather than the "correct" signed and adopted version. It is not entirely clear why a draft text was selected, since the signed versions of all Council resolutions are readily available in the City's new Lasertiche archive (and were placed there at significant expense), and there has occasionally been some discrepancy between what was actually adopted and what was thought to have been adopted.