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HomeMy WebLinkAbout0 - Public Commentsfc'�"we3aara w.:% a� .Duly 9, 2013 Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(o�vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) IV. CLOSED SESSION Item A. Anticipated Litigation - 508 South Bay Front Avenue 1. For those who follow the proceedings of the City's boards and commissions, the announcement of this item is a little strange. 2. The buyer's request for Harbor Commission approval of a new permit, as required by NBMC 17.35.020(F), in connection with a change of ownership at 508 S. Bay Front, where the owner's existing commercial pier encroaches into the public waters in front of the neighbors' residential duplex at 510 S. Bay Front, was Item 7.1 on the Harbor Commission's March 13, 2013 agenda. Despite a staff report detailing issues related to a possible approval or denial, the public and Commissioners were informed the application was incomplete and would be brought back for discussion and decision at a future Harbor Commission meeting (see minutes). 3. Since the matter has not yet been brought back or decided by the Harbor Commission, it is unclear what appeal, or anticipated appeal ( ?), the current agenda is referring to. Item B. Conference with Labor Negotiators 1. This item has been on each Closed Session agenda since May 28, 2013 (that is, it has been discussed at three sessions in addition to the present one). 2. Since Council- approved agreements with most of the labor groups listed were announced some months ago, the quality of public comment might be improved by informing the public what new labor issues require the Council's attention. XV. CONSENT CALENDAR Item 1. Minutes for the June 25, 2013 Regular Meeting Passages from the draft minutes are shown in italics with suggested changes in stFikeeu underline format. The page numbers refer to Volume 61. 1. Page 206 (under "Public Comments on the Closed Session Agenda "): "... believed that this is a violation of the Brown Act and potentially kielated nullified any action taken w?deF in the Closed Session." 2. Page 208 (paragraph 1 under Item XIII): a. "Council Member Gardner reported attending a recent marketing presentation by Newport Beach and Company (Visit Newport Beach) and commented positively on July 9, 2013 Council agenda item comments - Jim Mosher Page 2 of 11 the event." [note: the comment is correctly recorded, however "Newport Beach and Company" is the business name listed with the California Secretary of State on 11/19/2012 (Entity Number C3522227), and "Newport Beach & Co." appears to be the preferred spelling] b. "She discussed anew beetle that attacked over 200 landscape trees, referenced information published by U. C. Riverside. and suggested placing the information on the City's website and making it available to gardeners." [Again, the draft minutes are correct, and no correction is suggested, although I do not believe information about "Polyphagous Shot Hole Borer" beetle /fusarium dieback has yet been placed on the City's website. From the UCR information, it sounds like the number of species affected may be less than 200, but includes many common Southern California street trees.] 3. Page 208 (last paragraph under Item XIII): "He also reported that he at tended the U.S. Junior Women's Doublehanded Sailing Championship, the Russo and Steel Steele Auto Auction, ..." 4. Page 212: (last paragraph under Item XVII): "Jim Mosher expressed concerns with the money allocated yearly to the Newport Beach and CompanylVisit Newport Beach (VNB) by the City..." b. (last line on page): "Council Member Daigle reported on a recent meeting of the Airport Land Use Commission and items discussed and considered, including approval of the rr� City of Mission Viejo 's General Plan Update." 5. Page 213: a. (paragraph 1, last line): "City Attorney Harp presented a status of the EIR, noting that they aFe the County is currently looking for a consultant and expect to finish selection of the consultant in the fall." [rhe draft minutes correctly reflect what was said, but I would suggest identifying who "they" is might be helpful to future readers.] b. (paragraph 2, last sentence): "He indicated that a presentation was also made regarding whether or not to proceed with a project to re vise the pier lines in the Harbor and it was concluded that it is not an item that needs to be addressed at this time." [rhe draft minutes correctly reflect what was said, so no correction is suggested, but believe the harbor has three sets of lines: bulkhead lines, pierhead lines, and federal project lines. My recollection, possibly incorrect, is the Tidelands Management Committee recommended the Harbor Commission not consider changing the federal project lines, but continue evaluating the other two.] c. (Item 15 "Renewal of the Corona Del Mar Business Improvement District (BID)" - finat paragraph): "In response to Council Member Gardner's questions, Public Information Manager Finnigan reported that staff followed standard noticing for public hearings." i. Again, no correction is suggested, but a review of the video indicates Ms. Finnigan further stated that "standard noticing" did not involve notifying the individual BID "members." July 9, 2013 Council agenda item comments - Jim Mosher Page 3 of 11 ii. As Council Member Gardner implied, this means the "members" did not receive a meaningful notice of their right to protest the assessment, and I believe that is a violation of the California Streets and Highways Code, under which the BID exists, and pursuant to which the hearing was being held. iii. Like most laws, the Streets and Highways Code is convoluted and difficult to understand, but Section 36523 requires "(b) Mailing of a complete copy of the resolution of intention by first -class mail to each business owner in the area within seven days of the city council's adoption of the resolution of intention." In this case, the Resolution of Intention (2013 -46) of holding the hearing was adopted by the Council on June 15, 2013, but apparently never mailed to the affected business owners, let alone within seven days after its adoption. Per Resolutions 2013 -37 and 2013 -38 such a mailing was reportedly done in connection with the hearings considering disestablishment of the Marine Avenue and Balboa Village BIDs (Items 12 and 13 on the May 14, 2013 agenda), but it was not done here. iv. Although Resolution 2013 -46 was adopted pursuant to Section 36534, which includes a requirement, which was fulfilled, that "The clerk shall give notice of the public hearing by causing the resolution of intention to be published once in a newspaper of general circulation in the city not less than seven days before the public hearing." the hearing announced by that resolution and reported in the present draft minutes was itself held pursuant to Section 36535, which says "The public hearing shall be conducted as provided in Sections 36524 and 36525" (which detail the procedures for submitting, counting and responding to protests). The problem is that, although codified in the "Establishment" chapter of the "Parking And Business Improvement Area Law Of 1989," Section 36523, quoted above, requires that notice of any hearing conducted under the rules of Section 36524 to be noticed both by the newspaper publication and by individual mailings to those to be assessed. v. The above dual noticing requirements — by newspaper publication to the public at large, and by individual mailings to those to be assessed — are not only commanded by a straightforward reading of the law, but they seem entirely reasonable: for the purpose of the annual hearing is to count protests, and as Councilwoman Gardner pointed out, that counting is a pointless exercise if most of those who could protest are unaware of their right. vi. The alternative reading that the mailing code was placed in the "Establishment" chapter of the 1989 Act because the individual mailed notices are required only upon the establishment of a BID can be additionally rejected because Section 36523.5 (also found in the "Establishment" chapter) qualifies the requirement by imposing still further requirements if the proposal is to add a new assessment or increase an existing one. An increase would never happen during the establishment of a BID. Furthermore, the City itself felt individual mailed notices were required in the case of disestablishing a BID (see comment iii), apparently based solely on the reference in Section 36523 to Section 36550 (Disestablishment Hearings). The reference in Section 36523 to Section 36524 (Annual Assessment Renewal Hearings) is identical. 1. The additional noticing requirements for new or increased assessments, which are found in California Government Code Section 54954.6 (part of the Brown Act), may well have applied to the various revised harbor fees. It is not clear that noticing requirement was followed. July 9, 2013 Council agenda item comments - Jim Mosher Page 4 of 11 vii. In summary, if, as the minutes and video suggest, the City failed to provide the legally required individual mailed notices, I believe those being charged the annual assessment approved at the June 25, 2013, hearing were denied their due process. 6. Page 214: The same comment as above applies to Item 16, the renewal of the assessment for the Newport Beach Restaurant Association Business Improvement District for FY 2013- 2014. 1 don't think the finding reported in the draft minutes, that "the protests represented less than 50 percent of the total assessment amount" is meaningful since most of those who might have protested were not given their legally required notice of the hearing. 7. Page 218: Near the middle of the page, between the appointments to the Civil Service Board and those to the Parks, Beaches and Recreation Commission, the appointments to the Harbor Commission have been omitted. a. According to the tally sheets, the Council members voted unanimously for David Girling, and unanimously for Joseph Stapleton with the exception of Council member Daigle who voted for Stephen Scully. 8. Page 219: a. Sentence 1 correctly records "Council Member Henn commented positively on the inclusion of the dam in the coverage and the decision to choose Option 1," however it is clear from the remainder of his remarks in the video that he was endorsing the last- minute staff recommendation to adopt Option 2. i. It might also be noted that according to the addendum to the staff report issued just before the meeting, and making that recommendation, the final cost quoted for Excess General Liability from CSAC EIA, with the $500,000 "self- insured retentions" (SIR = deductible) and including the Big Canyon Reservoir was $546,243, which is not only $27,750 less than the original quote from CSAC EIA, but also less than Option 1 ($1,000,000 SIR from private carriers). This would seem to make the "not to exceed $1,883,878" quoted from the agenda in the motion too large. If the addendum is correct, the revised total proposed by staff, and presumably approved by Council, would seem to be "not to exceed $1,856,128." b. Paragraph 1 after "XXII. Adjournment ": "The agenda for the Regular Meeting was posted on June 24 20, 2013, at 4:00 porn. on the City's website; on June 21 , 2013, at 8:00 a.m. on the City Hall Electronic Bulletin Board located in the entrance of the City Council Chambers at 100 Civic Center Drive; and on June 21, 2013, at 9:00 a.m. in the Meeting Agenda Binder located in the entrance of the City Council Chambers at 100 Civic Center Drive." [without this correction, the original agenda would have been posted after the amended one] July 9, 2013 Council agenda item comments - Jim Mosher Page 5 of 11 Item 2. Reading of Ordinances This motion seems unnecessary since I am unable to find any ordinances agendized for introduction or adoption. Item 3. Amendment of the Balboa Village Advisory Committee Membership 1. With regard to Recommendation (a), the proposal to amend the membership of the Balboa Village Advisory Committee (BVAC) to replace the "Balboa Village Business Improvement District Board Member" with a "Balboa Village Merchant Association Board Member," I am concerned that the California Secretary of State, as of "work processed through Friday, July 5, 2013" has no listing for a "Balboa Village Merchant Association." If the organization has not yet been created, it would seem premature to modify the BVAC membership to include a representative from its assumed board. And from what I have heard, the new organization may not be purely a merchant's association, but might include residents as well. With regard to Recommendations (b) and (c), to waive Council Policy A -2 and immediately appoint Ralph Rodheim as a presumed board member of the possibly hypothetical new merchants organization, I suspect this item may have been prepared by the Planning Division without consulting the City Clerk. Many of the provisions of Council Policy A -2 reflect state law, and are not within the power of the Council to waive. a. In particular, Section 54972 of the " Maddy Act" (California Government Code Sections 54970- 54974) requires the City Clerk to publish by the end of the year a "Local Appointments List" of all vacancies on Council- appointed boards, commissions, and committees that are scheduled to expire during the coming calendar year. b. All unscheduled vacancies, "whether due to resignation, death, termination, or other causes," must be filled in accordance with Section 54972, which, in the absence of an emergency, requires a notice of vacancy to be posted at least 10 working days prior to the meeting at which the appointment is made. c. Since the position created by Resolution 2013 -58 is not on the Clerk's Local Appointments List of scheduled vacancies, it is clearly an unscheduled vacancy (in this case arising from a cause other than resignation, death, or termination) and filling the position is subject to the noticing requirements of Section 54972. d. Making an appointment at the same meeting where the position is created, without the required prior notice and 10 working day waiting period, violates the Maddy Act. It is also poor public policy since there might well be others on the new board who would be interested in serving on BVAC and who are as well qualified as the proposed candidate. July 9, 2013 Council agenda item comments - Jim Mosher Page 6 of 11 Item 4. Amendment of the General Plan /Local Coastal Program Implementation Committee Membership 1. 1 have nothing against adding an at -large citizen member to the General Plan /Local Coastal Program Implementation Committee, but as with Item 3, and for the reasons detailed there, creating and filling the position at a single meeting violates state law. 2. The fact that this item is on the agenda at all also appears to violate the newly adopted City Council Policy A -6 (see Item 14 on the present agenda). a. It seems doubtful an increase in the membership of a committee would be something for which the City Manager would need Council action "in the course of operating the City." b. Instead, I believe this is a personal wish of Councilman Selich as Chair of the committee. c. The proper protocol, as I understand the new Policy A -6, would be for the City Manager, as with Item 14, to ask the Council as an agenda item at this meeting whether they want to take action on the item at a future meeting. The City Manager may argue that the new Policy A -6 does not apply when responding immediately to a Council member's request requires minimal staff time, or when it seems unlikely the remaining Council members would question a committee Chair's wish to change the composition of his committee. However, I can find no such exemptions in the new Policy A -6. Alternatively, the City Manager might argue the provision in the new Policy A -6 saying "The City Manager may place an item on the agenda in the course of operating the City' gives him the latitude to accede to any Councilmember's request, without following the new procedure. However that interpretation would not only give the City Manager veto power over the judgment of individual Council members, which seems an unlikely policy, but if it only applies when the City Manager chooses to apply it, it would also make superfluous the spelling out of a procedure for Council members to place items on the agenda. d. In summary: i. If the Council wants to change the composition of the committee at this meeting, rather than voting on whether to consider changing it at a future meeting, it will need to waive the new Policy A -6. ii. Appointment of a person to fill a vacancy created at this meeting violates the Maddy Act. e. The proposed Resolution 2013 -59 has several defects copied into "Exhibit A" from the previous enabling resolution, and at least one new one, which the Council may wish to correct before approving it: July 9, 2013 Council agenda item comments - Jim Mosher Page 7 of 11 i. The tasks listed under "Purpose & Responsibilities" are unusually vague and broad, not always clearly tied to the General Plan, and would seem to include some which have been accomplished in prior years and are no longer on- going. ii. The appointment of Council members to the committee solely by, and at the pleasure of, the Mayor without the concurrence of the remainder of the City Council seems highly unusual, and may be in violation of the City Charter which generally vests the powers of the City (including, one assumes, the power to make appointments) in the Council as a whole, and affords only very limited additional powers, largely ceremonial, to the Mayor. iii. The appointment of members by the Planning Commission Chair, without concurrence or veto power by the Council, also seems unusual. iv. The proposed resolution completely fails to specify who appoints the new at -large community member, or what the qualifications for that position might be. v. The length of the terms of the appointees (as opposed to the duration of the Committee, which is indefinite) is not specified. Item 5. Inclusion of Properties within the City's Jurisdiction in the Western Riverside Council of Government's California HERO Program 1. 1 am not generally keen on Joint Powers Authorities as they tend to operate outside the range of meaningful citizen scrutiny, and are subject to vaguely defined rules. 2. The staff report is less than clear as to the magnitude of the administrative fees W RCOG may charge for the loans it offers. 3. The report is also unclear as to whether the City's becoming an "Associate Member" of WRCOG will preclude residents from being eligible to participate in programs offered by other entities. Item 8. Amended Cooperative Agreement with the Friends of OASIS 1. The staff report could have been much more helpful in highlighting what changes in the Agreement are being proposed, and why. 2. To the extent it describes the changes, the staff report "Discussion" seems unreliable. For example, on page 2 it says "Exhibit A to the Amended and Restated Cooperative Agreement provides an update to both parties'roles and responsibilities," but the red- lined version provided on pages 26 -28 shows no changes. Aside from retyping and omission of part of the original title block, the absence of changes seems to be verified by comparison with Exhibit A of the Laserfiche copy of the existing agreement, C -3772, which is the same as that shown on the pages cited. Yet the staff report implies an July 9, 2013 Council agenda item comments - Jim Mosher Page 8 of 11 update was needed after eight years and major new construction. Was an update of Exhibit A intended? 3. 1 know very little about the operation of the OASIS center, but to the extent that a major role in the operation of a public facility is assigned to a separate private organization, I would hope the Agreement would include assurances that the organization would remain open, transparent and responsive to public input, yet 1 find no such assurances. Reviewing the Friends website, I see a lot about the activities offered at OASIS, but very little, or nothing, about the operation of the Friends organization itself, such as by -laws, how the board is elected, when and where they meet, or records of agendas, minutes or actions taken at past board meetings. All we have is the assurance in the present staff report that "The Friends Board of Directors officially approved the revisions at their board meeting on June 20, 2013." Was the membership in general aware that a new Agreement was being considered? 4. On the City end of the agreement, since OASIS provides important City recreational amenities, I find it disturbing that a new long -term Agreement is going to Council without the review and advice of the Parks, Beaches and Recreation Commission, who are charged by the people of Newport Beach, through Charter Section 709, with advising the Council on all matters related to recreation. 5. Since a substantial part of the Agreement deals with shared financial responsibilities, I would also have thought a provision allowing each group to examine, review and audit the relevant parts of the other's books would be important, but I don't see that. 6. It also seems to me that since the City has apparently chosen to concentrate all senior services at a single location, it is essential to maintain viable and easily affordable transportation to and from the center. Otherwise a substantial part of the less mobile population the center is intended to serve will not be served by it. The details of the transportation program and the assurances that it will be maintained in Clause 11.5 seem convoluted and less than reassuring, and are not clarified by Exhibit A where transportation funding rests solely with the City even though Clause 11.5 suggests it is somehow contingent on additional funding from the Friends. Item 9. Approval of Amendment No. 5 to West Coast Arborists, Inc. for Tree Maintenance Services 1. This would also seem to be an item that would have been appropriate for more thorough public discussion before of the Parks, Beaches and Recreation Commission. Under Charter Section 709 the people expect them to advise the Council on all matters that come before the Council related to City trees. 2. According to the staff report, the increased contract amount is needed to implement "increased reforestation and tree trimming efforts," but neither the adequacy or appropriateness of those efforts, or whether the present contract arrangement is the best way of achieving our goals, have ever been publicly reviewed — at least not recently. July 9, 2013 Council agenda item comments - Jim Mosher Page 9 of 11 Item 10. Request to Install Private Improvements within the Public Right- Of-Way at 500 El Modena Avenue 1. I passed by this location on the 4th of July and noticed that the property was not posted with a notice of the present meeting, as would be the case if a public hearing were required. Since the staff report says only that "The agenda item has been noticed according to the Brown Act" one wonders if neighboring property owners are aware of the requested "improvements "? If not, might they have had information that would have been useful to the Council before deciding to approve this? 2. Since the proposed development will occur on what might look like private property but is in fact a public "parkway' shouldn't Policy L -6 require requests of this sort to be reviewed by the Parks, Beaches and Recreation Commission before coming to Council? Although City staff apparently doesn't think the project will interfere with access to possible future City street trees, Charter Section 709 assigns PB &R a role with regard to parkways as well as trees. 3. The electronic version of this agenda item was posted in an image -only PDF format, which makes it more difficult to review, search and comment upon than it would otherwise be. I think the City Council should encourage staff to post all agenda items in a uniform, machine - searchable format. Item 11. Request to Install Private Improvements within the Public Right -Of -Way at 303 Driftwood Road This appears to be a less obtrusive project than the one proposed in Item 10, and I don't know if the site was posted, but the same comments probably apply. Item 12. Acceptance of Funds from the California Board of State and Community Corrections 1. Although all public monies are ultimately provided and paid for by the citizens, it always seems good to "accept" funds from (seemingly) "elsewhere." However the staff report seems to indicate the present action is to authorize new expenditures to spend funds previously accepted. 2. The staff report is less than clear as to why it is titled "Acceptance" or what action related to acceptance is requested. Is a resolution needed to be sent to the California Board of State and Community Corrections or to the City of Garden Grove acting "as the fiduciary agent for Orange County "? If so, I don't see it. Item 13. Reuse of Former City Hall Complex 1. 1 usually save the thickest staff reports for last, so my comments on this item will be less well informed than the others. I find it hard to believe that the CEQA analysis on page 13 is correct. Contrary to what the analysis says, the selection of a proposer would certainly seem to me to have July 9, 2013 Council agenda item comments - Jim Mosher Page 10 of 11 reasonably foreseeable impacts on the environment, and since the primary purpose of CEQA, as I understand it, is that both the public and decision makers will be able to understand and weigh the probable environmental consequences of the decisions they might make (and their alternatives), I don't think that objective has been fulfilled here. Although it is true, as the analysis says, that "on November 21, 2012, the City published a Notice of Intent to Adopt a Negative Declaration and subsequently prepared a Mitigated Negative Declaration analyzing the impacts of the amendments to the City's General Plan, Coastal Land Use Plan and Zoning Ordinance, if any, pursuant to CEQA and the CEQA Guidelines," the proposed MND (no link to which is provided with the current staff report) was released in a difficult to read all- italics format with a holiday period comment time ending on the day after Christmas, and to the best of my knowledge the final product never reached the City Council. I am also unable to find any link to the MIND on the Current Projects & Issues page devoted to City Hall Complex Re- use. As a result I have to question whether the proposed decision, if made, will be adequately informed by solid knowledge of its expected environmental consequences. In addition I seem to recall that a response letter to the draft MND from California Coastal Commission staff cautioned City staff to go slowly, and not waste money and effort on proposals that might prove to be profoundly inconsistent with the Coastal Act, including among other things, I assume, violating the mutually agreed to Peninsula height restrictions. 4. 1 am also concerned about the statements on page 9 of the staff report that each of the proposers is seeking a 99 -year lease. Considering that is nearly as long as the entire history of the City, that seems an incredibly long time to commit public property to a land use and design that we are not even sure (despite the predictions) will prove viable at this location. Finally (having no more time to prepare written comments before the 5 pm Policy A -6 deadline), I am concerned about the appointment of a two Council person negotiating committee, which I assume thinks it will operate out of public view. The Brown Act allows non - public meetings of sub - quorum advisory committees, but negotiating and advising are not the same to me. Item 14. Direction to Staff per Council Policy A -6 — Mariner's Mile 1. It might have been helpful for the staff non -report presented pursuant to the new Council Policy A -6 to note that the 18 pages of mail messages calling for action on this matter (many parts of which seem to have been cut and pasted from a common master copy) that Council member Petros mentioned at the May 28, 2013 Council meeting have been posted by City staff as Correspondence (Mariners Mile) under Item 19 on both the Granicus and Laserfiche archives for that meeting. 2. It might also be helpful to note that, if I remember correctly, revitalization of Mariners Mile was a priority initially identified for attack by the Council's 2011 -2012 Neighborhood Revitalization Committee in its second season, but, for whatever reason, the committee sunsetted without tackling it. July 9, 2013 Council agenda item comments - Jim Mosher Page 11 of 11 3. 1 hope someone will eventually decide if the correct designation for Pacific Coast Highway between Dover Drive and Newport Boulevard is "Mariner's Mile" or "Mariners' Mile" (with an apostrophe, but where ?) or "Mariners Mile" (with no apostrophe). a. The 2006 General Plan and the Zoning Code generally use "Mariners' Mile" (with an apostrophe after the "s ") but on rare occasion use "Mariner's Mile ". b. I don't recall what the City signage at PCH and Dover says, but I believe it's "Mariner's Mile ". A 2009 City- financed parking study also calls it "Mariner's Mile ". c. The new private development at PCH and Dover appears to be calling itself "Mariner's Pointe" (possibly copied from the nearby City sign) but some of the older business owners, such as the owner of Mariners Mile Square in the mail messages cited above, appear to prefer no apostrophe. The City's GIS Mapping Service identifies all these parcels as being in the Mariners Mile Business Owners Association (no apostrophe). d. Mariners Drive and the Mariners Branch Library also have no apostrophe. XX. Motions for Reconsideration As indicated above in the notes on Item 1, the Draft Minutes of the Council's June 25, 2013, meeting, the public hearings regarding the renewal of the involuntary assessments for the City's two business improvement districts (Items 15 and 16 on the June 25 agenda), do not appear to have been noticed in accordance with state law, and as a result BID "members" were not given adequate notice of their right to protest the continued assessment. I would think the renewals of the BID assessments should be redone with proper notice. 2. Also as indicated above, the Council's action on Item 21 ( "City Insurance Renewals ") at the June 25 meeting is clouded by a correctly recorded, but incorrect, reference in the minutes to approval of "Option 1." The Council may wish to consider re- voting that item to make clear they intended to approve "Option 2."