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Comments on March 12, 2013 Council Agenda Items
The following comments on items on the March 12, 2013 Newport Beach City Council agenda are
submitted by: Jim Mosher ( iimmosher(o)vahoo.com ), 2210 Private Road, Newport Beach 92660
(949- 548 -6229)
CLOSED SESSBON
Off - agenda Comment
It may be unclear from the approved minutes of the Council's February 12, 2103 meeting, but
prior to the Council going into Closed Session I noted that Item A on that agenda, involving
instruction to the City Manager "regarding price and terms of payment" for a property at "883
West 15th Street," appeared to involve the City's West Newport Community Center.
In public comment at our Parks, Beaches and Recreation Commission's March 5, 2013
meeting, I asked what seemed to me a perfectly reasonable question: exactly what aspect of
that facility are we negotiating about? The City's Recreation and Senior Services Director made
a statement to the Commission and the public which I took to mean that because the West
Newport Center is now a closed session item, City staff could neither confirm nor deny the
existence of negotiations, nor in fact say anything at all about future plans for the Center.
I find that a truly bizarre perversion of the very limited privilege given to the Council to privately
set price points related to a real estate deal. The decision as to whether to sell or lease the
public's property in the first place, is an entirely public one. I would like to remind Council, and
staff, of the important caveat in the preamble to the Brown Act (specifically in California
Government Code Section 54950, and which has been there since the Act's inception in 1953):
"The people of this State do not yield their sovereignty to the agencies which serve them. The
people, in delegating authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people insist on remaining
informed so that they may retain control over the instruments they have created."
I hope City staff can be reminded of that. They, like the Council, are servants (in a good sense)
of the people, and it is not for them decide what is good for us to know and what is not.
Item No. A. Conference with Legal Counsel
A check of the case number on the Orange County Superior Court website indicates the case to
be discussed involves a filing by "Lookout Point Alliance" and "Juaneno Band of Mission
Indians" on August 2, 2012 for a writ of mandate against the City of Newport Beach with real
parties in interest John and Julie Guida and Government Solutions.
As indicated at earlier meetings, I think it would be in the public's interest for staff to be more
expansive in describing on the agenda what the purpose of the closed session discussions is.
For example, I would assume this discussion has something to do with a complaint related to
the Council's approval of the lot merger at 2808 and 2812 Ocean Boulevard, opposite Lookout
Point in Corona del Mar (Agenda Item 18 at the Council's June 26, 2012 meeting, but I have no
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 2 of 12
idea what the nature of the complaint might be. At the time the Juaneno's were asking to
monitor the grading. Nothing in.the Brown Act precludes staff from providing a brief explanation
of the issue the Council needs to resolve, nor would that in any way compromise the
discussions.
More generally, I think it would be in the public's interest for staff to disclose, as a receive and
file item on the regular meeting agenda, a listing of all claims made against our City since the
last meeting — as it did in past years for monetary ones. At present, the public does not know if
even their representatives on the Council are receiving that information.
Item No. B. Public Employee Performance Evaluation
This item reinforces the previous comment: the public can see only that the Council wants to
meet privately to discuss something related to the performance of the City Manager. By
providing only the bare minimum disclosure required by the Brown Act, the public cannot tell if
this is part of a routine annual evaluation, or something else. That can lead unfairly to the
speculation that the employee in question did something wrong that requires non - public
investigation.
Not knowing what is being evaluated, I would like to say that in my view the City Manager is a
good and honorable man who I believe is doing what he sincerely believes, with guidance from
the Council, to be in best interests of the citizens of Newport Beach.
That said, there will always be administrative details some people think might have been
handled better. One of those that currently concerns me is the handling of City -owned blue gum
eucalyptus trees (BGE) since the fatal accident on September 15, 2011. Some of those were
understandably removed on an emergency basis; others have been less urgently removed in
subsequent months and years, including those on Holiday Road subject to a Council decision
on November 22, 2011, reversing a contrary recommendation from the Parks, Beaches and
Recreation Commission. At that time, to ensure the City was proceeding in a prudent way, the
minutes record "Council Member Selich stated he too will not ignore the safety issue but
suggested a post- evaluation of the removed trees to affirm that they posed a safety issue."
Personally, I would have gone further and suggested using a winch to apply the expected wind
load to one of the targeted trees to see if it actually was in danger of falling.
Despite the Council's directive, to the best of my knowledge the public (and Council ?) has not
heard if such a post - evaluation was performed, and if it was, has seen no clear evidence as to
whether the Holiday Road BGE's were unsafe or not. Yet we are now removing Council -
designated "Landmark Tree" BGE's along what the City calls the Groves Bike Trail at the
intersection of Westcliff and Dover between the Westcliff Grove and Upper Castaways
residential developments, possibly with a lack of clear evidence as to whether the particular
trees being removed are unsafe or not. If nothing else, the current removal appears to be
violating the Council policy (G -1) requiring tagging of targeted trees for 30 days prior to removal,
and also appears to be taking place without the Coastal Development Permit clearly required by
Section 30106 of the California Public Resources Code, which requires such a permit for any
removal of major vegetation that is not part of a bona fide agricultural or timber harvesting plan.
Nor am I aware of any evidence that the announced replacement palette, which would seem to
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 3 of 12
have to be approved by the Council in its tree policy, has been reviewed or approved by the
Coastal Commission.
I find concerning the lack of a better effort to communicate clearly to the public what the City
administration is doing, especially when it appears to be acting in violation of state and local
law.
REGULAR MEET G
Item No. 1. Minutes for the February 26, 2 013 Study Session and
Regular Meeting
The page numbers in these suggested corrections refer to Volume 61 of the draft minutes as
submitted for the Council's review.
Page 72: "... Engineering Design and Construction Support Services Associate Associated
with Replacement of the Big Canyon Reservoir Floating Cover... "
Page 77: "Regarding Item 10 (Uptown Newport Xanner Planned Community), ..."
Page 79:
"Mayor Curry thanked staff for conducting a tour of the ? ? ?? facility for the Harbor Ridge
Women's Club." [was the reference to the new Civic Center facility ?]
"...it is the City's intent to install sidewalks from Cypress €ast east towards the park."
"...but there is are extensive negotiations occurring with the residents."
Page 81: Under Item XV (Public Comments), a blank line would be helpful between the two
paragraphs.
Page 84: '...Mr. Hawkins'statement regarding liability going newher- somewhere is not
correct."
Page 85: In the vote reported at the bottom of the page, it should probably be noted that
Council member Petros was recused.
Page 88: Under Item 15, the following sentence might be improved with: "He further discussed
methods to charge for the parking space even if the patron does not pay ter - the - space."
Page 90: My ear suggests: "Assistant City Manager Badum believed that this is not an
econemic.ai economic issue but rather a noise issue, ..."
Some additional comments on the February 26, 2013 Minutes:
1. Under the discussion of the RFP for residential trash outsourcing, on page 76 the
minutes correctly allude to the high cost of "converting" the City's current fleet of trash
trucks from diesel to compressed natural gas (CNG) as one of the primary drivers
behind this effort. In that regard, it should be noted that not only have taxpayers already
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 4 of 12
invested in construction of a CNG fueling facility at the City's Corporate Yard, but that
the "renewal" of the fleet is apparently an on -going process that would be happening
with or without the CNG mandate. The consultant's report presented to the Council as
Item 27 on its November 27, 2012 agenda implies that two or three of the City's fleet of
18 residential collection trucks need to be replaced each year, and states that 4 of the 18
have already been replaced with CNG. What is involved seems primarily to be the price
differential of CNG versus diesel when replacement is required in the normal course of
aging, not some large, unexpected or unusual one -time cost. Not only have taxpayers
already made a substantial investment in this "conversion," but if the current system of
collection were to be outsourced it seems likely the existing fleet would be sold as
"surplus" equipment to the outsourcer at a discount. This seems already to have
occurred in connection with outsourcing of refuse collection at City parks and facilities:
what appear to be two of the trucks formerly used by the City for that purpose were
recently sold as surplus to Roberts Waste and Recycling (our contractor) under contract
C -5376. And my personal observation of how this operates at the Mariners Branch
Library is the following: formerly a City truck came at around 7 am on weekday
mornings to groom the landscaping and empty the trash into the bed of their truck before
opening. Now, the same City truck (quite capable of holding the trash) arrives at about
the same hour but does only the landscape grooming, while a separate Roberts truck
arrives to empty the trash. This may work out as a savings on paper, but how it could
"really" cost less escapes me.
2. As correctly recorded under "Public Comments" on page 79, and as I also submitted in
writing, no mention of the public commentary by former Centennial Mayor Don Webb
regarding the City Seal in the new Council Chambers could be found under "Public
Comments" in the draft minutes of the February 12, 2013 Regular Meeting. This
continues to be true of the officially adopted version. Why the Council has chosen to
exclude his comments from the official minutes is unknown to me, for he continues to
appear as the first speaker in the archived video of that meeting.
3. Page 86 (EQAC appointments) properly reports my concern as to the lack of clarity
regarding the intended terms of the EQAC appointees, and those previously appointed
to the Water Quality Coastal Tidelands Committee, and it seems unfortunate the Council
choose not to respond to that concern by indicating whether they intended the terms to
be staggered or not. As noted, without that information the City currently appears to be
in violation of California Government Code Section 54972, for the Local Appointments
List maintained by the City Clerk fails to list the expiration dates of a number of
committee appointments (which is a required part of the listings).
4. On page 87, under Item 13 (Approval of outside project manager for Marina Park
construction), the draft minutes correctly note "Mayor Pro Tern Hill suggested that the
Building Committee continue its involvement in the project and review the design." They
omit City Manager Kiff's response questioning which "Building Committee" Mayor Pro
Tern Hill was referring to, which left at least this member of the public wondering both
how many of these committees there are, and whether the public has input to and
knowledge of their decisions. I suspect the City Manager was trying to draw the
distinction between the "City Council /Citizens Advisory Committee on Marina Park
Design" (a group created in 2006 but disbanded several years ago) and the "Building Ad
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 5 of 12
Hoc Committee," a three - member subcommittee of the Council originally created in 2003
which has overseen construction of OASIS and the new Civic Center. The latter has, in
my view, been doing its business in flagrant violation of the Brown Act. Not only has it,
for all intents and purposes, become a standing committee, but even it were not a
standing committee, it is clearly charged with making decisions that are not brought back
to the full Council for public review. Both of these conditions, separately or together,
should have required deliberations to be confined to publicly noticed meetings. Beyond
that, the "Building Ad Hoc Committee' has never been formally charged with oversight of
any projects other than OASIS and the Civic Center.
5. In a closely related matter, on page 77 1 am correctly reported as saying I "believed that,
if a subcommittee has been designated to address the [Airport Settlement] agreement, it
should be noticed." Due to the limitations of what can be said on multiple topics in 3
minutes I should elaborate: It is my impression that through some agreement of which
the public is not fully aware, the full Council has empowered the three Council members
on the "Aviation Committee" to meet privately on their behalf with various parties to
negotiate changes to the John Wayne Airport Settlement Agreement. Whether or not
the Brown Act allows those negotiations to be conducted in closed session (which
seems unlikely, since the Brown Act would not allow the other parties to be present), the
time and place at which such a more - than - advisory Council subcommittee is meeting
needs to be publicly announced, if for no other reason than to allow the public to provide
their comments either orally or in writing. Failing to notice those meetings is, therefore, a
violation of the Brown Act. The City Attorney may argue that the Brown Act does not
apply to these meetings because the City has been represented at the Settlement
Agreement negotiations by an informally self- designated sub - quorum Council "working
group," but if that is so I would argue that having the public's business conducted by
vaguely self- designated working groups of the Council is very poor public policy, and
probably in violation of the City Charter which invests the powers of the City (not
otherwise explicitly delegated in the Charter) in the full Council, not in sub - groups or
individual members.
6. Near the top of page 89 (Parking Lot Automation), I find doubtful the City Attorney's new
interpretation of the significance of the prohibition on automated traffic enforcement
systems added to the Charter as Section 426 by Measure EE, and its inapplicability to
the proposed automated license plate recognition system. Whatever his current reading
may be, the explanation he offered to voters on their sample ballots was:
"a "yes" vote would: (1) prohibit the City from taking any action that would result
in the installation of red light cameras or other automated traffic enforcement
systems in the City of Newport Beach (except toll roads) without subsequent
Charter Amendment approved by the voters of Newport Beach ". [emphasis
added]
The fact that there needed to be a carve out for toll roads (where one would assume the
machines being thought of are the automated ones that collect fees and ticket cars that
have not paid) implies that its scope was intended to be broader than just "stopping
vehicles in intersections," as the City Attorney now says, for the toll road machines have
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 6 of 12
nothing to with stopping at red lights. And an intelligent layman attempting to read the
convoluted text of Section 426 would probably come to the same conclusion, for not only
does it not use the exact phrase from the Vehicle Code in all places, but near the end it
includes an "including, but not limited to" qualifier. However useful the City may now find
them, my guess is that a voter who relied on the City Attorney's explanation of the
measure would assume their "yes" vote banned not just red light cameras at
intersections, but also other automated traffic enforcement systems, including automated
license plate recognition systems for parking ticket writing purposes.
Item No. 3. Adoption of Ordinance No. 2093 -7 Amending the Newport
Beach municipal Code to RepeallAmend Outdated and Inefficient
Regulations
Please see my earlier written comments on Item 16 on the Council's February 26, 2013 agenda,
where this item was introduced. They still apply.
Among other failings of this ordinance, I think repealing Chapter 5.16 (Going Out of Business
Sale regulations) is not a particularly wise move, but as noted in the previous comments,
whether it is good or bad, the repeal will require a modification to Sub - section 11.03.020.0.1 of
the Municipal Code, since Chapter 5.16 is mentioned there. That modification does not appear
to be part of the proposed ordinance.
Item No. 4. Uptown (Newport Planned Community
During the presentation of the most recent "General Plan Annual Status Report" to the Planning
Commission at their March 7, 2013 meeting (a presentation which I think will be coming to the
City Council at their next meeting), the public learned that Implementation Program 12.1 of the
City's 2006 General Plan requires a "Fiscal Impact Analysis" of all "significant" developments
using "the Fiscal Impact Model developed for the General Plan." This duty is also called out in
General Plan Implementation Program 1.1.
Although Mayor Curry is reported, on page 85 of the draft minutes of the Council's February 26,
2013 meeting, as commenting on the "public and economic benefits" of Uptown Newport, I do
not recall seeing the very specific written findings required by Implementation Programs 1.1 and
12.1.
Now it is true that the General Plan leaves it to the discretion of the Council to set the threshold
for what a "significant" development is, and it is possible a Fiscal Impact Analysis using the
General Plan Fiscal Impact Model was included somewhere in the more than 5000 pages of
Uptown Newport documentation presented to Council; but the fiscal impact of removing
commercial and light industrial and replacing it with residential and parks is far from obvious to
me.
If the analysis was not included, then I would hold that the approval of this project as
contemplated under the current agenda heading is inconsistent with the General Plan.
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 7 of 12
Item No. 5. Bicycle Master Plan Oversight Committee
I must note that I am extremely puzzled about what happened to the previous Citizens Bicycle
Safety Committee, and the assertion on page 2 of the staff report that it was disbanded on
January 10, 2013. As far as I know, the Council did not meet or take any action on that date,
and quite to the contrary, it did meet on January 8, at which time, as part of agenda Item 12, the
Council approved Mayor Curry's appointment of Councilmember Petros as Chair of the existing
committee, whose duties under its enabling Resolution (No. 2010 -99) already included. "Review
the City's current Bicycle Master Plan and make recommendations to City Council for
modifications and additions." It is true the Council was required to review that Committee's
progress annually and that "The City Council may reauthorize or disband as appropriate;" but I
am unaware of the Council voting to disband this group. Moreover, the enabling resolution said
that "Each Committee Member shall be appointed for one year and may be reappointed up to
four years," and according to the City Clerk's Local Appointments List, the members had last
been appointed on February 28, 2012. What happened on January 10, 2013 to result in a
sudden dissolution of the group remains a mystery to me.
However that may be, like Agenda Item 6. 1 feel that advice to the Council regarding bicycling
issues would be more properly provided by the Parks, Beaches and Recreation Commission,
and may even be so required by the City Charter.
Assuming that that suggestion is ignored, I would offer the following additional comments on this
item (most of which would apply equally to the former Committee, from whose enabling
resolution the current equally imperfect one seems to have been created):
1. I should hope that the modifications to the Bicycle Master Plan could be formulated "in
house," without reliance on an outside consultant.
2. If an Oversight Committee is to be formed, and a consultant hired, I should think the
Committee should be involved in the scoping of the RFP, and the selection of the
consultant, not just in its aftermath.
3. Assuming there is enough work to justify forming a committee, I believe that committee
should meet regularly, not on an "as needed" basis. I have observed that the members
of committees that meet irregularly tend to lose interest and the committees become
dysfunctional. The most recent incarnation of EQAC is a good example of the
disintegration of an "as needed" committee, as is the inability to find applicants for the
Building and Fire Board of Appeal.
4. Since the Bicycle Master Plan will affect all residents of the City, the majority of whom do
not ride bikes, I feel the committee providing oversight should include not just bike
enthusiasts, but also persons who do not ride bikes.
5. As to the proposed Resolution 2013 -25:
a. The resolution, like its predecessor, is malformed: if the details of the committee
are to be specified on a separate sheet, the resolution should simply refer to that
as an exhibit, rather than attempt to restate the details in different words, which
can lead only to confusion and discrepancies. In the present case, the separate
sheet is not referred to in the resolution, leaving its significance unclear, and
there are discrepancies between the two. For example, the resolution says the
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 8 of 12
committee must be chaired by a Council member, but the committee sheet does
not specify that any of the seven members must be Council members.
b. Neither the resolution nor the committee sheet makes clear what the
membership qualification of being a "community member" means. Does this
refer, as in boards and commissions, to qualified Newport Beach voters? Or
does it include non - resident business owners? Or people who only work in
Newport Beach? Or could it include those who only bike or visit Newport Beach?
c. Neither makes clear how many of the seven members are supposed to be
Council members. The committee sheet implies it is intended to be more than
one for it says under Term: "Council Member appointees shall serve a one year
term." [emphasis added]
d. Although Council appointees are commonly selected by the Mayor in January,
the idea that the citizen appointees, however many there may be, would be
appointed by the Mayor alone, rather by a balloting of the full Council, is contrary
to the practice for any other committee I am aware of.
e. The committee sheet does not seem to require the Mayor to appoint a Council
member as Chair even though the resolution does, and in addition, that the
Mayor could make this appointment without the consent of the full Council seems
contrary both to the City Charter and the practice with other committees.
f. It is unclear if the committee has, or is intended to have, any decision making
authority over the preparation of the Bicycle Master Plan, or if staff, after
consideration of their comments, is free to produce whatever it wants The
resolution and committee sheet suggest the latter is intended — much like the
recent "Citizens Advisory Panels" to Council committees, that had no real power
over anything, except that here it looks like the Oversight Committee's "guidance"
is perhaps intended to be even more peripheral and non - binding on the outside
consultant's work.
g. The appointment of citizens to indefinite terms seems poor public policy, and it is
unclear what happens to the committee if the Council rejects the Bicycle Master
Plan they provide input to.
In summary, this seems to me a poorly thought out proposal. I think a true citizens committee
empowered to formulate a plan, possibly with the advice of a consultant, would produce a
better, more interesting and certainly more Newport- centric result than a consultant vaguely
guided by public input (as is proposed here).
Item No. 6. China Cove Ramp Median Slope Maintenance
This may be a fine project, but I believe that under Charter Section 709, the Council should not
have initiated it without first seeking advice from the Parks, Beaches and Recreation
Commission (PB &R). The City Attorney may suggest that engaging PB &R is a decision that is
at the discretion of the Council, but one can much more plausibly argue that the people of
Newport Beach, through their Charter, require the Council to seek the Commission's advice so
that all projects related to parks, beaches and recreation will receive extra scrutiny.
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 9 of 12
Item No. i. Approval of the Fiscal Year 2092 UASI Grant
Two comments:
1. Since the changes made to City Charter Section 412 by Measure EE relieved the City
Clerk of the duty of reading to the public the titles of the resolutions the Council adopts,
City staff seems to have also felt relieved of the directive repeatedly given to them by
Council members to try to produce shorter titles. The title of proposed Resolution No.
2013 -20 runs to 93 words, which not only seems excessively long to me, but raises the
practical question of how it will represented in databases where the resolutions are listed
by title.
2. Although the letter from the Anaheim Police Department, dated January 16, 2013, says it
is an invitation for a "FY2012" grant (where "FY2012" in Newport Beach terminology is
July 1, 2011 — June 30, 2012), 1 find the report baffling, since by the time the request is
submitted we will be approaching the end of fiscal year FY2013 (in Newport Beach
terminology), and looking forward to FY2014 (July 1, 2013 — June 30, 2014).
a. Does "FY2012" as used by the Anaheim PD mean July 1, 2012 — June 30, 2013?
b. And if so, is this a request for reimbursement of programs that have already
taken place in the current year (which we are about to complete), rather than
programs anticipated in the coming fiscal year?
Finally, near the bottom of page 2 of the staff report, what non - profit groups are we planning to
"collaborate" with, and would we be passing grant money on to them?
Item No. 8. Approval of Agreement with Former City Employee
Mr. Pingle appears to be offering to work for the very reasonable rate of $34.52 per hour, which
is a very pleasant change from the $300 per hour (and more) consultants engaged by other
departments routinely ask for. I would normally question why the function Mr. Pingle is being
asked to perform is not being performed by current employees, but perhaps this is less than we
pay them, which I suppose would make this make economic sense if the existing employees are
all fully occupied and we would have to hire a new one to do this?
I would also note that boilerplate contract attached to the staff report does not entirely fit the
proposed scenario. In particular, the "Project Manager' designation provisions of Section 5
seem inapplicable, and Exhibit A does not contain the personnel list mentioned in that section.
Item No. 90. Quarterly Business Deport
I do not believe a city should be run as a business, but I agree with the assessment of several
Council members that this is a good and useful document — although by the time it is released it
is often nearly a quarter late, and it is often unclear exactly what period it is reporting on.
As might be expected, it contains some minor typographical and other errors of little importance.
I found particularly interesting, but ultimately confusing, the discussion on page 9 about the
Redevelopment Agency that includes the Santa Ana Heights community, but also (according to
the map) a much large area including the John Wayne Airport and much older tracts within the
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 10 of 12
City of Newport Beach. I was left uncertain as to where more information about this agency can
be found, and how our City interacts with it.
Item No. 11. Reimbursement to Ridgeway Development Company
I believe that: (1) this demand is fraudulent (or at least improperly itemized), (2) it is being
improperly presented to Council, and (3) payment of it (even if it were properly itemized and
presented) would be both illegal and poor public policy on a number of levels.
I regard the demand as fraudulent because without further explanation the items totaling
$19,598.30 (prior to overhead and profit) for which Mr. Ridgeway is seeking reimbursement in
his letter dated July 23, 2012 (page 5 of the staff report) appear to be items 2, 4 and 6 in the list
provided on the final page of the staff report, but I find it difficult or impossible to relate these
items to repairs of City infrastructure that would have been required in the absence of Mr.
Ridgeway's project. The largest item ( 42) appears to be for a 20 -inch exploratory hole which he
presumably would have needed in any event to determine where to make the connection, and
#6 is for sidewalk repairs which I also assume he would have been liable for in any event. Only
#4 seems possibly to be for repair of a "hump" in an existing City line.
The reason I regard this as an improper presentation of a demand to the Council is that Mr.
Ridgeway's demand was presented to the City well prior to the January 9, 2013 effective date of
the Measure EE changes to the City Charter. Under Section 1114 of the 2012 Charter, Mr.
Ridgeway's demand was required to be presented to the Director of Finance within 90 days
after the last item on his list had accrued. The Director of Finance was then required to
determine if the amount was legally due and if an appropriation had been made to cover it. The
City Council is supposed to be considering the demand only if the Director of Finance rejected
it. The staff report presents no evidence that any of this happened.
Had Mr. Ridgeway's demand been presented to the Director of Finance I believe he would have
found it was not legally due. The primary reason for this that there appears to be no evidence of
this work having been undertaken pursuant to a written contract, and under Section 421 of the
2012 Charter, the only person with authority to bind the City to a non - written agreement was the
City Manager, and even then, only for items approved by the Council in the annual budget.
Although those protections were significantly, and very unwisely, weakened by Measure EE, the
principle that employees cannot bind well- structured municipal corporations with oral contracts
is well established by case law. See, for example, Katsura v. City of San Buenaventura (2007)
155 Cal.App.4th 104, which tellingly quotes a seminal Newport Beach refusal to honor a non-
binding "agreement" made by a Newport Beach City planner, Burchett v. City of Newport Beach
(1995) 33 Cal.App.4th 1472:
"One who deals with the public officer stands presumptively charged with a full knowledge of
that officer's powers, and is bound at his ... peril to ascertain the extent of his ... powers to
bind the government for which he ... is an officer, and any act of an officer to be valid must find
express authority in the law or be necessarily incidental to a power expressly granted.... no
government, whether state or local, is bound to any extent by an officer's acts in excess of his, .
. authority."
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 11 of 12
And as with the Ventura City Charter cited in Katsura: "There is no provision in the City charter
for execution of oral contracts by employees of the City who do not have requisite authority. The
alleged oral statements by the associate city engineer and project manager are insufficient to
bind the City." And if there is anyone who should know of the existence of such rules, Mr.
Ridgeway, as a former Council member and Mayor, should be one of those, and held to the
highest standard (especially since he was on the Council that initially appointed three of the
sitting Council members who will be deciding this matter).
Not only would honoring an invalid and improper non - binding agreement made by employees
without proper authority be bad public policy (how do we know, for example, that Mr. Ridgeway
did the work at a fair price? Or in a way consistent with City policies ?), but it is also expressly
prohibited by Article 11, Section 10(a) of the California Constitution: "A local government body
may not ... pay a claim under an agreement made without authority of law." [emphasis added]
Unless Mr. Ridgeway is able to produce a properly executed written agreement authorizing this
work, and setting a price prior to his performing it, I believe the Council is compelled to reject
this untimely and illegal demand from a former Council member and Mayor.
Please note that subsequent to the present action, like the contracting rules, the detailed
procedures for processing "demands" (bills and invoices, such as this) presented against the
city formerly found in City Charter Section 1114 were deleted by Measure EE. Why they were
deleted, I don't know, but since they no longer exist, I believe it is incumbent on the City Council
to put clear new procedures in place by ordinance.
Finally, please see my comment to Item A (Closed Session), above. I believe it would be very
much in the public interest for staff to provide a list of all claims /demands made against the City
since the Council meeting as a receive and file item on the regular meeting agenda. It would be
equally useful to see a list of the warrants (checks) paid by the Director of Finance, as most
other cities and public agencies do.
Item No. 92. Woody's Wharf Use Permit Appeal
I'm not sure I understand how our application and appeal fee schedules will be applied to this,
but it is refreshing to see staff recommending this substantially modified proposal (with a newly
proposed sound enclosure and an additional setback variance request) be referred back to the
Planning Commission for a re- evaluation.
In the past, applicants have been allowed, under the guise of an "appeal," to present a quite
different proposal to the City Council than the one that was rejected by the Planning
Commission. This happened, if I recall correctly, in connection with the Mariners Pointe
development (see agenda Item 11) and the Ocean Boulevard lot merger (see agenda Item A)
and others. Allowing this, in my opinion, not only places the Council in the awkward position of
trying to second guess how the Planning Commission would have reacted to the changed
circumstances, but it short circuits the public review process by eliminating the possibility of
appealing the new project to the City Council, and I think opponents of the modified projects
approved by Council were understandably upset.
Comments on Mar. 12, 2013 Council agenda items - Jim Mosher Page 12 of 12
In my view, the purpose of an appeal is to see if the next higher level of review authority would
reach a different conclusion based on the same set of facts. If the applicant, by modification,
thinks they can address the problems that led to rejection of their project, then that modified
project should be sent back to the body that rejected it to see if they would reach a different
conclusion. Only if it is still rejected should an appeal be allowed.
Perhaps some modification of the City's ordinances is required to ensure that business in
Newport Beach is handled that way?
Item No. 13. City Hall Complex Reuse Project Amendments
I am not sure who noticed there was a defect in the notice for this hearing, nor even what the
defect was (perhaps that it was unclear the Council would be voting on whether to accept or
reject staff's Mitigated Negative Declaration (MND) regarding environmental effects ?), but I
hope it was a City staffer, in which case I could compliment the City on its self - policing.
Scrupulous adherence to noticing policies may seem silly to some, but it is necessary to avoid
sliding down the slippery slope towards no or grossly inadequate noticing.
Regarding the substance of this item, I find that pre- zoning this property before a definite use for
it has been decided upon is premature. I found it very unclear if the consultant who prepared
the MND was analyzing a hotel, a residential complex or both at the same time (as the
proposed zoning would allow), and if the latter, how he visualized it being built.
The proposal to ignore the 35 -foot Shoreline Height Limitation with 55 foot structures also
seems at odds with the City's recent testimony to the California Coastal Commission (CCC) that
the tower at Marina Park would be a one -off anomaly; and I think Council and City staff should
take to heart the December 19, 2012 comment from the CCC analyst quoted in the MND (page
137 of the 197 page 03 -01 -13 PDF): "Commission staff wouldn't want the City andlor potential
private entity to invest significantly in a proposal that may be profoundly at odds with the policies
of the Coastal Act." I didn't find our response to this entirely satisfying, since, at least to me, it
failed to acknowledge the possibility that the proposal could be at odds with the Coastal Act.
From a local planning perspective, it also bothers me that staff is proposing to assign the entire
2006 General Plan entitlement for both residential and hotel development in the Statistical Area
running from Lido Village to McFadden Square to this one parcel. That would either force any
future developer to seek yet another General Plan amendment, and if proposing to add more
than 20% of what the City has taken to go to a popular vote, or else force the City to enter into
the shell game of transferring entitlements back, as routinely happens at Fashion Island.
For all these reasons it would seem better to decide what we want to do, then zone for that