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HomeMy WebLinkAbout0 - Written CommentsNovember 12, 2013 City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosherlc-)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) STUDY SESSION Item 2. Harbor Rent - Look Back Review Regarding the gift of public funds issue (which has been cited as the basis of the requirement to receive full fair market value), does it apply here only because the City is acting as a trustee for the State or State Lands Commission? The City Attorney's Office has previously suggested that in the absence of a similar provision in the City Charter, the California Constitutional prohibition against such gifts (Article 16, Section 6) does not restrain Newport Beach. 2. With regard to Attachment C ( "Simplified DRAFT Residential Pier Permit "), I am unable to find any explanation of why the entire "Termination" section is proposed to be deleted (page 44 of 49). Without this, does the City have recourse against those who don't pay? If so, where is it specified? Item 3. Civic Center Community Room Non - Profit Use The description of this item, which the full Council, as part of Item 18 at its July 23 meeting, requested staff to agendize for future discussion, seems to be missing some words in the second sentence. If a written report was prepared for the Council's benefit in the ensuing months, it might have been helpful to provide it for review in advance of the meeting. CLOSED SESSION Item B. Conference with Labor Negotiator The Brown Act exemption cited permits closed door discussion of (but not final action on) the salary and fringe benefits to be paid to an unrepresented employee, in this case the City Attorney. Although it is has never been clear to me how our contracts with them were negotiated, I do not recall this exemption ever being used before to set the salary or benefits of any of the three persons directly employed by the City Council (City Manager, City Clerk and City Attorney). The honesty of alerting the public that such a topic is being discussed is commendable, even if it is less than obvious how the public would be harmed if the topic were discussed openly. One caution the Council might wish to consider is in its selection of the person providing legal advice during the Closed Session. At least to me it would not seem improper to have the City Attorney, or one of his subordinates, provide that advice when the topic is the compensation of the City Attorney. November 12, 2013 Council agenda item comments - Jim Mosher Page 2 of 7 REGULAR MEETING Item 1. Minutes for the October 22 Special and Regular Meeting The passages in italics are from the draft minutes, with suggested changes shown in ,.,,,.eout underline format. The page numbers refer to Volume 61. Page 320, under Item II, paragraph 3, line 1: "... the City Council will adjourn into Glseed closed session ...... Page 326, in paragraph 2 from end, the expression "... since he owns property within 500 feet of the subject matter" (which also appears on page 332) seems odd. In the past the expression has usually been something like "within 500 feet of the subject property" or "subject area" or "subject site." Page 320, under Item II, paragraph 3, line 1: "... the City Council will adjourn into G{see�1 closed session ...... Page 332, line 7 from end: the word "probably' seems odd or misplaced. Page 333, paragraph 5 from end: "Denise Lamb Lambe stated..." Page 333, paragraph 4 from end: "Robert Kenny Kinnev requested..." Page 334, paragraph 3: "Dale Rincho Rincon reported..." Page 334, paragraph 5, line 3: "... indicated they have spoke spoken to all residents..." Page 334, motion at bottom of page: The video, at 02h:30m:20s, indicates the motion included significant modifications to the draft Resolution and Ordinance that appeared in the staff report, specifically removing Amigos Way and Domingo Drive, but adding the cul de sac portion of Aralia, as well as a provision that the resolution not take effect until the ordinance does. The fact that the motion included these changes is not clearly reflected in the minutes, and in fact the signed copy of Resolution 2013 -73 does not seem to contain any provision delaying its effective date. Item 4. Woody's Wharf Use Permit Appeal Whatever its merits, the draft resolution presented as Attachment CC -1 appears to suffer from a lack of careful proofreading. The errors noticed in a spot -check of a few pages include: Handwritten page 16: The last sentence of the first paragraph of Section C -1 was probably supposed to conclude with something like "... and the following 2006 General Plan policy:" Otherwise there is no explanation of the significance of the "Noise Policy" quotation that follows. Handwritten page 19: In section G -2, "evidence" should read "evidenced." Handwritten page 21: Section "J -1" should be renamed "K" and sections "J -2" and "J -3" should be "K -1" and "K -2" and should be preceded by a heading "Facts Supporting This Finding ". November 12, 2013 Council agenda item comments - Jim Mosher Page 3 of 7 Handwritten page 21: In the first paragraph of Section 4, "finding" should be "findings" in two places. Handwritten pages 23 -24: The phrase "subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference" should probably be moved to the start of the long sentence of Section 5.1. As written, it seems to say that only "removing tables and chairs within the restaurant and outdoor patio area" is subject to the conditions. Handwritten page 24: Clause 5 should probably end with "... irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared invalid or unconstitutional." More generally the interspersal of facts demonstrating "Approved Application Elements' are consistent with required findings with facts demonstrating "Approved Denied Elements' are not makes it unnecessarily difficult to tell if all the required findings for the Approved Application Elements have been met. Item 8. Information Technology Consulting Services Please see my written comments regarding Item 6 on the October 22 agenda, from which this was continued. The staff report does not make clear why the item was continued, or what is different about it now. The previous report indicated the vendor had been operating without a valid contract. By delaying the item, it would appear they have been doing so for three extra weeks. Item 10. Balboa Boulevard Landscaping From the description of this project, and from the expansive definition of "development" in the California Coastal Act, this project would certainly seem to qualify as development in the Coastal Zone. Does it have a Coastal Development Permit? Item 11. Bayside Drive and Area Streets Pavement Rehabilitation One would not guess from the agenda title that the segment of Avocado north of PCH (and nothing in between) would be a 'Bayside Drive area street." The staff report also fails to make clear why Water and Wastewater Enterprise funds are being used for pavement rehabilitation. Presumably changes to underground piping at least partially necessitated the need for these projects? Item 12. Professional Services Agreement with Civil Works Engineers for Dover Drive and Westcliff Drive Street Rehabilitation Project The staff report says "the project will include aesthetic improvements to the median and enhancements to landscaping" but I can find nothing in the scope of work regarding public outreach regarding what kinds of improvements and enhancements the public might want. Although I thought the process was of limited effectiveness, public input was sought in November 12, 2013 Council agenda item comments - Jim Mosher Page 4 of 7 numerous other areas of the City. The end result may be little different, but in this case it appears staff will tell the public what it should want without benefit of asking. I hope the decision is not to replace pine trees with palms. Item 15. Appointment of District 1 Alternate Member to the Aviation Committee My understanding had been that until now the Clerk used the information on the citizen participation application form only to determine the councilmanic district of residency, and did not inquire whether the applicant was registered to vote or not. It is interesting, therefore, to see the Clerk suggesting here that the Council needs to waive City Council Policy A -2 because the nominee is not a Newport Beach registered voter. The policy language being quoted cannot actually be waived since it is simply echoing City Charter Section 702, and the Council has no power to waive requirements imposed by the Charter. However, as used in the Charter it applies only to boards and commissions, and it is not clear that Policy A -2 was ever intended to apply the qualification requirements found in the Charter to "committees" (which the Council seems to continue to view as something different from "boards and commissions," although Measure EE blurred the distinction). Indeed, as the Clerk points out, the enabling resolutions for the Aviation Committee allow for members who are not even residents of Newport Beach. In addition, even if Policy A -2 was intended to apply the board and commission requirements to all citizen participants in committees, it is unclear a waiver is required because it is unclear if the term "qualified elector" as used in the Charter was meant to refer to persons eligible to register (which Mr. Hecht would be, that is, meeting the qualification requirements of age, residence, etc.) or to persons actually registered to vote (which he is not). Although a California appeals case from 2005 (Neilson v. City of California City, 133 Cal.App.4th 1296) found the term "qualified electors" as added to the California Constitution (Article 13A, Section 4) by Proposition 13 in 1978 to be synonymous with "registered voters" in that limited context, it may not have been intended to mean that in the City Charter. One might guess the Charter authors would have said "registered voters" if that's what they meant, and one might point to a number of federal voting rights cases from that era in which the complaint was that "qualified electors" were not being allowed to register. Assuming the Clerk is correct that to be a "qualified elector" one has to be a "registered voter," two actions would seem prudent: 1. The roster of board and commission members should be checked to verify they all meet the Charter requirement. 2. A question asking applicants to verify, under penalty of perjury, that they are currently registered to vote at a Newport Beach address should be added to the application form. That would save staff the time and effort of making that determination for them. November 12, 2013 Council agenda item comments - Jim Mosher Page 5 of 7 Item 17. Visit Newport Beach, Inc. (VNB) Annual Reports Although I have not had time to read them prior to the 5:00 pm Monday deadline for submitting written comments on City Council agenda items, it is good to see VNB is providing the reports required by its contracts, even if a few months late. 2. Given the level of City funding, one might hope the Council would seek clarity as to the relationship of VNB to the now apparently nearly year -old organization calling itself "Newport Beach & Company" (NB &Co). Despite claims that NB &Co is an umbrella organization over VNB and others, I understood from the Finance Director of VNB (and NB &Co) a couple of months ago that NB &Co had not yet received its tax status certification from the IRS, and that despite apparently total overlap in the governing boards, VNB is now, and will forever remain, a separate organization, not under NB &Co. Exactly who the City of Newport Beach is giving public money would seem important to taxpayers. 3. 1 see in Attachment C, on page 132 of the 153 page PDF staff report, that the FY2014 budget the Council is being asked to approve for expenditure of VNB's share of the Transient Occupancy Tax includes the same $6,500 of income for the annual dinner, now called a "Annual Marketing Outlook Dinner," but fails to show the budget page showing the $112,000( ?) of expense associated with the same event. I was roundly criticized for pointing out that expense item at the Council's July 10, 2012, meeting (Item 12). There could be a perfectly innocent explanation, but before approving the budget without seeing the full expense accounting, the Council might wish to enquire what the dinner consists of, and why it costs so much. 4. The meaning of the partial budget labeled "Newport Beach Company" that the Council is being asked to approve on page 133 would also seem to merit explanation. It appears similar to the TBID one, but might be something entirely different. Again, most of the expense portion is missing. Item 18. Approval of Master Fee Schedule (Cost of Services Portion) and Change in Subsidies 1. This item would appear to be partially mis- titled, since the public hearing on the new Master Fee Schedule was conducted at the October 22 meeting, and the Schedule was approved by Resolution 2013 -72. 1 can find no indication it is being reconsidered or modified on this agenda. 2. Conversely, the agenda does not clearly explain to the public the purpose of the two ordinances that are being considered at this meeting. Ordinance No. 2013 -18, which as introduced on October 22 was confined to limiting the fee City residents pay for the Junior Guards program, and which was supposed to be returning for second reading, has been substantially modified with no public direction by Council to eliminate the fee paid for appeal of City decisions by certain City- connected persons. Ordinance No. 2013 -19, which remains as introduced on October 22, deletes the statutorily set fixed charges of $10 for changes to business license information and for issuance of annual November 12, 2013 Council agenda item comments - Jim Mosher Page 6 of 7 preferential parking permits. The $10 will be changed to the estimated full cost recovery charges of $20 and $16 set forth in the Master Fee Schedule, but effective only if Ordinance 2013 -19 is adopted. 3. Regarding the first ordinance, it certainly seems confusing to be introducing something significantly different from the version previously announced by the Clerk, both on -line and in the paper, without calling attention to that change in the agenda — something the public cannot learn without reading the staff report. 4. It might be noted that Subsection 3.36.010.D of the Municipal Code suggests that changes to the Cost Recovery table will be made only after a review and recommendation by the Finance Committee. In the present case, the change connected with the Junior Guards did go through that route; the one about appeal fees did not. It might also be noted that the recommendation is to set the appeal fee for selected persons to $0 rather than 0 %. In that spirit, it would seem the Junior Guard recovery charge for residents should be set to fixed dollar amount, rather than a peculiar percentage that may have to be amended again to keep the dollar amount as desired. 5. Regarding the second ordinance, staff seems to be sweeping under the rug the fact that it has apparently been charging $16 for preferential parking permits for the last several years, based on an erroneous entry in the Master Fee Schedule. The former schedule, adopted by Resolution 2011 -24 on March 8, 2011 the correctly cites of Municipal Code Section 12.68.40 as the final item on the second page, but does not correctly cite the $10 fee specified there. Item 24. Aralia Street Parking Ordinance 1. This item underscores the wisdom of the implication in City Charter Section 412 that at the time an ordinance is introduced both Council and the public have access to a clear copy of what is being voted on, so that the Clerk can maintain a copy for review which is not altered between the vote to introduce it and its adoption at a second reading. 2. In the present case, the ordinance being presented for "second reading" is quite different from the only draft the public saw when the Council voted to introduce it on October 22. As noted in my comments on page 334 of the minutes (see Item 1, above) the City Attorney announced verbally that references to Aralia Street would somehow be separated from those to Amigos Way and Domingo Drive, and the operative section of Aralia was extended in response to public comment. The precise changes to the language that this would require were never disclosed, and the author of the present staff report seems unaware of some of them, for in the first paragraph on page 2 it says "Ordinance No. 2013 -20 establishes a new preferential parking zone forAralia Street from Aleppo Street to Atta Vista Drive" (emphasis added) when what claims to be the ordinance coming back for second reading (Attachment A) contains no such restriction. It also describes the limitation of permits to three per residence as being found in Municipal Code Section 12.44.150. It is, in fact, part of Section 12.68.040, being amended, for other reasons, as part of Item 18 on the present agenda. That other November 12, 2013 Council agenda item comments - Jim Mosher Page 7 of 7 reason, as noted in my comments on Item 18, is that the permit fee of $16 referred to in the staff report is supposed to be $10, until and unless Section 12.68.040 is amended. 3. The lack of scrutiny given the proposed ordinance is also evident from it failing to make clear the Council has made all the findings listed in Section 12.68.030, which seem to be required before initiating a preferential parking program. In particular, there seemed some doubt as to whether imposing a system in one area would simply push the undesired parking to another area. In fairness, it is unclear if all the criteria need to be met, or only one, but since the section is being amended, the Council might have considered taking the opportunity to insert clarifying language. 4. As to whether "the majority of the residents adjacent to the proposed zone desire, agree to or request preferential parking privileges" (Section 12.68.030.D), it seems a bit irregular that the ordinance was introduced before that determination had been made, and despite the assurance in the current staff report that "A survey of residents was conducted with 37 of 46 (80 %) in favor of the proposed parking restrictions," it might have been helpful to describe the exact question asked. 5. Regarding the permit fee and the City's cost recovery philosophy, the City Manager mentioned at the October 22 meeting that the City does not attempt to recover the enforcement costs, but that would seem to be an integral part of the program. If the maximum of three permits is issued to each of 46 eligible residences, and if the permit fee is raised from $10 to $16, that will still generate only $2,208 per year. Unless the $30,000 to be spent on enforcement is substantially offset by the fines collected, that is far short of the total annual program costs listed under "Funding Requirements' on page 1 of the staff report.