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HomeMy WebLinkAbout00 - Public CommentsReceived After Agenda Printed Agenda Item No. Public Comments 01 -28 -14 January 28, 2014, City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a-)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) Item 1. Minutes for the January 14, 2014, Meetings Notes: 1. The City Council held a Special Meeting on January 13, 2014. 1 am not aware of any written minutes for that meeting (which included public comment and the City Attorney's report on Closed Session activities and actions) having been submitted for the Council's approval, yet I would assume the approved minutes for that meeting belong in the City's minute book before the two meetings being considered here. 2. It is unclear to me how the City Clerk determines when to begin a new volume of the minutes. Some calendar years start with page 1 of a new volume, others do not. We are currently working on volume 61, which begins with the meeting of January 8, 2013. That choice was possibly related to the election cycle (new Council members having been certified at the previous meeting in December 2012), but changes in Council membership do not seem to explain the pattern, either. In any event, the page numbers below refer to the proposed continuation of Volume 61, without leaving room for the January 13 minutes. The passages in italics are from the staff report, with suggested changes shown in s#ikesat underline format. Page 398, sentence 2: "He addressed the number of boat slips and commented on what used to be the warehause Warehouse building noting that the intention is to have restaurants, not nightclubs, to enhance the experience of residents." [note: Mr. Parton was referring to the former Warehouse Restaurant at 3450 Via Oporto] Page 398, paragraph 3: "... there are a few other long -term leases that are part of the title but they are long -term are and very small spaces." Page 398, paragraph 5 from end: "Mr. Parton indicated that the idea was for potential du#y Duffy drop -offs in the area where there are currently small boats adding that the dinghy areas could be used as public dock areas." [note: although "dingy" may sometimes be recognized as a legitimate alternative to "dinghy," it is a common word by itself and "dingy areas" would normally be understood to refer to "dark and poorly lit areas."] Page 399, paragraph 3 under Item 3: "In response to Council Member Petros' inquiry regarding clarification of the sea wall height, Public Works Director Webb reported that the wall would need to be at least at the ten (10) s", foot topographic elevation contour all the way around to provide the required FEMA protection that would remove Balboa Island from the flood plain." [note: The draft minutes make it sound like Director Webb told the public they could expect Balboa Island, in the future, to be surrounded by a 10 foot high wall. Director Webb may be able to suggest better language, but I believe the point of his response was to assure the public that the sea wall would not have to be 10 feet tall.] January 28, 2014, Council agenda item comments - Jim Mosher Page 2 of 4 Page 400, paragraph 2: "Council Member Daigle addressed rising rates as motivation to not be listed in the flood plain and asked if there is lobbying by other coastal cities to not adopt FEMA regwlatlep regulations." Page 401, paragraph 7: "Public Works Director Webb reported that the first phase of the Marina Park project that was recently approved will involve dredging out the new marina adding that 5, 000 cubic yards have been permitted and slated for China Cove." Page 402, paragraph 1: "There was consensus from Council to have staff continue moving forward with this matter." Note: The preceding sentence suggests the Council made a decision on the City Manager's proposal to continue staff's efforts regarding flood insurance and the harbor's Base Flood Elevation level. According to Section 54952.6 of the Brown Act, a decision on a proposal, whether by formal vote or not, is an "action taken." The Council and staff should know that effective January 1, 2014, Subsection 54953(c)(2) was added clarifying that the "vote" of each member on each action taken must be publicly reported. This can be argued to mean that either at the meeting, or in the minutes, or both, the position of each member (for, against or abstaining) needs to be clearly recorded. The passage highlighted above does not provide that clarity because of ambiguity of the word "consensus." It might be argued that the new rule is not mandatory when a formal vote is not taken, but that can be countered by the argument that since the new rule supplements the existing prohibition against secret ballots it implies that a clear "vote" of some kind is required on every action. Furthermore, Article 1, Section 3(b) of the California Constitution compels the most liberal construction of new and existing laws in favor of the people's "right of access to information concerning the conduct of the people's business." The most liberal construction in this case is that the people have a right to know exactly which of their elected representatives agreed, disagreed or abstained when the City Manager asked for direction, not simply that the Mayor, City Manager or Clerk sensed a "consensus." Without knowing how each elected representative acted on each item for which a decision was sought from them, the people of Newport Beach cannot properly exercise their right to select and change representatives at the ballot. In the present case I would suspect all members concurred with directing staff to continue working on the matter, but that needs to be made clear both at the meeting and in the minutes (if the matter is reported), and if it was not the case, those disagreeing with the decision need to be clearly identified. The word "consensus" used in the draft minutes is unfortunately uncertain, and while it could mean the decision was unanimous, it could equally well impermissibly imply only that some unidentified majority agreed. If the decision was indeed unanimous, these and future minutes need to say something that makes that unambiguous, like "The Council unanimously directed staff to ..." January 28, 2014, Council agenda item comments - Jim Mosher Page 3 of 4 Page 409, paragraph 3: "Council Member Gardner reported that at the Coastal Bay/Water Quality Committee meeting in Desembe Wanda Stith Cross from Regional Water Quality Control Board spoke regarding natural source exclusion." [note: I believe Council Member Gardner did indeed say "December" and "Smith," but the meeting was on January 9, and the name listed on the agenda was "Cross," which I believe is correct. Also, the committee is now called "Water Quality/ Coastal Tidelands. "] Page 410, paragraph 6: the word "Ordinance" is capitalized everywhere except in this paragraph. Page 410, paragraph 2 from end: "Carver Eire+ Chiu, Crown Castle, addressed small -cell technology solutions..." Page 411, paragraph 1 after close of public hearing: "Responding to Council Member Gardner's inquiry on the classification for the photos shown in Mr. Ghu s Chiu's presentation, ..." Page 412, paragraph 3 under Item 15: "He indicated that it would be appropriate to consider rather than using the money for the arts, getting a head start on an affordable hotel room plan, noting that the Coastal Commission is adamant about it and it should be discussed and considered." Item 3. Wireless Telecommunications Facilities Ordinance At the January 14, 2014, hearing on his matter, Council Member Henn asked for assurance that there would be an appeal mechanism for any discretionary decisions made. As I pointed out to the Council, the Zoning Clearance mechanism, whereby an employee in the Planning Division makes a decision that an application is innocuous enough to be approved by them, affords a practical appeal mechanism only to the person submitting the application, since they are the only one who will be aware a decision is being made. As a result, members of the public who feel the classification of a proposal as a Zoning Clearance item was inappropriate will not be aware of the decision until construction starts, long after the 14 -day opportunity to appeal or overturn the approval has passed. Since I disapprove of use of the Zoning Clearance mechanism, without notice to the public, I am gratified that in the Land Use tables on handwritten pages 6 -8, "ZC" is never listed as an allowable approval mechanism even though Table 4 -1 on handwritten page 21 suggests it might be allowable in certain planning zones. I don't know the legal significance of the contradictory advice, but I'm glad to see the "ZC" option is not widely advertised. Item 6. Ocean Boulevard and Marguerite Avenue Concrete Pavement Reconstruction - Approval of Professional Services Agreement with Onward Engineering I think it is fair to say that much of the public, including me, has at best a vague understanding of how vendors are selected for these "Professional Services Agreements," and whether the public is getting the best value for its dollar. In the present case, although I believe the City has discontinued the in -house surveying function, I'm unclear why City staff would not be competent to perform most of the other engineering design functions. January 28, 2014, Council agenda item comments - Jim Mosher Page 4 of 4 Item 7. Approve Agreement for General Maintenance and Repair Services with John M. Rabun 1. Although John Rabun is identified as the "sole proprietor' of his business, and "Project Manager," it is unclear to me if he is proposing to provide the handyman services himself, or designate others to perform them. Condition 2.1.2 suggests the latter may be the case? 2. In Exhibits A and B, I am unable to understand the emphasis placed on defining and distinguishing between "normal working hours" and "after hours." If I am reading Exhibit B correctly, the rate is the same for both. Or is the "after hours" rate understood as an additional charge, meaning it is paid at double the normal rate? If so, Exhibit B does not say that. It is also not entirely clear how charges for materials will be made and approved. 3. If employed as a handyman for the City 40 hours per week over a period of 52 weeks, a rate of $47 per hour computes to the equivalent of $97,760. How does that compare to the salary of comparable employees working directly for the City? Item 10. Final Design of Mobilitie Telecommunications Permit for Faux Eucalyptus Tree Monopole Located at 2401 Irvine Avenue Since I am unable to put all my thoughts on this matter in writing before the deadline for submitting written comments, I plan to present some of those thoughts orally at the meeting. Item 11. Waiver of the Attorney /Client Privilege for Investigative Report in the Matter of Christine Hougan vs. City of Newport Beach From the staff report it appears taxpayers have paid for a report by an outside investigator regarding a personnel matter, and the City Attorney regards that report as privileged information accessible only to himself, the consultant and an unknown list of persons, which I assume includes City staff and the Council. It now appears the City Attorney is requesting City Council permission to provide a copy of the report (which I assume is favorable to Chief Johnson) to Ms. Hougan's attorney, but subject to a "protective order." I suspect this means the public will get to see the report only if the City Attorney or Ms. Hougan's attorney choose to enter it into the court record. It would seem to me this means all interested parties will be able to see the report other than the public who paid for it, and were ultimately the employers of both Chief Johnson and Ms. Hougan. I find that a strange result. I would be curious to know: 1. How much did the report cost taxpayers? 2. Who authorized the expenditure? 3. Who is being protected by the protective order? 4. Why is the report not simply made public?