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HomeMy WebLinkAbout00 - Written CommentsMarch 11, 2014 Received After Agenda Printed: Written Comments March 11, 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)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) STUDY SESSION Item 2. Balboa Village Theater - Lease Amendment, Contribution See comments on Regular Session Item 17. Item 3. Update on the Transition to Automated Residential Refuse Collection See also comments on Regular Session Item 14. With regard to the adoption of the new system, I think inadequate thought was given to the environmental impacts of adding separate pickup for recyclables. As has been noted in Costa Mesa, where CR &R recently added a separate organics pickup (but not a recyclables one), it was recognized that since two pickups by separate trucks are required, this will involve doubling the number of heavy truck miles driven on residential streets. Given the high rates of recyclables recovery already claimed by CR &R in the single stream system, it is unclear that the environmental impact of the additional trips is offset by the marginal increase in recycling results. The City might have asked the potential contractors to provide a means of picking up both streams in a single pass. (REGULAR MEE TNG Item II.B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS As usual, the two closed session items to considered under this heading might benefit from some additional disclosure to the public as to what objective is being sought. When sealed proposals for management of the City's oil and gas operations were received by the Council at its September 10, 2013, open session, "5810 West Coast Highway" was identified as the area adjacent to the Semeniuk Slough where the on -shore portion of the City's off -shore oil operation is located. I don't recall any subsequent public discussion that would shed light on why the City wants to buy or lease (or sell ?) land there. "APN 423- 102 -03 and APN 423 - 382 -05" are the former bank building on the northwest corner of Newport Boulevard and 32nd Street (3201 Newport Blvd) and the adjacent residentially zoned parking lot associated with it (3204 Marcus Ave). I assume this has something to do with the previously - announced roadway improvements, but don't know. March 11, 2014, Council agenda item comments - Jim Mosher Page 2 of 10 Item 1. Minutes for the February 11, 2014 Regular Meeting The page numbers below refer to Volume 61. The passages in italics are from the staff report, with suggested changes shown in °*•'� „nenut underline format. 1. Page 468, line 6 from end: "He reported that staff is underway toward implementing some of the recommendations and that, plans are being made to reconfigure some of the floats next year." [delete extraneous comma] 2. Page 470, paragraph 3 from end: "... Mayor Pro Tem Selich discussed medians in the City and commented positively on staff's efforts relative to ... 3. Page 475, paragraph 1: "... $1.6 million to a project in the Lower Bay Brf Canyon to construct a wetland to filter the runoff from Jamboree. She referenced other activities related to Lower B" Big Canyon as listed under Item 9, ..." 4. Page 478, last paragraph: "Jim Mosher reported that, when the matter was before the Coastal Commission, their staff indicated that beaches were closed from 10:00 p.m. to 6:00 a.m. and gwestiening questioned whether the City had applied for a Coastal Development Permit (CDP) for that regulation." 5. Page 479, last paragraph: "He added that the three these items have been studied individually, and that the Harbor Commission has spent hours studying this topic." [note: according to the video the Mayor said "these items." If he had used a number it would presumably have been "two" rather than "three" since he was referring to his (1) "Water Taxi" and (2) "Multiple Vessel Mooring System" proposals.] 6. Page 480, paragraph 1, last line: ".. ; however, the people to work it out is are the Harbor Commissioners." 7. Page 480, paragraph 2 from end: "He reported that the Coastal Commission weighed in on the matter and passed it on to the Gali€ernia Air Quality Management District (AQMD), ..." [note: Commissioner Englebrecht did say "California" but he probably meant it in front of "Coastal Commission." The correct prefix for the local AQMD is "South Coast. "] 8. Page 481, paragraph 3 from end: "Gary Mobely Moblev, Attorney for the applicant, ..." 9. Page 484, paragraph 1 under Item 14: "Council Member Daigle recused herself from the item since she owns property within 500- feet of the subjeet propeFty Marian Bergeson Aquatics Center." [note: without Council Member Daigle's explanation, as noted here from the video, it would be impossible for readers of the minutes to guess from the item title ( "Mid -Year Budget Amendments ") what "subject property" is being referred to. There is also an extraneous dash after the "500" that should be deleted. Finally, although the minutes accurately record the recusal, it is unclear why the item with the conflict could not have been discussed and voted on separately.] 10. Page 484, paragraph 3 from end: "He noted that the Item's recommendation includes the creation of a new Facilities Maintenance Division wkh within the Municipal Operations Department, ..." March 11, 2014, Council agenda item comments - Jim Mosher Page 3 of 10 Item 3. Adoption of Ordinance No. 2014 -5 Amending Newport Beach Municipal Code Chapter 10.32 Regarding Sound Amplification Permits Worthy as this effort may be, and although Council member Henn said at the last meeting that this modification to existing law was staff's response to complaints he had received from District 1 residents, I continue to be unable to find where, before appearing on the Consent Calendar, it is mentioned in the minutes, let alone where a majority of the Council directed staff to address this problem. 2. 1 continue to be mystified with why the Finance Director is charged with making decisions about the appropriateness of issuing sound permits. Item 5. Adopt Resolution Removing Existing Two -hour Parking Restrictions on West 16th Street from Babcock Street to Placentia Avenue I have not studied this item (or most of the others) in detail, but I find it curious that a single resident can approach City staff and get a matter researched and placed on the City Council agenda, whereas under the new Council Policy A -6, if he had approached a Council member, that Council member would have had to receive a majority vote from his or her colleagues to direct staff to devote the time necessary to investigate the item and prepare something for action. I also have trouble following the logic of the staff report that "expanded development' since 1971 has reduced the need for parking restrictions. Does this mean there is now an abundance of off - street parking that was not there 43 years ago? And placing this on the Consent Calendar seems particularly curious since the staff report says residents contacted were not in agreement as to what should be done. I also find it curious that neither the present resolution nor the one it replaces, purportedly "establishing a comprehensive set of parking regulations within the City," mention or incorporate the street sweeping days parking regulations adopted at the February 11, 2014, City Council meeting (Resolution 2014 -8). Finally this item emphasizes the importance of retaining documents, something that is increasingly easy in this electronic age, yet something staff seems increasingly reluctant to do. The missing staff report from 1971, or an audio recording of the City Council meeting might have shed light on the reason the parking restrictions were originally imposed. March 11, 2014, Council agenda item comments - Jim Mosher Page 4 of 10 Item 93. Newport Beach Golf Course Telecommunication Facility Permit (PA2093 -989) 1. The use of contract planners to process and make recommendations on discretionary permit applications seems problematic to me since the public does not know what outside pressures the contract employee might be under from their employer, including if the applicant has a business relationship with the employer's firm. 2. At the top of the third page of the printed report ( "handwritten" agenda packet page 192), it says the hearing is being held, and the decision for approval or denial is to be made, under the "old" Wireless Telecommunications Facilities Code (former NBMC Chapter 15.70, which is no longer readily available to the public, but which can still be found in Ordinance 2002 -24). It is not entirely clear if this was staff's decision, or a demand made by the applicant. 1 find it slightly surprising this was not used as test case for the new Wireless Code (NBMC Chapter 20.49), adopted January 28, 2014, since that would not only have unburdened the Council of the need to hear the matter (which was one of the objectives of the new code), but also allowed for more careful review by the Planning Commission, with an additional level of appeal if their review seemed inadequate. 3. Under the old Wireless Code, as indicated by Required Finding 3.1 in the proposed Resolution of Approval ( "handwritten" agenda packet page 196), the Council can approve this kind of exceptional structure only if the approval is necessary for the wireless network to function and "identified alternatives to the proposal are not feasible" and that it will not be detrimental to the neighborhood. 4. As to need, the only documentation offered seems to Attachment No. CC 6, which consists of what appear to be computer simulations of expected coverage with and without the proposed facility (given the name "Acacia "). It might be noted that: a. This is not actual "drive test" data. b. On these maps, red does not mean no coverage. It is simply a lower signal level than yellow or green. My niece lives well within the red zone, on Anniversary Lane, facing the proposed site from the south, and has no problem using her Verizon phone indoors. So the proposed site is not in a coverage hole, let alone near the center of one. c. The gray areas on the maps enjoy a lower signal level than red. Based on that, the map would suggest Verizon has coverage problems in most of Dover Shores, as well as in the Irvine Ave/Westcliff /17`h Street area, and at Orange Coast College that are more severe than in the area addressed by the proposal. The map illustrating "Acacia On" suggests it is remarkably ineffective at improving signal levels in the East Santa Heights residential area, much of which remains the same red as without it. It looks like Irvine Avenue may be the real target, and is not clear City policy should promote cell phone use in moving vehicles. March 11, 2014, Council agenda item comments - Jim Mosher Page 5 of 10 5. As to alternatives, neither the staff report nor Facts in Support of Finding 3.A.3 provide more than the sketchiest indication of what alternatives were considered, and why they were deemed "infeasible." a. In general, it would seem helpful for the City to take a more proactive role indentifying wireless problem areas and expected future needs of all carriers, so that planning could be done in a more coordinated and rational way. b. It is not clear if the use of the recently approved Mobilitie fake eucalyptus tree at a church property along Irvine Avenue Item 19 on March 26, 2013, and Item 10 on January 28, 2014) is one of the alternatives that was rejected as unfeasible. Had the Council been aware of the present need (to the extent there is one) and that the fake tree at that location would not help with it, they might have insisted more thought be given to locating the tree at a more central location, such as at the YMCA or at Mobilitie's own headquarters on University Drive. c. Since the proposed installation is not on Acacia Street, the "Acacia" name suggests the proposed site along Mesa Drive was not the original choice for the location. It might be helpful for the Council to know exactly what other sites were rejected, and why. d. Even at the golf course, a number of alternatives would seem to deserve consideration: I. Although the old Wireless Code requires staff to identify the owner of the real property on which the applicant's facility will be located, the report to Council does not make clear what their conclusion was. Assuming the proprietor of the golf operation will be reaping the revenue from this operation, a reasonable alternative would be to place the "fake pole' at the northwest corner of the netting (rather than the southwest, as proposed), adjacent to the clubhouse, where they would also enjoy the greatest impact, and where access by servicing vehicles would be easier (it is not clear how construction and maintenance equipment is supposed to get to the southwest corner, on the active golf course with no pullout or drive from Mesa). I. The southeast corner of the netting, adjacent to the Santa Ana Heights Fire Station ( SAHFS), has numerous advantages. The antennas would be at a substantially greater elevation due to the higher ground, and closer to the alleged problem area in Santa Ana Heights. Construction and maintenance access would be much easier, through the SAHFS yard. The ground support equipment could be placed in the adjacent corner of the SAHFS yard, where the existing screening wall would remove the need to build new screening walls along Mesa Drive. Alternatively, it could be undergrounded in the SAHFS yard. In either case City taxpayers would share in the revenue from the installation. March 11, 2014, Council agenda item comments - Jim Mosher Page 6 of 10 iii. A netting pole further north along the property line would put the monopole further out of sight of residents and motorists, and could also provide opportunities for access through the office parking lots, as well as a revenue opportunity if the support equipment were located (ideally underground) in those lots. 6. As to impacts on neighboring residences and businesses, if the noticing was confined to those within 300 feet, there may be none. Yet this seems an anomaly in both the old and new codes since the location of the proposed site in an open space gives residents along Irvine Avenue, Anniversary Lane, and Golden Circle, as well as businesses along Acacia Street a front row seat. It would seem unfortunate if staff and the Council did not solicit their input. 7. Furthermore, the proposal appears to require an inordinate amount of above - ground ground -based support equipment associated with the six transmitter panel antennas in the pole, which seems unnecessarily intrusive to motorists on Mesa Drive. a. Facts in Support of Finding 3.6.4 (page 197), suggests that the new 8 foot tall by 59 foot long wall necessary to hide the support equipment, added in a previously open golf course space, is visually unobtrusive. I find that difficult to accept, nor do I understand why so large an area (969 square feet) is required. b. The Council may recall that the Mobilitie fake eucalyptus tree at the church property along Irvine Avenue has four platforms with a capacity of 12 antennas each, for a total of 48 panel antennas (eight times as many as here). One can only guess, if the support equipment for the present 6 antennas requires so much room on the ground, where that for 48 would be found on the church property. c. In the present proposal, where the support equipment will stand in the open and cannot be hidden against an existing building wall, one can only guess what has happened to our commitment to undergrounding the ground -based portion of utility installations. By comparison, I believe there is a streetlight mounted installation of two panel antennas adjacent to the City -owned Superior /PCH parking lot, with the support equipment entirely beneath the sidewalk. Item 14. Ordinance 2014 -7, Amending Chapter 6.04 of the Newport Beach Municipal Code; Relating to Solid Waste Collection Note: the Newport Beach Municipal Code Chapter 6.04 Redline attachment uses an unconventional system of redlining in which new words added are not underlined, but instead shown in a bold blue font. This has the effect that in the black and white printed copies provided by the City Clerk, it is extremely difficult to spot the added words, which tend only to be slightly darker than the others. The "redline" also does not completely align with the "clean" version. For example in the first line under Section 6.04.020 in the "redline" contains the grammatically incorrect word "means," but the "clean" version does not, suggesting the "redline" is unreliable, or a different version. It also may not be evident that neither attachment is a complete reprinting of the full Chapter 6.04, but only of sections, or subsections, in which changes are proposed. The exact meaning of those sections may easily depend on the full context in which they exist, which I think should have been provided. March 11, 2014, Council agenda item comments - Jim Mosher Page 7 of 10 It is good to see staff recognizes that the proposed CR &R trash contract is inconsistent with the City's municipal code, but that the inconsistency is nothing new. Under the existing code residents in Newport Coast, where residential trash service is provided under an apparently separate contract with CR &R, and in the areas of the City served by the Costa Mesa Sanitary District (principally Santa Ana Heights), have long been guilty of punishable infractions for placing at the curb containers that do not meet the City's stated standards. However, this initial effort to "correct" the code has more problems than it is possible to detail here. As with most new ordinances that have not been thoroughly vetted through prior public meetings, and out of respect to the City Charter Section 412 principle that the text agreed to at first reading must be clearly enough disclosed to the public that only typographical errors can be altered between then and the second reading, I do not think this text is at all ready for first reading. A major defect is the continuing failure to clearly distinguish what provisions are intended to apply City -wide, and which are intended to apply only in instances where pickup is provided by the City (or now under contract on behalf of the City). Other problems are related to the effort to delete the historically useful distinction between "Garbage, Refuse and Cuttings" and replace it with a more modern sounding one - size- fits -all "Solid Waste." That inevitably leads to problems, that do not seem to have been addressed, with other sections of the municipal code that refer to these by name, or rely on definitions provided here that may now have been stricken. Equally or more importantly the proposed text appears to renege on some of the promises made to the public in approving the switch to out - sourced, automated residential trash collection. Some specific comments: In Section 6.04.010, the proposed definition of "solid waste" is so complex as to be largely unintelligible to the average resident expected to respect the code, and even the expert cannot be certain of its meaning without reference to external sources, including unspecified locations in the California Code of Regulations. Section 6.04.020 is "gut and replaced" to create a new definition of "recyclable materials," a term that does not appear to be used in any part of the code shown. As documented at roughly 2h:07m in the recording of the September 10, 2013, Council Meeting, the public heard Council member Henn ask Dean Ruffridge, Senior Vice President in charge of contracting for CR &R, if his understanding that in signing his low bid contract he would be promising to pick up all of each resident's trash every week "no matter what." The response was "yes." Council member Henn specifically asked, "If more trash is left out than what fits in the cans, you're going to pick it up anyway even if it's in a dark opaque bag, even if it's not in a bag, it's going to get picked up. Is that your understanding ?" The response again was "yes." I do not know what the final contract may say, but the proposed modification to Section 6.04.090 reneges on this public promise, by reducing the allowable means of placing waste at the curb for pickup to the three -sizes of CR &R- provided carts and non - returnable bags. March 11, 2014, Council agenda item comments - Jim Mosher Page 8 of 10 Likewise little thought seems to have been given to what I remember as a promised bulky item pickup, which seems to be prohibited by Section 6.04.090, which seems to say no pickup will be provided for solid waste that is not in the carts or bags. The proposed modification to Section 6.04.100 specifically eliminates the existing option of laying bundles of yard cuttings by the curb, in contradiction to the promise that the contract service would be a enhancement of the existing service, and not a cutback on anything provided by City workers. Item 15. Dolphin Deep Water Well Rehabilitation The staff report says this item was placed under current business, rather than on the Consent Calendar, because of the large dollar amount of the contract. I would be curious if this is a new policy, since I seem to recall large dollar items on the Consent Calendar in the past? I would also be curious to know how the water pumped for a well in Fountain Valley gets to taps in Newport Beach, if it does? Item 17. Balboa Village Theater -Lease Amendment, Contribution 1. It would be nice if this organization could settle, once and for all, on whether the correct spelling for either the organization or the building is "Theater" or "Theatre." 2. Under "ENVIRONMENTAL REVIEW," the staff report implies that "(a Coastal Development Permit and a building permit for a previous design) have been issued." It appears that Coastal Development Permits have twice been issued (once in 2007 and again in 2011 ), but if work was not started and renewals not applied for, they would both have expired two years after issuance. It might be noted that the proposals before the Coastal Commission at that time called for increasing the historic building height by some 20 feet, substantially exceeding the 35 foot Shoreline Height Limitation (Ord. 1408, Ord. 1454, NBMC 20.30.060.C.2.c) carried into the City's Certified Coastal Land Use Plan (Policy 4.4.2 -1). The claimed exemption as a landmark theater seems a bit fanciful to me, since this does not appear to have been historically a high -rise building. However, the main Coastal Act issue seemed to be parking, for which either the City or the Foundation provided and agreed to a Parking Monitoring and Enhancement Plan. 3. The proposed commitment for 50 years seems awfully long for something whose viability has not been demonstrated (and, indeed, history suggests is unlikely). 4. Balboa Performing Arts Theater Foundation (BPATF)'s proposal seems to anticipate the taxpayer's $2M investment being repaid at a rate of about $40k per year, which, if correct, would take the full 50 year term to complete. Hopefully any firm agreement would make clear if BPATF's obligation ceases after $2M has been repaid, and also if there is any kind of inflation correction. 5. Likewise, the existing contract, written without an expectation the City would be making additional financial contributions, gives BPATF an option to purchase the property by March 11, 2014, Council agenda item comments - Jim Mosher Page 9 of 10 giving the City back the $480,000 of CDBG funds used to purchase the property. Any firm agreement would hopefully revise this to make purchase contingent on repayment not just of the CDBG funds, but any additional taxpayer funds, as well. Item 98. Agreement with Visit Newport Beach & Company to Manage NBTV Programming and Operations As a non -cable subscriber, my opinion on this may not count for much, but as indicated in public comment at earlier City Council meetings, this strikes me as a bad idea. 1. What I assume is a typographical error in the agenda heading exemplifies the confusing surrounding this issue: to the best of my knowledge there is no "Visit Newport Beach & Company." Instead, according to the signage in their office, there is a "Visit Newport" and a "Newport Beach & Company," although the personnel, officers and facilities seem to overlap, making it very difficult to tell who one is contracting with, or many money provide to them is being spent. 2. The staff report appears to ask the City Council to allow the City Manager to enter into an agreement with "Newport Beach & Company," a new organization of uncertain structure and with few known assets or other sources of income, without reviewing the exact agreement that might be entered into. 3. It would likewise be good to see the agreement with have with the cable franchisees, to see if there is any promise as to how the money collected for this purpose will be used. By not revealing the agreements, the staff report adds more confusion than clarity to this, citing on page "312" (the 4h page of the printed staff report) PEG fees of $264,000 per year that "must be expended on equipment, maintenance," whereas an earlier paragraph says the City spends only $10,000 per year on maintenance (I seem to recall a large amount was spent on new equipment when moving to the new Council Chambers). 4. The staff report also refers to a consultant who apparently evaluated the current effectiveness of NBTV. It would seem good for the Council to know who that consultant was, and what he or she was charged with. 5. Since "Newport Beach & Company' has previous suggested the channel could be used to support programming of interest to itself and its client hotels (and for which it might receive compensation ?), the idea of paying someone to take control of a television channel, as opposed to having them pay for the privilege, seems a bit bizarre to me. 6. If outsourcing this function is desirable, I would have to assume there are many organizations with greater experience in broadcasting than Newport Beach & Company. Indeed, from the staff report, it appears Newport Beach & Company is proposing to act as nothing more than a middleman, contracting with Tom Johnson, who may, in turn, contract with still others to provide the actual service. It is unclear what advantage there would be to the City of having so many intermediate levels of control. March 11, 2014, Council agenda item comments - Jim Mosher Page 10 of 10 7. As to the proposed NBTV Guidelines, I have not read most, but glancing at the first page (numbered 315 in the City Clerk's printed handout), I suspect that in NBTV Objective 4 the word "supplant" is a typo for "supplement." Given the scanty viewership cited in the staff report relying solely on NBTV to disseminate public safety awareness information would seem imprudent. 8. Glancing at the last page (page 9 of the Guidelines, page 323 of the agenda handout), I have to doubt the statement that "NBTV currently carries live coverage of... designated Commission, Board and Committee meetings." I agree with Council woman Gardner's statement at an earlier Council meeting that it would be very good, and would seem very logical, for a government access channel to broadcast meetings of commissions and committees (many of which meet at hours inevitably inconvenient for much of the public to attend), but I do not recall any of them ever having been video recorded or televised in Newport Beach. In fact, I don't think the City even recorded the Council's January 25, 2014, Planning Session.