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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 27, 2015 Written Comments January 27, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (i immosher(o).vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 13, 2015 Study Session and Regular Meeting The page numbers below refer to Volume 62 of the City's minutes. The passages in italics are from the draft, with suggested changes shown in RtFike^••'^^ t underline format. Page 150, paragraph 1: "Jim Mosher referenced Attachment F in the staff report and suggested that the City implement these something similar going forward so that the public can see the legal advice that Council is receiving." Page 151, under "Amended motion," paragraph 4: "The amended motion carried by the following roll call vote:" 3. Page 152, Item 14, paragraph 1, last sentence: "He addressed details of recommended actions including the interim plan, existing fire rings, charcoal and wood -fueled FiRxf rings, 4. Page 153, paragraph 4: "Charles Fe.weh Farrell spoke regarding..." 5. Page 153, last paragraph: "ElizabethSehafe. Shafer reported that... 6. Page 155, motion on Item 14: There is a serious problem here: the motion shown in the draft minutes appears to have been crafted after the fact from the staff recommendation printed as Item 14 in the January 13 agenda. It is NOT the "Motion by Council Member Peotter, seconded by Council Member Muldoon." The motion by Council Member Peotter, as captured starting at 87:08 in the January 13 video, was: "I'd like to move that we implement the Interim Plan as the first item on the list, and I would move that we implement the 30 pit plan." Council Member Muldoon seconded the motion at 87:23. Although some other alternatives were discussed, no amendments were offered or accepted during the ensuing eight minutes of discussion. At 95:38 Mayor Selich says "We have a motion and a second on the floor," and invites additional comment from the Council, of which there was none. After saying he was "intrigued" with some of the alternatives, the Mayor says simply: "So with that /'/I ca// for the question. Please vote." The Clerk then announced the motion had carried. It seems highly improper for the minutes to now attribute to the Council the passage of a motion different from that captured in the recording. And if since the meeting a majority of the Council has agreed the motion meant something different from what the public heard, in reaching such agreement outside a noticed meeting they would have violated the Brown Act, specifically Government Code Subsection 54952.2(b)(1), making the action null and void. January 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Beyond that, it might be noted that the four part motion erroneously inserted into the draft minutes is internally inconsistent. The staff recommendations that were not incorporated into the actual motion included reviewing a possible "Permanent Plan" and, if satisfied with it, directing staff to incorporate it into the pending Coastal Development Permit application. By ineptly attempting to transform the staff recommendations into Council actions, the fabricated motion contains a putative part (c) which immediately authorizes staff to amend the Coastal Development Permit application with the very specific "Permanent Plan" listed in the imaginary motion, and a putative part (d) that does the same, but only "If the Council deems the Permanent Plan ready." Not only does nothing in the actual motion quoted above make any reference to any plan beyond the 30 pit plan, but clearly if the Council had actually authorized a Permanent Plan, they must already have decided if it was "ready" for action. The putative part (d) makes no sense. It might also be noted that the preceding confusion could have been avoided had the Council followed. Section A.1.b on page 2 of Council Policy A-10 ("Procedural Rules for the Conduct of City Council Meetings"), which imposes as a duty that "The Presiding Officer shall state (or announce) the motion prior to opening any subject to debate" and that "The Presiding Officer or such member of the City staff as he or she may designate shall verbally restate each question immediately prior to calling for the vote." Finally, City staff has been quoted in the press as arguing that even if it was not included in the formal motion, during the discussion staff received direction from a majority of the Council to modify the Coastal Development Permit application with the specifics described in the fabricated motion, and hence those additional provisions were included in the motion by implication. Not only is there nothing in the record to support the contention that a majority of the Council expressed an opinion on a particular "Permanent Plan," but it would be poor governance for staff to assume direction has been given without verifying that with a formal vote on the matter. Page 155, last paragraph: "..., City Manager Kiff reported that they can be spread out throughout the extent of the City's beaches and that is something that staff could look at." Item 3. Dinghy Rack Rental Rate Although this seems a routine and almost trivial item, it's slightly surprising to find it on the Consent Calendar, since by adopting Resolution 2015-6, "Team Newport" would seem to be affirming the old Council's rationale and methodology for setting tidelands rental rates — something I thought they pledged to question. As to the resolution itself: 1. The statement in the second Whereas that "the Beacon Bay Bill and Chapter 17.60 of the Newport Beach Municipal Code ("NBMC') allow the City to authorize third parties to construct/maintain residential piers upon tidelands" seems odd and irrelevant. What does third parties constructing residential piers on tidelands have to do with the present matter? Was this inadvertently copied from something else? January 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 2. The staff report says "Every five years, a market value appraisal will be conducted to ensure market consistency." I am unable to find any commitment to making this adjustment (or to the proposed lottery system) in the resolution. Will a new resolution be required if an inconsistency is discovered? 3. It is also not entirely clear how the resolution fits into the NBMC Chapter 17.60 it cites. The latter deals mostly with various classes of permits and leases. Is a new class of "dinghy rack rental permit" (or lease?) being created? Although only tangentially related to the agenda item, I would also like to be sure the new Council is aware that in a City that prides itself on coastal access, there is no signage I am aware of on Bayside or Harbor Island Drives alerting the visiting public to the existence of this City -operated public marina at which the racks are located. Item 4. Revision to Council Policy L-6, Permitting Artificial Turf in the Public Right -of -Way 1. Since the proposed revision has to do with private improvements that can be placed in Newport Beach parkways, it would seem to me staff should have presented it to the Parks, Beaches and Recreation Commission for their review and advice to the Council. City Charter Section 709(a) requires PB&R to "Act in an advisory capacity to the City Council in all matters pertaining to parks, beaches, recreation, parkways and street trees." 2. Regarding the proposed resolution, it would seem to me that Section 2 on page 4-3 should repeal all prior versions of the policy, not just those in conflict with the current one. Are there prior versions that remain in effect because they are not in conflict? 3. In the main revision, underlined paragraph 10 on page 4-8 (page 4 of the policy), shouldn't "... edge curling or any other type of material performance" read "... edge curling or any other type of material ffiLsDerformance"? 4. On the same page, isn't there something wrong with paragraphs 8 and 9? At least grammatically they don't seem to be examples of items requiring permits, but rather seem to be statements about encroachments. Were they intended to appear somewhere else? 5. More generally, I find the existing description of various categories of encroachments and required levels of agreements difficult to follow. How the statement about "Structural encroachments" in Section D.1 is to be read in conjunction with the preceding and possibly contradictory statements about them in C.6 and A.1 is particularly confusing to me. Item 7. 2013-2014 Streetlight Improvement Project - Notice of Completion and Acceptance of Contract Of the three notices of completion being presented to the Council, this is the only one with which I'm personally familiar, since it involved replacement of light fixtures at the front and rear of my property. The description of it as a project originally planned to take 75 working days but ending up taking nearly six months seems accurate. From my observation, spurts of activity were punctuated by long intervals of minimal or no activity at all. January 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 Item 8. Back Bay View Park Maintenance - Award of Contract No. 5892 As indicated in the staff report, the bidding on this project seems a bit irregular as the "additive items" are almost as large as the original project, and if they were bid as a single unit it looks like a different contractor might have won. The staff report does not make clear why the large additional items were not part of the base bid. Item 10. Little Corona Runoff Infiltration Project - Approval of a Professional Services Agreement with RBF Consulting The staff report is less than clear about the change in funding. Is it trying to say Little Corona beach is not tidelands at all? Or not City tidelands? If the latter, whose tidelands is it? Item 11. Temporary Employment Agreement - Planner It's good to see Community Development staff recognizes Policy F-20 ("Contracts with Former City Employees") requires Council review of contracts either directly or indirectly involving persons who have been City employees within the last five years. At least in my view, the City Attorney's Office, which should be most cognizant of the policy, has been playing fast and loose with it, paying without the required public review a former Deputy City Attorney providing legal services to the City through a private firm and, claiming the contract under which the former employee is being paid existed before the person left the City's employment. In cases like the present one, involving (I believe) a City retiree, although undoubtedly cost effective for the City as the staff report explains, and apparently fully within the former employee's CaIPERS rights, it always seems a bit strange and uncomfortable to have a person being paid simultaneously as a retiree and an employee. Item 14. Confirm Appointments to the Finance Committee The objective of adding citizen members to the Council's Finance Committee seems a laudable one, but I am disappointed to see those appointments appearing on this agenda without any formal public advertisement of the openings. Not only do I believe this is a violation of state law and Council policy, but I believe it is bad for the City. My recollection of the January 13, 2015, meeting, confirmed by the draft minutes (top of page 148, and more ambiguously in the middle of page 151) is that the nominations of Council Members Curry, Dixon and Petros to fill the three existing council seats on the Finance Committee had been continued to the present meeting. I was not aware the motion on page 151 included an intent on Council's part to appoint citizen members to the Committee at this meeting, and indeed I personally directed a person I knew to be interested in such a position to monitor the City Clerk's vacancies page for an announcement of when, where and to whom to submit applications. To the best of my knowledge, no announcement was ever posted. January 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 The state law in question, sometimes referred to as the "Maddy Act," is the one referenced at the top of the City Clerk's Roster of Boards, Commissions and Committees: namely, Government Code Section 54970 et seq. That law, echoed in the Council's own Policy A-2 ("Board, Commission, and Committee Appointments"), requires the regularly scheduled opportunities to serve a local agency in an appointive capacity to be published at least once a year in a "Local Appointments List," and for unscheduled opportunities a special procedure, which all cities including charter cities are required to follow, is prescribed in the final paragraph, Section 54974. That section requires a "special vacancy notice" to be posted in the Clerk's office and the library for at least 10 working days before the local agency can make its final appointment to fill an unscheduled vacancy. Policy A-2 imposes additional, more stringent requirements that arguably require an additional 5 days notice so the Clerk and Council have time to vet the applications prior to nomination. Appointments without the required public notice can be made, but only in the event of an emergency and they are understood to be effective only until the openings have been properly noticed and filled. The present non-public and un -advertised nomination procedure, ignoring the possibility of the existence in Newport Beach of other equally or better qualified candidates eager to serve, is a poster child for why the state law was needed, as eloquently explained in its 1976 preamble: Section 54970: (a) The Legislature finds and declares that a vast and largely untapped reservoir of talent exists among the citizenry of the State of California, and that rich and varied segments of this great human resource are, all too frequently, not aware of the many opportunities which exist to participate in and serve on local regulatory and advisory boards, commissions, and committees. (b) The Legislature further finds and declares that the general public of this state has traditionally been denied access to information regarding vacancies which occur on such boards, commissions, and committees, thereby denying most citizens and interest groups the opportunity to nominate for consideration by the respective appointive powers persons whose particular strengths, backgrounds, experience, perspective, and talents might contribute significantly to efficient and representative policy development and administration in local government. (c) The Legislature further finds and declares that the respective local appointive powers have been denied access to a talent resource hitherto untapped. (d) The Legislature further finds and declares that all citizens of the state, regardless of their place of residence should have equal access to specific and current information about the many local regulating and advisory boards, commissions, and committees and equal opportunity to be informed of vacancies which shall occur thereon, so that they may pursue the opportunity to participate in and contribute to the operations of local government by serving on such boards, commissions, and committees. (e) It is therefore the intent of the Legislature that this chapter shall apply to all cities and all counties throughout California, including charter cities and charter counties. January 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 As an illustration of the problems perceived by the State Legislature in 1976, the present process is so opaque that is difficult even to comment on. I understand the City Clerk has a total of five applications for the four citizen openings: the four included as Attachment A in the staff report plus an application from Allan Beek, stamped January 12, 2015, and apparently submitted in anticipation of the possibility the Council might change the composition of the Finance Committee at its January 13 meeting. Aside from Mr. Beek's application, and in the absence of subsequent public advertisement, it is impossible to tell how the other four persons learned of the opportunity to submit applications, or whether they were submitted before or after the nominees had been selected. It is also impossible to tell if the appointing Council members were aware of the Beek application, drew from the entire "pool" or simply asked their personal nominee to apply. And I would note that the last of the four appointee -applicants does not even appear to have been confirmed as a registered voter — something the Council had set as a prerequisite for appointment. However the process may have unfolded, it clearly did not adequately explore the full reservoir of financial talent available for appointment, and hence has been inconsistent not only with the letter but also with the intent of both the Maddy Act and Council Policy A-2. Although Newport Beach has in the past made appointments to newly created positions without the required public notice (see, for example, Items 3 and 4 on the Council's July 9, 2013, Consent Calendar and the public comments thereon), and while there may imagined loopholes in the Maddy Act or Policy A-2 that could be argued to make the requirements inapplicable to a particular situation, the intent was clearly that as a matter of good governance the noticing requirements should apply to all citizen appointments, not just to vacancies in existing positions. Examples of agencies acknowledging the requirements apply to newly created positions can be found on the internet from Mariposa, Oakland, Palm Springs and San Luis Obispo. The present matter is particularly disturbing because my understanding during the run-up to the November 2014 election was that "Team Newport" was concerned about shadowy changes that had occurred in the membership of the prior Council's Ad Hoc Committee on Updating Harbor Charges. Now Team Newport may itself be presiding over a more public, but equally shadowy, appointment process to select those advising on one of its key concerns, the City's finances. Finally, at the Council's January 13 meeting, I expressed concerns about individual Council members controlling the appointment process for individual seats when the City Charter does not give any powers to Council members acting individually and does not envisage hybrid Council -citizens advisory panels. Nonetheless, there was discussion about the citizen appointees to this hybrid committee serving "at the pleasure' of individual Council members. I would note there is nothing in the language of Resolution 2015-5 as adopted giving anyone the authority to "recall" Finance Committee appointees prior to the next round of annual appointments, although it is vague as to exactly when those annual appointments end. This again emphasizes the wisdom of appointing advisory panels in accordance with the City Charter, which in Section 702 articulates a clear mechanism for recall of appointees. January 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 Whatever the outcome of the present agenda item, one assumes the opportunity to apply for the four citizen positions on the Finance Committee will be made known prior to the next annual appointments, but it remains unclear if individual Council members will be able to ask the Council to change "their" selection in mid -stream, and if so, how the fact that an unscheduled change is about to be made will be made known to all who might be qualified to serve. The present item does not bode well for it being handled in a way that will serve the best interests of the City. Item 15. Request to Initiate a Zoning Code Amendment to Allow Increased Residential Building Height in West Newport Mesa Before setting staff loose on this, it would seem good if more discussion were had as to whether this is a direction in which the City wants to go. In that connection, the Council may be unaware that in the wake of Measure Y there are some members of the public who think the City's building height restrictions should be tightened, rather than loosened. The objective of the present proposal seems to be to have Newport Beach jump on the bandwagon to copy the mid -rise live -work developments in westside Costa Mesa. Although praised by some, those developments have also been criticized by many, and the extent to which they will prove successful, practical, aesthetically pleasing and in character with the community seems yet to be determined. There also seems to an unspoken connection between this item and Item 20 on the present agenda, the removal of tenants from the Ebb Tide Mobile Home Park. It would seem the Ebb Tide property is in the area and has the zoning that would make it eligible for these new entitlements, as is the "Road & Track" building recently sold by the City to Kobe, Inc. If this area of the City is being singled out for height amendments to facilitate those property owners' or some other property owners' future plans, I think that should be more forthrightly stated. What typically happens with proposals of this sort is they wind up before the Planning Commission without that body having any clear sense of what the Council is trying to achieve, or the extent to which a particular path has support on the Council. Rather than blindly launching a process and hoping for a result, I think a fuller discussion of how the individual Council members, and the public, view the matter is in order. As it stands, even the amount of height extension being requested is not clear. Item 16. Request to Install Private Improvements within the Public Right -of -Way at 3225 Ocean Boulevard Sheets 2 and 3 of Attachment B as provided in the printed version of this agenda item, showing as they do only the central portions of larger pages, are quite inscrutable and might give the impression the applicant is proposing to replace the entire area between the public sidewalk and their home with concrete and walls. Only when examined online does it appear they are intended to show only the profile of the proposed steps.