HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
February 10, 2015
Written Comments
February 10, 2015, Council Consent Calendar Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( iimmosher(o)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229)
Item 1. Minutes for the January 27, 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 minutes, with suggested changes shown in stfikeeut underline format.
Page 157, Item SS3: paragraphs 3 and 4 seem out of sequence as they have City Manager
Kiff responding to Council member Duffield's question after it says Mr. Duffield left the
Chambers. The video shows the response came during the recusal, but before he left. For
future reference, all Council members should be reminded that when a financial conflict
necessitates a recusal, the Political Reform Act, specifically California Government Code
Subsection 87105(a)(1) requires the nature of the conflict to be identified "in detail sufficient to
be understood by the public." In the present case, the video shows no explanation of the
conflict was given. Later in the minutes (Items VIII, 3 and 19), a "business conflict" is cited. I
would submit that is also insufficient detail for a member of the public to understand what the
conflict is without recourse to some external knowledge about the member's business affairs.
Page 159, paragraph 5 from end: "Council Member Muldoon noted that the wait list is not
required, by Code, and voiced his support of a more - reasonable market rate, and for the
mooring holders and their desire for the Avalon plan."
Page 160, paragraph 2 from end: "Brian Ouzounian noted the expenses of owning a dock and
questioned the implied threat that the State will take away the
City's rights."
Page 161, paragraph 3: "City Manager Kiff noted that staff would return with a proposed
ordinance to change to charge a phased -in rate of $0.50 1square foot, ..."
Page 169, paragraph 1: the origin of the indented text under the Item 17 heading (beginning
"Waive City Council Policy L -2, Driveway Approaches,...") needs clarification. It seems similar
to the recommended actions excerpted from the agenda in the Consent Calendar section, but in
this case staff s recommendation to "Deny the request to construct a new driveway along the
Third Avenue public right -of -way ..." was quite different from what is printed in the draft minutes.
Since it did not appear in the agenda or written staff report, it would seem to me the new
language that appears in the heading in the minutes should either be attributed to someone or
deleted.
Page 170, last paragraph of Item XVIII (regarding Local Coastal Program Implementation
Plan): "Other public outreach meetings will be held on February 18th in the Community Room
and on February 25th and March 4th in the old Council Chambers." The draft minutes correctly
reflect the statement that appears in the video, however a clarification might be offered as a
footnote: both the City's online announcement and the mailing to property owners indicate the
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 10
locations were inadvertently reversed in the oral announcement. At least according to the
printed notices, it is the February 18`h meeting that is planned for the old Council Chambers,
with the following two in the Community Room.
Page 171, paragraph 3, line 4: "... updates will be presented during Harbor Committee
Commission meetings..."
Page 171, paragraphs 4 -6: The references to "Objective No. 4," "Objective No. 1d' and
"Objective No. 9" would be much more meaningful if the minutes gave some hint as to what
those objectives are.
Page 172, paragraph 2 from end: "Jeff Wolfe stated that the matter is more than relocation but
rather his life being torn apart."
Page 173, paragraph 7, sentence 2: "Staff is comfortable that the RIR complies with the
State's mandate relative to the applicant providing the reasonable costs of relocation ..."
Page 173, paragraph 10: "In response to Council Member Curry's question, City Attorney Harp
reported that the applicant residents will have six months from the date of approval of
entitlements."
Item 3. Massage Establishment Regulations
Since the City's Municipal Code strongly impacts its residents, I have long thought the City
should have a citizens Code Review Commission, including at least some non - lawyers among
its members, to provide recommendations to the Council based on a thorough public review of
proposed changes to the code, including such issues as whether the proposal is consistent with
our many other rules and regulations and whether its intent is clearly understandable to the lay
person against whom the new rules are likely to be enforced.
In view of that it is troubling to see ordinances introduced on the Consent Calendar, where they
will likely be enacted without any public discussion. And especially troubling to see language
apparently proposed by the Police Department, with no clear analysis or opinion from the City
Attorney, in an area as tricky as this: the existing NBMC Chapter 5.50 seems be acknowledged
to have been rendered largely obsolete and unenforceable by a series of short term, self -
repealing enactments by the State legislature — the latest apparently being AB 1147 (2013-
2014), whose "Massage Therapy Act" (California Business and Professions Code, Division 2,
Chapter 10.5 (Sections 4600- 4621)) is set to self - repeal on January 1, 2017.
The threshold question of whether comment has been solicited from the massage operators
who will be impacted by these changes seems to be answered by the Police Department's
request for a continuance to February 24.
But I still have many problems with this, including Attachment B, which purports to be a "Redline
Comparison of Proposed ordinance to Current NBMC Chapter 5.50." Instead, it appears to
simply be a printout of what Chapter 5.50 will look like after the ordinance is adopted, with no
indication of how it differs from the present chapter.
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 10
More importantly, a key feature of AB 1147 is its interaction with Government Code Sections
51030 - 51034, which according to the Assembly's August 29, 2014, bill analysis (last full
paragraph on page 13 of the 15 page PDF) was intended to be revised so as to offer new
protections to CAMTC certificated massage professionals such that:
"Local governments will not be permitted to impose a requirement that certified
massage professionals be required to take any test, medical examination, or background
check, or otherwise comply with any additional educational requirements beyond what is
already required. Nor may a city or county impose a requirement that certified massage
professionals obtain any other license, permit, certificate or authorization to provide
massage for compensation, excluding those normally required to operate a business.
This bill also prohibits the imposition of a dress code requirement in excess of what is
already considered unprofessional conduct by CAMTC, and protects certified massage
professionals from interference in their performance of legitimate massage techniques
approved by CAMTC."
Although the preamble to the City's associated resolution (Attachment C) suggests the intent of
the revisions to the NBMC is to comply with the state mandate by eliminating the need for a
separate "technician" or "off- premises" permit, the definition of "massage establishment" and
"operator" offered in the proposed ordinance seems broad enough to include individual people
operating away from their place of residence, which according to the legislative analyst is a
common mode of operation (page 12: "many of the professionals involved in massage therapy
are sole practitioners who work from their home, travel to a client's home or contract to work at
spas in various cities and counties "). The legislative analyst also notes that "Massage
professionals work in a variety of settings, including private offices, spas, hospitals, fitness
centers and shopping malls." The mere removal of the sections about technician and off -
premises permits does not make it clear which of those situations the surviving regulations are
intended to apply to. Yet AB 1147 would seem to make it impermissible to further regulate some
of them.
Some specific comments about Attachment A ( "Revised Massage Establishments Ordinance "):
"SECTION 1: Chapter 5.50 of the Newport Beach Municipal Code is hereby amended
.nd ren• imlbeFed as folIG s replaced with the following:" [reason: Section 5 says
only that which is expressly modified is changed. The "amend and renumber" language
leaves it uncertain as to whether any parts not expressly changed are intended to
survive.]
2. 5.50.005.A, line 4 from end: "... by the Legislature in 2008 and,, 2011 and 2014 as ...
3. 5.50.010, paragraph 1: "Unless the context of the particular provision at the Gant
otherwise requires, ..."
4. Top of page 4 (definition of " "Massage establishment "): what do "baths" have to do with
massage? The only other mention of baths is in the title of the subsection regulating
toilet facilities. Again, the intent of this definition is unclear. I am guessing it is meant to
apply to an "establishment" existing at a fixed address and offering services only at that
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 10
address, but it does not say so. Nor is it clear if it is intended to apply to massage being
provided as something incidental to some other primary use at a location.
5. 5.50.020.A.1, line 5 from end: "If one or more of the partners is a corporation, the
provisions of this subsection pertaining to corporations shall apply to that corporation."
6. 5.50.020.8.7:
"a. All eenv4odens Convictions for any crime ...,,
"e. A14injUnG60nS Injunctions for nuisances under..."
"g. Genspirasy Conviction for conspiracy or attempt to commit..."[?]
7. By using the word "may' for both issuance and denial, Section 5.50.025 ( "Operator's
Permit Issuance and Denial ") provides neither the applicant nor the public any certainty
with how the Police Chief may act upon a given set of facts. I would think 5.50.025.A
should be rewritten to specify criteria under which, if all met, the Chief shall issue a
permit; while 5.50.025.13 should list a set of criteria under which, notwithstanding
5.50.025.A, if any are violated the permit shall be denied. One of those could be
discretionary. That would give the applicant and public certainty in most cases while
leaving a gray area in the middle. As written, 5.50.025.A seems to be a set of criteria
which if violated prohibit the issuance of a permit, but if met do not assure it.
8. 5.50.025.A.5: "b. Has not had a conviction in a court of competent jurisdiction within
eight (8) years preceding the application for any of the crimes identified in section
5.50.02-5020(8)(7);"
9. 5.50.025.A.5.c: As written this seems grossly overbroad. Why should having any kind
of permit relating to any matter from any jurisdiction denied or revoked in the last eight
years prevent the Chief from issuing a massage permit? Was this intended to be
restricted to actions involving massage establishment permits?
10. 5.50.025.B.7 also seems grossly overbroad, apparently prohibiting the issuance of a
permit to someone who entirely innocently once worked for someone who had a
problem, possibly unknown to them.
11.5.50.030.A.4: "No colored lights shall be used nor shall any coverings be used which
change the color or intensity of the primary light source."
12. 5.50.030.8: since the ordinance allows only certified professionals to work in Newport
Beach, much of this subsection appears to be impermissibly imposing restrictions on
individuals in addition to or redundant with those already specified in the Massage
Therapy Act to which they are already bound to conform.
13. 5.50.030.B.5 ( "Alcoholic Beverages /Drugs'): Is this intended to mean the operators are
supposed to turn away customers taking a "controlled substance" by prescription?
14.5.50.030.B.8: "No common shared use of such coverings shall be permitted..."
15. 5.50.035.A, middle of paragraph: "... including, but not limited to, changes of manager or
other person principally in charge, stockholders holding more than five percent of the
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 10
stock of the corporation, officers, directors and partners in any and all changes of
name, style or designation under which the business is to be conducted, ..."
16. 5.50.035.B: The last sentence seems overly broad, terminating a permit on any change
of ownership of any stock in a corporation. Since only those owning 5% or more are
investigated, shouldn't it be limited to a change of 5% or more?
17. 5.50.040.A.2, last line: "... this exception shall not apply to Adly full body work or full
body massage."
18. 5.50.045 ( "Inspection by City Officials and Notices of Violation "). Inspection by Orange
County Health officials seems even more important from the standpoint of public health
and safety. Do they need to be included here, or are the provided for elsewhere?
19. 5.50.055.A: subsections 1 and 5 appear to be the same. Again, the use of the word
"may" gives the public little certainty of when a permit will be revoked.
20. 5.50.055.B: "if a suspended permit lapses during the suspension period, a new
application must he made at cannot be made until the end of the suspension period."
Fl
21. 5.50.055.E.1: "The right to appeal to the City Manager shall terminate upon the
expiration of fifteen (15) days from the date of mailing or service of the notice." Also,
does the appeal have to be submitted in any particular form? And should there be a
timetable for setting the hearing?
22. 5.50.065.A: "Violations of this chapter may be enforced pursuant to the provisions of
chapter Chapter 1.04 of the Newport Beach Municipal Code."
Regarding the proposed resolution (Attachment C):
1. The code sections cited next to the permit issuance fees listed in the relevant section of
the current Master Fee Schedule (pages 17 -18 of the 31 page PDF) seem rather hit or
miss.
2. The "Holistic Health Operator" fee, which the resolution proposes to delete, is listed as
being a "Massage License" fee related to NMBC Section 5.50.070. But the "Holistic
Health Operator" and "Holistic Health Practitioner" (also proposed to be deleted) permit
fees actually seem to be part of a completely different part of the NMBC, Chapter 5.64.
That chapter's stated reason for existence is also to regulate massage practices.
However, although Chapter 5.64 references passages in Chapter 5.50, neither the
existing nor the proposed Chapter 5.50 refers back to Chapter 5.64 or holistic
practitioners.
3. It is quite unclear to me if it is the City's intent to continue to allow holistic health
practitioners to offer massage without CAMTC certification, and even if they have
certification whether the business address at which they offer massage is intended to
become a "massage establishment" subject to the new Chapter 5.50. As it is, they
appear to operate under a different set of rules.
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 10
Item 5. Marina Park Project - Marina Basin Construction Including
Dredging, Bulkheads, Grading and Soil Remediation (Bid Package 2) -
Notice of Completion
It is good to hear this major project is proceeding on time and under budget.
Although the Clerk's roster of appointments no longer includes a Council "Building Ad Hoc
Committee" (last appointed January 14, 2014), 1 would be curious to know if any of the present
changes were reviewed by Council members prior to making them. The May 13, 2014,
discussion of the awarding of Package 3 mentioned a Council "working group' overseeing
Marina Park. If it exists, I would be curious to know who is on it, and what authority it has.
Item 6. Back Bay Drive Roadway Maintenance Project - Award of
Contract
The staff report implies that with this project, the entire Bike Safety Fund collected in the
wake of two tragic deaths will have been spent. A city webpage, last updated last
August, indicates the fund initially held $308,739.60. In the interest of transparency, it
would seem helpful to give there, or elsewhere, a more precise reconciliation of where
the money went.
2. Since these improvements were recommended in the Bicycle Master Plan by the Bicycle
Master Plan Oversight Committee, and since that committee no longer exists, it would
have seemed useful, prior to the award of the contract, for the Parks, Beaches and
Recreation Commission to have publicly reviewed the plans to make sure they are
indeed consistent with what was promised and expected, especially with regard to a safe
and continuous pedestrian trail.
3. 1 am curious how the $2 part of the $18,002.00 contingency was arrived at? It is neither
10% ($18,210) nor the amount needed to make the total funding a round number
($18,001.80).
4. It is admittedly a very minor point, but the "Discussion" mentions signage, and if new
signs are to be made it might be noted that "Shell Maker Road' (in the staff report)
seems to be "Shellmaker Road" in the City's mapping system.
Item 7. Lease of Playground Area on Tidelands and Filled Lands for
Joint Use with Newport Elementary School
1. This item begs the question of whether the expiration of the 1960 lease was noticed five
years ago, and if not, whether the City (and School District) needs a better system of
keeping track of its many agreements.
2. The Council should be mindful of the fact that when the City Charter was adopted in
1954, residents were very protective of the City's waterfront properties and required
voter approval to enter into any new leases, as evidenced by the requirement for a vote
in Clause 9 of the 1960 lease. This implies the 1960 lease was new, and begs the
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 7 of 10
additional question of how Newport Elementary operated prior to 1960. Was the school
allowed to place playground on the City beach without a written agreement? Or was the
playground elsewhere?
3. Although the Charter requirement for voter approval of leases of City -owned waterfront
property has since been removed, entering into such agreements, especially committing
the City for 50 years, is still something that should be done with care. Hopefully the one
year termination without cause provision in Clause 1.3 provides adequate relief if this
has not been carefully enough thought through.
4. Because the property description in the proposed lease looks quite different from that in
the 1960 lease, I think that in the interest of transparency it should be made clear if the
current development fits within the bounds agreed to in 1960, or if an expansion is being
quietly approved.
a. Both the lease and Resolution 5152 (which allowed the Mayor to enter into it),
projected the school property's width (excluding any part of 13`h and 14`h Streets)
for 400 feet towards the ocean, but explicitly excluded from the leased property
the Ocean Front right -of -way and Block 13 A, providing only a "license and right
of trespass" for playground purposes over Block 13 A.
b. I am not sure what the significance of this terminology is (possibly only tidelands
not officially owned by the City were being "leased " ?), but it appears to me the
current development extends over a larger area than was agreed to in 1960 (for
example, the paved extension 13`h Street). Also, although Clause 4.1.1 of the
proposed new agreement continues to give a "license and right of trespass' for
playground purposes over Block 13 A, the entire area, with no exceptions, is
being "leased" by clause 1.1. I'm not sure why the terminology of the agreement
is being changed.
c. The maps provided as Attachment CC 3 are not particularly helpful since there is
no explanation of what the lines on them signify and they seem different from the
lines in Exhibit B to the proposed lease.
d. The legal description in Exhibit A to the proposed lease is also confusing since
the words say the leased property lies "south of the West Ocean Front public
sidewalk" but the diagram in Exhibit B shows what appears to be a northerly
boundary including the sidewalk. Will the new lease give NMUSD the right to
erect playground equipment on or over the sidewalk?
5. In the proposed lease (Attachment CC 1), 1 suspect Recital A was intended to read
something like: "City is the trustee of the tidelands and filled lands in the corporate limits
of the City lying southerly of Ocean Front between the southerly extension of 13"' Street
and the southerly extension of 14th Street, hereinafter more particularly described, by
virtue of a grant from the State of California set out in Chapter 74 of Statutes of 1978, as
amended ( "Property'), which the Property is more particularly described in Exhibit A"
and depicted in Exhibit 'B" both of which are attached hereto and incorporated by
reference; and"
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 8 of 10
6. Although I appreciate the unique experience this arrangement provides the students
attending Newport Elementary, and might be able to think of other justifications (such as
providing play equipment for all at NMUSD expense), I find the explanation in Clause 3.1
that setting the tidelands rent at less than fair market value promotes "marine related
services and activities' a little thin.
a. Since schoolyards can be located almost anywhere, many might see the use of
the City's scarce tidelands for a playground as reducing the area available for
more uniquely marine - related uses (such as beachgoing and the dory fleet) that
could not exist anywhere else.
b. And this must be considered against the City's apparent rejection of the
traditional argument that private piers over public tidelands should not be
assessed rent because of the security they theoretically offer to distressed
boaters or swimmers.
7. In view of the controversy over parent- backed improvements at Corona del Mar High
School, the description of anticipated parent- backed improvements at the end of the
"Background" section of the "Discussion" is a bit worrisome. Shouldn't the City Council
retain approval authority over any major improvements outside of the normal School
District provided playground equipment?
8. Finally, the aerial photo in Exhibit B to the proposed lease is not clear as to the
topography, but shows beachgoers using the sand area between the blacktop and the
water. Could sea level rise over the next 50 years cause there to be "lateral" access
issue regarding beachgoers having difficulty getting from one side to the other of the
wave zone during school hours without having to cross the blacktop?
Item 9. Request to Initiate a Zoning Code Amendment Regarding
Appeal Procedures
Without stating it, this matter amending the City's planning appeals procedures is clearly a
response to the January 29, 2015, California Court of Appeals ruling against the City in the
Woody's Wharf litigation (G050155), which will apparently be the subject of Closed Session
discussion with the City Attorney on the present agenda (second item under IV.B).
The suggested solution may indicate a combination of limited institutional memory and a poor
understanding of the problems highlighted by the Appeals Court.
First, the staff report indicates a need to revise the Municipal Code "to state that City Council
Members and Planning Commissioners acting in their respective roles be exempt from paying
the appeal filing fee." Is staff forgetting this exemption was already codified a little over a year
ago, when the lack of such an exemption was once again pointed out during the Woody's Wharf
appeal to the Council? Ordinance 2013 -18 amended the cost recovery table in NBMC Section
3.36.030 to indicate that the fee for "City Council, Board, Commission, Committee or Any
Individual Member Thereof when Acting within the Scope of Their Official Duties -- Appeal or
Review from a Lower Body or Official' is $0 (end of Exhibit A).
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 9 of 10
If the Council wishes to spend the public's time and money amending the code it would seem
wiser to codify the other special interest discounts the City offers. These includes special rates
given to various groups for such things as renting meeting rooms and sports fields in a way that
is difficult to justify based on anything in the current cost recovery table.
Second, the suggestion that the eligibility to file appeals under Chapter 20.64 (Appeals) of the
Zoning Code "be expanded to include members of the City Council and Planning
Commission" completely misses the point of the Appeals Court's opinion. Currently any
"interested party' (for which no definition is offered) is allowed to initiate an appeal upon filing a
form and paying a fee. Although during the oral arguments at least one of the justices asked
whether a Council member who was not directly impacted by a project was an "interested
party," this does not feature prominently, if at all, in the ruling, and they seemed willing to accept
the concept of any member of the public, including Council members, being able to have an
"interest" in the outcome of any City matter. Their concern was with someone who had
expressed an interest in an earlier decision, and by making an appeal had likely revealed a bias
against its correctness, could then serve as a disinterested weigher of fact in a rehearing of the
matter. In other words, their problem was not with the definitional issue of who could appeal,
but rather with the ethical issue of whether an appellant could sit in judgment on their own
appeal. Expanding the list to explicitly include Council members as potential appellants will not
solve that problem.
And the problem goes deeper than the Appeals Court justices seem to have realized: NBMC
Subsection 20.64.030.C.3.c appears to place the burden of arguing to overturn the previous
decision on the appellant. Even if the appealing Council member or Commissioner recuses
themself from the hearing, appearing before their own colleagues to argue that those colleagues
should overturn an earlier decision continues to raise immense ethical questions.
Although the case of Breakzone Billiards v. City of Torrance, 81 Cal.App.4th 1205 (2000),
suggests it can, if one is very careful, be possible for a Council member to both make an appeal
and sit in judgment on it, that practice is obviously going to be an ongoing invitation to litigation,
and it would seem wiser to repeal the $0 exception and leave Council people completely out of
the appeal making process.
Item 10. Council Policy A -6: Balboa Peninsula Overlay District
My initial reaction to this item is that it's not a good idea to create "overlay districts."
It is certainly confusing to the public to read what they think are the City's codes and then learn
the area they are interested in is an exception, or possibly even an exception within an
exception. In my view regulations should be written in a way that they apply citywide, and any
deviations should be based on criteria that can be applied the same way in all areas.
Beyond that, my intuition is that the Balboa Peninsula is not the only area with the potential for
an overconcentration of alcohol- serving establishments, and regulating one area more strongly
will move the problem elsewhere, creating a demand for the creation of still more overlay
districts elsewhere.
February 10, 2015, Council Consent Calendar Comments - Jim Mosher Page 10 of 10
In addition, it appears that a key purpose of the present overlay would be to apply new and
tighter standards not just on new, but on existing operations. I have no idea if this is legally
permissible, but I would hope there would at least be a discussion of why we rarely do that, and
instead usually allow existing operations to continue under a grandfathered status. And again, i
applying new standards retroactively is good for the Peninsula I would think it should be good
for all areas of the City meeting some objective and uniformly applied criteria demonstrating the
existence of a problem.
Finally, it should be recognized that any city's authority to impose conditions on alcohol sales
beyond those agreed to through the ABC licensing process is a matter of debate and could lead
to litigation.