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HomeMy WebLinkAbout00 - Written Comments Received After Agenda Printed September, 2015 Written Comments - Consent Calendar September 8, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher(]immosher(o)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the July 28, 2015 Study Session and Regular Meeting The page numbers below refer to Volume 62 of the draft minutes. The passages in italics are from the draft with suggested changes shown in =«•,,keo^ t underline format. Page 416: paragraph 4: "In response to Mayor Pro Tem Dixon's question regarding key data points for Restaurant Week in 2014 compared to 2015, Mr. Sherwin stated that the 2014 program was outsourced to a San Diego company so that there is no comparison data available." Page 421: paragraph 3, last sentence: "He commented on the desGen^1P:s dissenting Justices and wondered if they would be censured by the City." Page 421: paragraph 3 from end: "Wayne Harropson believed that two acts of terror have been peFpetuateo perpetrated on the country by the Supreme Court, ..." Page 423: paragraph 2: "Tom Pellaek Pollitt believed that, if Council Member Peotter is censured, Council is infringing on his free speech ..." Page 423: sentences starting in middle of last paragraph: "He commented on the attempt to create a loophole to violate the law and noted that no one can say that the law authorized political fundraising, endorse endorsing candidates in a partisan race or to weigh weighing in on Federal issues that are not City business. Council Member Curry noted that Council supervises itself in its adherence to City policy in terms of personnel management and non- discrimination, and they it must be responsible for policing itself." Page 424: paragraph after Substitute Motion: "In response to Council Member Petros'request, Mayor Pro Tem Dixon clarified her motion and detailed additional changes to remove Section 1.A, remove "of the City and was possibly a crime"in Section 1.8, remove "improper"and add "use of the official seal of the City and referencing himself as a Councilman in an email newsletter"in Section 1.C, remove the first paragraph in Section 2.A, amend the second paragraph in Section 2.A to read, "The City Council hereby disassociates itself from Council Member Scott Peotter's remarks...,"remove Section 2.8, "of ve '�improper"and add " ,1 of the City a n .^f............ to {.1.....^/f a 9 r`^..^^:MR.. : a.R P.Fn ga .. 6.1e tte."hn Se^f'^^or o rro- Femu, ye the f Fst paFagraph in Seistion 2A angend Se&t on 2.41 to r Gal "T11e City%^^^ovRGil h�/ ere,by disasseciates--itself f��...", and remove Section 2.C." [the highlighted section duplicates the preceding words] Page 425: paragraph 4, sentence 2: "He alleged that Council Member Curry is trying to detraet distract Council from City business." [note: the word spoken on the video sounds like "detract' but it seems clear grammatically that"distract" must have been what was intended. Two sentences later, "detract from" appears, and it again seems likely, but less certain, that"distract from'was intended.] September 8, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 Page 426: item XII, last sentence: "He indicated that this will allow benefit people interested in developing it and provide an alternative to people in north Orange County to fly from Ontario and relieve pressure on John Wayne Airport." ["alloW' doesn't work without extending the sentence to explain what is being allowed, but other words like "aid' or"empower"could be used to paraphrase what was actually said] Page 426: item XIII: Note: the motion at the bottom of the page clearly states the Council's intent for four items to be agendized for the September 8, 2015, meeting. Item 4.c on page 428 mentions another item continued to September 8". 1 am unable to find any of these items on the present agenda. Page 428: first line in bold: "Continue el Continue recommendation c to the September 8, 2015 Council City meeting." [This is the tense needed to match the way the other proposed actions are listed. Whatever the tense, the instruction seems to have been ignored for, as just noted, the item doesn't appear on the September 8th agenda.] Page 432: item 16, first sentence: "Council Member Peotter reported that the Council Discretionary Grant Account provides each Council Member$6,000 to disperse as they please." [The word in the video sounds like "disperse,"and it's possible that is what was intended ("disperse" =to spread out), but"disburse" seems more likely.] Item 3. Second Reading of Ordinance No. 2015-27 Relating to the Use of the Official Seal of the City of Newport Beach 1. City Charter Section 412 prohibits changing the language of proposed ordinances between their first reading and adoption except for"The correction of typographical or clerical errors." a. As reflected in the draft minutes of the Council's August 11, 2015, meeting (Item 15), the agreed to language for Section 1.D was "including, but not limited to, the support of or in opposition to any person seeking an elected office or of any ballot measure" [emphasis added]. b. In the version being submitted for second reading, the word "in" has been deleted. c. Although the deletion is certainly an improvement, it seems hard to regard the explicit direction to include "in" at first reading as a "typographical or clerical error" requiring correction. 2. More substantively, the existing Municipal Code Section 1.16.050 appears to have been intended to regulate (and severely limit) use of the City seal by those other than an "officer, board or department" of the City. Both the intent and details of the proposed ordinance are less clear. a. Although it seemed to be generally understood on August 11`h that the primary purpose of the new ordinance was to clarify and restrict use of the seal by council members acting as individuals, the staff report (as does the present report and the third "Whereas" of the ordinance itself) refers to its purpose being to regulate use by "third parties"—without defining what that means or using the term in the actual text of the ordinance. September 8, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 b. In addition, of the options presented to the Council on August 11'", this option was called the "Complete Ban" option — presumably meaning it completely bans any use of the seal by"third parties' without explicit permission by the Council. But for the law to be understandable it would seem necessary to define who the banned "third parties" are. In particular, are City Council members sometimes banned "third parties" but at others (such as when providing "constituent services") not? c. Even for the non-"third party" people allowed to use the seal the new ordinance contains a morass of contradictory statements about what constitutes acceptable "official business." Section D begins by describing examples of acceptable use (although presumably acceptable, per Section A, only if undertaken by "the City of Newport Beach, its City Council, boards and commissions, committees, officers or departments"), but then goes on a explicitly ban such far-ranging categories of use as to seem to prohibit the previously mentioned examples. As I read it, among the explicitly banned categories of business that are not regarded as "official' are anything "commercial OR non-commercial' and anything "religious OR secular." Which leaves me totally puzzled, since when combined in that way, either of those statements is broad enough to include, and therefore ban, every imaginable use of the seal. d. Assuming the second part of Section D was not intended to obliterate the first part, that initial part is similarly confusing, since it says use of the seal is acceptable both on communications stating an official City position and(a few semicolons later) on communications not stating an official City position. Does this mean Councilman Peotter (if he is a City "official" and not a "third party") is still allowed to use the seal on his newsletters if he makes it clear his political and religious views are not official City positions (pursuant to the Council's new Policy A-20)? e. Another murky aspect of this proposed legislation is the extent to which Section A is intended to give the Council license to create exceptions to the law"by ordinance or resolution." Is this meant to allow only one time exceptions to allow a specific otherwise banned "third party" to use the seal for a specific purpose? Or is it intended to allow the Council to override by resolution any of the provisions in the ordinance? Or can the Council only expand on the ordinance without contradicting it? If the intent was the latter, the ordinance would have been much clearer if it had simply said "All use of the City Seal is banned with the following exceptions and such others exceptions as the City Council may establish by resolution." f. Finally, if adopted as written, the definitions of"seat' and "use" are so comprehensive as to make the ban on use by those other than "the City of Newport Beach, its City Council, boards and commissions, committees, officers or departments" so draconian that this is yet another law the City will have on its books but ignore. As I read it, the ordinance bans the general public from taking or reproducing photos of the Council Chambers, or any other City building or object, if the photo inadvertently includes an image of the City seal, even as a minor feature in the background. They would certainly seem to be prohibited from copying, printing out, giving to another, or perhaps even possessing, the first page of the present staff report since it contains an image of the seal. September 8, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 Items 5-9 (Consent Calendar Section XV.C) The Council looks like it has six resolutions being presented to it for adoption. In Item 5 the typo in the severability clause has been corrected (as it was in the three ordinances of agenda Section XV.B)to end "... be declared invalid or unconstitutional." In the remaining five the "invalid or' phrase still seems to be missing. Item 5. Outdoor Dining One-Year Pilot Program for Balboa Village (PA2015-137) I have trouble understanding why business interests in this one small area of the City should enjoy so many privileges not enjoyed by those in other areas. If the current regulations regarding establishment of outdoor dining areas are onerous and oppressive, or otherwise defective, why are they being changed only for this one area? Item 6. Revision of City Council Policy G-1 (Retention or Removal of City Trees) and City Council Policy G-6 (Maintenance and Planting of Parkway Trees) The City's tree policies have been a matter of considerable contention as recently as 2003, in the wake of the removal of the ficus trees on Main Street in Balboa (see, for example, Item 17 at the Council's March 11, 2003, meeting). The present matter seems to have slipped through with surprisingly little attention. Nonetheless, in the report I think City staff is downplaying the sea change that the new parkway tree selection approach is from the existing Municipal Code Section 13.08.020, and the need to revise that code, or at least the list, to make it compatible with the new approach. The current philosophy, dating back at least to Ordinance 1015 in 1962, but probably older (judging by the reference to an earlier Section 7302 in the 1949 NBMC), extols the beauty of blocks lined by trees of a single type, or limited number of types, and prohibits the planting of species not on a list for each street on file with the City Clerk. Although frequently ignored, and not updated after the annexation of Newport Coast, the most recent comprehensive list seems to have been adopted by Resolution 2000-40. The present proposal submits for approval not the one list called for in the code, but two lists, which are attached to the new Policy G-6. One lists only a handful of the City's many blocks and the other lists no streets at all, but seems intended to act as a fall-back to the first list for the many streets not listed on it, and provides a long menu of choices based on parkway size. As when tree designations have changed in the past, I would suspect the residents of most of the streets that no longer have a designated tree are unaware their current designation is being retired or what new choices are being offered to them. If the City's vision is to no longer have a limited number of tree types on each street it would seem wise to revise NBMC Section 13.08.020 to reflect the new reality. September 8, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 Item 7. Amend City Council Policy F-9 (City Vehicle/Equipment Guidelines) As I indicated at the Finance Committee meeting, I think would be helpful if, more in keeping with the existing Policy F-9, that the "expected service Iifes" listed on page 1 are the normal basis for determining funding requirements, and not necessarily used to dictate the action timing of the replacement. In other words, saying something like: "It shall be the policy of the City that the funding and for replacement of all motor vehicles shall be normally based on the expected service life of the vehicle described on the following schedule" As with the current policy, after the expected service life has been reached, annual inspections would be performed to determine if replacement is actually needed — and if it is, the policy would ensure the funds necessary for replacement have been set aside. The staff report says the purpose of the revisions is to provide greater flexibility when greater than expected service lives are found possible, but as written the new policy inexplicably appears to make replacement at a an predetermined, and largely arbitrary, mileage more mandatory than it was. Item 13. Plan Review Services -Amendment to the Professional Services Agreement with VCA Code and JAS Pacific and Approval of Budget Amendment Since this matter was previously submitted to the Council as Item 8 on the July 28, 2015, Consent Calendar, but continued for reasons unexplained, it would have seemed helpful to highlight how the present proposal differs from that presented on July 281h Most of the comments I submitted then would still seem to be relevant. It is good to see the accelerated plan review option of Attachment CC 5 is now being offered through City staff as well as through the outside contractors. The staff report remains vague as to whether providing the plan review services in this manner costs less, and if so, whether the cost savings will be passed on to those receiving the service. Item 15. JWA Settlement Agreement Amendment. Noise Monitoring Station I view this as basically a fraud, and a repetition of a fraud that has repeatedly been perpetrated on the residents of Newport Beach in the past, resulting in ever increasing absolute noise limits as we are being told aircraft are becoming quieter. The technological challenge is to measure the actual sound levels accurately and compare them to the existing limits. It is very difficult for a layperson to believe leaving the noise limits in the Settlement Agreement as they are would violate the terms of ANCA. Should litigation result from the fact that a different and possibly more accurate measurement than has historically been available is being used to enforce the limits, a lay person would similarly assume it would result not in an invalidation of the Agreement, but at most an order to make adjustments to the September 8, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 levels or to the measurements. Although the SPON Board of Directors may have agreed to sign on to this to maintain good relations with the County, I also believe it is incorrect to say their attorney advised them they had any legal or other obligation to do so. I have personally heard the City's airport advisor say there is a requirement in the grandfathered Settlement Agreement to maintain "parity" with the noise as measured by the equipment in place in 1985. 1 am unable to find any such requirement, and I believe SPON's lawyer was also unable to find it. There are references to noise as measured "at" the noise monitor locations (that is at a geographic point), but not to noise measured "by" the specific hardware. The references are instead to noise measured on an absolute physical scale. Indeed, such a requirement for matching noise as measured, possibly erroneously, by the equipment in place in 1985 would be problematic in the extreme. Not only might the equipment drift with age in ways that could not be tracked, but in the event of an equipment failure a side-by-side comparison and maintenance of"parity' would obviously be impossible. I further reject the idea that the changes proposed now, and the upward changes (note they are magically always upward) made in 1999 and prior to that, are changes in "readings" only and that the "real" noise allowable under the new limits is unchanged. This is because even if one believed a side-by-side comparison made in 2015 could somehow "calibrate" the readings to what they were in 1985, the data from the side-by-side test have been cherry-picked in a way to unabashedly favor the airlines. This is evident from the "Table 2: Comparison" of what is labeled page 15-18 in the Clerk's printout of Attachment C. The adjustments suggested are based on the handful of aircraft that are closest to hitting the existing noise limits, yet the County's consultant (as he did even more egregiously in 1999) is recommending increasing the limits for all aircraft to maintain the existing "margin"for these problem flights, even if they involved only a single plane. For example, at Noise Monitor 1, the recommended adjustment of +0.7 dB (on the second line)was selected solely on the basis of 16 flights by A30B aircraft, ignoring thousands of flights by aircraft that indicate (even if one believes there is a requirement to maintain "parity" with the old readings) a smaller adjustment is necessary. The result is that based on the 16 flights, the thousands of flights by B-737's, B-738's and others are given a larger margin than they have now, which means they can depart with greater real noise. I would suggest these changes to the absolute noise limits stated in the Settlement Agreement are contrary to the interests of those residents of Newport Beach who are concerned about aircraft noise. I further believe there is no requirement to accept them, but if the City does agree I believe it should at least ask for something in return such as the real-time posting of the noise readings for individual flights.