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HomeMy WebLinkAbout0 - Public Commentsu(• nns'C i La" 1717 Jt111 12 N 2� 33 Comments on June 12, 2012 City Council Agenda Item 3 from: Jim Mosher ( iimmosher(o)yahoo.com ), 2210 Private Road, Newport Beach 92660 ;(949;548 -6229) CA 1, Agenda Item 3. Administrative Code Enforcement Program This item, which consists of a long series of changes to multiple sections of the Municipal Code (25 pages of redline text), strikes me as yet another example of the kind of hastily prepared work that gets adopted without the thoughtful consideration the citizens of Newport Beach deserve. It also seems yet another example of a law that we adopt that says one thing, but which is adopted with an understanding that it will be applied and enforced in a different or selective way. That does not seem like good law to me. Staff has been suggesting changes similar to those in Agenda Item 3 for nearly a year, starting with a July 12, 2011 Study Session and followed by a February 14, 2012 Study Session, but this is the first time either the public or the Council has seen its actual proposed implementation in the Municipal Code. After nearly a year, it is unclear to me why we would be in such haste to get this enacted, or so confident in the result, that this would be placed on the Consent Calendar, where it could be adopted without any further public discussion. This is particularly troublesome since even in the brief discussion at the study sessions Council members expressed reservations about a number of elements of the proposal -- concerns which may or may not have been adequately addressed. Based on the table at the end of the February 14, 2012 report, staff is asking for an arsenal of enforcement tools — the existing administrative fines plus enhanced fines for violation of specific codes plus the possibility of large new daily penalties and cost recovery charges being added to all violations — that are normally needed only in much larger cities, San Jose and San Diego being the only examples found by staff (the present staff report cites Riverside and West Hollywood, but per the February 14 table they don't use all the elements). At the study sessions it appears Council members seemed concerned that this is a somewhat heavy- handed approach, and a major shift from our current small -town, user - friendly approach to code enforcement in which our goal is to achieve compliance in an informal personal way, with imposition of fines as a last resort. An immediate and specific concern raised by at least two Council members, that does not seem to have been addressed, was that the possibility of cost recovery charges being tacked onto the existing fines should exist only for specific, serious violations. Similarly, the current staff report does not indicate what, if any, changes to the language were made as a result of the Council - directed community outreach. My guess is those were minimal, if any, since the audiences I observed were told the new enhancements that would apply only to egregious violators, and not to them. June 12, 2012 Council Agenda Item 3 comments by Jim Mosher Page 2 of 6 Major Problems The proposed changes seem generally true to the earlier staff reports, but it is unclear that the Council ever signed on to most of this. In particular: o The understanding seemed to be that the proposed changes would affect only certain specific serious violations for which compliance could not be obtained in any other way. o Yet, as the staff reports have said all along, the new option for recovery of costs and the large new civil penalties are tools that could potentially be applied to any violation, even the most minor. o While the potential penalties are being greatly enhanced, the protections in the current code that ensure staff follow our current "user- friendly' system are being deleted. • A carefully thought out system of noticing (personal 4 mail -) posting), ensuring the violator has been informed, is being dropped in favor of one in which the alleged violator is liable the instant a letter is dropped in the mail — whether received or not (pages 4 -5 of the redline text). • The current opportunity to avoid fines by correcting violations before a clear "correction date" appears to have been dropped (page 7 of the redline text). • The use of a definite form approved by the City Manager is no longer required (page 4 of the redline text).. • Administrative costs and $1,000 per day penalties can apparently be added to any violation, not just those in the second tier (pages 6 and 9 of the redline text). C As another example, for unknown reasons the option to establish a 1 -year payment plan to discharge a Loud and Unruly Gatherings Ordinance (LUGO) fine is being dropped (pages 20 and 21 of the redline text). u It would appear that administrative citations, and the proposed changes generally, are to be used only for violations of the code related to misuse of privately owned real estate (abuse of "entitlements "), but whether that is the correct interpretation, or not, is unclear from the ordinance. G It also appears that multiple "Responsible Persons" can be cited for the same violation, each paying the full fines and penalties without consideration for the others? U Beyond that, as indicated by the detailed observations below, the proofreading simply seems to have been ineffectual, making one wonder why we are rushing to enact yet more sloppily written code. June 12, 2012 Council Agenda Item 3 comments by Jim Mosher Page 3 of 6 Some More Detailed Observations Redline page 1: In Section 1.05.005(A), it appears the reader is being told the expression "the Code' will be used as a shorthand for "The Newport Beach Municipal Code' but the real shorthanc seems to be just "Code" for the expression "this Code' is used much more extensively than "the Code' in the body of the changes. o Also, in spite of the introduction of the shorthand, the expressions "Municipal Code' and "Newport Beach Municipal Code" continue to be used, including on page 1 of the redline. o Finally, the shorthand seems to be "Code' with a capital "C" but it appears indifferently, with and without the capitalization, throughout the draft text. Redline page 2: In Section 1.05.005(E)(3), it is unclear the City is doing anything to help a violator to defend themselves "without the need for legal counsel." The City certainly does not seem to be offering someone to defend them, and it is unclear a hearing before a City - appointed Hearing Officer is any less intimidating than a hearing is Small Claims Court (the previous system). In Section 1.05.005(E)(5), it is unclear what the new language achieves its goal of minimizing the time and expense of a defense against a citation. Indeed it seems deliberately intended to be more involved and intimidating from the point of view of the alleged code violator. In Section 1.05.010(B), the employees given authority to issue administrative citations are spelled out in Section 1.12.020, rather than the larger Chapter 1.12. In Section 1.05.010(C), it is unclear what this elaborate new definition of "Responsible Person" is intended to accomplish. It sounds like anyone even remotely connected with a property on which a violation occurs (and possibly more than one person) can be made to bear the full brunt of the penalties. o As with "Code' the capitalization of "Responsible Person" seems to have been of importance to the author, yet it is used with indifference in the text. Redline page 3: It is unclear why the fine amounts in Section 1.05.020(D) and 1.05.020(F) are "not exceeding" while those in Section 1.05.020(E) are not so designated. o In the "not exceeding" ones, it is unclear who has the discretion to select a particular amount. Is it the Enforcement Officer? Or only a Hearing Officer? June 12, 2012 Council Agenda Item 3 comments by Jim Mosher Page 4 of 6 o It is also unclear how the option to issue a citation on each day of a violation is related to the stated levels, or whether they kick in only if a violation has been corrected then recurs in less than a year. Redline pages 4 -5: The references to specific sections of the California Fire Code may not be stable, as it tends to be renumbered, as do the references to it in Title 9 of the NBMC. It might be better to include the intended section titles. • In Section 1.05.030(A) the deletion of "on a form approved by the City Manger" is disturbing. Apparently under the new code written notice can be given in a rather free- form manner at the discretion of the citing officer. • In Section 1.05.030(B) the reference to "Person" is possibly intended to be "Responsible Person" (or possibly not)? • In general, a carefully thought out, staged system of notice is being replaced with a very impersonal one that does not serve the interests of the public. • The implication of Section 1.05.030(C) that failure to receive notice gives the alleged offender no rights at all is disturbing. • In Section 1.05.040(A)(3), the order to correct the violation by a specified date seems to be a carryover from the correction date referred to in Section 1.05.050(A)(1) &(2) of the old Code, but unlike in the old Code, there is no indication that doing so will result in avoidance of the threatened fines, penalties and administrative costs. Redline pages 6 -7: • Completely replacing the text of Section 1.05.050 with content related to a different purpose may be unwise if other parts of the NMBC referred to this section expecting the original content to be there. • In Section 1.05.050(C) it is unclear if a "Notice of Intent to Charge Administrative Costs" has to be part of the original notice of citation, or if it can be made in a separate subsequent notice. • In Section 1.05.050(D) the reference to a "right to appeal" appears to mean the "Request for Hearing" in sub - section (F) rather than to the appeal process in Section 1.05.060? • Possibly sub - section (F) should be entitled "Appeal" if that's what it is. • In sub - section (F)(2) the word "of' is missing in "the filing of a request" • It is unclear if this, or any of the other hearings referenced in the ordinance, are noticed public hearings or private hearings. June 12, 2012 Council Agenda Item 3 comments by Jim Mosher Page 5 of 6 C At the end of In sub - section (F)(3)(d) there is a dangling "and" that should be deleted. U Subsection (G) might more logically be number (F)(5). Redline pages 8 -9: • It is unclear if there is intended to be a cost of appeal. • In Section 1.05.060(A), terminating the right of appeal a certain number of days after the date of service may not be equitable since there is no longer any requirement for the City to have, or provide, proof that service was received. • Also in Section 1.05.060(A) it is unclear under what circumstances a refund can be accomplished by correcting the violation. • In Section 1.05.060(6)(5) the author would normally write the expression "thirty days" as "thirty (30) days ". I have no idea why this style is desired, but the use in this subsection is inconsistent. • In Section 1.05.065(6) the procedure for issuing an "Administrative Penalties Notice and Order" is not clearly spelled out. Redline page 10: In Section 1.05.065(D) it is unclear if the $200,000 "maximum legal amount' is a lifetime limit associated with a person or a property, or applies to a particular violation or set of related violations. o The final sentence of subsection (D) would seem like it should stand as a separate item before subsection (D). C Subsection (E) refers to a 'compliance deadline" in connection with the penalties notice. It seems odd no deadline is referred to in the earlier notices of violation. O In Subsection (G) it is unclear to what extent a Hearing Officer can make penalties retroactive. Redline page 11: In item "8" at the top of the page, the fact that there will be an evaluation of "impact of the violation upon the community" implies that this will be a public hearing (so the public can offer testimony about the impact on them) — a point not made clear in the ordinance (including how and to whom the hearing will be noticed). o In subsection (J) it is unclear what "the interests of justice" may be, or how a change in hearing is noticed. Redline page 12: June 12, 2012 Council Agenda Item 3 comments by Jim Mosher Page 6 of 6 G The reference in subsection (M) to "terms and deadlines" in the Enforcement Order is unclear since terms and deadlines are not part of the content of the order specified in subsection (K). In reference to Section 1.05.070 it might be noted that Hearing Officers are also defined in Section 1.080.055. o In subsection (A) "shall not be a Newport Beach City employee" might better be phrased "shall not be a Newport Beach City employee, but may work under contract to the City." Likewise, "The employment, performance evaluation..." might better be "The selection, performance evaluation..." Redline page 14: In Section 1.05.080(B) the change from "shall" to "may" would seem to make the 15 to 60 day limits meaningless. The hearing "may" be set within those limits, but it equally well may not. o Why it says "modify or change' in the final sentence is unclear. How does this differ from "or change" without the "modify "? O In subsection (C) it is unclear why "in the administrative citation" has been deleted. Redline page 15: O In Section 1.05.090(A) it is unclear how the 10 day requirement reconciles with the 45 day requirement in Section 1.05.065(K). o It is also unclear how the statement that "The decision of the Hearing Officer shall be final" is to be reconciled with the right to judicial review in Section 1.05.110. C In Section 1.05.100(A) it is unclear if the reference is intended to be to "this Chapter" or to "this Code." Redline pages 17 -18: G The reference to "Orange County Municipal Courts" is obsolete. Does it mean the Superior Court? 4 In subsection (D), "found to exists" should read "found to exist ". Redline pages 20 -21: O It is unclear why the option to set up a payment plan has been deleted. o On page 21, two references to "his or her designee" in items 5 and 6 should be "his or her designee's'. RE (_ EI\!ED Comments on June 12, 2012 City Council Ager_d.a)lltd6hs"1 y: 5y from: Jim Mosher (limmosher(a�yahoo.com ), 2210 Private Road, Newport Beach 92660. (949;.548 -6229) � Agenda Item 3. Administrative Code Enforcement Progra T -k T r. 0 1 have submitted separate written comments on this item. In my opinion the text does not reflect the direction given by Council, and is instead a sledgehammer approach to what we have been told is a minor problem. 0 Even if it did reflect the policy direction given by Council, the text is not sufficiently finalized to be ready for first reading. Agenda Item 7. Abolition of Youth Council Having attended nearly every meeting of this year's Youth Council, I have to agree with staff that this body has become mostly a social group or school credit activity and no longer serves its original purpose. Nonetheless it is evident that our City's youth lack an effective channel for communicating their concerns and wishes to the Council, and the Council's planning is poorer for that lack of input. The original intent of 26 years ago still seems sound to me, and I think a newly constituted small, well- focused body with a real sense of responsibility and purpose would be more beneficial for both the City and the participating youth than the proposed informal "Mayor's Youth Council" which sounds like it is essentially an extension of the current program. Agenda Item 8. Resolution of Intent to Renew Marine Avenue BID 0 1 have general concerns about the renewal of all four of the "Business Improvement Districts" (actually "Areas ") formed under the "Parking and Business Improvement Area Law of 1989" (California Streets and Highways Code Section 36500 et seq.) that are the subject of Agenda Items 8 -11. o My reading of the law is that under S &H Code Section 36530, the BID boards are intended to play a strictly advisory role, making recommendations to the City Council as to how the Council should spend the levies through the normal government apparatus for the benefit of the area. o As instituted in Newport Beach, the boards have been given an administrative role, making decisions about, and implementing, individual spending decisions, involving not only the levies collected from improvement area businesses, but also additional general fund revenues "given" to the BIDs. Not only is this not contemplated in the Street and Highways Code, but it creates obvious conflicts for the board members as both advisors and administrators and it is questionable June 12, 2012 City Council Agenda Item comments by Jim Mosher Page 2 of 6 to spend money through an advisory body that is not incorporated or otherwise constituted to perform such functions. o Given that S &H Code Section 36530 requires the City Council to appoint an advisory board, it is disturbing that we have not followed the precepts of City Charter Section 700 et seq. for the creation of advisory boards, including that the members not only be business owners (an optional requirement under the state law) but that they also be qualified electors of Newport Beach, that they have definite terms of office, and the by -laws of each group be on file with the City Clerk. o As boards appointed by the City Council, it is also disturbing that the members and their terms of office do not appear on the Clerk's "Local Appointments List" as required by California Government Code 54970 et seq. (the "Maddy Act "). C With the exception of a very few levy- funded improvements to public property, my general observation has been that the BIDs are primarily serving a promotional function not well suited to government. If it is not barred by anti -trust laws, I think the same functions would be much better served by the interested merchants voluntarily contributing to a private Chamber of Commerce type group which would then perform the marketing activities privately. C With respect to the Marine Avenue BID, specifically, interest in it seems minimal, and I have observed they have trouble mustering a quorum. a My understanding is that even though it is not on the Local Appointments List, the City Clerk noticed four vacancies on the Marine Avenue BID and that as of the June 1, 2012 deadline (and also as of today, June 12), not a single application had been received. C Although Marine Avenue business owners may not be interested enough to protest the renewal, it seems to me that a group with such a low interest level should not be renewed. C On a very minor note, the Marine Avenue BID was created by Ordinance 95 -50 dated October 19, 1995, so this is probably their 17`h Annual Report to the City Council. Agenda Item 9. Resolution of Intent to Renew Balboa Village BID C My comments are basically the same as for Item 8. The Balboa Village BID Board meetings are better attended, however very little of their activity involves improvements to public property for which a genuine reason for governmental involvement could be cited. G Even so, my understanding is that only three applications were received to fill four vacancies on the Board, and one of those was from an applicant who is not a Newport Beach resident, let alone registered voter. June 12, 2012 City Council Agenda Item comments by Jim Mosher Page 3 of 6 C This group was originally created as the "Central Balboa Business Improvement District' by Ordinance 95 -04 dated February 27, 1995, so this is probably their 17`h or 181' Annual Report to the City Council. G In addition, at its April, 2012 meeting the BID Board voted unanimously, and affirmed that again today (June 12, 2012) to remove from its area the panhandle of properties along Balboa Boulevard East, from Coronado to Adams, but that recommendation is not reflected in the Annual Report provided to the Council by City staff, nor in the proposed resolution of intent to renew, or in the map attached to it. o Streets and Highways Code Section 36534(a)(1) authorizes the Council to include a notice of intent to change the boundary in the resolution, if such a recommendation was included in the approved report. o Per S &H Code Section 36533 it would appear the Council needs to amend the report to include the recommendation staff left off, then include the proposed change of boundary in the resolution of intent to renew. Agenda Item 10. Resolution of Intent to Renew Corona del Mar BID G My comments are basically the same as for Item 8, although the Corona del Mar BID Board meetings are better attended and received enough applications to fill the board vacancies. G This is one BID with a clear involvement in recommending using a portion of the levies for physical improvements to public property. G Since the Corona del Mar BID was created by Ordinance 97 -24, dated July 14, 1997, this is probably their 15`h Annual Report. Agenda Item 11. Resolution of Intent to Renew Restaurant BID a My comments are similar to those for Item 8, although I have additional concerns about this BID, which unlike the others involves collecting levies from a class of businesses (originally "restaurant businesses that benefit from tourist visits ") throughout the entire City. o My concern is that the scope has increased over the years to apparently now include all food - serving businesses, even though the efforts of the BID focus almost entirely on promoting the particular class of restaurants represented on the board. o It does not seem proper to me to levy businesses such as grocery stores and gas stations (and possibly by amounts larger than true restaurants) when the only benefit they receive is a listing in a "Dining Guide." June 12, 2012 City Council Agenda Item comments by Jim Mosher Page 4 of 6 o Beyond that, it does not seem proper to place substantial amounts of general fund taxpayer money at the disposal of this BID Board for promotion of a particular kind of business. 0 Since this group, originally called the "Newport Beach Restaurant Improvement District," was created by Ordinance 95 -55, dated November 13, 1995, this is probably their 171h Annual Report. Agenda Item 12. Enlarging the Tidelands Citizens Advisory Panel 0 Section 700 of the Newport Beach City Charter provides the City Council with the authority to "create by ordinance such additional advisory boards or commissions as in its judgment are required," with details spelled out in the following sections. 0 1 don't think the creation of advisory bodies outside the strictures of the Charter, including this "CAP" has served us well. Agenda Item 13. Crossing Guard Services 0 We have some excellent crossing guards currently working in our City. 0 1 am not sure if they work for the City or the School District, but I hope this does not mean they will be displaced. 0 The clear presentation of the bidder evaluation process on page 2 of the staff report, including identifying the names of the evaluators and their rankings, is refreshing. o This is in stark contrast to Agenda Item 25, the selection of the successful bidder for Business Improvement District management, where the identities of the evaluators, and their ratings, seem to be closely guarded secrets. Agenda Item 15. Amendment to Jamboree Bridge Widening Contract 0 It would appear from the staff report that this may be in part a contract for services already rendered. Agenda Item 18. Encroachment Permit for Nautical Museum 0 It is unclear to me why the City is making available for private commercial use an easement intended as a public walkway. 0 If it is possible for the City to charge for this use, it should be doing so. June 12, 2012 City Council Agenda Item comments by Jim Mosher Page 5 of 6 Agenda Item 21. Library Literacy Services Budget Adjustments 0 It is unclear if staff should have presented this proposal for apportioning contributions between salaries and expenses to the Board of Library Trustees for a recommendation in keeping with their Charter role overseeing administration of the City's library system. Agenda Item 22. Board and Commission Scheduled Vacancy 0 1 think I agree with Council member Curry that the public is not being served well by the current Council Policy A -2 in which the full Council sees only a handful applicants screened by a small Council committee. I think it would be better if these were flagged as recommendations, but with the entire field of applicants regarded as nominees. 0 As indicated under Agenda Item 8, 1 find it disturbing the Business Improvement District Boards are not included in this list. 0 1 also think there should be two openings listed on the Planning Commission since a recent appointment was made to fill a vacancy left by the resignation of Robert C. Hawkins and the current City Charter holds that the term of such replacements is only that necessary to fill the term remaining until the normal scheduled vacancy — which would be on July 1, 2012. Agenda Item 24. Adoption of Fiscal Year 2012 -13 Budget 0 One of my primary concerns about the budget is that with large quantities of planned expenditures reported as "Not Otherwise Classified" it is difficult to reconcile with Charter Section 421 which I read to mean that the City Manager can be pre- authorized to approve contracts only if they are both below a dollar limit and for purposes approved in the budget. Agenda Item 25. Agreement for BID Management 0 See comments on Item 13. o It is disturbing that the names of those who evaluated the bidders, and their evaluations, are not disclosed in the report. 0 The $226,042 size of the contract also seems disturbingly different from the current administrative costs of about $30,000. o Does this mean the contractor will be spending the BID levies on the advice of the BID Boards (or Council ?) rather than the BID Boards doing so directly? June 12, 2012 City Council Agenda Item comments by Jim Mosher Page 6 of 6 Agenda Item 27. Council Discretionary Grants and Contract Reports 0 1 strongly object to the Council Discretionary Grant program in which each Council member is given $6,000 of general fund revenue to spend as they wish. o My problem with this is that Charter Section 405 places the powers of the City that are not otherwise delegated in a Council of seven members. With very limited exceptions for the Council- selected Mayor, it does not give any power to our elected representatives to bind the City to decisions they make as individuals. o The lack of oversight of this program also leads to inadvertent abuses. For example, the $1,000 grant to AirFair, however well intentioned, is probably illegal since AirFair is a Political Action Committee. 0 The long list of "on- call" contracts authorized by department directors seem an abuse of that "power" (if the power exists) since on -call contracts are intended for very limited purposes in the City's policies. The long list of contracts let by the City Attorney is even more disturbing, since Charter Section 602 leaves control of legal expenses to the City Council. Agenda Item 27. Additional Items for Charter Update Committee 0 1 have commented elsewhere on the Charter Update process, which I feel is not sufficiently thoughtful to serve our City well. 0 Suffice it to say there would seem to be many other items that could be suggested for the Charter Update Committee to review, including both existing sections that have not been brought to their attention, and new sections that might be added to improve our City government. o I am particularly surprised to see neither Council nor staff seems to be wanting to eliminate the compulsory reading of the titles of ordinances and resolutions as they are adopted, which I thought they found quite irritating, even though in my opinion it serves a civic purpose.