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HomeMy WebLinkAbout0 - Public CommentsDraft Minutes for June 26, 2012 (July 10 Agenda Item 1) The following are typos noticed in the Draft June 26, 2012 Minutes being considered for approval as Agenda Item 1 at the July 10, 2012 City Council Meeting. Notes submitted by Jim Mosher ( jimmosher@yahoo.com ; (949) 548 -6229) Volume 60 - Page 492 (below middle ofpage) • " Peake Denys Oberman presented ..." • "Mike Brant- ZawadsrWZawadzki encouraged ..." Volume 60 - Page 495 (under V. ROLLCALL) C The references to Council Member Daigle being excused and arriving at 4:02 pan. appear to have been erroneously copied from page 490, and seem inapplicable to the Regular Meeting starting at 7.00 p.m. Volume 60 - Page 496 • (fourth full paragraph) o "... allow the tower on the Marina Park project ..." • (two lines above XII. CONSENT CALENDAR): o "...Local Coastal Plna Program (LCP) ... Volume 60 - Page 499 (under Item 8) G ' ... AVPreve- atetten Motion by Council Member Hill, seconded by 0 ? ? ?? to ..." (name of seconding member needs to be inserted) Volume 60 - Page 500 (under ItemXV) o "... City has been negotiating an extension ..." Volume 60 - Page 501 (before motion under Item 15) o "City Attorney Harp noted that appointments for BID Boards are net made pursuant to the Streets and Highways Code." (more precisely, I think he said the appointments are not made pursuant to the City Charter, but rather based on the Streets and Highways Code) Volume 60 - Page 505 first line) o "... Peter Campbell, whose parents live adjacent to the project ..." Volume 60 - Page 509 • (first line): "... stipulation with the Police De tment Association..." • I suspect at least one of the two references to Police Department in the remarks attributed to City Manager K .fin the following paragraph is also to the Police Association. "RECEIVED I�F,I R AGENDA PRINTED:" ��-C7'—_ Comments on July 10, 2012 City Council Agenda Items Comments by: Jim Mosher (iimmosher(a)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) STUDY SESSO®iV Item 2. Ships to Reefs Presentation I am assuming this will be similar to the presentation made to the Harbor Commission on April 11, 2012, which involved a proposal to sink a mothballed US Navy ship in shallow ocean waters near the Newport Pier. C Since reefs are generally considered navigational hazards, and the sinking of a large ship in a recreational area would generally be considered a disaster, I remain unconvinced this is a desirable thing to do. The previous presentation also included what seemed the rather odd claim that the Ships to Reefs program represented a net benefit to US taxpayers: that is, that paying to have a mothballed ship cleaned to the exacting standards needed to sink it without environmental consequences was cheaper than selling the ship for its scrap value. This would seem plausible only if private donors are paying for the cleanup and the scrap value of a Navy ship is less than zero (that is, if the cost of scrapping exceeds the value of the material salvaged) -- neither of which points was clear from the presentation. The Coastal Commission and other groups have what is apparently an environmentally sound artificial reef program off the coast near the San Onofre Nuclear Generating Station. If an artificial reef is needed near Newport Beach something along those lines might a better alternative. Item 3. Taxation of Hotel Rooms o Revenue Manager Tsang makes a compelling argument for why the Transient Occupancy Tax is needed to defray the cost of providing City services to hotel room occupants, whether the occupant is directly paying in money, or not. That reasoning would certainly seem to apply to the 9% TOT assessed pursuant to NBMC 3.16, and I can see no reason for giving hoteliers discretion to waive that. As a possible compromise not suggested in the staff report, the Council might wish to consider waiving for complimentary rooms just the 1 % additional service fee assessec under NBMC 3.28, since that is earmarked for promotion rather than for essential City services. July 10, 2012 Council Meeting comments by Jim Mosher Page 2 of 8 Item 4. Charter Update Committee Discussion 0 For reasons which I may submit separately, I do not support the recommendations of the 2012 Charter Update Committee, and do not believe any of the proposals contained in the report are ready for submission to voters. REGULAR MEETING Item 1. Minutes from June 26, 2012 0 1 have submitted separate written comments highlighting probable typos in these. Item 3. Tidegate Retrofits and Upgrades 0 Since much of the proposed work is in residential areas, it seems odd the NOTICING section says announcements of impending work will provided only to businesses. Item 4. 15th Street Rehabilitation Project 0 Same comment as previous item. Item 5. Approval of Amendment to Agreement with Schmitz & Associates 0 This agreement authorizes payment to an outside consultant to present City proposals to the California Coastal Commission (CCC). I strongly feel the City would be better served by relying on its own staff, particularly in comparison to a consultant whose record of getting permits approved by the CCC does not seem particularly good. The staff report seems to me to have been sloppily prepared (referring, for example, to a November 11 CCC hearing as having been held in "Carlsbad" when it was actually in Oceanside) and to be unnecessarily disrespectful of the roles played by other government agencies, including the CCC which is said to have "alleged concerns" about the Sunset Ridge proposal. Claims of violations may be "alleged" until proven, but concerns are concerns for whatever reason they are raised. Beyond that, as best I can tell, Mr. Schmitz' firm is primarily asking for additional compensation for services performed prior to tonight's meeting, which I find hard to reconcile with Article 11, Section 10(a) of the California Constitution: A local government body may not grant extra compensation or extra allowance to a ... contractor after service has been rendered or a contract has been entered into and performed in whole or in part. July 10, 2012 Council Meeting comments by Jim Mosher Page 3 of 8 At best it would seem to me Mr. Schmitz' firm should be filing a claim with the City pursuant to City Charter Section 1114, and if they were given prior written authorization to exceed the "not to exceed" amount of the existing contract they should provide it. Item 8. Civic Center Audio - Visual and Information Technology Equipment G This seems like a large proposed expenditure, and is unclear from the staff report how, or if, it fits into the long range IT infrastructure plan that is, or was, being worked on. It is also unclear why such a large budget adjustment should be needed so soon after adoption of the FY2012 -3 budget. Was the need to set funds aside for this not anticipated in June? Of the specific items proposed for purchase, I was unaware there was any problem with the quality of broadcasts of Council meetings, let alone one sufficient to justify spending $200k to completely replace what is described as "end of life" cameras and support equipment in the Council Chambers. If this equipment does need to be replaced, has the cable franchisee been asked if they might be willing to share part of the cost without tapping the dedicated grant received from them? Likewise as to the most expensive line, not knowing exactly what a "network switch" is the description provided in the staff report does not make it sound like they should be $14k each items. Finally, it is unclear from the report if there has been any special commitment in spending these funds to follow the Charter Section 1111 directive to purchase the equipment from firms with a place of business in the City. Item 10. City Council Approval of Library Services Policy 1 -7 • In my opinion, this should be a "receive and file" item. • City Charter Section 405 vests in the City Council all the powers of the City "except as otherwise provided in this Charter." Making library policy is one of those exceptions. • The power and duty to set rules for the administration of the City's libraries is explicitly vested in the Board of Library Trustees by Charter Section 708. Since that power is .'otherwise provided" in the Charter, it is not a power vested in the Council. • If the Council is unhappy with the policies set by the Board, it can remove the Trustees with four affirmative votes (Charter Section 702), and hope for a better result, but it cannot overturn their actions any more than it can overturn an action of the City Manager taken pursuant to the powers granted him by the Charter. July 10, 2012 Council Meeting comments by Jim Mosher Page 4 of 8 G Since the Council has no power to reject a library policy set by the Board, its "approval" (or non - approval) is of no significance, and it should avoid acting in the meaningless way recommended by library staff. • For all the above reasons, I object to the Council taking action to "approve" this item. • Finally, the staff report gives the impression that library policy should be set by the Council in consultation with library staff, which is contrary both to the Charter and the reality of the situation; and if the Council does "approve" this, it should be noted that the policy that has been revised by the Board of Library Trustees is the one the Clerk files in the Council Policy Manual as "I -2," not 1 -7" as it is erroneously referred to in the staff report and on the present agenda. Policy 1 -7 is about use of library meeting rooms. Item 11. Waive Council Policy A -2 to Appoint New City Arts Commissioner a At the June 26th Council meeting I had the misimpression Robyn Grant was seeking a new appointment because she was termed out on the City Arts Commission. I am, therefore, surprised and disappointed to find she was chosen over other candidates to fill a new position without having completed the previous function she had committed to. C That said, it is good to see the City Clerk took the initiative to announce this unplanned vacancy promptly enough for the 10 working days required by the Maddy Act (California Government Code Section 54970 et seq.) to have elapsed before the night on which the Council wishes to appoint her successor. o Beyond that, I have recently reminded City staff that Charter Section 702 requires appointees to the City's boards and commissions to be "qualified electors of the City' -- which I take to mean currently registered to vote in a City precinct. Since none of the applications included with the staff report ask about current voter status, I trust City staff will verify the voter status of each of the applicants (hopefully with the County Registrar of Voters) prior to the Council making an appointment. Item 12. Visit Newport Beach and Newport Beach Tourism Business Improvement District Annual Reports C It is wonderful to see Visit Newport Beach (TOT) submitting, for the first time, the Marketing Plan and Budget required by the new contract presented to Council on September 27, 2011. This provides for the first time in recent memory an opportunity for the public to glimpse how VNB expects to spend the $3.3M of City - collected Transient Occupancy Tax projected to be given to it in the coming year. o One surprising observation is that about 3% of that revenue, or $100k will be spend on VNB's "Annual Meeting," an event generating just $6k of income. July 10, 2012 Council Meeting comments by Jim Mosher Page 5 of 8 An element that seems to be missing is the "Performance Standards Report" whereby the new contract requires VNB to "annually set and update performance standards that correspond with VNB's approved goals, as set by the VNB's Board of Directors." I assume these are quantitative benchmarks which can be checked at the start of the next year to see if VNB's stated goals have been met or not. I do not see such standards in the present report. It is also good to see the Tourism Business Improvement District (TBID) submitting, apparently for the first time since its creation in 2009, the annual report required by California Street and Highways Code Section 36650. And it is interesting to see that, if taken at face value, the report indicates $1.64M of levies will be required to generate $551 k of beneficial activity for the member hotels. That said, the report seems muddled or defective in several respects: o The description of the membership for FY2012 -13 under "Purpose" seems incorrect: The Newport Dunes will presumably be a member throughout the year and be assessed like the others? o Under "Estimate of Non - allocated Funds Carried over from FY2011- 2012," the estimate of precisely $0.00 seems improbable. It is difficult to manage a prudently run organization that would end the fiscal year with zero balance. Despite these welcome improvements, it appears the VNB board continues to shirk its duty, as "owners' association" for the TBID, to notice and conduct its meetings in compliance with the Brown Act as required by Street and Highways Code Section 36614.5. From the governance information provided, every member of the "TBID board" is on the larger VNB board, so whatever group is the "owners' association" (the Management District Plan claims it is VNB, and presumably by extension its Executive Board) any meeting of either body to discuss hotel marketing should be a public meeting. Item 13. Corona Del Mar Business Improvement District Fiscal Year 2012- 2013 Board Appointments C The staff report misstates the California Streets and Highways Code Sections, saying in the Abstract that it "grants the City Council the authority to appoint an advisory board for Business Improvement Districts [sic — they are actually described as Areas] formed under the Parking and Business Improvement Area Law of 1989." Likewise in the Discussion it says "The City relies upon the Streets and Highways Code for BID board appointments rather than Council Policy A -2." o In fact, the 1989 law requires the City to appoint an advisory board, and this is all it says about the process: July 10, 2012 Council Meeting comments by Jim Mosher Page 6 of 8 Sec. 36530. The city council shall appoint an advisory board which shall make a recommendation to the city council on the expenditure of revenues derived from the levy of assessments pursuant to this part, on the classification of businesses, as applicable, and on the method and basis of levying the assessments. The city council may designate existing advisory boards or commissions to serve as the advisory board for the area or may create a new advisory board for that purpose. The city council may limit membership of the advisory board to persons paying the assessments under this part. The city council may appoint the advisory board prior to adoption of the resolution of intention to create the area, so that the advisory board may recommend the provisions of the resolution of intention. 0 Since the 1989 law, under which the CdM Business Improvement "District" was purportedly created provides no guidance as to how the advisory board will be appointed, or what the terms or qualifications for service may be, it is incumbent upon the Council to fall back on the guidance provided to it by the voters in the City Charter. 0 City Charter Section 700 et seq. provide that guidance beginning with: .. the City Council may create by ordinance such additional advisory boards or commissions as in its judgment are required, and may grant to them such powers and duties as are consistent with the provisions of this Charter." 0 1 can find no basis for staff's contention that when compelled by state law to create an advisory board the Newport Beach City Council is free to ignore the restraints placed upon the exercise of that power detailed in the City Charter. 0 1 am also unable to find any basis for staff's contention the Council is free to ignore its own Policy A -2, which is largely a recitation of the California state law (binding on charter cities) embodied in Government Code Section 54970 et seq. (the "Maddy Act "), or to ignore the Maddy Act itself which requires, among other things, that the names, terms and qualifications of all appointees be regularly noticed in a Local Appointments List. 0 The current membership of the Corona del Mar BID Advisory Board of Directors is not in the City's Local Appointments List. 0 The staff report presents a list of seven "recommended appointments" without identifying who recommended them or what their qualifications are. o It is hard to reconcile this with the City Clerk's announcement that there were four openings on the Board. o This list is also larger than the set of four nominees recommended by the current CdM BID Board at its June 28, 2012 meetings. 0 City staff appears to be recommending appointments for a one year term, but I am unable to find any basis for such a term in the 1989 law, in the CNB Charter or in Council Policy. July 10, 2012 Council Meeting comments by Jim Mosher Page 7 of 8 Under "Funding Requirements," the staff report notes that the City remits both levies and "matching" funds "to the BID," however the body being appointed is repeatedly referred to, both in the staff report and in the 1989 law, as an "advisory board." It is unclear if by this action staff is recommending the Council to grant any administrative functions (such as spending that money) to this body. To do so would, in my opinion, be contrary both to the Charter and the 1989 law. Item 14. Affordable Housing Amendment for Newport Place Planned Community G Previous written comments (primarily suggesting corrections of typographical errors) submitted by me in advance of the June 7, 2012 Planning Commission seem to have been largely incorporated in the draft text. U Whatever one may think of the appropriateness of a state mandate dictating a certain amount of affordable housing, the question remains of whether this new Planned Community text represents a firm commitment to provide any affordable housing in the airport area. It would appear from the staff report that it does not: it is only an ,opportunity' and a developer could chose not to exercise the residential overlay option at all. It seems to be implied that a developer building residential units could not evade the affordable housing obligation with in -lieu fees, but that is not explicitly stated. Item 15, Second Amendment to the Newport Dunes Settlement Agreement o A little more background would have seemed useful as to the basis for the original litigation, the authority the City have over what is described as State tidelands held in trust by the County, and who negotiated the proposed amendment, and for what purposes. o I assume Costal Development Permits would be required to construct any of the new projects described in the Agreement, but is unclear from the report if the new Agreement itself involves changes to the City's certified Costal Land Use Plan which would require review by the Coastal Commission. It appears that to determine if there are provisions that have not been "amended and restated," the new document has to be read in conjunction with the "Original" Agreement as amended by one earlier amendment. There may be legal requirements requiring this, but it would seem much simpler to have created a single new version replacing and restating the entire Agreement. Spot- checking the long Agreement reveals it contains drafting errors and ambiguities. For example, on page 11 (handwritten 17): July 10, 2012 Council Meeting comments by Jim Mosher Page 8 of 8 The first paragraph appears to require the lessee to allow bike access to an "interpretive center" without elsewhere (at least in the amended and restated sections) explaining what interpretive center that refers to (note: this seems to refer to a predecessor of the Back Bay Science Center specified in the Original Section I, that Section appearing to have been replaced in its entirety with language no longer mentioning it). o Further down the same page, the height restrictions are, in my opinion, confusingly written; and the references to parking and signage requirements in "Chapters 20.66 and 20.67 (of the Newport Beach Municipal Code) are confusingly to the pre -2010 Zoning Code. The current Zoning Code contains no Chapter 20.67, and Chapter 20.66 is not about parking. Item 16. Installation of Sharrows on Coast Highway G Although I appreciate the zeal of the bike enthusiasts who want these, I don't think mixing cars and bikes in shared lanes is a viable solution for everyday cyclists who want to get from one point to another but cannot keep up with the flow of motorized traffic. This would seem a particularly dangerous proposal if it is meant to encourage children to ride bikes in traffic lanes used by cars and trucks. Item 18, Professional Services Agreement to Conduct a Citywide Classification and Compensation Study o Evaluating and proposing changes to our employment and pay structure seems precisely what we have a City Manager and Human Resources Department for. I find it hard to understand why we need to spend $115,000 to hire an outside consultant to duplicate those functions. Item 20. Recommendations from the Charter Update Committee C See comment for Study Session Item 4.