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HomeMy WebLinkAbout00 - Written CommentsJanuary 26, 2016, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the December 8, 2015 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 strikeout underline format. Page 527: line 1: “Alex Mohammad Mohamed, Southside Towing, reported that …” Page 527: paragraph 3 from end: “Council Member Curry believed that there is no need to recirculate the RFP again or manipulate the scoring so political friends win.” Page 528: paragraph 1, sentence 2: “He introduced Rebecca Houser with The Energy Network …” [note: the distinction may be significant, since there is what seems to be a completely different New York-based company, with a somewhat similar mission, calling itself “Energy Network” without the “The”] Page 528: paragraph 2: “Rebecca Houser, The Energy Network, reported on her organization …” Page 537: paragraphs 2 and 4 from end: the draft minutes say “The meeting reconvened at 8:24 p.m. …” and “Adjourned at 8:25 p.m.” – implying only 1 minute elapsed between the two events. These times cannot both be correct considering that, among other things, the fate of three undergrounding was decided in the interval. In the video, the Council reconvenes at 2:10:42. The invitation for “Motions for Reconsideration” comes at 2: 14:23, and the gavel is not dropped in adjournment until 2:17:45 – 7 minutes after reconvening. Item 3. Water Efficient Landscape Ordinance - Second Reading I commented on the text of this ordinance when it was before the Council for introduction, also as Item 3, on January 12th. Since only the most trivial of the many corrections suggested at that time were accepted, I continue to think it contains defects. Item 4. Resolution Establishing Surfing Regulations to Protect Users of Designated Surfing Areas and Designating Surfing Areas I urge the Council to table this item. Over the last 2+ years, much staff, PB&R and Council time has been devoted to a review of the City’s surfing regulations. As mentioned at the bottom of the first page of the proposed resolution, the current Council’s conclusion at the end of this process, at its July 28, 2015, Study Session, was that no substantive changes were needed to the regulations that had been in effect since 1995, but that two minor clarifications might be helpful: (1) that a watch commander can order the blackball flag raised whenever and wherever safety concerns require, and (2) that the City’s jurisdiction over surfing does not extend to Crystal Cove State Park. Received After Agenda Printed January 26, 2016 Written Comments - Consent Calendar January 26, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 As it turns out, there is no need to clarify power (1) since it – and in fact, a broader power to raise the blackball – is already granted in the underlying (overlying?) surfing chapter of the City’s Municipal Code; and limitation (2) would exist whether or not it is explicitly stated in the code or resolution. In view of the above, and since it’s been quite some time, it would have been helpful to include the staff report with the recommendations from the July 28, 2015, Study Session and the minutes of the discussion that took place with respect to them, as well as the ordinance which the 14 previous iterations of the surfing regulations have been intended to supplement. It would also have been helpful to provide a graphic depicting the surfing areas being discussed. Had that been done, it would have been apparent that no change is needed, and in fact, as well intentioned as it may be, staff’s effort to go beyond the Council’s mandate by “cleaning up” the existing regulations is actually a step backwards: on close examination, the cleaned up regulations seem more technically flawed and out of sync with the Municipal Code than the existing ones, and instead of making no changes to the status quo, if adopted they would arguably prohibit nearly all surfing in Newport Beach as well as some water activities beyond the scope of the Municipal Code and not currently prohibited. By way of background, I continue to have some problem with the “Blackball Working Group”: including how and by whom it was created, and with whom it may have consulted. Had the problem of reviewing the City’s been presented to the Parks, Beaches and Recreation Commission, and had the Commission decided to create a joint investigatory committee consisting of Commissioners and City staffers participating together in formulating a recommendation to the full Commission, the Brown Act would have required the hybrid committee to hold all its meetings in public. As it is, City staff (exactly who or at whose direction is unclear) seems to have created a “working group” and invited PB&R Commissioners to join it. The end effect is much the same, but City staff apparently felt that if it was created by staff rather than by the Commission, such a joint body could meet, consult with outside parties and formulate its recommendations in private (as it did). I find that a problem and a willful evasion of the requirements of state law. However that may be, the Working Group does not seem to have paid sufficient attention to the existing Chapter 11.16 (“Surfing”) of the Newport Beach Municipal Code, which is the current codification of Ordinance No. 1162 adopted in 1966. That ordinance defined and prohibited surfing throughout the City with the understanding that an evolving Council resolution or set of resolutions would be used to supplement it in three ways: (1) to define areas where surfing is conditionally allowed, (2) to define the days and hours when it is allowed in those areas, and (3) to define days and hours when other kinds of swimming is prohibited in the surfing areas. Since the current and past Councils seem to have settled on a supplementing resolution that has not needed any change since 1995, it might be time to consider incorporating those regulations into the Municipal Code rather than leaving them in an obscure appendix adopted by resolution, but however that might be, by focusing on the resolution rather than on the code, City staff seems to have lost sight of what the resolution is intended to accomplish – going so far January 26, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 as to modify the title so as to delete the words that correctly said its purpose was to define the surfing areas and the dates and hours when they can be used. As to the lack of need for any clarification of the power to raise the blackball whenever and wherever safety concerns arise, that power is already granted to “Any City police officer, City lifeguard, or other City employee designated by the City Manager to enforce surfing regulations” by NBMC Sections 11.16.060 (“Order to Cease Surfing”) and 11.16.070 (“Signal Flags”), which would take precedence whatever the resolution says. As to the proposed resolution, however well meaning, being more generally a technical step backwards from the existing one, the attempts to define surfboard and extend the regulations to a broader class of flotation devices may also be invalid to the extent they conflict with the definition of “surfing” in the NBMC. As I read it, the blackball may now apply to any object over 44” long in the water, such as a soft pool-type flotation “noodle,” which I suspect was not the intent. It also, as proposed Section 3(D) redundantly says, prohibits all surfing “except in those places and those times expressly permitted by this Resolution” (NBMC Section 11.16.030 already, and with greater authority, says the same). Someone seems to have lost sight of the purpose of the resolution being solely to permit surfing under certain circumstances, not to further prohibit it. It could be argued that while it unnecessarily defines several dates and hours when surfing is expressly prohibited (the NBMC already imposes that prohibition), the proposed new resolution does not clearly and expressly define any dates or hours when surfing is permitted, as required by the NBMC. Therefore it could be argued that while it defines potential surfing areas, it does not allow their use. Again, I don’t think that was the intent. It also seems a major flaw that while the preamble details the path leading to the proposed adoption of a new resolution, it nowhere cites the basic reason the resolution is needed: to complete and implement the 1966 Surfing Code. The existing regulations of Council Resolution No. 95-116 undoubtedly have their own technical flaws and inconsistencies, but it was closer in time and thought to the 1966 Surfing Code and is a more straightforward implementation of what the code expected the resolution to accomplish. Without more careful thought, awkwardly grafting the new proposal onto the 50-year old code does not seem wise to me. I could offer cleanups to the cleanup in an attempt make it consistent with the code, but since the cleanup seems totally unnecessary to me, I think that time could be better spent. I think the better action is to simply table this. As a curious afterthought, it seems possible that past City Councils may never have acted upon what is now NBMC Section 11.16.040 (“Swimming Prohibited in Surfing Areas”) of the 1966 Surfing Ordinance, which empowered them to adopt resolutions prohibiting other kinds of water activity in areas where surfing is taking place. Or perhaps they have? Since those rules would be in a resolution, they would be difficult to find. This underscores the problem with January 26, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 supplementing the municipal code with regulations found in Council resolutions. In view of that, if the current Council does not wish to incorporate the current 20+ year old surfing regulations into the Municipal Code, should it not consider giving them better visibility by making them part of the Council Policy Manual? Item 5. Memorandum of Understanding with the Newport Beach Firefighter's Association I have not read this in detail, but the budget amendment requested in Attachment E seems a bit misleading to me. The casual reader would take the “Explanation” to mean that the transfer of $669,752 from the General Fund will be sufficient to cover the City’s new obligations through December 31, 2018. I believe the reference to that date is just being used as a way of referring to the new MOU and the transfer is only sufficient to cover expenses through the end of the current fiscal year (June 30, 2016). Item 6. Approval of the Key and Management Compensation Plan and Adoption of the Memorandum of Understanding with the Newport Beach Fire Management Association I have not read this in detail, either, but in Attachment B on page 6-29, I find it strange that the footnote to the “Executive Management” table says it is “Excluding the City Manager, City Attorney, City Clerk, Police Chief and Fire Chief,” yet all five of those positions are listed. Item 7. Authorize Submittal of Orange County Transportation Authority Grant Application for the Balboa Peninsula Shuttle Program The Council members (and public) may wish to know that a consultant’s memo explaining in more detail the basis for the grant application was presented to the Balboa Village Advisory Committee at its January 13, 2016, meeting (Item 4). It also may not be clear that the proposal is for the rides on the shuttle to be free. It is less clear if the parking is planned to be free, especially if it is at the City’s paid lot at PCH and Superior where parking spaces may already be scarce on the summer weekends when the shuttle is expected to operate. In any event the proposal being presented here was one of two alternatives. The other, ending at 7:32 p.m. rather than 9:26 p.m. would reduce the anticipated annual operating cost from $80,800 to $63,830. That seemed to me to be the better trial alternative since the expected ridership (and therefore the expected reimbursement from OCTA) during the last two hours is apparently small. If I am reading the memo correctly, even in the “successful” operations in Dana Point and San Juan Capistrano there are only “7 riders per hour after 7:00 p.m.” Even if the consultant means riders in each bus per hour (his so-called “revenue hours”), that is still less than during the daytime hours, when he expects 10 riders per revenue hour (note: it is not entirely clear to me how the consultant counts riders. With one of four buses passing each stop every 15 minutes, the consultant apparently expects the buses to complete the loop in one hour. January 26, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 If 5 passengers get on [and off] on the “southbound” trip, and 5 more get on [and off] on the “northbound” trip I am guessing he calls that 10 boardings or riders, meaning he is visualizing an average daytime occupancy of no more than 5 passengers per bus). Also, the concept proposal to add new northbound stops at “Newport & 23rd" and “Newport & 28th” seems problematic. Can that be done without clogging the already busy summertime traffic? And wouldn’t it add cost? Why wouldn’t the northbound shuttle simply jog up Balboa like the existing OCTA Route 71, and use its existing stops? And as must be obvious to all, with the impending termination of OCTA Route 71, this proposal doesn’t really solve the problem of residents and visitors needing public transportation on other than the 21 days per year this shuttle would be operating. Finally, does the resolution need to specify exactly what “Balboa Peninsula Shuttle Program” the Council is endorsing (a specific “concept” is included as Attachment B, but it is not referenced in the resolution)? Item 8. Corona del Mar Entry Improvements - Award of Contract No. 6382 (Project 15L12) Recommendation (a) is for the Council to “Approve the project drawings and specifications.” I have lost track of when the public last saw a plan for this project, or exactly what it currently consists of, but I cannot conceive how the Council can take the recommended action in any meaningful way, or the public comment upon it, when no project drawings or specifications are included in the agenda packet. I have also lost track of whether this project, which certainly appears to constitute new development in the Coastal Zone, has been reviewed for compliance with the California Coastal Act, which normally requires application for a Coastal Development Permit and the granting of either a permit, a waiver or an exemption of some sort. Item 9. Authorize the City Manager to Approve Term Extensions for On-call Professional Service Agreements It is commendable that the Public Works department is asking for formal extension of these contracts before they expire. The Council members may wish to know that some of the on-call contracts listed in the staff report may have been originally awarded without any explicit Council approval, but instead pursuant to administrative procedures developed by the City Manager. Section 504(f) of our City Charter suggests that rules and regulations related to contracting need to be approved by the City Council, although Section 504(h) implies that other administrative rules and regulations do not need such approval. It is not clear to me where the public can find these internal contracting rules, or when or if they were approved by the Council. January 26, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Although not strictly relevant to the current agenda item, I believe the City Attorney’s Office has a number of open-ended on-call agreements with a variety of outside law firms that have no termination date at all. I believe this an example of the folly and irresponsibility of allowing a single person (or department) to write, review and award contracts for the expenditure of public funds, as City Council Policy F-14, as amended by a former City Attorney, allows the City Attorney to do. This is especially shameful when City Charter Section 602 places with the City Council the responsibility of contracting for any outside legal services the City Attorney needs for his or her assistance, and does not give the Council the option of delegating that responsibility. Item 15. Appointment of a New Balboa Village Advisory Committee Member to Represent ExplorOcean I have some trouble with an advisory committee populated by people with a special interest in the outcome of the advice in renders. To the extent BVAC recommends activities supported by the general Newport Beach taxpayer, I think the value of those recommendations should be judged by a committee representing the general resident with no special interest in Balboa. Item 17. Summary Vacation of Existing Easement for Roadway Purposes at 20392, 20402, and 20412 Birch Street and Subsequent Approval of Parcel Map Number 2014-171 It would seem to me that the staff report should clearly identify the owner or owners of the property by name, so the public at least has a chance of knowing if they have any special political connection to the decision makers. Apparently an owner is identified in Attachment D (“Letter from Property Owner”), but this is not entirely clear since the letter refers to property owned by an “affiliate.” In any event, since the vacation of the easement seems important to someone, I find it difficult to believe it has no value. And aren’t street vacations normally accompanied by a resolution more formally memorializing the Council’s action? Finally, it might be noted that the City’s mapping system does not indicate the Birch Street easement as being part of the Assessor’s Parcels in question here, and at least a portion of triangle of land to the west of the road easement appears to be part of the City’s Mesa Birch Park. So the land ownership issues, and whether someone has previously dedicated something to the City in return for the vacation, or is getting something for free, may be more complicated than the staff report implies.