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HomeMy WebLinkAbout00 - Written CommentsFebruary 23, 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 February 9, 2016 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 strikeout underline format. Page 561: paragraph 2 from end, last sentence: ―He further explained the revised Route 47 plan and reported on the Bravo Bravo! program, …‖ [it might be noted that although grammatically correct, it is virtually impossible to guess the subject and gist of the OCTA presentation from the minutes as presented: namely that OCTA had recently proposed completely eliminating the portion of a bus line that ran down the Peninsula beyond the Newport Pier, but after consulting with City staff had developed an alternative proposal in which a different bus line would service that portion of the route once per hour.] Page 563: Item XII, paragraph 1, sentence 2: ―Additionally, he announced an Open House regarding the West Newport Mesa Master Plan on February 17, 2016, …‖ Page 563: Item XII, paragraph 2, sentence 1: ―Mayor Dixon requested that a staff report be placed on the February 23, 2016 agenda, relative to having Council encourage the County of Orange to approve a 50-year lease to the new owners of the Newport Beach Golf Course.‖ [note: this should have been a request to place the matter under “MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA” on the next agenda. Rule C.3 of City Council Policy A-6, as last revised on June 9, 2015, gives the Mayor no special power, different from the other Council members, to order items placed on a future agenda without the concurrence, properly agendized under that heading, of at least two other members.] Page 569: Item 18, paragraph 2: ―Council Member Petros reported that Mitigation Measure MMN-1 MM N-1 not only required further acoustical analyses, but also set performance measures to weigh that analysis against.‖ Page 571: paragraph 3: ―Council Member Peotter asked regarding the hours of operation and Mr. Gosney noted that issue was brief briefed in their appeal letter and stated he trusts Council to address it appropriately.‖ Page 571: paragraph 5, last sentence: ―He added that conditions on alcohol sales are under the purview of the Department of Alcoholic Beverage Control (ABC).‖ Page 571: first motion: ―Motion by Council Member Petros, seconded by Council Member Curry, to provide direction to staff regarding any comments that may be submitted send a message to OCTA in response to and support of its OC Bus 360 Plan this efficiency and look forward to collaborative spirit as we move forward with our Project V.‖ [The draft minutes simply repeat the request (as printed in the agenda) for direction from Council. The suggested correction records the actual direction given, as articulated by Council Member Petros, as best I could transcribe it.] Received After Agenda Printed February 23, 2016 Written Comments - Consent Calendar February 23, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Item 3. Amendment to Newport Beach Municipal Code Chapter 11.03 Special Events In my view, the staff report supporting this item is misleading in the extreme. This relates to a recent effort to have the Planning Commission modify by adoption of a conditional use permit the existing procedures for the approval of special event permits at the Newport Dunes Resort (a private concession in a county park on public tidelands) – a matter that (according to City records) has been called up by Councilman Duffy Duffield for further review by the City Council, most likely on April 12th. The staff report asserts that the Council is being asked to do nothing more than ―clarify‖ the Planning Commission’s existing authority under the existing code (NBMC Chapter 11.03) through which special event permits are issued, normally by the Recreation and Senior Services Department. I do not know what the nature of Council members Duffield’s concern may be, or how he may wish to alter the Planning Commission’s decision, but staff offered two rationales for the Planning Commission and Planning Division taking over responsibility from R&SS through a conditional use permit: 1. Subsection 11.03.020.C of Chapter 11.03, which (the exact passage was not cited) purportedly exempted activities allowed by a CUP; or, alternatively 2. Subsection 20.38.050.A of the Zoning Code, which allows nonconforming uses to be expanded or intensified with the approval of a CUP. On closer examination, both of these rationales proved false (see my detailed written comments submitted regarding Item 2 at the February 3, 2016, Planning Commission hearing): 1. It is logically impossible that Chapter 11.03 could have contained an exemption for the Dunes because the legislative history shows it was specifically added to the Municipal Code to deal with the Dunes by simplifying, streamlining and reducing the cost of issuing permits to them. 2. The cited section of the Zoning Code applied only to uses that had formerly been allowed ―by right‖ (that is, without a discretionary approval). Special events have not only never been allowed at the Dunes by right, they have also never been regarded as a nonconforming use. The staff report is also misleading in suggesting the charge for processing a special event permit ―ranges from $444 to $5,001.‖ Chapter 11.03 in fact created a ―Bundled Events Permit‖ process (in Subsection 11.03.040.A) specifically to reduce the cost for the Dunes. Although what purports to be the Master Fee Schedule on the City’s website actually appears to be just a small set of changes made to selected fees, I believe the current charge for processing 20 bundled events is around $2,900 or $145 per event – much less than the report implies. And it might be noted that the Planning Commission took their action after being told the Dunes was paying something like $900 per event, and no one from R&SS was present to corroborate the information or testify as to whether or not there were any problems with the current system—or reasons to change it. February 23, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 More importantly, since the Planning Commission’s action has been called up for review it seems extremely premature to alter the municipal code at this time. After the April 12th discussion, the Council may wish to alter the code in different way, or not alter it at all. Item 4. Second Reading of Ordinance No. 2016-3 Relating to Residential Permit Parking Hours on Margaret Drive and Adoption of Resolution No. 2016-36 It is not immediately apparent from either this or previous the staff report (February 9, 2016, Item 20), but changing the parking pattern on Margaret Drive appears to involve three separate and distinct actions: 1. A resolution to remove Margaret Drive from the list of streets with two hour parking. 2. A resolution to add Margaret Drive from the list of streets with one hour parking. 3. An ordinance to change the rules for Margaret Drive, including exceptions for permit parking, as specified in NBMC Section 12.68.060. I commented orally on the substance of this matter at the February 9th meeting, but the present item, and the need to amend it subsequent to the initial publication of the agenda to correct one of the previously adopted resolutions, highlights at several further problems with recent legislative procedures in Newport Beach: 1. Moving what are logically parts of the Municipal Code into resolutions (a model which was recently proposed to be applied to sewer rates) is a bad practice. Not only does this deprive voters of the right to challenge the City’s actions by referendum, but current and past City Councils have passed thousands of resolutions. They are difficult to locate and despite the City Clerk’s occasional efforts to annotate the links to them, it is virtually impossible to tell which are still active and which have been superseded by subsequent resolutions. Even where the addition of a schedule by resolution may seem appropriate, it can lead to confusion as to what the current laws are. And when a lengthy schedule is being modified, not only can copying errors be introduced in sections that were not intended to be changed, but the overall intent can be unclear. An example, is the Master Fee Schedule, the most recent version of which, the City tells the public, was adopted last year by Council Resolution 2015-76. However, on close inspection, the resolution is not a complete schedule, but addresses only a few of the City’s fees, leaving the public (and possibly staff) struggling to discover what continuing authority (if any) there is for the many other fees currently being charged. 2. Adopting resolutions concurrent with the introduction of an ordinance, assuming the ordinance is going to be adopted, is bad practice. The two Margaret Drive parking resolutions mentioned above were adopted at the February 9th meeting assuming the related ordinance would be adopted at this meeting. But there was no need to do this, and the fact that an ordinance has been introduced is not supposed to provide any assurance it will be adopted. Intuitively, the resolutions enabled by an ordinance should be adopted concurrent with the actual adoption of the ordinance, and February 23, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 not before. And the wisdom of that intuition is borne out by the recent confusion regarding sewer rates. Most of the public understood (and probably still assumes) new rates had been approved by resolution on January 26th, but the ordinance upon which the resolution depended was never approved. 3. Having resolutions and ordinances addressing the same issue is bad practice. In this particular case, hours of restricted parking on Margaret Drive are listed both in NBMC Section 12.68.060 (adopted by ordinance, and effective 30 days later if not voided by referendum) and in the resolution(s) (effective immediately upon adoption) authorized elsewhere in the code. At best the two sets of rules with agree with each other. But there is a reasonable chance they will not, leading only to misunderstandings. Specific comments on the current agenda item: 1. The proposed Resolution No. 2016–36 of Attachment A apparently now rescinds the most recent previous resolution adopting a list of streets with two-hour parking restrictions: namely, Resolution No. 2015-36 rather than Resolution No. 2009-62 (which had been rescinded by Resolution No. 2014-21, which was itself rescinded by Resolution No. 2015-36). That is fine, but doesn’t the new resolution also need to rescind the erroneous two-hour parking resolution that was adopted on February 9th: Resolution No. 2016-30? That is, doesn’t the new resolution need to rescind both Resolution No. 2015-36 and Resolution No. 2016-30? Otherwise the unrescinded resolution from February 9th will coexist with the new one. [Note: the catch-all expression of ―All resolutions or parts thereof, in conflict with this resolution are hereby repealed‖ (used in the next agenda item) might be considered, but it has its own problems since it implies parts of old resolutions live on, and the public (and staff) are hard pressed to know what parts of what those are.] 2. Similarly, in adopting the new one-hour parking restriction for Margaret Drive with Resolution No. 2016-31 on February 9th, was there some earlier one-hour parking schedule that needed to be rescinded? If so, it is not mentioned. Or does the City not have a comprehensive schedule of streets with one-hour restrictions, but just a rag-tag collection of one-off resolutions (which may actually be a better approach)? 3. One might also wonder why two resolutions are required, and this could not have been accomplished with one? 4. In the proposed Resolution No. 2016–36 of Attachment A, since the parking restrictions around Newport Harbor High are spelled out in the proposed ordinance (which presumably takes precedence over the resolution), it seems both silly and unnecessary to try to repeat the list in the resolution. Why does the proposed resolution not simply say in Section 2 that two-hour restrictions apply as specified in NBMC Subsection 12.68.060.B? February 23, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 Item 5. Integration of City Council Policy F-5 (Purchasing Authority for Goods and Materials) and F-20 (Contracts with Former City Employees) into City Council Policy F-14 (Authority to Contract) I find in extraordinary that this potentially significant change to important pieces of the City’s financial policy was not vetted by its Finance Committee, but is instead being presented by staff for rubber-stamp approval on the Consent Calendar. It also seems extraordinary that staff has not seen fit to provide the Council or public with copies of two existing policies that the Council is being assured can be repealed because they have been integrated into the proposed one. In my view the current status and effectiveness of each of the three current policies should be vigorously debated by the Finance Committee before any consolidation is attempted. Among the most serious problems I am aware of is the contracting authority given the City Attorney, when his only role in contracting under the Charter is to verify the legal correctness of contracts (see Sec. II of the proposed policy) and to defend the City when contracts go awry. Yet under the existing and proposed policy he is given the authority to write, review and award contracts entirely on his own, with almost no transparency and with no clear dollar limit. I also believe on-call contracts have morphed into something quite different than was originally intended (which I believe was to cover thinks like incidental repair or maintenance costs). They now potentially appear to allow no-bid arrangements with selected friends that cumulatively far exceed any intended dollar limits. So I think this matter should, at this time, be rejected by the Council and referred to the Finance Committee. But that said, regarding the redlined proposal starting on page 5-13: 1. I am pleased to see staff acknowledges (in Sec. II and the staff report) that it has no contracting authority without the consent of the Council, either through the Council setting money aside for a purpose in the budget, or through explicit action. However, precisely what has been approved in the budget is rarely clear to the public and I have noticed that even the Council seems to rely on staff to tell it, after the fact, whether it set money aside for various specific purposes when it approved the line items. 2. In Section III.A.1 staff appears to have not just consolidated, but modified the language, making it less clear what has to be approved in the budget. It is also interesting the City Manager is given explicit authority to sign contracts in which the City receives money. It is unclear if anyone else is being given that authority. 3. In the final lines on page 5-14 it is unclear why what is apparently an existing reference to ―Purchasing Procedures‖ has been deleted. 4. In Section III.A.3, at the top of page 5-15, the City Attorney has been distinguished from the City Manager and Department Directors, which is consistent with the City Charter. It February 23, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 might be noted, however, that the City Clerk is also an intentionally separate entity reporting directly to the City Council, but, whether intentionally or not, she apparently has no contracting authority. As to whether the City Attorney should be similarly limited, at the end of City Charter Section 602 the people explicitly require the City Council to manage any legal services beyond those the designated City Attorney can personally provide, and give the Council no authority to delegate that responsibility to anyone else. Finally it might be noted that in the proposed policy the City Attorney, unlike the City Manager and Department Directors, has no clear dollar limit, but only a vague responsibility to ―keep Council informed.‖ And unlike with the City Manager and Department Directors there is no clear limit on how far the City Attorney’s purported unlimited contracting authority can be delegated down within his office. Finally, as to the City Attorney’s Charter-required duty to ―Approve the form of all contracts made by and all bonds given to the City, endorsing his or her approval thereon in writing,‖ that has in recent times been reduced to a series of often illegible scribbled initials whose significance is known only to City Attorney’s Office insiders. 5. What appears to be a suggested new addition to Section III.B.1 reminds us that the policy appears to give staff no guidance as to the acceptable maximum term of City contracts. 6. Section IV.B at the bottom of page 5-17 has what appears to be extensive new language. It is unclear where this comes from and if it has been vetted by anyone. 7. With regard to Section IV.E.1 on page 5-18, as indicated above, it would appear on-call contracts can evolve into vehicles for awarding succession of contracts, without bidding or transparency, to friends that cumulatively have no limit on the dollar amount. 8. It is doubtful that Section IV.F, apparently copied verbatim from existing Policy F-20, has ever been workable or actively enforced. When contracting with a large corporation, does the City really check that no former City employee works somewhere within that corporation? How would they even know? 9. Section V.A. at the top of page 5-20 may not be fully consistent with the City Clerk’s Charter-required duty to ―Maintain separate books, in which a record shall be made of all written contracts and official bonds‖ (Charter Section 603(c)). Item 6. Resolution No. 2016-33: Adopting Goals and Priorities for 2016; Proposed Work Plan My recollection is this item was presented at the end of the January 23, 2016, Council Planning Session, and although it was publicly introduced, it was not much discussed at that time. Since the City Charter places power with the Council as a collective body, the full Council may wish to further consider whether they wish to endorse all the items in this list, apparently privately developed by the Mayor and City Manager. It might be noted that although the resolution refers to ―Exhibit A‖ the attachment appears to call itself ―Exhibit 1.‖ Also, although it is clear from the resolution, since the City usually works February 23, 2016, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 in fiscal years, it would be helpful if in the title line of the exhibit it emphasized that it is a ―Goals/Work Plan for Calendar Year 2016.‖ Otherwise, some of the quarters in the ―Timing‖ column would already be past. Item 13. Update on Water Use and Conservation Efforts January 2016 In this second monthly update on the City’s drought reduction efforts, it’s good to see usage amounts provided for the various ―Account Types‖ shown in the table at the bottom of page 13- 2, although as best I can tell the unit is not identified. I suspect the table lists use in Hundred Cubic Feet (HCF), the billing unit used on the Municipal Services bill. What strikes me as sad about the table is that rather than leading by example, as the City had promised its ratepayers it would do last summer, the City is itself achieving far less cutback than the private ratepayers, some of whom it is now citing and fining for not achieving the mandated reductions: a 2% drop at City buildings compared to roughly 20% in the private ones, and a 13% reduction in City irrigation compared to the 49% in private open space. The other sad thing is I seem to recall the City saying that if private ratepayers could cut back by 25%, the City, by imposing greater restrictions on itself, could pick up the slack and bring the total to the state-required 28% target. It now turns out that at least for the month of January, the entire City-controlled use in 2013 (―City Facility‖ + ―City Sprinkler‖) was just 3% of the City’s total water budget. In other words, if private ratepayers were able to cut back by 25%, the City would have to have reduced its own water use to zero to bring the average to 28%, and I have reason to believe the 3% figure is fairly accurate throughout the year. The City now tells us it was already cutting back in 2013, so additional cutbacks are difficult. But that is true of many of the private ratepayers as well, and more importantly – even if one discounts the pathetic actual reductions in municipal water use – the promise that the City could even theoretically cut back enough to bring the average to 28% (when private ratepayers cut back just 25%) should have been known to be false, unfounded and unrealistic. Finally, I would like to reinforce the non-agenda comment I made at the February 9th Study Session: according to page 2-6 of the City’s most recent Urban Water Management Plan (2010), about 6% of all the water the City purchases disappears ―unaccounted for‖ by any of the meters monitoring its use. While according to the UWMP the destination of a bit of this is known (firefighting and flushing fire hydrants), it appears the bulk is not, and the ―unaccounted‖ water amounts to several times the amount of all the non-irrigation use in all the City’s schools, fire stations, libraries and other government buildings combined. This may just be a mathematical imbalance between the meters, but if the water is truly leaking (for example from the bottom of the City reservoirs), it would seem correction of that problem would be important if it is economically feasible.