January 14, 2025, City Council Agenda Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( [email protected] ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III.B CONFERENCE WITH REAL PROPERTY NEGOTIATORS
This appears to be at least the tenth time a closed session has been announced for the Council to privately discuss “price and terms of payment” regarding public right-of-way adjacent to the identical properties, the first announcement having been as Item IV.A on February 23, 2021.
And the only change has been the initial “approximately 845 square feet” increasing to the “approximately 1,105 square feet” when it came back as Item IV.A on November 12, 2024.
And while the purpose of the announcement is, in theory, to invite public comment to guide the Council in its decision, at no time has there been any public disclosure of why a sale or lease is being considered. This may be contrasted with earlier, more transparent announcements, for example Item IV.C from July 26, 2011, where it was at least disclosed that “price and terms of payment” needed to be discussed “with respect to resolution of boundary dispute between Tidelands and Uplands.”
Why is public property in play adjacent to 929 Zurich Circle and 944 Via Lido Nord? Item 1. Minutes for the December 10, 2024 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in strikeout underline format. The page numbers refer to Volume 66.
their service and noted continued efforts to work with the Aviation Committee to have aircrafts flyer high aircraft fly higher, slower, and quieter.” [See video. “Aircraft” is recognized as a noun that does not require an “s” to make it plural, and Mr Bress did not add one. Similarly, he add “er” to “high” not “fly.”]
“His wife, Marin, administered the Oath of Office …”
“Former Mayor Will O’Neill administered the Oath of Office …” [Comment: I am not much of a believer in loyalty oaths, but it does seem reasonable for citizens to have some assurance those elected to office are committed to upholding the rules under which governments are expected to operate. Indeed, the first page of the official minutes of our City Council begins with Notary Public Clyde Bishop administering the Oath of Office1 to the five newly-elected trustees at their first meeting on September 3, 1906.
1 The oath, in Article XX, Section 3 of the California Constitution at that time consisted solely of: “I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faIthfully discharge the duties of the office of ___, according to the best of my ability."
Received After Agenda Printed
January 14, 2025
Written Comments
January 14, 2025, City Council agenda comments - Jim Mosher Page 2 of 6 Since then, through 2012, it seems to have been the invariable practice for the City Clerk to administer the oaths. However, in 2014, with the election of “Team Newport,” Orange County Superior Court Judge James E. Rogan administered the oaths. And after that, a variety of judges continued to perform this role with the exception of 2020, when former Mayor Evelyn Hart administered the oath to re-elected Council Member Brad Avery, and 2022, when former Mayor Steve Rosansky administered the oath to newly-elected Council Member Robyn Grant. This new practice of having the oath of office administered by private citizens who, whether
former
elected
officials
or
not,
do
not
seem
authorized
by
law
to
do
so,
2 seems
a
bit
like
attending
a
wedding
at
which
a
private
party
administers
the
vows
while
the
minister,
judge
or
government
clerk
sits
to
the
side
as
an
observer
rather
than
a
participant.
It seems strange to me. Is it a new trend?
3 ]
Item XIII. PUBLIC COMMENTS ON CONSENT CALENDAR Since I believe this may be a first in the City’s history, it seems noteworthy that the public portion of
the
current
agenda
contains
no
items
requiring
a
Council
decision
other
than
those
on
the
Consent
Calendar.
4 As a result those watching the meeting without access to the agenda will be at loss to know what,
if
any,
City
business
was
conducted.
It might be noted that Newport Beach didn’t always have a Consent Calendar.
And, as I have noted before, there is at least one other California city, Benecia, where the Mayor reads the titles of the items on the Consent Calendar so that the public at least knows what their Council is consenting to. There are likely others with similar practices. For example, in Del Mar, the City Clerk reads the consent calendar item titles. In both cases, not only the council members,
but
members
of
the
public
are
invited
to
pull
items
for
discussion
by
their
elected
representatives.
It
also
appears
other
cities
may
be
more
judicious
in
what
items
they
place
on
their
consent
calendar
for
approval
without
discussion.
It seems to me the consent calendar may be overused in Newport Beach, for it seems unlikely none
of
the
seven
Council
members
would
have
any
questions
about
any
of
the
items
on
the
Consent
Calendar,
or
that
all
would
agree
each
of
those
items
should
be
approved
exactly
as
presented.
As
a
result,
the
public
is
left
with
the
impression
that
information
is
being
exchanged,
4 I
recall
one
or
two
previous
agendas
where
all
the
business
items
were
on
the
consent
calendar,
but
I
believe
the
agenda
included
either
a
study
session
or
suggestions
for
future
agenda
items,
where
Council
input
was
solicited.
3 For a fee of $125, the Santa Cruz County Clerk offers to appoint private citizens 18 or older as “Deputy Commissioner
of
Marriage
for
a
Day,"
authorized
to
officiate
at
a
specified
wedding
anywhere
in
California
(as
do
Los Angeles County, Nevada County, San Diego County and likely more). At one time ,
the
Orange
County
Clerk-Recorder
offered
this
service,
as
well.
It
is
unclear
if
he
still
does.
2 In 2022, Krista Weigand administered the oath to newly-elected Council Member Erik Weigand, but she did
so
as
a
Trustee
of
the
Newport-Unified
School
District.
The
law,
Government Code Sections 1360 -
1369, is ambiguous, saying only the oath must be taken “before” a person authorized to administer oaths.
January 14, 2025, City Council agenda comments - Jim Mosher Page 3 of 6 and decisions made, outside public view. In other words, that the public’s business is not being done
in
public.
Item 4. Resolution Nos. 2025-2 and 2025-3: Amending the General Plan
Advisory
Committee
and
the
General
Plan
Update
Steering
Committee
This seems to me to be an example of the overuse of the consent calendar. As the staff report explains, this is on the agenda because, pursuant to City Council Policy A-1, at the November 19, 2024, meeting, the previous Council voted, without discussion, to bring the subject back at a future
meeting
“
for
discussion
and/or
action
.”
Yet,
staff
has
placed
it
on
the
consent
calendar,
where
a
specific
proposal
that
has
never
been
publicly
discussed
is
expected
to
be
approved,
again
without
any
discussion.
One might think that, at a minimum, before voting the Council members would want to ask about
the
status
of
the
General
Plan
Update
and
its
expected
timeline.
If
they
did
so,
they
might
learn
that
the
entire
process
is
expected
to
be
completed,
and
the
advisory
committees
dissolved,
before
the
end
of
the
current
year.
Given that context, establishing a procedure by which the advisory committees’ membership will be
reassessed
each
February
seems
strange
–
because
there
will
be
no
future
Februaries
other
than
the
coming
one.
As to changing the composition this February, as a current GPAC member, but commenting as a private
citizen,
I
have
seen
no
reason
offered
for
what
seems
both
unnecessary
and
disruptive.
While
the
process
to
date
has
been
a
very
imperfect
one,
and
could
have
been
better,
changing
the
participants,
but
not
the
structure,
in
the
final
months
hardly
seems
likely
to
produce
a
better
result.
On a more technical note, the Council may wish to know how the City Clerk plans to advertise the
unscheduled
vacancies
and
how
long
the
application
period
will
be
left
open.
Finding
20 to
30 new members will be difficult, and Government Code Section 54974 requires only that at least 10 working days elapse between the posting and the appointment, but does not seem to say
how
long
the
invitation
to
apply
needs
to
be
“open.”
As to the existing members, there seems to be a discrepancy between the proposed resolutions,
whose
Attachment
A’s
say
“
Members
who
are
in
good
standing
at
the
time
their
term
has
expired
are
eligible
for
reappointment
and
need
not
reapply
”
and
the
staff
report,
which
says
“
As
drafted,
if
a
current
GPAC
or
GPUSC
member
is
in
good
standing
with
an
application
on
file
that
is
no
more
than
two
years
old
at
the
time
of
City
Council’s
appointments, there would be no need to submit a new application .” The City’s GPAC page indicates most of the current members were appointed on November 15, 2022, and its GPUSC page indicates all three members were appointed on April 12, 2022. All of these people’s applications would now be more than two years old, and they would need to reapply according to
the
staff
report,
but
not
according
to
what
would
seem
to
be
the
plain
language
of
the
resolutions.
Which
is
correct?
January 14, 2025, City Council agenda comments - Jim Mosher Page 4 of 6 Additionally, the Council members may wish to discuss whether the rules for achieving geographic
and
institutional
diversity
in
appointments
to
the
GPAC
detailed
in
the
table
on
page
4-6
of
the
staff
report
is
still
appropriate,
and
how
the
table
should
be
used.
In
particular,
many
applicants
will
have
multiple
affiliations
and
it
is
not
clear
how
the
limitations
to
“not
more
than
one”
from
each
“sample”
is
intended
to
apply
to
them.
As to the substance of what the committees do, there is an existing uncertainty in that the GPAC is
instructed
to
make
recommendations
to
the
GPUSC,
but
there
is
no
provision
as
what
the
GPUSC
is
supposed
to
do
with
them.
Are
they
obligated
to
pass
them
on
to
the
City
Council?
Or
does
the
GPUSC
have
veto
power
over
the
GPUSC
recommendations?
Item 5. Resolution No. 2025-4: Approving an Amendment to the Key and
Management
Compensation
Plan
The staff report (page 5-1) implies the maximum bonus available for scholastic achievement is
8.5%,
however
the
actual
proposed
language
on
page
5-6
shows
a
7%
bonus
for
achieving
the
BA/BS
level,
and
a
separate
8.5%
bonus
for
the
MA/MS/JD
level
without
making
it
clear
if
members
can
qualify
for
only
one
or
for
both.
Will
that
be
a
problem?
Also shouldn’t there be a requirement that the achievement is in a field related to the employee’s
work?
More generally, the amendment is offered to the Council for approval as a snippet without being able
to
see
the
context
in
which
it
will
occur
or
the
prior
language
it
replaces.
Compounding
that
problem,
the
public
does
not
seem
to
be
able
to
easily
see
or
review
the
current
Key
&
Management Compensation Plan. Instead, on the HR Department’s MOUs & Benefit Summaries page one finds a 2022 version and what seem to be 12 adjustments to it, some of which are not machine searchable, making it particularly challenging to piece together what the current plan is. However, as best I can tell, the (non-machine-readable) Sixth Amendment made Policy Safety Key & Management employees eligible for the same scholastic achievement benefits
as
members
of
the
Police
Management
Association,
with
language
essentially
identical
to
that
for
Fire
Safety
Key
&
Management
employees.
What
was
wrong
with
that?
Is
Fire
Safety
Management
eligible
for
a
larger
benefit
than
Police
Safety
Management?
If
so,
how
large
is
the
change?
And
why
wouldn’t
Police
Management
want
the
same
benefit?
The report does not seem very transparent.
Item 6. Resolution No. 2025-5: Creating the Ad Hoc Council Policy Review
Committee
This is another case where, rather than being on the consent calendar, one might think the Council
members
would
want
to
discuss
the
matter
to
give
direction
to
the
committee
as
to
the
scope
of
their
assignment,
and
possibly
as
to
who
should
be
on
it.
Although I cannot find it mentioned in either the staff report or the proposed resolution, the last comprehensive review of the Council Policy Manual took place in 2018, and culminated in the massive 338-page Item 18 on the August 8, 2017, agenda, making changes that neither the
January 14, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 public nor the Council members not on the committee had time to thoughtfully consider or review.
I would strongly recommend the present committee be asked to review the policies in more digestible
pieces,
and
through
a
more
public
process
–
including,
for
example,
presentation
at
a
study
session
at
a
meeting
prior
to
the
meeting
at
which
adoption
is
proposed.
Item 14. Memorandum of Agreement with the City of Long Beach Acting
By
and
Through
the
Port
of
Long
Beach
Board
of
Harbor
Commissioners
Authorizing
Disposal
of
Lower
Bay
Dredged
Material
Into
the
Port’s
Pier
G
Slip
Fill
Project
Part (2) of Condition 8 on page 14-8, causing the Agreement to terminate on “ the commencement
of
the
placement
of
the
Newport
Bay
Material
at
a
site
other
than
the
Project
”
seems
slightly
strange.
Does
this
mean
that
if
any
of
the
“
approximately
225,000
cubic
yards
of
material
from
the
Lower
Newport
Bay
channels
”
identified
as
“
Newport
Bay
Material
”
is
found
to
be
suitable
for
disposal
outside
the
Port
of
Long
Beach,
and
disposed
of
at
some
alternate
location,
the
Port
will
refuse
to
accept
any
more?
Also, if the Port of Long Beach location becomes unavailable before all the unsuitable material has
been
disposed
of,
does
the
City
have
a
plan
to
construct
a
smaller
CAD
than
was
originally
planned?
And,
finally,
how
does
this
Agreement
affect
the
private
homeowners
who
were
promised
use
of
the
CAD?
Item 15. Planning Commission Agenda for the January 9, 2025 Meeting
Those new to the Council may be wondering why they are receiving a report on the actions of the
Planning
Commission
and
not
of
any
of
the
City’s
other
boards
or
commissions.
Originally,
this
was
not
on
the
consent
calendar,
but
scheduled
as
a
full
discussion
item.
And
its
purpose,
then
as
now,
was
to
apprise
Council
members
of
the
Planning
Commission’s
decisions,
so
they
would have a chance to call for review, as allowed, currently, by Municipal Code Chapter 20.64. 5 In the present case, the Council is receiving reports of two Planning Commission decisions, both
of
which
seem
problematic
to
me.
In the first, the PC approved remodeling of a warehouse as a fitness training facility for exclusive
use
by
students
of
a
neighboring
high
school,
even
though
the
property
is
designated
for
industrial
uses
and
and
other
uses
“ancillary”
or
“accessory”
to
the
primary
industrial
uses.
While,
as
staff
indicated,
fitness
facilities
are
allowed
“by
right”
in
this
area,
the
assumption
is
they
will
be
serving
the
needs
of
the
primary
industrial
users.
A
facility
serving
exclusively
students
from
a
neighboring
district
is
clearly
not
supporting
the
industrial
uses.
Staff
seems
to
be
reading
“ancillary”
or
“accessory”
not
as
“supporting,”
but
rather
as
anything
that
occupies
5 One might still wonder why the Council does not receive similar reports regarding decisions by the Harbor
Commission,
since
there
is
a
parallel
call
for
review
provision
in
NBMC
Chapter 17.65, Or for
decisions
of
the
Parks,
Beaches
and
Recreation
Commission,
even
though
the
opportunity
to
review
is
found
only
in
Council
Policies.
January 14, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 less than a majority of the district. To me, that seems clearly not to have been the intent of the code.
In the second hearing, the PC had to deal with a tennis club consisting of two separately-owned parcels,
but
originally
approved
and
allowed
to
be
subdivided
only
under
the
assumption
they
would
be
operated
together.
Without
making
any
changes
to
that
existing
permit
for
the
two
parcels
to
operate
together,
and
without
seeing
any
evidence
of
consent
by
the
owner
of
one
of
the
parcels,
the
PC
approved
a
staff-proposed,
new,
separate
permit
for
the
second
parcel,
allowing
it
to
be
used
as
a
separate
pickleball
facility.
The
result
seems
to
be
both
to
have
caused
the
other
parcel
to
become
landlocked,
and
to
have
transferred
to
it
all
the
entitlements
of
the
original
permit.
Additionally,
it
seems
quite
possible
the
approval
will
create
land
use
incompatibilities,
with
noise
from
the
pickleball
activity
disturbing
future
guests
at
the
neighboring
hotel
and,
possibly,
residents
across
Jamboree
Road
at
Sea
Island.
I
took
some
grief
from
the
Commissioners
for
suggesting
City
staff
did
not
have
the
expertise
to
independently
verify
the
conclusions
of
the
applicant
noise
analysis
(which
nowhere
addressed
the
highly
impulsive
nature
of
pickleball
noise),
but
I
do
believe
that
to
be
the
case.
Council members may wish to consider calling one of both of these decisions up for review.
Item 16. Confirmation of Nominations to Fill an Unscheduled Vacancy on
the
Parks,
Beaches
&
Recreation
Commission
Since the Council is being asked to “confirm” just two nominations, it would have been helpful to at
least
list
the
names
of
any
other
citizens
who
might
have
applied.
It
would
seem
they
deserve
at
least
that
minimal
recognition,
6 and
other
Council
members
may
wish
to
propose
adding
some
of
the
names
from
that
list.
Item 17. Confirmation of Mayor Joe Stapleton's Appointments Since this item is scheduled to be adopted without discussion, it presumably involved some non-public
discussion
of
who
wanted
to
serve
on
what
committees.
While
that
is
not
necessarily
illegal,
it
would
seem
like
a
discussion
that
could
better
have
taken
place
at
the
public
meeting.
That said, I have, for a number of years, been puzzled by the continuing appointment of a Council member as chair of the Environmental Quality Affairs Committee, especially considering that committee has not met since August 16, 2016 (and before that, on November 20, 2014) and currently has no members other than the Council appointee (of which there are actually supposed
to
be
two).
I see from the minutes of the similar Item 12 from January 10, 2023, that I raised the same puzzlement, and that year’s appointee, Mayor Blom, volunteered that “ as Chair of EQAC, he will assess the future of EQAC .” But as Item 11 on January 9, 2024, he was reappointed as Chair, and, as I noted then, one might wonder how long the assessment will take? One continues to wonder. 6 In other cities, such as Costa Mesa and Laguna Beach, I believe the full council publicly interviews all the
applicants
before
making
appointments.