March 11, 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 1. Minutes for the February 25, 2025 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in strikeout underline format. The page number refers to Volume 66.
Scarbrough’s previous comments regarding her and Mr. Klobe’s GPAC appointments and thought the discussion regarding the Council Aviation Ad Hoc Committee (Item 5) was less than enlightening.”
to distortions and site sight line issues as the screen size increases.”
the screen. In response to his question, Public Works Director Webb clarified that 0.8% of the 10% of the contingency allowance is correctly stated and most of the major project items are complete.”
[note: Even after deleting the second “of the,” this could be read as “0.8% of 10%” =
0.08%. It would be clearer to say “Director Webb clarified that the 0.8% of cost overrun compared to the 10% of the contingency allowance is correctly stated.”]
Kahe Krahe thanked Public Works Director Webb for his presentation, expressed concerns about the largest screen size, and thought the 11-foot by 19-foot screen is a good compromise and the Foundation would agree to pay for half the cost.” Item SS5. Capital Improvement Program (CIP) Early Look
It is very helpful that the slides for this presentation were posted with the agenda on March 6, giving time for review prior to the meeting.
Regarding Slide 17 (the first of two labeled “WATER”), there seems to be a problem with the dollar amounts reported for the “Cathodic Protection Program.” A $110,000 re-budget added to a new allocation of $2,000,000 would not yield a total of $224,000.
Item III. PUBLIC COMMENTS
I am all for public comments, but according to the agenda sequence specified on page 2 of the currently-adopted City Council Policy A-1, this item seems to have been intended primarily to provide the required opportunity for the public to comment on the closed session agenda items.
However, with the closed session now appearing at the end of the agenda, it fails at that purpose since few people attending the meeting would guess from the announcement that this is opportunity to comment on the closed session topics, nor will they know there will be additional opportunities to comment on agenda items, or if commenting at this time will preclude them from commenting later.
Received After Agenda Printed
March 11, 2025
Written Comments
March 11, 2025, City Council agenda comments - Jim Mosher Page 2 of 6 In fact, although titled differently, the text under this item is identical to that appearing under “IX.
NOTICE
TO
THE
PUBLIC”
which
makes
it
appear
more
of
a
notice
than
an
invitation
to
comment.
If that is its purpose, it would seem the notice should be given before Item “II. CURRENT BUSINESS”
since
the
public
must
be
allowed
to
comment
on
at
least
some
of
those
items
(for
example,
Item
“SS5.
Capital
Improvement
Program
(CIP)
Early
Look”),
yet
will
not
have
been
told
what
the
rules
are
prior
to
their
opportunity.
Item 4. Ordinance No. 2025-3: Designating a Portion of Corona del Mar as
a
Safety
Enhancement
Zone
and
Expanding
West
Newport
Safety
Enhancement
Zone
to
Include
Memorial
Day,
Fourth
of
July,
and
Labor
Day
Holidays
The description of the boundaries of the proposed Corona del Mar Safety Enhancement Zone were
revised
shortly
before
the
introduction
of
this
ordinance
was
introduced
on
February
25. While the more precise definition (similar to the Police Department Reporting District 44 illustrated
in
Figure
1 on
page
4-2
of
the
staff
report)
proposed
on
page
4-9
of
the
ordinance
is
appreciated,
it
is
puzzling
that
both
mention
the
intended
zone
“
shall
include
Pirate's
Cove,
Corona
del
Mar
State
Beach,
and
Little
Corona
Beac
h,”
but
do
not
mention
China
Cove
Beach,
even
though
China
Cove
Beach
is
clearly
within
the
area
described
by
the
text.
Additionally, it is not clear the City has a clearly defined boundary to “Little Corona Beach,” which,
according
to
Figure
1 of
the
staff
report,
is
in
the
neighboring
Police
Department
Reporting
District
45. It
is
a
term
that
does
not
seem
to
appear
anywhere
else
in
the
Municipal
Code.
All this said, I continue to think the increased days and areas of the proposed safety enhancement
zones
place
an
increased
burden
on
City
staff
and
citizens
that
is
not
justified
by
sufficient
evidence
of
a
need
for
the
action.
Item 5. Ordinance No. 2025-4: Amending the Newport Beach Municipal Code
to
Update
Administrative
Procedures
Related
to
Good
Cause
Determinations
and
the
Extension
of
Deadlines
for
Short-Term
Lodging
Permits
Although not clearly explained in the staff report, I believe this ordinance is being proposed as an
administrative
alternative
to
persons
making
appeals
to
the
City
Council.
Setting aside the merits of that choice,I have two problems with the proposed implementation. First, a significant operative part of the scheme is buried in a portion of the ordinance that will not
be
codified,
as
a
result
of
which,
most
of
the
public
reading
the
proposed
code
(pages
5-21
and
5-22)
will
not
know
it
exists.
Specifically,
the
proposed
ordinance
contains
an
(uncodified)
Section
7 saying
“
The
Finance
Director
is
hereby
authorized
to
retroactively
extend
deadlines
as
provided
in
Sections
2 through
5 of
this
ordinance
upon
a
determination
by
the
Finance
Director
that
good
cause
has
been
shown
to
do
so
.”
March 11, 2025, City Council agenda comments - Jim Mosher Page 3 of 6 Not only would this apply, contrary to what it says, to only Section 2, 3 and 5 (not 4), but I can think
of
no
reason
this
should
not
be
included
in
the
codified
text
of
those
sections.
To
accomplish
that,
in
the
three
sections
where
it
is
proposed
to
appear,
1 the
following
phrase
could
simply
be
modified
to:
“...
the
Finance
Director
determines
that
good
cause
has
been
shown
for
extending
the
deadline, which extension may be retroactive.”
2 The code would then be clearer and there would be no need for the uncodified Section 7. My second problem is that while it may seem efficient to insert a definition of “good cause” that will
apply
to
the
entire
municipal
code,
rather
than
just
to
short
term
lodging
matters,
I
don’t
think
it
is
wise.
The reason it is not wise is that what “good cause” means depends on the context, and the conditions
that
constitute
“good
cause”
for
missing
a
short
term
lodging
permit
deadline
may
be
quite
different
from
what
constitutes
“good
cause”
in
some
other
circumstance,
such
as
terminating
an
employee
or
a
permit
“for
good
cause.”
A search for the phrase “good cause” indicates it appears 27 times in 19 different chapters of our Municipal Code, including, already in Subsection 5.95.030.F. Many of those appearances suggest the intent was for the phrase to have a very context-specific intent. Adding a general definition
that
purports
to
apply
“
Unless
a
more
specific
definition
is
provided
or
the
context
in
which
they
are
used
clearly
requires
otherwise
”
seems
only
to
add
confusion
and
uncertainty.
It would seem much better to add a STL-specific definition of “good cause” to Section 5.95.010 (Definitions) of the Short Term Lodging Permit chapter, which would clarify how the phrase is intended
to
work
in
the
STL
chapter,
but
not
alter
its
(possibly
quite
different)
intent
in
the
others.
As to the merits of this ordinance,I believe the deadlines were enacted to emphasize that having a
short
term
lodging
permit
is
a
privilege,
not
a
right;
and
a
limited
privilege
for
which
there
is
a
long
waiting
list
of
possibly
more
responsible
people
seeking
the
privilege.
While the proposed code specifies the circumstances under which the Director “ may ” excuse a missed
STL
permit
deadline,
it
is
not
at
all
clear
as
to
the
circumstances
under
which
he
or
she
should
choose
not
to
do
so.
For
example,
there
may
be
complaints
that
the
applicant,
although
having
“good
cause”
to
miss
the
deadline,
is
also
a
bad
operator
for
whom
leniency
should
not
be
considered.
And
those
circumstances
might
not
surface
without
a
more
formal
public
hearing.
That
would
argue
for
an
appeal
to
the
Council
being
a
better
solution
in
what
seem
to
be
the
rare
circumstances
in
which
deadlines
are
missed.
Regarding defined words in general in our Municipal Code, it should be noted that, at present, readers
have
no
easy
way
to
tell
if
they
are
encountering
a
word
with
a
special
definition
within
the
code
or
one
that
is
intended
to
be
read
with
its
common
meaning.
A solution to this is for the vendor codifying the ordinances to display the defined words in a special
typeface
(such
as
italics
or
underlined)
and
provide
links
to
the
definitions.
2 Subsection
5.95.030.F
already
gives
the
Director
authority
to
extend
certain
STL
deadlines,
but
does
not
say
that
authority
is
retroactive.
Nothing
in
the
present
ordinance
changes
that.
Was
this
intentional?
1 To be sure, while this phrase appears in Section 3 (on page 5-13) and Section 5 (on page 5-14), in Section
2 (on
page
5-12)
it
appears
as
“
to
extend
the
deadline
”
instead
of
“
for
extending
the
deadline
.”
I
can
think
of
no
reason
for
the
different
phrasing.
March 11, 2025, City Council agenda comments - Jim Mosher Page 4 of 6 Here is example, from the Snohomish County (WA) code, which is maintained by the same vendor as ours, but using a slightly different platform:
Pointing the mouse at the words with dotted underlines pops up a copy of the section defining the
term
(while,
as
in
our
code,
clicking
on
a
word
with
a
solid
underline
links
to
the
referenced
code
section).
Item 6. Resolution No. 2025-11: Waiving Section A.1. of City Council Policy
B-13
to
Allow
for
Alcoholic
Beverages
at
Charity
Polo
Event
Held
at
Peninsula
Park,
and
Repeal
of
Resolution
No.
2024-14
Since Newport Beach attempts to enforce an absence of alcohol on its beaches, I do not think it sets
a
good
example
to
allow
alcohol
at
an
event
in
a
beach-adjacent
park.
That
appears
to
set
a
double
standard.
That said, if a majority of the Council wants to allow this, I don’t see the need for a new resolution
or
to
repeal
the
former
one.
The existing Resolution No. 2024-14 appears to grant an indefinite, blanket waiver for the “Charity
Polo
Event
held
at
Peninsula
Park.”
While
it
references
the
“Newport
Beach
Foundation”
as
the
most
recent
and
likely
future
operator,
it
does
not
seem
limited
to
that.
The proposed new Resolution No. 2025-11 names “Celebrity Foundation for Children” (tax filings) as the expected operator, but, again, the existing resolution does not seem restrictive as to who the applicants or operators might be and is even less clear than the present one about the
waiver
being
indefinite.
If the intent is that the future validity of the waiver be contingent upon “the Event” being a charity event,
then
I
think
it
should
say
so.
And since the request is only for service of beer and wine, I think the resolution should include that
limitation.
Both of those conditions would improve upon what is proposed.
March 11, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 Item 9. Approval of On-Call Maintenance and Repair Services Agreement
for
Roll-Up
Doors
and
Gates
with
Excel
Door
&
Gate
Company,
Inc.
The staff report fails to mention that Excel Door & Gate Company previously held this contract, and that as Item 6 at its May 9, 2023 meeting, in anticipation of that contract ending, it selected South Coast Industrial Door, Inc. as the contractor for this service through May 1, 2028. The City Clerk’s database of contracts show the one with South Coast Industrial Door, C-9286-1, as still active, and, indeed, to have been updated by the City Manager with new billing rates on August 30, 2024. Is the new contract with Excel Door & Gate intended to replace the one with South Coast Industrial
Door?
Or
to
be
in
addition
to
that?
Item 10. Amendment No. One to Purchase and License Agreement with
T2
Systems
Canada,
Inc.
for
Multi-Space
Pay
Stations
It would seem reasonable to ask if, when the existing pay stations were originally purchased, there
was
an
expectation
they
would
only
last
for
ten
years?
And
if
the
new
“more
reliable”
ones
are
expected
to
have
any
longer
useful
life?
Item 12. Cultural Arts Grants Fiscal Year 2024-25 The Council may notice a similarity in the grants recommendations from year to year. For example, all six of the recipients approved as Item 12 at the February 27, 2025, meeting are on the list again this year, and for very similar amounts. This year is slightly unusual in that there are two new recommendations: Emerald Magic Events Inc
and
the
Newport
Theatre
Arts
Center.
Of those, it might be noted that, independent of these grants, Emerald Magic Events has a March 22 event at OASIS very similar to what is described, with tickets ranging from $59 to $79 (with discounts for couples and children under 17). In that regard, it might be noted that the underlying City Council Policy I-10 (page 12-5) does not appear
to
place
any
restrictions
on
how
the
grants
will
be
used,
and
it
is
unclear
if
the
Commission
has
done
so.
For
example,
how
expensive
attendance
at
the
proposed
events
might
be
and
whether
the
grants
would
be
used
to
reduce
ticket
costs
or
for
some
other
purpose.
Indeed,
it
seems
completely
open-ended
as
to
whether
the
grantees
would
even
be
presenting
a
program
or
offering
some
other
kind
of
“service.”
Wouldn’t some clearer guidance be useful?
Item 13. Ordinance No. 2025-5: An Amendment Deleting Section 5 of Ordinance
No.
2022-8
Removing
Sunset
Date
of
April
21,
2025
This item seems an example of the unwisdom of enacting uncodified provisions to our Municipal Code. As best I can tell, no one reading NBMC Section 15.02.095 would have any hint that lurking in adopted Ordinance No. 2022-8 there is an April 21, 2025, sunset provision affecting something
in
(sub)
Section
105.3.4,
especially
since
there
is
not
even
a
footnote
to
that
code
March 11, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 mentioning the existence of Ordinance No. 2022-8. And according to the codifier’s Ordinance List, Ordinance No. 2022-8 has already been “Repealed by 2022-26.” Since Ordinance No. 2022-26 says it completed deleted and replaced Chapter 15.02, including (sub) Section 105.3.4, and in enacting the present provisions, itself appears to contain no sunset
language,
it
would
seem
to
me
that
a
sunset
clause
in
Ordinance
No.
2022-8
is
irrelevant,
and
nothing
is
about
to
expire.
In that case, no action is necessary, unless the current (sub) Section 105.3.4 enacted by Ordinance
No.
2022-26
is
different
from
the
one
the
Building
Official
sees
in
Ordinance
No.
2022-8
and
wants
to
continue
following.
As best I can tell, there is no difference, and no action is needed.
Item XVII. CLOSED SESSION The Brown Act requires the public be given an opportunity to comment regarding the items listed
under
this
heading
on
the
agenda
before
the
Council
considers
them.
Since the former opportunity for this public comment has been moved from its position immediately
preceding
the
closed
session
in
the
agenda
template
specified
in
City
Council
Policy A-1, it seems important for the Mayor to invite comment after the CIty Attorney has announced the closed session topics.