March 25, 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 March 11, 2025 City Council Meeting The passage shown in italics below is from the draft minutes with a suggested correction shown in strikeout underline format. The page number refers to Volume 66.
HOA meeting, the trash interceptor ribbon cutting, the OCIACC Nowruz Spring Festival, and the Fire Station 2 demolition party and extended congratulations to Bob Olsen Olson.” Item 3. 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
This matter involving who should be authorized to grant exceptions to STL permit deadlines, and for what reasons, is unusual in that parts of it have had fairly extensive Council discussion even though it has never been publicly announced on any agenda, including this one, as a matter for such discussion.
The proposal started as part of Item 3 on the October 8, 2024, consent calendar (along with an unrelated Finance Department matter about demolition debris hauling), from which it was pulled for a discussion that was continued to a future planning session.
That discussion was indeed continued (see video) at the Council’s February 1, 2025, planning session, and a person hoping for relief from the STL deadlines was apparently even expected to plead their case to the Council. However, nothing on the agenda reminded the public that such a discussion by the Council was planned for that day.
In the February 1 discussion, Council members seemed to agree that what qualified as “good cause” needed to be defined (which it had not been in the October 8 offering). But curiously, the example of an aggrieved person, who turned out to be a professional asset manager who had apparently failed to properly manage his client’s asset rather than a property owner who had innocently missed a deadline due to some special hardship, never explained the unusual circumstances that had caused him to miss a deadline (see video), nor did the Council discuss whether they would agree his circumstances constituted “good cause” for relief or, more generally, how they thought “good cause” should be defined.
The matter returned as Item 5 on the March 11 consent calendar, where a definition of “good cause” was proposed, but not discussed, although I provided extensive written comments.
As a policy matter, I think it is good for the City to have flexibility in the administration of its regulations. However, in the case of STL permits, since having one is a privilege rather than a right, and there is a long waiting list of people not presently having a permit, but hoping to get one, I would think leniency for those who have the permits but fail to follow the rules, including Received After Agenda Printed
March 25, 2025
Written Comments
March 25, 2025, City Council agenda comments - Jim Mosher Page 2 of 6 failing to meet deadlines, should be very limited. I would also think that in evaluating whether a missed
STL
permit
deadline
should
be
excused,
factors
in
addition
to
the
existence
of
good
cause
should
be
considered,
such
as
whether
the
property
has
been
the
subject
of
complaints
or
other
enforcement
actions.
The
Council
might
also
want
to
include
in
the
ordinance
examples
of
circumstances
which
staff
should
not
regard
as
“good
cause”
or
limit
how
long
after
a
missed
deadline
a
request
for
extension
can
be
entertained.
It is, therefore, disappointing that on March 11 the Council did not publicly discuss whether the rather
broad
definition
offered
by
staff
meets
their
expectations
(and
how
it
would
be
applied
to
the
unknown
circumstances
of
the
asset
manager
at
the
February
1 Planning
Session)
–
or
whether
there
should
be
a
very
narrow
definition
provided
for
staff
to
use
to
which
a
mechanism
could
be
added
for
more
problematic
claims
to
be
referred
on
appeal
to
the
Council.
Even assuming the Council members individually reviewed the proposed definition of “good cause”
for
missing
an
STL
permit
deadline,
and
found
it
met
their
expectations,
I
continue
to
think
the
proposed
ordinance
is
defective
for
two
reasons.
Making Definition Applicable to Entire Municipal Code is a Bad Idea First, rather than placing the definition of “good cause” in the chapter of the Municipal Code regarding
STL
permits,
to
which
it
is
intended
to
apply,
staff
proposes
putting
it
in
a
section
that
will
make
it
applicable
to
the
entire
Municipal
Code.
This a bad recommendation, or, at the very least, a decision that needs further review. As I pointed out in my March 11 written comments, the phrase “good cause” appears 27 times in 19 different
chapters
of
the
code,
in
each
of
which
it
may
have
been
intended
to
be
understood
differently.
Inserted
after-the-fact
a
definition
that
may
or
may
not
have
been
intended
is
not
wise.
A recent example of the problems this can cause was the entry of Pacaso fractional ownership homes into the Newport Beach market. As indicated in my comments on that subject on pages 12-44 & 45 of the March 14, 2023, Council agenda packet, since 1982, with adoption of Ordinance No. 82-14, Newport Beach had perfectly clear regulations in its Zoning Code (Title 20 of the Municipal Code) intended to prohibit such activity (time-share arrangements in residential areas).
However,
the
original
language
used
the
phrases
“time-share
projects
”
and
“time-share
development,
”
which
were
explicitly
intended
to
apply
to
conversion
of
existing
residences
to
a
time-share
model,
including
fractional
ownership,
even
though
the
terms
“project”
and
“development”
were
not
explicitly
defined.
However,
without
considering
this,
the
Zoning
Code
was
repeatedly
rearranged
and
revised,
and
eventually,
definitions
of
“project”
and
“development”
applicable
to
the
entire
Zoning
Code
were
added.
And
even
though
the
introduction
of
those
definitions
was
presumably
not
intended
to
alter
the
meaning
of
the
time-share
regulations,
by
the
time
Pacaso
came
to
town,
staff
said
they
did,
and
they
could
not
prohibit
conversions
of
existing
homes,
only
new
construction.
One has to wonder if the Council members have reviewed the 18 Municipal Code chapters unrelated
to
STL
permits
in
which
“good
cause”
appears,
and
determined
that
applying
to
them
March 25, 2025, City Council agenda comments - Jim Mosher Page 3 of 6 the definition proposed in the STL permit context does not alter the meaning of “good cause” that
earlier
Councils
intended
in
those
other
contexts?
Placing Substantive Regulations in Uncodified Portions of Ordinances is a Bad
Idea
Second, although neither the Council nor the public heard the circumstances of the speaker seeking relief at the February 1 Planning Session (only that “things come up”), it appears the intent
of
these
code
revisions
is
to
allow
staff
to
excuse
people
who
have
missed
STL
permit
deadlines.
Yet
the
proposed
code
revisions
are
written
entirely
in
terms
of
extending
deadlines,
which
implies
a
request
to
extend
the
deadline
has
been
received
before
the
deadline
comes.
The fact that an “extension” can be granted retroactively, in effect excusing the missing of a deadline
is
relegated
to
an
obscure
reference
in
uncodified
Section
7 of
the
proposed
ordinance,
on
page
3-13
of
the
agenda
packet.
Not only could the fact that a deadline can be extended retroactively have easily been included in
the
codified
portion
of
the
code,
where
all
those
reading
the
code
would
see
it,
but
the
code
might
even
have
limited
how
long
after
the
fact
a
retroactive
extension
can
be
granted
and
how
long
such
an
extension
can
be.
The problems that can be created by not codifying substantive portions of regulations is illustrated
by
Item
12 on
the
current
agenda.
In
that
case,
when
enacting
a
Building
Code
revision
in
2022,
the
Council
only
intended
for
it
to
be
in
effect
until
April
21,
2025,
at
which
time
the
unrevised
text
would
return.
It
would
have
been
relatively
easy
to
include
this
proviso
in
the
code
(the
state
legislature
does
this
quite
frequently).
Instead,
much
like
here,
it
exists
only
in
an
obscure
uncodified
section
of
the
2022
ordinance
(see
page
12-21
of
the
present
agenda
packet).
Despite
a
subsequent
ordinance
reenacting
the
code
section
in
question
without
any
mention
of
an
expiration,
the
proviso
in
the
earlier
ordinance
seems
to
remain,
like
a
zombie,
completely
unknown
to
those
reading
the
existing
code,
which
does
not
even
mention
the
ordinance
containing
it
in
its
revision
history.
In the present case, the fact that STL deadline extensions can be retroactive will not only be unknown
to
readers
of
the
code,
but
it
may
assume
a
similar
zombie
status
if
the
code
were
subsequently
revised
without
an
intent
to
be
retroactive
but
without
explicitly
repealing
the
present
ordinance.
Item 4. Resolution No. 2025-12: Creating the Ad Hoc Refuse Committee
I think the idea of staff reaching out in considering its response to refuse regulations is a good one,
and
the
present
proposal
is
an
improvement
over
the
roll-out
of
the
three-cart
residential
collection
system,
regarding
which
input
seems
to
have
been
sought
from
a
3-member
Council
Ad
Hoc
Solid
Waste
Committee
that
was
never
formally
appointed
and
which
the
public
knew
nothing
about.
March 25, 2025, City Council agenda comments - Jim Mosher Page 4 of 6 That said, I think it would be better for the Council to appoint a committee of affected residents and
business
owners
from
whom
staff
could
seek
input.
The
advantage
of
that,
is
that
the
Brown
Act
would
require
the
discussions
to
be
noticed
and
public.
The problem with Council-appointed ad hoc committees (and with ad hoc committees of the City boards
and
commissions
in
general,
is
that
they
are
created
precisely
to
avoid
public
visibility.
Since
the
Brown
Act
does
not
require
it,
their
discussions
are
rarely
if
ever
public.
As
a
result
there
is
a
complete
lack
of
transparency
as
to
how
their
recommendations
were
arrived
at
and
what
input
was
considered.
A happy recent, but still extremely rare, exception was the PB&R ad hoc committee seeking to make
a
recommendation
about
the
proposed
Aquatic
Center
at
Lower
Castaways,
which
held
a
noticed public workshop in the Community Room on February 12.
Item 5. Irrigation Controller Replacement Phase 2 – Award of Contract No.
9735-1
With a low bid of $472,186 to acquire(?) and install 37 controllers, that comes to nearly $13,000 per
controller.
This contract is clearly for something more than a typical home controller, so it might have been helpful to provide a little more information on what is being contemplated. From the bid package, it looks like it is some version of the Toro 21-1196-IRC-DXi-Controller-SS.
Item 9. Concession Agreement with Kit at the Library, Inc. for Use of the
Concession
Facility
at
the
Central
Library
Located
at
1000
Avocado
Avenue
Why is no information provided regarding the 16 other proposals that were received but rejected by
City
staff?
Why are “limited cosmetic tenant improvements to the Space” anticipated to take as much as 12 months
to
complete?
Libraries are known to attract children, and I seem to recall seeing them in the entry area adjacent
to
the
concession.
Does
the
menu
contain
any
items
that
would
appeal
to
young
children?
Item 10. Amendment to Professional Services Agreement with Dudek, Inc.
for
Consulting
Services
on
the
Comprehensive
General
Plan
Update
(PA2022-080)
The City Council has, in my view, caused significant delay to the general plan update process by
announcing
its
plan,
in
December,
to
dismiss
all
the
GPAC
and
GPUSC
members
and
make
new appointments in the new year, which finally happened as Item 11 at the February 25, 2025, meeting. I am grateful for my reappointment, and as chair of the subcommittee reviewing the existing Noise
Element
in
the
GPAC’s
prior
configuration,
I
have
considerable
interest
in
the
current
item,
although
I
don’t
yet
know
if
I
will
be
continuing
that
role
in
the
new
iteration.
March 25, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 I might note that at the time the subcommittee and full GPAC made our recommendation, we were
unaware
the
traffic
noise
contours
resulting
from
the
addition
of
6th
Cycle
RHNA
units
(for
everything
but
the
73 freeway
and
toll
road)
had
already
been
projected
by
a
prior
consultant
as
part of the recent Housing Implementation Program EIR (PA2022-0245), specifically in Chapter 4.11 and Appendix E. It appears Dudek is proposing to do something more supported by measurement. In that regard, I am a little puzzled by proposed Task 1.2.b (agenda packet page 10-10), calling for
Dudek
to
evaluate
noise
in
the
Airport
Area
“
based
upon
sound
level
contour
mapping
from
the
corresponding
Airport
Land
Use
Compatibility
Plan
(ALUCP)
.”
This
seems
to
be
a
reference
to what the County calls the John Wayne Airport Airport Environs Land Use Plan (AELUP). Dudek seems not to have been informed that the contours in that plan were created in 1985, or before,
and
included
projections,
made
then,
to
the
anticipated
contours
in
2005.
The
City
has
an ongoing dispute with the OC Airport Land Use Commission as to whether the projections published in 1985 are still appropriate contours for planning purposes, and has, indeed, substituted a different set of contours in the November 14, 2023, Item 22 Noise Element revisions mentioned on page 10-2 of the staff report (prepared and adopted without GPAC input).
The
ALUC
does
not
accept
that
change,
and
rejects
submissions
based
on
them.
There
is
a
particularly
acute
disagreement
as
to
the
noise
impact
of
the
small
piston-powered
planes
that
fly
over
what
the
City
calls
the
“Airport
Area”
north
of
Bristol,
yet
no
one
seems
to
have
any
actual
measurements
to
support
their
view
of
what
the
current
situation
there
actually
is.
Assuming this item is approved, I hope staff will instruct Dudek to perform some of its long-term monitoring
(Task
1.1)
in
that
area.
I am also a little concerned about the clarity of Task 2. Although entitled “GPAC Subcommittee Coordination,”
the
unnumbered
opening
paragraph
suggests
Dudek
feels
it
has
more
than
fulfilled
its
obligation
to
attend
meetings
of
the
full
GPAC,
since
the
ones
it
has
attended
to
date
ran
longer
than
the
1-hour
anticipated
(as
future
ones
may
also).
Do
Dudek
and
staff
have
a
clear
understanding
of
how
many
additional
full
GPAC
and
GPUSC
meetings
Dudek
is
expected
to
attend?
Is
there
sufficient
budget
for
them?
As to the GPAC subcommittees, the Council may wish to know there are six subcommittees, organized
to
review
various
combinations
of
general
plan
elements,
as
well
as
one
for
the
Vision
Statement.
The
proposed
12 meetings
would
mean
Dudek
attendance
at
at
most
2 each
to
review
their
proposed
revisions,
none
of
which
have
yet
been
seen,
before
they
go
to
the
Planning
Commission
and
Council.
That
seems
possible,
but
minimal.
Does
staff
anticipate
the
possibility
of
a
need
for
additional
GPAC
subcommittee
discussion
meetings
without
Dudek
present?
March 25, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 Item 12. Ordinance No. 2025-5: An Amendment to Section 15.02.095 of the
Newport
Beach
Municipal
Code
Related
to
Timeframes
for
Completion
of
Construction
As noted in my comments when this item was first introduced (and then withdrawn) on March 11, it is unusual in that the current Municipal Code cites Ordinances No. 2023-22 § 693 and 2022-26 § 1 as the source of the language presently found in NBMC Section 15.02.095, and makes no mention of Ordinance No. 2022-8, where the sunset provision resides. I concluded from this that no action was needed since neither of those ordinances makes any mention
of
the
provisions
they
added
being
subject
to
sunsetting.
But
perhaps
action
is
needed,
since
neither
seems
to
have
explicitly
repealed
the
uncodified
parts
Ordinance
No.
2022-8.
Assuming the April 21, 2025, sunsetting provision in Ordinance No. 2022-8 is still operative, it would
appear
the
present
ordinance
repealing
it
will
not
be
adopted
until
a
second
reading
on
April
15,
and
will
not
become
effective
until
30 days
later,
on
May
15. What will happen to projects that, under the prior code that staff believes will be restored for the 24 days
from
April
21 to
May
15,
would
need
to
file
for
an
extension
during
that
time?
Item XIII.A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS This item involving three non-City-owned properties with no explanation of what the City’s interest
in
them
might
be,
also
seems
rather
unusual.
One of the properties, the former Balboa Theatre at 707 E. Balboa Blvd., the City formerly owned
and
sold.
What
happened
to
that
new
owner’s
plans?
Is
the
City
considering
buying
it
back?
Another, at 12 Corporate Plaza Drive, is the subject of an active Preliminary Application, PA2025-0017, for 38 residential units in an 85-foot high tower. Is the City contemplating becoming a partner in the development? And the remaining one, at 3848 Campus Drive, has been the subject of prior closed session agendas, such as on January 28, and also seems to have a pending application, PA2023-0145, to construct a private self-storage facility on the site. What became of those?