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Written Comments

Newport Beach City Council
March 25, 2025

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Written Comments
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March 25, 2025
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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.

Page 279 ends

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?

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