September 23, 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 August 26, 2025, Special City Council Meeting and the August 26, 2025, Regular 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.
Coastal Freeway Plan that included the process and approval of the proposed Coastal Freeway, imminent eminent domain scenarios, and the images of how the Coastal Freeway would have dissected key areas of the City.”
an update on the CEQA grant for Buck Gully.”
[See video: The City Manager did not say “CEQA.” The request seems to have been for an update on the grant for brush clearing accepted by the Council as Item 6 at its November 19, 2024, meeting. While Fire Marshall Gillespie began by saying they were working on CEQA documentation, that was not the primary purpose of the grant, but rather an incidental requirement of acceptance mentioned in the grant application form, and possibly not even paid for by it.]
Repair Program Fiscal Year 2024-25 - Notice of Completion for Contract No. 9716-1 (25R06), commented on waiving of the tree policy and thought it should be under the purview of the Parks, Beaches & Recreation Commission; ….”
[Note: The video indicates I misspoke saying “10” when I should have said “13.” The item I was commenting on was “Agenda Item No. 13, Request to Waive City Council Policy G-6 for Alternate Palm and Tree Species at the Sherman Library and Gardens (2647 East Coast Highway).”]
project; noted that a maximum of 388 people can participate daily and are normally expected to be present at one time, but the location could have twelve special events per year with no limit; and reiterated that he was against the override.” [Note: The suggested revisions are necessary to correctly state what I said at the meeting, but on reflection, my comment that there would be no limit on the number of people that could be present at one time during Snug Harbor Surf Park special events may or may be accurate. One of the Planning Commission’s recommended conditions of approval limits “daily occupancy” to 1,698, but the special event conditions refer to requests for higher levels of attendance, making it unclear to me if the normal “daily occupancy" limit applies to them or can be waived by the special event permit.]
Received After Agenda Printed
September 23, 2025
Written Comments
September 23, 2025, City Council agenda comments - Jim Mosher Page 2 of 6 Item 3. Ordinance No. 2025-26: Adding Chapter 6.30 Prohibition of Sale and
Distribution
of
Flavored
Tobacco
Products
The September 9th agenda included an “A-1” request to put an item on a future agenda to consider directing staff to review existing City regulations related to smoking. Although some aspects of that appear
as
Item
23 on
the
present
agenda,
true
to
form
Items
3 and
4 appear
to
represent
the
fruits
of
the
review
prior
to
the
Council
formally
directing
the
review
to
begin.
And once again, even assuming the review took place prior to the Council voting to conduct it, we have
an
ordinance
being
introduced
on
the
consent
calendar,
not
only
without
Council
discussion
or
comment,
but
without
a
redline
and
minimal
explanation,
so
even
those
interested
in
the
matter
have
to
guess
how
the
proposal
would
change
the
existing
codes.
The present proposal appears to consist of two main parts: one altering existing rules on smoking, and
a
second
adding
a
new
regulation
prohibiting
the
sale
or
distribution
of
flavored
tobacco
products.Both
these
are
presumably
being
proposed
to
tighten
the
already
extensive
state
regulations
in
these
areas,
although
exactly
how
they
tighten
state
regulations
is
not
clearly
described.
The regulations on smoking revise NBMC Chapter 6.25, which was last revised as part of former Mayor O’Neill’s revision of the entire municipal code, introduced as a single 1,342-page single “yes or no” Item 24 on the November 14, 2023, Council agenda. Although a redline was provided at that time, it is unclear how carefully it was aligned with California Smoking Laws as summarized by the state Air Resources Board, for the total explanation provided was “ The smoking regulations were combined
and
updated
to
reflect
changes
in
state
law
and
eliminate
ambiguities
..”
As
to
the
present
item,
it
appears
intended
to
build
on
that
previous
unexplained
revision
by
changing,
again
without
explanation,
the
phrasing
of
prohibitions
A
through
K
(apparently
without
intentionally
changing
their
meaning)
and
adding
a
single
new
substantive
prohibition
L,
creating
a
ban
on
the
smoking
of
flavored
tobacco
more
expansive
than
that
on
smoking
unflavored
tobacco.
Since the municipal code makes no reference to the state smoking laws, those reading it may incorrectly
assume
that
in
Newport
Beach
smoking
is
allowed
in
places
not
listed
as
ones
where
it
is
banned.
Shouldn’t
some
reference
to
state
law
be
included?
Of those listed, aren’t A through D likely duplicative of the state’s regulations on smoking in enclosed
workspace
areas?
And
as
to
D’s
ban
on
smoking
in
theaters,
the
state
law
appears
to
allow
it
by
actors
as
part
of
the
production.
Is
the
omission
of
that
exception
in
Newport
Beach
intentional?
In
the
absence
of
any
explanation,
it
is
hard
to
tell.
Similarly, no explanation is provided of how or why the proposed regulations on the sale and distribution
of
flavored
tobacco
products.
As
best
I
can
tell,
the
proposed
new
Chapter
6.30 extends the statewide ban described by the Tobacco Control Branch of the California Department of Public Health to “any person” whereas the state ban applies only to retailers, and to include “distribution”
(possibly
for
free)
in
addition
to
the
sales
prohibited
by
state
law.
But,
again,
it
is
hard
to
tell
if
that
is
the
intent.
In summary, before proposing the adoption of specific changes to our existing regulations, wouldn’t it
have
been
helpful
to
wait
for
the
Council
to
vote
on
whether
it
wanted
to
direct
staff
to
conduct
“a
comprehensive
review,”
and
then
actually
conduct
the
review
and
present
the
results
to
the
Council,
rather
than
proceeding
with
little
to
no
explanation?
September 23, 2025, City Council agenda comments - Jim Mosher Page 3 of 6 Item 4. Ordinance No. 2025-27: Adding Chapter 6.40 Prohibition of Sale, Distribution
and
Use
of
Nitrous
Oxide
This is another part of the September 9th “A-1” request presented before the Council has directed the “comprehensive study” it was to consider directing. It also seems to be part of the flurry of local ordinances dealing with sale of nitrous oxide as reported in a September 8th Voice of OC article. It may be unique that in addition to banning sale for recreational use, it bans the recreational use itself. The staff report mentions California Penal Code Section 381b which already makes it a misdemeanor, statewide, to possess or use nitrous oxide for recreational purposes. It is not clear what
the
proposed
new
NBMC
Section
6.40.020
(Use
of
Nitrous
Oxide
Prohibited)
would
add
to
this,
which
is
perhaps
why
other
jurisdictions
have
not
added
such
provisions
to
their
codes.
The staff report does not mention Section 381c, which makes it a misdemeanor for anyone other than a medical professional to sell or furnish nitrous oxide to a person under the age of 18. Or Section 381d, which makes it a serious crime to provide nitrous oxide to anyone who uses it recreationally in a way resulting in serious injury or death. Or Section 381e, which requires most persons distributing nitrous oxide to keep written records, available for inspection by law enforcement, of the names and addresses of all persons to whom it is
distributed
as
well
as
providing
written
notice
to
those
receiving
it
stating
that
its
recreational
use
is
illegal.
Given that existing regulatory framework, the staff report says the local ordinances are needed to close
the
“culinary
use”
loophole
in
state
law,
although
exactly
where
that
loophole
can
be
found
is
not
explained.
“Culinary
use”
seems
to
refer
to
legitimate
use
of
nitrous
oxide
canisters
in
whipped
cream
and
mousse
creating
machines
used
in
commercial
food
operations.
We are apparently to assume the proposed ordinance closes that and any other conceivable loophole
by
restricting
sales
and
distribution
to
a
limited
set
of
stated
reasons.
One
of
those,
the
exemption
for
wholesaling
nitrous
oxide
(proposed
NBMC
Sec.
6.40.040.B),
may
be
intended
to
preserve
that
commercial
food
preparation
market,
although
it
apparently
would
no
longer
be
allowed
in
Newport
Beach
for
similar
food
preparation
operations
in
a
home
setting
(unless
that
is
included
in
the
ambiguous
Sec.
6.40.040.A
exemption
for
“When
nitrous
oxide
is
contained
in
a
food
product
and
used
solely
as
a
propellant”
1 ).
Yet, proposed Sec. 6.40.040.C opens the “enhancing vehicle performance” exemption. So what is to
prevent
anyone
over
the
age
of
18 from
saying
they
need
ni
trous
oxide
to
enhance
the
performance
of
a
car?
Three other minor points might be made: 1. The preamble to the proposed ordinance (agenda packet page 4-4) describes nitrous oxide as
“
an
odorless
,
colorless
chemical
.”
The
author
may
have
more
experience
with
the
chemical
than
I,
but
to
the
extent
the
public
can
trust
government
information,
the
U.S.
National Library of Medicine’s PubChem data sheet for nitrous oxide describes it as “ a colorless, sweet-tasting gas ” and the vapors from the refrigerated liquid product as “ a 1 This seems more likely intended to allow continued sales of Reddi-Wip and similar products.
September 23, 2025, City Council agenda comments - Jim Mosher Page 4 of 6 colorless gas that is sweet-smelling and moderately toxic. “ That is hard to square with it being
odorless.
2. The better definition on page 4-5 omits “odorless” but says the gas is “ sometimes identified as
N20
.”
That
is
more
than
an
“identification,”
it
is
the
chemical
formula,
and
it
should
be
written
with
a
subscript
“2”
and
a
capital
“O”
–
not
the
number
“20”
as
if
it
were
pronounced
“N-twenty.”
3. Although copied from other ordinances, the outlawing in proposed NBMC Sec. 6.40.030 of the
distribution
of
“
any
device
that
contains
any
quantity
of
nitrous
oxide
”
may
be
a
bit
extreme. As Wikipedia explains, nitrous oxide is a commonly occurring chemical produced by a variety of natural and human-driven processes. According to the National Oceanic Administration’s “Trends in N 2 O” page, it is currently present in sea level air at concentrations a little over 300 parts per billion. In other words, any device that contains any
amount
of
air
will
contain
some
quantity
of
nitrous
oxide.
While
300
ppb
may
seem
small, it is considerably larger than the 3 ppb goal for copper in Newport Harbor.
Item 5. Ordinance No. 2025-28: Amending Subsection B of Section
10.04.010
of
Chapter
10.04 to
define
Possession
of
an
Open
Container
Although part of the “A-1 item” that appears to have resulted in the two preceding items, we have here
yet
another
public
safety
ordinance
scheduled
for
introduction
on
the
consent
calendar
without
Council
discussion.
Helpfully, this one includes a redline and states that its purpose is confined to providing a definition of
“possess.”
Of
that
definition,
I
am
a
bit
puzzled
by
the
use
near
its
end
of
the
phrase
”
a
person
knowingly
exercises
control
or
dominion
over
the
can,
bottle
or
other
receptacle
.”
My
vague
understanding
of
“exercising
dominion”
is
that
it
is
a
more
absolute
form
of
control
than
ordinary
control.
So
if
“dominion”
is
a
form
of
control,
and
already
included
in
that
word,
what
is
the
point
of
adding
it?
As to the parts of NBMC Section 10.04.010 that are not being revised, it is not clear to me why the section
specifically
refers
to
the
County
property
known
as
the
Newport
Dunes,
but
not
to
the
similar
County
properties
in
the
Upper
Newport
Bay
Nature
Preserve,
or
more
generally
to
the
Ecological
Reserve.
While it is helpful to improve the definition of “possession,” it could be argued that it is similarly not clear
if
the
definition
of
“in
or
on”
a
“beach”
is
intended
to
include
or
exclude
water-covered
areas,
which
would
determine
whether
it
is
lawful
or
unlawful
to
open
and
consume
an
alcoholic
beverage
while
in
or
on
the
water.
I
understand
some
boaters
may
do
that,
but
are
surfers
and
paddlers
allowed
to
as
well?
September 23, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 Item 6. Ordinance No. 2025-29: Adding Section 11.04.085 (Prohibiting the
Use
of
Electric
Bicycles
and
similar
devices
on
the
Newport
Elementary
School
Playground)
and
Amending
Section
11.04.130
(Exemption)
of
Chapter
11.04 (Parks,
Park
Facilities,
and
Beaches)
of
the
Newport
Beach
Municipal
Code
I do not believe the area described as the playground is fenced, and while the proposed ordinance prohibits
e-bikes
in
that
area
during
the
hours
when
the
school
is
closed,
it
is
not
clear
how
use
of
that
area
is
regulated
during
hours
when
the
school
is
in
session.
Are
e-bikes
allowed
then?
It is similarly unclear why specific days and hours are listed in addition to the general reference to the
ordinance
being
applicable
whenever
the
school
is
closed.
Is
the
intent
to
prohibit
e-bike
use
during
those
hours
even
if
the
school
is
open?
Item 7. Ordinance No. 2025-30: Amending Section 2.12.110 of Chapter
2.12 (Administrative
Departments)
of
the
Newport
Beach
Municipal
Code
to
Include
Education
and
Enforcement
Related
Provisions
as
a
Function
of
the
Recreation
&
Senior
Services
Department
It would have been helpful to include a redline so it could be easily verified that no changes other than
the
one
described
in
the
staff
report
are
being
slipped
through.
Item 9. Ordinance Nos. 2025-23, 2025-24, and 2025-25: Adoption of the 2025
California
Building
Standards
Codes
with
Local
Amendments,
the
2025
California
Fire
Code
with
Local
Amendments,
and
the
2025
California
Wildland-Urban
Interface
with
Local
Amendments
I attended the meeting on August 19th, where the City’s Building and Fire Board of Appeals received an overview of proposed changes to these codes, but I did not read the details when these
ordinances
were
introduced
to
the
Council
in
September
9th
agenda
packet,
nor
have
I
read
the
96-pages
being
presented
for
their
adoption.
I hope someone has, as I believe these will be the law in Newport Beach for the next 3 years, and possibly
longer
since
the
state
seems
to
have
put
a
pause
on
any
further
changes
to
residential
building codes through June 1, 2031, as part of AB 130, the recent budget bill signed by the Governor.
Item 13. Professional Services Agreement with Planeteria Media LLC for a
Redesign
of
the
City’s
Website,
Content
Management
System
and
Hosting
It seems telling that the “Website Created by Vision Internet - Innovators of Online Government” link at the bottom of pages on the City’s current website produces a “Page not found” message, 2 and
there
are
problems
with
the
site,
including
undated
pages
making
it
impossible
for
readers
to
tell
if
they
are
seeing
current
or
ancient
(and
possibly
outdated)
information.
2 Vision Internet seems to have been acquired by Granicus, the company I understand provides the City’s initial
agenda postings, which, in another peculiarity of the current site, disappear from public view once they’re
moved
to
the
separate
Laserfiche document center.
September 23, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 I also remember well the previous redesign, which appeared one day in 2015 without any public outreach,
input
or
prior
announcement:
according
to
the
Internet
Archive’s
Wayback
Machine
residents saw the old site at least as late as June 23, 2015 and the new one on or before July 2, 2015, although that seems to have been a change in format rather than vendor, with Vision Internet having been listed as the creator (as they are now) back at least to July 27, 2009, with what seems to be its original contract, C-4121, dating from 2008. The website prior to this was http://www.city.newport-beach.ca.us/. Even though it is supposed to enhance the user experience, I am quite concerned the new redesign
will
also
occur
without
meaningful
community
input.
I am also concerned about the recommended vendor. The Planeteria Media LLC website does not list any experience I can find designing a city website. The closest I can find mentioned there is a site for Clackamas County, Oregon, which does not seem exceptionally intuitive to me. They have apparently recently contracted for a redesign with Lake Elsinore, and the letter to them suggests they have designed the site for Pleasanton in California, which I also don’t find particularly intuitive. 3 Has our staff contacted other cities with Planeteria Media websites to inquire about their staff’s
experiences
with
the
vendor
and
the
public’s
reaction
to
their
product?
Before moving on this item, it would seem prudent for the Council to ask for some public discussion of
what
alternatives
are
available,
including
especially
from
other
vendors.
The
public’s
perception
of
the
usefulness
of
different
models
and
interfaces
may
be
quite
different
from
City
employees’.
3 The Pleasanton City meetings calendar, for example, is completely non-intuitive to me, and appears to require
multiple
non-obvious
steps
to
display
anything.
Whether
they
have
community
events
calendar
is
also
not
at
all
obvious.
In
addition,
the
link
to
Pleasanton System Status on the copyright line at the bottom of the
pages
indicates
ongoing
problems
some
of
which
appear
to
take
days
to
resolve.