August 25, 2026, 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. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE PLACED
ON
A
FUTURE
AGENDA
(NON-DISCUSSION
ITEM)
Item 1. Approval of Minutes The passages shown in italics below are from the draft minutes, with suggested corrections shown in strikeout underline format. The draft minutes have been posted as a 16-page PDF without
page
numbers.
The
page
numbers
below
refer
to
the
location
in
the
PDF.
expressed
concern
that
relocating
Fire
Station
No.
3 to
the
OCTA
site
would
extend
emergency
response
times
to
East Bluff Eastbluff, which currently benefits from the station's
direct
Jamboree
access
.”
and
whether
the
…”
inclusionary
rate
and
echoed
Moser's Mosher's concerns regarding the density bonus law analysis.
”
Newport
Beach
Mayor
and
Councilmember
Jan
Debay
…”
[ comment : The clock visible in the meeting video confirms the Roll Call reported on page 1 occurred at 4:00 p.m. However, it indicates the comments in memory of Jan Debay were delivered starting at approximately 6:51 p.m., prior to (not after) the closed session, and that the meeting ended at 7:26 p.m. If the minutes are not accurate about when and how the meeting ended, what assurance is there that they are reliable about anything else?] Item 2. Ordinance No. 2026-11: Amending Section 3.36.030 of the Newport
Beach
Municipal
Code
and
Repealing
Exhibit
A
of
Section
3.36.030
Summary : Removing the Cost Recovery Table is unwise.
August 25, 2026, City Council agenda comments - Jim Mosher Page 2 of 9 This item removes the Cost Recovery Table from the Municipal Code. I continue to think that is unwise.
The table has served as the basis of fees assessed in the City’s Schedule of Rents, Fines and Fees.
As
long
as
it
is
in
the
Municipal
Code
one
knows
by
looking
at
that
code
section
that
one
is
seeing
the
currently-adopted
version,
as
well
as
being
able
to
see
its
revision
history
in
the
list
of
amending
ordinances.
If, after this change, cost recovery percentages are assigned, possibly arbitrarily, on a line-by-line
basis
in
the
Schedule
of
Rents,
Fines
and
Fees
itself,
then
that
easily-accessible
history
is
lost,
as
well
as
the
bigger
picture
of
similar
percentages
being
intended
to
be
applied
to
larger
categories
of
fees.
Item 3. Ordinance No. 2026-12: Approving a Zoning Code Amendment and
Ordinance
No.
2026-13:
Approving
a
Development
Agreement
for
the
1300
Dove
Street
Townhome
Project
(PA2025-0170)
Summary : Is the City making a $5.5 million gift of public funds? This item involves the City giving up roughly $5.5 million of revenue the applicant would normally
be
expected
to
pay.
The
applicant
claims
this
is
a
concession
they
are
entitled
to
under
state
Density
Bonus
Law
in
exchange
for
promising
that
7 (5%)
of
the
132
townhomes
they
are
proposing
will
be
affordable
to
families
with
very
low
incomes.
The requirement to be eligible for the concession in the state Density Bonus Law is that at least 5%
of
“base
units”
be
affordable
to
very
low
income
households.
At the July 28 hearing where these ordinances were introduced, I argued there was a legitimate question
as
to
whether
7 units
were
enough
to
meet
this
threshold.
The question is: “What is meant by “base units”?” The applicant argues “base units” is the number of units proposed before adding any additional units
allowed
by
the
bonus
law.,
in
this
case
132,
of
which
5%
(rounding
up)
is
7 units
.
While using the proposed rather than maximum density has long been the interpretation in Newport
Beach,
it
is
not
necessarily
correct,
especially
with
the
frequent
changes
to
the
state
law. Indeed, a recent amendment to Government Code Section 65915(o)(6) equates “base density” with “maximum allowable residential density” and says it “ means the greatest number of units
allowed
under
the
zoning
ordinance,
specific
plan,
or
land
use
element
of
the
general
plan
.”
In our current General Plan Housing element the maximum allowable residential density of this
6.5-acre
site
at
50 dwelling
units
per
acre
is
325
units,
from
which
it
follows
that
(if
that
is
the
“base
density”),
17 units
affordable
to
very
low
income
households
would
be
needed
to
be
reach
the
5%
threshold
and
be
eligible
for
any
concession.
At the July 28 hearing, I cited the state Department of Housing a Community Development Department’s 7-page April 2026 State Bonus Law Fact Sheet and the City of Beverly Hills’ Density Bonus Guidelines page in support of the 17-unit interpretation. In response, Mayor Pro
August 25, 2026, City Council agenda comments - Jim Mosher Page 3 of 9 Tem Blom said a quick check of the Beverly Hills website indicated that “ 5 units of moderate was their
threshold
.”
I
don’t
know
what
the
Mayor
Pro
Tem
was
looking
at,
but
the
Beverly
Hills
guidelines
page
says
(at
the
end
of
the
first
part
of
its
“Eligibility
Requirements”
section):
“
Eligibility
is
based
on
the
percentage
of
affordable
units
provided
as
a
share
of
the
project’s
total
units
(more
commonly
referred
to
as
base
density
),
which
is
defined
as
the
maximum
number
of
units
allowed
by
local
zoning
or
general
plan
designation
before
applying
density
bonus
(GC
§65915(o)(9))
.”
The HCD Fact Sheet says (under “State Density Bonus Eligibility”): “ The percentage of affordable
units
is
calculated
off
the
base
project
,
meaning
the
total
number
of
units
prior
to
any
units
added
through
additional
density
or
other
benefits
of
the
law.
The
base
project’s
density
is
based
on
the
gross
residential
density
of
the
parcel(s)
that
comprise(s)
the
housing
development
site
and
the
highest
residential
density
available
under
the
zoning
ordinance,
specific
plan,
or
land
use
element
of
the
general
plan
.
”
As a result, there is certainly a reasonable question as to whether the “base density” for this project
is
the
132
units
the
applicant
proposes
or
the
325
units
the
General
Plan
allows,
and
hence
whether
the
number
of
very
low
income
units
needed
to
be
eligible
for
any
concession
is
7 or
17. I understand our Community Development Department may be communicating with HCD, asking
if
they
need
to
correct
their
Fact
Sheet.
I
do
not
know
if
there
has
been
any
response,
but
to
date
it
has
not
been
revised.
I, therefore, remain concerned the City is giving up $5.5 million of revenue under color of state
law
when
there
may,
in
fact,
be
no
state
law
requirement
to
do
so
.
(Our City Attorney has asserted that charter cities, unlike most other California governmental entities,
are
free
to
make
gifts
of
public
funds.
But
even
if
that
is
correct,
why
would
be
making
a
gift
to
this
particular
developer?)
Item 20. Certification of Results and Review of Options for Three Citizen-Sponsored
Charter
Amendment
Initiative
Petitions
Summary The City’s efforts to thwart the public’s right to vote on these matters that the public, through its signatures,
has
demonstrated
it
wants
to
vote
on
has
been,
and
continues
to
be,
outrageous.
First by creating delay by refusing to perform its ministerial duties until ordered by a court to do so,
and
most
recently
by
claiming
it
needed
to
step
in
to
protect
voters
from
the
unexplained
harm
that
would
befall
them
when
it
was
belatedly
noticed
that
the
announcement
of
the
pending
circulation
of
the
petitions
had
been
published
in
a
paper
that
was
not
the
City’s
preferred
paper.
At
the
August
19 court
hearing,
the
attorney
representing
the
City
explained
the
reason
the
City
is
suddenly
so
concerned
about
the
noticing
issue
is
that
without
that
publication
for
a
single
day
in
the
“Legal
Notices”
section
of
the
edition
of
the
City’s
preferred
newspapers,
the
City
now
fears
Newport
Beach
voters
might
not
have
known
the
petitions
were
being
circulated
and
been
able
to
ask
questions
about
them.
August 25, 2026, City Council agenda comments - Jim Mosher Page 4 of 9 Not only is it unclear how a single day of obscure print publication would have corrected that, but
if
the
City
were
truly
so
concerned
about
voters
being
informed,
it
could
have
posted
not
only
notice
that
the
petitions
were
being
circulated,
but
the
full
text
of
the
measures,
on
its
website. Yet, to this day, the City Clerk’s GENERAL MUNICIPAL ELECTION - NOVEMBER 3, 2026 webpage does not mention these measures are pending, nor even provide access to the text of the one initiative measure the Council previously approved for placement on the November 2026 ballot, or to the arguments for or against it. Now the City claims, in proposed Resolution No. 2026-73, explaining why putting these three measures
on
the
November
2026
ballot
is
not
feasible,
it
would
create
a
“compressed
schedule”
of
review,
incompatible
with
the
orderly
process
voters
are
entitled
to.
Yet
it
is
the
City,
itself,
through
its
unremitting
tactics
of
delay,
disruption
and
frivolous
challenge
that
has
created
the
compressed
schedule.
The
purported
concern
over
subjecting
voters
to
a
compressed
schedule
is
surely
as
insincere
a
concern
as
the
previous
purported
concerns.
These three measures belong on the November 2026 ballot .
Continued Lack of Transparency Since the staff report says the present action will be taken in compliance with the August 19 court order, why do the many attachments to the report not include the order (which, incidentally, precludes the City from arguing that putting the measures on the November 2026 would not allow
sufficient
time
to
review
the
arguments
for
and
against
–
which
is
precisely
one
of
the
arguments
the
City
makes)?
And why, on the City’s agenda posting website, has the link to the “Meeting details” for this meeting been disabled?
City Manager’s Claims about Improper Use of Initiative Process to Gain Personal
Financial
“Leverage”
Given that background, the fate of these three Charter amendments seems one of the most important
matters
on
the
present
agenda.
It
is,
therefore,
strange
to
find
this
item
not
mentioned
at all in the On the Agenda portion of City Manager Seimone Jurjis’ August 21 From City Hall to You newsletter, which instead mentions only a different petition to be discussed in closed session (see Item 21, below). Was the newsletter prepared before it was known if this item would
be
on
the
agenda?
August 25, 2026, City Council agenda comments - Jim Mosher Page 5 of 9 These three petitions were, however, alluded to in his August 14 newsletter. In that newsletter, without explaining what they are about, City Manager Jurjis suggests the motivation behind the petitions
is
not
to
accomplish
some
public
good,
but
rather
to
“
provide
leverage
in
disputes
involving
substantial
private
economic
interests
”
of
their
financial
sponsor,
developer
Ken
Picerne.
This is an interesting claim on several levels. First, it completely discredits the wishes of the thousands of voters whose signatures indicate they
thought
the
issues
important
enough
to
merit
a
vote
irrespective
of
who
might
be
paying
to
make
possible
their
circulation.
If
concern
about
the
motivations
of
a
measure’s
financial
supporters
was
a
valid
reason
for
withholding
a
measure
from
the
ballot,
it
would
have
been
brought
up
in
the
City’s
many
court
filings.
To
the
best
of
my
knowledge,
it
was
not.
Second, the leverage presumably exists because the City Manager believes Mr. Picerne could offer
to
withdraw
the
petitions
in
return
for
some
self-dealing
concession
on
the
part
of
the
City,
and
City
management
would
find
that
an
attractive
exchange.
But
Mr.
Picerne
has
no
power
to
withdraw
the
petitions.
That
power
belongs
only
to
the
proponent,
and
the
proponent
is
former
Council
member
and
Mayor
Duffy
Duffield
and
his
Newport
Beach
Stewardship
Association.
Mr.
Picerne
is
only
a
financial
supporter.
So
for
Mr.
Picerne
to
have
“leverage,”
the
City
Manager
seems
to
believe
he
controls
former
Council
member
and
Mayor
Duffield.
While
I
am
not
so
naive
as
to
think
some
city
council
members
in
some
cities
may
not
be
controlled
by
outside
financial
interests,
that
seems
a
rather
sad
observation
for
our
City
Manager
to
make
of
our
City
Council.
Finally, and by far more importantly, if the City Manager is correct that Mr. Picerne controls Mr.
Duffield,
and
the
threat
of
these
measures
going
to
a
vote
gives
Mr.
Picerne
“leverage”
with
the
City
through
his
power
to
have
Mr.
Duffield
withdraw
them,
then
why
is
he
recommending
the
Council
put
them
on
the
November
2028
ballot
rather
than
the
November
3,
2026,
one?
California Government Code Section 9266.5 allows charter amendment proponents to withdraw their measure only up to 88 days before the election. For the November 3, 2026, election, that deadline
passed
on
August
7. So,
if
the
Council
puts
Mr.
Picerne’s
measures
on
the
November
2026
ballot,
Mr.
Picerne’s
leverage
will
be
gone:
he
can
no
longer
offer
to
withdraw
them
in
return
for
a
“deal.”
But
if
the
Council
follows
the
staff
recommendation
to
put
them
on
the
November
2028
ballot,
then
Mr.
Picerne,
through
his
implied
control
of
Mr.
Duffield
and
through
him
the
possibility
of
withdrawing
the
measures,
will
have
leverage
over
the
City
for
another
two
years
.
Or did the City Manager get his measures mixed up, again, and was his August 14 newsletter regarding
Mr.
Picerne’s
nefarious
motives
not
about
the
three
Charter
amendment
petitions,
but
about
the
“Responsible
Housing
Initiative,"
which
the
City
Manager
believes,
if
approved
by
voters,
would
give
Mr.
Picerne
some
sort
of
unexplained
private
financial
benefit?
I
don’t
know.
August 25, 2026, City Council agenda comments - Jim Mosher Page 6 of 9 Technical Observation It is interesting to note that one of staff’s recommendations in the latest version of the agenda that I have seen is for the Council to “ g) Review the draft arguments for the Three initiatives and NBSA’s
ballot
arguments
against
the
Three
Initiatives.
”
{emphasis
added]
I have trouble understanding why NBSA, after working so hard to get the measures on the ballot,
would
be
arguing
against
their
adoption.
Is this part of the “leverage” considerations that I don’t understand? Conclusion Considering the court found inapplicable most of the Elections Code timing considerations that might
otherwise
have
compelled
such
a
result,
I
do
not
believe
staff’s
recommendation
for
the
Council
to
defer
the
public’s
vote
on
these
three
measures
to
the
November
2028
ballot
has
anything
to
do
with
a
desire
to
“protect”
voters
rights.
Instead,
it
seems
a
naked
ploy
to
buy
two
more
years
in
which
to
use
taxpayer
money
to
litigate
to
crush
those
rights
and
prevent
these
three
measures
from
ever
being
voted
on.
That seems evident from staff’s August 21 decision, notwithstanding the present pretense of complying
with
the
court
order,
to
file
a
petition
seeking
to
be
relieved
of
the
duty
to
comply
with
it from the Court of Appeal, in what is now Case No. G067335. And if the claim is that the City is trying to save taxpayer money, I think it can be confidently predicted the court costs of this continuing
effort
to
block
the
public’s
right
to
vote
will
far
exceed
what
it
would
have
cost
to
simply
hold
the
election
that
the
voters
requested.
Again, more than 9,000 Newport Beach voters have, with their signatures, asked to vote on
these
three
measures.
They
belong
on
the
November
3,
2026,
ballot,
and
nowhere
else
.
Postscript Regarding District Voting While I firmly believe in the right of those who signed these three petitions to have them voted on,
that
does
not
mean
that
I
myself
signed
the
petitions
or
intend
to
vote
“yes”
on
them.
In fact, the only one I currently feel strongly should be passed is the one amending the City Charter
to
switch
from
“from-district”
to
“by-district”
voting.
And even that is not because I think the “from-district” system we have had since 1955 is bad, but
because
I
don’t
think
it
is
being
implemented
as
intended,
which
I
believe
was
to
ensure
geographic
diversity
on
the
Council
by
setting
up
districts
with
candidates
nominated
from
each,
but
voted
on
by
the
whole
City
and
each
representing
the
entire
City
equally.
So, it is interesting to see the arguments for and against the District Voting measure, which are found in “Attachment P” and “Attachment 0” (which, if the Council delays the measure to the November 2028 ballot, can be withdrawn and rewritten). Both sides say we currently elect representatives to “represent” districts, and City staff seems to have
come
to
see
it
that
way,
as
well,
treating
each
of
the
seven
districts
as
if
it
has
a
single,
specific “elected representative.” But where in our present City Charter Section 400 does it say
August 25, 2026, City Council agenda comments - Jim Mosher Page 7 of 9 that the winner elected by all the City’s voters from among the candidates nominated “from and by”
the
voters
of
each
of
the
seven
districts
are
elected
to
represent
the
voters
of
that
single
district?
Having seven geographically-diverse people representing the whole City equally is fine. But this concept
of
districts
being
stuck
with
a
representative
elected
by
people
outside
the
district
is
fundamentally
at
odds
with
the
basic
notion
of
a
democracy
in
which
elected
officials
represent
the
people
who
elect
them.
Mayor Pro Tem Blom makes the argument that voters throughout the City should be able to choose
who
will
represent
districts
other
than
the
one
in
which
they
live
because
what
those
representatives
from
those
other
districts
will
do
will
affect
them
as
well
as
voters
in
the
other
districts.
But
the
same
argument
can
be
made
for
any
election
in
which
districts
are
involved.
All
California
is
affected
by
the
actions
of
all
40 state
senators
and
80 state
assembly
members.
Should
all
Californians
vote
to
select
the
representative
for
Newport
Beach
and
for
a
district
in
Yolo
County?
And
should
our
November
ballot
ask
us
to
cast
a
vote
in
all
435
contests
for
the
U.S.
House
of
Representatives
because
we
will
be
affected
by
the
votes
of
all
the
representatives.
Should
all
Americans
have
an
equal
choice
in
who
represents
Bangor,
Maine?
And
should
the
residents
of
Bangor,
Maine
have
equal
voice
in
who
represents
us?
I would prefer we did away with the notion that the representatives elected from our seven Council
districts
are
the
representatives
for
those
districts.
But
if
we
cannot,
I
would
either
abolish
districts
altogether,
or
switch
to
“by
district”
voting,
so
that
we,
and
no
one
else,
can
pick
the
people
who
claim
to
represent
us.
Item 21. CONFERENCE WITH LEGAL COUNSEL EXISTING
LITIGATION
Who is Controlling Our Litigation? Sub-Item 21.B ( City of Newport Beach et al. v. Robert Page et al. Orange County Superior Court Case
No.
30-2026-01580961
)
is
a
case
in
which
attorneys
working
for
the
City
failed
to
obtain
from
the
court
a
requested
writ
of
mandate
ordering
Orange
County
Registrar
of
Voters
Robert
Page
to
remove
from
the
November
3,
2026,
ballot
the
“Responsible
Housing
Initiative”
which
the City Council had previously ordered onto that ballot via Item 17 at its November 18, 2025, meeting. The failure to obtain the writ (the trial court denied the City’s request on August 19) appears to be the subject of the first part of the On the Agenda portion of City Manager Seimone Jurjis’ August 21 From City Hall to You newsletter, in which he incorrectly refers to the “Responsible Housing Initiative” as a “Charter amendment initiative,” when it is, in fact, a General Plan amendment.
After lamenting the court’s failure to grant the writ, which he apparently views as having been erroneous,
he
concludes
by
saying
“
The
City
plans
to
appeal
the
decision
.”
Since the Council has not yet held this closed session in which it will apparently be briefed for the
first
time
on
the
denial
of
the
writ,
I
would
think
the
public
has
a
right
to
know
who
made
this
August 25, 2026, City Council agenda comments - Jim Mosher Page 8 of 9 decision to continue costly litigation that the City Manager refers to. Is the decision to appeal up to
the
City
Manager,
the
City
Attorney,
or
some
other
staff
person,
with
the
Council
acting
only
as
observers?
Or
does
the
Council
decide?
If the Council members act only as impotent observers who can do nothing to alter staff’s decisions
as
a
result
of
what
they
are
told,
what,
exactly,
is
the
purpose
of
holding
these
closed
sessions?
It might also be noted that Government Code Section 54956.9 allows such closed sessions only “ when discussion in open session concerning those matters would prejudice the position of the local
agency
in
the
litigation
.”
Since the arguments of the City and its opponents have by now been made pretty public in hundreds
of
pages
of
court
filings,
how,
exactly,
would
the
City’s
position
be
prejudiced
by
discussion
of
those
arguments
in
open
session?
According to prior agendas, City staff has, incidentally, previously discussed this case with the Council
on
July
28 and
August
18,
but
kept
the
public
pretty
much
in
the
dark
about
it.
Court records show it was filed on June 23, 2026, followed by a City News Splash that no longer displays a date, but reportedly posted on June 25. From that timing, I am guessing it may be the litigation the Council unanimously voted to initiate at the conclusion of closed session Item VII.A on June 9, 2026. The June 25 News Splash does not explain the prior to this City staff had apparently decided not
to
accept
the
three
City
Charter
amendment
petitions
that
are
the
subject
of
Item
20 on
the
present
agenda
on
the
grounds
that
although
the
title
and
summary
that
appear
had
the
top
of
each
petition
had
been
published
for
one
day
prior
to
the
commencement
of
circulation
in
the
legal
notices
section
of
a
paper
(the
same
paper
in
which
the
notice
for
the
“Responsible
Housing
Initiative”
had
been
published),
it
had
not
been
published
in
the
paper
the
City
uses
for
its
own
legal
notices.
Adding that information to the News Splash, it seems to be saying that in the City’s view Newport
Beach
voters
would
be
harmed
by
any
inconsistency,
even
if
inadvertent,
in
the
way
the
City
processes
petitions,
so
if
it
was
going
to
block
the
three
new
petitions
from
the
ballot,
then
for
consistency
it
needed
to
go
back
and
invalidate
the
same
proponents’
earlier
petition,
even
though
the
Council
had
previously
approved
its
path
to
the
ballot.
As explained under Item 20, above this purported duty to protect voters from the unexplained harm
that
would
come
to
them
from
the
proponents
not
publishing
for
a
single
day
in
the
City’s
preferred
paper
information
that
would
be
repeated
on
each
petition
seems
a
transparently
insincere
concern
and
a
disservice
to
the
thousands
of
voters
who
signed
those
petitions
assuming
their
signatures,
previously
approved
by
the
Council,
would
count
for
something.
What
has
become
of
government
of,
by
and
for
the
people
in
Newport
Beach?
Why
is
our
government
trying
so
hard
to
thwart
the
people’s
will?
What is the City now Trying to Accomplish? On August 21, two days after the August 19 trial court ruling denied the City’s request for a writ of mandate ordering the Registrar of Voters to remove the Responsible Housing Initiative from
August 25, 2026, City Council agenda comments - Jim Mosher Page 9 of 9 the November 2026 ballot, lawyers representing the City petitioned the Fourth District, Division 3, Court of Appeal (in what is now Case No. G067333) for an “immediate stay” of that order. I am not an attorney, but even if one thought the City should ultimately prevail in its quest to remove
the
measure
from
the
ballot,
what
is
the
urgency
about
blocking
an
order
not
to
remove
it?
How
could
that
possibly
transform
into
an
order
for
the
Registrar
to
immediately
remove
it?
Do “stays” not just block lower court orders, but automatically reverse them, producing, without any
further
argument,
a
result
opposite
to
what
the
lower
court,
after
due
deliberation,
decided
was
the
correct
result?