Jim Mosher for Council - The Issues We Face

The state-imposed Regional Housing Needs Assessment requirement to plan for the construction of 4,845 new dwelling units in Newport Beach in the next 8 years, roughly half of them affordable to lower income families, seems predicated on the improbable notion that housing everywhere should be equally affordable, regardless of location.

I supported ACA 7, the bipartisan constitutional amendment proposal that would have returned land use planning to local governments, but failed to get of the Legislature.

I wanted to support the tripartisan citizens initiative that was modeled after it, but that measure was fatally flawed with a preamble that said one thing and a text that said something else.

In the long term, Orange County might benefit from having the Orange County Council of Governments separate itself as a planning entity from the much larger Southern California Association of Governments through which the mandate is passed down to OC. That would provide slightly more local control.

The immediate problem is how to complete the implementation of the RNHA mandate without losing the Newport Beach City Charter's Greenlight provisions requiring voter approval of major amendments to the General Plan.

A likely scenario is Council will place on the ballot a staff-generated land use plan that voters will reject. That might well lead to expensive litigation invalidating Greenlight.

I would suggest an alternative in which the Council puts at least two different RHNA-compliant land use plans on the ballot and the one with the greatest degree of voter approval is deemed adopted even if by less than a majority of voters.

That would provide at least some measure of voter say in the plan, and by avoiding a challenge to Greenlight, preserve our citizens' right to voter approval of any further changes to the adopted plan.

Living close to the flight path, I am highly impacted by airport noise, and have spent countless hours researching airport noise issues.

I seem to be one of the few citizens with the time and technical knowledge to audit JWA's noise reporting.

For many years I thought the Settlement Agreement to be rather useless, since with each revision it seemed to increase the limit on commercial flights to a level above that which the airport would have attained without any agreement, as well as allowing essentially unrestrained growth of the terminal. But in recent years it has served as a true limit on the quantity of commercial traffic and needs to be preserved.

Reduction in commercial noise will, realistically, have to rely on introduction of quieter planes.

The primary threat at the moment is the expansion of non-commercial "General Aviation" jet traffic, which seems on track to equal or exceed the number of commercial operations.

The recently introduced Fly Friendly program may help a little, but again only incrementally.

The solution is not obvious but will almost certainly be expensive and highly impactful.

One suggestion has been installing a tide gate at the entrance to the harbor. But depending on the magnitude of the rise, the Peninsula may have to be raised as well to prevent the ocean from over-topping it.

Since traffic is a perennial concern in Newport Beach, I support Councilmember Brenner’s suggestion to create a citizens Transportation Commission to hear and respond to citizen concerns, whether they be one-way streets in Corona del Mar, safe routes to schools in Newport Heights or widening of Pacific Coast Highway.

Lack of systematic attention to transportation issues has led to such things as inadequate involvement by the City in the Southern California Association of Government's Connect SoCal 2024-2050 Regional Transportation Plan/Sustainable Communities Strategy, the assumptions of which, in part, influenced the size our Regional Housing Needs Assessment allocation.

The updated General Plan Circulation Element recently adopted by the City Council seems little more than a promise to deal with transportation issues when and if they arise. For example, it commits the city to the new concept of “complete streets,” but provides no indication of when, where or how this transformation will occur, and with glaring inconsistency commits, with no change at all, to the same road locations and designs adopted in 2006. Likewise, it is claimed to be a community-created plan, yet the council was not told, nor did they ask, what citizen suggestions were incorporated into it, and which were rejected.

Homelessness is not only a human tragedy, but it is a regional, if not national, problem. So it is unrealistic to think Newport Beach can alone make the tragedy go away, or move it somewhere else. Or that there is any simple solution.

The people who are homeless need help. And providing permanent supportive housing seems one of the few proven aids.

One problem from a transparency perspective is that Newport Beach does not appear to be approaching the problem in an entirely open way.

In 2019, the Council created a Homeless Task Force with Council members and citizen experts, but promptly rethought this when Council members felt inviting the public to its meetings made them too contentious. So by 2020 the Task Force was reconstituted as a three Council member committee that could meet privately to formulate a recommendation over the remainder of that year. But no report was delivered and it appears the larger group continued to meet, but privately, and beyond 2020.

In March 2022 the Council formally re-established the private 3-member committee with a report due, again, by the end of the year. There is evidence the larger group continues to meet, but it is impossible for the public to know.

I believe the committee should meet publicly, and embrace the public comment, however unwelcome it way be, not hide from it.

One of the voters' other choices for District 3, Erik Weigand, has posted a Four Step Plan to Address Homelessness that seems to lack a strategy to house any of the homeless. Instead, it seems to assume Newport Beach can force them to go elsewhere by doing things such as closing the OCTA Transportation Center in Newport Center. That seems contrary to the wish to encourage public transit and retain options for getting to work and shopping. An if every city forces the homeless to move, we will simply have a revolving population of them.

Ultimately, the only humane thing to do is to house the homeless and every city needs to bear its share of that burden.

Because a city’s authority over group homes is limited by state and federal law, this is an issue regarding which it is easy to make promises, but difficult to deliver results.

Attempts at regulation can lead to expensive litigation if it appears the City is targeting a group of protected individuals, which is how the federal government views those recovering from addictions to drugs or alcohol.

A decade ago, Newport Beach seemed to be leading the way on permissible local regulation, but now other cities appear to have tighter controls.

Newport needs to update its regulations while continuing to lobby for better state and federal rules.

To this end, the Council appointed a subcommittee of three members to privately investigate and report back to the full Council. However, after holding a single public workshop, the subcommittee did not report back. Instead, without any discussion, the Council authorized staff to present whatever ordinance revisions they desired to the Planning Commission. A proposal was presented, but the hearing on it cancelled. The topic then came back to the Planning Commission as a study session item ending with no clear direction. At that session, several citizens testified as if they were "on" the Council subcommittee, and questioned whether its recommendations were being accurately reported. This is strange since the Council made no such appointments. But the opaqueness of the process does not seem like a good way to proceed.

The Council has continued (and stepped up enforcement of) our long-running requirement for STR permits, and it has imposed a cap on the total number of permits it will issue. I think those are good things.

But they have also allowed those permits to be renewed in perpetuity and transferred with sale of the property, which I think are bad things, as they create a special privilege not equally available to all. Those who enjoy STR income may not agree, but I think that to administer such a program fairly, as well as to move the STR problems around, the limited number of permits should be awarded to eligible properties through a periodic lottery system, with existing holders having to reapply (and possibly lose their permit) on the same footing as those waiting for a chance.

The fractional home ownership debacle is an example of poor staff support thwarting the people's efforts to deal, through their city council, with what should be a simple problem.

Fractional ownership of the sort considered here consists of a (usually) internet-based company setting up a shell corporation that buys a luxury home they want to turn into a timeshare (a use permitted only in the commercial districts where a hotel or motel could operate). They then sell shares in the corporation, typically eight, to strangers whose ownership share gives them exclusive use of the home for limited intervals during the year.

In response to neighbor complaints about a company called Pacaso marketing fractional ownerships in Newport Beach, City staff first brought the problem to the Council's attention at a November 16, 2021, study session, where it was Item SS3. Despite timeshares never having been allowed in the residential neighborhoods of our city, staff concluded (erroneously in my belief), based on a hyper-technical reading of the Municipal Code that Pacaso homes did not fit the current definition of "time share project" and hence were not prohibited and probably never could be, because many other homes had multiple owners. Nonetheless, the Council directed them to study how other cities were addressing the problem, and report back.

The report (by an outside consultant) did not come back until a new study session on September 13, 2022 (Item SS2), at which it became apparent nearly every city with timeshare ordinance regarded fractionally-owned homes as a form of timeshare, and most prohibited them in residential areas, if not their entire city. Staff continued to insist they didn't fit the current definition in Newport Beach, even though I presented evidence the current definition had survived unchanged since 1982, at which time all forms of timeshare were very clearly prohibited. After being told by staff that interpretation was incorrect, the Council directed staff to use the other cities as a model to revise the definition to include homes fractionally-owned for timeshare use by strangers, without prohibiting co-ownership of homes by family or friends, and possibly consider a moratorium while the details were worked out.

When the matter came back for formal action on September 27 (Item 1), the moratorium idea was scrapped because the Council was told by two of its members (erroneously in my belief) that the required urgency standard could not be met and it would be too risky legally. However, staff promised that to stem the rising tide of fractional home sales, they could get the timeshare definition revised as requested at the October 6 and 20 Planning Commission meetings, and brought back for adoption by the Council in November, with it going into effect by the end of the year.

However, on October 6, in a shocking about-face, staff ignored the Council direction and steered the Planning Commission away from the definition change option, and instead urged them to work with the industry to develop regulations that would not prohibit, but allow the companies to operate in all residential areas -- something they would need to study for several months before making a recommendation to the Council.

This was a complete reversal of what the Council had directed and been promised. And a bitter disappointment to the many impacted homeowners who thought their Council and City staff were working to address their concerns.

See Stop Pacaso Now for more on how other cities have taken swift and effective action on this issue.

This is part of a series of dubious actions taken to avoid Greenlight votes.

In this case, the Council and City staff were apparently faced with a proposal to build an even bigger clone of the Museum House, which had been approved by the Planning Commission (including its current District 3 candidate) in 2016, but defeated by citizen referendum. And they wanted to build it on land both the voters and the California Coastal Commission had approved solely for visitor-serving commercial uses, namely a hotel.

Changing the land use to allow 159 new homes would clearly require voter approval under City Charter Section 423 (Greenlight).

To avoid the people of Newport Beach having a veto power over their desires, the Council resorted to the unusual ploy of having the Planning Director simply declare that 30% of the hotel use allocation approved by voters in the General Plan could be used interchangeably for residential development, even though he had no clear, if any, legal authority to do so.

They then waited for the 90-day statute of limitations on challenging land use decisions to expire before continuing to process the application.

Since it was now purported no land use change was needed, and hence no Council action required, it was claimed the Planning Commission was authorized to approve this massive tower, which they enthusiastically did, their current District 3 candidate seconding the motion to approve it, even though the approval involved $15.9 million of monetary exactions from the applicant that would not normally have been within the jurisdiction of the Planning Commission to approve.

I attempted to appeal the Planning Commission approval to the Council for review, but was not allowed to do so by City staff. More precisely, they returned my duly-filed appeal with a rejection letter, something they have no known authority to do under our Municipal Code, and something it appears had never been done before in the history of City. Certainly not in the last 10 years, from which they could find no other example.

Examples abound of poorly-drafted and poorly-vetted legislation adopted without modification despite indications there were problems with it.

A judge in a case involving commercial docks said the applicable code was so badly written it was impossible to guess what it was intended to mean.

This arises, in part, from not making full use of the required first and second readings of the ordinances by which he laws are adopted.

Under state law and Section 412 of our City Charter, the first reading triggers publication of the text of the proposed new law, which can only be adopted at a second reading after the public has had time to review it. But modern Newport Beach City Councils invariably find the second reading on the "consent calendar" where further discussion almost never occurs. Hence we are generally left with whatever City staff proposed at the initial reading, with little or no citizen modification to it.

The lack of introspection is frequently obvious, as well, in the measures recent Councils have put on the ballot for voter adoption, which are placed there by resolution rather than ordinance, and hence seen a single time before going to the vote.

Measure Z in 2020, whose purpose was to add the powers and duties of the Harbor Commission to the City Charter was presented to voters without any review by the Harbor Commission, and without repealing the slightly different ordinance it was apparently intended to replace.

Measure B on the June 2022 primary ballot, was defeated largely because of flaws that were pointed out, but ignored by a majority of the Council, during its public review on the night it was placed on the ballot.

In 2019, the Council appointed a three-member Election Reform Committee.

In one of the few examples of Council or citizen-initiated policy, the Committee recommended a system of lobbyist registration, imposed by ordinance in 2020.

Unfortunately, staff has essentially ignored the ordinance, and two years later, it appears the City has a single registered lobbyist, and even that one has misunderstood the staff-generated form so that although her clients are revealed, precisely what actions she may be lobbying for on their behalf is unknown.

The Committee also recommended some minor refinements to the way in which the campaign contribution limits are determined. Those, too, appear to have been ignored.

I would recommend that to avoid backroom deals, the Council adopt a policy to rotate the Mayor and Mayor Pro Tem positions annually, on a strict seniority basis, with those positions being offered (with a right of refusal) to the longest-serving Council member who has not previously held them.

I would recommend all Council members be allowed to place an item on a future agenda. The "rule of three" that the Council currently uses -- in which a minimum of three Council members have to support putting an item on the agenda before staff will do so -- encourages Brown Act violations (in which a majority of the Council privately discuss a matter). In the City of Anaheim it has also been blamed on the secrecy surrounding the aborted Angels Stadium sale. For the Council members who wanted public discussion didn't have the three votes necessary to publicly air the matter.

And to avoid the specter Measure B raised of an official being elected, like the disgraced Mayor of Anaheim, by a small plurality of voters in a multi-candidate race, I would recommend the City adopt either a primary/runoff system or some equivalent, such as ranked choice voting.

I believe:

• Council meetings should be moved back to a predictable evening hour, such as 7:00 p.m.

• Study Sessions should also be held in the evening, but on alternate Tuesdays so they don't run into the regular meetings.

• No votes or "direction to staff" should be given at study sessions. They should be for study.

• Members of the public should be given, again, the ability to pull items from the Consent Calendar for separate discussion and vote by the Council.

• The time limit for public comments should be restored to 5 minutes, as it was for most of the City's life, or at least 4 minutes.

A city charter is a document through which voters can set both limits and requirements on how their government will work. City staff and elected officials can do no more or less than the charter allows.

Newport Beach is fortunate to have been a charter city since 1955, one of just 121 in California.

Unfortunately, what was originally a voter-proposed document has become increasingly adulterated by a series of staff and Council-driven amendments, that were accepted, rather than initiated, by the city's citizens.

That government-driven erosion of the Charter is one of the most troubling things I have observed in my 13 years of paying close attention.

It included the questionable Council-proposed Measure V in 2010, which required voters to give a single "yes" or "no" to a package that included 13 unrelated changes to Charter -- some of which had been voted down in the past when presented as separate questions -- and the repeal of a voter-enacted ordinance thrown in for good measure. Voters were deceptively told they needed to vote "yes" if they wanted to close a loophole future Councils could purportedly use to evade Proposition 13.

This was followed by the even more egregious Measure EE in 2012. Citizens were again given a single "yes" or "no" vote on an incredible 38 unrelated charter changes -- again including ones with a history of being rejected when presented as separate questions. The package was again deceptively presented, this time telling citizens they needed to vote "yes" if they wanted to prevent future Councils from deploying automated traffic ticket writing "red light cameras" at Newport Beach intersections. Even with that ploy, it was less successful than the 2010 measure.

The theme in both of these largely staff-driven measures was that when the government was found to not be following the Charter, the solution was not to follow the Charter, but rather to change the Charter to make legal whatever the staff had been doing.

I will try my best to roll back some of the worst of the deceptively-adopted changes.

As an example of problems with transparency in City government, the August 23 City Council agenda f included an Item 3 on the consent calendar, recommending approval of increasing the annual raises in City employee salaries from the previously agreed to 2% in each of the three coming years to 3%.

In connection with this, Mayor Muldoon (see video at 1:52:10) made the rather extraordinary comment that the scrutiny this had undergone demonstrated how "completely transparent" the City is: the proposed increases had been reviewed and recommended by the Council's "labor group" also known as their "labor subcommittee" (Council members O'Neill, Blom and Dixon) and then unanimously approved by the full Council at an earlier closed session.

Among the problems with this:

1. The public did not know the Council had a "labor subcommittee," let alone that they were meeting or considering a request for employee salary increases. Hence he public had no opportunity to provide input to them .

2. Even now, the public does not know how the "labor subcommittee"'s members were chosen or by whom.

3. The public was not told the subject of the closed session, so, again, had no chance to provide input.

4. No announcement was made at the end of the closed session, so the public was unaware any decision had been made, let alone who voted for it.

Whatever the merit (or lack of merit) of the pay raises, this was a textbook example of conducting public business in darkness, not in the light of day.

Among the reforms needed:

1. Eliminate these shadowy Council working groups that discuss issues privately with staff and make recommendations to the remaining Council members, through a process completely hidden the public.

2. Demand the topics to be discussed in closed sessions be clearly stated, and the decisions made at them clearly reported.

I recommend:

• Changing to "by district" elections, in which the people of a district, and only they, choose who will represent them on the Council

or

• Eliminating districts entirely and electing all Council members "at large"

I also recommend the City move to a system of primary and runoff elections, or adopt their near mathematical equivalent: Instant Runoff ("Ranked Choice") Voting in which on a single ballot, voters are invited to indicate their 1st, 2nd, and so on choices for the office

Newport Beach has long been both a residential community and a tourist destination.

Our City services are funded largely by property taxes, the largest part of which is paid by the residents.

That revenue is supplemented by a Transient Occupancy Tax paid by hotel, motel and other short-term lodging guests to help defray he cost of the extra service needs they create.

For years, the hotels funded a private "Conference and Visitors Bureau" marketing their industry.

During an economic downturn in 1987, the CVB came to the City Council asking it to tack a surcharge onto the TOT to supplement their member dues. The Council agreed to do that on a 4:3 vote. Predictably, the member dues soon dried up, and the City is now the sole funder of what has become Visit Newport Beach, funding it to the tune of roughly $6 million per year, out of which the CEO of this small private contractor is paid nearly as much as the City Manager of our entire City government.

Some say the revenue generated by this marketing is a great boon to the residents, providing us with much better services than we would otherwise have.

But since the tourists place a burden on the residents it is not clear either that they "pay their own way." Nor is it obvious that the marketing has even been effective.

As to the latter, the number of visitors, mostly to our beaches is generally quoted as being around "10 million a year." But that is the same number that was quoted in 1987 when the City began collecting tax revenue for marketing.

As to the former, if it were true the present scheme was a great net revenue creator and quality of life booster, it seems obvious the Council would want to invest still more, and much more money, into it. For those who believe this assume every dollar invested would generate many times that amount in benefit to the City. But it would also mean we want Newport Beach to turn into a sort of booming Disneyland or Las Vegas strip, with residents as an afterthought.

I find it hard to believe that is what a majority of residents want. So I think this whole idea needs to be rethought.

Much as I doubt the benefit of working actively to increase the already large amount of tourism we experience, I am skeptical of the pervasive notion that bigger is always better.

I fall in the camp of those who think our goal should be sustainable communities, which tend to be stable in size. In other words, becoming Better not Bigger.