"MEASURE E", "WIFI", and OTHER ISSUES

By Jack Janken

I Strongly urge all residents to vote YES on the OPEN SPACE Ballot Initiative. Lets keep control of our most prized but limited public assets, the Beach and Greenbelt, in the hands of the public where it belongs.

Jack strongly urges all residents to vote YES on the OPEN SPACE Ballot Initiative. Lets keep control of our most prized but limited public assets, the Beach and Greenbelt, in the hands of the public where it belongs. Contrary to opponents' assertions, under the California Code of Civil Procedure Sec. 1858-1866 (http://www.leginfo.ca.gov/), this Initiative/Measure does NOT prohibit underground improvements or the erection of temporary facilities ON the Beach for events such as the Summer Beach Concerts, Volley Ball Tournaments, and Surf Festival.

City Open Space, especially and specifically the Beach and Greenbelt, are the most prized and valued, yet limited and irreplaceable, Public recreation parkland and open space assets that must be protected and preserved for the Public Benefit. This Initiative must be passed to ensure these objectives are not subject to possibly irreversible capricious, politically or personally or otherwise motivated Council actions by requiring a citizen vote for additional above ground facilities such as structures, pavement, or parking (not maintenance). Specifically, "This Initiative adds the Beach to the O-S-1 (Restricted Open Space Zone) and strengthens the protections prohibiting construction, development, and improvements in that zone to preserve in perpetuity for parkland and open space purposes the Greenbelt Area and Beach." However, "Replacement or repairs of EXISTING improvements in the O-S-1 zone within their footprint existing on the date of adoption of this ordinance shall be allowed." Specifically, PERMITTED IMPROVEMENTS ARE LIMITED TO:

(a) "Only non-building public improvements relating to landscaping, beautification, erosion control and irrigation improvements by the City of Hermosa Beach which are consistent with or necessary to maintain and assure permanent open space in and for public parks and recreation purposes or relating to anti-seawater intrusion wells as an existing use."

(b) "Improvements to only those two existing parking areas located within the Greenbelt Area across from Clark Stadium and City Hall consistent with or necessary to maintain and assure designated parking spaces, without expanding the existing parking area. SUCH IMPROVEMENTS SHALL BE OF A NATURE AND MATERIAL DESIGNED TO ENHANCE AND PRESERVE THE EXISTING NATURAL LANDSCAPE."

Why MUST this people's Initiative be passed?

1) The City Council currently retains the discretion to add parking to the Greenbelt. This Initiative will prohibit the addition of any NEW parking area on the Greenbelt or Beach without prior voter approval. 2) The vote 2 years ago against constructing a new bike path (in addition to The Strand) on the Beach does not prevent any future City Council from doing so. This initiative puts this decision-making power where it belongs: in the hands of the voting public.

In their ballot argument against this Initiative, the majority of the current City Council characterize the Greenbelt parking issue as "hypothetical" and incorrectly assert that "Greenbelt parking has been outlawed since 1992". However, the FACTS are:

In 1989, the voters by ballot measure created the Greenbelt Open Space (OS) zone (Initiative 89-1001). At that time, there were two parking lots on the Greenbelt, one across from City Hall, and one across from Clark Stadium.

As implemented in City Ordinance No. 17.32.090B, the only allowed improvements to these parking areas are those "consistent with or necessary to maintain and assure designated parking spaces, without expanding the existing parking area", and "shall be of a nature and material designed to enhance and preserve the existing natural landscape."

On May 12, 1992, the City Council decided to and did landscape the parking lot across from City Hall, leaving only that across from Clark Stadium remaining. However, there was NO change to City Ordinance No. 17.32.090B, leaving this parking lot still authorized. Thus, a new parking lot across from City Hall could be legally constructed by only a City Council vote unless the "Open Space Initiative" is passed, which will amend City Ordinance No. 17.32.090B to prohibit it unless voted upon and for by the public.

Furthermore, CONTRARY to opponents' assertions, under the California Code of Civil Procedure Sec. 1858-1866 (http://www.ca.gov), this Initiative does NOT prohibit underground improvements or the erection of temporary facilities ON the Beach for events such as the Summer Beach Concerts, Volley Ball Tournaments, and Surf Festival. Specifically, per

CALIFORNIA CODE OF CIVIL PROCEDURE SECTION (CCCP) 1858-1866 (http://www.leginfo.ca.gov/),

1858. In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted

1859. In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.

1860. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the Judge be placed in the position of those whose language he is to interpret.

1861. The terms of a writing are presumed to have been used in their primary and general acceptation

1864. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.

1866. When a statute or instrument is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted.

Therefore, as shown below, the arguments against measure contain blatantly FALSE assertions that are contrary to California law. Specifically,

I. In their Arguments Against Measure E, the opponents state: (a) "It MUST be INFERRED that the true intent of this measure is to eliminate a host of activities ON the beach which benefit the community", (b) "These beach activities and improvements would be banned because the measure bars any new structures temporary or otherwise."

THE TRUTH/FACTS/LAW

NOWHERE in Measure is the word "temporary" to be found, and therefore per CCCP Sec. 1858, such an "inference" is prohibited under California Law.

Furthermore, since the word "improvement" is nowhere defined in Measure E, per CCCP Sec 1861 it "must be "presumed to have been used in its primary and general acceptation" , which is

Webster's Dictionary defines the word "improvement" as "a change or addition to land, property, etc. to make it more valuable".

Temporary facilities erected for events that are erected and dismantled and removed for 2 or 3 days DO NOT meet this criteria and to contend so is prohibited under California Law.

II. In their Arguments Against Measure E, the opponents state (a) "The City would lose its ability to exercise an option of laying another UNSEEN fiber optic cable UNDER the Beach". And (b) "It would ban needed storm water runoff improvements".

THE TRUTH/FACTS/LAW

The opponents' contention that underground improvements are prohibited is clearly a ludicrous contention since Measure E addresses ONLY improvements ON the Beach and Greenbelt in the OPEN SPACE of those zones. Specifically,

MEASURE E "TITLE": "AN ORDINANCE PROHIBITING CONSTRUCTION OF NEW PUBLIC IMPROVEMENTS ON THE BEACH AND ON THE GREENBELT"

The applicable "zone" designation is "O-S-1 (Restricted Open Space Zone)", and therefore clearly does NOT apply to any improvements under these areas where there is NO "Open Space" (only dirt and sand).

MISTRUST OF THE CITY COUNCIL IS A MAJOR REASON WHY MEASURE E WAS INITIATED AND SIGNED BY NEARLY 3 THOUSAND RESIDENTS OF HERMOSA BEACH. THIS MISTRUST APPEARS TO HAVE BEEN JUSTIFIED BY WHAT COULD BE CONSTRUED AS CONCERTED CITY COUNCIL ATTEMPTS TO DEFEAT THIS MEASURE BY CIRCUMVENTING THE INITIATIVE/PETITION PROCESS PROVIDED FOR IN THE U.S. AND CALIFORNIA CONSTITUTIONS, AND BY MAKING FALSE OR MISLEADING STATEMENTS. (SEE BELOW)

SPECIFICALLY, THE CALIFORNIA "ELECTIONS CODE" SEC. 9202(b) AND 9204 REQUIRE THAT THE BALLOT TITLE AND SUMMARY PREPARED BY THE CITY ATTORNEY (AND APPROVED BY THE CITY COUNCIL), "SHALL NEITHER BE AN ARGUMENT, NOR LIKELY TO CREATE PREJUDICE, FOR OR AGAINST THE PROPOSED MEASURE" AND "SHALL NOT BE FALSE OR MISLEADING".

HOWEVER, AS CONFIRMED AT THE 7/26/05 CITY COUNCL MEETING (SEE VIDEOTAPE/TRANSCRIPT):

Regarding the City Council position on the public Constitutional right to initiate legislation via the Initiative/Proposition process, and the Arguments AGAINST Measure E (Transcript P.24, L.4-6) Councilman Reviczky: "I'm just as strongly against Ballot Box Legislation as you are. I think it's silliness"

Regarding the City Council Arguments AGAINST Measure E (Transcript P.24, L.9-10) Councilman Edgerton: 'Next time we want to see the most radical in our favor."

Regarding the Measure E "Ballot Question" (Transcript P.16, L.16-21) City Attorney Jenkins: "I presented the City Clerk with 18 different possibilities" Councilman Edgerton: "What was the most radical one in our favor?"

CONSEQUENTLY, WHILE NOT AFFECTING THE TRUE INTENT AND EFFECT OF "MEASURE E", THE "BALLOT QUESTION" AND "ARGUMENTS AGAINST" APPEAR TO HAVE BEEN MADE "FALSE" OR "MISLEADING".

DUE TO THE ABOVE, JACK JANKEN WENT TO THE CITY CLERKS OFFICE AND ASKED FOR COPIES OF ALL MEASURE E DOCUMENTS IN THE CITY CLERK'S FILE. HE FOUND THAT ALSO, IN APPARENT VIOLATON OF OF THE CALIFORNIA ELECTIONS CODE

9210. Once filed, no petition section shall be amended except by order of a court of competent jurisdiction.

9215. If the initiative petition is signed by not less than 10 percent of the voters of the city ... the legislative body shall do one of the following: (a) Adopt the ordinance, without alteration, at the regular meeting... (b) Submit the ordinance, without alteration, to the voters pursuant to subdivision (b) of Section 1405 ...

"MEASURE E", as presented in Exhibit A at THE 7/26/05 CITY COUNCL MEETING, AND SENT TO THE "LOS ANGELES COUNTY REGISTRAR-RECORDER" ON 8/1/05 FOR PLACEMENT ON THIS NOV. 8 BALLOT WAS SUBSTANTIALLY MATERIALLY ALTERED. MISSING WAS THE ENTIRE "PREAMBLE" TO MEASURE E DIRECTLY UNDER ITS TITLE THAT DEFINE AND LIMIT THE SCOPE AND INTENT OF MEASURE E . SPECIFICLLY:

("TITLE") "AND ORDINANCE PROHIBITING CONSTRUCTION OF NEW PUBLIC IMPROVEMENTS ON THE BEACH AND ON THE GREENBELT"

(Deleted/Missing, immediately following this TITLE)

"WHEREAS in the last city election an overwhelming majority of the people rejected the construction of a bike path ON the Beach and reaffirmed that the Beach should be preserved as unimproved OPEN SPACE;

"WHEREAS the people desire to insure that the Greenbelt Area and the Beach, the two largest public recreation areas in the City of Hermosa Beach, be placed under uniform voter protection for the public's benefit and no new parking lot ON the Greenbelt or bike path ON the Beach is built without a vote of the people of Hermosa Beach;

When Jack informed the City Clerk of this apparent serious violation of the California Election Code, she immediately on 8/18/05 sent a revision with the correct/legal "Measure E" to the "LOS ANGELES COUNTY REGISTRAR-RECORDER". The City Clerk originally only submitted what was provided to her. The question remains:

A GOOD QUESTON IS WHO (IF INTENTIONAL WOULD BE IN VIOLATION OF CALIFORNIA LAW) PROVIDED THE CITY CLERK THE SUBSTANTIALLY ALTERED AND MISLEADING VERSION OF MEASURE E THAT CLEARLY HAD SUCH A DRAMATIC NEGATIVE IMPACT OF THE UNDERSTANDING OF IT'S SCOPE AND CONTENT?

CITY PROPERTY PURCHASE ADJACENT TO CITY HALL

I do not feel that this purchase was a well conceived and planned, and therefore was NOT a prudent purchase. The decision was made by the current City Council apparently without significant public involvement in discussion or debate. Also, there is no apparent rationale to justify more facilities. Hermosa Beach is only about 1.3 square miles in area, and the population is stable at about 19,000. It is more prudent and cost effective to increase productivity with facilities and personnel that the City already has than to add more bureaucracy or financial burden with additional facilities. There are much higher City priorities, such as public safety in the downtown and surrounding areas, and the numerous city streets and drainage and sewage facilities that are sorely in need of repair or replacement. In any event, nothing should be done without public involvement, a plan with associated costs, and definition of where the funding would come from and how it would be paid for.

CITY SPONSORED (FREE) WIRELESS INTERNET ACCESS SYSTEM

I am willing to revisit this Issue. However, it is unclear whether the City sponsored system was properly and adequately analyzed and evaluated on the basis of cost, performance, maintenance, and most importantly SECURITY. Specifically,

"SECURITY" is an issue of utmost importance that MUST be thoroughly addressed. If security is not provided for and maintained to the latest industry standards, users this system for other than just browsing (e.g. financial transactions) may find themselves victims of identity theft, fraud, and other related crimes. Therefore, if Security is inadequate, users may find that they must still maintain other commercially available Internet access for these uses. This could most certainly have a detrimental impact on its usage, and therefore its financial viability as a free access system. At the very least, potential users must be informed of any deficiencies or limitations associated with Security of any City sponsored wireless Internet access system.

"LIABILITY" is another issue of utmost importance that MUST be addressed. If adequate security is not provided for and maintained to the latest industry standards, the City could be subject to lawsuits by users that are victims of identity theft, fraud and the other related crimes. Adequate insurance, if available, would be necessary and be an additional cost of the system.

Consequently, while we can revisit this issue, I believe that we should prioritize our limited resources to first addressing the more important issues facing our City, such as public safety and law enforcement in the downtown plaza and adjoining areas, and sorely needed repairs or replacement of streets, and drainage and sewage facilities. Nevertheless, any evaluation of a City sponsored system should also consider the following as alternatives:

Hermosa has already given a franchise to another Wireless Internet Service provider to install a low cost system in Hermosa with a projected user cost of about $15/month.

In order to ensure that LOW INCOME residents have SECURE Internet Access for (at least) financial transactions, the City should negotiate with the available providers to initiate either a free or reduced rate based on a verified income threshold (e.g. $50,000/year).

Just recently Google, the second largest U.S. telecom company, proposed to provide free, wireless high-speed Internet access to the city of San Francisco. We should pursue this option as well which would not require any financial investment or liability risk to the City, and would ensure "Security" to the latest and highest standards.

MANAGEMENT AND EMPLOYEE ETHICS, PERFORMANCE, ACCOUNTABILITY

CITIZENS ARE ENTITLED TO HELPFUL COURTEOUS TREATMENT, WITH ALL LAWS FAIRLY AND UNIFORMLY ENFORCED. EMPLOYEE DISCOURTESY, MISFEASANCE, MALFEASANCE, AND ABUSE OF AUTHORITY CANNOT BE TOLERATED. This requires implementation of a system of checks and balances including mandated procedures and documentation that provide for active and continuing City Council efforts to monitor, evaluate, and ensure this via both a FORMAL and INFORMAL CITIZEN COMPLAINT SYSTEM (TIMELY, FAIR, OPEN, AND INTERACTIVE)

- FORMAL: Implement into detailed ordinance ensuring written complaints are filed, heard, investigated, and responded to in a fair, open, and timely manner
- INFORMAL: COMMUNITY INVOLVMENT PROGRAM (Regular Bi-Monthly plus emergency meetings with 1 or 2 City Council Members)

BUILDING STANDARDS AND ZONING CODE REQUIREMENTS

Implement into ordinance detailed procedures ensuring that State and City codes are uniformly and FAIRLY applied and enforced in a timely manner, including expedient rights to appeal and protection of adjacent property during construction.

PARKING

This has always been and continues to be is a complex multifaceted issue that needs to be continually addressed. We will continue to strive to examine any all possibilities to mitigate this problem. We welcome the participation of all residents and businesses.

Develop and implement a long-term plan to address parking including evaluation of General Plan, zoning, and parking requirements

- Parking for certified disabled persons
- Parking Permits issued with signed applicant statement that no on-site parking is being used for storage or other non-paring purposes, subject to City right to inspection (violation penalties including permit denial for 3 years)
- In HIGHLY IMPACTED areas, encourage and approve the establishment of Preferential Residential Parking Areas per H.B. Municipal code 10.36.060, with the following provisions implemented in the Municipal Code:

Parking Permits issued upon resident request as currently done for Yellow Post Parking Meters (Car stickers and Guest Pass), at same cost per permit.

City Street signs denoting "Restricted Residential Parking AREA" paid for by one time assessment to property owners (total cost divided equally). The signs will denote the specified days and hours of enforcement (e.g. nights and weekends 5PM - 10PM)

As a condition of issuing a Parking Permit, Permit holders must agree to allow (upon request by City officials) inspections to verify premises garage or other parking spaces are being utilized for parking, NOT other purposes (e.g. storage). However, a formal (but confidential) complaint would be necessary as a prerequisite for any City inspection request.

- Parking on City sidewalks (prohibited): Increased enforcement and citations: however, In highly impacted areas, examine each on a case by case basis to determine alternate means of providing additional parking without obstructing Fire Department and public access.

STREET RENEWAL AND UNDERGROUND UTILITIES

- Continue to review plan and priorities (particularly priorities with regard to runoff, drainage, and flooding)
- Utilities Undergrounding: Owners of properties on streets which are to be repaved but yet to be undergrounded shall be notified and presented with opportunity to establish underground district significantly in advance to allow establishment of undergrounding districts.

CITY PROPERTY PURCHASE ADJACENT TO CITY HALL

I do not feel that this purchase was a well conceived and planned, and therefore was NOT a prudent purchase. The decision was made by the current City Council apparently without significant public involvement in discussion or debate. Also, there is no apparent rationale to justify more facilities. Hermosa Beach is only about 1.3 square miles in area, and the population is stable at about 19,000. It is more prudent and cost effective to increase productivity with facilities and personnel that the City already has than to add more bureaucracy or financial burden with additional facilities. There are much higher City priorities, such as public safety in the downtown and surrounding areas, and the numerous city streets and drainage and sewage facilities that are sorely in need of repair or replacement. In any event, nothing should be done without public involvement, a plan with associated costs, and definition of where the funding would come from and how it would be paid for.

PUBLIC CONTRACTS

ALL SIGNIFICANT CONTRACTS IN EXCESS OF A SPECIFIED AMOUNT MUST BE REVIEW BY AN OUTSIDE LAW FIRM TO ENSURE THAT POTENTIAL LIABILITY IS IDENTIFIED AND LIMITED.

ELECTION CAMPAIGN ORDINANCE

INCLUDE PROVISION TO PROHIBIT SOLICITING OR ACCEPTING CONTRIBUTIONS FROM CURRENT OR PROSPECTIVE CONTRACTORS, PERSONS, OR OTHER ENTITIES DOING BUSINESS WITH THE CITY.

RECYCLING

In order to preclude potential State fines of up to $10,000 per day:

1) Continuing public notification of State recycling requirements and associated City penalties: On City Website, included in billing statements by Consolidated, and periodic public reports on City progress reported on Website and Local newspapers (Beach Reporter and Easy Reader) and City Council meetings.

2) Promote and encourage anonymous reporting by residents and businesses of scavenging

3) Strict enforcement of Hermosa Beach Code by Police and affiliated City staff to prohibit and stop scavengers from collection at residences, businesses, and on the Beach.

PUBLIC RECORDS

City Council meetings must be recorded on DVD, and identified and retained indefinitely.

SMOKING BAN ON THE BEACH AND PIER

I would encourage support for a smoking ban ordinance on the Beach and Pier. Cigarette filters are not readily biodegradable. While I am sure that many smokers are environment conscious, many are not.