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HomeMy WebLinkAbout07 - Amending Newport Municipal Code Title 17, Pertaining to Speed Limits - CorrespondenceRECEIVED AFTER AGENDA PRINTED OCTOBER 9, 2018 AGENDA ITEM NO. 7 October 9, 2018, City Council Item 7 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher6d.yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 7. Ordinance No. 2018-18 - Amending Newport Municipal Code Title 17, Pertaining to Speed Limits 1. Ordinance No. 2018-18 does not seem very well coordinated with the simultaneously proposed Ordinance No. 2018-17 (Item 3 on the consent calendar). a. Both change the definition of "Harbormaster" in NBMC Sec. 17.01.30(H), and fortunately, they both do it in the same way, but this one numbers the definition 'A" and the other (because it also introduces a definition of "Harbor Department") numbers it "5". It might be noted that although probably harmless, the proposed definition, and the existing ones in Title 17, that say nothing more than "the Harbormaster is the Harbormaster of Newport Beach," the "City Manager is the City Manager of Newport Beach" are really completely unnecessary baggage. NBMC Sec. 17.01.20 (D) & (E) already says that unless otherwise specified the departments and officers are those of Newport Beach. b. Less fortunately, they propose amending NBMC Sec. 17.65.010 in different ways: Ordinance No. 2018-17 expunges the words "Harbor Resources Manager," while Ordinance No. 2018-18 reverses that and inserts a new Subsection "B" that is compatible with, but not found in Ordinance No. 2018-17. Apparently the Council expects the codifiers to understand what the Council means, although technically, even though it contains older revisions, Ordinance No. 2018-18 has a higher number and will probably take precedence over the newer revisions of Ordinance No. 2018-17 — undoing what was intended to be the latest changes. 2. Setting that problem aside, the "Whereas" section of Ordinance No. 2018-18 is a bit unusual in that it does not cite the Harbor Commission meetings at which the proposed language was discussed, or the May 8 City Council meeting (mentioned in the staff report) at which direction was given to staff to proceed with this. a. Is the "Draft" code ultimately sent to the Department of Boating and Waterways on June 28 (staff report Attachment C), identical to the "Draft" seen by the Council on May 8 (starting on page 3 of the Item 7 staff report, with the "Draft" logo oddly not visible in the Laserfiche version)? 3. For those who love laws in which what is proclaimed in one paragraph is contradicted in another, Ordinance No. 2018-18, like much of our Municipal Code, is a delight. October 9, 2018, Council Item 7 Comments - Jim Mosher Page 2 of 3 a. The present Subsection 17.20.020(A) assures us that for everyone other than safety personnel the speed limit is 5 knots "except as hereinafter provided'— although as best I can tell there are no exceptions elsewhere in the present code. b. Proposed Subsection 17.20.070(A) introduces what appears to be the first exception, but with nothing tying the two together. c. I would suggest the vague "except as hereinafter provided" ending be deleted, and Subsection 17.20.020(A) instead begin with something more specific, like: "Except as provided in Section 17.20.070, no owner, operator or person in command of any vessel, except a public officer or employee in the performance of his or her duty, shall operate ..." i. Without that readers have no idea where to look for exceptions. d. Better yet, given the proposed new Section 17.20.070 is intimately related to the existing Section 17.20.020 ("Vessel Operation"), and given that it consists of instructions about Vessel Operation, it would seem logical that the proposed Section 17.20.070 text be added as a new subsection of Section 17.20.020, rather than as a new standalone section of the code. I think that would produce a cleaner and more easily understood law. The same could be said for the existing Section 17.20.060 ("Air and Water Propulsion Vessels Prohibited"), which again has to do with Vessel Operation, and seems logically a subsection of Section 17.20.020. 4. Although it is not proposed to be changed, the explanation in the existing description of the speed limit in Subsection 17.20.020(A) saying it applies to "any portion of Newport Harbor or the water in the present or prior channel of the Santa Ana Rive►" is a bit puzzling. a. The "prior channel" is presumably a reference to the Semeniuk Slough, but I thought the "present channel" was County land, outside and to the west of our City limit. b. Does the City have any jurisdiction over boating matters there? i. And does Title 17 apply to County tidelands within the City limits? 1. The staff report suggests the County has a 5 mile per hour (rather than 5 knot) speed limit in their areas, and that they will not recognize the new exceptions. 2. If our code applies there, does it need to explain the County waters are an exception (both as to the limit and the authority to exceed it)? c. Per the definitions in Title 17, the description of the waters to which the speed limit applies, as quoted above, does not include the Upper Bay Nature Preserve or the former water ski area in the extreme Back Bay. Is a speed limit needed there? d. If it was the intent, wouldn't it be better to revise the speed limit language to say it applies to boating on all waters under the jurisdiction of the City outside the open ocean? October 9, 2018, Council Item 7 Comments - Jim Mosher Page 3 of 3 5. The proposed Subsection 17.20.070(F), about the appealability of the Harbormaster's decisions seems unnecessary. Subsection 17.65.010(B) (also visible on staff report page 7- 9) says all decisions of the Harbormaster (under any part of Title 17) can be appealed. a. I would suggest Subsection 17.20.070(F) be deleted. b. Inserting unnecessary language in legal codes is generally frowned upon. Because the assumption is every word was put there for a purpose, future speculation about why the unnecessary words exist creates more confusion than clarity. 6. Regarding the communication with the California Department of Boating and Waterways: a. Although apparently not required, it would be comforting to see something acknowledging receipt by DBAW of the letter. b. Was any effort made to verify the letter was received?