HomeMy WebLinkAbout03 - Second Reading and Adoption of Ordinance No. 2018-17 - Amending Newport Beach Municipal Code Titles 1 and 17 Related to the Harbor DepartmentPORT CITY OF
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<-FoaN'P City Council Staff Report
December 11, 2018
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Carol Jacobs, Assistant City Manager - 949-644-3313,
cjacobs@newportbeachca.gov
PREPARED BY: Carol Jacobs, Assistant City Manager
cjacobs@newportbeachca.gov
PHONE: 949-644-3313
TITLE: Second Reading and Adoption of Ordinance No. 2018-17 —
Amending Newport Beach Municipal Code Titles 1 and 17 Related to
the Harbor Department
ABSTRACT:
At its November 27, 2018 meeting, City Council introduced and approved the first reading of
Ordinance 2018-17, Amending Title 1 and 17 of the Municipal Code. This is the second
reading of the Ordinance.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly; and
b) Adopt Ordinance 2018-17 An Ordinance of the City Council of the City of Newport Beach,
California, Amending Newport Beach Municipal Code Titles 1 and 17 Related to the
Harbor Department.
FUNDING REQUIREMENTS:
The cost of the Harbor Department has been included in the budget.
DISCUSSION:
With the creation of the Harbor Department, changes to Titles 1 and 17 are necessary to
reflect the new organizational structure. Title 1 of the Newport Beach Municipal Code outlines
the General Provisions. Section 1.12.020 provides the authority for public officers to write
citations. This section previously identified the Harbor Resources Manager as having
authority to write citations for violations of the Municipal Code. Under the Harbor Department,
the duties of the former Harbor Resources Division were divided between the new Harbor
Department and the Public Works Department. The change in this section reflects replacing
the Harbor Resources Manager with the Public Works Director. The Harbor Department and
Public Works Director have been added as having authority to write citations.
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Second Reading and Adoption of Ordinance No. 2018-17 — Amending Newport Beach
Municipal Code Titles 1 and 17 Related to the Harbor Department
December 11, 2018
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Changes to Title 17 include: 1) the Orange County Sheriff's Department has been removed
from the code as they will no longer enforce the City's Municipal Code; 2) the Harbor
Department and Harbormaster have been created and the duties of each defined;
3) additional duties and responsibilities of the Public Works Director have been defined as he
or she will be responsible for pier permits and development activities around the harbor;
4) other changes include changing responsibilities from the Harbor Resources Manager to
the Harbormaster or the Public Works Director.
To clarify the time limits on the revocation process, Section 17.40.140(A) has been modified
from 15 working days to 15 calendar days and Section 17.50.030(C) has been modified from
10 days prior to 10 calendar days prior to a decision.
Section 17.60.040(B)(1)(a) has been modified to include language that the yacht clubs and
LICA may nor sell or otherwise transfer the moorings under their control to a third party that
is not a member of the yacht club or LICA. Mooring records are to be provided annually to
the Harbormaster by February 1St of each year.
A minor clerical change was made to NBMC Section 1.12.020(8) from Title 14 of the California
Administrative Code to Title 14 of the California Code of Regulations. The California
Administrative Code term is outdated and appears in a number of locations within the Code.
As sections are revised, staff is updating the reference.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result
in a direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines,
California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting
in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Ordinance No. 2018-17
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ATTACHMENT A
ORDINANCE NO. 2018-17
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, AMENDING NEWPORT
BEACH MUNICIPAL CODE TITLES 1 AND 17 RELATED
TO THE HARBOR DEPARTMENT
WHEREAS, Section 200 of the Charter of the City of Newport Beach ("City") vests
the City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitutions, and the power to exercise, or act pursuant to any
and all rights, powers, and privileges, or procedures granted or prescribed by any law of
the State of California;
WHEREAS, pursuant to the 1978 Beacon Bay Bill, as amended, ("Beacon Bay
Bill") the City of Newport Beach ("City") acts on behalf of the State of California as the
trustee of tidelands located within the City's limits, including Newport Harbor;
WHEREAS, the City adopted rules and regulations for Newport Harbor, which are
contained in Newport Beach Municipal Code ("NBMC") Title 17;
WHEREAS, the City recently assumed management responsibilities from the
County of Orange within Newport Harbor and created a Harbor Department to oversee
these new responsibilities;
WHEREAS, the creation of the Harbor Department and the assumption of new
responsibilities in Newport Harbor necessitates amendments to NBMC Titles 1 and 17;
WHEREAS, Ordinance No. 2018-17 was introduced at a regular meeting of the
City Council of the City of Newport Beach (the "City Council") held on October 9, 2018
and adopted by the City Council at a regular meeting held on October 23, 2018 by a vote
of 4-0 (with Mayor Marshall "Duffy" Duffield and Council Member Scott Peotter recusing
themselves and Mayor Pro Tem Will O'Neill being absent); and
WHEREAS, at a regular meeting held on November 13, 2018, by motion duly
made by Council Member Brad Avery and seconded by Council Member Kevin Muldoon,
this City Council voted to reconsider Ordinance No. 2018-17, which motion was passed
by a vote of 5-0 (with Mayor Marshall "Duffy" Duffield and Council Member Scott Peotter
recusing themselves).
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: NBMC Subsection 1.12.020(B) is hereby amended to read as follows:
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Ordinance No. 2018-17
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B. The Fire Chief, Public Works Director and Harbormaster, and members of the staff
designated by the Fire Chief, Public Works Director and Harbormaster, shall have the
power to issue citations for any violation of Titles 11 and 17 of this Code, Chapters 7.04,
7.16 and 7.20 of this Code, Sections 6.04.060, 6.04.200 and 10.06.010 of this Code, the
Fish and Game Code of the State of California, Title 14 of the California Code of
Regulations, the provisions of the Health and Safety Code of the State of California that
pertain to animals and the provisions of Chapter 5 of Division 3 of the Harbors and
Navigation Code of the State of California.
Section 2: NBMC Subsection 1.12.020(G) is hereby amended to read as follows:
G. The Fire Chief, Public Works Director and Harbormaster, and members of staff
designated by the Fire Chief, Public Works Director and Harbormaster, shall have the
power to issue citations for any violation of Title 9 of this Code, Sections 22500.1 and
22514 of the California Vehicle Code, any provision of State or local law related to fire
suppression or fire prevention and any provision of State and local laws pertaining to the
handling, use, storage or disposal of hazardous materials or waste.
Section 3: NBMC Subsection 17.01.030(B)(6) is hereby amended to read as
follows:
6. [Reserved.]
Section 4: NBMC Subsection 17.01.030(H) is hereby amended to read as follows:
1. Harbor Commission. The term "Harbor Commission" shall mean the Harbor
Commission of the City of Newport Beach.
2. Harbor Department. The term "Harbor Department" shall mean the Harbor
Department of the City of Newport Beach. Any provision within this Code or any
uncodified ordinance or resolution referring to the Harbor Resources Division shall mean
the Harbor Department.
3. Harbor Lines. The term "harbor lines" shall mean all established bulkhead, pierhead,
and project lines as defined within Newport Harbor by the Federal, State, County and City
Governments. The harbor lines in Lower Newport Bay have been established by an act
of the U.S. Congress and can only be modified by an act of Congress.
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4. Harbor Maintenance Uses, Equipment and Facilities. The terms "harbor maintenance
uses, equipment and facilities" shall mean all uses and their related equipment, vessels,
docking, and land storage facilities and access which provide: dredging and beach
replenishment; demolition, repair and new construction of docks, piers, bulkheads, and
other in -and -over -water structures, mooring maintenance and repair; waterborne debris
and pollution control, collection, and removal. This category also includes environmental,
survey, or scientific vessels and related equipment based, or on assignment, in Newport
Harbor. All vessels under this definition may also be referred to as "work boats."
5. Harbormaster. The term "Harbormaster" shall mean the Harbormaster of the City of
Newport Beach, or his or her designee. Any provision within this Code or any uncodified
ordinance or resolution referring to the Harbor Resources Manager shall mean the
Harbormaster.
6. Harbor Regulations. The term "harbor regulations" refers to Title 17 of the Newport
Beach Municipal Code.
7. Harbor Structures. The term "harbor structures" refers to any pier, float, piling,
bulkhead, seawall, reef, breakwater or any other structure in, upon or over the waters of
Newport Harbor or the Pacific Ocean or any other water where the tide ebbs and flows
within the City of Newport Beach or adjoining waters.
8. Habitat. The term "habitat" shall mean the locality, including the physical and
biological environment, in which a plant or animal lives.
9. Headwalk. The term "headwalk" shall mean that portion of a dock that serves as a
primary pedestrian access to mainwalks, fingers, and slips. Fingers may be attached
directly to headwalks. Headwalks are generally parallel to the bulkhead. The term
"marginal walk" is synonymous with "headwalk."
10. Houseboat. The term "houseboat" shall mean any vessel or structure on or in any
waterway, floating or nonfloating, which is designed or fitted out as a place of habitation
and is not principally used for transportation.
Section 5: NBMC Subsection 17.01.030(M)(11) is hereby amended to read as
follows:
11. Public Works Director. The term "Public Works Director" shall mean the Public
Works Director of the City of Newport Beach, or his or her designee.
Section 6: NBMC Subsection 17.01.030(0)(1 1)(b) is hereby amended to read as
follows:
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Ordinance No. 2018-17
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b. Sub-Permit—Short-Term. The term "short-term sub -permit" shall be defined as those
mooring sub -permits issued by the City for a temporary use of a deemed vacant or noticed
vacant mooring for any period of time less than thirty (30) days as determined by the
Harbormaster.
Section 7: NBMC Section 17.05.040 is hereby amended to read as follows:
The responsibility for the administration of the provisions of this title is delegated to the
City Manager, or officers or employees of a department or departments of the City
designated by him or her; provided, however, that some or all of the duties necessary to
be performed in the administration may be performed by the Harbormaster.
Section 8: Section 17.05.055 is hereby added to NBMC Chapter 17.05 to read as
follows:
17.05.055 Duties of the Harbormaster
It shall be the duty of the Harbormaster to:
A. Act for and assist the City Manager in administering the provisions of this title,
coordinating with appropriate department directors for services falling within their
respective functions as defined in Title 2 of this Code, and coordinating as required with
other governmental agencies and with interested civic associations;
B. Act as the head of the Harbor Department and supervise and assist the City staff
assigned to the Harbor Department to carry out the purposes of Title 17, or any successor
title.
C. Administer the harbor -related policies adopted by the City Council and the Harbor
Commission, and to recommend to the City Manager appropriate changes and
modifications to harbor -related policies; and
D. Conduct regular inspections of both public and private facilities and structures
located upon or over the waters of Newport Harbor or the Pacific Ocean or any other
water where the tide ebbs and flows within the City, and to recommend action to the City
Manager to ensure compliance with this title.
Section 9: NBMC Section 17.05.060 is hereby amended to read as follows:
17.05.060 Duties of the Public Works Director
It shall be the duty of the Public Works Director to.-
A.
o:
A. Maintain files and records of all pier permits issued by the City,
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Ordinance No. 2018-17
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B. Perform such duties as assigned to the Public Works Director by Title 17, or any
successor title; and
C. Issue approvals in concept for development located on tidelands or submerged lands
that did not involve a discretionary action authorized by Title 20 or Title 21 of the Code
where the authority is specifically assigned to the City Council, Planning Commission,
Community Development Director, or Zoning Administrator.
Section 10: NBMC Section 17.05.070 is hereby amended to read as follows:
All channels, turning basins, anchorage areas, and pierhead and bulkhead lines in
Newport Harbor shall be as established by the Federal Government or by the City Council
upon recommendation of the Harbor Commission. A map thereof shall be kept on file in
the offices of the City Clerk and the Harbor Department for public inspection.
Section 11: NBMC Section 17.05.110 is hereby amended to read as follows:
Where uncertainty exists regarding the interpretation of any provision of this Code or its
application to a specific site, the Harbormaster shall determine the intent of the provision
and issue a written administrative interpretation. An interpretation by the Harbormaster
may be appealed to the Harbor Commission, as provided in Chapter 17.65, or any
successor chapter.
Section 12: NBMC Subsection 17.05.120(C) is hereby amended to read as
follows:
C. Penalty for Failure to Pay Fees. Any owner or permit holder who fails to pay any fee
required by this title after same is due shall be subject to a penalty in the amount
established in Chapter 3.36 of this Code, or any successor chapter. Failure to pay the
fee, plus any accrued penalty within one hundred twenty (120) days of when the fee was
due shall constitute grounds for revocation of the permit by the Harbormaster.
Section 13: NBMC Subsection 17.05.120(D) is hereby amended to read as
follows:
D. Administration. The Harbormaster and/or Public Works Director shall administer the
provisions of this title, except for the collection of fees, which shall be the responsibility of
the Finance Director.
Section 14: NBMC Section 17.10.030 is hereby amended to read as follows:
An application for permit under this chapter shall be filed with the Harbormaster, upon
forms provided by the City, and shall contain such information which the Harbor
Commission or Harbormaster may require.
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Ordinance No. 2018-17
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Section 15: The introductory paragraphs to NBMC Section 17.10.050 are hereby
amended to read as follows:
Upon receipt of a complete application for a marine activities permit, the Harbormaster
shall investigate the information contained in the application. The Harbormaster shall refer
the application to the Community Development Department to verify that all of the
applicable Zoning Code regulations or conditions have been addressed or complied with
and the Public Works Department to ensure safe vehicular ingress and egress, and the
safe loading and unloading of passengers and supplies. The Harbormaster may also refer
the application to the Harbor Commission, or other appropriate City departments for
investigation, report or recommendation. The Harbormaster may inspect, or cause to be
inspected, the vessel(s), marine sanitation device(s) of the vessel(s), boarding facilities,
parking and all upland support facilities listed in the application. The Harbormaster shall
notify an applicant of his or her decision in writing within ninety (90) days from the date
on which a completed application is received.
Except as provided in this section, the Harbormaster may issue the marine activities
permit upon a determination that approval of the application will not adversely affect the
health, safety or welfare of those who use, enjoy, or own property near Newport Harbor.
The Harbormaster shall approve the application unless:
Section 16: NBMC Section 17.10.070 is hereby amended to read as follows:
A. In granting any permit pursuant to this chapter, the Harbormaster, or the Harbor
Commission on appeal, may impose any additional conditions on the permit to ensure
that the proposed commercial activity will be compatible with the predominantly
recreational character of Newport Harbor, the rights of other persons using Newport
Harbor, the interests of residents and property owners whose properties abut or are in
close proximity to Newport Harbor, and the interests of the general public. Any such
permit shall contain a provision stating that the permittee shall defend, indemnify and hold
the City, the County of Orange, and the State of California harmless from any claim for
damages, penalties or fines arising out of the exercise of the permit; or the activities of
the permittee carried on under the authority of such permit.
The Harbormaster or Harbor Commission, on approval or review, shall have the power to
impose new conditions or modify existing conditions with regard to any permit issued
pursuant to this chapter upon a determination that the operations by the permittee, in the
absence of the new or modified conditions, may adversely impact the health, safety or
welfare of those who use, enjoy or own property near or on the waters of Newport Harbor.
B. All permits issued pursuant to this chapter are subject to the following standard
conditions:
Ordinance No. 2018-17
Page 7 of 36
1. Adequate off-street parking shall be provided for all passengers or patrons of
the commercial harbor activity;
2. No passenger loading or unloading is to occur at any fuel dock or public dock;
3. Passengers transported to or from the commercial harbor activity shall not be
picked up from, or unloaded on, City streets unless specifically approved in writing by the
Harbormaster;
4. All passengers and provisions shall be loaded and unloaded only from docks
or piers where the abutting uplands property is commercially zoned, unless specifically
approved in writing, in advance, by the Harbormaster;
5. Music and sound from the vessel shall be controlled so as not to disturb a
person of normal sensitivity at a point one hundred (100) feet from the hull of the vessel;
6. Music, live entertainment, and all forms of amplified sound are prohibited after
ten p.m.;
7. Air horns, whistles, bells, and other noisemaking equipment shall not be used,
except as required by Coast Guard regulations;
8. All trash and litter generated by the activity shall be properly disposed of in a
private trash receptacle;
9. All vessels in excess of twenty-five (25) feet in length shall operate within main
navigational channels, as far from shore as practical, and the route of travel shall be at
least one hundred (100) feet from any residence;
10. All vessels equipped with marine sanitation devices shall comply with United
States Coast Guard requirements in the use of approved holding tanks for raw sewage,
and dye tablets shall be installed in holding tanks during the operation of the commercial
harbor activity as required by the Harbormaster;
11. All Federal, State, County and City statutes, rules, ordinances, laws and
regulations shall be obeyed;
12. All required insurance shall be maintained in full force and effect for the full
term of the permit;
13. All signs shall comply with the applicable provisions of Title 20 of this Code.
Section 17: NBMC Section 17.10.080 is hereby amended to read as follows:
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Ordinance No. 2018-17
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Unless otherwise specified, a permit issued pursuant to this chapter shall be valid for
twelve (12) months from the date of issuance, unless terminated or revoked prior. The
Harbormaster may issue a permit for a shorter duration, provided the applicant meets all
the requirements of this chapter for the duration of the period remitted.
Section 18: NBMC Section 17.10.085 is hereby amended to read as follows:
A. Enforcement. It shall be the duty of the Harbormaster to enforce each and all of the
provisions of this title, and the Chief of Police shall render such assistance in its
enforcement as may be required from time to time by the Harbormaster.
B. Right of Entry. The Harbormaster and any Police Officer or City employee whose job
includes the enforcement of this chapter, shall have the power and authority to enter, free
of charge, and at any reasonable time, any place of business or vessel subject to the
requirements of this chapter.
Section 19: The introductory paragraph to NBMC Section 17.10.090 is hereby
amended to read as follows:
Any permit granted pursuant to the provisions of this chapter may be suspended or
revoked by the Harbormaster, in whole or in part, upon fifteen (15) days' prior written
notice to the permittee, served in accordance with Section 1.05.030 of the Code, or any
successor section, directing the permittee to appear at the time, date and place specified
in the notice to show cause why the permit shall not be suspended or revoked. The notice
shall specify the reasons for the proposed action. A permit may be suspended or revoked
on any of the following grounds:
Section 20: NBMC Section 17.10.095 is hereby amended to read as follows:
Appeals of any decision of the Harbormaster shall be made in accordance with Chapter
17.60 or Chapter 17.65, or any successor chapters, as applicable.
Section 21: The introductory paragraphs to NBMC Section 17.10.120 are hereby
amended to read as follows:
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The commercial activities of those holding valid permits issued prior to the effective date
of this chapter (March 24, 2006) may be continued to the extent authorized by the prior
permit, provided the previously approved commercial activity shall not be increased or
expanded beyond the activities conducted as of March 24, 2006, the effective date of this
chapter, adopted by Ordinance No. 2006-3 § 2 (part). The holder of a permit issued under
Chapter 17.41 (repealed effective March, 2006) shall apply for a renewal of the permit
issued under Chapter 17.41 as required by this chapter on or before December 1, 2008,
and shall be issued a permit under this chapter to operate under the previously approved
conditions and any condition of this chapter not inconsistent with the operations and
activities authorized under the previously issued permit.
All marine activities permits issued under this section shall be deemed to meet the
requirements of Chapter 17.10, or any successor chapter, for renewal purposes unless
or until such time as the Harbormaster or the Harbor Commission determines there is a
substantial change in the commercial activity. A substantial change may include, but is
not limited to, the following:
Section 22: NBMC Subsection 17.20.040(C) is hereby amended to read as
follows:
C. Tampering with Vessel. No person shall willfully injure or tamper with, or break or
remove any part of or from, any vessel in the City, or tamper with the lines securing any
such vessel, without the consent of the owner or other person having charge thereof,
except for those authorized by the Harbormaster.
Section 23: NBMC Subsection 17.20.040(D) is hereby amended to read as
follows:
D. Tampering with Moorings. No person shall tamper with any mooring or anchorage in
the City whether or not the same is occupied by a vessel, except for those authorized by
the Harbormaster for the maintenance of harbor operations.
Section 24: NBMC Section 17.20.050 is hereby amended to read as follows:
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All stray, unattended or abandoned vessels, timber or any other personal property found
in the water or on the shore of Newport Harbor or the Pacific Ocean, not in the lawful
possession or control of some person, shall be immediately reported to the Harbormaster.
Any such property shall be dealt with as provided in the appropriate provisions of Chapter
1.20 of the Newport Beach Municipal Code, or Section 510, et seq., of the California
Harbors and Navigation Code, as the same now read or may hereafter be amended.
Proceeds of any sale of such property shall be deposited in the general fund of the City.
For purposes of this section, any vessel on the Pacific Ocean shall be deemed to be stray,
unattended and abandoned if the vessel is unoccupied by a person during: any nighttime
hours (dusk to dawn); any time period when a Small Craft Advisory or greater has been
issued by the National Oceanic and Atmospheric Administration; or daylight hours for
more than three (3) hours.
Section 25: NBMC Subsection 17.25.010(A)(2) is hereby amended to read as
follows:
2. No person shall make fast any vessel to any other vessel already occupying any pier,
either public or private without first obtaining a special event permit as required in Chapter
11.03 of this Code, or any successor chapter. At the Rhine Wharf, the Harbormaster shall
have the authority to authorize this activity, via a Rhine Wharf permit, under either of the
following conditions: (a) a commercial fishing vessel is loading or unloading, and no other
mooring or berthing space is available in the harbor for this purpose; or (b) a vessel is
taking refuge from inclement weather and no other mooring or berthing space is available
in the harbor for this purpose. In no event shall more than one vessel be made fast to the
dockside vessel and no other vessel shall be made fast to the outboard vessel. Both
vessels shall have operators aboard at all times.
Section 26: The introductory paragraph to NBMC Subsection 17.25.010(C)(1) is
hereby amended to read as follows:
1. Public piers and other harbor facilities may be maintained by the City for the purpose
of loading and unloading passengers, supplies, and boating gear and for similar
purposes. It is the policy of the City to maintain such facilities in a manner that will permit
the greatest public use and avoid continuous occupancy, congestion or blocking thereof.
Where necessary to achieve public use and to avoid extended occupancy, congestion or
blocking thereof, the Harbormaster is authorized and directed to post the following dock
markings or signs limiting the time during which a vessel may be tied up or secured, or
supplies or gear may be placed at or on any such pier or facility. The dock markings shall
have the meanings as herein set forth:
Section 27: NBMC Subsection 17.25.010(C)(2) is hereby amended to read as
follows:
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2. The Rhine Wharf, adjacent to the Rhine Wharf public pier, shall not be used
by vessels for any purpose except with a valid Rhine Wharf permit issued by the
Harbormaster, and subject to the following conditions:
a. Vessels may be tied or secured to the Rhine Wharf for four hours maximum;
b. The Harbormaster shall have the authority to limit the size of vessels using the
Rhine Wharf;
C. Vessels using the Rhine Wharf shall be in the actual process of loading,
unloading or engaged in temporary repairs; and
d. The Harbormaster may authorize an extension of the four hour period where
special circumstances dictate such an extension.
Section 28: NBMC Section 17.25.020 is hereby amended to read as follows:
A. Location. No person having charge of any vessel shall berth or anchor the same in
Newport Harbor except within the designated areas. Any vessel which is berthed, moored
or anchored at a place not designated for such vessel shall be moved as directed by the
Harbormaster. In the designation of mooring areas and anchorage areas, consideration
shall be given to the needs of commerce, the utilization of turning basins, the use of
channels for navigation, and the economy of space. No vessels shall be moored or
anchored in any part of any turning basin or channel unless secured both fore and aft
except as provided in subsection (1) of this section. Every vessel moored or anchored in
any part of the harbor outside of any turning basin or channel shall be so moored or
anchored as to prevent such vessel from swinging or drifting into any turning basin or
channel.
1. It is unlawful and a public nuisance for any person owning, leasing, occupying
or having charge or possession of any vessel to: (a) berth or anchor the same in Newport
Harbor except within the designated areas; or (b) anchor a vessel at any location on the
open waters of the Pacific Ocean within five hundred (500) yards of a designated
protected swimming area for a cumulative period of time that exceeds seventy-two (72)
hours within any thirty (30) calendar day period. The Harbormaster may authorize an
extension to the seventy-two (72) hour time limit if the Harbormaster determines that
given the particular circumstances an extension of time is reasonable and warranted.
2. Any vessel which is berthed, moored or anchored at a place in Newport Harbor
not designated for such vessel shall be moved as directed by the Harbormaster. In the
designation of mooring areas and anchorage areas in Newport Harbor, consideration
shall be given to the needs of commerce, the utilization of turning basins, the use of
channels for navigation, and the economy of space.
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B. Application of Chapter. The terms of this chapter, as they relate to moorings and
buoys, shall apply to "on -shore moorings" which are moorings located landward of the
pierhead line and to "offshore moorings" which are located bayward of the pierhead line,
with equal force and effect.
C. Berthing.
1. Boats berthed at private or public piers shall not extend beyond the projection
of the property lines of the property to which the pier is connected in accordance with
Section 17.35.020, or any successor section.
2. Any boat berthed at a pier or slip shall not extend bayward a distance of more
than the maximum width of its beam beyond the end of the pier, or slip. Between Bulkhead
Station 256, beginning at Collins Avenue to Bulkhead Station 255, boats moored at a pier
or slip shall not extend more than fifteen (15) feet bayward from the end of the pier or slip
or more than the width of the beam of the boat, whichever is less.
D. Permit Required. No person shall place, erect, construct or maintain a pier mooring
or buoy in the waters of Newport Harbor over City -owned or controlled tidelands without
first having obtained a permit pursuant to this title.
E. Unauthorized Use of Mooring. No person shall use a mooring unless he holds a
current and valid permit except with the permission of the Harbormaster for temporary
use, as herein provided.
F. Chains and Fastenings.
1. No person shall erect, construct or maintain any mooring in Newport Harbor
unless all chains and fastenings are of sufficient size to stand a breaking strain of at least
six times the weight of the mooring.
2. All mooring lines on buoys shall be so arranged that, when dropped, they will
immediately sink. With a double mooring, however, it shall be permissible to connect two
mooring lines with a spreader line having floats attached thereto to keep such line afloat
when the mooring is unoccupied.
G. Buoy Markings. Mooring buoys shall be painted with the number allocated thereto
by the Harbormaster to the mooring, the numeral(s) of which shall be at least three inches
in height.
H. Maintenance. All moorings shall be kept in good and serviceable condition in the
location assigned by the Harbormaster.
I. Mooring, Anchoring and Vessel Condition Requirements.
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1. Mooring Anchoring. All vessels anchored on the open waters of the Pacific
Ocean shall be anchored in such a manner so that the vessel does not come in contact
with another vessel or structure. All vessels using moorings in Newport Harbor shall be
firmly anchored to a mooring from bow and stern in such a manner as to prevent the
vessels from swinging, turning or drifting, except in areas designated by the Harbormaster
as single mooring areas. Vessels in single mooring areas shall be tied from the bow. All
vessels anchored in Newport Harbor in the designated anchorage area shall be anchored
in such a manner so that the vessel does not come in contact with another vessel or
structure and does not extend beyond the demarcation line of the designated anchorage
area.
2. Vessel Condition—Seaworthiness and Operability. Vessels assigned to a
mooring by permit shall be maintained in an operable and seaworthy condition. If, based
upon the appearance of the vessel, inspection by the City or other facts, the Harbormaster
has cause to believe a vessel is not seaworthy and operable, the Harbormaster shall give
written notice in accordance with the service requirements of Section 1.05.030 of this
Code, or any successor section, to the permittee requesting a demonstration that the
vessel is seaworthy and operable. The permittee shall, upon written notice specifying the
date and time, demonstrate to the Harbormaster that the vessel assigned to the mooring
is seaworthy or operable. In the event that the Harbormaster determines that vessel is
not seaworthy or operable, the permittee shall: (a) commence repairs within thirty (30)
days upon service of the written notice of such determination and complete repairs within
ninety (90) days of the commencement unless the Harbormaster, upon written request
from the permittee specifying the reasons therefor, approves an extension of time to
complete the repairs; or (b) remove the vessel within thirty (30) days of service of the
written notice of such determination and request assignment of a different vessel that is
seaworthy and operable to the mooring within sixty (60) days after the removal of the
vessel. This section is not intended to apply to any brief period of repair common to most
vessels. The Harbormaster may repeat his or her request to test operability and
seaworthiness as needed.
3. It is unlawful and a public nuisance for any person owning, leasing, occupying
or having charge or possession of any vessel in the City, to maintain, permit, cause or
allow to exist on such vessel any of the following conditions:
a. Promotion of a fire hazard, including, but not limited to, improper open fuel
storage, deficiencies in the vessel's fuel storage tanks, inoperable electrical systems,
storage of combustible or other flammable material that constitutes a fire hazard to any
vessel;
b. Retention of water that becomes stagnant, unsanitary, or polluted;
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C. Accumulation or storage of rubbish, trash, debris, rubble, containers, and
boxes that is visible aboard the vessel or stored inside the vessel in such a way to make
the vessel inoperable for its intended use;
d. Storage or securing a vessel in such a way that it impedes pedestrian travel
on City beaches and tidelands;
e. Contribution to hazards to public safety and health, such as, but not limited to:
propagation of vermin, rats, insects, unsanitary conditions from the accumulation of fecal
materials;
f. Maintenance in such non -seaworthy condition that it is unsafe, unsightly or
poorly maintained, including, but not limited to: broken windows, unsecured doors and
hatches, excessive marine growth attached to the vessel, the vessel is inoperable for its
intended use, partially destroyed or partially repaired for more than three continuous
months, provides access to marine mammals, is actively seeping hazardous or toxic
material into the surrounding waters, and would present a physical danger to public safety
personnel during emergency access;
g. Operation of its mechanical or electrical systems creates excess noise, odors,
vibrations, fumes, discharges or emissions that constitute an impact on public health or
safety;
h. Violation of the terms and conditions of other use or rental permits as granted
by the City of Newport Beach;
i. Allowance of repetitive, boisterous or unruly conduct by the vessel operator or
occupants when that conduct: (i) is offensive to a person of ordinary sensibility, (ii)
continues after a written or oral request to terminate the conduct, (iii) is offensive to a
considerable number of people;
j. Anchorage in an area controlled by the City without adequate anchor(s) rope
and chain appropriate for the wind and sea conditions encountered in Newport Bay;
k. Inability of a vessel on a shore mooring to be self-righting on an incoming tide
without flooding the vessel;
I. Attachment to a mooring in such a way that the vessel regularly drifts and
impedes safe navigation in the bay; and
m. Installation of a marine sanitation device that is not connected directly to an
internal holding tank at all times while in Newport Bay.
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In the event that the City of Newport Beach determines that a vessel is a public
nuisance, the City of Newport Beach may commence public nuisance abatement per
Chapter 10.50 of the Municipal Code, or any successor chapter.
4. If, based upon the appearance of the vessel, inspection by the City or
Harbormaster or other facts, the Harbormaster determines that a sea lion has boarded a
moored vessel, the Harbormaster shall issue and serve a notice of violation in accordance
with Section 1.05.030 of the Code, or any successor section, and the permittee shall take
any and all necessary action to employ and maintain appropriate measures to deter sea
lions from boarding the vessel within seven (7) calendar days of the notice of violation. If
the Harbormaster determines that appropriate deterrent measures have not been taken
within seven (7) calendar days of the notice of violation, the Harbormaster may issue an
administrative citation and the permittee shall: (a) take any and all necessary action to
employ and maintain appropriate sea lion deterrent measures; or (b) remove the vessel.
Appropriate deterrent measures shall be defined as the latest methodology permitted by
National Marine Fisheries Service to minimize sea lion boarding of vessels assigned to a
mooring.
5. With the exception of the sea lion deterrence requirements, the requirements
of this section are not applicable to vessels used in marine construction or marine
contracting services.
J. Specifications. Specifications for the size of chains required on moorings and weights
of moorings shall be adopted by resolution of the City Council.
K. Inspection of Moorings. Each mooring shall be lifted by the owner for inspection by
the Harbormaster at least once every two (2) years and shall be repaired so as to be in
good condition before being replaced, provided that the Harbormaster may require any
mooring to be lifted at any time when deemed necessary to assure it is in good condition.
If the permittee has such lifting performed by a marine contractor, then the Harbormaster
may authorize such contractor to inspect the mooring on behalf of the Harbormaster and
certify the results to the Harbormaster in writing. The permittee shall pay the costs of any
inspection performed by a contractor on behalf of the Harbormaster.
L. Rental Not Permitted. Except as authorized in Section 17.60.040(B)(1)(a), or any
successor section, no mooring may be leased or rented by the permittee to another
person except with the written permission of the Harbormaster.
M. Administration. The Harbormaster shall administer all provisions in this section
dealing with moorings and buoys, except the revocation of permits by the Harbor
Commission and collection of all fees hereafter.
Section 29: NBMC Section 17.25.030 is hereby amended to read as follows:
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A. Vessel or Trailer Storage on Beaches Prohibited—Exceptions. No person shall store
any vessel, watercraft, trailer or other similar object on any public beach in the City except
as provided in subsection (A)(1) of this section. As used in this section, the term "store"
shall mean to leave or permit to remain unattended for a period of two (2) hours or more
and not in the possession or control of the owner or user.
1. Vessels, watercraft and equipment directly related to the use of the vessel or
watercraft (related equipment) may be stored on a public beach as follows:
a. Any vessel(s), watercraft and/or related equipment owned and maintained by
the City or its contractors which is (are) used in conjunction with recreation programs
offered by the City;
b. Any vessel(s), watercraft and/or related equipment that cannot feasibly be
berthed or moored at a privately owned pier or mooring and is (are) used by a nonprofit
corporation for noncommercial purposes provided a vessel storage permit has been
approved by the Harbormaster. A vessel storage permit shall be approved only if there is
substantial evidence that the permit would not adversely affect the health, safety or
welfare of those who use, enjoy or own property near the waters of Newport Bay. Vessel
storage permits are subject to the following standard conditions as well as any additional
conditions imposed by the Harbormaster:
i. The permit shall not cause or permit any unreasonable noise that would
adversely affect the use or enjoyment of public or private property in the vicinity of the
vessel, watercraft or equipment;
ii. The permit shall not engage in, or permit, any activity that unreasonably
interferes with the use of the beach or adjoining waters by the public;
iii. The permit shall not cause or permit any activity that pollutes any public or
private property of the waters of Newport Bay; and
iv. The permit may be revoked by the Harbormaster, without cause, at any time,
upon thirty (30) days' written notice to the permittee; and
c. Any vessel for which a mooring permit has been issued by the City pursuant
to Section 17.60.040, or any successor section, provided the vessel remains on the beach
only to the extent necessary to load or unload.
Section 30: NBMC Subsection 17.30.030(C) is hereby amended to read as
follows:
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C. Nonconforming Bait Receivers. Storage of live bait other than in a receiver
conforming to the requirements hereof is prohibited. After three (3) calendar days' written
notice, served in accordance with Section 1.05.030 of the Code, or any successor section,
to the owner of a nonconforming receiver, it may be removed by the Harbormaster and
stored at the expense of the owner.
Section 31: NBMC Subsection 17.30.030(F) is hereby amended to read as
follows:
F. Transfer of Live Bait. No person shall transfer live bait from one vessel to another
vessel or sell the same at retail from a vessel within the limits of Newport Harbor, except
when all vessels involved are moored to a pier and are within the pierhead line, except
that during a period of adverse conditions of sea or beaches causing the transfer from
offshore receivers to be hazardous, a location inside the harbor may be used with the
approval of the Harbormaster.
Section 32: NBMC Section 17.40.030 is hereby amended to read as follows:
No person shall live -aboard any vessel assigned to an offshore mooring without first
having obtained a live -aboard permit from the Harbormaster. No live -aboard permit shall
be issued except to a person holding a valid mooring permit issued pursuant to Chapter
17.60 of the Newport Beach Municipal Code, or any successor chapter. No permit shall
be issued to any live -aboard which is not intended to serve as the principal residence of
the permittee. For purposes of this section, principal residence shall mean to live -aboard
for not less than eight (8) months in any calendar year.
Section 33: The introductory sentence to NBMC Section 17.40.040 is hereby
amended to read as follows:
An application for a live -aboard permit shall be filed with the Harbormaster upon forms
provided by the City and shall contain the following information:
Section 34: NBMC Subsection 17.40.040(E) is hereby amended to read as
follows..
E. Other information the Harbormaster reasonably believes is necessary or helpful to
the efficient administration of the provisions of this chapter.
Section 35: The introductory sentence to NBMC Section 17.40.050 is hereby
amended to read as follows:
Upon receipt of an application for a live -aboard permit, the Harbormaster shall investigate
the information contained in the application. The Harbormaster shall deny the application
if:
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Section 36: NBMC Section 17.40.070 is hereby amended to read as follows:
A. The Harbormaster may impose such conditions on the permit as are reasonably
necessary to insure that the activities of the permittee comply with the provisions of this
chapter.
B. The Harbormaster shall have the power to promulgate rules and regulations to insure
that the purposes of this chapter are satisfied. Each permittee shall comply with these
rules and regulations. Compliance shall be considered a condition to each live -aboard
permit.
Section 37: NBMC Section 17.40.100 is hereby amended to read as follows:
Each permittee shall maintain a log for the use of pumpout facilities. The log shall contain
the date, time, and location waste was discharged. The discharge log shall be available
for inspection by the Harbormaster at all reasonable hours and upon request. The log
shall be submitted to the Harbormaster with the renewal application.
Section 38: NBMC Subsection 17.40.110(B) is hereby amended to read as
follows:
B. The Harbormaster shall establish a waiting list of persons who wish to apply for a
live -aboard permit. The waiting list shall consist solely of persons who hold valid mooring
permits issued pursuant to the provisions of Chapter 17.60 of the Newport Beach
Municipal Code, or any successor chapter. Any person who sells or transfers the vessel,
or any ownership interest in the vessel, assigned to a mooring shall be removed from the
waiting list. In the event the number of live -aboard permits falls below the limit specified
in subsection (A) of this section, the Harbormaster shall notify the person or persons next
in order on the waiting list of the vacancy or vacancies. The notice shall specify that
applications will be accepted for thirty (30) days after the date of the notice, and that
failure to apply within the thirty (30) day period will result in removal of that person or
persons from the waiting list. Notice shall be deemed given when deposited in the United
States mail, with the first class postage prepaid, and addressed as specified by the person
or persons on the waiting list. City shall not be liable for a failure to notify any person or
persons on the waiting list since placement on the list does not create any property right
in any person or persons on the list nor any contractual obligation on the part of the City.
An application for placement on the waiting list shall be accompanied by a fee established
by resolution of the City Council, but in no event shall the fee exceed the cost of
administering the waiting list.
Section 39: The introductory sentence to NBMC Subsection 17.40.140(A) is
hereby amended to read as follows:
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A. Any permit granted pursuant to this chapter and Chapter 17.60, or any successor
chapter, may be suspended or revoked by the Harbormaster upon a determination that:
Section 40: NBMC Section 17.40.150 is hereby amended to read as follows:
In the event the Harbormaster determines there may be grounds for suspension or
revocation of a permit issued pursuant to this chapter, the Harbormaster shall give written
notice in accordance with Section 1.05.030 of the Code, or any successor section, of
intent to suspend or revoke the permit and the right of the permittee to request a hearing
before the Harbormaster within fifteen (15) calendar days from the date on which notice
is deemed served. The notice shall state the reason for the proposed suspension or
revocation and shall be accompanied by any documents in the possession of the
Harbormaster that pertain to the grounds for the proposed action.
If the permittee does not request a hearing within fifteen (15) calendar days of the date
the notice is deemed served, the decision of the Harbormaster shall be final and permittee
shall not be entitled to an appeal.
Section 41: NBMC Subsection 17.50.010(C) is hereby amended to read as
follows:
C. A separate permit will be required by the Public Works Department for dredging (see
Chapter 17.55, Dredging Permits).
Section 42: NBMC Subsection 17.50.020(A) is hereby amended to read as
follows:
A. Required Forms. Applications for authority to erect, revise and do maintenance work
on structures shall be filed in the office of the Community Development Department and
the Public Works Department in writing on forms prescribed by the Building Official. Plans
showing the location, extent and character of the proposed work and required fees shall
accompany the application. The Community Development Department shall not issue a
permit without prior approval of the Public Works Department.
Section 43: NBMC Subsection 17.50.030(A) is hereby amended to read as
follows.-
A.
ollows:
A. The application and plans and specifications shall be reviewed by the Public Works
Director and Community Development Department to determine whether the proposed
work meets all the requirements of this Code and any standards and policies adopted by
the City Council or required by State or Federal regulatory agencies for such construction
or work.
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Section 44: NBMC Subsection 17.50.030(8)(4) is hereby amended to read as
follows:
4. Approval in Concept. All development in areas where the Coastal Commission
retains coastal development permit authority shall require conceptual approval from the
Public Works Director prior to application to the Coastal Commission. An approval in
concept from the Public Works Department indicates the proposed development
conforms in concept to all applicable provisions of this title only and does not provide
approval for any applicable land use and property development regulation.
Section 45: NBMC Subsection 17.50.030(C) is hereby amended to read as
follows:
C. Before issuing a permit for any work on oceanfront beaches or for any unusual type
of harbor structure, or for a structure on which the applicant proposes a use that is not in
keeping with the surrounding area, all property owners or long-term lessees within three
hundred (300) feet of the proposed work shall be notified in writing by the Public Works
Department of the pending application. Notice will be sent at least ten (10) calendar days
prior to a decision by the Public Works Department, and after the department has
rendered a decision. The permit shall not be issued until the appeal or call for review
period provided in Chapter 17.65, or any successor chapter, expires.
Section 46: NBMC Subsection 17.50.040(A) is hereby amended to read as
follows:
A. Approval. The City is authorized to approve and issue new permits and revisions to
existing permits that conform to the design criteria and all applicable standards and
policies in conjunction with plan reviews by the Public Works Department.
Section 47: NBMC Subsection 17.50.050(A) is hereby amended to read as
follows:
A. In granting any such application, the Public Works Director shall issue the permit to
the owner or long-term lessee of the abutting upland property and may impose conditions
in the permit which are deemed necessary to protect commerce, navigation or fishing, or
the use, operation or development of Newport Harbor.
Section 48: NBMC Section 17.50.070 is hereby amended to read as follows:
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Permits shall only be issued to and held by the owner or long-term lessee of the abutting
upland property. The permittee shall not transfer a permit without prior written approval
of the City and payment of fees as established by resolution of the City Council. No person
who as an abutting upland owner or lessee of real property was granted a permit under
the provisions of this chapter for a pier or similar structure shall retain any right of use in
such pier, or similar structure after having divested himself of the ownership or leasehold
interest in such real property. Upon such divesting, the ownership interest in such pier,
float or similar structure shall remain with the person to whom the permit was granted, but
the right of use thereof shall vest in the City until such time as a permit for such pier, float
or structure is granted to another person. Except where rights of ownership or use have
heretofore been judicially decreed, no person may heretofore or hereafter gain any rights
of ownership or use of any such pier or similar structure by any purported transfer made
without such prior written approval of the City. The Public Works Director is authorized to
approve transfers of permits.
Section 49: NBMC Section 17.50.100 is hereby amended to read as follows:
If, based upon an inspection by the City or the Harbormaster or other facts, the
Harbormaster determines that a sea lion has boarded a permitted structure and/or any
vessel or other appurtenances attached to the structure, the Harbormaster shall issue a
notice of violation and the permittee shall take any and all necessary action to employ
and maintain appropriate measures to deter sea lions from boarding the structure and/or
any vessel or other appurtenances attached to the structure within seven (7) calendar
days of the notice of violation. If the Harbormaster determines that appropriate deterrent
measures have not been taken within seven (7) calendar days of the notice of violation,
the Harbormaster may issue an administrative citation and the permittee shall take any
and all necessary action to employ and maintain appropriate sea lion deterrent measures.
Appropriate deterrent measures shall be defined as the latest methodology permitted by
National Marine Fisheries Service to minimize sea lion boarding of a permitted structure
and/or any vessel or other appurtenances attached to the structure.
Section 50: NBMC Section 17.55.010 is hereby amended to read as follows:
A. Dredging bayward of residential and commercial property shall be the responsibility
of the harbor permittee for the area delineated by the bayward prolongations of upland
side property lines and the U.S. project line. All such dredging will require a dredging
permit from the Public Works Department and other agencies with jurisdictional authority
and may be subject to engineering approval by the Public Works Department.
B. Dredging outside the established harbor lines will require prior approval by the Public
Works Department and the U.S. Army Corps of Engineers.
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Section 51: NBMC Subsection 17.55.020(A) is hereby amended to read as
follows:
A. Required Forms. Applications for dredging permits shall be filed in the office of the
Public Works Department in writing on forms prescribed by the Public Works Director.
Section 52: NBMC Subsection 17.55.020(B) is hereby amended to read as
follows:
B. Required Materials. Applications shall be accompanied by all plans, maps, and other
materials required by the prescribed forms, unless specifically waived by the Public Works
Director. Applications shall include the following:
1. Eelgrass (Zostera marina) and Caulerpa taxifolia protocol surveys;
2. Grain size analysis;
3. Identification of the dredge disposal site and dredge quantities; and
4. Any other materials the Public Works Director deems necessary to support the
application.
Section 53: NBMC Section 17.60.010 is hereby amended to read as follows:
The State of California became the owner of tidelands on admission to the Union in 1850.
The City manages those tidelands pursuant to various legislative grants from the State.
The State Lands Commission, which administers tidelands, generally requires a trustee
to negotiate leases on the basis of the current market value of the parcel. Failure of a
trustee to receive consideration approximating the fair market value of leased tidelands
could, under certain circumstances, be considered a violation of the legislatively imposed
public trust. The City manages the tidelands through a series of permits, franchises and
leases. The Public Works Director shall have the authority to approve, conditionally
approve, or disapprove applications for the uses and activities that require a harbor permit
by the individual chapters of this Code, unless the authority is specifically assigned to the
City Manager, Harbormaster, Harbor Commission or the City Council.
Section 54: NBMC Subsection 17.60.020(A) is hereby amended to read as
follows:
A. Required Forms. Applications for permits which pertain to the harbor under the
provisions of this title shall be filed in the Public Works Department, in writing, on forms
prescribed by the Public Works Director.
Section 55: NBMC Subsection 17.60.020(B) is hereby amended to read as
follows:
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B. Required Materials. Applications shall be accompanied by all plans, maps, and other
materials required by the prescribed forms, unless specifically waived by the Public Works
Director. The Public Works Director may request additional materials deemed necessary
to support the application.
Section 56: NBMC Subsection 17.60.030(C)(2) is hereby amended to read as
follows:
2. Whenever a permittee sells the abutting residential upland property, a request shall
be made to the City to transfer the permit. Forms for this purpose may be obtained from
the Public Works Department. Failure to apply for a transfer within thirty (30) days from
the date that the abutting upland residential property changed ownership will result in an
additional fee as established by resolution of the City Council.
Section 57: NBMC Subsection 17.60.030(C)(3) is hereby amended to read as
follows:
3. Along with the City Manager, the Public Works Director is authorized to approve
transfers to the new owners or long-term lessee of the abutting upland residential
property.
Section 58: NBMC Section 17.60.040 is hereby amended to read as follows:
A. Permit Required. No person shall place, erect, construct, maintain, use or tie to a
mooring in the waters of Newport Harbor over City -owned or controlled tidelands without
first having obtained a mooring permit from the Harbormaster or having otherwise
complied with this section. A mooring permit is in the nature of license for the temporary
use of a specific location within the Newport Harbor.
B. Issuance of Permit—Conditions. The Harbormaster, in furtherance of the tideland
grants to the City, may issue a mooring permit or mooring sub -permit to allow the mooring
permittee or mooring sub -permittee to temporarily use a portion of the waters of Newport
Harbor for the mooring of a vessel. Upon the effective date of this chapter, a mooring
permittee may hold up to two mooring permits at any time. A mooring permittee that holds
more than two mooring permits prior to the effective date of this chapter may continue to
hold the mooring permits until the permits are sold, revoked, or otherwise transferred
under this chapter.
1. Exceptions.
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a. The Balboa Yacht Club and the Newport Harbor Yacht Club (collectively,
"yacht clubs") currently hold permits for single point moorings placed within certain
mooring area boundaries established by the City, except as noted in subsection (13)(3)(f)
of this section. In addition, the Lido Isle Community Association ("LICA") has permits for
onshore moorings on Lido Isle. These organizations shall hold their respective permits
under the yacht club, or respective organization name, for the moorings identified by the
City as under their respective control at the time of enactment of the ordinance codified
in this section. The yacht clubs and LICA shall be solely responsible for managing
moorings under their control and shall be permitted to assign moorings under their control
to yacht club members and members of LICA, respectively. The yacht clubs and LICA
shall keep accurate records of the name and address of the club members and community
association members to which each mooring has been assigned. The yacht clubs and
LICA may not sell or otherwise transfer the moorings under their control to a third -party
that is not a member of the yacht club or LICA. Mooring records shall be provided
annually to the Harbormaster on or before February 1 st
b. Mooring of a Tender. A single vessel no longer than fourteen (14) feet in overall
length to serve as access to and from the assigned vessel may be secured to the
assigned vessel or may be secured to the offshore mooring in the absence of the
assigned vessel. Notwithstanding the single vessel restriction, permitted live-aboards
may secure up to two (2) vessels no longer than fourteen (14) feet in overall length to the
assigned vessel, to serve as access to and from the assigned live -aboard vessel.
c. Multiple Vessel Mooring System Program. The Harbormaster may approve a
multiple vessel mooring system in the mooring areas of Newport Harbor Yacht Club and
the Balboa Yacht Club. An application for a multiple vessel mooring system shall be
submitted in writing to the Harbormaster, who shall evaluate the application based upon
standards he or she shall have established.
2. Permit Requirements. Each mooring permit may be issued for up to two (2)
natural persons ("mooring permittee(s)") who shall be individually and collectively
responsible for all activities related to the mooring permit. To the satisfaction of the
Harbormaster, the mooring permittee(s) shall:
a. Identify on the permit the full legal name(s), current address(es), current
telephone number(s) and current e-mail address(es), if one exists, of the mooring
permittee(s);
b. Agree to be responsible for permit rent, fees, maintenance and repair of
mooring equipment;
c. The permit for joint ownership moorings shall provide that all parties shall have
equal rights under the permit and shall be held jointly responsible for compliance with all
rules, regulations, and conditions set forth in the mooring permit;
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d. Grant permission to the City to temporarily assign the mooring to another
vessel when it is unoccupied through the issuance of a mooring sub -permit;
e. Agree to defend and indemnify the City and any other government entity with
jurisdiction against any claims or losses arising out of, or related to the use of, the mooring
permit except where the claim or loss arises from the sub-permittee's damage of the
mooring, or out of the negligence and/or misconduct of a person assigned the mooring
as a mooring sub -permittee under subsections (G) and/or (H) of this section;
f. Provide proof of insurance on a vessel as may be determined by the City's
Risk Manager;
g. Provide registration or other proof of controlling possessory right in the
assigned vessel, all to the satisfaction of the Harbormaster;
h. Agree to pay fair market value rent, as established by resolution of the City
Council, on a rent schedule established by the Harbormaster, which shall be similar to
the schedule used to collect rent from other tidelands users in Newport Harbor;
i. Agree that the mooring permit does not provide any ownership interest in the
underlying tidelands, which are held in trust by the City and owned by the people of the
State of California; and
j. Authorize the City, or its designee, to move the vessel on the mooring to another
location when deemed necessary by the Public Works Director and/or Harbormaster.
3. Perm ittee/Transferee Qualifications. A mooring permit may be held by, or
transferred to, only the following persons:
a. A natural person(s) holding title to an assigned vessel;
b. An executor or administrator carrying out the terms of a will or administering
a probated estate that holds a mooring permit, but only for the period of time prior to
distribution of the estate;
c. An inter vivos trust, family trust, or other similar type of trust estate holding a
mooring permit, so long as all trustors are natural persons and the primary mooring
permittee shall be the trustee of the trust;
d. An approved transferee whose vessel and/or mooring permit are subject to
any of the terms and conditions stated in subsection (E) of this section;
e. A marine contractor or marine support service provider, holding a mooring
permit used to provide current or ongoing harbor infrastructure and marine or fishing
services (such as maintenance and dredging);
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f. Balboa Island Yacht Club for the purposes of youth education in boating and
marine activities; Kerckhoff Marine Laboratories for the purpose of marine and
oceanographic research; and American Legion Post 291 for the purpose of serving
veterans and their families and supplying them with affordable access to boating and
harbor activities; or similar marine educational entities; or
g. The Balboa Yacht Club, Newport Harbor Yacht Club (collectively "yacht clubs")
and the Lido Isle Community Association—only for those moorings assigned by the City
within certain established mooring areas or locations, prior to the enactment of the
amended ordinance codified in this section. These designated mooring areas may not be
expanded. The boundaries of these mooring areas are graphically depicted by National
Oceanographic and Atmospheric Administration ("NOAX) Chart Number 18754. Yacht
clubs shall be entitled to a maximum number of moorings as can be accommodated in
the mooring fields designated in NOAA Chart Number 18754 and at a minimum the
current number of moorings assigned to them as of the effective date of the ordinance
codified in this section.
C. Plans and Specifications Required. No mooring permit shall be issued for placing,
erecting, constructing or maintaining a mooring or buoy unless such mooring or buoy is
constructed:
1. In accordance with standard plans and specifications approved by the
Harbormaster and at a location approved by the Harbormaster; or
2. In accordance with other plans and specifications for such mooring or buoy
which have been submitted by the applicant, showing the construction of such proposed
mooring or buoy together with the location thereof, and which meet the requirements
established in this chapter and which have been approved by the Harbormaster.
D. Late Fees. A ten (10) percent late charge shall be added to all payments due but not
received by City by the due date.
E. Transfer of Permit. No mooring permittee shall transfer a permit for a mooring or
buoy granted under the provisions of this chapter, except:
1. When transferred from a natural person to another member of his or her
immediate family, which shall be defined for the purposes of this section as the mooring
permittee's spouse and heirs at law to the second degree of consanguinity; or
2. Except when transferred to immediate family, a mooring permit may only be
transferred under this subsection up to one time in any twelve (12) month period.
F. Procedures for Transfers. Permits shall not be transferred without the prior written
approval of the Harbormaster. The Harbormaster may approve the transfer of a mooring
permit under the procedures set out below:
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1. The mooring permittee(s) (or, if the permittee is deceased or incapacitated,
the transferee) shall submit to the Harbormaster:
a. A completed mooring transfer form (on the form provided by the
Harbormaster); and
b. Documentation that the proposed new mooring permittee (transferee) qualifies
as a mooring permittee under subsection (13)(3) of this section.
2. If transferee intends to purchase an assigned vessel but does not have title
on the assigned vessel owned by the mooring permittee and transferor at the time of
transfer, then:
a. Within sixty (60) days of a transfer, transferee shall submit to the Harbormaster
a copy of a California Department of Motor Vehicles registration or other current
registration (or, in lieu thereof, U.S. Coast Guard documentation of ownership)
documenting transferee's ownership of the assigned vessel or, in the case of an onshore
mooring, a photograph of the assigned vessel if it is not subject to vessel registration
laws; or
b. If such documentation is not received by the Harbormaster within the sixty (60)
day period, then the vessel or the mooring may be impounded, the mooring may be
deemed vacant and may be assigned pursuant to subsections (G) and (H) of this section.
3. If transferee intends to moor a vessel other than the assigned vessel and does
not have title to the vessel that will be moored at the time of transfer, then:
a. Within sixty (60) days of an approved transfer, the transferee shall notify the
Harbormaster that the assigned vessel has been removed from the mooring and before
a new vessel may be placed on the mooring shall submit to the Harbormaster a copy of
a California Department of Motor Vehicles registration or other current registration (or, in
lieu thereof, U.S. Coast Guard documentation of ownership) documenting transferee's
ownership of the new assigned vessel, or in the case of a shore mooring, a photograph
of the new assigned vessel if it is not subject to vessel registration laws; or
b. If the documentation is not received within sixty (60) days of a transfer, the
mooring may be deemed vacant by the Harbormaster and the mooring may be assigned
pursuant to subsections (G) and (H) of this section. The mooring may remain vacant until
such time the permittee notifies the Harbormaster of their intent to assign their vessel to
the mooring.
4. The transfer request shall be denied unless mooring permit rent, including late
payment fees, is paid current; required mooring inspections are current; required
maintenance and repairs are complete and there are no derelict or unauthorized vessel(s)
on the mooring.
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5. The mooring permittee and transferee shall provide a written agreement to
defend and indemnify the City of Newport Beach in any dispute with a third party over
transferee's right to be the mooring permittee or in any dispute with a third party over the
mooring permittee's right to transfer the permit.
6. Transfer Approval. Upon confirmation of compliance with this subsection, the
Harbormaster shall find all of the following conditions to approve the transfer of a mooring
permit.-
a.
ermit:
a. The mooring permittee no longer owns the assigned vessel or has retained
ownership of the assigned vessel and has permanently vacated the mooring;
b. The transferee has met all the qualifications and conditions for issuance of a
permit in subsection (B) of this section;
c. The transferor or transferee has reported to the Harbormaster the price paid
for the mooring permit, and has paid to the City the required transfer rental charge; and
d. The transferor represents that he/she/it did not discriminate against any
transferee or prospective transferee because of race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
7. The Harbormaster may approve a one-for-one exchange of moorings between
two mooring permittees, subject to compliance with this subsection without any transfer
rental advance charge imposed by the City.
8. The Harbormaster may approve the changing of an assigned vessel on the
permit, subject to the requirements of subsection (B) of this section, without any transfer
rental advance charge imposed by the City.
9. Following an approved transfer, the Harbormaster shall list the transfer price
of the mooring permit on a publicly available website hosted by the City, or on a third -
party's website under contract with the City to host information regarding mooring permit
transfers.
G. City's Authority to Assign Moorings through Use of Sub -Permits. With the exception
of the Balboa Yacht Club, the Newport Harbor Yacht Club, and the Lido Isle Community
Association's designated moorings, mooring permittee may not rent, assign, or transfer
the use of the mooring to any other person. With the exception of moorings issued to
mooring permittees described in subsection (B)(3)(e) of this section, City shall have the
authority to assign vacant moorings to sub -permittees pursuant to the following
provisions:
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1. Deemed Vacant Moorings. City may assign deemed vacant moorings through
the issuance of sub -permits at its own discretion. Sub -permits may be renewed upon
availability. The mooring permittee may reclaim its mooring upon three days' prior written
notice to City of its intent to return the assigned vessel to the mooring;
A "deemed vacant mooring" shall be defined as a mooring upon which:
a. An assigned vessel has not been attached for thirty (30) consecutive days or
more, or
b. A vessel, other than an assigned vessel, has been attached for thirty (30) days
or more; or
c. Required documentation for an assigned vessel has not been provided for a
transfer request pursuant to subsection (E) of this section;
2. Noticed Vacant Moorings. City may assign noticed vacant moorings at its own
discretion through the issuance of a mooring sub -permit for any period of time, up to the
reoccupation date on mooring permittee's written notice, or the twenty-four (24) hour
written notice per subsection (G)(2)(b) of this section. If the mooring continues to be
vacant for thirty (30) days past the reoccupation date indicated on mooring permittee's
notice, and there is no further written notice from mooring permittee, the mooring shall
become a deemed vacant mooring,
a. Mooring permittee may provide written notice to City of its intent to vacate its
mooring for fifteen (15) days or more. These moorings shall be "noticed vacant moorings."
Written notice shall include the date the mooring permittee intends to vacate his/her
mooring, and the date he/she intends to reoccupy the mooring with the assigned vessel,
and
b. If mooring permittee provides written notice, the mooring permittee may
reclaim the assigned mooring on the reoccupation date indicated in his/her written notice
or, if the mooring permittee returns prior to or after the reoccupation date, upon twenty-
four (24) hours' written notice to the City.
H. Procedures for Mooring Sub -Permit Issuance. Any natural person wishing to use a
mooring pursuant to the issuance of a sub -permit shall enter into a written mooring sub -
permit agreement with the City that includes the following:
1. A written representation of the current vessel length which shall be satisfactory
to the Harbormaster;
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2. An agreement to be responsible for any damage to mooring equipment; to
defend and indemnify the City of Newport Beach and the mooring permittee against any
claims or losses arising out of, or related to, the mooring rental; to require the mooring
sub -permittee provide proof of insurance as may be determined by the City's Risk
Manager; to require registration or other proof of ownership; to require an equipment
damage deposit, all to the satisfaction of the Harbormaster; and authorize the City, or its
designee, to move the vessel on the mooring to another location when deemed necessary
by the Public Works Director and/or Harbormaster;
3. The repair of any damage to the mooring equipment shall be paid by the
mooring sub -permittee. If the mooring is damaged by a vessel assigned by the City, or
the City's agent, the City will arrange for the repair of the mooring with a qualified vendor
and provide notice to the permittee of the occurrence and the arranged repair date.
Should the sub -permittee fail to pay for the damage for any reason, the City will pay for
the required repairs to the mooring, and then seek reimbursement from the sub -permittee;
Also, the City will make available a mooring without charge for the returning vessel of the
mooring permittee until such time as their permitted mooring is repaired;
4. Mooring sub -permittees shall provide approved mooring lines which shall be
removed at the end of the rental period;
5. A mooring sub -permit agreement may be up to fifteen (15) days and may
terminate at any time for any reason, and may be renewed based on availability. Upon
return of the assigned vessel to the mooring, the Harbormaster will attempt to reassign
the sub -permittee to another mooring. Mooring sub -permittees have no right of renewal
or substitute moorings upon return of the assigned vessel, or upon termination of a
mooring sub -permit agreement for any reason. Mooring sub -permittees accept an
indefinite term at their own risk;
6. The mooring sub -permit rent will be based on a rate established by the
Newport Beach City Council;
7. Live-aboards may be temporarily permitted as sub -permittees pending vessel
inspection, for a period not to exceed fifteen (15) days in any twelve (12) month period;
8. Mooring sub -permits shall be offered to the public on a first-come, first-served
basis;
9. Subject to the Harbormaster's approval, a mooring may be loaned free of
charge by the mooring permittee to a vessel other than the assigned vessel for no more
than thirty (30) consecutive days; provided, that:
a. The mooring permittee provides the Harbormaster with written notice
identifying the vessel that will use the mooring;
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b. The mooring permittee has not loaned the mooring for more than sixty (60)
days in the twelve (12) month period that immediately precedes the commencement of
the current mooring loan;
c. The vessel owner requesting a loan has not previously been the recipient of
loans for more than ninety (90) days in the previous twelve (12) months; and
d. The vessel owner authorizes the City, or its designee, to move the vessel on
the mooring to another location when deemed necessary by the Harbormaster.
I. Mooring Permit Transfer Nonrefundable Rental Charge. The City shall charge the
mooring permittee for the right to transfer a mooring permit under subsection (E) of this
section in an amount equal to seventy-five (75) percent of the annual mooring rent as
established by City Council resolution. This transfer charge represents a one-time
nonrefundable rental advance for the use of a mooring. A mooring permit transfer charge
shall not be required if:
1. The transfer is from the mooring permittee to the same mooring permittee as
trustor of an inter vivos trust, living trust or other similar estate planning tool;
2. The transfer is made under subsections (F)(7) and (8) of this section; or
3. The transfer is made pursuant to Subsection (E)(1) of this section.
J. Surrendered Mooring Equipment. If the mooring permittee sells, transfers, or
otherwise no longer owns the assigned vessel and does not intend to apply for, or does
not receive, approval to transfer the permit to another, the permittee may provide written
notice to the Harbormaster of his or her intent to surrender the mooring permit; otherwise
the provisions of subsection (G) of this section regarding a vacant mooring shall apply.
Once a mooring permit is surrendered, the mooring permittee shall remove the assigned
vessel and/or the mooring equipment thirty (30) days after written notice of surrender of
the permit, or, upon failure to remove the mooring equipment, title shall vest in the City
and the City shall compensate mooring permittee the fair value for the mooring
equipment, less rent or fees owed, as provided in subsection (L) of this section.
K. Revocation of Permit.
1. Grounds for Revocation. A mooring permit or sub -permit may be revoked upon
any of the following grounds set forth in Section 17.70.020, or any successor section, or
for any of the following:
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a. The moored vessel or the mooring equipment has been determined to violate
the applicable mooring regulations in Section 17.25.020, or any successor section, and
the mooring permittee or sub -permittee has not made the necessary corrections or repairs
within the time required;
b. The mooring permittee or sub -permittee has failed or refused to allow an
inspection of the vessel to determine if it is seaworthy and operable, a public nuisance or
in compliance with applicable marine sanitation device requirements;
C. Living aboard a vessel assigned to a mooring without a live -aboard permit
unless otherwise noted in subsection (G) of this section;
d. When the mooring permittee or sub -permittee fails to pay any mooring rent or
fee when due and is in arrears for a period of sixty (60) days or more; or
e. When the mooring permittee has sublet their mooring in violation of this title.
2. Notice and Hearing. In the event the Harbormaster determines there are
grounds to revoke a permit issued pursuant to this chapter, the Harbormaster shall
proceed in the manner described by Section 17.70.020, or any successor section.
3. Upon revocation, it shall be the duty of the mooring permittee to immediately
remove the mooring equipment and any moored vessel. If not removed within thirty (30)
days of revocation of the permit, the mooring equipment shall vest in the City and may be
auctioned by the City to another person or may be removed by the Harbormaster and the
cost of mooring equipment removal shall be paid by the mooring permittee. Any moored
vessel or equipment not removed within thirty (30) days may be impounded by the City
and disposed of in the manner provided by law. City incurred costs of removal of mooring
equipment or any vessel moored thereto may be charged against the permittee and
collected in any court of competent jurisdiction or recovered by the City from the proceeds
of sale of the vessel or mooring equipment.
4. During any revocation proceeding under this subsection (K), if the mooring is
unoccupied, it may be temporarily assigned as a mooring for guest vessels by the
Harbormaster.
L. Moorings Reverting Back to City. Should a mooring revert back to the City for any
reason, whether through abandonment, surrender, failure to provide documents pursuant
to subsection (F) of this section, or for any other reason, the following shall apply:
1. The mooring permittee shall be entitled to recover all of mooring permittee's
mooring equipment within thirty (30) days of reversion;
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2. If mooring permittee does not recover his or her mooring equipment, mooring
permittee shall be entitled to payment from the City of the fair value of the mooring
equipment as depreciated by use in an amount to be determined by the Harbormaster
and as set in the City's master fee resolution, after any and all past due rent and fees, if
applicable, have been satisfied; and
3. The mooring may be publicly auctioned by the City, or the City's designated
representative, or the mooring may be used for other City purposes.
Section 59: NBMC Subsection 17.60.080(B) is hereby amended to read as
follows:
B. Initiation. Appeals shall be made in writing to the City Clerk and shall be accompanied
by a fee established by resolution of the City Council. The appeal fee shall be refunded
to the appellant if he or she is successful in their appeal under this section (e.g., decision
being appealed is reversed).
Section 60: NBMC Subsection 17.60.080(D) is hereby amended to read as
follows:
D. Hearing Date. Appeals shall be scheduled by the Public Works Director and/or
Harbormaster, as applicable, for a hearing before an independent hearing officer within
thirty (30) days of the filing of the appeal unless both appellant and City consent to a later
date.
Section 61: NBMC Subsection 17.60.080(G) is hereby amended to read as
follows:
G. Decision and Notice. After the hearing, the hearing officer shall affirm, modify or
reverse the original decision. When a decision is modified or reversed, the hearing officer
shall state the specific reasons for modification or reversal. Decisions on appeals shall be
rendered within thirty (30) calendar days of the close of the hearing. The Public Works
Director and/or Harbormaster, as applicable, shall mail notice of the hearing officer's
decision. Such notice shall be mailed within five (5) working days after the date of the
decision to the applicant and the appellant. The decision of the hearing officer shall be
final.
Section 62: NBMC Subsection 17.65.010 is hereby amended to read as follows:
A. Decisions of the Public Works Director and/or Harbormaster resulting from his or her
administration of this Code may be appealed to the Harbor Commission by any interested
person.
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B. Decisions of the Harbor Commission may be appealed to the City Council by any
interested person.
C. A member of the Harbor Commission, acting in their official capacity, may call for
review, to the Harbor Commission, decisions resulting from the Public Works Director
and/or Harbormaster's administration of this Code. The purpose of the call for review is
to bring the matter in front of the entire body for review.
D. A member of the City Council, acting in their official capacity, may call for review, to
the City Council, decisions of the Harbor Commission. The purpose of the call for review
is to bring the matter in front of the entire body for review.
Section 63: NBMC Subsection 17.65.030(A) is hereby amended to read as
follows:
A. Filing of Appeals and Calls for Review. Appeals or calls for review of decisions of the
Public Works Director and/or Harbormaster shall be made in writing to the City Clerk on
forms provided by the Public Works Director and/or Harbormaster. Appeals or calls for
review of decisions of the Harbor Commission shall be made in writing to the City Clerk
on forms provided by the City Clerk. The appeal shall state the facts and basis for the
appeal. A call for review initiated by a member of the Harbor Commission or City Council,
in their official capacity, shall be for the purpose of bringing the matter in front of the entire
body for review.
Section 64: NBMC Subsection 17.65.040(F) is hereby amended to read as
follows:
F. Decision and Notice. After the hearing, the appellate (or reviewing) body shall affirm,
modify or reverse the original decision. When a decision is modified or reversed, the
appellate (or reviewing) body shall state the specific reasons for modification or reversal.
Decisions on appeals shall be rendered within thirty (30) days of the close of the hearing.
The Public Works Director and/or Harbormaster, as applicable, shall mail notice of a
Harbor Commission decision and the City Clerk shall mail a notice of a City Council
decision. Such notice shall be mailed within five (5) working days after the date of the
decision to the applicant and the appellant, if any.
Section 65: Except as specifically amended in this ordinance, all other sentences,
paragraphs, subsections, sections, chapters, and titles of the NBMC shall remain
unchanged and in effect.
Section 66: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
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Section 67: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 68: The City Council finds the approval of this ordinance is not subject to
the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
Alternatively, the City Council finds the approval of this ordinance is not a project under
CEQA Regulation Section 15061(b)(3) because it has no potential for causing a
significant effect on the environment.
Section 69: The Mayor shall sign and the City Clerk shall attest to the passage of
this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be
published pursuant to Charter Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the 27th day of November, 2018, and adopted on the 11th day
of December, 2018, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MARSHALL "DUFFY" DUFFIELD, MAYOR
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ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
U2&
_pw—AARON C. ARP, CITY ATTORNEY
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