HomeMy WebLinkAbout14 - Amending Chapter 17.40 (Live-Aboards) of Title 17 (Harbor Code) of the NBMC and Other Related ProvisionsQ SEW Pp�T
CITY OF
z NEWPORT BEACH
c�<,FORN'P City Council Staff Report
October 27, 2020
Agenda Item No. 14
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Grace K. Leung, City Manager - 949-644-3001,
gleung@newportbeachca.gov
PREPARED BY: Carol Jacobs, Assistant City Manager,
cjacobs@newportbeachca.gov
PHONE: 949-644-3313
TITLE: Ordinance No. 2020-27: Amending Chapter 17.40 (Live-Aboards) of
Title 17 (Harbor Code) of the Newport Beach Municipal Code and
Other Related Provisions
ABSTRACT:
Over the last year, the Harbor Commission has reviewed and recommended changes to
Title 17, the Harbor Code, to the City Council. On January 28, 2020, the City Council
adopted the proposed changes to Title 17 as recommended. City Council requested the
Harbor Commission return to the City Council with additional recommendations to the
requirements for live-aboards in commercial marinas. In addition, staff is requesting
consideration of a time limit clarification for the anchorage to enforce a three-day (72 hour)
time limit (Attachment A).
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) Waive full reading, read by title only, introduce Ordinance 2020-27, An Ordinance of
the City Council of the City of Newport Beach, California, Amending Chapter 17.40
(Live-Aboards) of Title 17 (Harbor Code) and Other Related Provisions, and pass to
second reading on November 10, 2020.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
As part of the update to Title 17, the City Council requested that the Harbor Commission
review the language relating to live-aboards in commercial marinas. As part of this
review, the Harbor subcommittee, consisting of Chair Kenney and Commissioner Yahn,
held a public meeting on this issue on August 26, 2020. Letters were sent to all
commercial marina operators in the City (Attachment C). The Commission received two
letters (Attachment D) and eight individuals attended the virtual meeting.
14-1
Ordinance No. 2020-27: Amending Chapter 17.40 (Live-Aboards) of Title 17
(Harbor Code) of the Newport Beach Municipal Code and Other Related Provisions
October 27, 2020
Page 2
During the review of this issue, staff identified several inconsistencies between the
definition of a Live -Aboard and its impact on commercial marinas. The proposed
language would resolve the inconsistencies.
The current definition of a Live -Aboard is:
17.01.030 Definition of Terms.
2. Live -Aboard. The term "live -aboard" shall mean the use or occupancy of a vessel as
a domicile or for human habitation while at its dock, berth, or mooring for a period
exceeding seventy-two (72) hours in any thirty (30) day consecutive period.
There is currently an inconsistency between this definition and the implementation of the
program as described in section 17.40. The proposed changes as shown on Attachment
A will provide for live-aboards in commercial marinas when a live -aboard is at the marina
for more than 180 days in any 365 -day period.
The proposed revisions to 17.40 include:
• Adding language to expand live-aboards in commercial marinas under certain
circumstances.
• Ensuring all vessels are capable of operating from their berthing place.
• Clarifying only offshore moorings are subject to a 7% limitation; commercial
marinas would not be subject to limitations on the number of live-aboards allowed.
The excerpt from the Harbor Commission meeting minutes from September 9, 2020 is
shown in Attachment E. During the meeting, three speakers from the public spoke on the
issue. A question was raised regarding the possibility of live-aboards being counted
toward the City's housing numbers, and it has been determined that unless a vessel is
hooked up to utilities, it cannot be counted. The only marina operator at the meeting
supported the proposed changes.
In addition to the proposed revisions to 17.40, staff is requesting clarification regarding
Section 17.25.020 — Anchorage, Berthing and Mooring Regulations
• Anchoring a vessel is only allowed in designated anchorages, and the vessel must
be attended to at all times.
The Harbormaster believes this clarification will provide additional tools to manage the
public anchorage more effectively. This language will allow staff to enforce the 72 -hour
rule within any 30 -day period. After discussions with the Orange County Sheriffs'
Department, they felt the language was not clear in the City's Municipal Code. This
language clearly states that vessels are only allowed in designated public anchorages for
72 hours.
The Harbor Commission voted 7-0 to approve the proposed changes as recommended.
14-2
Ordinance No. 2020-27: Amending Chapter 17.40 (Live-Aboards) of Title 17
(Harbor Code) of the Newport Beach Municipal Code and Other Related Provisions
October 27, 2020
Page 3
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).
ATTACHMENTS:
Attachment A —
Ordinance No. 2020-27
Attachment B —
Ordinance Redline
Attachment C —
Letter to Marina Operators
Attachment D —
Correspondence
Attachment E —
Excerpt from Harbor Commission Meeting Minutes
14-3
ATTACHMENT A
ORDINANCE NO. 2020-27
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, AMENDING CHAPTER
17.40 (LIVE-ABOARDS) OF TITLE 17 (HARBOR CODE) OF
THE NEWPORT BEACH MUNICIPAL CODE AND OTHER
RELATED PROVISIONS
WHEREAS, Section 200 of the Charter of the City of Newport Beach ("Charter")
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 Title 17 (Harbor Code) ("Title 17") of the Newport Beach Municipal Code
("NBMC");
WHEREAS, in 2017, the City assumed mooring management responsibilities from
the County of Orange Sheriffs Department over Newport Harbor and created a Harbor
Department to oversee these new responsibilities and, as a result, the City Council
adopted Ordinance No. 2018-17 amending Title 17 to reflect this reorganization;
WHEREAS, on January 28, 2020, the City Council adopted comprehensive
revisions to Title 17 (Harbor Code), and directed the Harbor Commission to further
analyze revisions to Chapter 17.40 (Live-Aboards);
WHEREAS, at the September 9, 2020 meeting, the Harbor Commission
recommended City Council approve revisions to Chapter 17.40 (Live-Aboards) and other
related revisions;
WHEREAS, updates to other related provisions of the NBMC are necessary in
order to create consistency throughout the NBMC; and
WHEREAS, the City shall file a copy of this ordinance with the California Department
of Boating and Waterways prior to its adoption and at least thirty (30) days prior to its
effective date, as required by California Harbor and Navigations Code Section 660(a).
14-4
Ordinance No. 2020 -
Page 2 of 7
NOW, THEREFORE, the City Council of the City of Newport Beach does hereby
ordain, as follows:
Section 1: The definition of "Live -Aboard" in Subsection (1)(2) of Section
17.01.030 (Definitions: L.) of Chapter 17.01 (Definitions) of Title 17 (Harbor Code) of the
Newport Beach Municipal Code is hereby amended to read as follows:
2. Live -Aboard. The term "live -aboard" shall mean the use or occupancy of a vessel for
human habitation a) while at its mooring for a period exceeding seventy-two (72) hours in
any thirty (30) day consecutive period; or b) at its dock or berth in a commercial marina
for a period exceeding one hundred eighty (180) days or more, in any three hundred sixty-
five (365) day period.
Section 2: Subsection (E) of Section 17.20.020 (Vessel Operation) of Chapter
17.20 (Vessel Launching and Operation) of Title 17 (Harbor Code) is hereby amended to
read as follows:
E. Anchoring. In addition to the requirements set forth in Section 17.25.020(A)(1)(b), no
person owning, leasing, occupying or having charge or possession of any vessel shall
anchor such vessel in any of Newport Harbor's designated public anchorage areas or on
the Pacific Ocean unless the vessel is continuously occupied by a person during:
1. Any nighttime hours (sunset to sunrise);
2. Any time period when a Small Craft Advisory or greater has been issued by the
National Oceanic and Atmospheric Administration; and
3. During daylight hours, except for one shore excursion per day for no more than
three hours.
Section 3: Subsection (A) of Section 17.25.020 (Anchorage, Berthing and
Mooring Regulations) of Chapter 17.25 (Berthing, Mooring and Storage) of Title 17 (Harbor
Code) 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 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 (H) 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
14-5
Ordinance No. 2020 -
Page 3 of 7
anchored as to prevent such vessel from swinging or drifting into any turning basin or
channel.
1. No person owning, leasing, occupying or having charge or possession of any
vessel shall:
a. Berth or anchor the same in Newport Harbor except within the designated
areas; or
b. Anchor a vessel in any of Newport Harbor's designated public anchorage
areas or 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, in writing, 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.
Section 4: Section 17.40.010 (Purpose) of Chapter 17.40 (Live-Aboards) of Title
17 (Harbor Code) of the Newport Beach Municipal Code is hereby amended in its entirety
to read as follows:
Section 17.40.010 Purpose.
The City Council of the City of Newport Beach finds and declares as follows:
This chapter will promote the public health, safety and welfare by regulating the number of
persons living aboard vessels on offshore moorings and ensuring, to the extent possible,
that the residential use of a vessel in Newport Harbor does not result in the discharge of
human waste or other waste; activities that are disruptive or impede other parties' use and/or
enjoyment of Newport Harbor; or otherwise adversely impact the health, safety and welfare
of Newport Harbor and those that visit, work around, or live on or near, the bay.
Section 5: Section 17.40.020 (Live-Aboards Prohibited) of Chapter 17.40 (Live-
Aboards) of Title 17 (Harbor Code) of the Newport Beach Municipal Code is hereby
amended in its entirety to read as follows:
14-6
Ordinance No. 2020 -
Page 4 of 7
Section 17.40.020 Live-Aboards Prohibited.
Live-aboards shall not be permitted at piers that are bayward of residentially zoned areas.
No person shall live aboard any vessel on an onshore mooring.
Section 6: Section 17.40.030 (Permits Required) of Chapter 17.40 (Live-Aboards)
of Title 17 (Harbor Code) of the Newport Beach Municipal Code is hereby amended in its
entirety to read as follows:
Section 17.40.030 Permits Required.
No person shall live -aboard any vessel in Newport Harbor 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 or a valid
rental agreement from a commercial marina. 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: a) with respect to a mooring permittee, to
live -aboard for not less than two hundred forty-three (243) days in any calendar year; or
b) with respect to the tenant of a commercial marina with a valid rental agreement, to live -
aboard for a period not less than one hundred eight (180) days in any three hundred sixty-
five (365) day period.
Section 7: Section 17.40.050 (Issuance of Permit) of Chapter 17.40 (Live-
Aboards) of Title 17 (Harbor Code) of the Newport Beach Municipal Code is hereby
amended in its entirety to read as follows:
Section 17.40.050 Issuance of Permit.
Upon receipt of an application for a live -aboard permit, the Harbormaster shall investigate
the information contained in the application along with other information on record
available to the City. The Harbormaster shall deny the application if:
A. The vessel which will serve as the principal residence is not equipped with a fully
operational marine sanitation device and holding tank with a capacity of no less than ten
(10) gallons which is necessary to ensure no discharge of human waste into Newport
Harbor;
B. Approval of the application would result in live -aboard permits in excess of the
limitations provided by this chapter;
C. The applicant does not have a valid mooring permit as required by Section 17.60.040
or a valid rental agreement from a commercial marina.
14-7
Ordinance No. 2020 -
Page 5 of 7
D. Issuance of the permit, given the specific circumstances of the application, would
significantly impact persons residing, working or visiting Newport Harbor;
E. The vessel is incapable of safely maneuvering under its own power, whether by sail
or engine, from its mooring, dock or berthing place, to the open waters of the Pacific
Ocean and back to the mooring, dock or berthing place; or
F. In the case of a renewal, the applicant was in violation of this title during the prior
permit term.
Section 8: Section 17.40.060 (Term/Renewal) of Chapter 17.40 (Live-Aboards) of
Title 17 (Harbor Code) of the Newport Beach Municipal Code is hereby amended in its
entirety to read as follows.-
Section
ollows:
Section 17.40.060 Term/Renewal.
A. Permits issued pursuant to this chapter shall be valid for a term of twelve (12)
months. Applications for the renewal of any permit shall be submitted at least sixty (60)
calendar days before expiration of the permit, on forms supplied by the City, shall include
the fee established by resolution of the City Council and shall specify any changes to the
information provided on the original application for a permit.
B. The application for renewal shall be denied if the permittee does not comply with any
of the requirements specified in Section 17.40.050; the permittee has failed to comply
with any provision of this title during the term of the previously issued permit; or the
permittee has failed to use the vessel as permittee's principal residence during the
previous term of the permit.
C. The issuance of a live -aboard permit to a mooring permittee is not transferrable and
does not create any tenancy between the City and the permittee or other persons living
aboard, nor does it create any property right to the mooring site.
Section 9: Section 17.40.110 (Limitation on Number of Permits) of Chapter 17.40
(Live-Aboards) of Title 17 (Harbor Code) of the Newport Beach Municipal Code is hereby
amended in its entirety to read as follows:
Section 17.40.110 Limitation on Number of Permits.
The number of live -aboard permits issued to permittees holding valid offshore mooring
permits shall not exceed seven percent of the number of offshore mooring permits issued
by the City pursuant to Chapter 17.60.
ME
Ordinance No. 2020 -
Page 6 of 7
Section 10: Except as specifically amended by this ordinance, all other
sentences, paragraphs, subsections, sections, chapters, and titles of the NBMC shall
remain unchanged and in effect.
Section 11: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 12: 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 13: 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), 15060(c)(3) (the activity is not a project as defined in Section 15378),
15320 (changes in organization by local agencies), and 15321 (enforcement actions by
regulatory agencies) of the CEQA Guidelines, California Code of Regulations, Title 14,
Division 6, Chapter 3, because the revisions to Title 17 set forth herein have no potential
for resulting in physical change to the environment, directly or indirectly.
Section 14: 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 shall be effective thirty (30)
calendar days after its adoption.
14-9
Ordinance No. 2020 -
Page 7 of 7
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the 27th day of October, 2020, and adopted on the 10th day of
November, 2020, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
RECUSED:
WILL O'NEILL, MAYOR
ATTEST:
LEILANI i. BROWN, CITY CLERK
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
�AARO C. HARP, CITY ATTORNEY
14-10
ATTACHMENT B
17.01.030 (1)(2)
2. Live -Aboard. The term "live -aboard" shall mean the use or occupancy of a vessel as
a-demFc+Eeorfor human habitation awhile at its doGk, berth, for a period
exceeding seventy-two (72) hours in any thirty (30) day consecutive period. orb at
its dock or berth in a commercial marina for a period exceeding one hundred eighty (180)
days or more, in any three hundred sixty-five (365) day period.
17.20.020 (E)
E. Anchoring. In addition to the requirements set forth in Section 17.25.020(A)(1)(b), no
person owning, leasing, occupying or having charge or possession of any vessel shall
anchor such vessel in any of Newport Harbor's designated public anchorage areas or on
the Pacific Ocean unless the vessel is continuously occupied by a person during:
1. Any nighttime hours (sunset to sunrise);
2. Any time period when a Small Craft Advisory or greater has been issued by the
National Oceanic and Atmospheric Administration; and
3. During daylight hours, except for one shore excursion per day for no more than
three hours. (Ord. 2020-0§1(€xh. 1) (part),2020: Ord. 2018-18§2, 2018; Ord. 2013 11 § 145,
2013: Ord. 2008 2 § 1 z Q) (Ord No. 2009 21 § 2, 127 20W
17.25.020(A)
A. Location. No person having charge of any vessel shall berth or anchor the same in
Newport Harbor except within 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 (H) 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.
14-11
1. No person owning, leasing, occupying or having charge or possession of any
vessel shall:
a. Berth or anchor the same in Newport Harbor except within the designated
areas; or
b. Anchor a vessel in any of Newport Harbor's designated public anchorage
areas or 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, in writing, 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.
17.40.010 Purpose.
This chapter will promote the public health, safety and welfare by regulating the number of
persons living aboard vessels on offshore moorings and ensuring, to the extent possible,
that thisthe residential use of a vessel in Newport Harbor does not result in the discharge of
human waste or other waste; activities that are disruptive or impede other parties' use and/or
enjoyment of Newport Harbor; or otherwise adversely impact the health, safety and welfare
of Newport Harbor and those that visit, work around, or live on or near, the bay. Ord: 02-0
5 § 1 (Exh 1) (part), 2`(1�d. 2008-2 § 1 (part), �7
17.40.020 Live-Aboards Prohibited.
Live-aboards shall not be permitted at piers that are bayward of residentially zoned
areas. No person shall live aboard any vessel on an onshore mooring.
14-12
- I S a m
17.40.030 Permits Required.
No person shall live --aboard any vessel assigned ed to an effshere meering in Newport
Harbor 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 or a valid rental agreement from a commercial marina. No
permit shall be issued ferto 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:
a) with respect to a mooring permittee, to live --aboard for not less than two hundred forty-
three (243) days in any calendar year. d 0 (€xh. 1) (part), �n�d 018-
; or b) with respect to the tenant of a commercial marina with a valid rental agreement, to
live -aboard for a period not less than one hundred eight (180) days in any three hundred
sixty-five (365) day period.
17.40.050 Issuance of Permit.
Upon receipt of an application for a live -aboard permit, the Harbormaster shall investigate
the information contained in the application along with other information on record
available to the City. The Harbormaster shall deny the application if:
A. The vessel which will serve as the principal residence is not equipped with a fully
operational marine sanitation device and holding tank with a capacity of no less than ten
(10) gallons which is necessary to ensure no discharge of human waste into the
harberNewport Harbor;
B. Approval of the application would result in live -aboard permits in excess of the
limitations provided by this chapter;
C. The applicant does not have a valid mooring permit as required by Section 17.60.040
or a valid rental aareement from a commercial marina.
14-13
D. Issuance of the permit, given the specific circumstances of the application, would
significantly impact persons residing, working or visiting Newport Harbor;
E. The vessel is incapable of safely maneuvering under its own power, whether by sail
or engine, from theits mooring, dock or berthing place, to the open waters of the Pacific
Ocean and back to the mooring, dock or berthing place; or
F. In the case of a renewal, the applicant was in violation of this title during the prior
permit term. (Ord. 202-0-5 § T (ExhTr 1) rt),. Ord. 7018_1 7 § 35 201 S2cm ; Ord. 2008
7 § 1 (part) 7008)
Section 17.40.060 Term/Renewal.
A. Permits issued pursuant to this chapter shall be valid for a term of twelve (12)
months. Applications for the renewal of any permit shall be submitted at least sixty (60)
calendar days before expiration of the permit, on forms supplied by the City, shall include
the fee established by resolution of the City Council and shall specify any changes to the
information provided on the original application for a permit.
B. The application for renewal shall be denied if the permittee does not comply with any
of the requirements specified in Section 17.40.050; the permittee has failed to comply
with any provision of this title during the term of the previously issued permit; or the
permittee has failed to use the vessel as permittee's principal residence during the
previous term of the permit.
C. The issuance of a live -aboard permit to a mooring permittee is neetFansfeTablenot
transferrable and does not create any tenancy between the City and the permittee or
other persons living aboard, nor does it create any property right to the mooring site. -Ord.
7n�? § 1;Exh 1) (part), 2020: Ord. 2-013-11 § 158, 2013; Ord. 2008-2 § 1 (part), 2008)
Section 17.40.110 Limitation on Number of Permits.
The number of live -aboard permits On effe^* at any given *impissued to permittees holding
valid offshore mooring permits shall not exceed seven percent of the number of offshore
mooring permits issued by the City pursuant to Chapter 17.60. �(�Or�
d. 2020 5(€x .4)
(p 2020: Ord x01 8 17 § 38, 2019; Ord �( 09 2 § 1 (part), 20094
14-14
ATTACHMENT C
October 16, 2020
Mr. XXXXX
Commercial Marina Operator
XXXX
Newport Beach, CA XXXXX
SUBJECT: City of Newport Beach, Title 17, Harbor Code Review
Dear Mr. XXXX
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3001 1 949 644-3020 FAX
newportbeachca.gov
This letter is being sent to you as you currently have a lease agreement with the City of
Newport Beach. The Harbor Commission has been tasked by the City Council to review the
Harbor Code. Much of that work has been completed.
There is an outstanding issue related to commercial marinas with slips that offer individuals
an opportunity to live -aboard their boats year round. The Commission is considering
revisions that may impact your operation and we are asking for your input.
There will be a public meeting scheduled for XXXXX at 6:00 p.m. at Marina Park to discuss
this issue and other issues that relate to commercial marinas. Please join us for this
conversation. The results of this meeting may be forwarded to the City Council for their
consideration at a later date.
If you cannot attend, please feel free to email Title 17Review(a_newportbeachca.gov and we
will ensure your comments are forwarded to the full Harbor Commission and City Council.
Should you have any questions or concerns, please feel free to contact me at 949-644-3313
Sincerely,
Carol Jacobs
Assistant City Manager
ATTACHMENT D Additional Material Received—Item 11.2
September 9, 2020 Harbor Commission Meeting
September 8, 2020
To: Carol Jacobs, Assistant City Manager
CC: Bill Kenney, Chairman, Harbor Commission
From: Jim Parker
Port Calypso Marina
Re: Proposed revisions to Title 17, Live-aboards
Ms. Jacobs,
1 plan to join the Harbor Commission meeting on 9/9/2020 via Zoom. In the interim,
I'd like to submit my comments on the proposed revisions that specifically relate to
Commercial Marinas. See comments below in blue text.
Regard
��
J' Parke
Port Calypso Marina
17.01.030 Definition of Terms
I. Definitions: L
2. Live -Aboard. The term "live -aboard" shall mean the use or occupancy of a vessel as a
domicile for human habitation while at its mooring for a period exceeding
seventy-two (72) hours in any thirty (30) day consecutive period, or b) at its dock or berth
for a period exceeding one hundred eighty (180) days in any three hundred sixty-five (365)
day period.
I support these 17.01.030 redline revisions.
2633 W. COAST HIGHWAY 9 SUITE E • NEWPORT BEACH, CA 92663 • (949) 645-6900 • FAX (949) 722-8048 14-16
Additional Material Received Item 11.2
September 9, 2020 Harbor Commission Meeting
17.40.010 Purpose
The City Council of the City of Newport Beach finds and declares as follows:
This chapter will promote the public health, safety and welfare by regulating the number of
persons living aboard vessels on offshore moorings and insuring, to the extent possible,
that the this residential use of a vessel in Newport Harbor does not result in the discharge
of human waste; activities that are disruptive or imped other parties use and/or enjoyment
of Newport Harbor; or otherwise adversely impact the health, safety and welfare on
Newport Harbor and those that visit, work around or live on or near, the bay.
I support these 17.40.010 redline revisions.
17.40.030 Permits Required.
No person shall live -aboard any vessel assigned to an offshaFe meoFii4g in Newport
Harbo,, 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 or a valid rental agreement from a commercial marina. No
permit shall be issued to any live -aboard which is not intended to serve as the principal
residence of the efP44tee, live -aboard. For purposes of this section, principal residence
shall mean; a) for a mooring permittee, to live -aboard for not less than two hundred forty
three (243) days in any calendar year; or b) for the holder of a valid rental agreement from
a commercial marina, to live -aboard for a period not less than one hundred eighty (180)
days in any three hundred sixty-five (365) day period.
I support the intent of the revisions to section 17.40.030, but I'm concerned that the
wording relating to the Harbormaster issuing a live -aboard permit to a commercial
marina tenant with a valid Slip Rental Agreement may be misinterpreted by a slip
tenant applicant. The ultimate approval/authorization for a marina slip tenant to
live -aboard his/her vessel should be within the purview of the marina. Therefore, I
recommend that the Harbormaster live -aboard permission for commercial marina
tenants be framed as a vessel certification that simply certifies that the vessel of the
marina tenant or potential tenant, as the case may be, complies with City live -
aboard requirements such as those related to sanitation equipment and the
capability to safely maneuver under its own power, whether by sail or engine. It
would them be left to the marina to evaluate other slip tenant requirements to
decide whether or not to authorize the owner of this `Harbormaster Live -aboard
Certified' vesse I owner to live -aboard his/her vessel at a slip in the marina.
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Additional Material Received—Item 11.2
September 9, 2020 Harbor Commission Meeting
1 7.40.050 Issuance of Permit
C. The applicant does not have a valid mooring permit as required by Section 17.60.040
or a valid rental agreement from a commercial marina.
I support this 17.40.050 redline revision.
17.40.050 Issuance of Permit
E. The vessel is incapable if safely maneuvering under its own power, whether by sail or
engine, from its mooring, dock or berthing place, to the open waters of the Pacific Ocean
and back to the mooring, dock or berthing place; or
I support this 17.40.050 redline revision.
17.40.060 Term/Renewal
C. The issuance of a live -aboard permit to a mooring permittee is not transferrable and
does not create any tenancy between the City and the permittee or other persons living
aboard, nor does it create any property right to the mooring site.
17.40.110 Limitation on Number of Permits
The number of live -aboard permits issued to permittees holding valid offshore mooring
permits shall not exceed seven (7) percent of the number of offshore mooring permits
issued by the City pursuant to Chapter 17.60.
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ATTACHMENT D
Additional Material Received—Items SS 1, 10. 1, 11. 1, and 11.2
September 9, 2020 Harbor Commission Meeting
'September 9, 2020, Harbor Commission agenda comments - Jim Mosher Page 2 of 3
are currentr veraged. I believe that to compute the "datums" shown in Drawing No. 616,
NOAA has assu d the same offsets from the heights observed by the more carefully and
continuously maintai d Station 9410660 in LA Harbor.
In addition, Drawing No. 6 ontains at least one typo: the highest tide observed during the
operation of the historic Newpo arbor tide gauge (7.67' MLLW) was observed on 1/28/1983,
not 1/28/1993 as indicated on the dr�rking.
But it should be understood the indicated h and low water levels are only those actually
observed during the operation of the gauge. Th Harbor station reported a slightly higher
tide on 01/10/2005 and a substantially lower one t hat reported for Newport on 12/17/1933.
Even though Newport Harbor had no tide gauge reportin n those dates, it would seem safe to
assume the waters here showed similar extremes (for comps n, see also the datums for the
similarly long -operating Station 9410170 in San Diego Bay, which erienced its highest tide
on 11/25/2015 and lowest on 12/17/1937 — both dates for which NO s no data from
Newport).
On this subject of extreme high and low water (which I believe purposely does not Jude the
peaks produced by short -period wave action), I might also note I am not sure I underst�.).thintended significance of the proposed revisions to Standard Drawing No. 609 (on page
drawing of a residential pier platform shows lines on the right representing Highest and Lowest
observed tides. Formerly they said "NTS" (I believe for "Not to Scale"). Now they will say "HOT"
(Highest Observed Tide") and "LOT" (Lowest Observed Tide"). But the drawing does not explain
how they affect the design. Must the bottom (or top?) of the platform be at least some distance
above the HOT? If so, how far? And how does the position of the LOT affect the design, if at all?
Item 11.2. Proposed Amendments to Title 17 - 17.09 - Definition of
Terms; 17.40 - Commercial Live Aboards; 17.20.020 Vessel
Operations; and 17.25.020 - Anchorage, Berthing and Mooring
Regulations
As the two members of the ad hoc committee know, I submitted some suggested alternative
modifications to the code, too late to make the agenda packet.
While I am generally supportive of the committee's recommendations, I have continuing trouble
with the proposed definition of "Live -Aboard" (agenda packet page 120), which I think conflates
regulation with definition. I think the definition should concentrate on articulating what the code
means by "living aboard" and the limits on how long one can live aboard in various situations
should be left to the regulations.
I could be wrong, but I have the impression that the concept of "living aboard" has primarily to
do with "overnighting" on a vessel. The proposed definition makes no reference to that, and
instead cites using "a vessel as a domicile for human habitation" — words that make little sense
to me, especially since a "domicile" is generally understood to mean one's permanent home,
and it's hard to see how staying on a vessel for 72 hours or even eight months, and even if one
spends nights on it, makes it one's domicile if one feels the true and permanent home they will
14-19
Additional Material Received—Items SS1, 10.1, 11.1, and 11.2
September 9, 2020 Harbor Commission Meeting
September 9, 2020, Harbor Commission agenda comments - Jim Mosher Page 3 of 3
eventually return to is elsewhere. The Commission should also know that a mooring is a kind of
"berth" according to the definitions in Title 17.
1 also think the whole Harbor Commission seeing only snippets of code and not the whole
chapter as proposed is a bit dangerous.
For example, it may not be obvious if a live -aboard permit goes with a person or a vessel and if
the former, if each person needs a separate permit (the third sentence of the proposed Section
17.40.030 was probably intended to read "No permit shall be issued to any live -aboard for a
vessel which is not intended to serve as the principal residence of the live -aboard").
Also, as I have repeatedly tried to point out, the existing Section 17.40.020, as revised this year,
makes reference to non-existent provisions about short-term and "long-term mooring sub -
permits as noted in Section 17.60.040(G)." Such permits no longer exist, so the meaning of the
terms is undefined. And I remain unclear on the Harbormaster's authority to allow live -aboard
activity for more than 72 hours on guest moorings.
Finally, although not mentioned in the staff report, one of the committee's recommendations
seems to be to place no limit on the allowed number of live-aboards in commercial marinas.
As to the new regulations on the anchorages in the harbor proposed for Chapters 17.20 and
17.25 (pages 122 and 123), the Commission may wish to know these are being copied from
restrictions the Council adopted in 2009 to address a problem with people anchoring vessels in
the open ocean off Big Corona State Beach (see Item 4 from the Council's January 13, 2009,
meeting, which details the problems being addressed with open ocean anchoring).
There was evidently no intention at that time to apply those rules to the very different conditions
at anchorages within the harbor. So the Commission may wish to exercise some caution in
applying exactly the same rules there.
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ATTACHMENT E
Harbor Commission Regular Meeting Minutes
September 9, 202
Paoe
Approve the Harbor Design Standards and recommend that staff forwar to the City
Qouncil for consideration and approval.
Public Works Adminis ive Manager Chris Miller announced that he had an up a regarding the Harbor
Design Standards. Thep ket included 75 -pages of harbor standards th are used as guidelines for
preparing plans for projects in harbor. The intention is to finalize the rbor Standards and bring them
to the City Council for approval. In ards to Commissioner Marston' submitted comments, Public Works
Administrative Manager Miller report he needed more time answer those comments, and he will
therefore return to the Harbor Commissio . October for final- eview.
In response to Chair Kenney's question,Public dministrative Manager Miller concurred that there
were only a few suggested changes. Table 2, whi re fired to the height requirements for bulkheads, was
revised to reflect sea -level rise projections.
Vice Chair Cunningham concurred the idea of adding layerXt��sea wall is a good idea. Commissioner
Beer agreed. ,�-'
In reply to Commissioner arston's request to talk about floating docks fori-vessel mooring systems,
Public Works Adminis tive Manager Miller anticipated a more robust disci. io nd outreach regarding
multi-vessel moor' systems within the mooring fields. He announced that we wouI on start designing
a multi-vessel boring system soon.
Jim M er did not understand the logic of where the top of structure elevations came from fo able 2.
P is Works Administrative Manager Miller confirmed that Staff has triple checked the numbers ith
tanning Staff.
Pete Swift voiced his appreciation to Public Works Administrative Manager Miller for his work on the Harbor
s/ Standards and the updates.
2. Proposed Amendments to Title 17 -17.01 -Definition of Terms; 17.40 -Commercial Live
Aboards; 17.20.020 Vessel Operations; and 17.25.020 -Anchorage, Berthing and
Mooring Regulation
During the past year the Harbor Commission has reviewed, solicited public input and
recommended changes to Title 17 of the Newport Beach Municipal Code (the Harbor
Code) to the City Council.
On January 28, 2020, the City Council adopted these proposed changes to Title 17 as
recommended. As part of that action, City Council requested the Harbor Commission return
to City Council with additional recommendations associated with requirements for live -
aboard boaters with vessels in commercial marinas.
Unrelated to the live -aboard related recommendations, staff is also requesting the Harbor
Commission consider a recommended set of clarifications to Title 17, associated with use
of the in -harbor public anchorage
Recommendation:
1) Find this action exempt from 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) and15060(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; and
2) Approve the recommended changes to Title 17 -17.01 -Definition of Terms; 17.40 -
Commercial Live Aboards; 17.20.020 Vessel Operations; and 17.25.020 -Anchorage,
Berthing and Mooring Regulations and forward to City Council for their consideration
5
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Harbor Commission Regular Meeting Minutes
September 9, 2020
Page 6
Chair Kenney summarized in January of 2020 the ad hoc committee presented recommended
modifications to Title 17 except for Section 17.10. Council Member Dixson requested that the provision
that limited the number of live-aboards that are allowed in commercial marines be looked at. Two
public stakeholder meetings were conducted, public comment was taken, and with those comments
the ad hoc committee drafted proposed changes to Section 17.40.
Proposed changed include changed to the definition of a live -aboard which stated that a person would
be deemed a live -aboard if they were on their boat in a commercial marina for more than 180 -days in
365 -day calendar period. Section 17.40.010 included minor language clarification changes. Section
17.40.030 included references made to being a live -aboard in New Port Harbor as opposed to an
offshore mooring and that a live -aboard is required to have a Mooring Permit or a valid rental
agreement in a commercial marina. Section 17.50 modifications clarified that there are two different
types of permits. Section 17.50 E changes stated that any live -aboard must live on a vessel that is
operable and safe. Section 17.60 involved clarifications for the two different definitions of live-aboards.
Section 17.40.110 expressed that live-aboards permits are limited to mooring permittees.
In response to Vice Chair Cunningham's concern regarding unlimited live-aboards in commercial
marinas, Chair Kenney emphasized that most slips in New Port Harbor are owned by larger
commercial marina owners and they prohibit live-aboards.
Commissioner Beer commented that there should be a limit as to how many live-aboards there can
be in a marina.
Commissioner Yahn reported that the ad hoc committee had struggled with what the right number
should be for the maximum of live-aboards in a marina. Since live-aboards are not regulated currently,
he felt the ad hoc committee was moving in the right direction.
In reply to Commissioner Marston's question about how many live-aboards are currently in the harbor,
Chair Kenney clarified that there are 51 live-aboards in offshore moorings.
Jim Mosher noted that Council Member Dixson was hoping that live-aboards could be counted towards
the City's RHNA numbers. Upon investigation, the state will not count live -aboard towards the City's
housing quota unless the boat is hooked up to utilities. He noted that in the live -aboard sections, some
clean up needed to take place in Section 17.48.20 because there were no longer long term and short-
term sub -permits. He wanted to know if there were any slips in the harbor that did not abut residential
zones and should those residents that do not live near a residential zone be allowed to live -aboard
those vessels.
Len Bose emphasized that most marina operators would not want a live -aboard in their marina
Mr. Parker supported the redline version for Section 17.40 limiting live -aboard permits and he did not
foresee a huge increase in live-aboards.
In reply to Mr. Parker's letter that raised concern regarding 17.40.030, Chair Kenney pointed out that
if a live -aboard met the criteria that are currently in the code, the Harbor Master would have to issue
them a permit if there is approval from the marina operator as well. Harbor Master Borsting added that
there would be confirmation that a rental agreement at a commercial marina must include a provision
for that renter for live -aboard at that property before pursuing the live -aboard permit process.
In reply to Mr. Mosher's questions, Chair Kenney believed that the City's marina is classified as a
commercial marina.
Commissioner Yahn to approve the changes that have been made as well as those in green on the screen.
Commissioner Williams seconded the motion. The motion carried by the following roll call vote:
Ayes: Chair Kenney, Vice Chair Cunningham, Commissioner Beer, Commissioner Marston,
Commissioner Scully, Commissioner Williams, Commissioner Yahn
Nays: None
1.
14-22
Harbor Commission Regular Meeting Minutes
September 9, 2020
Page 7
Abstaining: None
Absent: None
Chair Kenney continued to clean up items and he stated that all the cleanup items had to do with
additional language regarding anchoring. The changes allowed for a yacht man to leave his boat that
is anchored in the harbor and go ashore for 3 -hours.
Jim Mosher felt the changes were too restrictive.
In response to Mr. Mosher's questions regarding where in Title 17 did it list the rule you had to stay
aboard your boat, Harbor Master Borsting answered that the change emphasized that boats can easily
drag anchor and reposition into navigation lanes if no operator is aboard.
Commissioner Beer to approve the proposed changes. Commissioner Marston seconded the motion.
The motion carried by the following roll call vote:
Ayes: Chair Kenney, Vice Chair Cunningham, Commissioner Beer, Commissioner Marston,
Commissioner Scully, Commissioner Williams, Commissioner Yahn
Nays: None
Abstaining: None
Absent: None
3. Day -Use Mooring Sub -Permit Trial
The Harbor Department is responsible for managing the City 's on -and off -shore mooring
fields. Identifying opportunities to increase the utility of these fields, in order to better serve
the needs of the local boating community, is a central goal of the department.
Some local boaters have expressed interest in the short-term day -use of vgeant off -
moorings, allowing them to enjoy secure and stationary /non -operational) "isure time
aboard their vessels while in the Harbor. To accommodate such requests'and to better
luate merits of such an offering, the Harbormaster is proposing tt plement a six -
mon trial program, allowing for short-term day -use rental of off -shore moorings, for up to
six hou Z
Recommendation:
1) Find this action e pt from the California Environ Z-aluality Act (CEQA)pursuant to
Sections 15060(c)(2 the activity will not result i a direct or reasonably foreseeable
indirect physical change the environment) a,p�5060(c)(3) (the activity is not a project
as defined in Section 15378 the CEQA G,�aelines, California Code of Regulations, Title
14, Chapter 3, because it ha no potential for resulting in physical change to the
environment, directly or indirectly;
2) Approve staff recommendation to pill ent a day -use mooring program, on a trial basis,
through February 28, 2021, well as questing staff to report back to the Harbor
Commission on the results his trial progra , etermining whether or not such a program
should considered as a anding harbor -related o ring, beyond the six month trial period.
Harbor Master Borsting comment that the Harbor Department is respb sible for managing the City's on
and offshore mooring fields. D - to high volumes of boating activity, problem occurred regarding crowding
in the public anchorage an , anchorage in unauthorized areas, and engage t in harbor drifting. The
Day -Use Mooring Pro g would help mitigate those reoccurring problems. The rogram would run six
months, it would alto he use of vacant offshore moorings for up to six hours, and hav day rate of $1.28
per foot of a ves . All adopted rules and regulations would apply to receive a Day- Mooring Sub -
Permit. The gram would be brought back to the Commission for review and recommend i ns when it
ended.
Vic hair Cunningham loved the idea and he envisioned a mobile app in the future that could make
pf6cess of submitting for a permit quicker. He did not want to see a fee applied to the trial program.
7
14-23