HomeMy WebLinkAbout0 - Closed Session Correspondence'1Tlnh'_'dL'F -� sI ]r'A�ti
January 10, 2013
Nancy Gardner
Mayor, City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Dave Kiff
City Manager, City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Aaron Harp
City Attorney, City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
VIA EMAIL & U.S. Mail
"RECEIVED AFTER AGENDA
PRIN'TEV'
b / -.2- -2 13
RE: Adoption of Ordinances Regarding Newport Beach Residential Dock Taxes
Dear Mayor Gardner:
This letter is to call to your attention what I believe was a substantial violation of the central
provisions of the Ralph M. Brown Act, one which may jeopardize the finality of the action taken
by the Newport Beach City Council on December 11, 2012.
The nature of the violation is as follows: In the meeting on December 11, 2012, the Newport
Beach City Council took action to a) adopt amended Resolution No. 2012 -119 approving a
model permit template for residential piers and excluding easements from the definition of
premises; b) adopt amended Resolution No. 2012 -120 setting fair market value rent for
residential piers; removing the adjustment by CPI or 2% during the phase -in period; limiting
future adjustments beginning in 2018 by 2% or CPI, whichever is less, except that upon sale of
the adjacent upland property, the pier rent would be adjusted to market using the most recent
Harbor -wide appraisal as a reference; the renting of piers will be allowed at the small
commercial marina rate of $1.26 as phased -in; and that a residential pier appraisal be included in
any overall Harbor appraisal; and c) direct staff to prepare an ordinance amending the Newport
Beach Municipal Code ( "NBMC ") to allow for the charging of fair market value rent as well as
to remove the current prohibition against rentals of residential piers.
These resolutions stem from an Ad Hoc Committee (hereinafter the "Committee ") that was to
meet for a limited period appears to have met for a prolonged period of time. In effect, this Ad
2603 Main Street, Suite 1050 • Irvine, CA 92614• Fhune: 949 - 4684047- Fax: 949 -251 -1886
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Nancy Gardner
Dave Kiff
Arron Harp
City of Newport Beach
Page 2
January 10, 2013
Hoe Committee became a standing committee of the Newport Beach City Council. Of particular
concern is the fact that this committee met on several occasions with no public hearing notice, no
posted agenda, and provided few or no public hearings. As a result of these potential Brown Act
violations, members of the public were denied their rights to speak about this controversial
proposal and recommendations. We are gravely concerned that the full council has relied on the
recommendation of a governmental body that did not comply with all of the constitutional
protections of the Brown Act.
As you are aware, 1986 amendments to the Brown Act created specific agenda obligations for
notifying the public with a "brief description" of each item to be discussed or acted upon, and
also created a legal remedy for illegally taken actions, namely the judicial invalidation of them
upon proper findings of fact and conclusions of law.
Pursuant to the provision (Government Code §54960.1), I demand that the Newport Beach City
Council cure and correct the illegally taken action as follows: we ask that this Council put this
matter back on its agenda for reconsideration after a meeting of the Committee has been
conducted that respects the Brown Act, the Council's own rules, and the fundamental principles
of open government, free speech, and public participation that they, and our California
Constitution, are meant to protect.
As provided by Section 54960.1 you have 30 days from the receipt of this demand to either cure
or correct the challenged action or inform me of your decision not to do so. If you fail to cure or
correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation
of the challenged action pursuant to Section 54960.1, in which case I would see the award of
court costs and reasonable attorney fees pursuant to Section 56960.5.
Respe urs,
Steven. D. Baric, Esq.
Attorney at Law
SDB /ert