HomeMy WebLinkAbout20 - Ordinance Related to Encroaching Piers2EWPORT - CITY OF
NEWPORT BEACH
oaH'= City Council Staff Report
Agenda Item No. 20
August 13, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David A. Webb, Public Works Director
949 - 644 -3311, dawebb @newportbeachca.gov
PREPARED BY: Chris �Miller, �Harbor Resources Manager
APPROVED:
TITLE: Consideration of Ordi Ices Amending Newport Beach Municipal
Code Sections 17.35.020(F) and 17.60.060 Relating to Piers that
Encroach in Front of Adjacent Properties and Commercial
Indemnity, Respectively
ABSTRACT:
The City of Newport Beach ( "City ") manages public tidelands on behalf of the State of
California. Through this management, the City allows private individuals to construct
and maintain piers. A small number of piers located upon the tidelands encroach in
front of adjacent upland properties. When these encroaching piers are transferred, a
new permit is required to be processed by the Harbor Commission, rather than by staff
through an administrative process. The City Council may consider amending these
transfer provisions to allow for administrative processing. Additionally, the tidelands
permits and leases recently adopted by the City Council require commercial tidelands
users to indemnify the City. For ease of use, it is proposed this indemnity obligation be
placed within the Newport Beach Municipal Code ( "NBMC").
RECOMMENDATION: (Select only one)
1) Conduct first reading of Ordinance No. 2013 -15 amending NBMC Sections
17.35.020(F) and 17.60.060 to allow certain administrative transfers of
encroaching tidelands permits and to require commercial tidelands users to
defend and indemnify the City, and pass to a second reading on September 10,
2013: or
2) Conduct first reading of Ordinance No. 2013 -15 repealing NBMC Section
17.35.020(F) to allow the administrative transfer of all encroaching tidelands
permits and amending NBMC Section 17.60.060 to require commercial tidelands
users to defend and indemnify the City, and pass to a second reading on
September 10, 2013; or
1 offs
Consideration of Ordinances Amending Newport Beach Municipal Code Sections
17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent
Properties and Commercial Indemnity, Respectively
August 13, 2013
Page 2
3) Select neither option 1 or 2 and maintain the current process.
FUNDING REQUIREMENTS:
There are no funding requirements associated with either recommendation
DISCUSSION:
Within Newport Harbor, there are a small number of piers which encroach in front of
adjacent abutting upland properties (i.e., piers /floats encroach over the extension of
their property lines into water area in front of a neighbor). These piers have existed for
some time, and were allowed to encroach for various reasons at the time they were
built. See examples in Exhibit A.
NBMC Section 17.35.020(F) currently requires that a new permit be approved by the
Harbor Commission for piers that encroach in front of adjacent upland property owned
by others upon any of the following conditions:
1. Any change in type of existing use of the piers and floats;
2. Any change in type of existing use of the abutting upland property owned by the
permittee;
3. Any change of existing ownership of the abutting upland property owned by the
permittee or upon the death of the permittee;
4. Any destruction of the pier and float in which over sixty (60) percent of the
replacement value of the pier and float has been destroyed.
In an effort to improve the pier permit transfer process staff has prepared two alternative
ordinances for the City Council's consideration designed to address piers that encroach
in front of adjacent abutting upland properties. The first ordinance, attached as Exhibit
B, amends NBMC Section 17.35.020(F) to allow certain transfers between family
members or between related entities to be processed administratively, without the need
for Harbor Commission review. This ordinance also amends NBMC Section 17.60.060
to codify the indemnity obligations previously approved by the City Council for
commercial tidelands permits and leases.
The second ordinance, attached as Exhibit C, repeals NBMC Section 17.35.020(F) in its
entirety and allows for the administrative transfer of all pier permits. This ordinance also
amends NBMC Section 17.60.060 to codify the indemnity obligations previously
approved by the City Council for commercial tidelands permits and leases. There are
no proposed indemnity obligations for non - commercial (e.g., residential) tidelands users
under either ordinance. The redline amendments to the NBMC are shown in Exhibit D.
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Consideration of Ordinances Amending Newport Beach Municipal Code Sections
17.35.020(F) and 17.60.060 Relating to Piers that Encroach in Front of Adjacent
Properties and Commercial Indemnity, Respectively
August 13, 2013
Page 3
These proposals originated through the City Council and were not taken to the Harbor
Commission for consideration.
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:
This agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers this item).
Submitted by:
i
D vid A. 065b
Public Works Director
Exhibits: A. Examples of Encroaching Commercial Piers
B. Ordinance No. 2013- 15 Amending Sections 17.35.020(F) and
17.60.060
C. Ordinance No. 2013 - 15 Repealing Section 17.35.020(F) and
Amending Section 17.60.060
D. Redline Version of Amended and Repealed NBMC Sections
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Exhibit A
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Exhibit B
ORDINANCE NO. 2013 -
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA AMENDING SECTIONS
17.35.020(F) AND 17.60.060 OF THE
NEWPORT BEACH MUNICIPAL CODE TO
ALLOW CERTAIN ADMINISTRATIVE
TRANSFERS OF TIDELANDS PERMITS AND
TO REQUIRE COMMERCIAL TIDELANDS
USERS TO DEFEND AND INDEMNIFY THE
CITY OF NEWPORT BEACH
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, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport
Beach Municipal Code ( "NBMC ") allow the City to authorize third parties to use
tidelands for commercial and noncommercial purposes for a term not to exceed fifty (50)
years;
WHEREAS, the City allows persons to operate and maintain commercial and
noncommercial piers upon the tidelands under an annually issued permit or lease;
WHEREAS, a small number of piers encroach in front of adjacent abutting
upland property not controlled /owned by the permittee;
WHEREAS, currently when a permit associated with a pier that encroaches in
front of adjacent abutting uplands property is transferred the new permittee is required
to seek a new permit from the Harbor Commission;
WHEREAS, the City desires to amend the NBMC to allow these types of permits
to be transferred administratively, when the transfer is between family members or
entities controlled /owned by the same person; and
WHEREAS, the City desires to codify the indemnity obligation previously
approved by the City Council for commercial tidelands permits and leases.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
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Section 1: Subsection F(5) is added to Subsection 17.35.020(F) of the Newport
Beach Municipal Code to read as follows:
5. This subsection shall not apply to the transfer of a permit
between family members or between entities
owned /controlled by the same person. Permits falling under
this exception may be transferred administratively subject to
approval by the City Manager or Harbor Resources Manager
in accordance with Section 17.60.030(C)(4).
Section 2: Subsection "F" is added to Section 17.60.060 of the Newport Beach
Municipal Code to read as follows:
F. All persons that receive a commercial permit or lease
from the City to use public trust lands shall as a condition of
receiving the commercial permit or lease defend and
indemnify the City. Unless different language is provided
within a specific commercial permit or lease, the following
indemnity language shall be included, in substantially the
same form, within every commercial permit and lease:
To the fullest extent permitted by law, permittee /lessee shall
indemnify, defend (with counsel approved by the City, which
approval shall not be unreasonably withheld) and hold
harmless the City, its elected officials, officers, employees,
agents, attorneys, volunteers and representatives from and
against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses of every kind and
nature whatsoever (individually, a "Claim" or collectively,
"Claims "), which may arise from or in any manner relate
(directly or indirectly) to this permit/lease including, but not
limited to, permittee'sllessee's occupancy and use, or
permittee's /lessee's guests, invitees, sublessees, or
licensees occupancy and use, of the public trust lands, or
improvements including, but not limited to, any use involving
petroleum based products, hazardous materials, hazardous
waste and /or other hazardous substances as defined by
City, County, State or Federal laws and regulations. The
perm ittee's /lessee's obligations in this indemnity shall not
extend to the degree any Claim is proximately caused by the
2
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sole negligence or willful misconduct of the City, subject to
any immunities which may apply to the City with respect to
such Claims. This indemnification provision and any other
indemnification provided elsewhere in this permit/lease shall
survive the termination of this permit/lease and shall survive
for the entire time that any third party can make a Claim.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 4: 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, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
Section 5: 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 6: 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,
M
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This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the _ day of 2013, and adopted on the _
day of 2013, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
KEITH CURRY, MAYOR
THE CITY ATTORNEY'S OFFICE
AG-1-r)
AARON C. HARP. CITY ATTORNEY
I_ilii *t1I
LEILANI I. BROWN, CITY CLERK
9
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Exhibit C
ORDINANCE NO. 2013 -
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA REPEALING SUBSECTION
17.35.020(F) AND AMENDING SECTION
17.60.060 OF THE NEWPORT BEACH
MUNICIPAL CODE TO REQUIRE
COMMERCIAL TIDELANDS USERS TO
DEFEND AND INDEMNIFY THE CITY OF
NEWPORT BEACH
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, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport
Beach Municipal Code ( "NBMC ") allow the City to authorize third parties to use
tidelands for commercial and noncommercial purposes for a term not to exceed fifty (50)
years;
WHEREAS, the City allows persons to operate and maintain commercial and
noncommercial piers upon the tidelands under an annually issued permit or lease;
WHEREAS, a small number of piers encroach in front of adjacent abutting
upland property not controlled /owned by the permittee;
WHEREAS, currently when a permit associated with a pier that encroaches in
front of adjacent abutting uplands property is transferred the new permittee is required
to seek a new permit from the Harbor Commission;
WHEREAS, the City desires to repeal NBMC Subsection 17.35.020(F) to allow
these types of permits to be transferred administratively, similar to the transfer of other
tidelands permits; and
WHEREAS, the City desires to codify the indemnity obligation previously
approved by the City Council for commercial tidelands permits and leases.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Subsection 17.35.020(F) of the Newport Beach Municipal Code is
hereby repealed in its entirety.
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Section 2: Subsection "F" is added to Section 17.60.060 of the Newport Beach
Municipal Code to read as follows:
F. All persons that receive a commercial permit or lease
from the City to use public trust lands shall as a condition of
receiving the commercial permit or lease defend and
indemnify the City. Unless different language is provided
within a specific commercial permit or lease, the following
indemnity language shall be included, in substantially the
same form, within every commercial permit and lease:
To the fullest extent permitted by law, permittee /lessee shall
indemnify, defend (with counsel approved by the City, which
approval shall not be unreasonably withheld) and hold
harmless the City, its elected officials, officers, employees,
agents, attorneys, volunteers and representatives from and
against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses of every kind and
nature whatsoever (individually, a "Claim" or collectively,
"Claims "), which may arise from or in any manner relate
(directly or indirectly) to this permit/lease including, but not
limited to, permittee's /lessee's occupancy and use, or
permittee's /lessee's guests, invitees, sublessees, or
licensees occupancy and use, of the public trust lands, or
improvements including, but not limited to, any use involving
petroleum based products, hazardous materials, hazardous
waste and /or other hazardous substances as defined by
City, County, State or Federal laws and regulations. The
permittee's /lessee's obligations in this indemnity shall not
extend to the degree any Claim is proximately caused by the
sole negligence or willful misconduct of the City, subject to
any immunities which may apply to the City with respect to
such Claims. This indemnification provision and any other
indemnification provided elsewhere in this permit /lease shall
survive the termination of this permit/lease and shall survive
for the entire time that any third party can make a Claim.
2
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Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 4: 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, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
Section 5: 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 6: 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.
W
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This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the — day of 2013, and adopted on the
day of 2013, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
KEITH CURRY, MAYOR
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
_M Crl
AARON C. HARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
0
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Exhibit D
Redline Versions of Amended NBMC Section 17.35.020(F) and 17.60.060
Amendment of NBMC Section 17.35.020(F) Allowing Intra- Family Transfers
F. Encroaching Piers and Floats. In areas where existing piers and floats encroach in
front of abutting upland property owned by others, a new permit approved by the Harbor
Commission shall be required upon:
1. Any change in type of existing use of the piers and floats;
2. Any change in type of existing use of the abutting upland property owned by
the permittee;
3. Any change of existing ownership of the abutting upland property owned by
the permittee or upon the death of the permittee;
4. Any destruction of the pier and float in which over sixty (60) percent of the
replacement value of the pier and float has been destroyed.
5. This subsection shall not apply to the transfer of a permit between family
members or between entities owned /controlled by the same person. Permits
falling under this exception may be transferred administratively subject to approval
by the City Manager or Harbor Resources Manager in accordance with Section
17.60.030(C)(4).
Before the Harbor Commission acts on the new permit, the owner of the abutting upland
property, in front of which the harbor facility encroaches, shall be notified in writing of
the meeting in which the new permit will be considered.
Repeal of NBMC Section 17.35.020(F)
solo Ic
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Amendment of NBMC Section 17.60.060 to Clarify Indemnity Obligations
17.60.060 Public Trust Lands.
The following restrictions shall apply to public trust lands under either a permit or a
lease:
A. Leases /Permits. In the event public trust lands are used by an entity other than the
City, then that entity shall enter into a lease or permit with the City. Such leases shall
provide lessees with a leasehold interest in the property for a period of at least five
years, not to exceed a period of time as limited by the City Charter or applicable State
law. Such permits shall provide permittees with an interest in the property for a period of
twelve (12) months or less.
B. Land Use. Leases and permits shall be for uses consistent with the public trust and
Section 17.05.080. Preference shall be given to coastal- dependent uses.
C. Public Access. Public access shall be provided in a manner consistent with
applicable law.
D. Revenue. Rent under this section shall be based upon fair market value, as
determined by the City Council. Such determination shall be based, in part, upon the
findings of a City - selected appraiser.
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E. Commercial uses provided under this Title 17 are exempt from any provision
requiring involvement of the owner or long -term lessee of an abutting upland property.
F. All persons that receive a commercial permit or lease from the City to use public
trust lands shall as a condition of receiving the commercial permit or lease defend and
indemnify the City. Unless different language is provided within a specific commercial
permit or lease the following indemnity language shall be included in substantially the
same form within every commercial permit and lease
To the fullest extent permitted by law, permittee /lessee shall indemnify, defend (with
counsel approved by the City, which approval shall not be unreasonably withheld) and
hold harmless the City, its elected officials officers employees agents attorneys
volunteers and representatives from and against any and all claims demands
obligations, damages actions causes of action suits losses iudgments fines
penalties liabilities costs and expenses of every kind and nature whatsoever
(individually, a "Claim" or collectively, "Claims ") which may arise from or in any manner
relate (directly or indirectly) to this permit/lease including but not limited to
permittee's /lessee's occupancy and use or permittee's /lessee's quests invitees
sublessees, or licensees occupancy and use of the public trust lands or improvements
including but not limited to any use involving petroleum based products hazardous
materials, hazardous waste and /or other hazardous substances as defined by City
County State or Federal laws and regulations The germittee's /lessee's obligations in
this indemnity shall not extend to the degree any Claim is proximately caused by the
sole negligence or willful misconduct of the City, subiect to any immunities which may
apply to the City with respect to such Claims This indemnification provision and anv
other indemnification provided elsewhere in this permit/lease shall survive the
termination of this permit/lease and shall survive for the entire time that any third part y
can make a Claim.
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