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HomeMy WebLinkAbout14 - Residential Pier PermitsTO: FROM: PREPARED BY: PHONE: TITLE: ABSTRACT: CITY OF NEWPORT BEACH City Council Staff Report March 25, 2014 Agenda Item No. 14. HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Aaron Harp, City Attorney — (949) 644 -3131, aharp @newportbeachca.gov Aaron C. Harp, City Attorney 949 - 644 -3131 Ordinance Amending Newport Beach Municipal Code Subsection 17.60.030(A) Relating to Residential Pier Permits On February 14, 2013, the Newport Beach Dock Owners Association and Robert McCaffrey (collectively, "Association ") filed a complaint against the City of Newport Beach ( "City ") alleging a violation of the Ralph M. Brown Act relating to the City's adoption of a resolution establishing fair market value rent for residential piers and a model residential pier permit. The City strongly disagrees with the Association's allegations and has consistently asserted that the City fully complied with all requirements of the Act. Nonetheless, to conserve limited resources and avoid on -going litigation, the parties mutually desire to resolve all disputes and differences between them. As part of the proposed settlement, the City agreed to consider an amendment to Newport Beach Municipal Code ( "NBMC ") Subsection 17.60.030(A) regarding the issuance and renewal of residential pier permits. RECOMMENDATION: a) Introduce Ordinance No. 2014 -8, An Ordinance of the City Council of the City of Newport Beach Amending Newport Beach Municipal Code Subsection 17.60.030(A) Relating to Residential Pier Permits, and pass the ordinance to second reading on April 8, 2014; and b) Authorize the City Manager to execute the Settlement Agreement and Release with the Association, if Ordinance No. 2014 -8 is adopted on April 8, 2014. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: On February 14, 2013, the Association filed a complaint against the City alleging a violation 0385 the Ralph M. Brown Act relating to the City's adoption of a resolution establishing fair market value rent for residential piers and a model residential pier permit (Newport Beach Dock Owners Association, et al. v. Newport Beach City Council, et al. (Orange County Superior Court Case No. 30- 2013 - 00630419- CU- WM -CJC)) ( "Litigation "). The City has consistently maintained the Litigation lacks merit and the City has fully complied with the open meeting rules of the Act. However, rather than continue to expend resources in the Litigation, the parties desire to mutually settle this matter and allow the City to move on with the important mission of serving its residents. As part of the proposed settlement, the Association asked the City to consider an amendment to NBMC Subsection 17.60.030(A) relating to the manner in which residential pier permits are issued and renewed within Newport Harbor. The proposed amendment maintains City control over the tidelands, while giving abutting upland property owners' greater assurances in the residential piers located in front of their properties. The draft language in the attached ordinance re- states the City's long standing practice and policy of issuing residential pier permits to the abutting uplands property owner, while staying within the existing 10 year permit period of NBMC Subsection 17.60.060(A)(2) and the overall 50 year limitation of the Beacon Bay Bill. ENVIRONMENTAL REVIEW: Staff recommends the City Council find the recommended actions are not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activities will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activities are not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because they have 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: Description Attachment A - Ordinance Attachment B - Settlement Agreement Attachment C - Redlined Ordinance :. ATTACHMENT A ORDINANCE NO. 2014 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING NEWPORT BEACH MUNICIPAL CODE SUBSECTION 17.60.030(A) RELATING TO RESIDENTIAL PIER PERMITS 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 Beacon Bay Bill and Title 17 of the Newport Beach Municipal Code ( "NBMC ") allow the City to authorize third parties to construct and maintain residential piers upon tidelands; WHEREAS, on February 14, 2013, the Newport Beach Dock Owners Association and Robert McCaffrey (collectively, "Association ") filed a complaint against the City alleging a violation of the Ralph M. Brown Act relating to the City's adoption of a resolution establishing fair market value rent for residential piers and a model residential pier permit; WHEREAS, the City disagrees with the Association's allegations and asserts that it has fully complied with all requirements of the Ralph M. Brown Act; WHEREAS, the parties have proposed a draft Settlement Agreement and Release to resolve all disputes and differences between them as to the claims set forth in Newport Beach Dock Owners Association, et al. v. Newport Beach City Council, et al. (Orange County Superior Court Case No. 30- 2013 - 00630419- CU- WM -CJC); and WHEREAS, the draft Settlement Agreement and Release contemplates a potential revision to NBMC Subsection 17.60.030(A) relating to the issuance and renewal of residential pier permits. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: NBMC Subsection 17.60.030(A) is hereby amended to read as follows: A. Pier Permits. Upon the request of the abutting upland residential property owner, lessee or agent of the owner, and 387 in accordance with all applicable laws, a residential pier permit shall be issued for up to ten (10) years. The City shall extend the term of any residential pier permit for up to ten (10) years upon: (i) permit expiration and the request of the owner, lessee or agent of the owner; or (ii) upon sale of the abutting upland property and the request of the new owner, lessee or agent of the owner. The maximum term of any permit issued hereunder, with extensions, shall be fifty (50) years. After fifty (50) years, the abutting upland residential property owner, lessee or agent of the owner shall be required to apply for a new residential pier permit. Section 2: The City Council finds the introduction and adoption 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 3: 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 25th day of March, 2014, and adopted on the 8th day of April, 2014, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS. 2 :: ABSENT COUNCILMEMBERS RUSH N. HILL, II, MAYOR APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE -- c. # °',-- AARON C. HARP, CO ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 3 :• ATTACHMENT B SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ( "Agreement") is made and entered into on February L1, 2014 ( "Effective Date ") by and between the Newport Beach Dock Owners Association and Robert McCaffrey (collectively, "Association ") and the Newport Beach City Council and the City of Newport Beach (collectively, "City") (together, the "Parties "). RECITALS WHEREAS, the City is a municipal corporation and charter city duly organized and existing under the laws of the State of California; WHEREAS, the Newport Beach City Council is the elected body that represents and governs the City under the City Charter; WHEREAS, the Association is a California corporation composed of tidelands users and an individual whose principal address is 1410 South Bay Front, Newport Beach, California 92662; WHEREAS, on February 14, 2013, the Association filed a complaint against the City alleging a violation of the Ralph M. Brown Act relating to the City's adoption of a resolution establishing fair market value rent for residential piers and a model residential pier permit; WHEREAS, the City disagrees with the Association's allegations and asserts that it has fully complied with all requirements of the Ralph M. Brown Act; and WHEREAS, the Parties desire to mutually resolve all disputes and differences between them as to the claims set forth in Newport Beach Dock Owners Association, et al, v. Newport Beach City Council, et al. (Orange County Superior Court Case No. 30- 2013- 00630419- CU- WM -CJC) ( "Litigation "). NOW, THEREFORE, for their mutual benefit, the Parties hereby agree and confirm that this Agreement finally resolves and satisfies all claims that were or could have been asserted in the Litigation and agree as follows: 1. The recitals provided above are true and correct and are incorporated into the substantive portion of this Agreement. 390 2. The City will amend Newport Beach Municipal Code Subsection 17.60.030(A) to provide as follows: "upon the request of the abutting upland residential property owner, lessee or agent of the owner, and in accordance with all applicable laws, a residential pier permit shall be issued for up to ten (10) years. The City shall extend the term of any residential pier permit for up to ten (10) years upon: (i) permit expiration and the request of the owner, lessee or agent of the owner; or (ii) upon sale of the abutting upland property and the request of the new owner, lessee or agent of the owner. The maximum term of any permit issued hereunder, with extensions, shall be fifty (50) years. After fifty (50) years, the abutting upland residential property owner, lessee or agent of the owner shall be required to apply for a new residential pier permit. A copy of the Revised Residential Tidelands Pier Permit, as adopted by Resolution No. 2013 -88, is attached to this Agreement. 3. Within five (5) calendar days of the Effective Date of this Agreement, the Association shall dismiss the Litigation with prejudice. 4. The Parties shall bear their own attorneys' fees and costs. 5. This Agreement shall constitute a complete and final settlement of all claims which were asserted, or could have been asserted, by the Association against the City in the Litigation. 6. This Agreement shall not constitute an admission of evidence of any fact, wrongdoing, misconduct, or liability on the part of the City, its officers and employees or any person affiliated with the City. 7. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Association hereby releases and forever discharges the City from any and all actions, causes of action, suits, controversies, claims, damages and demands, at law or in equity, that Association now has or had relating to the Litigation, including any claim for damages, fees, or costs arising out of the Litigation. 8. This Agreement is fully binding on the Parties, their successors and assigns, and has been reviewed by legal counsel, and the terms are fully understood and voluntarily accepted as a complete and final settlement of any and all claims between the Parties, including those in the Litigation. 2 391 9. This Agreement constitutes the entire agreement between the Parties. The individuals executing this Agreement on behalf of the respective Parties have express and lawful authority to do so, and it may be executed in counterparts. 10. This Agreement shall be construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: THE CITY ATTO NEY'S OFFICE Date: 3 zc /y By: '49L f Aaron C. Harp City Attorney ATTEST: Date: Bv: Leilani I. Brown City Clerk CITY: Date: Bv: Dave Kiff City Manager ASSOCIATION; Date: �- (Z t I Zd/ Y Byq- Name: Robert McCaffrey Title: President Date: 2 (Z l (ZO l By: Name: Title: Attachment: Revised Residential Tidelands Pier Permit 3 392 Residential Tidelands Pier Permit (1) Permittee: This Permit is issued on to ( "Permittee ") to construct/maintain a residential pier located upon City of Newport Beach ( "City's tidelands, as more particularly described and depicted in Attachment 1 ( "Premises "), which is attached hereto and incorporated by reference. By acceptance of this Permit, the Permittee agrees to be bound by the terms contained in this Permit. (2) Term: This Permit shall be valid for a period of _ year(s) beginning on March 1, 20 and expiring on February _, 20_, unless terminated earlier as provided herein. A new permit may be automatically Issued upon expiration, provided rent is paid and the pier is maintained. The City's longstanding policy is to re- issue residential permits annually to the upland property owner, who also owns the physical dock associated with the Premises. (3) Rent: Rent shall be calculated pursuant to Resolution No. 2013 -88, or any successor /amended resolution. Resolution No. 2013 -88 and any successor /amended resolution are automatically incorporated by reference into this Permit, without any further action by the parties, when adopted by the Newport Beach City Council. (A) Periodic Payment of Rent: One -sixth (116) of annual rent for a particular year shall be received by the City within nineteen (19) days after the mailing of the Municipal Services Statement to Permittee. Bi- monthly rent will be billed with the Permittee's Municipal Services Statement. (B) Place for Payment of Rent: All payments of rent shall be made in lawful money of the United States of America and shall be paid to City on line at www.newportbeachca.gov, in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time to time designate in writing to the Permittee. The Permittee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal. (C) Late Charges: A ten percent (10 %) late charge, or the maximum rate allowable under State law, shall be added to all payments due but not received by City by the due date. (D) Third -Party Use: This Permit o allows / o does not allow (check one) the Permittee to rent/lease the Premises to a third -party. (4) Utilities and Taxes: The Permittee is solely responsible for obtaining all utilities and paying all taxes (including possessory interest tax, if applicable), fees and assessments for the Premises or Improvements located thereon. (5) Maintenance: The Permittee assumes full responsibility for operation and maintenance and repair of the Premises and associated improvements throughout the term of this Permit at its sole cost, and without expense to the City. 9 393 (6) Transfer /Assignment: This Permit may be transferred or assigned by the Permittee as provided In the Newport Beach Municipal Code. 394 Attachment 1 Description & Depiction of Premises Premise's Address (or description of general location): Premise's Square Footage: Premise's Depiction: fti`Ir1 ATTACHMENT C 17.60.030(A) A. Pier Permits. Upon the request of the abutting upland residential property owner, lessee or agent of the owner, and in accordance with all applicable laws, a residential pier permit shall be issued for up to ten (10) years. The City shall extend the term of any residential pier permit for up to ten (10) years upon: 0) permit expiration and the request of the owner, lessee or agent of the owner: or (ii) upon sale of the abutting Upland property and the request of the new owner, lessee or agent of the owner. The maximum term of any permit issued hereunder, with extensions, shall be fifty (50) years. After fifty (50) years, the abutting upland residential property owner, lessee or agent of the owner shall be required to apply for a new residential pier permit. PeFmits f9F pieFs 396