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HomeMy WebLinkAbout05 - Newport Harbor RegulationsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 5 January 24, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Administrative Services Department Glen Everroad, Revenue Manager, 644 -3144 Everroad(a city. newport- bea ch. ca. us SUBJECT: Commercial Activity Regulation on Newport Harbor— Municipal Code Chapters 5.18 & 17.41 ISSUE: Should the two Newport Beach Municipal Code chapters regulating commercial activities in Newport Harbor (5.18 and 17.41) be repealed and a new ordinance regulating commercial activities be introduced? RECOMMENDATION: It is recommended that the City Council introduce the proposed ordinance regulating commercial activities on Newport Harbor (Chapter 17.10) and pass to second reading and adoption at the City Council's next regularly scheduled meeting. DISCUSSION: Background: Newport Beach Municipal Code Chapters 5.18 and 17.41 regulate commercial activities on Newport Harbor. Since 1970, Chapter 17.41 has required a permit for commercial activities except those specifically exempted, while Chapter 5.18 has required a permit for those charter activities not permitted under Chapter 17.41 since 1988. On February 12, 2003, the Harbor Resources Manager provided the Harbor Commission a report on Newport Beach Municipal Code Chapters 17.41 and 5.18. The report provided background on the regulation of commercial activities, the revenues realized by the City from commercial operators, the number of passengers served by charter vessel operations, safety issues related to commercial operations and a variety Regulation of Commercial Activities January 24, 2006 Page 2 of other information relating to commercial operators in Newport Harbor. The Harbor Commission directed staff to form an interdepartmental committee to investigate the feasibility of implementing one or more of the following seven alternatives: 1. Increase staff follow -up to ensure that the permittees are in compliance with all permit conditions. 2. Review the commercial dock construction standards to ensure they are adequate to address safe charter operations, and if not suggest improved standards. 3. Consider a citywide limit on passenger capacity. 4. Consider the consolidation of charter regulations to a single ordinance, establishing consistent standards and practices for all charter activities. 5. Consider adding to the commercial harbor permit a long term lease, for those facilities that allow charter operations, to ensure the City is receiving the appropriate revenue for the use of State Tidelands, to cover the cost of increased enforcement and to enhance permit condition enforcement options. 6. Review the Harbor Permit Policy's parking requirements. Develop interdivisional review to include Revenue and Planning to ensure upland parking, offsite parking or shuttle service is appropriate for each permit issued to include charter permits as well as dock construction permits. 7. Moratorium on Charter Permit issuance. The Harbor Commission also established a Charter Boat Subcommittee consisting of three Harbor Commission members to work with the industry and staff in the development of a new consolidated regulatory ordinance. For nearly three years staff has worked with the industry, City Attorney's Office, the Charter Boat Subcommittee, and Harbor Commission in the development of a new ordinance regulating commercial activities on the Harbor. The proposed new ordinance would make the following substantive changes: • Establish a single regulatory authority within the City for commercial operations on Newport Harbor • Centralize regulation of commercial operations with the Harbor Resources Division • Create a uniform application, review and annual renewal process for commercial operations on Newport Harbor • Provide for a waiver or reduction of fees for commercial harbor operations when the vessels are owned and operated by non - profit entities • Recover the costs of processing applications and renewals for commercial harbor activities permits • Establish an exemption for vessels operated pursuant to a franchise or lease with the City of Newport Beach Regulation of Commercial Activities January 24, 2006 Page 3 During the past three years many issues were raised regarding the proposed new ordinance including: • Expanded regulation of businesses operating in the Harbor • Existing permit holders would not qualify under the new regulations • Permit fees would be onerous • Protracted permit process The proposed new ordinance has been reviewed by the Harbor Commission three times during the past three years, most recently in October of 2005. Staff has conducted more than a dozen meetings with the industry through the Charter Boat Subcommittee and the Chamber of Commerce Marine Division to work through the issues, and believe the greatest concerns have been addressed. Staff has estimated the costs of processing applications and renewals under the proposed new ordinance and is recommending tiered fees based on the estimated staff time spent to process applications. Staff proposes a three tier fee structure for applications based on the scope of the business operation (e.g. number of vessels, boarding locations, parking facilities) with a range of $130 for applications requiring less than an hour to $750 for those requiring more than ten hours to investigate. Staff proposes to update the fee schedule, if necessary, to reflect actual costs once we have gained more experience in processing applications under the new proposed ordinance. The City Attorney has reviewed and approved the proposed new ordinance. Environmental Review: Adoption of the proposed ordinance qualifies for an exemption from environmental review under Section 15308 of the CEQA Guidelines, actions by regulatory agencies for protection of the environment where construction activities and relaxation of standards allowing environmental degradation are not included. Public Notice: Notice of this meeting was posted at least 72 hours prior to this meeting. Alternatives: Council may elect to not introduce the proposed new municipal code chapter. Prepared by: SI RL'j, GIgh erroad, Revenue Manager Attachments: Proposed Ordinance 17.10 Regulation of Commercial Activities January 24, 2006 Page 4 Submitted by: SIGNAT RE Dennis Danner, Administrative Services Director NO. 2006 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, REPEALING CHAPTERS 5.18 OF TITLE 15 PERTAINING TO MARINE CHARTER PERMITS AND 17.41 OF TITLE 17 PERTAINING TO COMMERCIAL ACTIVITIES ON THE WATERS OF NEWPORT HARBOR AND ADDING CHAPTER 17.10 OF TITLE 17 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO BUSINESS ACTIVITIES ON NEWPORT HARBOR NOW THEREFORE, the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows: SECTION 1: Chapters 5.18 of Title 15 and 17.41 of Title 17 of the Newport Beach Municipal Code are hereby deleted in its entirety. SECTION 2: Chapter 17.10 of Title 17 of the Newport Beach Municipal Code is hereby added as follows: Chapter 17.10 Sections: 17.10.005 Findings and Purpose. 17.10.010 Definitions. 17.10.020 Permit for Commercial Activities in Newport Harbor Required. 17.10.025 Exemptions. 17.10.030 Application for Permit. 17.10.040 Filing Fee. 17.10.050 Issuance of Permit. 17.10.070 Power to Impose Conditions; Hold Harmless. 17.10.075 Insurance 17.10.080 Duration of Permit. 17.10.085 Enforcement, Right of Entry 17.10.090 Suspension /Revocation. 17.10.095 Appeal. 17.10.100 Transfer of Permit. 17.10.110 Licenses and Fees not Exclusive. 17.10.120 Application to Existing Commercial Activities. Section 17.10.005 Findings and Purpose. A. Newport Harbor is a limited resource with a large marine and recreational use; and B. There has been an increase in the nature and intensity of commercial activities such as harbor cruises, dinner cruises, boat rentals and water taxi services occurring on the waters of Newport Harbor; and C. Some of these vessels carry a number of passengers and some are owned or operated by persons who do not have a fixed base of operation on or near the bay that can provide the parking or sanitation facilities necessary to serve their clients and customers; and D. Commercial activities on Newport Harbor require City services which may not be paid by the patrons or passengers of commercial operators on Newport Harbor; and E. Commercial activity on Newport Harbor has created an additional demand for available parking and created traffic congestion in and around the waterfront; and F. On an infrequent basis, this commercial activity has created an unreasonable level of noise which has interfered with the right of persons who own property on or near Newport Harbor to the peaceful enjoyment of their property; and G. Commercial activity, especially the mix of large craft with limited maneuverability and restricted uplands access, has the potential to interfere with the safe navigation of boats and vessels operating on waters of Newport Harbor and, the potential to increase the amount of pollution and litter on and in those waters; and H. The requirements of the chapter are necessary to minimize the traffic congestion, parking shortages, excessive noise, and the discharge of waste that could result from unregulated commercial activity and to ensure safe operation within the capacity and constraints of the Newport Harbor; and I. The Harbor and Bay Element of the General Plan establishes an objective to preserve existing commercial uses in Newport Harbor to the extent necessary to maintain and enhance the charm and character of the Harbor and to provide support services for visitors, recreational boaters and other water dependent activities by enforcing existing ordinances and, if necessary establish new standards for the operation of entertainment, sport fishing and work boats; and J. In adopting this chapter the City Council intends that the health, safety and welfare of those who use, enjoy and own property near Newport Harbor are not adversely affected by commercial activities conducted on those waters and that suitability and capability of the Newport Harbor infrastructure to accommodate future permit dependent operations are adequately considered in permit application processes; and F K. Fees and charges imposed on commercial users of Newport Harbor should recover City cost and contribute to major maintenance (i.e. dredging); and L. Leases should be used were appropriate to recover the fair market value of the use of public tidelands from holders of permits for marine commercial activities on tidelands properties. M. Current zoning district boundaries terminate at the bulkhead line and property development regulations of the zoning code do not apply bayward of the bulkhead line and the City Council desires to mitigate the impact commercial uses on Newport Harbor have on the uplands. Section 17.10.010 Definitions. A. "Applicant" shall mean the owner of the business or vessel or an authorized representative of the owner. B. "Bareboat Charter' shall mean any vessel not inspected by the United States Coast Guard under Title 46 of the Code of Federal Regulations and which has been chartered for consideration. C. "Certificated Charter" shall mean any vessel inspected by the United States Coast Guard under Title 46 of the Code of Federal Regulations and which has been chartered for consideration. D. "Chartered for consideration" shall mean a vessel which has been hired or leased by the owner, directly or through an authorized representative, to any person for a voyage in exchange for the payment of money, the receipt of something of value, or the forgiveness of a debt. E. "City Manager" shall mean the City Manager of the City of Newport Beach, or his or her respective designee. F. "Commercial activity" shall mean any service, trade, business or occupation carried on, for which any monetary or other valuable consideration is received, or for the purpose of profit. G. "Commercial fishing vessel" shall mean a vessel registered by the Department of Fish and Game pursuant to Section 7880 of the Fish and Game Code of the State of California, when operating under the authority of the Fish and Game permit. H. "Harbor Resources Manager' shall mean the Harbor Resources Manager of the City of Newport Beach, or his or her designee. 3 I. "Newport Harbor' or "on the waters of Newport Harbor' shall mean all waters within the corporate limits of the City of Newport Beach and within which the tide ebbs and flows, whether or not the ordinary or mean high tide of the Pacific Ocean has been fixed by ordinance, statute, court action or otherwise, and whether or not the lands lying under the tidal water are privately or publicly owned. J. "Non- profit organization" shall mean an entity designated as tax exempt by the Internal Revenue Service or the State Franchise Tax Board. K. "Operator" shall mean the person who operates or who has charge of the navigation or use of a vessel. L. "Passenger' shall mean every person, other than the master and a member of the crew or other persons employed or engaged in any capacity on board a vessel in the business of that vessel. M. "Person" shall mean an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee or any other organization or group of persons acting in concert. N. "Property Owner" shall mean the owner of the abutting upland property who has obtained a permit to place a structure in Newport Harbor pursuant to Chapter 17.24. O. "Risk Manager" shall mean the Risk Manager of the City of Newport Beach, or his or her designee. P. "Sailing club" shall mean an organization operating from a fixed location and principally engaged in the coordination or facilitation of the use of sailing club operated boats by its membership. Q. "Sport fishing charter' shall mean a vessel chartered solely for sport fishing outside of Newport Harbor. R. "Vessel Owner" shall mean the owner of the vessel as shown on current registration with the Department of Motor Vehicles or the United States Coast Guard. S. "Vessel" shall mean every description of watercraft or other contrivance capable of being used as a means of transportation or lodging on water, but does not include aircraft. Section 17.10.020 Permit for Commercial Activities in Newport Harbor Required. A. No person shall operate any charter on the waters of Newport Harbor 51 without first obtaining a commercial harbor activities permit pursuant to this chapter. B. No person shall schedule, arrange, or coordinate the operation of a bareboat charter or certificated charter on the waters of Newport Harbor without first obtaining a commercial harbor activities permit pursuant to this chapter. C. No person who owns a certificated vessel (a vessel inspected by the United States Coast Guard pursuant to Title 46 of the Code of Federal Regulations) shall permit or allow the use of the vessel as a certificated charter on the waters of Newport Harbor without first obtaining a commercial harbor activities permit pursuant to this chapter. D. No person shall operate a bareboat charter or certificated charter on the waters on Newport Harbor without having a valid commercial harbor activities permit on board the vessel at all times during the charter. E. No owner of a vessel shall permit that vessel to be used as a bareboat charter on the waters of Newport Harbor unless a valid commercial harbor activities permit has been issued for the bareboat charter. F. No person shall engage in, or conduct, any commercial activity on Newport Harbor, unless that person has obtained a permit for such activity pursuant to the provisions of this chapter. Section 17.10.025 Exemptions. The requirements of this chapter are not applicable to the following: A. Commercial fishing vessels and sports fishing charters traversing on the waters of Newport Harbor to engage in commercial fishing or other operations outside of Newport Harbor; B. A person operating a single vessel as a commercial activity or charter for consideration with six or fewer passengers. C. Businesses operating pursuant to a franchise or lease agreement with the City of Newport Beach. D. Vessels exempted by this section shall not be used for office purposes unless such use is specifically authorized via a permit issued pursuant to this chapter. E. Commercial activities operating pursuant to a permit issued by the Army Corp of Engineers, or a Special Events Permit or Commercial Film Permit issued by the City of Newport Beach. 5 Section 17.10.030 Application for Permit. An application for permit under this chapter shall be filed with the Harbor Resources Manager, upon forms provided by the City, and shall contain such information established by Council Policy, and that which the Harbor Commission or Harbor Resources Manager may require. Section 17.10.040 Filing Fee. An application or renewal of an application for a commercial harbor activities permit shall be accompanied by the fee established by resolution of the City Council. Section 17.10.050 Issuance of Permit. Upon receipt of a complete application for commercial harbor activities permit, the Harbor Resources Manager shall investigate the information contained in the application. The Harbor Resources Manager may refer the application to the Planning Department, Harbor Commission, Planning Department and other appropriate City departments, or to the Orange County Sheriffs Harbor Patrol for investigation, report or recommendation. The Harbor Resources Manager may inspect, or cause to be inspected, the vessel(s), marine sanitation device(s) of the vessel(s), boarding facilities, parking and all upland support facilities listed in the application. The Harbor Resources Director shall notify applicant of his decision in writing within ninety (90) days from the date on which a completed application is received. Except as provided in this section, the Harbor Resources Manager may issue the commercial activities permit upon a determination that approval of the application will not adversely affect the health, safety or welfare of those who use, enjoy, or own property near Newport Harbor. The Harbor Resources Manager shall approve the application unless: A. The proposed commercial activity is likely to create noise which would adversely affect use or enjoyment of the waters of Newport Harbor by members of the public, or interfere with the rights of those who own property near the waters of Newport Harbor to the peaceful and quiet enjoyment of that property; B. The proposed commercial activity is likely to contribute to the problem of pollution and litter on and in the waters of Newport Harbor; C. The vessel or craft to be used by the applicant does not satisfy the applicable standards of the United States Coast Guard, or City, County, State or Federal requirements of law; 9 D. The proposed commercial activity is likely, when viewed in conjunction with other anticipated charters and marine operations, to create a hazard to safe navigation , or otherwise interfere with the rights of others to use the waters of Newport Harbor; E. The proposed commercial activity does not provide facilities to ensure adequate parking as required by Chapter 20.66, safe vehicular ingress and egress, and the safe loading and unloading of passengers and supplies for the period subject to permit. For the purpose of this section, parking shall be considered adequate if the applicable parking requirements of Chapter 20.66 are satisfied; F. The commercial activity would violate City, County, State or Federal requirements of law; G. The applicant has misrepresented material facts in the application; H. The proposed commercial activity does not provide uplands support, docking or boarding facilities sufficient to safely accommodate the size of vessel(s) or number of passengers indicated on the application; The proposed commercial activity includes an upland use that requires a use permit or other approval under the City Zoning Code, and such permit has not been obtained; J. The applicant has a permit which is currently revoked or has been revoked or suspended, or a notice of revocation or suspension no longer subject to appeal has been issued within the past ninety (90) days. Section 17.10.070 Power to Impose Conditions; Hold Harmless. A. In granting any permit pursuant to this chapter, the Harbor Resources Manager, or the Harbor Commission on appeal, may impose any additional conditions on the permit to ensure that the proposed commercial activity will be compatible with the predominantly recreational character of Newport Harbor, the rights of other persons using Newport Harbor, the interests of residents and property owners whose properties abut or are in close proximity to Newport Harbor, and the interests of the general public. Any such permit shall contain a provision stating that the permittee shall defend, indemnify and hold the City, the County of Orange, and the Orange County Harbor District harmless from any claim for damages, penalties or fines arising out of the exercise of the permit; or the activities of the permittee carried on under the authority of such permit. The Harbor Resources Manager or Harbor Commission, on approval or review, shall have the power to impose new conditions or modify existing conditions with regard to any permit issued pursuant to this chapter upon 7 a determination that the operations by permittee, in the absence of the new or modified conditions, does adversely impact the health, safety or welfare of those who use, enjoy and own property near Newport Harbor. B. All permits issued pursuant to this chapter are subject to the following standard conditions: 1. Adequate off - street parking shall be provided for all passengers or patrons of the commercial harbor activity; 2. No passenger loading or unloading is to occur at any fuel dock or public dock; 3. Passengers transported to or from the commercial harbor activity shall not be picked up from, or unloaded on, City streets unless specifically approved by the Harbor Resources Manager; 4. All passengers and provisions shall be loaded and unloaded only from docks or piers where the abutting uplands property is commercially- zoned, unless specifically approved by the Harbor Resources Manager; 6. Music and sound from the vessel shall be controlled so as not to disturb a person of normal sensitivity at a point one hundred (100) feet from the hull of the vessel; 7. Music, live entertainment, and all forms of amplified sound are prohibited after ten p.m.; 8. Air horns, whistles, bells, and other noisemaking equipment shall not be used, except as required by Coast Guard regulations; 9. All trash and litter generated by the charter shall be properly disposed of in a private trash receptacle; 10. All vessels shall operate within main navigational channels, as far from shore as practical, and the route of travel must be at least one hundred (100) feet from any residence unless specifically approved by the Harbor Resources Manager; 11. All vessels equipped with marine sanitation devices shall comply with United States Coast Guard requirements in the use of approved holding tanks for raw sewage, and dye tablets shall be installed in holding tanks during the operation of the commercial harbor activity as required by the Harbor Resources Manager; 12, All Federal, State, County and City statutes, rules, ordinances, laws and regulations shall be obeyed; U 13. All required insurance shall be maintained in full force and effect for the full term of the permit. Section 17.10.075 Insurance Businesses operating on the Harbor with a permit issued pursuant to this chapter shall maintain and provide to the City proof of insurance covering its operation, with such policy limits and coverage as established by the City Risk Manager. Proof of insurance must clearly identify the activities and /or vessels covered. Section 17.10.080 Duration of Permit. Unless otherwise specified, a permit issued pursuant to this chapter shall be valid for twelve (12) months from the date of issuance, unless terminated or revoked prior. The Harbor Resources Manager may issue a permit for a shorter duration, provided the applicant meets all the requirements of this chapter for the duration of the period remitted. Section 17.10.085 Enforcement, Right of Entry A. Enforcement. It shall be the duty of the Harbor Resources Manager and his or her designee(s) to enforce each and all of the provisions of this title, and the Chief of Police shall render such assistance in its enforcement as may be required from time to time by the Harbor Resources Manager. B. Right of Entry. The Harbor Resources Manager and each and all of his assistants and any police officer or City employee whose job includes the enforcement of this chapter, shall have the power and authority to enter, free of charge, and at any reasonable time, any place of business or vessel subject to the requirements of this chapter. Section 17.10.090 Suspension / Revocation. Any permit granted pursuant to the provisions of this chapter may be suspended or revoked, by the Harbor Resources Manager, in whole or in part, upon fifteen days prior written notice to permittee, directing the permittee to appear at the time, date and place specified in the notice to show cause why the permit shall not be suspended or revoked. The notice shall specify the reasons for the proposed action. A permit may be suspended or revoked on any of the following grounds: A. That the permit holder has made a misrepresentation as to any material fact set forth in the application; B. For violation of any law, rule, condition of permit or regulation of the United States, the United States Coast Guard, the State of California, the City of W Newport Beach, or the County of Orange relating to the commercial activities authorized by any permit issued pursuant to this chapter; C. That the commercial activities of permittee adversely affect the health, safety or welfare of those who use, enjoy or own property near the water of Newport Harbor; D. That the commercial activities of permittee fall within the criteria for denial of an application, as set forth in subparagraph A through J of Section 17.10.050; E. The permittee has discharged or has permitted or allowed any other person on a vessel operating under the permit to discharge any human or animal excreta from any head, toilet, holding tank or similar facility into the waters of Newport Harbor. Section 17.10.095 Appeal. Appeals of any decision of the Harbor Resources Manager shall be made in accordance with Chapter 17.42. Section 17.10.100 Transfer of Permit. No permit issued pursuant to the provisions of this chapter shall be transferable either by assignment, sale, hypothecation, operation of law or otherwise without permission of the Harbor Commission having first been obtained. Application for transfer of any permit shall be subject to the same terms, conditions and requirements as an application for an original permit. In approving the transfer of any existing permit, the Harbor Commission may impose such conditions as it may determine are in the public interest. Section 17.10.110 Licenses and Fees not Exclusive. Fees and permits required by this chapter shall be in addition to any license, permit or fee required under any other chapter of this Code or any other provision of law. Section 17.10.120 Application to Existing Commercial Activities. The commercial activities of those holding valid permits issued pursuant to Chapter 17.41 prior to the effective date of this ordinance may be continued to the extent authorized by the permit, provided, the previously approved commercial activity shall not be increased, or expanded beyond the activities, conducted as of the effective date of this ordinance. The holder of an issued permit issued under Chapter 17.41 and prior to the effective date of this Ordinance, shall be deemed to meet the requirements of Chapter 17.10 for renewal unless the Harbor Resources Director or the Harbor Commission 10 determines there is a substantial change in the commercial activity. A substantial change may include, but is not limited to the following: A. An increase in or expansion of the operational characteristics of the commercial activity. B. Change in the vessel(s) authorized to operate under the terms of the permit, which change results in an increase in size or capacity of the vessel. C. Change in the maximum number of patrons or passengers authorized to participate in the commercial harbor activity on an authorized vessel. D. Change in the approved off - street parking agreement(s), or loss of parking provided prior to the effective of this ordinance. E. Change in the physical condition of the dock, gangway or pilings that would compromise the safety of the patrons or passengers. F. Change in the location where the vessel(s) is berthed and /or loads and unloads patrons or passengers and /or provisions for the commercial activity. G. Change in the approved route of travel. H. Failure to correct a violation of the standard conditions imposed pursuant to Section 17.10.070 B. SECTION 3: That 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 to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of , 2004, and adopted on the day of 2004, by the following vote, to -wit: 11 AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR Don Webb ATTEST: LaVonne Harkless, City Clerk 12