HomeMy WebLinkAbout16 - Limitations on Water - Propelled Vessels in Newport HarborCTY OF
F
NEWPORT BEACH
City Council Staff Report
April 28, 2015
Agenda Item No. 16
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director- (949) 644 -3330,
dawebb @newportbeachca.gov
PREPARED BY: Shannon Levin, Harbor Analyst
PHONE: (949) 644 -3041
TITLE: Limitations on Water - Propelled Vessels in Newport Harbor
ABSTRACT:
At the direction of City Council, the Harbor Commission studied
vessels in Newport Harbor. Noting concerns for safety, noise, an d
a Study Session in February 2015, and asked the City staff to
would prohibit all private operations of water - propelled vessels,
Harbor, as selected by a competitive process.
RECOMMENDATION:
the growing popularity of water - propelled
speed of vessels, the City Council met in
bring back an Ordinance and Policy that
but would allow one operator within the
a) Adopt Resolution 2015 -29, A Resolution of the City Council of the City of Newport Beach Adopting City
Council Policy H -6 Relating to Water - Propelled Vessels; and
b) Adopt Ordinance 2015 -4, An Ordinance of the City Council of the City of Newport Beach Regulating
the Operation of Vessels Propelled by Water above the Surface of Newport Harbor, amending Newport
Beach Municipal Code Section 17.20.060, and pass to second reading on May 12, 2015.
FUNDING REQUIREMENTS:
There are no funding requirements associated with this item.
DISCUSSION:
Newport Harbor is considered one of the largest small craft, recreational harbors in the United States. With
21 miles of shoreline, thousands of vessels occupy water space at residential piers, commercial marinas
and through an extensive network of mooring fields (Attachment A). Additionally, Newport Harbor is a
regional recreational hub for stand -up paddling, kayaking, sailing, and similar harbor uses.
Water - propelled vessels operate above the surface of the water and are commonly referred to as jetpack,
jetlev, flyboard, aquaflyer, aquaboard, etc. Typically, as with the jetpack, the user wears a shoulder pack
which is connected to a personal watercraft type vessel. The modified vessel sucks water up to the user's
16 -1
pack through a long tube where water is forced down at a high velocity, thereby creating lift raising the user
above the surface of the water (Attachment B). There are other types of water - propelled vessels that
involve boards upon which the operator stands, or frames upon which the rider sits, much like a motorcycle.
As water - propelled vessel operation is an emerging activity, the innovations are constantly evolving.
Newport Harbor currently has one commercial business, Jetpack America. Jetpack America operates under
an approved Marine Activities Permit ( "MAP ") and is based out of the Rhine Channel. Jetpack America
appears to be a popular visitor experience in Newport Harbor. Visitors, residents, and spectators enjoy the
experience, yet staff has received complaints from residents and boaters living in and recreating around
Newport Harbor regarding noise, exhaust, wake and speed related to the activity. To ensure the health,
safety and welfare of residents and visitors to Newport Harbor, staff has restricted the current, approved
operator to the open channel areas only.
The water - propelled vessel business is relatively new and there is a lack of information regarding safety
and operational characteristics. The Coast Guard is currently partnering with Jetpack America to study this
activity. Development of safety protocols and classification is forthcoming.
Staff has received multiple inquiries for establishment of new commercial water - propelled vessel operations
in the harbor. Given the growing popularity of the activity, it is anticipated that the City will continue to be a
destination for such businesses. To allow the study of the issues and operations, City Council adopted
Urgency Ordinance 2014 -11 establishing the temporary prohibition of issuing new MAPs to persons or
businesses engaged in operations of water - propelled vessels. The Urgency Ordinance expired in
December 2014.
As directed by City Council, the Harbor Commission established an Ad Hoc Committee to evaluate the
issue. The Committee held numerous public meetings soliciting input from residents, businesses, and other
public participants. The Committee identified specific factors for consideration: noise, safety, wake, speed,
commercial vs. private ownership and operation, and effects on other harbor users. The Committee
recommended to the Harbor Commission that all all water - propelled vessels, both private and commercial,
be prohibited in the Harbor. The Harbor Commission approved the recommendation and forwarded that to
City Council. In February 2015, a presentation was given by the Harbor Commission to the City Council at
a Study Session. Citing the concerns of noise, wake, speed, etc., the Commission recommended that the
City Council adopt a Resolution to prohibit all water - propelled vessel activity within the Harbor.
At the February 2015 Study Session, a majority of the Council indicated its preference that privately -
operated water - propelled vessels be prohibited in the Harbor, but that one commercial operator could
effectively be allowed to operate in the Harbor under a permit, contract or lease that would follow a
competitive Request for Proposal ( "RFP ") process.
Resolution 2015 -_ (Attachment C) adopts Council Policy H -6 (Attachment D) which: (1) prohibits privately
operated water - propelled vessels in Newport Harbor; and (2) prohibits commercially operated water -
propelled vessels except for one commercial operator as awarded by a competitive process.
Ordinance 2015 -_ (Attachment E) amends Newport Beach Municipal Code ( "NBMC ") Section 17.20.060
(Attachment F) to reflect the Resolution's approach. If approved at 1st Reading, a second reading for the
Ordinance will occur on May 12, 2015.
Jetpack America is currently permitted to operate in Newport Harbor through an approved MAP which will
expire on May 21, 2015. After that date, Jetpack America will be required to comply with the City's
municipal code.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find the approval of this ordinance and Council Policy 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) 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
16 -2
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.
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 - Newport Harbor Aerial Mao
Attachment B - Photos of Water Propelled Vessels
Attachment C - Resolution No. 2015 -
Attachment D - Council Policy H -6
Attachment E - Ordinance No. 2015 -
Attachment F - Public Comments Emailed to Staff
16 -3
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16 -4
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16 -6
F.111 ar_T61 a1•1:110 1111111361
RESOLUTION NO. 2015-
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, CALIFORNIA
ADOPTING CITY COUNCIL POLICY H -6 RELATING
TO WATER- PROPELLED VESSELS
WHEREAS, Section 200 of the Charter of the City of Newport Beach ( "City') 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, the City of Newport Beach is governed, in part, by its Charter,
Municipal Code, and adopted City Council Policies;
WHEREAS, Newport Harbor is one of the largest recreational yacht harbors in
the United States, and its waters and shoreline support a wide variety of commercial,
recreational and residential uses, and scenic and biological resources;
WHEREAS, the City Council regulated the operation of vessels propelled by
water above the surface of Newport Harbor by private recreational users and
businesses to ensure the health, safety and welfare of the public and the compatibility of
uses within Newport Harbor; and
WHEREAS, the City's Municipal Code authorizes the City Council, by resolution,
to provide rules for entering into a contract with an operator to operate vessels powered
or maneuvered by means of mechanical water propulsion above the surface of Newport
Harbor.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council hereby adopts City Council Policy H -6 relating to
vessels powered or maneuvered by means of mechanical water propulsion above the
surface of Newport Harbor. City Council Policy H -6 is attached as Exhibit 1 and
incorporated herein by reference.
Section 2: If any section, subsection, sentence, clause or phrase of this
resolution 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 resolution. The
City Council hereby declares that it would have passed this resolution and each section,
16 -7
ATTACHMENT C
subsection, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared unconstitutional.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the substantive portion of this resolution.
Section 4: Except as expressly modified in this resolution, all other City
Council Policies, sections, subsections, terms, clauses and phrases set forth in the
Council Policy Manual shall remain unchanged and shall be in full force and effect.
Section 5: The City Council finds the adoption of this resolution and the
enactment of City Council Policy H -6 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.
Section 6: This resolution shall take effect upon the effective date of
Ordinance No. 2015 -_, and the City Clerk shall certify the vote adopting this resolution.
ADOPTED this day of 2015.
Edward D. Selich,
Mayor
ATTEST:
Leilani I. Brown,
City Clerk
Attachment: Exhibit 1 - City Council Policy H -6
M.-
ATTACHMENT D
H -6
WATER - PROPELLED VESSELS IN NEWPORT HARBOR
PURPOSE
The City Council supports recreational and commercial activity within Newport Harbor
that preserves and contributes to the charm and character of the harbor. Quality
regulations protect the interests of all users of Newport Harbor including recreational
and commercial boaters, visitors, and residents.
The City Council finds that specific recreational and commercial activities may create
noise and safety concerns that detract from the unique environment for other harbor
users and waterfront properties.
Recreational and commercial vessels powered or maneuvered by means of mechanical
water propulsion above the surface of the water have the potential to disproportionately
impact the use and enjoyment of other harbor users, and if left unregulated create
potential health, safety and welfare issues. To ensure safe and enjoyable access to all
users of Newport Harbor, the City Council has determined that water - propelled vessels
operated above the surface of the water should be regulated and restricted.
Newport Beach Municipal Code Section 17.20.060, or any successor statute, prohibits
recreational and commercial vessels powered or maneuvered by means of mechanical
water propulsion above the surface of the water, unless operated under contract with
the City. The intent of this policy is to provide the procedure by which the City may
enter into a contract with an operator for the use of these unique vessels in Newport
Harbor.
POLICY
A. The City Manager, or his or her designee, may enter into a contract with one (1)
commercial operator to operate vessels powered or maneuvered by means of
mechanical water propulsion above the surface of the water in Newport Harbor.
B. No recreational users shall be allowed to operate vessels powered or
maneuvered by means of mechanical water propulsion above the surface of the
water in Newport Harbor.
C. The City Manager, or his or her designee, shall select a commercial operator by
means of an issuance of a Request for Proposal ( "RFP "). A new RFP shall be
issued no less than once every five (5) years.
Adopted — , 2015
16 -9
ATTACHMENT E
ORDINANCE NO. 2015 -
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, CALIFORNIA
REGULATING THE OPERATION OF VESSELS
PROPELLED BY WATER ABOVE THE SURFACE
OF NEWPORT HARBOR
WHEREAS, Section 200 of the Charter of the City of Newport Beach ( "City ") 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, Newport Harbor is one of the largest recreational yacht harbors in
the United States, and its waters and shoreline support a wide variety of commercial,
recreational and residential uses, and scenic and biological resources;
WHEREAS, the City's Harbor Resources Division has received inquiries and
Marine Activities Permit applications in the past from persons and businesses desiring
to establish water propulsion vessel operations within Newport Harbor;
WHEREAS, Newport Harbor currently has one (1) commercial business
operating a water propulsion vessel business out of the Rhine Channel. Water
propulsion vessels operate above the surface of the water and are commonly referred
to as Jetlev, Jetpack, Flyboard, Aquaflyer, Aquaboard, etc. The vessels operate by
sucking water up to the user through a long hose connected to a modified personal
water craft, and then redirecting the water at a high velocity back towards the water
surface, which provides lift to raise a user above the surface of the water;
WHEREAS, City staff has received complaints from residents living around
Newport Harbor regarding noise, exhaust, wake and speed violations related to water
propulsion vessels;
WHEREAS, the water propulsion vessel business is relatively new and there is a
lack of information regarding their safety and operational characteristics. The Coast
Guard is currently studying this activity, and has yet to develop safety protocols. To
ensure the health, safety and welfare of residents and visitors in Newport Harbor, City
staff has restricted the single current water propulsion vessel operator in Newport
Harbor to the main channel areas;
WOR
WHEREAS, there is a distinct lack of available space to accommodate multiple
water propulsion vessels in the channels. Given the unique operational characteristics
of water propulsion vessels (e.g., separate vessels for power and for holding the user as
well as a third vessel for staging, staff and loading purposes), they have the potential to
impact access to navigational channels and could, if used improperly, endanger users
as well as other persons within and around Newport Harbor;
WHEREAS, the City Council adopted urgency Ordinance No. 2014 -11 on June
24, 2014 establishing a six (6) month temporary prohibition on the issuance of Marine
Activities Permits to persons and businesses desiring to establish water propulsion
vessel operations within Newport Harbor;
WHEREAS, during the time the temporary prohibition was in place, City staff, a
Harbor Commission ad hoc committee, and the Harbor Commission held numerous
public meetings where they solicited testimony, experiences, and feedback regarding
the compatibility of water propulsion vessel operations with other uses in Newport
Harbor;
WHEREAS, the Harbor Commission concluded that the public's concerns were
predominantly related to noise and safety, and that because some of the operators are
inexperienced, there is a potential for accidents and injury. In addition, because the
goal is to fly high and fast, both commercial and private operation could regularly violate
speed restrictions without proper regulations in place; and
WHEREAS, the City desires to regulate the operation of vessels propelled by
water above the surface of Newport Harbor by private recreational users and
businesses to ensure the health, safety and welfare of the public and the compatibility of
uses within Newport Harbor.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council hereby amends Newport Beach Municipal Code
Section 17.20.060 to read as follows:
17.20.060 Air and Water Propulsion Vessels Prohibited.
A. No person shall operate any vessel on the waters of
Newport Harbor if the vessel is powered or maneuvered by means
of mechanical air or water propulsion above the surface of the
water.
2
16 -11
B. The provisions of this section do not apply to the
operation of any vessel by any public agency, any person
responding to an emergency on behalf of any public agency, or any
person under contract with the City to operate a vessel that is
powered or maneuvered by means of mechanical air or water
propulsion above Newport Harbor's water surface. The City
Council by resolution may adopt rules and procedures for entering
into contracts with operators.
Section 2: The recitals provided above are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 3: 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 (1) or more sections, subsections, sentences, clauses or phrases be declared
unconstitutional.
Section 4: 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 5: 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 day of , 2015, and adopted at a regular
meeting of the City Council of Newport Beach, held on the _ day of , 2015,
by the following vote, to wit:
AYES, COUNCILMEMBERS
3
1s -12
NOES. COUNCILMEMBERS
ABSENT COUNCILMEMBERS
EDWARD D. SELICH, MAYOR
APPROVED AS TO FORM:
THWCITRNEY'S OFFICE
C\c-pf
AARON ARP, CITY ATTORNEY
ATTEST:
LEILANI I. BROWN, CITY CLERK
C!
16 -13
Miller, Chris
From:
Randy Curry <rcurry@currylawyers.com>
Sent:
Thursday, April 02, 2015 8:44 PM
To:
Kiff, Dave
Cc:
Miller, Chris
Subject:
Re: Water Propelled Vessels Study Session
Mr. Kiff:
I did not hear back from you. Further, I have not been told, and I am not aware, of any reasons members of the
City Council may wish to ignore public safety and noise concerns in order to allow continued Jetpack
operations in Newport Bay. Certainly it is not due to possible revenue to the city. The tax revenue from the
existing operation is minuscule. If our city leaders properly weigh the potential risks of injury and death, along
with continuous citizen complaints, against any value of such Jetpack operations, such operations will not be
allowed. Many, including me, would say that this is a "no brainer." Please advise of the status of this matter.
Thanks,
Randy
Sent from my iPhone
On Mar 5, 2015, at 3:32 PM, Randy Curry <rcurryry�a,cunylawyers.com> wrote:
Dear Mr. Kiff
Thank you for your email. Chris Miller is welcome to send copies of my emails to anyone he
deems appropriate, as are members of the Newport Beach City Council. I understand all of these
emails, and any responses, to be public record.
You have personal knowledge of numerous resident complaints regarding the present Jetpack
operation, and have made attempts to respond and deal with those complaints, as far back as the
beginning of 2013. The issues I have raised clearly do not surprise you.
While we have several new members on the Newport Beach City Council, these issues are also
not a surprise to Mr. Curry, who has also received communications of resident complaints about
the current Jetpack operation as far back as early 2013.
I watched the video of the complete study session, and I do understand it was a study
session. Mr. Duffield recused himself. However, Mr. Curry and other City Council members
did voice support for allowing continuation of such a Jetpack operation in Newport Harbor. Mr.
Curry specifically asked the Committee to come back with a proposal which would allow him
and others to vote "yes," in favor of a continued commercial Jetpack operation. He did so
immediately after hearing the presentation, by the Committee that the City Council established
to advise it on the issue, that concluded any such operation should be banned. No reasons for
support, which directly conflicted with the Committee's recommendation, were even brought up
or addressed by Mr. Curry or other members of the City Council who voiced agreement with Mr.
Curry.
16 -14
It seems to me the Committee's hard work and independent recommendation was totally
disregarded. Though public continent was allowed, and though I had sent an email asking that it
be considered, my email was not mentioned. Therefore, I can only assume that it was ignored.
While I appreciate your comments, and appreciate that you will be printing my email comments
for the record at future meetings where this matter is on the agenda, I expect that the elected City
Council members will appropriately respond to the issues, questions, and inquiries raised in my
emails, which I sent to each of their email addresses posted on the Newport Beach website. If
they wish to tell me that my emails were or were not ignored, or wish to comment upon my
emails in any appropriate manner, or if they wish to respond as I have requested, I welcome
hearing from them. As an alternative, I have suggested that they consider responding in the
commentary section of the Daily Pilot.
If they wish to ignore my emails or not fully respond, that is certainly their prerogative, but as a
resident and constituent, I can certainly comment upon their failure or refusal to do so.
Sincerely,
Randy Curry
Sent from my iPhone
On Mar 5, 2015, at 2:08 PM, Kiff, Dave <DKiff( newportbeachca.gov> wrote:
Dear Mr. Curry—
Chris forwarded me your e-mail. Please note that the Council's informal direction on 2-
24 was indeed informal direction, held at a Study Session. Several Council members
expressed their views at the time as to what they would like to see in a code change and
process for evaluating what operator(s) might be able to operate in the Harbor or
wherever, but no formal action was taken.
I know that each Council member reads their e-mails and takes writers' thoughts into
consideration when voting. And while people may end up disagreeing with the
conclusion you arrive at, it does not mean at all that your comments were disregarded
or ignored.
I will make sure that your comments are printed for the record when any proposed
change comes back to the City Council for formal action — likely to be on March 24,
2015.
Thank you for taking the time to write and to express your thoughts.
Sincerely,
Dave Kiff
City Manager
From: Randy Curry <rcurry9curMylawyers.com>
Date: March 4, 2015 at 20:04:44 PST
16 -15
To: "DDixon ,NewportBeachCa.gov"
<DDixon(iWewportBeachCa.gov >,
"TPetros(a),NewportBeachCa. gov"
<TPetroskNewportBeachCa. gov >,
"DDuffield(LNewportB eachCa. goy"
<DDuffield(t�,NewportBeachCa.goy >,
"EdSelich(&roadrunner.com" <EdSelich(dDroadrunner.com >,
"SPeotter(i,NewportBeachCa. eov"
< SPeotter(&,,NewportBeachCa.eov >, "currvk(a,pfm.com"
<curryk@pfm.com>
Cc: Chris Miller <CMiller(d).newnortbeachca.eov>
Subject: Re: Water Propelled Vessels Study Session
Dear Council:
Not hearing back from any of you, I can only assume that my
comments were ignored and disregarded by each of you. This is
not surprising, as it is apparent that the City Council members
making comments at the recent study session wholly disregarded
the presentation, report, and recommendation of the committee it
established to conduct a months long study of the viability of
continued commercial Jetpack operations in Newport Harbor.
While the committee and I were apparently ignored and
disregarded, I received an email from a resident in support of
continued Jetpack operations, stating that she received an email
from the City Council thanking her for an email she sent
supporting the City Council's comments regarding this
matter. Please let me know whether you sent such an email,
whether such an email was sent on your behalf, and, if so, what
was contained in the email. I understand that emails to and from
the City Council, including my emails to you, are public record.
Further, I received another email stating that Dean O'Malley was at
City Hall immediately prior to the City Council study session to
privately meet with City Council members for the purpose of
lobbying support for his Jetpack operation. Many of you were
elected based on promises of transparency in our local
government. I would appreciate your responding, advising
whether or not you met with Dean as indicated, and whether you
believe such conduct, if true, should take place.
Finally, I would like to understand why the City Council
apparently wishes to find a way to allow continued Jetpack
operations. Mr. Curry stated that this was his wish. Others of you
agreed. Why?
What determinations have you made regarding safety, or lack
thereof, and what is the basis for those determinations?
How is the Committee's report wrong, and what is the basis for
16 -16
your positions regarding each of the determinations made by the
Committee in its presentation and report?
What is the risk of claims and lawsuits against Newport Beach for
sanctioning continued operations? In the event of death, injury, or
property damage resulting from such commercial operations, do
you think that no claim or legal action is viable? If so, what is the
basis for this determination? Can insurance protect against all
potential claims? Do governmental tort immunities protect the
City of Newport Beach? What is the basis of your determinations
in this regard?
I would appreciate your individual responses to me. Alternatively,
I request that each of you immediately address and respond to all
of these issues and questions in the Commentary section of the
Daily Pilot.
Thank you,
Randy Curry
325 Via Lido Nord
Newport Beach, Calif. 92663
949 - 258 -4381
Law Offices of Randy D. Curt'
2901 W. Coast Hwy., Suite 200
Newport Beach, Calif. 92663
949 - 258 -4381
Sent from my iPhone
On Feb 24, 2015, at 8:45 PM, Randy Curry
<rcurry(a)currylawyers.com> wrote:
Dear Council:
I hope my comments were raised at the study
session earlier today. I would appreciate being
apprised of further study sessions,
recommendations, or hearings related to this matter.
16 -17
Thank you,
Randy Curry
Sent from my iPhone
On Feb 17, 2015, at 5:36 PM, Randy
Curry <rcurU currylawyers.com>
wrote:
Dear Council:
I am a resident of Lido Isle and am
an attorney in Newport Beach. I am
contacting you regarding concerns
with the Jetpack America operation
and future permits for similar
inherently dangerous operations. I
have been communicating with Chris
Miller, the Newport Beach Harbor
Manager, and I am aware of the
upcoming study session scheduled
for 2/24/15. Though I will not be
able to attend, I would appreciate it if
my concerns set forth herein are
taken into consideration.
I have first hand knowledge that the
Jetpack America operation has been
a hazard to boaters and allows
dangerous maneuvers by Jetpack
America participants and staff. I
have seen it for myself, and when
contacting the Harbor Patrol to
report unsafe conduct, was advised
to contact the City.
I have first hand knowledge of
Jetpack America's past illegal use of
public beaches to pick up and drop
off passengers and to post signs to
advertise its business.
I propose that the City of Newport
Beach not permit commercial
Jetpack operations. I further propose
16 -18
that private operators not be allowed
in Newport Bay. They are
unreasonably and inherently
dangerous to the both the operators
and to other boaters.
The Orange County Register, on
6/25/14, reported the $100,000
settlement of a lawsuit against
Jetpack America by a customer hurt
in Newport Bay. The City of
Newport Beach was not a party to
that lawsuit. As a plaintiffs
attorney, I can assure you that the
City risks governmental tort claims
and litigation by condoning and
permitting continued operations of
this kind.
I recently asked Chris Miller if the
City had reviewed and considered
obtaining a legal opinion regarding
the liability waiver utilized by
Jetpack America. I understand that a
copy of the liability waiver has not
been obtained or considered. Is it
binding? Does it protect the City
from wrongful death claims,
personal injury claims, or property
damage claims should claims be
made against the City for allowing
and issuing a business permit to a
commercial business conducting an
inherently dangerous operation in
Newport Bay? Can the City rely on
governmental tort immunities for
protection against such claims and
lawsuits?
Bay front residents have voiced
numerous complaints regarding the
noise pollution created by the
Jetpack operation. At a City meeting
I attended, a solution proposed was
to constantly move the operation
around the Newport Bay, thus
bothering everybody at times, but
nobody all of the time. I think such a
"solution" will lead to constant
19
16 -19
irritation and complaints to the
City. Nobody wants the operation in
front of his or her house.
I do not know if consideration has
been given to the effect such
operations have on bird and sea
life. I would imagine that such
effects should be considered by the
Council if there is any thought of
allowing such operations in the
future.
Thank you for your consideration.
Randy Curry
Law Offices of Randy D. Curry
2901 W. Coast Hwy., Suite 200
Newport Beach, Calif. 92663
949 - 258 -4381
Sent from my iPhone
16 -20
Miller, Chris
From: Randy Curry <rcurry@currylawyers.com>
Sent: Saturday, April 04, 2015 7:20 AM
To: Dixon, Diane; Petros, Tony; Duffield, Duffy; Selich, Edward; Peotter, Scott; Curry, Keith
Cc: Miller, Chris; Kiff, Dave
Subject: Re: Water Propelled Vessels Study Session
Dear Council:
I have received no response to my 3/5/15 email set forth below. Without input from you, the public
can only speculate as to what fiscal value, if any, the City of Newport Beach might receive by
condoning and licensing an inherently dangerous Jetpack operation. Do any of you know? Has any
study been done? The current operator has admitted, in newspaper accounts reported by the Daily
Pilot and Orange County Register, that his business is inherently dangerous. This fact is further
evidenced by release agreements Jetpack customers are required to sign. What potential fiscal value
will result from sanctioning a continued Jetpack operation? How do you balance this potential
income against the risks of injury, death, and resulting liability to the City of Newport Beach? And, as
to potential liability, can the City Attorney conclude that there is no liability risk to the City of Newport
Beach, in the event you license an inherently dangerous business, in disregard of the Committee
Report from a Committee established by the City Council, which concluded that such a business is too
dangerous for Newport Bay?
I am copying Mr. Kiff in order to request that this email be published and made part of the public
record record in this matter.
Your consideration of these issues at any future hearings would be appreciated.
Randy Curry
Sent from my iPhone
> On Mar 5, 2015, at 1:12 PM, Randy Curry <rcurry@currylawyers.com> wrote:
> Dear Council:
> My prior comments did not address potential income to Newport Beach which could be generated
by a continued commercial Jetpack operation.
> Because most of you call yourselves fiscal conservatives, I trust you intend to permit revenue
generating businesses where the potential fiscal revenue which might be generated is not trumped by
the risks and potential negative effects to the city and its residents.
16 -21
> If statements regarding the current Jetpack operation are true, that operation provides an average
of 8 -12 rides on a good summer operational day and an average of 1 -4 rides during operational days
in the winter months. Each ride apparently averages approximately $150. Based on an estimate of
260 operational days per year, estimated annual gross revenue is $195,000. Please correct me if you
understand differently, providing the basis for the numbers you understand to be correct.
> The City of Newport Beach should receive a modest annual business license tax payment.
Additionally, the city should receive sales tax revenue on an estimated $195,000 in gross sales.
Without taking into consideration any administrative fees and costs, and assuming the city receives
the entire 8% of $195,000 in gross sales, the estimated sales tax revenue resulting from continued
operation of a single Jetpack operator in Newport Beach totals only an estimated amount of $15,600.
> Some of you might speculate that Jetpack customers will spend money at other businesses in
Newport Beach. I am aware of no study to support such speculation, or to determine any amount
typically spent which would not have been spent but for a customer's Jetpack ride. One would have
to speculate to say that other Newport Beach businesses would lose a dime because of banning
current Jetpack operations or by limiting such operations to ocean areas outside of Newport Bay. If
you are aware of studies to the contrary, please let me know and provide copies of such studies.
> You all have duties and obligations to your constituents. In making a fiscally conservative decision
about condoning and permitting continued commercial Jetpack operations in Newport Bay, please
provide the following information. What are your assessments of the potential income to be
generated versus the potential risk of death, injury, and property damage, in addition to the noise
pollution and disruption to the quiet enjoyment expected by your constituents in Newport Beach? I
look forward to receipt of your responses. Alternatively, as I previously suggested, please
immediately provide your assessments and responses to these questions and inquiries in the
commentary section of the Daily Pilot.
> Thank you,
> Randy Curry
> Sent from my iPhone
>> On Mar 4, 2015, at 8:04 PM, Randy Curry <rcurry @currylawyers.com> wrote:
>> Dear Council:
>> Not hearing back from any of you, I can only assume that my comments were ignored and
disregarded by each of you. This is not surprising, as it is apparent that the City Council members
making comments at the recent study session wholly disregarded the presentation, report, and
2
16 -22
recommendation of the committee it established to conduct a months long study of the viability of
continued commercial Jetpack operations in Newport Harbor.
>> While the committee and I were apparently ignored and disregarded, I received an email from a
resident in support of continued Jetpack operations, stating that she received an email from the City
Council thanking her for an email she sent supporting the City Council's comments regarding this
matter. Please let me know whether you sent such an email, whether such an email was sent on your
behalf, and, if so, what was contained in the email. I understand that emails to and from the City
Council, including my emails to you, are public record.
>> Further, I received another email stating that Dean O'Malley was at City Hall immediately prior to
the City Council study session to privately meet with City Council members for the purpose of
lobbying support for his Jetpack operation. Many of you were elected based on promises of
transparency in our local government. I would appreciate your responding, advising whether or not
you met with Dean as indicated, and whether you believe such conduct, if true, should take place.
>> Finally, I would like to understand why the City Council apparently wishes to find a way to allow
continued Jetpack operations. Mr. Curry stated that this was his wish. Others of you agreed. Why?
>> What determinations have you made regarding safety, or lack thereof, and what is the basis for
those determinations?
>> How is the Committee's report wrong, and what is the basis for your positions regarding each of
the determinations made by the Committee in its presentation and report?
>> What is the risk of claims and lawsuits against Newport Beach for sanctioning continued
operations? In the event of death, injury, or property damage resulting from such commercial
operations, do you think that no claim or legal action is viable? If so, what is the basis for this
determination? Can insurance protect against all potential claims? Do governmental tort immunities
protect the City of Newport Beach? What is the basis of your determinations in this regard?
>> I would appreciate your individual responses to me. Alternatively, I request that each of you
immediately address and respond to all of these issues and questions in the Commentary section of
the Daily Pilot.
>> Thank you,
>> Randy Curry
>> 325 Via Lido Nord
>> Newport Beach, Calif. 92663
>> 949 - 258 -4381
>> Law Offices of Randy D. Curry
16 -23
>> 2901 W. Coast Hwy., Suite 200
>> Newport Beach, Calif. 92663
>> 949 - 258 -4381
>> Sent from my iPhone
>>> On Feb 24, 2015, at 8:45 PM, Randy Curry <rcurry @currylawyers.com> wrote:
>>> Dear Council:
>>> I hope my comments were raised at the study session earlier today. I would appreciate being
apprised of further study sessions, recommendations, or hearings related to this matter.
>>> Thank you,
>>> Randy Curry
>>> Sent from my iPhone
»» On Feb 17, 2015, at 5:36 PM, Randy Curry <rcurry @currylawyers.com> wrote:
»» Dear Council:
»» I am a resident of Lido Isle and am an attorney in Newport Beach. I am contacting you regarding
concerns with the Jetpack America operation and future permits for similar inherently dangerous
operations. I have been communicating with Chris Miller, the Newport Beach Harbor Manager, and I
am aware of the upcoming study session scheduled for 2/24/15. Though I will not be able to attend, I
would appreciate it if my concerns set forth herein are taken into consideration.
»» I have first hand knowledge that the Jetpack America operation has been a hazard to boaters
and allows dangerous maneuvers by Jetpack America participants and staff. I have seen it for myself,
and when contacting the Harbor Patrol to report unsafe conduct, was advised to contact the City.
»» I have first hand knowledge of Jetpack America's past illegal use of public beaches to pick up and
drop off passengers and to post signs to advertise its business.
»» I propose that the City of Newport Beach not permit commercial Jetpack operations. I further
propose that private operators not be allowed in Newport Bay. They are unreasonably and inherently
dangerous to the both the operators and to other boaters.
e1
16 -24
013M
»» The Orange County Register, on 6/25/14, reported the $100,000 settlement of a lawsuit against
Jetpack America by a customer hurt in Newport Bay. The City of Newport Beach was not a party to
that lawsuit. As a plaintiff's attorney, I can assure you that the City risks governmental tort claims and
litigation by condoning and permitting continued operations of this kind.
»» I recently asked Chris Miller if the City had reviewed and considered obtaining a legal opinion
regarding the liability waiver utilized by Jetpack America. I understand that a copy of the liability
waiver has not been obtained or considered. Is it binding? Does it protect the City from wrongful
death claims, personal injury claims, or property damage claims should claims be made against the
City for allowing and issuing a business permit to a commercial business conducting an inherently
dangerous operation in Newport Bay? Can the City rely on governmental tort immunities for
protection against such claims and lawsuits?
»» Bay front residents have voiced numerous complaints regarding the noise pollution created by
the Jetpack operation. At a City meeting I attended, a solution proposed was to constantly move the
operation around the Newport Bay, thus bothering everybody at times, but nobody all of the time. I
think such a "solution" will lead to constant irritation and complaints to the City. Nobody wants the
operation in front of his or her house.
»» I do not know if consideration has been given to the effect such operations have on bird and sea
life. I would imagine that such effects should be considered by the Council if there is any thought of
allowing such operations in the future.
»» Thank you for your consideration.
»» Randy Curry
»» Law Offices of Randy D. Curry
»» 2901 W. Coast Hwy., Suite 200
»» Newport Beach, Calif. 92663
»» 949 - 258 -4381
»» Sent from my Whone
F7
16 -25
Miller, Chris
From: Don & Judy Cole <lagunahouse @me.com>
Sent: Monday, April 06, 2015 5:55 PM
To: Kiff, Dave
Cc: Miller, Chris
Subject: Water propelled vessels above the surface of the water
Mr. Kiff,
We are extremely disappointed that the City Council dismissed Bill Kinney's presentation and the Harbor
Commission's recommendation to the Council regarding water propelled vessels in our harbor. It appeared to us
in the meeting that the Council had already made up their minds and hopped on the bandwagon to "get to yes"
without thoroughly understanding or vetting the issues first, much to the detriment of other users of the harbor.
We would like to reiterate some of the biggest concerns and questions that we feel were not adequately
addressed by the Council, and hope that you and your team will mitigate the following as you craft the draft
ordinance to regulate the activity. Perhaps you will even determine upon closer analysis that the Harbor
Commission was correct in their analysis and recommendation.
1. The Municipal Code prohibits vessels powered or maneuvered by air above the surface of the water in the
harbor. What is the justification for allowing water propulsion vessels above the surface of the water in the
harbor?
2. The Jet Pack business does not fit the "Purpose" as defined in Title 17 of the Municipal Code nor does it
support the goals, objectives and policies of the Harbor and Bay Element of the General Plan. Section 17.10.050
of the Municipal Code sets the guidelines for the issuance of permits in the Harbor. It states that the Harbor
Resources Manager may issue the marine 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 following activities that would not be approved under the current code guidelines need
to be mitigated:
"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;"
Any place that any water propelled vessel operates in the Harbor will be a noise nuisance. The Jet Pack stays in
one place for the duration of a customer's time unlike the party boats or other loud vessels that cruise
throughout the 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;"
The Coast Guard made the following observation and recommendation: The Jet Pack "flyer" is not
independently operating the jet pack unit. For safety reasons, the "monitoring vessel' operates the kill switch
and controls the speed. In addition, the monitoring vessels also communicate with the "flyer" as to other
directions. In other words, the person on the "monitoring vessel" is the captain in control of the Jet Pack vessel
and should require a "six- pack" licensed captain.
16 -26
"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;"
Whether or not Jet Pack has been cited by the Harbor Patrol or not, their customers and operators regularly
exceed the speed limit and create wakes. This impacts not only boats, docks and piers, but other users in the
harbor. It is discriminatory and unsafe to allow Jet Pack to operate outside the speed limit and to violate the no
wake zones when all other users are held to the law. Further, how does it happen that Jet Pack customers end up
2' away from a child kayaker, in the middle of the summer beer can races, or in the middle of channel traffic
(just to name a few examples) when there are two monitoring jet skis and a staging vessel with kill switches and
microphones? The issue is not just about the control they have over their customer, it is that they don't have
control over other boats and users in the harbor. S * ** happens and is more likely to happen in Newport Beach
with it's narrower channel configuration around the adjacent residential and commercial areas and mooring
fields, as opposed to the much larger open waters in Mission Bay.
The Jet Pack group does not operate in 50' of space as testified to. The staging vessel hovers nearby and the
chase vessels follow the customer as he or she generally veers in all directions. They are generally spread out
over 100' or more. This impacts the flow of traffic in the channels, which is a completely different situation than
in the open waters where they operate in Mission Bay. Other users in the harbor should have the right to
navigate the channels in the harbor without having to deal with vessels in the channel that are not operating in
the manner in which the channels are designated to be used.
3. It is too bad that the water propelled business couldn't be limited to the Dunes where there is no residential
area and minimal vessel traffic. But other than that, there is no appropriate location in the harbor for one
operator let alone multiple operators that will not negatively impact residents or other users of the harbor.
Navigation channels, turning basins, vessel berthing, anchorage and mooring areas all have specific
designations- most of which are designated pursuant to law and approved by the Federal Government. Channels
in Newport Harbor are designated for vessel navigation- going from point A to point B- not for hanging out and
impeding traffic. Anchorages are designated for the temporary anchorage of vessels using their own anchoring
tackle, not for a noisy commercial activity that creates wakes. Turning basins are areas- connected to a channel-
which are large enough to allow vessels to maneuver, turn around or permit their course or direction to be
altered therein- not to be blocked.
We have been boat owners and operators in the harbor since college in the 70's and have owned property on the
waterfront since 1997. While the harbor has seen changes, and while there is much more recreational traffic on
the water today, the great character of the harbor has remained the same. Newport Beach isn't Las Vegas,
Miami or Waikiki, and hopefully never will be. The water propelled vessels above the surface of the water are
not compatible with the other vessels and users in our harbor. That being said, if they have to be here, then we
hope that there will be appropriate regulations and safeguards to control the type and quantity of these
businesses and personal watercraft so they do not adversely affect the health, safety or welfare of those who use,
enjoy, or own property near Newport Harbor. Otherwise the character of our harbor will be changed forever.
And if the water propelled vessel companies feel they can't operate within the restrictions and boundaries that
are necessary, then they should move to a more suitable location.
Sincerely,
Don & Judy Cole
16 -27