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HomeMy WebLinkAbout04 - Water-Propelled Vessels in Newport Harbor - Code Modification to Restrict and Regulate OperationsCTY OF F NEWPORT BEACH City Council Staff Report May 26, 2015 Agenda Item No. 4 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director- (949) 644 -3330, dawebb @newportbeachca.gov PREPARED BY: Chris Miller, Harbor Manager PHONE: (949) 644 -3043 TITLE: Water - Propelled Vessels in Newport Harbor — Code Modification to Restrict and Regulate Operations ABSTRACT: At the direction of the City Council on May 12, 2015, staff is returning with the `one commercial operator" concept for water propelled vessels thereby prohibiting all private operations, but allowing one commercial operator in Newport Harbor selected through a competitive process. Additionally, staff is seeking to update the City Council on a related item to establish a temporary anchorage area in the Turning Basin. RECOMMENDATION: a) Introduce and conduct a first reading of Ordinance No. 2015 -13, An Ordinance of the City Council of the City of Newport Beach Regulating and Limiting the Operation of Vessels Propelled by Water Above the Surface of Newport Harbor, and pass to second reading on June 9, 2015; b) Adopt Resolution No. 2015 -_, A Resolution of the City Council of the City of Newport Beach Adopting City Council Policy H -6 Relating to Water Propelled Vessels; and c) Provide feedback, if any, to staff regarding the establishment of a temporary anchorage area in the Turning Basin. FUNDING REQUIREMENTS: There are no funding requirements associated with this item DISCUSSION: At the May 12, 2015 City Council meeting, the City Council directed staff to return with the necessary Municipal Code changes that would prohibit operation of all vessels propelled by water above the surface of Newport Harbor, with the exception of allowing for the permitting and operation of only one commercial - water propelled vessel operator. Selection of this one commercial operator would be determined by City Council Policy through a competitive RFP process and then approved by the Harbor Resources Manager. 4 -1 The attached Ordinance (Attachment A) prohibits all water propelled vessels unless authorized under a permit by the Harbor Resources Manager or his /her designee. The attached Resolution (Attachment C) adopts Council Policy to provide additional guidance to the Harbor Resources Manager for issuing a permit to a commercial operator through a competitive process. There is currently only one active Marine Activity Permit ( "MAP ") for this type of operation in Newport Harbor. This MAP was issued to Jetpack America and expired on May 21, 2015. At the direction of the City Manager, the Harbor Resources Manager issued a temporary extension to Jetpack America's 2014 MAP for up to six months, or until a new commercial operator is selected through an RFP process. This extended MAP specifically limits Jetpack's operations to the Turning Basin. On a related note as it pertains to the Turning Basin area, the Harbor Commission is currently considering the concept of establishing a trial, temporary anchorage in that part of the harbor (likely to be the months of July and August this year). The Commission feels that a second anchorage on the west side of Lido Isle will augment the primary, established anchorage on the east side of Lido Isle. The Commission is considering installing a two month, temporary anchorage that can easily be adjusted as conditions and opinions dictate during the busier summer months this year. After the trial period, the Commission will evaluate the program, then make recommendations for a permanent anchorage via the City Council and other regulatory agencies as required. Please see Attachment F which details some configuration options the Harbor Commission is currently considering. Staff believes that the additional use in the Turning Basin via this new anchorage will have some impact — but not extraordinary — on the water propelled operations. Water propelled operations are far more mobile, and can navigate away from any anchored boats. But it does add a small complicating factor to this already complicated issue. Nothing in the Harbor Commission's proposal makes us change our mind about the Turning Basin being a good site for the water propelled operations. ENVIRONMENTAL REVIEW: Staff recommends the City Council find the approval of this ordinance and Council Policy exempt from the California Environmental Quality Act ( "CEQX) 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. 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 No. 2015 -13 Regulating and Limiting Water Propelled Vessels Attachment B - Redline NBMC Section 17.20.060 Attachment C - Resolution No. 2015- Amending Council Policy Attachment D - Alternate Boundary Configurations in the Turning Basin Attachment E - Public Comments Submitted to the Record Attachment F - Harbor Commission Proposed Temporary Anchorage Options 4 -2 ATTACHMENT A ORDINANCE NO. 2015 - 13 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA REGULATING AND LIMITING 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 small craft 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; 4 -3 WHEREAS, there is a distinct lack of available space to accommodate 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 potential for accident and injury; WHEREAS, commercial operators have more experience in the operation of vessels propelled by water above the surface of Newport Harbor and are regulated by City permits, which tends to increase the safe operation of the vessels over operation by private recreational users; WHEREAS, the City intends that the health, safety and welfare of those who use, enjoy and own property near Newport Harbor are not adversely affected by activities conducted on those waters; and WHEREAS, the City desires to prohibit the operation of vessels propelled by water above the surface of Newport Harbor by private recreational users 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: 2 MF 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. 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 authorized under a permit issued by the Harbor Resources Manager, or his or her designee, to operate a vessel that is powered or maneuvered by means of mechanical water propulsion above Newport Harbor's water surface. 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. 3 4 -5 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 26 day of May, 2015, and adopted at a regular meeting of the City Council of Newport Beach, held on the 9 day of June, 2015, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS EDWARD D. SELICH, MAYOR APPROVED AS TO FORM: THE CITY4kTfCYRNEY'S OFFICE AARON C. H P, CITY ATTORNEY ATTEST: LEILANI I. BROWN, CITY CLERK 4 M ATTACHMENT B Redline Draft of NBMC Section 17.20.060 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. 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 authorized under a permit issued by the Harbor Resources Manager, or his or her designee, to operate a vessel that is powered or maneuvered by means of mechanical water propulsion above Newport Harbor's water surface. 4 -7 ATTACHMENT C 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 to issue a permit to a commercial 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, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. ou 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 -13, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 26 day of May, 2015. Edward D. Selich, Mayor ATTEST: Leilani I. Brown, City Clerk Attachment: Exhibit 1 - City Council Policy H -6 LE] WATER- PROPELLED VESSELS IN NEWPORT HARBOR PURPOSE M 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 authorized under a permit issued by the Harbor Resources Manager, or his or her designee. The intent of this policy is to provide additional guidance to the Harbor Resources Manager, or his or her designee, for the issuance of a permit to a commercial operator for the use of these unique vessels in Newport Harbor. POLICY A. The Harbor Resources Manager, or his or her designee, may issue up to one (1) permit for a commercial operator to operate a vessel(s) powered or maneuvered by means of mechanical water propulsion above the surface of the water in Newport Harbor. This policy does not require the Harbor Resources Manager, or his or her designee, to issue a permit. B. No permit shall be issued to a non - commercial operator to operate a vessel powered or maneuvered by means of mechanical water propulsion above the surface of the water in Newport Harbor. C. The Harbor Resources Manager, or his or her designee, shall issue a Request for Proposals ( "RFP ") for the selection of a commercial operator under this policy. When reviewing RFP responses, the Harbor Resources Manager, or his or her designee, shall consider the operating history, safety record, compliance with MUO H -6 applicable laws, and financial stability of the commercial operator, in addition to any other factors the Harbor Resources Manager, or his or her designee, deems relevant. A new RFP shall be issued no less than once every five (5) years, or as otherwise directed by the Harbor Resources Manager, or his or her designee. Adopted — , 2015 4 -11 r , r G r� �(a a AN .€ 1 e ayN_` v ATTACHMENT D 'e. ;View Park It • ., 'rte �`' � `�„ � .4v Ab DRAFT Water Propelled Vessel Operation Area r — 1 — — 150 ft (14.4 acres) r— 1 — — 200 ft (10.8 acres) r 1 — — 300 ft (4.9 acres) — Turning Basin (28.5 acres) eevv�q,� City of Newport Beach GIS Division May 14, 2015 r_Aar_197:I► 121 ilk 1ra Miller, Chris From: Pamela Whitesides <ptlaw @sbcglobal.net> Sent: Friday, May 15, 2015 2:32 PM To: Dept - City Council Cc: Miller, Chris Subject: Jetpacks in the Turning Basin Honorable Mayor and City Council Members, Now that you have made the decision to allow a jetpack business to continue to use Newport Harbor, you have the difficult task of trying to craft appropriate regulations to make it safe and to minimize its disruption and impact on others in and around the harbor. The Council was unclear where it proposes to allow jetpacks to operate. There was some reference to locating them in the bay next to Lido Marina Village, however, one or two Council Members referred to bringing the jetpacks to the turning basin to give it a try. As you probably know, Jetpack America used the horseshoe - shaped area in front of the residences fronting the turning basin until the residents' complaints about noise, wakes and safety apparently caused it to move to its current location. In addition the bay next to the beach in that turning basin location is already over - crowded with other recreational users. I surmise that Jetpack America's former location was what prompted Councilwoman Diane Dixon to state the turning basin would be the worst possible location under consideration for jetpacks. Newspaper articles (the Daily Pilot, Times, and O.C. Register) reported the Council's decision as limiting jetpacks to the area between Lido Marina Village and Pacific Coast Highway. That is the only area in the turning basin that has not been tested as a potentially appropriate location for jetpacks. While I believe jetpacks will be unsafe, noisy and disruptive no matter where they operate, at least to my knowledge there are no residences that will be impacted in that area. That area is also away from where the majority of other harbor users are, including kayakers, SUPers, swimmers, summer camp children, sailboat racers, crew practices, boaters, etc. If bringing visitors to Newport Beach is why the Council is so determined that jetpacks remain, it is only fair and appropriate to give visitors the best opportunity to view and enjoy the jetpacks from the boardwalk in Lido Marina Village or from the restaurants across from the Village on PCH. If the Council is correct that many visitors come to Newport specifically to take rides or view jetpacks with a resulting increase in revenue for other local businesses, having jetpacks operating right in the middle of the visitor - serving venues in the Village and across the bay on PCH should be a welcome visitor attraction. Thank you for your efforts to keep the jetpacks away from residents and locate them more appropriately near those who stand to benefit from the additional revenue jetpacks bring to Newport. Sincerely, Pam Whitesides 1 4 -13 Proposed Anchorage 0 Malmo 34 lei 00' 7, '00 C� 1135 VI 70� A TV vs 0, WA ll;M I 4*4 r• � f f v y e ;r ,1 s At Brad's Proposal 1 • ^ -.'�, rye F' ,r ,�`_ j ! w _ A A. lam' AC Y x. WIv �.6 F C \ \� ♦.Iia 'St f . J 0 1 ff f Brads Proposal (9.32 acres) f•+ ® Current Anchorage Footprint (5.25 acres) I f r � Ffr yam- � •• � '� xw to 0 135 270; Bill s Proposal , .� ♦� r ♦w + M %! • • I h, w rTgr., 1 Bills Proposal i ;. �, �;.p• m• ® Current Anchorage Footprint f ' � Ffr yam- '• � 0 I 135 2;" Chris's Proposal ' k Its { n C r r , , , — — Chris's Proposal r 4�;.p• m• ®Current Anchorage Footprint 2�� •A . _ `_ -