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HomeMy WebLinkAboutSS5 - Harbor Speed Limit�EWP�RT CITY OF O Yom', n S NEWPORT BEACH FoaN'P City Council Staff Report Agenda Item No. SS ---5-- September 13, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum, Public Works Director 949 - 644 -3311, sbadum .newportbeachca.gov PREPARED BY: Chris Miller, Harbor Resources Manager APPROVED: TITLE: Harbor Speed Limit - Proposed Changes ABSTRACT: The City's adopted vessel speed limits do not allow for sailboats or human powered vessels to exceed the speed limit of five nautical miles per hour for regattas or races. The proposed draft ordinance allows for an increase in the speed limit via a permit issued by Harbor Resources. RECOMMENDATION: Receive and file. Provide input to staff. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: The Harbor Commission's Harbor Code Enforcement Subcommittee has been reviewing the speed limit with respect to sailboats and human powered vessels so that sanctioned races or regattas may exceed the speed limit under certain parameters as dictated through the Code. The proposed draft changes represent the efforts of the subcommittee with input and guidance from the Office of the City Attorney and Risk Management. Harbor Speed Limit - Proposed Changes Page 2 Highlights of the proposed changes are: 1. 17.01.030 R: Vessel definition updated to include "Human Powered Vessel' and "Wind Powered Vessel." 2. 17.20.020 A: Speed limit changed from "knots per hour" to "miles per hour' to be consistent with existing County and State Code. 3. 17.20.070 Vessel Races: A. The Harbor Resources Manager may issue a permit to allow human powered vessels with accompanying motorized support vessel, or wind powered vessels to exceed the speed limit. Permits may be valid for one year maximum and may cover individual races or a series of races, e.g., "Beer Can" races every Thursday night during the summer. B. A permit application shall be developed, possibly via the internet, to simplify the process for the applicants and Harbor Resources staff. C. Conditions shall be incorporated into the permit. D. Applicant shall provide "Regatta Insurance" for no less than $1,000,000, and shall indemnify the City. E. The permit may be revoked at any time under certain circumstances. F. Decisions of the Harbor Resources Manager may be appealed pursuant to Chapter 17.65. Staff is seeking input from Council before the issue is considered at a regular Council meeting in the near future. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Harbor Speed Limit - Proposed Changes Page 3 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.) Submitted by: 3aum Director A. Proposed Draft Ordinance Revisions ORDINANCE NO. 2011- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 17.01.030(R) AND 17.20.020(A) AND ADDING SECTION 17.20.070 TO CHAPTER 17.20 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO VESSEL SPEED LIMITS WHEREAS, the City of Newport Beach ( "City ") is a premier destination that provides for a diversity of recreational uses including a visitor friendly harbor, recreational boating, fishing, water sports, and ecological enrichment; and WHEREAS, the City has a very active boating community.that enjoys a long history of nautical racing and competition that includes sailboat racing, human powered boat racing, and the associated training and practice activities that generally accompany such events; and WHEREAS, the City's adopted vessel speed limits do not allow for nautical races that exceed the posted speed limit of five (5) nautical miles per hour; and WHEREAS, the City desires to provide flexibility and consistency to vessel speed limits to be reflective of current practices and related governmental speed limits, while ensuring a balanced approach to other uses in Newport Harbor; and WHEREAS, the City filed a copy of this ordinance with the California Department of Boating and Waterways prior to its adoption and at least thirty (30) days prior to its effective date, as required by California Harbor and Navigations Code Section 660(a). NOW, THEREFORE, the City Council of the City of Newport Beach does hereby ordain, as follows: SECTION 1: Section 17.01.030 of Chapter 17.01 is hereby amended to read as follows: 17.01.030 Definition of Terms A. Definitions: A 1. Alteration Construction. The term "alteration construction" shall mean the construction work relating to twenty (20) percent to fifty (50) percent of the total replacement value of the dock, as well as other criteria as stated in subsequent sections of this title. Construction estimates and the total value of work on any given project is based on pre- determined values of various work on record and established by Page 1 of 26 the City of Newport Beach. Alteration construction requires City, State and Federal approvals. 2. Anchorage or Anchorage Area. The terms "anchorage" and "anchorage area" shall mean any portion of Newport Harbor outside of navigation channels which has been designated pursuant to law and approved by the Federal Government for the temporary anchorage of vessels, using the vessel's own anchoring tackle. 3. Applicant. The term "applicant" shall mean the owner of the business or vessel, an authorized representative of the owner or a person as defined further herein. 4. Assigned Vessel. The term "assigned vessel" shall mean a vessel lawfully registered, owned or documented to a permittee to occupy a designated mooring or berthing location in Newport Harbor. B. Definitions: B 1. Back Bay. See Upper Newport Bay. 2. Bareboat Charter. The term "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. 3. Beach. The term "beach" shall mean the expanse of sand, gravel, cobble or other unconsolidated material that extends landward from the low water line to the place where there is distinguishable change in physiographic form, or to the line of permanent vegetation. The seaward limit of a beach (unless specified otherwise) is the mean low water line. 4. Beam. The term "beam" shall mean the width of a vessel. Vessel beams are generally critical at two locations of the boat; i.e., at the water line where the boat directly interfaces the dock, as well as at the Page 2 of 26 walking deck; i.e., the widest point of the vessel. For the purpose of compliance with any measurement requirements, the beam shall be interpreted as the widest point of the vessel. 5. Berth. The term "berth" shall mean any location such as a floating dock, slip, side tie, mooring and the related area (berthing area or space) adjacent to or around it, allocated to tie up and /or store a boat. 6. Board. The term "board" shall mean the Board of Supervisors of the County of Orange as the governing body of the Harbor, Beaches and Parks Department. 7. Breakwater. The term "breakwater" shall mean a structure or barrier protecting a shore area, harbor, anchorage, or basin from waves, usually constructed as a concrete or riprap (rock wall) structure. 8. Building Director. The term "Building Director" shall mean the Building Director of the City of Newport Beach, or the Building Director's designee. 9. Bulkhead or Seawall. The term "bulkhead" or "seawall" shall mean the retaining wall that separates dry land areas and water areas. 10. Bulkhead Line. The term "bulkhead line" shall mean the harbor land /water perimeter lines established in Newport Harbor by the Federal Government which define the permitted limit of filling or solid structures that may be constructed in the Harbor. The establishment of bulkhead lines does not necessarily allow the property owner to build to the limits of the bulkhead line due to potential environmental considerations established by the State of California and /or the Federal Government. 11. Business or Business Activity. The terms "business" and "business activity" shall mean all activities engaged in for gain, benefit, advantage or livelihood to any person, directly or indirectly, including, but not limited to, any profession, trade, occupation, Page 3 of 26 C employment or calling engaged in trade, commerce, the exchange of goods, services, or property of any kind, transportation of persons as well as goods, communication, renting or leasing real or personal property or that provides any service. Definitions: C 1. Caulerpa. The term "Caulerpa" shall mean an invasive Mediterranean seaweed (Caulerpa taxifolia) introduced to southern California in 2000 that has a potential to cause severe ecological damage to coastal and nearshore waters. 2. Certified Charter. The term 'certified charter" shall mean any vessel inspected by the United States Coast Guard under Title 46 of the Code of Regulations and which has been chartered for consideration. 3. Channel. The term "channel' shall mean a water area in Newport Harbor designated for vessel navigation with necessary width and depth requirements, and which may be marked or otherwise designated on Federal navigation charts, as well as in other sources. 4. Chartered for Consideration. The term 'chartered for consideration" shall mean any 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. 5. City. The term "City" shall mean City of Newport Beach. 6. City Council. The term "City Council' shall mean the City Council of the City of Newport Beach. 7. City Manager. The term "City Manager" shall mean the City Manager of the City of Newport Beach or his or her respective designee. Page 4 of 26 8. City Tide and Submerged Land. The term "City tide and submerged land" shall mean that area within Newport Harbor granted to the City by the State of California. 9. Coastal Access. The term "coastal access" shall mean the ability of the public to reach, use or view the shoreline of coastal waters or inland coastal recreation areas and trails. 10. Coastal Commission. The term "Coastal Commission" shall mean the California Coastal Commission, the State agency established by ,State law responsible for carrying out the provisions of the Coastal Act and for review of coastal permits on appeal from local agencies. 11. Coastal- Dependent Development or Use. The terms "coastal- dependent development" or "coastal - dependent use" shall mean any development or use which requires a site on, or adjacent to, the sea to be able to function at all (from California Public Resources Code, Section 30101). 12. Commercial. The term "commercial' shall mean any business activity whether the business activity is nonprofit or for 'profit. Commercial activities shall include, but are not limited to, marinas, charter facilities, yacht clubs, yacht sales, rental facilities, boat yards, pier rentals and any other business activity. 13. Commercial Fishing Vessel. The term '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. 14. Current. The term "current' shall mean a flow of water in a particular direction. Such flows can be driven by wind, temperature or density differences, tidal forces, Page 5 of 26 and wave energy. Currents are often classified by location, such as longshore current, surface current or deep ocean currents. Different currents can occur in the same general area resulting in different water flows. For example, a rip current can flow perpendicular to the shore through the surf zone, a long shore current may flow southerly, parallel to the coast and seasonal deep water current may flow to the north. D. Definitions: D 1. Design Criteria. The term "design criteria" refers to "Waterfront Project Guidelines and Standards, Harbor Design Criteria — Commercial and Residential Facilities" adopted by the City of Newport Beach, and as amended from time to time, as minimum standards for design whenever harbor permits are required. The City of Newport Beach Building Department may require additional requirements, based on the specific details of a particular application and project. 2. Dinghy or Tender. The term "dinghy" or "tender' shall mean a vessel no longer than fourteen (14) feet in overall length. 3. Director. The term "Director" shall mean the Director of the Harbors, Beaches and Parks Department of the County of Orange. 4. Dock. The term "dock' shall mean a structure generally linked to the shoreline to which a vessel may be secured. A dock may be fixed to the shore or fixed on pilings, or may float in the water. 5. Dolphin. The term "dolphin" shall mean a multi -pile structure that is used for mooring large boats that generally cannot be accommodated by floating docks. 6. Dry (Boat) Storage. The terms "dry storage" or "dry boat storage" shall mean all on -land storage of vessels, including vessels normally stored in open or Page 6 of 26 enclosed rack structures, on trailers, on cradles, on boat stands, or by other means. E. Definitions: E 1. Eelgrass. The term "eelgrass" shall mean a marine flowering plant (Zostera marina) that is found primarily in coastal bays and estuaries on soft substrate. 2. Encroachment. The term "encroachment" shall mean the extension of a building, structure or other improvement, or part thereof, on the property or domain of another. 3. End Tie. The term "end tie" shall mean berths located on the outermost end of a floating dock structure where the dock is alongside only one side of the boat. The boats associated with an end tie may be situated beyond the pierhead line along the channel. 4. Erosion. The term "erosion" shall mean the wearing away of land by natural forces. On a beach, erosion is the carrying away of beach material by wave action, currents or wind. 5. Estuary. The term "estuary" shall mean the region near a creek or river mouth in which the fresh water of the river mixes with the salt water of the sea. F. Definitions: F 1. Fairway. The term "fairway" shall mean an area of water adjacent to slips that feeds into a channel, and which is used for direct access to slips. The fairway water area is defined as lying between the outer end of a line of fingers and the nearest obstruction on the opposing side (i.e., other slips, bulkhead, vessels on side ties, etc.). 2. Federal Channel. The term "Federal channel' shall mean that area of the Lower Newport Bay described by the Army Corps of Engineers, Chief of Engineer to Page 7 of 26 Congress on November 11, 1936 as recorded in the 1 st Session of the 75th Congress in 1937. 3. Finger. The term "finger" shall mean a portion of a floating dock section that is perpendicular to the walkways and is used for tying up and boarding vessels. 4. Fire Chief. The term "Fire Chief' shall mean the Fire Chief of the City of Newport Beach or his or her respective designee. 5. Freeboard. a. Dock System Freeboard. For the purposes of dock systems, the term "freeboard" shall mean the distance between the water surface and the walking surface of the dock system. Generally, two conditions are of interest when referring to freeboard: (i) dead load only freeboard, and (ii) dead plus live load freeboard. Dead load refers to the weight of all construction materials and equipment that may be permanently attached to the docks. Live load refers to the weight of all temporary loads such as pedestrians and berthing loads. b. Vessel Freeboard. For the purposes of vessels, the term "freeboard" shall mean the vertical distance between the water line and the top of the deck. 6. Functional Capacity. In terms of wetlands and estuaries, the term "functional capacity" shall mean the ability of the wetland or estuary to be self- sustaining and to maintain natural species diversity. G. Definitions: G 1. Gangway. The term "gangway' shall mean a structure that provides pedestrian access from land to the floating docks. One end is generally attached to the Page 8 of 26 bulkhead, fixed pier or landside with a hinge, and the other end rolls on gangway wheels or slide plates, which rest directly on the dock surface. The word "brow" is synonymous with "gangway." 2. Groin. The term "groin" shall mean a shoreline protection structure built, usually perpendicular to the shoreline, to trap nearshore sediment or retard erosion of the shore. A series of groins acting together to protect a section of beach is known as a groin system or groin field. A structure that extends from a beach or bulkhead perpendicularly to the shoreline into tidal waters is intended to trap and retain and /or reduce the erosion of sand and retard the general erosion of the shoreline and undermining of shore protection structures (bulkheads, riprap slopes, etc.). H. Definitions: H 1. Harbor Commission. The term "Harbor Commission" shall mean the Harbor Commission of the City of Newport Beach. 2. Harbor Lines. The term "harbor lines" shall mean all established bulkhead, pierhead, and project lines as defined within Newport Harbor by the Federal, State, County and City Governments. The harbor lines in Lower Newport Bay have been established by an act of the U.S. Congress and can only be modified by an act of Congress. 3. Harbor Maintenance Uses, Equipment and Facilities. The terms "harbor maintenance uses, equipment and facilities" shall mean all uses and their related equipment, vessels, docking, and land storage facilities and access which provide: dredging and beach replenishment; demolition, repair and new construction of docks, piers, bulkheads, and other in- and- over -water structures; mooring maintenance and repair; waterborne debris and pollution control, collection, and removal. This category also includes Page 9 of 26 environmental, survey, or scientific vessels and related equipment based, or on assignment, in Newport Harbor. All vessels under this definition may also be referred to as "work boats." 4. Harbormaster. The term "Harbormaster' shall mean the Commander of the Orange County Sheriff's Harbor Patrol Division, or successor entity. 5. Harbor Regulations. The term "harbor regulations" refers to Title 17 of the Newport Beach Municipal Code. 6. Harbor Resources Manager. The term "Harbor Resources Manager" shall mean the Harbor Resources Manager of the City of Newport Beach, or the Harbor Resources Manager's designee. 7. Harbor Structures. The term "harbor structures" refers to any pier, float, piling, bulkhead, seawall, reef, breakwater or any other structure in, upon or over the waters of Newport Harbor or the Pacific Ocean or any other water where the tide ebbs and flows within the City of Newport Beach or.adjoining waters. 8. Habitat. The term "habitat" shall mean the locality, including the physical and biological environment, in which a plant or animal lives. 9. Headwalk. The term "headwalk" shall mean that portion of a dock that serves as a primary pedestrian access to mainwalks, fingers, and slips. Fingers may be attached directly to headwalks. Headwalks are generally parallel to the bulkhead. The term "marginal walk" is synonymous with "headwalk." 10. Houseboat. The term "houseboat" shall mean any vessel or structure on or in any waterway, floating or nonfloating, which is designed or fitted out as a place of habitation and is not principally used for transportation. Page 10 of 26 Definitions: L 1. Launching Facility. The term "launching facility" shall mean a generic term referring to any location, structure (ramps, docks), and equipment (cranes, lifts, hoists, etc.) where vessels may be placed into and retrieved from the harbor waters. 2. LCP. See Local Coastal Program. 3. Live - Aboard. The term "live- aboard" shall mean the use or occupancy of a vessel as a domicile for a period exceeding seventy -two (72) hours in any thirty (30) day period. 4. Local Coastal Program (LCP). The term "Local Coastal Program" shall mean a local government's: (a) land use 'plans, (b) zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal resources areas, other implementing actions which, when taken together, meet the requirements of, and implement the provisions and policies of the Coastal Act at the local level. 5. Longshore. The term "longshore" shall mean parallel to and near the shoreline. 6. Lower Newport Bay. The term "Lower Newport Bay" shall mean the area of the bay southerly of the Coast Highway. J. Definitions: M 1. Maintenance Construction. The term "maintenance construction" shall mean the construction work relating to no more than twenty (20) percent of the total replacement value of the dock, as well as other criteria as stated in subsequent sections of this title. Construction estimates and the total value of work on any given project is based on pre- determined values of various work on record and established by the City Page 11 of 26 of Newport Beach. Maintenance construction only requires City of Newport Beach approval. 2. Mainwalk. The term "mainwalk" shall mean that portion of a dock that serves as a primary pedestrian access to fingers and slips. Fingers are generally attached directly to mainwalks. Mainwalks are generally perpendicular to the bulkhead and headwalk, and may connect directly to a headwalk. 3. Marina. The term "marina" shall mean a commercial berthing facility (other than moorings or anchorage) in which five or more vessels are continuously wet - stored (in water) and /or dry- stored (on land /racks) for more than thirty (30) days. 4. Marine Activity Permittee. The term "marine activity permittee" shall mean any person, or persons, partnership, corporation, or other entity holding a permit issued pursuant to the provisions of Chapter 17.10 of the Newport Beach Municipal Code. 5. Marine Sales and Services, Uses and Vessels. The term "marine sales and services, uses and vessels" shall mean related business activities which provide repair, maintenance, new construction, parts and supplies, fueling, waste removal, cleaning, and related services to vessels berthed in, or visiting, Newport Harbor. Typical service uses include, but are not limited to, all uses and vessels described under Section 20.05.050 of the City of Newport Beach Municipal Code. 6. Mean High Water. The term "mean high water" shall mean the nineteen (19) year average of the higher high water heights (for diurnal tides, high water and higher high water are the same). 7. Mean Higher High Water. The term "mean higher high water" shall mean the nineteen (19) year average of only the higher high water heights. Page 12 of 26 8. Mean Low Water. The term "mean low water" shall mean the nineteen (19) year average of the lower low water heights (for diurnal tides, low water and lower low water are the same). 9. Mean Lower Low Water (MLLW). The term "mean lower low water" shall mean the nineteen (19) year average of only the lower low water heights. MLLW refers to the datum used to define elevations of structures within the bay and along the coastline. For landside developments using an MSL (mean sea level) datum, add two and seventy -six hundredths (2.76) feet to MSL elevations to equate to MLLW elevations. 10. Mono Pile. The term "mono pile" shall mean a normally large diameter pile that is used for mooring large boats that generally cannot be accommodated by floating docks. Generally, mono piles and dolphin piles are used for similar purposes. 11. Mooring. The term "mooring" shall mean a device consisting of a floating buoy or other object that is secured to the harbor bottom by an anchor system for purposes of securing a vessel. The term "mooring" shall mean any 'appliance used to secure a vessel in Newport Harbor other than a pier, which is not carried aboard such vessel as regular equipment when under way. 12. Mooring Area. The term "mooring area" shall mean an area designated for a group of moorings. 13. Motorboat. The term "motorboat' shall mean any vessel being propelled by machinery. 14. Mud Line. The term "mud line" shall mean the highest elevation of accumulated sediments adjacent to the structure in question. 15. Multiple Vessel Mooring System. The term "multiple vessel mooring system" shall mean a floating platform secured to a single point mooring only which allows Page 13 of 26 multiple vessels to be secured that are shorter in overall length than the side of the platform to which the vessels are to be moored. K. Definitions: N 1. New Construction. The term "new construction" shall mean the construction work relating to fifty (50) percent or more of the total replacement value of the dock, as well as other criteria as stated in subsequent sections of this title. Construction estimates and the total value of work on any given project is based on pre- determined values of various work on record and established by the City of Newport Beach. New construction requires City, State and Federal approvals. 2. Newport Bay. The terms "Newport Bay" and "Newport Harbor' are often used interchangeably. The term "Newport Bay" shall mean the estuary consisting of the Lower Newport Bay and the Upper Newport Bay. 3. Newport Harbor. See also Newport Bay. The term "Newport Harbor" shall mean the water area within the Lower Newport Bay and within the Upper Newport Bay, exclusive of the Upper Newport Bay Marine Park. 4. Nonprofit Organization. The term "nonprofit organization" shall mean an entity designated as tax exempt by the Internal Revenue Service or the State Franchise Tax Board. L. Definitions:O 1. Offshore Mooring. The term 'offshore mooring" shall mean a single or double buoy; weight and chain installed for the purpose of berthing a vessel as provided by Chapter 17.25 of the Newport Beach Municipal Code. 2. Open Coastal Waters. The term 'open coastal waters" shall mean the area composed of submerged lands at Page 14 of 26 extreme low water of spring tide extending seaward to the boundaries of the Exclusive Economic Zone (12- 200 miles). This includes navigation channels, turning basins, vessel berthing, anchorage and mooring areas of Newport Bay. 3. Operable. The term "operable" shall mean capable of maneuvering under the vessel's own power from the mooring to a demarcation line designated by the appropriate authority and generally to be defined as the line between the seaward ends of the harbor entrance jetties and back to the mooring. 4. Operator. The term "operator" shall mean the person who operates or who has charge of the navigation or use of the vessel. M. Definitions: P 1. Pacific Ocean. The term "Pacific Ocean" shall mean the waters off of the City of Newport Beach from the beach, as defined in Title 17.01.030(B) (3), seaward three (3) nautical miles. 2. Passenger. The term "passenger" shall mean every person, other than the operator 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. 3. Permittee. The term "permittee" shall be the person who holds a validly issued permit under any provision of this title. 4. Person. The term "person" shall mean an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee or any other legally recognized entity. 5. Pier. The term "pier" shall mean any fixed or floating structure for securing vessels, loading or unloading persons or property, or providing access to or over Page 15 of 26 the water. A pier includes wharf, dock, slip or float, or any other landing facility and floating dry dock. a. Commercial Pier. The term 'commercial pier shall mean a pier adjacent to commercial or nonresidential zoned property with single or multiple berths which are rented or leased, including any pier used in connection with marinas, charter facilities, yacht clubs, yacht sales, rental facilities and boat yards. For purposes of this chapter, multiple piers which are adjacent to a lot or parcel of land occupied by a multifamily dwelling or dwelling units that are income generating, and structures adjacent to commercially zoned uplands that are business or income generating in nature, shall be deemed commercial. b. Noncommercial Pier. The term "noncommercial pier' shall mean a pier used for private recreational purposes by the owner or occupant(s) of the abutting residentially zoned upland property. C. Public Pier. The term "public pier" shall mean a pier used for public recreational purposes provided by a public agency. 6. Pierhead Line. The term " Pierhead Line" shall mean the harbor water area perimeter lines established in Newport Harbor by the Federal Government that define the permitted limit of fixed pier, floating dock and other in -water structures which may be constructed in the harbor. The Pierhead Line typically shall define the limit of pier and floating dock structures and defines the limit of construction except as otherwise approved by City Council. Vessels may extend channelward of the Pierhead Line. 7. Planning Director. The term "Planning Director" shall mean the Planning Director of the City of Newport Beach, or the Planning Director's designee. Page 16 of 26 8. Police Chief. The term "Police Chief' shall mean the Chief of Police of the City of Newport Beach or his or her respective designee or by the City Council. 9. Project Lines. The term "project lines" shall mean the harbor water area channel lines of the improvements constructed by the Federal Government in 1935- 1936, and as shown on navigation charts of Newport Harbor. Also referred to as the "Federal channel" (see City of Newport Beach Waterfront Project Guidelines and Standards, Harbor Design Criteria— Commercial and Residential Facilities). 10. Property Owner. The term "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 17.50. 11. Public Trust Lands. The term 'public trust lands" shall mean all lands 'subject to the common law public trust for commerce, navigation, fisheries, recreation, and other public purposes. Public trust lands include tidelands, submerged lands, the beds of navigable lakes and rivers, and historic tidelands and submerged lands that are presently filled or reclaimed and which were subject to the public trust at any time (from California Code of Regulations, Section 13577). 12. Public Works Director. The term "Public Works Director" shall mean the Public Works Director of the City of Newport Beach, or the Public Works Director's designee. N. Definitions: R 1. Residential. The term "residential" shall mean those properties that are designated by the Zoning Code for a residential use, as opposed to commercial. 2. Rhine Wharf. The term "Rhine Wharf' shall mean the area at the terminus of the Rhine Channel where vessels may load and unload supplies directly to and from the wharf while tied directly to the wharf. Page 17 of 26 3. Rhine Wharf Public Pier. The term "Rhine Wharf public pier" shall mean the pier and long float parallel to the Rhine Wharf, and which is used for public recreational purposes provided by a public agency. 4. Riprap. The term "riprap" shall mean a protective layer or facing of rock, concrete blocks or quarry stone, placed to prevent erosion, scour, or sloughing of an embankment or bluff. 5. Risk Manager. The term "Risk Manager" shall mean the Risk Manager of the City of Newport Beach, or his or her designee. O. Definitions: S 1. Sail Area. The term "sails area," as defined for the purposes of structural analysis or berthing facilities and structural pilings, shall mean the area of a boat, above the water line; that is exposed to wind under tied /berthed conditions. 2. Sailing Club. The term "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. 3. Seaworthy. The term "seaworthy" shall mean that the vessel's hull, keel, decking, cabin and mast are structurally sound and generally free from dry-rot. 4. Shore. The term "shore" shall mean the narrow strip of land in immediate contact with the sea, including the zone between high and low water. A shore of unconsolidated material is usually called a beach. 5. Shoreline. The term "shoreline" shall mean the intersection of the ocean or sea with land; the line delineating the shoreline on National Oceanic and Atmospheric Administration (NOAH) Office of Coast Survey nautical charts and surveys approximates the Page 18 of 26 mean low water line from the time the chart was prepared. 6. Shore Mooring. The term "shore mooring" shall mean a mooring for vessels which are located in the nearshore perimeter of the harbor and its islands, perpendicular to the shoreline. One end of the mooring line is attached to a point on or adjacent to the bulkhead, and the other end is attached to a mooring buoy located in the water, inside or at the pierhead line. 7. Side Tie. The term "side tie" shall mean a berth where the dock is alongside only one side of the boat. 8. Slip. The term "slip" shall mean a berth where the boat has a finger on one side and either another finger or adjacent boat on the other side. 9. Sport Fishing Charter. The term "sport fishing charter" shall mean a vessel chartered solely for sport fishing outside of Newport Harbor. 10. Submerged Lands. The term "submerged lands" shall mean lands which lie below the line of mean low tide (from California Code of Regulations, Section 13577). 11. Sub - Permits. a. Sub - Permits— Long -Term. The term "long -term sub - permit' shall be defined as those mooring sub - permits issued by the City for the temporary use of a deemed vacant or a noticed vacant mooring for a period anywhere between one month to twelve (12) months. b. Sub - Permit — Short-Term. The term "short-term sub - permit' shall be defined as those mooring sub - permits issued by the City for a temporary use of a deemed vacant or noticed vacant mooring for any period of time less than thirty (30) days as determined by the Harbor Resources Manager. Page 19 of 26 P. Definitions: T 1. Tidelands. The term "tidelands" shall mean lands that are located between the lines of mean high tide and mean low tide (from California Code of Regulations, Section 13577). 2. Tidelands Trust. The term "tidelands trust' shall mean all tidelands and submerged lands granted to the City of Newport Beach by State or Federal legislation and the terms and conditions of any such legislative grant. 3. Turning Basin. The term "turning basin" shall refer to an area, often designated on nautical charts, that is connected to a channel which is large enough to allow vessels to maneuver or turn around. The term "turning basin" shall mean that portion of any channel which has been so designated pursuant to law and approved by the Federal Government, for the purpose of permitting vessels to turn around or permitting their course or direction to be altered therein. Q. Definitions: U 1. Upper Newport Bay. The terms "Upper Newport Bay" and 'Back Bay" are often used interchangeably. The term "Upper Newport Bay" shall mean the area of the bay northerly of the Coast Highway Bridge. 2. Upland. The term "upland" shall mean land with a shared property line with and immediately adjacent to Newport Harbor. R. Definitions: V 1. Vessel. The term "vessel' shall mean and include every description of watercraft used or capable of being used as a means of transportation on water. This includes all vessels of any size home - ported, launched /retrieved, or visiting in Newport Harbor, arriving by water or land, and registered or unregistered under State or Federal requirements, except a seaplane on the water. Page 20 of 26 a. Human Powered Vessel. The term "human powered vessel' shall mean a vessel that is propelled by the human body through the use of oars, paddles or the like, without the use of wind, a motor, or other machinery. b. Wind Powered Vessel. The term "wind powered vessel' shall mean a vessel that is propelled by the wind through the use of sails without the use of a motor or other machinery. 2. Vessel Length/Width. The term "vessel length /width" are terms to describe the overall vessel length (Lo) and overall vessel width (Wo) that include all vessel attachments such as boarding and /or swim steps, bow extensions, sprits, rub rails, etc. 3. Vessel Owner. The term "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. if the vessel is recently purchased, the vessel owner must obtain registration from the Department of Motor Vehicles or United States Coast Guard within six months. S. Definitions: W 1. Walkway. The term "walkway" shall mean a walkway on a wide portion of the floating dock system that is used for pedestrian access. A walkway can refer to the headwalk, mainwalk and /or fingers. 2. Waters of Newport Harbor. The term "waters of Newport Harbor" shall mean all waters of Newport Harbor in which the tide ebbs and flows, whether or not the ordinary or mean high tide line 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. Page 21 of 26 T. Definitions: Z 1. Zostera Marina. See Eelgrass. SECTION 2: Section 17.20.020 of Chapter 17.20 is hereby amended to read as follows: 17.20.020 Vessel Operation A. Speed Limit. No owner, operator or person in command of any vessel, except a public officer in the performance of his duty, shall operate the same or permit the same to be operated in any portion of Newport Harbor or the water in the present or prior channel of the Santa Ana River within the City at a rate of speed in excess of five (5) miles per hour, or at any speed which creates a wake that may cause damage to moorings of vessels or floating structures, except as hereinafter provided. B. Designation of Closed Areas. Whenever the City Manager finds that public safety so requires, he may designate any water area or tidelands or filled lands in or upon which harbor improvement work is being performed as a closed area. Except for persons actually engaged in such harbor improvement work or public officers in the performance of their duty, no person shall enter or remain within or drive or operate any vessel or watercraft into or within any area which has been so designated as a closed area and which has been posted or marked with appropriate signs giving notice thereof. 1. The channel between Bay Island and Balboa Peninsula is designated as a closed area from and including June 1st through September 15th of each year; no person shall operate any motorboat into or through such channel. 2. The Grand Canal is designated as a closed area from and including June 1st through September 15th of each year; however, the closure shall not apply to vessels berthed at residential piers or moorings located along or within the Grand Canal. Page 22 of 26 C. Restriction of Water Traffic. For such time as necessary preceding, during and after any race, regatta, parade or other event held on the waters of Newport Harbor, or at any other time when the City Manager deems it necessary for the safety of persons, vessels or other property, he shall have authority to restrict or prohibit waterborne traffic in the harbor, and it shall be unlawful to willfully fail or refuse to comply with any order, signal or direction of the City Manager, his deputies or agents. For purposes of this section, waterborne traffic shall mean any object, structure or vessel in contact with the water. D. Towing. It is unlawful for any person operating a vessel to tow any object, structure or vessel at a distance in excess of seventy -five (75) feet astern of the towing vessel. E. No person owning, leasing, occupying or having charge or possession of any vessel shall anchor such vessel on the Pacific Ocean unless the vessel is continuously occupied by a person during: (1) any nighttime hours (dusk to dawn); (2) any time period when a Small Craft Advisory or greater has been issued by the National Oceanic and Atmospheric Administration; and (3) during daylight hours, except for one shore excursion daily for no more than three (3) hours. SECTION 3: Section 17.20.070 is hereby added to Chapter 17.20 to read as follows: 17.20.070 Vessel Races. A. The Harbor Resources Manager may issue a permit to a person to exceed the speed limit provided in Code Section 17.20.020(A) when the person is operating a human powered vessel or wind powered vessel as part of a special event (e.g., race). The Harbor Resources Manager has the discretion to determine whether a permit shall also authorize a person to exceed the speed limit for the purposes of training or practicing for a special event. Notwithstanding the restriction to human powered and wind powered vessels contained in this subsection, a motorboat may be included within a permit when the motorboat is providing support services to a special event or an authorized training or practice. Page 23 of 26 The Harbor Resources Manager has the discretion to determine if a permit shall be associated with a single special event or multiple special events provided that in no event shall a permit be valid for more than twelve (12) months from its date of issuance. B. The Harbor Resources Manager shall create a permit application form and administrative review process to implement the discretionary permit provided under this section. C. The Harbor Resources Manager may impose conditions on a permit to protect persons and property and to assure that the activity allowed under the permit will not create a nuisance or interfere with the reasonable use of Newport Harbor by other vessels or persons. D. As a condition of granting a permit, the Harbor Resources Manager shall require a permittee to provide Regatta Insurance for the full period of time for which the permit is granted in an amount no less than one million dollars ($1,000,000). The Regatta Insurance policy shall carry a special endorsement naming the City of Newport Beach, its elected and appointed officers, employees, agents and volunteers, the County of Orange and the State of California as additional name insureds. The insurance coverage shall be primary insurance and /or primary source of recovery as respects to the City, its elected and appointed officers, agents, officials, employees and volunteers as respect to all claims, losses or liability arising directly or indirectly from the permittee's activity /event in the City. Any insurance or self - insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of permittee's insurance and shall not contribute with it. A certificate and endorsements evidencing that such insurance is in force and will remain in force for the period of such permit shall be filed with the Harbor Resources Manager before any such permit is effective. Permittee shall indemnify, defend and hold harmless City, its elected and appointed officers, employees, agents, representatives, the City Council, boards and commissions ( "Indemnified Parties ") with respect to any loss, liability, injury or damage that arises out of, or is in any way related to, the acts or omissions of permittee, his or her employees, representatives, officers and agents in the course of Page 24 of 26 permittee's event/activity; however, permittee shall not be required to indemnify City from any claim arising from the sole negligence or willful misconduct of the Indemnified Parties. E. Any permit issued under this section may be immediately revoked at any time without notice by the Harbor Resources Manager, City Manager, Police Chief, Orange County Sheriffs Harbor Patrol, or any other person authorized by the City to enforce rules and regulations within Newport Harbor, under the following circumstances: (1) the permittee, or a person participating in a special event under the permit, fails to comply with the conditions contained within the permit; (2) the permittee, or a person participating in a special event under the permit, is operating a vessel that endangers the safety of other vessels or persons; or (3) the permittee, or a person participating in a special event under the permit, fails to comply with the lawful instructions of the Harbor Resources Manager, City Manager, Police Chief, Orange County Sheriffs Harbor Patrol, or any other person authorized by the City to enforce rules and regulations within Newport Harbor. For appeal purposes, any decision to revoke a permit under this subsection shall be treated as a decision of the Harbor Resources Manager. Any person, whose permit is revoked under this subsection, as upheld on appeal, if applicable, shall be prohibited from applying for a new permit for a period of one (1) year from the date of revocation. F. Any decision of the Harbor Resources Manager under this section may be appealed pursuant to Chapter 17.65 of this Code. SECTION 4: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 5: The City Council finds that 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, Page 25 of 26 because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 6: 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 of the City, and it shall be effective thirty (30) days after its adoption. SECTION 7: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2011, and adopted on the day of , 2011, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR Michael F. Henn APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY David R. Hunt City Attorney ATTEST: Leilani Brown City Clerk Page 26 of 26 Harbor Speed Limit Proposed Changes City Council Study Session September 13, 2011 Abstract City Code does not allow for sailboats or human powered vessels to exceed the speed limit for races. Proposed draft ordinance allows for an increase in the speed limit via a permit system. Staff is asking for Council input and guidance. Harbor Commission has conceptually approved this draft. Highlights 17.01.03o R: "Vessel" definition updated to include "Human Powered Vessel" and "Wind Powered Vessel" • 17.20.02o A: Speed limit changed from nautical miles per hour to miles per hour • 17.20.070 Vessel Races Harbor Resources Manager may issue a permit to sailboats and human powered vessels (including support vessel) to exceed speed limit. Permit valid for 1 year. Highlights 17.20.070 Vessel Races (continued) A single permit will cover the entire year. Internet based application. Conditions included in permit. "Regatta Insurance" required for no less than $1,000,000. Indemnify the City. Permit may be revoked at any time. Decisions of the Harbor Resources Manager may be appealed. Next Steps Incorporate any changes as suggested by Council. File copy of Ordinance with CA Boating and Waterways as required. Return to Council in October/ November with proposed Ordinance. Effective January / February to give folks ample time before the summer racing schedule begins. For More Information Chris Miller, Harbor Resources Manager rmil lnrnnewnortbeachca.gov (949) 644 -3043 Shannon Levin, Harbor Resources Supervisor • shannon@newportbeachca.gov (949) 644 -3041