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HomeMy WebLinkAbout2013-5 - Amending Master Fee Schedule Relating to Commercial and Non-Commercial Tidelands UsesRESOLUTION 2013 -5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING THE MASTER FEE SCHEDULE RELATING TO COMMERCIAL AND NON - COMMERCIAL TIDELANDS USES WHEREAS, pursuant to the 1978 Beacon Bay Bill, as amended, ( "Beacon Bay Bill ") the City of Newport Beach ("City") acts on behalf of the State of California ( "State ") as the trustee of tidelands located within the City's limits, including Newport Harbor; WHEREAS, Newport Beach Municipal Code ("NBMC ") Section 17,60,030 established a fee for noncommercial piers to allow for the maintenance of comprehensive pier records, periodic inspections, enforcement of all applicable laws and regulations, and the administration of public trust lands; WHEREAS, the City seeks to eliminate the fee established by NBMC Section 17.60.030; WHEREAS, the City's various fees are included in the Master Fee Schedule adopted via Resolution No. 2011 -108 on November 22, 2011; WHEREAS, the fees for services in the Master Fee Schedule and established in this resolution are no more than the cost to the City to provide such services; WHEREAS, the City recently created new permits and leases for commercial and noncommercial tidelands uses; WHEREAS, the City is proposing to amend NBMC Section 17.60.080 to provide a specific appeal procedure for persons aggrieved by decisions relating to commercial and noncommercial tidelands permits and leases; WHEREAS, NBMC Section 3.36.030(A) provides the City shall recover 100% of the costs associated with a user service unless otherwise provided in Exhibit "A" to Section 3.36.030; and WHEREAS, the City' desires to subsidize in part the appeal of leases and permits under NBMC Section 17.60.080. NOW, THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: Section 1: The recitals provided above are true and correct and are incorporated into the operative part of this resolution. Section 2: The fee for noncommercial pier permits established by NBMC Section 17.60.030 is hereby eliminated from the City's Master Fee Schedule. Section 3: Pursuant to Exhibit "A" of NBMC Section 3.36.030 the fee for appeals brought under NBMC Section 17.60.080 shall be $100. Section 4: Except as expressly amended by this resolution, all other fees in the Master Fee Schedule shall remain unchanged and shall be in full force and effect. Section 5: 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. Alternatively, the City Council finds the approval of this resolution 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 6: 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. Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 22nd day of January, 2013. ATTEST: i_eilani 1. Brown City Clerk Keith Curry Mayor Exhibit A to Section 3.36.030 Exhibit A The City's cost of providing the following services shall be recovered through direct fees charged for services in the percentages or dollar amounts indicated. Service Percentage /Amount of Cost to Be Recovered from Direct Fees Building Preliminary Plan Review 75% Planning Appeals to City Council 50% Appeals to Planning Commission 50% Recreation and Senior Services Adult Sports Adult Sports 62% Adult Drop -in Sports 15% Rentals 50% Badge Replacement 45% After School /Camp Programs Camps 40% After- Schooltt"een Program 20% Pre - School Program 40% Aquatics 20% Contract Classes 60% Class Refunds $74 or less 29% $75 or more 59% Youth Sports 25% Special Events -- Levels 1, 2, and 3 Resident Up to 45% Non - Resident Up to 85% Appeal to City Council 25% Service Percentage /Amount of Cost to Be Recovered from Direct Fees Senior Services Oasis Transportation 5% Contract Classes 50% Oasis Rentals 45% Fitness Center 50% Marine Environment Services— Marine Preserve Tours 15% Library Services Meeting Room Rentals 1% Rentals— Materials 20% Inter - Library Loan 10% Fire and Marine Emergency Operations Services Advanced Life Support— Escorted Up to 80% Advanced Life Support—Not Escorted Up to 80% Basic Life Support— Escorted Up to 80% Basic Life Support —Not Escorted Up to 80% Construction and inspection Services— State- Mandated Inspections Day Care Facilities 25% Police Initial Concealed Weapons Permit Maximum Permitted by Law Concealed Weapon Permit Renewal Maximum Permitted by Law Bike Licenses 17% Subpoena Duces Tecum Maximum Permitted by Law Vehicle Release 91% Domestic Violence Reports 0% Missing Persons Report 0% Second Hand /Pawn Dealer Tag Check 0% Registrant --Sex 0 0 Registrant -- Narcotics 0% Service Percentage /Amount of Cost to Be Recovered from Direct Fees', Public Works Engineering Encroachment Permit without Traffic Engineer Review 88% Encroachment Permit with Traffic Engineer Review 57% Apgeai of Lease /Permit under Section 17.60.080 `5w 1 ao Finance Parking Reviews 4% Parking Hearings 0% Admin. Cite Hearings 0% Municipal Operations Construction Water Meter Establishment 17.01.030(A) Definition of Terms. Abutting Upland(s) Property. The term "abutting(s) uplands property or "abuttin�c upland(s)" shall mean the adjacent bordering property held in fee or by lease. In instances, such as on Balboa Island where a City owned public walkway exists between the pier and the adiacent bordering property, the "abutting uplands proper" or "abutting upland(s)" shall mean the pro e�rty adjacent to and abutting the orooertv held in fee or by lease on the landward side of the walkway. 17.01.030(J)(3) Marina. The term "marina" shall mean a commercial berthing facility (other than moorings or— anchorage or Noncommercial Pier) in which are continuously wet - stored (in water) and /or dry- stored (on land /racks) for more than thirty (30) calendar days. 17.01.030(M)(5)(b) Noncommercial Pier. The term "noncommercial pier" or °residential pier" shall mean a pier used fefipfki ate-resreatio�ores -by the ownerLs� or occupant(s) oLperson(s) authorized by the owner(s) or occupant(s) of the abutting residentially zoned upland property, whether or not such pier is rented in whole or in part to third parties. 17.01.030(P)(1) Tidelands. The term "tidelands" or "public tidelands" shall mean all lands that were granted to the City by the State of California including, but not limited to, submerged lands and /or lands that are located between the lines of mean high tide and mean low tide. 17.35.010 General Provisions for Harbor Structures. A. Design of harbor structures shall conform to the "Waterfront Project Guidelines and Standards, Harbor Design Criteria — Commercial and Residential Facilities" as adopted by resolution of the City Council and as may be amended from time to time. The applicant may submit an alternative design for review and potential approval of the Building Department prior to the issuance of a harbor development permit using the "Alternate Material or Method of Construction" appeals process. B. Protection of Coastal Access and Resources. All harbor structures, including remodels of and additions to existing structures, shall be designed and sited to current standards so as not to obstruct public lateral access and to minimize impacts to coastal views and coastal resources. C. Appearance. All structures permitted to encroach into open coastal waters, wetlands and estuaries shall be designed and sited to harmonize with the natural appearance of the surrounding area. D. Eelgrass Protection. The use of materials in pier and dock construction design, materials and methods shall consider minimal impacts to eelgrass and marine habitat. E. Docking Facilities. Docking facilities shall be designed and sited in relationship to the water's depth and accessibility. F. Protection of Traffic. Adequate provisions shall be made for the protection of the traveling public. Barricades shall be placed on streets with lights at night, also flagmen employed, all as may be required by the particular work in progress. The permittee shall not attempt to forbid the full and free use by the public of all navigable waters at or adjacent to the work or structure. If the display of lights and signals on any work authorized is not otherwise provided by law, as may be prescribed by the U.S. Coast Guard, they shall be installed and maintained at the expense of the permittee. Structures shall be so constructed as not to obstruct, interfere with or prevent the free use of adjacent harbor structures or passage of any sidewalks, street, alley, public way or navigable channel. G. Liability for Damages. The permittee is responsible for all liability for personal injury or property damage which may arise out of work herein permitted, or which may arise out of the use or possession of such works, and in the event any claim is made against the City of Newport Beach or any department, officer, or employee thereof, though, by reasons of, or in connection with such work, permittee shall defend, indemnify and hold them and each of them, harmless from such claim. H. Repairs. The permittee shall keep the structures in good repair at all times. Failure to repair, when written notice has been given by the Harbor Resources Division, shall be cause for the revocation of the permit. 1. Pollution Control. The permittee shall maintain the area delineated on the harbor development permit free and clear from beached or floating rubbish, debris or litter at all times. Adequate safeguards shall be maintained by the permittee to avert any other type of pollution of Newport Harbor from recreational and /or commercial use of the tidelands. Failure to comply with the provisions of this section shall be cause, after written notice has been given to the permittee by the City, for the revocation of the permit. When unusual circumstances arise with respect to the collection of debris or litter, the City Manager may authorize by the use of City forces or by contract, the removal of such debris. Cost for such pollution control will be borne by the permittee. J. Rights to Impose Rental or Other Charges. The approval of permits or leases by the City of Newport Beach shall not constitute a waiver of any rights or requirements which it may now have or hereafter have to impose rental or other charges in conjunction with the maintenance or use of the proposed facility and user of the same. The- i+�tposi r - f°v�ha;; - private YeC,FS,dG„t(a RGRGGFRFn--F--'--! recrea�� Riess otherwise te. K. Special Event Permits. If a permittee proposes a use of the harbor other than that allowed by the Newport Beach Municipal Code, he or she must first obtain a "special event permit," as provided by Chapter 11.03 of the Newport Beach Municipal Code. Upon issuance of the special event permit, the City of Newport Beach may impose conditions on the permit to assure that the proposed use does not affect the health, safety or welfare of the residents of Newport Beach. 17.60.010 Permits and Public Trust Lands Leases — General. The State of California became the owner of tidelands on admission to the union in 1850. The City manages those tidelands pursuant to various legislative grants from the State. The State Lands Commission, which administers tidelands, generally requires a trustee to negotiate leases on the basis of the current market value of the parcel. Failure of a trustee to receive consideration approximating the fair market value of leased tidelands could, under certain circumstances, be considered a violation of the legislatively imposed public trust. The City manages the tidelands through a series of permits, franchises and leases. The Harbor Resources Manager shall have the authority to approve, conditionally approve, or disapprove applications for the uses and activities that require a harbor permit by the individual chapters of this Code, unless the authority is specifically assigned to the City Manager Harbor Commission or the City Council. 17.60.020 Application for Permits. A. Required Forms. Applications for permits which pertain to the harbor under the provisions of this title shall be filed in the office of the Harbor Resources Division, in writing, on forms prescribed by the Harbor Resources Manager. B. Required Materials. Applications shall be accompanied by all plans, maps, and other materials required by the prescribed forms, unless specifically waived by the Harbor Resources Manager. The Harbor Resources Manager may request additional materials deemed necessary to support the application. C. Required Signatures. Application for discretionary approvals may be made by the owner, lessee, or agent of the owner of the property affected. The application shall be signed by the owner of record or may be signed by the lessee or by an authorized agent if written authorization from the owner of record is filed concurrently with the application. D. Fees. Applications and renewals shall be accompanied by a fee as established by resolution of the City Council. E. TidelandsGommercial Users. _Gommercial- uUsers of public tidelands, including commercial and noncommercial users shall be subject to rental or lease charges reflective of the fair market value related to such use as established by the CitCcuncil with the assistance of an appraisal. 17.60.030 Annual Pier Permits for Noncommercial Piers. A. Pier Permits. Permits for piers and other structures used for noncommercial purposes in Newport Harbor located upon public tidelands shall be renewed annually.4R inspeEtierrs; _ taws -and- ust lands- B. Rental Fees, 1, Rental Fee Required. Every owner or permit holder who maintains a pier used for noncommercial purposes, any part of which extends into public tidelands. the -- waters waters Pdewp ®rNr ivte prefaerty en a dedicated- etiaranel er- Gounty- tide -a -- submerged -;n„d_ ,, -shall pay to the City an annual pier permit rental . fee-for such portions of the pier as extend into the public tidelands as established by City Council resolution. PA C. Transfer of Noncommercial Annual Pier Permits. 1. Permits for harbor structures are issued subject to the condition that any improvements constructed shall not be sold in whole or part, leased, or transferred, without the written consent of the City. 2. Whenever a permittee sells the abutting residential upland property, a request shall be made to the City to transfer the permit. Forms for this purpose may be obtained from the Harbor Resources Division. Failure to apply for a transfer within thirty (30) days from the date that the abutting residential upland property changed ownership will result in an additional fee as established by resolution of the City Council. 3. Along with the City Manager, tThe Harbor Resources Division is authorized to approve transfers to the new owners or long -term lessee of the abutting residential upland property. 4. Prior to the transfer of an annual pier permit, all harbor structures shall be inspected for compliance with the City's minimum plumbing, electrical and structural requirements, and the conditions of the existing permit. All structural deficiencies must be corrected prior to the transfer of the permit. A -fee- -wi4l-be charged- fer- t4- iis- inspesti +au�- efthe- i�ity- Geuns+4� 5. Noncommercial _piers may be rented /leased by the owner(s) or occupant(s) of the abutting property roped to a third party. Such rental /lease shall not be deemed a transfer under this section. 17,60.064 Public Trust lands -. s-. The following restrictions shall apply to leases -of- public trust lands under either a permit or a lease: A. Leases /Permits. In the event public trust lands are used s by an entity other than the City, then that entity shall enter into a lease or permit with the City. Tl e Cgall— open re +#�-Ce 44-, tr a stiff -soh lams rider -a -per^ + T ec Such leases shall provide lessees with a leasehold interest in the property for a period of at least five f5Lyears, not to exceed a period of time as limited by the City Charter or applicable State law. Such permits shall provide oermittees with an interest in the property for a period of twelve (12) months, or less. B. Land Use. Leases and permits shall be for uses consistent with the public trust and Section 17.06.080. Preference shall be given to coastal- dependent uses. C. Public Access. Public access shall be provided in a manner consistent with applicable D. Revenue. Rent under this section shall be based upon fair market value„ as determined by the City Council._ Such determination shall be based, in part, upon the findings of a City - selected appraiser. E. Commercial uses provided under this Title 17 are exempt from anv provision requiring involvement of the owner or long-term lessee of an abutting upland property. 17.60.080 Appeal. » - - - -_ Notwithstandina Chaoter 17.65, appeals under this chapter involving any an _p�eqrmn or lease shall be Processed as follows: A Time Limit. Appeals shall be initiated within twenty -one (2 1) calendar days of the decision under appeal. B. initiation. Appeals shall be made in writing to the Harbor Resources Manager and shall be accompanied by a fee established by resolution of the City Council. The appeal fee shall be refunded to the appellant if he or she is successful in their appeal under this section (e.p. , decision being appealed is reversed). C Effect on Decisions. Decisions that are appealed shall not become effective until the appeal or review is resolved. D. Hearing Date. Appeals shall be scheduled by the Harbor Resources Manager for a hearing before an independent hearing officer within thirty (30) days of the filing of the appeal unless both appellant and City consent to a later date. E Hearing. At the hearing the hearing officer shall review the record of the decision and hear testimony of the appellant the applicant and any other interested party The hearing officer shall consider only the same application plans and project- related materials that were the subject of the original decision. F. Required Findings. At the hearing the hearing officer shall make the findings prescribed in this chapter when affirming modifvina or reversing the original decision G Decision and Notice. After the hearing the hearing officer shall affirm, modify or reverse the original decision When a decision is modified or reversed. the hearing officer shall state the specific reasons for modification or reversal. Decisions on appeals shall be rendered within thirty (30) calendar days of the close of the hearing. The Harbor Resources Manager shall mail notice of the hearing officer's decision. Such notice shall be mailed within five (5) working days after the date of the decision to the a Ipp scant and the appellant. The decision of the hearing officer shall be final. 17.70.020 Revocation of Permit. A. Ground for Revocation. Unless otherwise provided by the terms of a permit Aany permit heretofore or hereafter granted for any structure, work, or activity in the waters of Newport Harbor or the Pacific Ocean may be revoked by the Harbor Commission upon any of the following grounds: 1. The work, structure, use or activity has become detrimental to commerce, navigation or fishing; 2. The work, structure, use or activity is detrimental to the use, operation or development of the harbor; 3. The work, structure, use or activity has become a source of pollution of the harbor; 4. The work, structure, use or activity does not comply with the permit or does not meet the standards adopted by the Harbor Commission for such work or structure; 5. The permittee has failed for a period of sixty (60) days to pay the fee or fees heretofore or hereafter imposed for the occupancy of tidelands, filled tidelands or submerged lands upon which such work or structure exists; 6. The work or structure has fallen into a state of disrepair; 7. The space occupied by such work or structure is over public trust land and such space is to be devoted to a more necessary public use; 8. The permittee has breached or failed to comply with the terms or conditions contained in the permit or upon which the permit was granted. 9. The work, structure, use or activity violates the terms of the tidelands trust grants to the City. B. Notice and Hearing. Any such permit shall be revoked only after a public hearing before the Harbor Commission at which the permittee has an opportunity to be heard. At least fifteen (15) days' notice of such hearing shall be given in writing by first class mail with postage prepaid addressed to the address of the permittee shown on such permit, setting out the date, time and place of hearing. The Harbor Commission may preside over the hearing or, in the alternative, appoint a Hearing Officer to conduct the hearing, receive relevant evidence and to submit to the Harbor Commission findings and recommendations to be considered by the Harbor Commission. The Harbor Commission shall render its decision within forty -five (45) days from the date of the hearing or, in the event that a Hearing Officer has been appointed, within forty-five (45) days from the date on which the Harbor Commission receives the findings and recommendations of the Hearing Officer. The decision of the Harbor Commission shall be final. C. Decision and Notice. Within ten days of the conclusion of the hearing, the Harbor Commission shall render a decision. The City Clerk shall notify the permittee or applicant of the decision of the Harbor Commission. D. Effective Date. The decision to revoke a permit shall become final fourteen (14) days after the date of decision, unless appealed. E. Rights of Appeal. Appeals shall be as prescribed by Chapter 17.65, Appeals. STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } 1, Leilani 1. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven, that the foregoing resolution, being Resolution No. 2013 -5 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 22 °d day of January, 2013, and that the same was so passed and adopted by the following vote, to wit: Ayes: Gardner, Petros, Hill, Henn, Mayor Curry Noes: Daigle Recused: Selich IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 23" day of January 2013. owc - P%"� City Clerk Newport Beach, California (Seal)