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Home My WebLink About2013-1 - Amend Ch. 3.36 and Title 17 of the Municipal Code Relating to Commercial and Noncommercial Tidelands UsesORDINANCE NO. 2013 -1 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA AMENDING CHAPTER 3.38 AND TITLE 17 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO COMMERCIAL AND NONCOMMERCIAL 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 as the trustee of tidelands located within the City's limits, including Newport Harbor; WHEREAS, Section 1(b) of the Beacon Bay Bill and Title 17 of the Newport Beach Municipal Code ( "NBMC ") allow the City to authorize third parties to use tidelands for commercial and noncommercial purposes for a term not to exceed fifty (50) years; WHEREAS, on July 27, 2010 the City Council formed the Council Ad Hoc Committee on Harbor Charges ( "Committee ") and tasked the Committee with performing a review of certain commercial tidelands uses; WHEREAS, the Committee looked at mooring fees, rents at the Balboa Yacht Basin, and rents charged to persons holding commercial pier permits but did not review rents for residential piers; WHEREAS, Mayor Gardner, Council Member Henn and former Council Member Rosansky acted as a working group of less than a majority of the City Council to review residential pier rental rates; WHEREAS, the Committee and working group, and members thereof, held public outreach meetings with tidelands users to solicit their input and participation in the tidelands review process and these meetings afforded the public the opportunity to discuss this matter with City Council Members and staff as well as provided the public information relating to this matter; WHEREAS, the Committee, working group, and City Council held several open and public study sessions and meetings where public input and testimony was taken, including meetings on March 13, 2012, September 12, 2012, October 23, 2012, November 19, 2012 and November 28, 2012; WHEREAS, as a result of these outreach meetings, the City Council established fair market rent for commercial and noncommercial tidelands uses and developed new permit and lease templates; and WHEREAS, the City desires to amend various sections within NBMC Title 17 and Chapter 3.36 to ensure consistency, remove a tidelands fee, and establish an appeal fee. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: Exhibit "A" to Section 3.36.030 of the Newport Beach Municipal Code is hereby amended to read as follows: 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 PercentagelAmount 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% 2 Service Percentage /Amount of Cost to Be Recovered from Direct Fees Badge Replacement 45% After School /Camp Programs Camps 40% After- School/Teen 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% Senior Services Oasis Transportation 5% Contract Classes 50% Oasis Rentals 45% 3 Service Percentage /Amount of Cost to Be Recovered from Direct Fees 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 °l0 Construction and Inspection Services— State - Mandated Inspections Day Care Facilities 26% 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 C•! Service Percentage /Amount of Cost to Be Recovered from Direct Fees Vehicle Release 91% Domestic Violence Reports 0% Missing Persons Report 0% Second Hand /Pawn Dealer Tag Check 0% Registrant —Sex 0% Registrant — Narcotics 0% Public Works Engineering Encroachment Permit without Traffic Engineer Review 88% Encroachment Permit with Traffic Engineer Review 57% Appeal of Lease /Permit under Section 17.60.080 $100 Finance Parking Reviews 0% Parking Hearings 0% Admin. Cite Hearings 0% Municipal Operations Construction Water Meter Establishment Section 2: Subsection 17.01.030(A) of the Newport Beach Municipal Code is hereby amended to add the following definition: 5 Abutting Upland(s) Property. The term `abutting(s) uplands property" or "abutting 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 adjacent bordering property, the "abutting uplands property" or "abutting upland(s)" shall mean the property adjacent to and abutting the property held in fee or by lease on the landward side of the walkway. Section 3: Subsection 17.01.030(J)(3) of the Newport Beach Municipal Code is hereby amended to read as follows: Marina. The term "marina" shall mean a commercial berthing facility (other than moorings, anchorage or Noncommercial Pier) in which vessels are continuously wet - stored (in water) and/or dry- stored (on land /racks) for more than thirty (30) calendar days. Section 4: Subsection 17.01.030(M)(5)(b) of the Newport Beach Municipal Code is hereby amended to read as follows: Noncommercial Pier. The term "noncommercial pier" or `residential pier" shall mean a pier used by the owner(s) or occupant(s) or person(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. Section 5: Subsection 17.01.030(P)(1) of the Newport Beach Municipal Code is hereby amended to read as follows: 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. Section B: Subsection 17.35.010(J) of the Newport Beach Municipal Code is hereby amended to read as follows: 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 R the maintenance or use of the proposed facility and user of the same. Section 7: Section 17.60.010 of the Newport Beach Municipal Code is hereby amended to read as follows: 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. Section 8: Subsection 17.60.020 {E} of the Newport Beach Municipal Code is hereby amended to read as follows: E. Tidelands Users. Users 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 City Council with the assistance of an appraisal. Section 9: Section 17.60.030 of the Newport Beach Municipal Code is hereby amended to read as follows: 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. 7 e - 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, shall pay to the City an annual pier permit rental fee for such portions of the pier as extend into public tidelands, as established by City Council resolution. 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 upland residential property changed ownership will result in an additional fee as established by resolution of the City Council. 3. Along with the City Manager, the Harbor Resources Division is authorized to approve transfers to the new owners or long -term lessee of the abutting upland residential 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. 5. Noncommercial piers may be rented /leased by the owner(s) or occupant(s) of the abutting property to a third party. Such rental /lease shall not be deemed a transfer under this section. Section 10: Section 17.60.060 of the Newport Beach Municipal Code is hereby amended to read as follows: 17.60.060 Public Trust Lands. The following restrictions shall apply to public trust lands under either a permit or a lease: M A. Leases /Permits. In the event public trust lands are used by an entity other than the City, then that entity shall enter into a lease or permit with the City. Such leases shall provide lessees with a leasehold interest in the property for a period of at least five (5) years, not to exceed a period of time as limited by the City Charter or applicable State law. Such permits shall provide permittees 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 17.05.080. Preference shall be given to coastal- dependent uses. C. Public Access. Public access shall be provided in a manner consistent with applicable law. 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 any provision requiring involvement of the owner or long -term lessee of an abutting upland property. Section 11: Section 17.60.080 of the Newport Beach Municipal Code is hereby amended to read as follows: .e R 2•.. Notwithstanding Chapter 17.65, appeals under this chapter involving any permit or lease shall be processed as follows: A, Time Limit, Appeals shall be initiated within twenty -one (21) 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.g., decision being appealed is reversed). A 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, modifying 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 applicant and the appellant. The decision of the hearing officer shall be final. Section 12: Subsection 17.70.020(A) of the Newport Beach Municipal Code is hereby amended to read as follows: A. Ground for Revocation. Unless otherwise provided by the terms of a permit, any 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; im 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. Section 13: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 14: 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 15: 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, 11 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 16: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 22nd day of January, 2013, and adopted on the 12th day of February, 2013, by the following vote, to wit: AYES, COUNCILMEMBERS Gardner, Petros, Hill, Henn, Mayor Curry NOES, COUNCILMEMBERS Daigle RECUSED, COUNCILMEMBERS Selich ABSENT COUNCILMEMBERS None l\:JJ :ZiPt4lix —l" THE I RT OT RNEY'S OFFICE AARON'G% -HARP, CITY ATTORNEY ATTEST: LEILANI 1. BROWN, CITY CLERK 12 KEITH D. CURRY. MAYOR STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilanl I. 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 ordinance, being Ordinance No. 2013 -1 was duly and regularly introduced on the 22n° day of January, 2013, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 12t° day of February, 2013, and that the same was so passed and adopted by the following vote, to wit: Ayes: Gardner, Petros, Hill, Curry, Henn, Mayor Curry Nays: Daigle Recused: Selich IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 13`n day of February, 2013. 4 mi ;- �� City Clerk City of Newport Beach, California (Seal) CERTIFICATE OF PUBLICATION 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 Ordinance No_ 2013 -1 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: Introduced Ordinance: January 26, 2013 Adopted Ordinance: February 16, 2013 In witness whereof, 1 have hereunto subscribed my name this day of 2013. City Clerk City of Newport Beach, California (Seal) PROOF OF PUBLICATION ,,:. _A:02 Las.- fru Ftf STATE OF CALIFORNIA) = n, 1 S$.L. D I �t COUNTY OF ORANGE ) CITY OF NEWPORT BEACH I am a citizen of the United States and a PUBLIC NOTICE ORDINANCE SUMMARY resident of the County of Los Angeles; I NOTICE IS HEREBY am over the age of eighteen years, and GIVEN that on January 22, 2013, the City Coun- not a party to or interested in the notice cil of the City of New - port Beach, California, published. I am a principal clerk of the introduced an Ordi- nanceentitled: NEWPORT BEACH/COSTA MESA ORDINANCE NO. 2013= 1 DAILY PILOT, which was adjudged a AN ORDINANCE OF THE newspaper of general circulation on CITY COUNCIL OF THE CITY OF NEWPORT September 29, 1961, case A6214, and AMENDINGALIFORNIA CHAPTER June 11, 1963, case A24831, for the 3.36 AND TITLE 17 OF THE NEWPORT BEACH City of Costa Mesa, County of Orange, MUNICIPAL CODE RE - LATING TO COMMER- and the State of California. Attached to CIAL AND NON - C O M M E R C I A L this Affidavit is a true and complete copy TIDELANDS USES The proposed Ordinance as was printed and published on the would, among other things, amend Newport following date(s): Beach Municipal Code Title 17 and Chapter 3.36 related to commer- cial and non - Saturda Januar 26 2013 yi y commercial tidelands uses to / ensure consis- tency, remove an .ad- ministrative fee, allow for the rental of non- commercial piers, and certify (or declare) under penalty of establish an indepen- dent tidelands appeal that the foregoing is true and perjury g g process. This Ordinance -was in - troduced by correct. the City Council of the City of Newport Beach, Califor- nia, at a regular meet- ing thereof on the 22nd day of January, 2013, by the following vote: AYES:Gardner, Petros, Executed on January 29 2013 Hill, Se flurry, Henn, � Daigle, Mayor Curry Ma at Los Angeles California NAYS:None ABSENT:None , Second reading of Ordi- nance No. 2013-1 will occur at the February 12, 2013 City Council meeting. If adopted on February 12, 2013, the Ordinance shall become final and effective thirty (30) days after adop- Signature tion. Dated this 23rd day of January, 2013. - /s/ Leilani I. Brown, -City Clerk City of Newport Beach Published Newport Beach/Costa Mesa Daily Pilot January 26, 2013 PROOF OF PUBLICATION STATE OF CALIFORNIA) ) SS. COUNTY OF ORANGE ) I am a citizen of the United States and a resident of the County of Los Angeles; I am over the age of eighteen years, and not a party to or interested in the notice published. I am a principal clerk of the NEWPORT BEACH/COSTA MESA DAILY PILOT, which was adjudged a newspaper of general circulation on September 29, 1961, case A6214, and June 11, 1963, case A24831, for the City of Costa Mesa, County of Orange, and the State of California. Attached to this Affidavit is a true and complete copy as was printed and published on the following date(s): Wednesday, February 27, 2013 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Executed on March 8, 2013 at Los Angeles, California &�U&,Xm Signature CITY OF NEWPORT BEACH PUBLIC NOTICE ORDINANCE SUMMARY NOTICE IS HEREBY GIVEN that on Feb- ruary 12, 2013, the City Council of the City of Newport Beach, Califor- nia, adopted an Ordi- nance entitled: ORDINANCE NO. 2013-1 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEW BEACH, CALI- FORNIA AMENDING CHAPTER 3.36 AND TI- TLE 17 OF THE NEW- PORT BEACH MUNICI- PAL CODE RELATING TO COMMERCIAL AND NON-COMMERCIAL TIDELANDS USES The Ordinance, among other things, amends Newport Beach Munici- pal Code Title 17 and Chapter 3.36 related to commercial and non- commercial tidelands uses to ensure consis- tency, remove an ad- ministrative fee, allow Ifor the rental of non- commercial piers, and establish an indepen- dent tidelands appeall ,process. This Ordinance was adopted by the City Council of the City of Newport Beach, Califor- nia, ata regular meet- ing thereof on the 12th day of February, 2013, by the following vote: AYES: Gardner, Petros, Hill, Curry, Henn, May- or Curry NAYS: Daigle RECUSED: Selich Ordinance No. 2013-1 shall become final and effective thirty (30) days after adoption. Dated this 14th day of February, 2013. /s/ Leilani I. Brown, City Clerk City of Newport Beach Published Newport Beach/Costa Mesa Dai- ly Pilot February 27,i 2013. Z0 :01 WV 1 Z w, glQz GS/Vso_�d