HomeMy WebLinkAbout2006-3 - Repealing Chapters 5.18 of Title 15 Pertaining to Marine Charter Permits and 17.41 of Title 17 Pertaining to Commercial Activities on the Waters of Newport Harbor and Adding Chapter 17.10 of Title 17 of the NBMC Pertaining to Business ActivitiesORDINANCE NO. 2006 -3
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, CALIFORNIA,
REPEALING CHAPTERS 5.18 OF TITLE 15
PERTAINING TO MARINE CHARTER PERMITS
AND 17.41 OF TITLE 17 PERTAINING TO
COMMERCIAL ACTIVITIES ON THE WATERS OF
NEWPORT HARBOR AND ADDING CHAPTER
17.10 OF TITLE 17 OF THE NEWPORT BEACH
MUNICIPAL CODE PERTAINING TO BUSINESS
ACTIVITIES ON NEWPORT HARBOR
NOW THEREFORE, the City Council of the City of Newport Beach, California,
HEREBY ORDAINS as follows:
SECTION 1: Chapters 5.18 of Title 15 and 17.41 of Title 17 of the Newport Beach
Municipal Code are hereby deleted in its entirety.
SECTION 2: Chapter 17.10 of Title 17 of the Newport Beach Municipal Code is
hereby added as follows:
Chapter 17.10
Sections:
17.10.005 Findings and Purpose.
17.10.010 Definitions.
17.10.020 Permit for Commercial Activities in Newport Harbor Required.
17.10.025 Exemptions.
17.10.030 Application for Permit.
17.10.040 Filing Fee.
17.10.050 Issuance of Permit.
17.10.070 Power to Impose Conditions; Hold Harmless.
17.10.075 Insurance
17.10.080 Duration of Permit.
17.10.085 Enforcement, Right of Entry
17.10.090 Suspension /Revocation.
17.10.095 Appeal.
17.10.100 Transfer of Permit.
17.10.110 Licenses and Fees not Exclusive.
17.10.120 Application to Existing Commercial Activities.
Section 17.10.005 Findings and Purpose.
A. Newport Harbor is a limited resource with a large marine and recreational
use; and
B. There has been an increase in the nature and intensity of commercial
activities such as harbor cruises, dinner cruises, boat rentals and water
taxi services occurring on the waters of Newport Harbor; and
C. Some of these vessels carry a number of passengers and some are
owned or operated by persons who do not have a fixed base of operation
on or near the bay that can provide the parking or sanitation facilities
necessary to serve their clients and customers; and
D. Commercial activities on Newport Harbor require City services which may
not be paid by the patrons or passengers of commercial operators on
Newport Harbor; and
E. Commercial activity on Newport Harbor has created an additional demand
for available parking and created traffic congestion in and around the
waterfront; and
F. On an infrequent basis, this commercial activity has created an
unreasonable level of noise which has interfered with the right of persons
who own property on or near Newport Harbor to the peaceful enjoyment of
their property; and
G. Commercial activity, especially the mix of large craft with limited
maneuverability and restricted uplands access, has the potential to
interfere with the safe navigation of boats and vessels operating on waters
of Newport Harbor and, the potential to increase the amount of pollution
and litter on and in those waters; and
H. The requirements of the chapter are necessary to minimize the traffic
congestion, parking shortages, excessive noise, and the discharge of
waste that could result from unregulated commercial activity and to ensure
safe operation within the capacity and constraints of the Newport Harbor;
and
The Harbor and Bay Element of the General Plan establishes an objective
to preserve existing commercial uses in Newport Harbor to the extent
necessary to maintain and enhance the charm and character of the
Harbor and to provide support services for visitors, recreational boaters
and other water dependent activities by enforcing existing ordinances and,
if necessary establish new standards for the operation of entertainment,
sport fishing and work boats; and
J. In adopting this chapter the City Council intends that the health, safety and
welfare of those who use, enjoy and own property near Newport Harbor
are not adversely affected by commercial activities conducted on those
waters and that suitability and capability of the Newport Harbor
infrastructure to accommodate future permit dependent operations are
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adequately considered in permit application processes; and
K. Fees and charges imposed on commercial users of Newport Harbor
should recover City cost and contribute to major maintenance (i.e.
dredging); and
L. Leases should be used were appropriate to recover the fair market value
of the use of public tidelands from holders of permits for marine
commercial activities on tidelands properties.
M. Current zoning district boundaries terminate at the bulkhead line and
property development regulations of the zoning code do not apply
bayward of the bulkhead line and the City Council desires to mitigate the
impact commercial uses on Newport Harbor have on the uplands.
Section 17.10.010 Definitions.
A. "Applicant" shall mean the owner of the business or vessel or an
authorized representative of the owner.
B. "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.
C. "Certificated Charter" shall mean any vessel inspected by the United
States Coast Guard under Title 46 of the Code of Federal Regulations and
which has been chartered for consideration.
D. "Chartered for consideration" shall mean a 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.
E. "City Manager" shall mean the City Manager of the City of Newport Beach,
or his or her respective designee.
F. "Commercial activity" shall mean any service, trade, business or
occupation carried on, for which any monetary or other valuable
consideration is received, or for the purpose of profit.
G. "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.
H. "Harbor Resources Manager" shall mean the Harbor Resources Manager
of the City of Newport Beach, or his or her designee.
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"Newport Harbor' or "on the waters of Newport Harbor" shall mean all
waters within the corporate limits of the City of Newport Beach and within
which the tide ebbs and flows, whether or not the ordinary or mean high
tide 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.
J. "Non- profit organization" shall mean an entity designated as tax exempt by
the Internal Revenue Service or the State Franchise Tax Board.
K. "Operator' shall mean the person who operates or who has charge of the
navigation or use of a vessel.
L. "Passenger' shall mean every person, other than the master 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.
M. "Person" shall mean an individual, proprietorship, firm, partnership, joint
venture, syndicate, business trust, company, corporation, association,
committee or any other organization or group of persons acting in concert.
N. "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 17.24.
O. "Risk Manager" shall mean the Risk Manager of the City of Newport
Beach, or his or her designee.
P. "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.
Q. "Sport fishing charter' shall mean a vessel chartered solely for sport
fishing outside of Newport Harbor.
R. "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.
S. "Vessel" shall mean every description of watercraft or other contrivance
capable of being used as a means of transportation or lodging on water,
but does not include aircraft.
Section 17.10.020 Permit for Commercial Activities in Newport Harbor
Required.
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A. No person shall operate any charter on the waters of Newport Harbor
without first obtaining a commercial harbor activities permit pursuant to
this chapter.
B. No person shall schedule, arrange, or coordinate the operation of a
bareboat charter or certificated charter on the waters of Newport Harbor
without first obtaining a commercial harbor activities permit pursuant to
this chapter.
C. No person who owns a certificated vessel (a vessel inspected by the
United States Coast Guard pursuant to Title 46 of the Code of Federal
Regulations) shall permit or allow the use of the vessel as a certificated
charter on the waters of Newport Harbor without first obtaining a permit
pursuant to this chapter.
D. No person shall operate a bareboat charter or certificated charter on the
waters on Newport Harbor without having a valid permit on board the
vessel at all times during the charter.
E. No owner of a vessel shall permit that vessel to be used as a bareboat
charter on the waters of Newport Harbor unless a valid permit has been
issued for the bareboat charter.
F. No person shall engage in, or conduct, any commercial activity on
Newport Harbor, unless that person has obtained a permit for such activity
pursuant to the provisions of this chapter.
Section 17.10.025 Exemptions.
The requirements of this chapter are not applicable to the following:
A. Commercial fishing vessels and sports fishing charters traversing on the
waters of Newport Harbor to engage in commercial fishing or other
operations outside of Newport Harbor;
B. A person operating a single vessel as a commercial activity or charter for
consideration with six or fewer passengers.
C. Businesses operating pursuant to a franchise or lease agreement with the
City of Newport Beach.
D. Vessels exempted by this section shall not be used for office purposes
unless such use is specifically authorized via a permit issued pursuant to
this chapter.
E. Commercial activities operating pursuant to a permit issued by the Army
Corp of Engineers, or a Special Events Permit or Commercial Film Permit
issued by the City of Newport Beach.
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Section 17.10.030 Application for Permit.
An application for permit under this chapter shall be filed with the Harbor
Resources Manager, upon forms provided by the City, and shall contain such
information established by Council Policy, and that which the Harbor Commission
or Harbor Resources Manager may require.
Section 17.10.040 Filing Fee.
An application or renewal of an application for a commercial harbor activities
permit shall be accompanied by the fee established by resolution of the City
Council.
Section 17.10.050 Issuance of Permit.
Upon receipt of a complete application for commercial harbor activities permit,
the Harbor Resources Manager shall investigate the information contained in the
application. The Harbor Resources Manager may refer the application to the
Planning Department, Harbor Commission, Planning Department and other
appropriate City departments, or to the Orange County Sheriffs Harbor Patrol for
investigation, report or recommendation. The Harbor Resources Manager may
inspect, or cause to be inspected, the vessel(s), marine sanitation device(s) of
the vessel(s), boarding facilities, parking and all upland support facilities listed in
the application. The Harbor Resources Director shall notify applicant of his
decision in writing within ninety (90) days from the date on which a completed
application is received.
Except as provided in this section, the Harbor Resources Manager may issue the
commercial activities permit upon a determination that approval of the application
will not adversely affect the health, safety or welfare of those who use, enjoy, or
own property near Newport Harbor.
The Harbor Resources Manager shall approve the application unless
A. The proposed commercial activity is likely to create noise which would
adversely affect use or enjoyment of the waters of Newport Harbor by
members of the public, or interfere with the rights of those who own
property near the waters of Newport Harbor to the peaceful and quiet
enjoyment of that property;
B. The proposed commercial activity is likely to contribute to the problem of
pollution and litter on and in the waters of Newport Harbor;
C. The vessel or craft to be used by the applicant does not satisfy the
applicable standards of the United States Coast Guard, or City, County,
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State or Federal requirements of law;
D. The proposed commercial activity is likely, when viewed in conjunction
with other anticipated charters and marine operations, to create a hazard
to safe navigation , or otherwise interfere with the rights of others to use
the waters of Newport Harbor;
E. The proposed commercial activity does not provide facilities to ensure
adequate parking as required by Chapter 20.66, safe vehicular ingress
and egress, and the safe loading and unloading of passengers and
supplies for the period subject to permit. For the purpose of this section,
parking shall be considered adequate if the applicable parking
requirements of Chapter 20.66 are satisfied;
F. The commercial activity would violate City, County, State or Federal
requirements of law;
G. The applicant has misrepresented material facts in the application;
H. The proposed commercial activity does not provide uplands support,
docking or boarding facilities sufficient to safely accommodate the size of
vessel(s) or number of passengers indicated on the application;
I. The proposed commercial activity includes an upland use that requires a
use permit or other approval under the City Zoning Code, and such permit
has not been obtained;
J. The applicant has a permit which is currently revoked or has been revoked
or suspended, or a notice of revocation or suspension no longer subject to
appeal has been issued within the past ninety (90) days.
Section 17.10.070 Power to Impose Conditions; Hold Harmless.
A. In granting any permit pursuant to this chapter, the Harbor Resources
Manager, or the Harbor Commission on appeal, may impose any
additional conditions on the permit to ensure that the proposed
commercial activity will be compatible with the predominantly recreational
character of Newport Harbor, the rights of other persons using Newport
Harbor, the interests of residents and property owners whose properties
abut or are in close proximity to Newport Harbor, and the interests of the
general public. Any such permit shall contain a provision stating that the
permittee shall defend, indemnify and hold the City, the County of Orange,
and the Orange County Harbor District harmless from any claim for
damages, penalties or fines arising out of the exercise of the permit; or the
activities of the permittee carried on under the authority of such permit.
The Harbor Resources Manager or Harbor Commission, on approval or
review, shall have the power to impose new conditions or modify existing
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conditions with regard to any permit issued pursuant to this chapter upon
a determination that the operations by permittee, in the absence of the
new or modified conditions, does adversely impact the health, safety or
welfare of those who use, enjoy and own property near Newport Harbor.
B. All permits issued pursuant to this chapter are subject to the following
standard conditions:
1. Adequate off - street parking shall be provided for all passengers or
patrons of the commercial harbor activity;
2. No passenger loading or unloading is to occur at any fuel dock,
residential dock or public dock;
3. Passengers transported to or from the commercial harbor activity
shall not be picked up from, or unloaded on, City streets unless
specifically approved by the Harbor Resources Manager;
4. All passengers and provisions shall be loaded and unloaded only
from docks or piers where the abutting uplands property is
commercially- zoned, unless specifically approved by the Harbor
Resources Manager;
6. Music and sound from the vessel shall be controlled so as not to
disturb a person of normal sensitivity at a point one hundred (100)
feet from the hull of the vessel;
7. Music, live entertainment, and all forms of amplified sound are
prohibited after ten p.m.;
8. Air horns, whistles, bells, and other noisemaking equipment shall
not be used, except as required by Coast Guard regulations;
9. All trash and litter generated by the charter shall be properly
disposed of in a private trash receptacle;
10. All vessels shall operate within main navigational channels, as far
from shore as practical, and the route of travel must be at least one
hundred (100) feet from any residence unless specifically approved
by the Harbor Resources Manager;
11. All vessels equipped with marine sanitation devices shall comply
with United States Coast Guard requirements in the use of
approved holding tanks for raw sewage, and dye tablets shall be
installed in holding tanks during the operation of the commercial
harbor activity as required by the Harbor Resources Manager;
12. All Federal, State, County and City statutes, rules, ordinances, laws
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and regulations shall be obeyed;
13. All required insurance shall be maintained in full force and effect for
the full term of the permit.
Section 17.10.075 Insurance
Businesses operating on the Harbor with a permit issued pursuant to this chapter
shall maintain and provide to the City proof of insurance covering its operation,
with such policy limits and coverage as established by the City Risk Manager.
Proof of insurance must clearly identify the activities and /or vessels covered.
Section 17.10.080 Duration of Permit.
Unless otherwise specified, a permit issued pursuant to this chapter shall be valid
for twelve (12) months from the date of issuance, unless terminated or revoked
prior. The Harbor Resources Manager may issue a permit for a shorter duration,
provided the applicant meets all the requirements of this chapter for the duration
of the period remitted.
Section 17.10.085 Enforcement, Right of Entry
A. Enforcement. It shall be the duty of the Harbor Resources Manager and
his or her designee(s) to enforce each and all of the provisions of this title,
and the Chief of Police shall render such assistance in its enforcement as
may be required from time to time by the Harbor Resources Manager.
B. Right of Entry. The Harbor Resources Manager and each and all of his
assistants and any police officer or City employee whose job includes the
enforcement of this chapter, shall have the power and authority to enter,
free of charge, and at any reasonable time, any place of business or
vessel subject to the requirements of this chapter.
Section 17.10.090 Suspension / Revocation.
Any permit granted pursuant to the provisions of this chapter may be suspended
or revoked, by the Harbor Resources Manager, in whole or in part, upon fifteen
days prior written notice to permittee, directing the permittee to appear at the
time, date and place specified in the notice to show cause why the permit shall
not be suspended or revoked. The notice shall specify the reasons for the
proposed action. A permit may be suspended or revoked on any of the following
grounds:
A. That the permit holder has made a misrepresentation as to any material
fact set forth in the application;
B. For violation of any law, rule, condition of permit or regulation of the United
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States, the United States Coast Guard, the State of California, the City of
Newport Beach, or the County of Orange relating to the commercial
activities authorized by any permit issued pursuant to this chapter,
C. That the commercial activities of permittee adversely affect the health,
safety or welfare of those who use, enjoy or own property near the water
of Newport Harbor;
D. That the commercial activities of permittee fall within the criteria for denial
of an application, as set forth in Section 17.10.050;
E. The permittee has discharged or has permitted or allowed any other
person on a vessel operating under the permit to discharge any human or
animal excreta from any head, toilet, holding tank or similar facility into the
waters of Newport Harbor.
Section 17.10.095 Appeal.
Appeals of any decision of the Harbor Resources Manager shall be made in
accordance with Chapter 17.42.
Section 17.10.100 Transfer of Permit.
No permit issued pursuant to the provisions of this chapter shall be transferable
either by assignment, sale, hypothecation, operation of law or otherwise without
permission of the Harbor Commission having first been obtained. Application for
transfer of any permit shall be subject to the same terms, conditions and
requirements as an application for an original permit. In approving the transfer of
any existing permit, the Harbor Commission may impose such conditions as it
may determine are in the public interest.
Section 17.10.110 Licenses and Fees not Exclusive.
Fees and permits required by this chapter shall be in addition to any license,
permit or fee required under any other chapter of this Code or any other provision
of law.
Section 17.10.120 Application to Existing Commercial Activities.
The commercial activities of those holding valid permits issued pursuant to
Chapter 17.41 prior to the effective date of this ordinance may be continued to
the extent authorized by the permit, provided, the previously approved
commercial activity shall not be increased, or expanded beyond the activities,
conducted as of the effective date of this ordinance. The holder of an issued
permit issued under Chapter 17.41 and prior to the effective date of this
Ordinance, shall be deemed to meet the requirements of Chapter 17.10 for
renewal unless the Harbor Resources Director or the Harbor Commission
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determines there is a substantial change in the commercial activity. A substantial
change may include, but is not limited to the following:
A. An increase in or expansion of the operational characteristics of the
commercial activity.
B. Change in the vessel(s) authorized to operate under the terms of the
permit, which change results in an increase in size or capacity of the
vessel.
C. Change in the maximum number of patrons or passengers authorized to
participate in the commercial harbor activity on an authorized vessel.
D. Change in the approved off - street parking agreement(s), or loss of parking
provided prior to the effective date of this ordinance.
E. Change in the physical condition of the dock, gangway or pilings that
would compromise the safety of the patrons or passengers.
F. Change in the location where the vessel(s) is berthed and /or loads and
unloads patrons or passengers and /or provisions for the commercial
activity.
G. Change in the approved routes of travel.
H. Failure to correct a violation of the standard conditions imposed pursuant
to Section 17.10.070 B.
SECTION 3: That 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 to more sections, subsections, sentences, clauses and
phrases be declared unconstitutional.
SECTION 4: 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 within fifteen (15) days after its adoption.
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This Ordinance was introduced at a regular meeting of the City Council of the Cit
�
of Newport Beach held on the 24"' day of January, 2006, and adopted on the 14
day of February, 2006, by the following vote, to-wit:
WWI
City Clerk
AYES, COUNCILMEMBERS Curry, Selich, Rosansky,
Ridgeway, Daigle, Nichols, Mayor Webb
NOES,COUNCILMEMBERS None
ABSENT, COUNCILMEMBERS None
MAYOR
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STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LaVonne M. Harkless, 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. 2006 -3 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 14th day
of February 2006, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Curry, Selich, Rosansky, Ridgeway, Daigle, Nichols, Mayor Webb
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 15th day of February 2006.
(Seal)
GL-
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2006 -3 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 date, to wit: February 18, 2006.
In witness whereof, I have hereunto subscribed my name this day of ?°
2006. a l ®�
City Clerk
City of Newport Beach, California