Meeting Date: 12/16/25 Grant File Number: 09-02 Staff: B. Johnson J. Plovnick | Staff Report 105 SUMMARY: At the August 21, 2025 Commission meeting, staff presented their draft Report on the City of Newport Beach's Public Trust Lands Management (Item 66, August 21, 2025). This report was prepared to provide information on the Commission's jurisdiction over Newport Beach tidelands and to present a draft version of staff's findings and recommendations regarding limited topics related to the City's mooring permit and residential pier permit programs in response to concerns expressed by staff and members of the public. The draft report was made available for public review and comment in advance of the August 21, 2025 Commission meeting, and staff accepted public comment on the report through October 31, 2025. Staff have continued to receive comments related to the draft report into December and have continued to review these comments as they have been received.
The attached Report on the City of Newport Beach's Public Trust Lands Management is the final version of staff's report and presents staff's final findings and recommendations after public input. Also attached are staff's responses to public comments. The final report also includes an additional section with staff's responses to public comments. Comments received after the public comment period could not be incorporated into the report's formal responses; however, the late comments reiterated points already raised during the comment period and have been addressed in responses to earlier comments or within the final report itself.
COMMISSION JURISDICTION IN NEWPORT BAY The Legislature granted the state's sovereign lands in Newport Bay to the City of
n addressed in responses to earlier comments or within the final report itself.
COMMISSION JURISDICTION IN NEWPORT BAY The Legislature granted the state's sovereign lands in Newport Bay to the City of Newport Beach (The City) in 1919, and amended the grant several times, with the operative grant being Chapter 74, Statutes of 1978, as amended. The City is responsible for managing its legislatively granted lands and has discretion in Revised 12/11/25 1 Staff Report 105 (continued) managing these granted lands within the guidelines of the grant statutes, the Public Trust Doctrine, and the California Constitution.
When the state grants sovereign lands, those lands remain “subject to the oversight authority of the state by and through the State Lands Commission." (Cal Pub.
Resources Code, § 6009, subd. (d).) The Commission has “[a]ll jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made." (Cal Pub. Resources Code, § 6301.)
The City's grant contains specific provisions regarding Commission oversight. It directs the Commission to, “from time to time, recommend to the Legislature such amendments as it may determine to be necessary in the terms and conditions of this act” and also, "from time to time, institute a formal inquiry to determine that the terms and conditions of this act, and amendments thereto, have been complied with in good faith." If the Commission determines that any "transaction or condition" is "in probable conflict with this act [the grant statute] or with any other provision of law,” it must report to the Legislature, which may direct the Attorney General to bring litigation to revoke the grant or compel compliance. Additionally,
grant statute] or with any other provision of law,” it must report to the Legislature, which may direct the Attorney General to bring litigation to revoke the grant or compel compliance. Additionally, after holding a publicly noticed hearing “at which the city has been given an opportunity to express fully any disagreement with the Commission's findings or to describe any extenuating circumstances causing the violation," the Commission may formally request the Attorney General to bring litigation against the City to resolve a grant violation.”(Chapter 74, Statutes of 1978, section 1, subds. (o)-(q).)
Ultimately, the Commission's residual oversight authority over the City's granted lands is limited to reviewing the City's actions for consistency with the Public Trust Doctrine, the California Constitution, and the grant statutes. The operative grant provides the Commission with specific remedies to address instances in which the City violates its grant statutes or other provisions of law. However, the Commission is not authorized to impose its own discretionary decisions on the City, contrary to the misunderstanding of many recent commentors. When the City is acting within the bounds of the law, it has discretion to make its own policy decisions on the management of its granted lands.
STAFF REVIEW OF CITY ACTIONS In January 2024, City of Newport Beach staff and members of the City's Harbor Commission requested that Commission staff review the City's most recent appraisal of fair market rent for its offshore mooring permits.
Revised 12/11/25 2 Staff Report 105 (continued) In April 2024, Commission staff sent a letter to City of Newport Beach staff which concluded that, while there were some areas of the appraisal that could be
ed 12/11/25 2 Staff Report 105 (continued) In April 2024, Commission staff sent a letter to City of Newport Beach staff which concluded that, while there were some areas of the appraisal that could be clarified or revised, the appraisal was generally reasonable and the City could rely on it for setting mooring rates. Staff encouraged the City to phase in the rate increases and commented that the City needs to review its residential pier rates as well. The recommendation to review residential pier rates was made with full understanding that piers and independent mooring buoys are not equivalent uses within the grant, and this recommendation did not imply that they are, nor that they would be if they were under the Commission's direct leasing authority.
In July 2024, City staff presented new mooring permit rates to the City Council. City staff also presented an alternate proposal that contemplated an alternative to raising mooring rates for all existing permittees while maintaining the existing program which allows permittees to transfer their permits by selling them on the private market. The alternate proposal provided that current mooring permit holders would be able to maintain the current rates, but the private transfer of mooring permits would be restricted to a single transfer within a limited time, with the permits eventually transitioning to the City's license program following such a transfer. This license program prohibits private transfers of moorings and utilizes rates based on an earlier City appraisal that Commission staff did not formally review, but whose methodology and approach was similar to the appraisal staff did formally review. The City approved City staff's alternate proposal on July 9, 2024.
Commission staff did not formally review, but whose methodology and approach was similar to the appraisal staff did formally review. The City approved City staff's alternate proposal on July 9, 2024.
On July 22, 2024, Commission staff sent a letter asking the City to delay the second reading of the ordinance with the alternate proposal so that Commission staff could conduct a management review of the City's granted lands and present it to the Commission.
REPORT ON THE CITY OF NEWPORT BEACH'S PUBLIC Trust Lands MANAGEMENT: As mentioned above, staff released a draft Report on the City of Newport Beach's Public Trust Lands Management for public review and comment in advance of the August 21, 2025 Commission meeting (Item 66, August 21, 2025).
Following review of the public comments received, staff has now prepared a final report titled Report on the City of Newport Beach's Public Trust Lands Management, attached as Exhibit A. This report is focused on the City's discretionary actions regarding both mooring permits and residential pier permits and how the City explained its discretionary actions, considering its legal obligations to act as the State's trustee, or whether it did so at all. When City Revised 12/11/25 3 Staff Report 105 (continued) actions appear to conflict with its legal obligations to the state, this report identifies the potential legal violations so that the City may review its management and provide responses and make corrections as needed. Taking into account public input, staff added a section discussing residential pier subleasing to the final report and made minor changes to several other sections. Staff has also prepared responses to public comments, attached as Exhibit D. The final report also includes responses to public comments.
final report and made minor changes to several other sections. Staff has also prepared responses to public comments, attached as Exhibit D. The final report also includes responses to public comments.
THE REPORT'S CONCLUSIONS AND RECOMMENDATIONS Mooring Permit Program • • • The appraisal that staff reviewed did not violate generally accepted appraisal principles and, as such, the City can reasonably rely on it to set rates for mooring permits.
Staff is supportive of the City pursuing programs that can address mooring affordability and would be happy to assist the City in navigating the legal issues involved in implementing such programs.
The private sale of mooring permits allowed by the City's transfer policy appears to violate the City's grant statutes, fiduciary obligations to the State, and the Public Trust Doctrine.
Residential Pier Program Residential pier rates appear significantly below market rates, and the City's rental area calculations do not reflect the extent of private use of public tidelands. The City should review its residential pier rental rates and how rental areas are calculated.
The City should investigate residential pier subleasing in Newport Bay, evaluate its existing policies regarding residential pier subleasing, ensure that the Tidelands fund is being appropriately compensated for residential pier subleasing profits, and explore how to more effectively track and enforce residential pier subleasing restrictions.
Overall Tidelands Management • There are clear differences in rate revision methodologies for mooring permits and residential piers. The trend for mooring permit rates has been to use regular appraisals to reflect market conditions, which is generally appropriate; the trend Revised 12/11/25 4 • • Staff Report 105 (continued)
piers. The trend for mooring permit rates has been to use regular appraisals to reflect market conditions, which is generally appropriate; the trend Revised 12/11/25 4 • • Staff Report 105 (continued) for residential pier permits has been to reduce the overall rent amount through reductions of lease area and lowering of rates without conducting new or updated appraisals. The decisions relating to residential piers appear to be political in nature and may violate both the granting statute and the California Constitution. Moving forward, the City should change this practice and follow consistent valuation methodologies, applied at the same time interval, for both mooring permits and residential piers.
The City should review the action it adopted on July 9, 2024, to ensure this action provides a fair solution that addresses the topics discussed in the report.
Overall, when reviewing the City's actions over the last several decades, it is evident that the City has not adequately explained how its granted lands management decisions related to their mooring and residential pier programs comply with the City's obligations as the State's trustee under the granting statute.
Staff intends that the analysis and recommendations in this report provide guidance for how the City should review and revise its residential pier and mooring programs, and how to analyze additional issues even if they are not directly or comprehensively discussed in the report.
RESPONSE TO PUBLIC COMMENT: As mentioned above, staff has prepared responses to public comments the final report includes responses to public comments. In reviewing these comments, it is apparent that commentor's concerns fall generally into several topics. Brief responses to each of these topics are as follows:
includes responses to public comments. In reviewing these comments, it is apparent that commentor's concerns fall generally into several topics. Brief responses to each of these topics are as follows: 1. Existing and proposed rate differences between mooring buoys and piers reflect discrimination in the City's management of Public Trust lands.
a. Staff agrees that mooring permit rates and residential pier permit rates have been managed differently by the City. As detailed above, the City has regularly reappraised its mooring permit rates, but not its residential pier permit rates. Furthermore, the City does not include an impact area – the area expected to be occupied by docked boats – in its rent calculations. As a result, rent for residential pier permits appears significantly below fair market rent, both because the rates have not been reappraised and because the City does not include an impact area. As explained in the report, staff recommends the City comprehensively review its residential pier permit Revised 12/11/25 5 Staff Report 105 (continued) program, including obtaining a new appraisal to set fair market rates, reevaluating how rental areas are calculated (i.e., to include an impact area), and establishing a schedule to regularly reappraise both the residential piers permits and the mooring permits.
Staff does not agree that different rates charged for residential piers and mooring permits qualifies as rate discrimination per the granting statute.
Section 1, subdivision (d) of the granting statute states, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection
d control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith." Staff interprets this provision as prohibiting different rates for different users of the same use. An example of such discrimination would be charging a different rate for the same use (e.g., use of a mooring buoy) between residents and non-residents. Staff does not agree that residential piers and mooring buoys are the same use subject to the same market conditions. As such, staff does not conclude that the "rates, tolls, and charges" must be the same for residential piers and mooring buoys, nor that charging different rates for these uses constitutes discrimination.
2. The City's 2023 appraisals should not be used in setting mooring permit rates.
a. Staff reviewed the City's December 2023 appraisal and determined that relying on it does not violate the grant or any part of California law. This conclusion is based on the fact that the methodologies and analysis within the appraisal are reasonable and do not violate established appraisal practices. This is not to say that other appraisals which arrive at different rates could not also be reasonable. Every appraisal is based on an appraiser's personal experience and expert opinion, and thus different appraisals often arrive at different conclusions. Nevertheless, even if staff determined that another appraisal is also reasonable, the Commission does not have the authority to mandate that the City use it; the Commission can only require that the City act within the guidelines of the grant statutes, the Public Trust Doctrine, and the California Constitution. Staff has concluded that the City
ity use it; the Commission can only require that the City act within the guidelines of the grant statutes, the Public Trust Doctrine, and the California Constitution. Staff has concluded that the City may rely on the 2023 appraisal because it fits within these guidelines.
3. Findings and concerns in the 2006 – 2007 Orange County Grand Jury Report regarding mooring permit transfers were previously addressed and, thus, permit transfers are no longer of concern and references should not be made to the 2007 Grand Jury Report.
Revised 12/11/25 6 Staff Report 105 (continued) a. The 2006 – 2007 Grand Jury Report provides a useful summary of issues involved in private mooring permit transfers. Furthermore, this report demonstrates that the City has been aware of potential legal issues with the mooring transfer program since at least 2007. Staff does not rely on the Grand Jury Report's conclusions to make their own conclusions and recommendations. Additionally, whether the City did, or did not, attempt to address the Grand Jury Report's concerns does not affect staff's analysis of the current mooring transfer program. Staff is aware that, in 2017, the City adopted revisions to the mooring permit program after collaboration with the Newport Mooring Association and other mooring permit holders. Staff's report discusses the 2017 modifications beginning on page 23 of the report. Staff does not agree that the 2017 changes address concerns about private mooring permit transfers, and staff has concluded that allowing private mooring permit transfers still appears to violate the City's grant statute and other legal and fiduciary duties.
4. Increasing mooring permit rates or allowing the City to adopt the mooring
ng private mooring permit transfers still appears to violate the City's grant statute and other legal and fiduciary duties.
4. Increasing mooring permit rates or allowing the City to adopt the mooring license program proposed at the July 2024 City Council meeting would result in mooring permits no longer being affordable and would remove the only lowcost mooring option in Newport Bay.
a. Staff understands that raising mooring permit rates will pose difficulties for some current mooring permittees. As the City changes mooring rates to reflect fair market value, staff is supportive of using a phased approach, or other methods, that could attenuate the immediate financial impact to current mooring permittees. However, staff does not agree that the current mooring permit program provides low-cost access to the Bay. While the current program has arguably lower annual rates, it also requires that any new permittee purchase a permit on the private transfer market, with a 40foot mooring permit selling for an average of $40,000 to $60,000. The requirement for a $40,000 up-front payment is a significant financial barrier and precludes a large segment of the general public from obtaining a mooring permit. Thus, for most people, a mooring permit is not affordable.
Staff is supportive of the City pursuing programs that can address mooring affordability. Staff would be happy to assist the City with navigating the legal issues involved in implementing a subsidized, low-cost mooring program that is consistent with the City's grant and the California Constitution if the City wishes to do so. At a high level, such a program would need to be carefully developed with respect to determining who is eligible for the subsidized rates, Revised 12/11/25 7 Staff Report 105 (continued)
hes to do so. At a high level, such a program would need to be carefully developed with respect to determining who is eligible for the subsidized rates, Revised 12/11/25 7 Staff Report 105 (continued) the term length for the subsidized permits, and other issues, and would need to ensure that the program provides broad public access to the City's Public Trust lands instead of simply subsidizing rates for a select group.
5. The existing transfer program includes particularly high transfer fees and these fees provide significant compensation to the Tidelands fund.
a. Regardless of how much revenue the transfer fees might generate, revenue generation does not justify or excuse actions or programs that are legal violations. Additionally, staff does not agree that the permit transfer fees are particularly high or result in significant revenues for the City's Tidelands fund.
The transfer fee is 75 percent of the mooring permit's annual rent, which equates to approximately $1,200 for a 40-foot mooring. In comparison, the same 40-foot mooring permit sells for $40,000 - $60,000 on the private transfer market. According to City records, in 2024 the City received $72,678 in revenue from mooring permit transfer fees, while $2,536,200 was paid to private parties for mooring permits sold on the private market. The revenue received by the City in 2024 was approximately 2.87 percent of what was paid to private parties for permit transfers and, in staff's opinion, does not represent a significant source of revenue to the Tidelands fund. The large disparity between revenue the City receives from transfer fees and the total value of mooring permit sales is one of the indicators that the mooring transfer program violates the City's obligations under its grant statute and
the City receives from transfer fees and the total value of mooring permit sales is one of the indicators that the mooring transfer program violates the City's obligations under its grant statute and fiduciary duties, and could be an unconstitutional gift of public funds.
6. Mooring permittees do not profit from selling their mooring permits, especially when considering their initial investment in purchasing the permit and costs involved in maintaining the mooring tackle.
a. According to a recent analysis performed by the City, mooring permit sales for which the City has records have resulted in sellers collecting $715,275.77 in total profit with an average profit margin of 52 percent since 2017. However, even if this analysis is disregarded and it is assumed that permittees are not making a net profit when selling their mooring permit, this does not mean that they are not profiting from their use of the City's Public Trust lands. A net profit is not necessary to implicate the concerns contained in the Report. Even simply defraying costs that would otherwise be borne by the permittees represents a subsidized use of publicly owned property for private use and supports staff's conclusions in the Report.
Revised 12/11/25 8 Staff Report 105 (continued) Furthermore, the transfer sales also represent a cost that the City itself cannot impose or control, and the City cannot allow third parties to impose costs that the City cannot. In other words, if the City were to require an additional $40,000 payment for a mooring, staff would object that this payment violates the grant due to it being unsupported by an appraisal and unconnected to the use of public lands itself. This would remain true even if the payment was considered a deposit that would be returned when the permit was
o it being unsupported by an appraisal and unconnected to the use of public lands itself. This would remain true even if the payment was considered a deposit that would be returned when the permit was relinquished; there would still be no basis for the City to require that deposit.
Ultimately, the City cannot allow private parties to create profit, either net or through defrayed costs, by imposing costs it could not impose itself. Doing so violates the City's obligations under its grant statute and could be an unconstitutional gift of public funds in violation of the California Constitution.
7. The Report should discuss liveaboards in Newport Bay.
a. The Report does not discuss the legal issues surrounding liveaboards. In general, liveaboard use is inconsistent with the Public Trust Doctrine, although there are some cases where the Commission allows a limited number of liveaboards when the use supports another Public Trust-consistent use, such as providing security services in a marina. Nevertheless, even if liveaboard use was consistent with the Public Trust Doctrine, the City has discretion to choose between competing Public Trust uses. Therefore, even if liveaboards were entirely consistent with the Public Trust Doctrine (which as explained, they are not), the City could decide to not allow liveaboard use in favor of increasing the quantity of moorings for solely recreational use.
8. The Report should discuss additional topics, like Yacht Club leases, commercial leases, and the transfer programs of other grantees.
a. In the Introduction, the Report states, "There are other topics that have been raised in public comments that are not discussed in this report, or which could be addressed more comprehensively. However, staff believe that the
Report states, "There are other topics that have been raised in public comments that are not discussed in this report, or which could be addressed more comprehensively. However, staff believe that the analysis and recommendations in this report will provide guidance for how the City should investigate additional issues related to its granted lands management even if such issues are not directly or comprehensively discussed in this report." Likewise, the Report and its recommendations are specific to the City of Newport Beach's tidelands management. If other grantees have similar circumstances, then this report can also be used to guide their analysis. There is no way to create a comprehensive report covering all the potential issues in a single grantee's portfolio or across the Revised 12/11/25 9 Staff Report 105 (continued) state's 80-plus grantees. Staff will continue to collaborate with the City and with other grantees to address additional issues as needed.
NEXT STEPS: Staff proposes to transmit the Report on the City of Newport Beach's Public Trust Lands Management to the City, and request updates from the City on its progress in addressing the issues raised in the Report. If staff determines that the City is failing to address the issues raised, staff can return to the Commission with a request to find the City in violation of its grant. Under the City's granting statute, that will trigger a formal hearing requirement where the City can dispute the finding or present any mitigating circumstances. If the Commission finds that the City is in violation of its grant, the Commission may formally request that the Attorney General's Office bring litigation against the City to resolve the violation. Staff can
ommission finds that the City is in violation of its grant, the Commission may formally request that the Attorney General's Office bring litigation against the City to resolve the violation. Staff can also report the violation to the Legislature and recommend that the Legislature modify or revoke the grant.
OTHER PERTINENT INFORMATION: Transmitting a report, coordinating with the City to provide the Commission with an update, and instituting a formal hearing are not projects as defined by the California Environmental Quality Act because they are administrative actions that will not result in direct or indirect physical changes in the environment.
Authority: Public Resources Code section 21065 and California Code of Regulations, title 14, sections 15060, subdivision (c)(3), and 15378, subdivision (b)(5).
EXHIBITS: A. Report on the City of Newport Beach's Public Trust Lands Management B. Redline Copy of Report on the City of Newport Beach's Public Trust Lands Management C. Public Comment Letters D. Staff's Responses to Public Comments Revised 12/11/25 10 110 Staff Report 105 (continued) RECOMMENDATION It is recommended that the Commission: 1. Direct staff to transmit the Report on the City of Newport Beach's Public Trust Lands Management to the City.
2. Direct staff to coordinate with the City and provide the Commission with an update regarding the City's progress addressing problems identified in the report within 6 months (adjusted as needed for the Commission's meeting schedule).
3. Delegate authority to the Executive Officer or their designee to recommend that the Commission institute a formal hearing pursuant to Chapter 74, Statutes of 1978, as amended, if staff determines that the City's progress in addressing its
ficer or their designee to recommend that the Commission institute a formal hearing pursuant to Chapter 74, Statutes of 1978, as amended, if staff determines that the City's progress in addressing its Public Trust Lands management issues has been insufficient within 12 months.
4. Delegate authority to the Executive Officer or their designee to recommend that such a formal hearing be deferred to a later date, or indefinitely, if the City's progress is sufficient, or if staff determines that the City has made a good faith effort to address its Public Trust Lands management issues but needs more time to resolve said issues.
Revised 12/11/25 11 Exhibit A Report on the City of Newport Beach's Public Trust Lands Management Table of Contents Introduction .........
Background Residential Pier Rates Background Analysis.
Recommendation......
Mooring Permit Rates.
3 3 Background Analysis Recommendation.........
Residential Pier and Mooring Permit Comparison Analysis.
Recommendation........
Mooring Permit Transfers...
Background Analysis.
Recommendation..........
Residential Pier Subleases Background Analysis.
Recommendation.........
The Mooring License Program and the City's July 9, 2024 Action.......
Analysis.
Recommendation........
Conclusion.......
8 8 10 14 15 15 17 19 20 20 22 23 23 24 29 30 30 30 30 32 33 34 35 2 Introduction This report summarizes and comments on the City of Newport Beach's management of tide and submerged lands in Newport Bay, which the Legislature granted to the City to manage on the state's behalf. Lands granted by the Legislature in this manner are often referred to as "granted lands." The report begins with a background of the State Lands Commission's role in overseeing
on the state's behalf. Lands granted by the Legislature in this manner are often referred to as "granted lands." The report begins with a background of the State Lands Commission's role in overseeing granted lands, including the legal requirements that are often implicated in granted lands management. It then summarizes and analyzes several main topics: pier lease rates, mooring permit rates, a comparison of pier and mooring rates, mooring permit transfers, and the City's mooring license program.
Staff focused on these topics for the report because they are the core issues staff identified when reviewing the City's granted lands management. There are other topics that have been raised in public comments that are not discussed in this report, or which could be addressed more comprehensively. However, staff believe that the analysis and recommendations in this report will provide guidance for how the City should investigate additional issues related to its granted lands management even if such issues are not directly or comprehensively discussed in this report.
Additionally, this report is focused on a review of the City's actions and staff reports, and does not go into detail regarding the public participation process connected to the City's actions, such as Harbor Commission outreach meetings or public comments. As discussed in more detail below, the Legislature entrusted the lands in Newport Bay to the City's discretion, and this report focuses on whether the City is exercising its discretion within the limits created by the California Constitution, the Public Trust Doctrine, and the City's grant statutes. This report is also focused on whether, and how, the City explained its discretionary actions considering their
y the California Constitution, the Public Trust Doctrine, and the City's grant statutes. This report is also focused on whether, and how, the City explained its discretionary actions considering their legal obligations to act as the State's trustee. When City actions appear to conflict with their legal obligations to the state, this report identifies the potential legal violations so that the City may review its management and either provide additional justifications or make corrections as needed.
Background In January 2024, City of Newport Beach staff and members of the City's Harbor Commission requested that Commission staff review an appraisal of fair market rent for the City's offshore mooring permits.¹ In April 2024, Commission staff sent a letter that concluded that while there were some areas that could be clarified or revised, the appraisal was generally reasonable and 1 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, to Reid Boggiano, Granted Lands Program Manager, State Lands Commission, January 23, 2024.
3 the City could rely on it for setting mooring rates.² Staff encouraged the City to phase in the rate increases and commented that the City should review its residential pier rates as well.3 In July 2024, City staff presented the new rates, based on the City's appraisal, to the City Council.ª City staff also presented an alternate proposal in which current mooring permit holders would be able to maintain their current rates but could only transfer the permit one more time. Upon transfer, the permit would be converted to the City's license program, which prohibits private transfers and which has rates based on an earlier City appraisal that
sfer the permit one more time. Upon transfer, the permit would be converted to the City's license program, which prohibits private transfers and which has rates based on an earlier City appraisal that Commission staff did not review, but that provided rates similar to the appraisal reviewed by staff. The City approved staff's alternate proposal.
On July 22, 2024, Commission staff sent a letter asking the City to delay the second reading of the ordinance with the alternate proposal so that Commission staff could conduct a management review of the City's granted lands and present it to the Commissioners.5 In the letter, staff expressed its concern that the City was not comprehensively reviewing rates, resulting in inequitable treatment between mooring permittees and residential pier lessees.6 Staff noted that it agreed with the City's effort to end the private transfer market for mooring permits.” The City agreed to delay the second reading of the ordinance.
8 On August 12, 2024, staff sent a letter to the City providing an overview of its review of the pier and mooring rental rates and requesting information from the City. The letter explained that Commission staff will “evaluate whether the City's administration of these programs adheres to the City's obligations under its statutory trust grant, California Constitution, and the Public Trust Doctrine. The goal is to ensure that all user groups are treated equitably and that all rates reflect fair rental value." The letter stated that Commission staff would review: • • A history of the City's management of residential pier leases and mooring permits from 2006 to the present The City's mooring permit transfer policies 2 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to
residential pier leases and mooring permits from 2006 to the present The City's mooring permit transfer policies 2 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
3 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
4 Agenda Item No. 13, July 9, 2024.
5 Letter from Jennifer Lucchesi, Executive Office, State Lands Commission, to Grace K. Leung, City Manager, City of Newport Beach, July 22, 2024.
6 The City refers to the residential pier leases as "permits." This report uses "leases" for clarity.
7 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
8 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, August 12, 2024.
4 The rates charged for the residential pier leases and mooring permits • The frequency of rate reassessment • The basis for rate revisions ● The current terms and conditions imposed on residential pier leases and mooring permits A history of the City's modifications to these terms and conditions, including those in response to the 2006-2007 Grand Jury Report A comparison between how the City manages its residential pier leases and its mooring permits The City manages Newport Bay on behalf of the State, and for the benefit of all Californians.
The State of California acquired tide and submerged lands and beds of navigable waterways
mooring permits The City manages Newport Bay on behalf of the State, and for the benefit of all Californians.
The State of California acquired tide and submerged lands and beds of navigable waterways when it was admitted to the Union in 1850.9 These lands are often referred to as "sovereign lands." Under the Public Trust Doctrine, the State holds these lands as the trustee for the people to ensure the lands are devoted to uses to which they are uniquely suited. 10 These lands must be used for statewide, as opposed to purely local purposes, and must be used for Public Trust purposes, which include commerce, navigation, fishing, water-oriented recreation, environmental protection, and open space, among other uses. 11 The State Lands Commission is responsible for managing these lands. 12 The Legislature can grant sovereign lands to local governments through legislation, referred to as "grant statutes."¹³ In those cases, the ownership of the sovereign land transfers to the local government, which must use the lands under the conditions described in the grant statutes and subject to the Public Trust Doctrine. 14 These lands are often referred to as "granted lands."
When the state grants sovereign lands, those lands remain "subject to the oversight authority of the state by and through the State Lands Commission."15 The State Lands Commission has "[a]ll jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made."16 The Legislature transferred ownership of the tidelands and submerged lands in Newport Bay to the City, subject to the terms and conditions contained in the granting statute. The Legislature 9 City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521.
s and submerged lands in Newport Bay to the City, subject to the terms and conditions contained in the granting statute. The Legislature 9 City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521.
10 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434.
11 Marks v. Whitney (1971) 6 Cal.3d 251, 259.
12 Cal Pub. Resources Code, § 6301.
13 City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 615.
14 Pub. Resources Code, § 6009, subd. (c), City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 616.
15 Cal Pub. Resources Code, § 6009, subd. (d).
16 Cal Pub. Resources Code, § 6301.
5 first granted these lands to the City of Newport Beach in 1919 and modified that original grant with additional legislation a number of times. In 1978, the Legislature repealed the previous grants and replaced them with the operative grant, and has since amended this grant several times.¹ 17 The City is responsible for managing its legislatively granted lands and has discretion to determine how it manages the granted lands, as long as it stays within its grant statutes, the Public Trust Doctrine, and the California Constitution. 18 The City's grant contains specific provisions authorizing State Lands Commission oversight. It directs the Commission to, "from time to time, recommend to the Legislature such amendments as it may determine to be necessary in the terms and conditions of this act" 19 and also, "from time to time, institute a formal inquiry to determine that the terms and conditions of this act, and amendments thereto, have been complied with in good faith."20 If the Commission determines that any "transaction or condition" is "in probable conflict with this act [the grant statute] or with any other provision
ereto, have been complied with in good faith."20 If the Commission determines that any "transaction or condition" is "in probable conflict with this act [the grant statute] or with any other provision of law," it must report to the Legislature, which may direct the Attorney General to bring litigation to revoke the grant or compel compliance. 21 Additionally, after holding a publicly noticed hearing "at which the city has been given an opportunity to express fully any disagreement with the commission's findings or to describe any extenuating circumstances causing the violation," the Commission may formally request the Attorney General to bring litigation against the City to resolve a grant violation. 22 The State Lands Commission Reviews the City's Management of the Granted Lands for Abuse of Discretion.
The State Lands Commission retains residual oversight authority to review a grantee's actions for consistency with the Public Trust Doctrine, the California Constitution, its grant statutes, and its fiduciary duties to the State. The City, as the State's trustee, has discretion to choose between competing uses and set its own management policies for the granted lands, provided that it is acting with the bounds of the law. The Commission does not have authority to impose its own discretionary decisions on grantees.
California Constitution Article XVI, Section 6 of the California Constitution prohibits the State and local governments from making "any gift or authorize the making of any gift, of any public money or thing of 17 Chapter 74, Statutes of 1978, as amended [City Grant]. A list of the grant statutes is available at the Commission's website.
18 City of Long Beach v. Morse (1947) 31 Cal.2d 254, 262.
19 City Grant, § 1(0).
20 O City Grant, § 1(p).
s amended [City Grant]. A list of the grant statutes is available at the Commission's website.
18 City of Long Beach v. Morse (1947) 31 Cal.2d 254, 262.
19 City Grant, § 1(0).
20 O City Grant, § 1(p).
21 City Grant, § 1(q).
22 City Grant, § 1(q).
6 value."23 If a local agency uses granted tidelands, or money derived from the granted tidelands, in a manner that does not further the purposes of the grant, it is a gift of public property in violation of California Constitution. 24 If a local agency gifts the use of public property without appropriate payment or a compensating public purpose, that is also an unconstitutional gift.
For example, a public agency leasing a building at a nominal rate and allowing the lessee to sublease for a profit would be unconstitutional. 25 Public Trust Doctrine The Public Trust Doctrine applies to the State's submerged lands, tidelands, and lands underneath navigable rivers and lakes. 26 The Public Trust Doctrine, in brief, prohibits the sale or permanent alienation of these lands and requires they be used for the purposes to which they are uniquely suited: navigation, fishing, waterborne commerce, scientific study, and open space, with the caveat that these uses may change to reflect changing public needs and values.27 It has been described as "an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust."28 When the Legislature granted tidelands and submerged lands to the City, the City took those lands subject to the Public Trust Doctrine.29 Grant Statute
is consistent with the purposes of the trust."28 When the Legislature granted tidelands and submerged lands to the City, the City took those lands subject to the Public Trust Doctrine.29 Grant Statute The City's grant statute contains, among other things, a requirement that granted lands be used "for purposes in which there is a general statewide interest," including a "public harbor" and "recreational facilities open to the general public.”30 The grant also requires that, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith."
"31 23 Cal. Const., art. XVI, § 6.
24 Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 210.
25 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a YMCA was not a gift because the YMCA fulfilled a public purpose and gained no monetary benefit from the lease].
26 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434.
27 People ex inf. Webb v. California Fish Co. (1913) 166 Cal. 576, 597, Marks v. Whitney (1971) 6 Cal.3d 251, 259–260.
28 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441 29 Cal Pub. Resources Code, § 6009, subd. (d), see, e.g., Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1178.
30 Ch. 74, Statutes of 1978, as amended, Section 1, subd. (a)(1), (2).
31 Ch. 74, Statutes of 1978, as amended, Section 1(d).
7 The City has a legal obligation to comply with the terms of the grant, which requires that they act in the statewide best interest, "without subjugation of statewide interests, concerns, or
on 1(d).
7 The City has a legal obligation to comply with the terms of the grant, which requires that they act in the statewide best interest, "without subjugation of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises.”32 Fiduciary Duties The City's grant also creates a trust relationship between the state and the City. “The state acts both as the trustor and the representative of the beneficiaries, who are all of the people of this state, with regard to public trust lands, and a grantee of public trust lands, including tidelands and submerged lands, acts as a trustee, with the granted tidelands and submerged lands as the corpus of the trust."33 The City, as the grantee, has fiduciary obligations as the state's trustee, which are listed in Public Resources Code section 6009.1. The fiduciary duties include, but are not limited to, "the duty to administer the trust solely in the interest of the beneficiaries," "the duty to act impartially in managing the trust property,”35 and "the duty to not use or deal with trust property for the trustee's own profit or for any other purpose unconnected with the trust, and to not take part in a transaction in which the trustee has an interest adverse to the beneficiaries."
" 36 "34 Residential Pier Rates Background Before 2012, all residential pier leases within the City of Newport Beach's grant were charged a flat $100 annual permit fee, which did not consider the size or location of the pier. However, at a November 28, 2012 Special Meeting the City Council considered requiring rent for the residential pier leases. The staff report explained that while the granting statute, referred to as
. However, at a November 28, 2012 Special Meeting the City Council considered requiring rent for the residential pier leases. The staff report explained that while the granting statute, referred to as the Beacon Bay Bill, required charging fair market rent, the City had followed the State Lands Commission's practice of not charging rent for residential piers. But the State Lands Commission's practice changed, effective January 1, 2012, when Public Resources Code section 6305.5 was amended to require the Commission to charge fair rental value for residential piers.
City staff reasoned, "Because the City is a trustee of the State in regard to tidelands property, the City should comport its actions to that of the State and charge fair market value rent for the use of tidelands by residential piers." The staff report further concluded that "the City can no 32 Cal Pub. Resources Code, § 6009, subd. (d).
33 Pub. Resources Code, § 6009.1, subd. (b).
34 Pub. Resources Code, § 6009.1, subd. (c)(5).
35 Pub. Resources Code, § 6009.1, subd. (c)(6).
36 Pub. Resources Code, § 6009.1, subd. (c)(7).
80 longer justify an exemption for rental charges based upon the policy of the State and must now charge fair market rent for residential piers located over City tidelands."37 The City commissioned two appraisers, Mr. Netzer and Mr. Rasmussen, to appraise the piers for rental purposes and they arrived at rental rates of $0.55 and $0.50 per square foot, respectively. The Committee recommended calculating rent “not over the entirely of the tidelands outside of a residential property but to the tidelands that are both used and useable for docks, gangways, and vessels." The Committee recommended using an average of the
the entirely of the tidelands outside of a residential property but to the tidelands that are both used and useable for docks, gangways, and vessels." The Committee recommended using an average of the appraised rental values to arrive at a rate of $0.525 per square foot for rent.
38 At a December 11, 2012 Special Meeting, the City Council adopted the Committee's recommended pier rent of $0.525 per square foot, with 2 percent CPI escalations. The City's Municipal Code was also amended to allow residential pier owners to rent out their piers, in which case they would pay commercial rates ($1.26 per square foot). The staff report does not explain why the City decided to allow the private renting of residential piers, only noting that the changes were "a result of the feedback from the Council and the public at the November 28th 2012 Special meeting."39 The next year, at a November 12, 2013 Study Session regarding implementation of the new charges, the City Council "looked back" over the various changes to tidelands to see if a decision for one type of use should be modified based on decisions on other uses.40 At the Study Session, staff recommended that the area considered for rent calculation be “(1) Footprint of the pier, gangway and float over City tidelands; (2) Interior of the U-shaped float; and (3) Buffer area of 10' around the float, except the backside." Rent would be reduced by 50 percent for the interior of a U-shaped pier and the 10-foot buffer area. There is extensive documentation of the public comments received at previous workshops, but no explanation for why staff made the recommendations it did except that they were based on comments received.41 At the November 26, 2013 City Council meeting, the City Council considered modifications to
xplanation for why staff made the recommendations it did except that they were based on comments received.41 At the November 26, 2013 City Council meeting, the City Council considered modifications to the pier lease program. Staff recommended that the City charge rent based on the footprint of the pier, including the interior of a U-shaped pier, but without a perimeter or buffer area. The staff report includes a chart comparing staff's proposed approach to the State Lands Commission's approach, but does not explain why this recommendation was made, except to indicate that staff was directed by the City Council at the previous Study Session after the 37 Agenda Item No. 1, November 28, 2012, at pg. 4.; when there are successive sentences paraphrasing a City staff report, for readability, a citation will be provided at the end of the summary or at the end of the paragraph.
38 Agenda Item No. 1, November 28, 2012, 39 Agenda Item No. 1, December 11, 2012.
40 Agenda Item SS2, November 12, 2013.
41 See Item No. SS2, staff PowerPoint; discussion in Agenda Item No. 2, November 26, 2013.
9 Council considered public comments and staff recommendations. The City Council approved staff's recommended modifications as part of its consent calendar.4 42 A little over a year later, at a January 27, 2015 Study Session, City staff presented an overview of other jurisdictions' residential pier setting methods, and asked for direction on whether the City Council wanted staff to present changes, including whether to include the gangway or the area in the interior of a “U” shaped dock as part of the rent calculations, and whether to adjust rental rates. The City Council directed staff to return with a revised residential pier permit,
or the area in the interior of a “U” shaped dock as part of the rent calculations, and whether to adjust rental rates. The City Council directed staff to return with a revised residential pier permit, including a revised fair market rental fee, an adjusted pier footprint, and to contact State Lands Commission staff regarding the proposed changes.
43 On February 10, 2015, City staff proposed reducing the rental rate to $0.50 per square foot, the value concluded in Mr. Rasmuson's appraisal, from the $0.525 rate that was determined by averaging Mr. Rasmuson's appraisal with Mr. Netzer's appraisal. The staff report does not explain why this lower rate was a better reflection of fair market rent.44 The staff report also recommended that the City not charge rent for the interior space of a "U" shaped pier, saying that the approach was consistent with the footprint for piers that did not have a "U" shape. The staff report states that City staff contacted State Lands Commission staff, and that Commission staff were not opposed to the $0.50 rate but noted that the Commission included the interior of the “U” shape piers in its rental calculations because it still constituted private use of the property. The staff report concludes that "the decision to include or exclude the interior of the U-shape of a slip is left to the discretion of the City Council. As to whether the SLC will deem our actions (especially relating to the water in the U) as contrary to our responsibilities under the Tidelands Trust, that is unknown."45 At the meeting, an Assistant City Attorney stated that the Commission "desires that the City charge for the u-shaped dock, but the decision to charge for it is ultimately the City Council's decision." Some Council members
sistant City Attorney stated that the Commission "desires that the City charge for the u-shaped dock, but the decision to charge for it is ultimately the City Council's decision." Some Council members explained that because the water was public and the pier lease did not allow the lessee to exclude the public from the water, they did not agree with charging rent for the pier owners to use it. The City Council approved reducing the residential rental rate and the pier footprint.46 Analysis Comparison to Commission Rates The Commission leases private recreational facilities such as docks, piers, and moorings on State sovereign tidelands and submerged lands. These facilities offer many of the same 42 Approved Minutes, November 26, 2013.
43 Agenda Item SS3, January 27, 2015, staff PowerPoint presentation ; see discussion in Agenda Item No. 16, February 10, 2015.
44 Agenda Item No. 16, February 10, 2015, 45 Agenda Item No. 16, February 10, 2015.
46 Approved Minutes, February 10, 2015.
10 10 amenities as a commercial marina, such as a place for the docking and mooring of boats and the loading and unloading of passengers and equipment. Thus, these privately owned facilities represent a substitute for a commercial marina berth or mooring. Accordingly, the Commission's method of estimating a fair rental value for improvements used for the docking and mooring of boats is centered on the principle of substitution, which bases the rental rate on what an individual would pay for a similar substitute site in a commercial marina.
To determine a rental rate for docking and mooring facilities on sovereign lands, Commission staff surveys local marinas to determine their rental rates. Generally, marinas rent berths on a
al marina.
To determine a rental rate for docking and mooring facilities on sovereign lands, Commission staff surveys local marinas to determine their rental rates. Generally, marinas rent berths on a per-linear-foot basis, based on the length of the berth or vessel. Commission staff determines average values for both rates and berth sizes based on the data obtained from the surveyed marinas. The average rate is then multiplied by the average berth size to determine gross annual income. The Commission then uses a 5 percent rate of return on this annual income to represent a comparable fair market compensation rate for the use of State sovereign land. The subsequent value is then converted to a per-square-foot value by using data from the Department of Boating and Waterways (DBW) publication Guidelines for Marina Berthing Facilities. This per-square-foot rate can then be applied to the area occupied and impacted by improvements and uses on State lands.
Using this methodology and the survey data from Newport Beach marinas collected by Commission staff for the 2022 Southern California Benchmark update, a per-square-foot value for Newport Beach recreational pier facilities could be determined as follows: 11 Table 1: 2022 CSLC SoCal Benchmark Data Marina No. of Name Slips Occupancy Rate Occupied Avg. Berth Avg. Berth Slips Length Rate/ft Balboa Yacht 172 100.00% 172 36 $35.95 Basin Bayside Village 124 100.00% 124 28 $34.38 Marina Lido Marina 28 100.00% 28 56 $65.86 Village Newport Dunes Resort 405 97.04% 393 30 $48.52 and Marina Averages 182.25 99.26% N/A 37.5 $46.18 Annual Gross % of Gross Per Sq. Ft. Rate Table 2: Rent Setting Calculations 38(rounded avg. berth length) x $46.18 x 12 months = $21,058.08 $21,058.08 x 5% of gross income = $1,052.90
N/A 37.5 $46.18 Annual Gross % of Gross Per Sq. Ft. Rate Table 2: Rent Setting Calculations 38(rounded avg. berth length) x $46.18 x 12 months = $21,058.08 $21,058.08 x 5% of gross income = $1,052.90 $1,052.90/1197.1 sq. ft. (from DBW data) = $0.88 The above rent setting calculations can also be applied to the average monthly slip rent determined by the City's appraisal ($50.55 per linear foot) to arrive at a per-square-foot value for Newport Beach recreational pier facilities as follows: Table 3: CLSC Rent Setting Calculations Using Average Slip Rate From City's Appraisal Annual Gross 38 (rounded avg. berth length) x $50.55 x 12 months = $23,050.80 % of Gross Per Sq. Ft. Rate $23,050.80 x 5% of gross income = $1,152.54 $1,152.54/1197.1 sq. ft. (from DBW table) = $0.96 Staff is not suggesting that the City must use the above numbers – which are only rough calculations or that other approaches to valuation are not reasonable. But using the Commission's benchmark approach, it appears that the $0.58 per square foot currently charged 12 for residential piers is significantly below market rate, and fair rental value may be as much as double the current rate.47 Lease Area Commission staff calculates the lease area for which rent is assessed on piers and docks in a different manner than the City. The City only assesses rent for the square footage of tidelands occupied by a pier or dock (the "area of occupation"). In contrast, Commission staff includes an "impact area" in addition to the area of occupation when calculating rent. The impact area is an additional area, beyond the physical footprint of a structure, on which a lessee seeks authorization to conduct activities. In the case of piers or docks, the impact area is generally a
act area is an additional area, beyond the physical footprint of a structure, on which a lessee seeks authorization to conduct activities. In the case of piers or docks, the impact area is generally a nine-foot-wide area where a vessel could be expected to dock, or the area within a "slip" for piers or docks that are "U" shaped and where vessels are docked along the interior of the "U".
The impact area is assessed rent as this area is a key component of a pier's utility and because the pier-owner enjoys an exclusive right over the public in these areas. Because lessees anticipate a right to access and moor their vessel at their pier at any time, without obstruction from members of the public, they receive a preferential right to the impact area and effectively remove it from public use. Thus, rent is charged for this area.
The City previously included impact areas (also called “buffer areas"). In 2012, it charged rent for up to a 10 foot area if it was usable by a boat. 48 In 2013, the City removed the buffer area but still included the interior of a "U"-shaped dock, though at a lower rate. 49 The 2013 staff report does not explain why removal of the buffer area was recommended. In 2015, the City removed the interior of the "U"-shaped docks and again did not explain why, only noting that "whether the SLC will deem our actions (especially relating to the water in the "U") as contrary to our responsibilities under the Tidelands Trust, that is unknown."50 According to City staff, the City's current lease area methodology (i.e. excluding the interior of "U" shaped piers or any impact area) results in residential pier rental areas ranging from 23 to 4,025 square feet, with an average area of 1,116 square feet. Correspondingly, residential pier
rior of "U" shaped piers or any impact area) results in residential pier rental areas ranging from 23 to 4,025 square feet, with an average area of 1,116 square feet. Correspondingly, residential pier annual fees range from $13.29 to $2,334.31, with an average rent of $893.02 per year. 51 47 City's Schedule of Rents, Fines, and Fees. Pier rent is increased by the lesser of CPI or 2% annually per Resolution 2015-10.
48 See Agenda Item No. 1, November 28, 2012.
49 See Agenda Item No. 3, November 26, 2013.
50 Approved Minutes, February 10, 2015.
51 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach to Jeff Plovnick, Granted Lands Specialist, State Lands Commission, October 7, 2025.
13 The low rates and lease area calculations may violate the California Constitution Article XVI, Section 6 of the California Constitution prohibits gifts of public funds.52 Leasing below fair market rates is an example of an unconstitutional gift. 53 The low rates for residential piers may be an unconstitutional gift of public funds. Additionally, if the City is not using an appropriate lease area to calculate rent in order to reduce overall rental rates, that may also be an unconstitutional gift.
The low rates and lease area calculations may violate the City's grant statute and fiduciary duties.
The City has a legal obligation “to manage the state's tidelands and submerged lands consistent with the terms and obligations of their grants and the public trust, without subjugation of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises.”54 The City has the duty to administer the trust solely in the interest of
tion of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises.”54 The City has the duty to administer the trust solely in the interest of the beneficiaries 55; the duty to act impartially in managing the trust property 56; and the duty to not use or deal with trust property for the trustee's own profit or for any other purpose unconnected with the trust, and to not take part in a transaction in which the trustee has an interest adverse to the beneficiaries. 57 During the rental area reduction and rate reduction decisions, the City did not explain how those actions were consistent with their obligations as the State's trustee. Without that explanation, the City's approach could be interpreted as providing benefits for City residents at the expense of the City's trust funds, which violates its grant statute and its fiduciary duties to the state.
Recommendation The City should immediately appraise its residential pier leases and update their rates. The City should also reevaluate its residential pier rent area calculations to determine whether they are adequately compensating the City, as the State's trustee, for private uses of the granted property.
52 Cal. Const., art. XVI, § 6.
53 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a YMCA was not a gift because the YMCA fulfilled a public purpose and gained no monetary benefit from the lease].
54 Pub. Resources Code, § 6009, subd. (d).
55 Pub. Resources Code, § 6009.1, subd. (c)(5).
56 Pub. Resources Code, § 6009.1, subd. (c)(6).
57 Pub. Resources Code, § 6009.1, subd. (c)(7).
14 Mooring Permit Rates Background In 2007, the Orange County Grand Jury published a report highlighting issues with Newport
de, § 6009.1, subd. (c)(6).
57 Pub. Resources Code, § 6009.1, subd. (c)(7).
14 Mooring Permit Rates Background In 2007, the Orange County Grand Jury published a report highlighting issues with Newport Beach's management of its mooring permits. In particular, the Grand Jury made the following finding and recommendation: • F-4. The last assessment of the fair market value of mooring permit fees took place almost ten years ago.
• R-6. Establish a regularly scheduled independent appraisal for the fair market value of mooring permit fees, e.g., based on a percentage of the cost of a slip.58 In response to the Grand Jury's findings, the City Council approved increased mooring rates at its November 23, 2010 Meeting. The City Council increased mooring rates, which were to be gradually increased until they reached an annual rate of 14 percent of the Newport Harbor Marina Index. The staff report stated, "In the opinion of the City, the Beacon Bay Bill and the California Constitution (Article XVI, Section 6) obligates the City to charge appropriate and nondiscriminatory rates for the use of tidelands, without conferring a benefit to private individuals for the use of public property in violation of the California Constitution's prohibition on gifts of public funds." The staff report stated that the mooring permit rates had not changed since 1996, and that the rates were now about 5 percent of the cost that a boater would pay for a slip or berth. City staff recommended that the rates be increased, over a 5-year period, to roughly 14 percent of an average of low- to moderately-priced marina berthing rates in Newport Harbor. This 14 percent rate was based on the Newport Harbor Marina Index, which
over a 5-year period, to roughly 14 percent of an average of low- to moderately-priced marina berthing rates in Newport Harbor. This 14 percent rate was based on the Newport Harbor Marina Index, which compiled marina rates in Newport Bay and authorized staff to adjust the marinas selected. The Staff report explained that the 14 percent rate included a downward adjustment to account for the fact that mooring permittees in Newport Bay owned their own tackle. It also explained that Newport had not done an appraisal of the moorings, and asserted an appraisal was not required, contrary to the findings of the Grand Jury.
59 In January 2015, the City Council directed the Harbor Commission to study the mooring rates and other related mooring issues and return with recommendations.60 On June 16, 2015, the City Council considered the Harbor Commission's recommendations, which included setting a mooring rental rate of $25 per foot, per year, with a CPI adjustment, and did not recommend an appraisal. The $25 per-foot rate was derived by increasing the $6 per-foot rate charged in 58 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?" Finding F-4, Recommendation R-6.
59 Agenda Item No. 19, November 23, 2010; see 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?”, Finding F4, Recommendation R-6.
60 Agenda Item No. 19, January 27, 2015.
15 1976 based on CPI to the present day. The City Council considered the Harbor Commission's recommendations but directed staff to conduct an appraisal to set mooring permit rates.6 On January 26, 2016, the City Council considered new mooring rates based on an appraisal. In
arbor Commission's recommendations but directed staff to conduct an appraisal to set mooring permit rates.6 On January 26, 2016, the City Council considered new mooring rates based on an appraisal. In the staff report, City staff described that they had spoken with State Lands Commission staff who “expressed two recommendations regarding the City's mooring proposal: (1) the SLC recommended the City provide, in no uncertain terms, that the mooring permits do not convey a real property interest in the underlying tidelands; and (2) the SLC recommended the City obtain a current appraisal to assist with the establishment of fair market value mooring rental rates." City staff retained Netzer and Associates to conduct an appraisal, and the appraisal concluded that fair market rent was a range of annual rent of $32.00 to $38.00 per linear foot for offshore moorings, and $16.00 to $19.00 for onshore moorings. Staff recommended an annual rate of $35.00 per linear foot for offshore moorings and $17.50 per linear foot for onshore moorings, meaning a monthly rate of $2.91 and $1.46 respectively, with CPI adjustments.62 At the meeting, State Lands Commission staff submitted a letter stating that the appraisal "lacks important supporting discussion and analysis in a number of areas, which may affect the determination of fair market rent," included a list of initial questions on the appraisal, and requested that the City delay a vote so staff could perform a more detailed analysis. 63 The City included responses to the questions from Mr. Netzer, who concluded, “Overall, the questions appear to be concerned with the amount of explanation included in the report, rather than the analysis and the conclusions presented. . . . On the basis of the comments and the above, I
the questions appear to be concerned with the amount of explanation included in the report, rather than the analysis and the conclusions presented. . . . On the basis of the comments and the above, I believe my analysis and conclusions are well supported and reliable and I see no reason to rethink the analysis or amend my report.”
.”
64 The City did not delay the vote and adopted its staff's recommendation.65 The City's resolution also authorized the City to conduct an appraisal to set new rates after March 1, 2018, and every 5 years thereafter.66 In 2023, the City of Newport Beach hired Netzer & Associates to conduct an appraisal to determine updated fair market values for mooring rates. The appraisal used several approaches: a "Tidelands Market Rent" that was based on upland land values; a “Comparable Rentals Approach" that surveyed other marinas that rent moorings and then adjusted the rates based on location and utilities; a "Ratio Analysis" that surveyed marina slip rates and compared 61 Agenda Item No. 1, June 16, 2015.
62 Agenda Item No. 20, January 26, 2016.
63 3 See Letter from Sheri Pemberton, Chief, External Affairs Division, State Lands Commission, to Mayor Dixen and Councilmembers, City of Newport Beach, January 25, 2016, available at Agenda Item No. 20 Correspondence, at p. 25.
64 Letter from James B. Netzer, MAI, to Chris Miller, Harbor Manager, City of Newport Beach, January 26, 2016, available at Agenda Item No. 20 Correspondence, at p. 31.
65 Approved Minutes, January 26, 2016.
66 Resolution 2017-16, adopted January 26, 2016.
16 them to mooring rates to arrive at a ratio, then applied that ratio to Newport Bay marina slip rates to calculate mooring rates; and a “CPI Adjustment Approach” that applied a Consumer
ry 26, 2016.
16 them to mooring rates to arrive at a ratio, then applied that ratio to Newport Bay marina slip rates to calculate mooring rates; and a “CPI Adjustment Approach” that applied a Consumer Price Index adjustment to current mooring rates. The appraisal then reconciled the four approaches by reviewing their factual and conceptual basis, ultimately placing primary emphasis on the Comparable Rentals Approach and Ratio Analysis after concluding that the Tidelands Market Rent approach was artificially high because of increased upland values and the CPI Adjustment Approach did not capture long term market trends. The appraisal concluded that a "benchmark" fair market rate for the mooring permits is $16.00 per linear foot per month for a 40-foot mooring (the most common length mooring in the Harbor), increasing rent for a 40-foot mooring from $134 per month to $640 per month. 67 At City staff's request, State Lands Commission staff "reviewed the appraisal at a high level to determine whether [staff] believed the City could reasonably rely on its concluded fair market mooring rates."
.”
68 In a letter, staff concluded that "the City can reasonably rely on the appraisal's fair market rates. The City could also adopt different rates if additional information shows that the recommendations should be modified."69 At the Harbor Commission's April 10, 2024 meeting, it recommended that the City adopt rental rates equal to 24 percent of the Newport Harbor Marina Index, reduced from the 30 percent ratio used in the appraisal's Ratio Analysis to account for the costs of maintaining mooring tackle, and that these rates be phased-in over five and a half years. 70 This would result in an increase from the current rate of $3.35 per linear foot per month, to about $12.56 per linear
g mooring tackle, and that these rates be phased-in over five and a half years. 70 This would result in an increase from the current rate of $3.35 per linear foot per month, to about $12.56 per linear foot per month, increasing rent for a 40-foot mooring from $134 per month to $502 per month.71 Analysis Comparison to Commission rates Commission staff's methodology for determining mooring rent on State sovereign lands is a useful point of comparison when analyzing the City's rent setting methods. When determining a benchmark for mooring rent, Commission staff uses the principle of substitution in a similar manner as when setting a rental rate for piers or docks. As such, staff's method of determining a fair rental value for moorings is based on what an individual would pay for a similar 67 Netzer and Associates, "Appraisal Report: Fair Market Rent, Offshore Moorings, Newport Beach, California,” December 26, 2023.
68 ³ Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach April 9, 2024.
69 Letter from Reid Boggiano Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
70 Approved Minutes, Harbor Commission, April 10, 2024.
71 See Agenda Item No. 13, July 9, 2024.
17 accommodation in a commercial marina. To derive a rental benchmark using this methodology, staff surveys local area marinas to determine mooring rental rates and the number of moorings rented. These moorings are generally rented on a monthly or annual basis with rents based on the general size of a moored vessel (e.g. one rate for vessels 40 feet or less, and a different rate
orings rented. These moorings are generally rented on a monthly or annual basis with rents based on the general size of a moored vessel (e.g. one rate for vessels 40 feet or less, and a different rate for vessels over 40 feet). Staff then utilizes the collected data to calculate the average annual gross income these marinas derive from mooring rentals. Once the average annual gross income is calculated, staff applies a 5 percent rate of return to represent a comparable fair market compensation rate for the use of State sovereign land. The resulting value is then used as the annual rent for moorings on sovereign land in the subject location.
In comparison, the City's appraisal used a variety of valuation methods but ultimately placed primary emphasis on the Comparable Rentals Approach and Ratio Analysis. The Comparable Rentals Approach is similar to the Commission's approach, but differs in that it surveyed marinas from locations all along the California coast instead of only local marinas. The rates collected from the surveyed marinas were then broken down into a per-linear-foot rate and adjusted based on the relative difference in the average monthly slip rent between Newport Harbor and the surveyed marinas. This provided an adjusted, per-linear-foot mooring rate that accounts for the relative difference in mooring costs between locations (similar to a cost-ofliving adjustment). Of note, the City's appraisal does not apply a 5 percent rate of return.
Instead, the appraisal uses the adjusted, per-linear-foot rate to arrive at a "benchmark" for the City's moorings of $16 to $18 per month.
The Ratio Analysis utilized a different methodology from the Commission's approach and is based on the premise that both moorings and slips are options available to mariners for
$16 to $18 per month.
The Ratio Analysis utilized a different methodology from the Commission's approach and is based on the premise that both moorings and slips are options available to mariners for mooring a vessel and that their relative costs can be calculated as a ratio of one to the other.
For the Ratio Analysis, marinas from various locations along the California coast were surveyed to determine the monthly per-linear-foot rates for both moorings and slips at each marina. This data was then used to calculate a “ratio,” or percentage, for mooring rates as compared to slip rates. For example, if a marina charges a monthly rate of $50 per linear foot for a 40-foot slip and $10 per linear foot for a 40-foot mooring, then the ratio for the mooring rate would be calculated as: $10/$50 = 0.20 (i.e. the mooring rate is 20 percent of the slip rate).
The Ratio Analysis provided a ratio of mooring rates to slip rates equal to 30 percent and concluded that a "benchmark" fair market rent could be derived by applying this 30 percent ratio to the "average slip rate” in Newport Harbor. The appraisal then provided two options for "average slip rates,” one based on published slip fees for the Balboa Yacht Basin which is administered by the City through a third-party management company, and the other based on slip rates at comparable private marinas. By applying the 30 percent ratio to these "average slip rates," the Ratio Analysis provided a "benchmark" mooring rate of $14.60 to $15.17 per-linearfoot per month.
As the Comparable Rentals Approach and Ratio Analysis were given primary emphasis in the appraisal, these methodologies were ultimately used to arrive at a reconciled “benchmark” 18
rfoot per month.
As the Comparable Rentals Approach and Ratio Analysis were given primary emphasis in the appraisal, these methodologies were ultimately used to arrive at a reconciled “benchmark” 18 monthly mooring rate of $16 per linear foot. This benchmark was used as the rate for the most common mooring size of 40 feet, leading to an annual rate of $7,680 for a 40-foot mooring. The $16 benchmark rate was then tiered based on the vessel size that each mooring can accommodate. The resulting rates range from $10.50 per linear foot per month for a 25-foot mooring, to $23.25 per linear foot per month for a 95-foot mooring.
Staff concluded that the City could rely on the appraisal without violating the law.
As discussed in the introduction section above, Staff reviewed the City's December 2023 appraisal and concluded that the City could reasonably rely on it to set mooring rates. Staff's opinion has not changed. The Legislature granted Newport Bay to the City to manage in its discretion, and the Commission's role is to review whether the City is exercising that discretion within the bounds set by the Constitution, Public Trust Doctrine, and granting statute. The Commission does not have authority to dictate how the City exercises its discretion within those bounds. In this case, the appraisal does not violate generally accepted appraisal practices or methodologies and, as such, provides a reasonable basis for rental rates that are reflective of fair market value and therefore consistent with the Constitution, Public Trust Doctrine, and grant statutes.
Recommendation Staff recommends that the City continue using independent appraisals of fair market value, performed at regular intervals, to determine fair market mooring rates. As stated in
statutes.
Recommendation Staff recommends that the City continue using independent appraisals of fair market value, performed at regular intervals, to determine fair market mooring rates. As stated in Commission staff's April 9, 2024 letter to the City, the City may reasonably rely on the 2023 appraisal to set mooring permit rates. Staff understands that increasing the rates paid by current mooring permit holders to fair market values may create hardships, and is comfortable with the City phasing in the rate increase over time. Additionally, if the City wishes to explore adopting a program to provide a certain amount of reduced rate permits as part of a comprehensive program to provide equitable access to Newport Bay, staff will be happy to work with the City to determine how to implement that program in a way that is consistent with California Constitution and other legal requirements.
19 Residential Pier and Mooring Permit Comparison Analysis In broad strokes, the calculation of residential pier rates and mooring rates are both based on appraisals that rely on comparisons to marina rates. There are differences, however, in how the City conceptualizes the rental area calculations.
Residential pier leases use only the footprint of the pier to calculate rent; there are no impact areas to account for the area used by boats moored to the pier, and no inclusion of water areas made inaccessible by the pier, such as the interior portion of a "U"-shaped pier.72 Mooring permit rates are based on linear feet of the maximum vessel size the mooring can accommodate, with different rates charged based on the maximum vessel size. So, for example, the proposed rate for a 40-foot mooring is $16 per linear foot and the proposed rate for a 60-
mooring can accommodate, with different rates charged based on the maximum vessel size. So, for example, the proposed rate for a 40-foot mooring is $16 per linear foot and the proposed rate for a 60foot mooring is $21 per linear foot. Thus, a mooring that can accommodate up to a 40-foot vessel will be charged a monthly rate of $16 multiplied by 40 and a mooring that can accommodate a 60-foot vessel will be charged a monthly rate of $21 multiplied by 60, regardless of the actual length of the vessel associated with the mooring.
The mooring permit rate is based on the maximum length of the vessel and so is conceptually tied to the amount of space a moored vessel could occupy. The residential pier leases, on the other hand, are calculated only based on the physical footprint of the pier and do not include areas that could be occupied by vessels or areas that are rendered inaccessible to the public because of the pier, such as the interior of a "U"-shaped pier. The issues related to the residential pier rental rates and lease area calculations are analyzed above in more detail, but even if the methodology is supportable, there is a discrepancy when comparing pier rent calculations to mooring permit rent calculations. One group is being charged based on the vessel's occupation, and the other group is not.
When comparing the frequency of rate adjustments there also appears to be a difference in how the City has addressed mooring permit rates and pier rates. For the piers, the City first adopted rates based on an average of two different appraisals in 20127³; the City then adjusted buffer areas and rates in 201374; and in 2015 the City removed the buffer areas and reduced the rate to the lower of the two 2012 appraisals. 75 For moorings, the City raised rates in 2010
en adjusted buffer areas and rates in 201374; and in 2015 the City removed the buffer areas and reduced the rate to the lower of the two 2012 appraisals. 75 For moorings, the City raised rates in 2010 based on a percentage of a marina rate survey (the Marina Index) 76; in 2016 increased rates 72 Agenda Item No. 16, Feb 10 2015, attachment B.
73 Agenda Item No. 1, November 28, 2012.
74 Agenda Item No. 3, November 26, 2013.
75 Agenda Item No. 16, February 10, 2015.
76 Agenda Item No. 19, November 23, 2010.
20 20 based on an appraisal77; and proposed raising rates in 2024 based on another new appraisal, although that action has been paused.
79 78 For both the pier rates and the mooring rates, the City's resolutions contemplated new appraisals every 5 years. But, while the City has generally kept to that schedule for its mooring rates, it has been over 12 years since the City appraised its residential piers, and, as discussed above, the current residential pier rates appear to be significantly below fair market rates.
Viewing all this together, there appears to be a difference in how the City has managed its pier lease rates and its mooring permit rates. The trend for mooring rates has been to have regular appraisals to reflect market conditions; the trend for residential pier permits has been to reduce the overall rent amount through reductions of lease area and lowering of rates without conducting a new appraisal.
The City's discrepancy between residential pier and mooring permit rates may violate the grant statute and the City's fiduciary duties.
The City's Grant states, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no
iary duties.
The City's Grant states, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith."80 Commission staff interprets this provision to prohibit charging different rates for the same use - for example, a different mooring permit rate for residents and non-residents. Charging different rates for different types of uses is appropriate when the City can rationally explain the reason for the differences. In this case, is arguable whether residential pier leases and mooring permits are similar enough to require the same rental rate calculations by the Granting Statute's anti-discrimination clause. On the one hand, they both have the purpose of providing boat storage; on the other, they might reasonably use different approaches to calculating the amount of tidelands used or the value of that use.
Nevertheless, even if the anti-discrimination clause is not violated, the City has a fiduciary duty to act with care and impartiality, to act only in the interest of the beneficiaries - the statewide public, and not to act for any purposes unconnected to its trustee duties.81 The City appears to have treated its residential pier lessees, who are necessarily City residents, more favorably than its mooring permit holders. This could be interpreted as the City providing favorable treatment for its residents, especially when the City has not explained how its actions are consistent with 77 Agenda Item No. 20, January 26, 2016.
78 Agenda Item No. 13, July 9, 2024.
79 Resolution 2016-17, adopted January 26, 2016; Resolution 2012-120, adopted December 11, 2012.
80 City Grant section 1(d).
Agenda Item No. 20, January 26, 2016.
78 Agenda Item No. 13, July 9, 2024.
79 Resolution 2016-17, adopted January 26, 2016; Resolution 2012-120, adopted December 11, 2012.
80 City Grant section 1(d).
81 California Public Resources Code section 6009.1, subds. (c)(2), (6).
21 its obligations as the State's grantee. Even if this does not fit into the technical definition of discrimination in the City's Grant, this disparate treatment risks violating its fiduciary duties to the State.
Recommendation The City should comprehensively review its mooring permit conditions and residential pier lease conditions, including rental rates, rental area, method and frequency of rent revisions, potential for subleasing, and other terms, to ensure that both user groups are being treated equitably. When the City updates its residential pier lease rates, it should also establish a schedule to reappraise the residential pier rates and mooring rates at the same time, or at least on a regular schedule with the same intervals between reappraisals. Using an independent appraisal of fair market value, reappraised no less than every 5 years, is a reasonable, Trustconsistent approach to ensuring rates are at fair market value. Moorings and residential piers may use different calculation methods as long as each reflects fair market value and the reasoning supporting each approach is documented by the City.
22 22 Mooring Permit Transfers.
Background In the City's current mooring permit system, the mooring permit authorizes the permittee to occupy a mooring space located within the City's granted lands, and the permittee owns and is responsible for maintaining the mooring tackle (the tackle includes the buoys, chains, and
he permittee to occupy a mooring space located within the City's granted lands, and the permittee owns and is responsible for maintaining the mooring tackle (the tackle includes the buoys, chains, and anchors). Under this system, mooring permit holders are allowed to privately transfer their mooring permits. The ability to privately transfer mooring permits has led to a private market for these permits. According to the City, the prices for mooring permits within this market have ranged from $10,000 to $60,000.82 The Orange County Grand Jury Report criticized the City of Newport Beach for allowing this secondary market for mooring permits, making the following Finding and Recommendation: Finding F-1. Private profits are being made from the current procedures used in transferring the mooring permits located on the public tidelands in Newport Harbor.
Because the mooring equipment and the vessel currently assigned to that mooring must be sold to the same person, when a vessel on a mooring is sold, the new owner transfers that mooring permit into his or her name, rather than vacating the mooring and allowing the waiting list to proceed in order.
Recommendation R-1. Tighten the regulations and procedures involved with Newport Harbor mooring permits and their transfers to ensure that all monies received which rightly belong to the public, stay within the public arena. 83 In response to the Grand Jury Report, on November 23, 2010, the City limited mooring permit transfers to two transfers per permit before 2021. After two transfers, mooring permits would revert to City control and be redistributed through a public waiting list, except for transfers within families. The staff report explained, "The City took the Grand Jury's report seriously, and
would revert to City control and be redistributed through a public waiting list, except for transfers within families. The staff report explained, "The City took the Grand Jury's report seriously, and embarked with the City's Harbor Commission and NMA [Newport Mooring Association] on a plan to address transfers (but not rates)."84 But on March 28, 2017, the City reversed its phase-out of the private mooring transfers and allowed permits to be transferred indefinitely. The City also created an internet listing of sold moorings detailing the location, size, and sale price at the time of transfer, which staff explained "promotes transparency, and provides a central location for the public to review pricing trends which there assists with determining the fair market value for moorings.” The City's staff report did not discuss the Grand Jury report or the City's obligations under its grant 82 Agenda Item No. 19, November 23, 2010.
83 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?" Finding F-1, Recommendation R-1.
84 Agenda Item No. 19, November 23, 2010.
23 statute. The only discussion and basis for the change was that “[f]eedback from the mooring community suggests allowing transfers among private parties and rescinding the transfer-cap date."85 The City also abolished the wait list. The staff report explained, “Because moorings have been privately sold to third parties and were rarely returned to the City, the wait list virtually never moved over the decades. . . . Under the current policy and after 2020, the wait list, in theory, would begin to move as permittees would no longer be allowed to sell moorings to third parties
ly never moved over the decades. . . . Under the current policy and after 2020, the wait list, in theory, would begin to move as permittees would no longer be allowed to sell moorings to third parties and would instead be required to return them to the City. However, given the recommendation in No. 1, above, to allow unlimited transfers, the wait list will once again be ineffective and be a burden to maintain as well as providing false expectations to the public."86 Finally, the City increased the mooring transfer fee to 75 percent of annual mooring rent, up from 50 percent so the transfer fee for a 40-foot mooring increased from $708.60 to $1,062.90.87 Analysis The mooring permit transfer system has been in place for decades – from a time when moorings were not as in-demand as they are today, and a transfer system existed side by side with a public waitlist. Now, however, the transfer system has replaced the waitlist and is the only way to obtain a mooring permit. 88 The transfer program created a private market for permit sales, and the City reported sales ranging from $10,000 to $60,000.89 Because a transfer is the only way to obtain a mooring, there is effectively a required up-front payment dictated by private parties and benefiting those private parties.
The City collects a transfer fee of 75 percent of annual rent. This amount is not connected to the sale price of the mooring permit itself. In the 2017 staff report reauthorizing transfers, the City noted that some people sought a mooring permit through the waitlist solely to profit from a subsequent transfer sale. 90 The transfer program creates the potential for private parties to financially benefit from a private market for use of the City's granted lands - without the City's
from a subsequent transfer sale. 90 The transfer program creates the potential for private parties to financially benefit from a private market for use of the City's granted lands - without the City's trust funds being fairly compensated.
Private profit from the use of granted lands is not, by itself, a legal violation. For example, commercial businesses lease tidelands to profit from the use; local governments benefit financially from tourism driven by waterfront uses; and residential home values increase if they have adjacent private docks. The problem with the mooring transfer sales in Newport Bay is 85 Agenda Item No. 3, March 28, 2017.
86 Agenda Item No. 3, March 28, 2017.
87 Agenda Item No. 3, March 28, 2017.
88 Agenda Item No. 3, March 28, 2017.
89 Agenda Item No. 19, November 23, 2010.
90 Agenda Item No. 3, March 28, 2017.
24 24 that the mooring permits have been privately commodified by restricting public access, which allows individuals to dictate costs for access that are unrelated to the actual use of the tidelands and unregulated by the City. Undeniably, there is a potential for private profit without the City's tidelands fund being compensated. But even if an individual permit holder did not profit for their sale when compared to their own purchase price, the requirement that there be a private purchase is a barrier to access unrelated to the actual tidelands use and which does not benefit the City's trust fund.
Therefore, the private sale of mooring permits that is allowed by the City's transfer policy could be a violation of the City's grant statutes, fiduciary obligations to the State, and the public trust doctrine.
The City failed to consider its role as the State's trustee when rescinding the mooring permit transfer phase-out.
's grant statutes, fiduciary obligations to the State, and the public trust doctrine.
The City failed to consider its role as the State's trustee when rescinding the mooring permit transfer phase-out.
The concern with the mooring permit transfer market was brought to the City's attention in the 2006-2007 Grand Jury Report. Finding F-1 of that Report stated: "Private profits are being made from the current procedures used in transferring the mooring permits located on the public tidelands in Newport Harbor. Because the mooring equipment and the vessel currently assigned to that mooring must be sold to the same person, when a vessel on a mooring is sold, the new owner transfers that mooring permit into his or her name, rather than vacating the mooring and allowing the waiting list to proceed in order."
The report's recommendation R-1 was to "Tighten the regulations and procedures involved with Newport Harbor mooring permits and their transfers to ensure that all monies received which rightly belong to the public, stay within the public arena. " 91 When the City eliminated the transfers in 2010 (effective 2020), the City's ordinance stated that "When there is a great demand for moorings, a value is associated with a mooring permit well in excess of the annual permit fees. This value may be inappropriate in light of the California Constitution's prohibition against the gifting of public funds or assets as set forth in Article XVI, Section 6 of the state Constitution. This amendment to the mooring permit and transferability provisions... begins to bring the City's administration of moorings into compliance with Article XVI, Section 6."92 While prior to the Grand Jury report the City might have been unaware of the legal implications
.. begins to bring the City's administration of moorings into compliance with Article XVI, Section 6."92 While prior to the Grand Jury report the City might have been unaware of the legal implications of the transfer program, it was demonstrability aware of them when it began to phase out the 91 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?" Finding F-1, Recommendation R-1.
92 Ordinance No. 2010-26, adopted November 23, 2010.
25 transfers in 2010. The City should have been aware of those issues when it reversed its phaseout of the transfer program in 2017.
But when these transfer restrictions were rescinded in 2017, the City did not make any statements about the Grand Jury Report's conclusions, the identified conflict with Article XVI, Section 6, of the California constitution identified in the City ordinance, or the City's obligations under its Grant. The only reason given for the recommended changes in the staff report was that "[f]eedback from the mooring community suggests allowing transfers among private parties and rescinding the transfer-cap date.”
."
93 The official minutes of the meeting also do not reflect that any Councilmember or staff person raised the issue. 94 The City appears to have failed to consider its legal and fiduciary obligations as a Legislative grantee when making the decision to revert the transfer restrictions in 2017. The City's staff report does not contain any analysis of how the changes would, or would not, satisfy their obligations under their grant statute, and does not mention the Gift of Public Funds issue that, in 2010, was noted in the transfer restrictions. This failure means that the City could be
atisfy their obligations under their grant statute, and does not mention the Gift of Public Funds issue that, in 2010, was noted in the transfer restrictions. This failure means that the City could be violating the California Constitution, the Public Trust Doctrine, its Legislative Grant, and the fiduciary duties it owes to the State.
The City's transfer program may violate the California Constitution.
The City's transfer program appears to violate the Constitutional prohibition against gifts of public property. Article XVI, Section 6 of the California Constitution prohibits the State and local governments from making “any gift or authorize the making of any gift, of any public money or thing of value.”95 When local agencies manage tidelands under a grant from the Legislature and use these granted tidelands, or money derived from the granted tidelands, in a manner that does not further the purposes of the grant, it is a gift of public property in violation of the California Constitution.96 In 2010 the City estimated that the value of privately sold moorings ranged from $10,000 to $60,000.97 The City's mooring transfer log shows that in 2024 the average transfer price was $35,187.50 (when excluding off-market transfers such as family transfers, additions of a second permittee, and transfers associated with house sales). 98 The City charges a transfer fee of 75 percent of the annual mooring rent, which for a 40' mooring would result in a transfer fee of about $1,206. According to City records, in 2024 the City received $72,678 in revenue from mooring permit transfer fees, while $2,536,200 was paid to private parties for mooring permits 93 Agenda Item No. 3, March 28, 2017.
94 Approved Minutes, March 28, 2017.
95 5 Cal. Const., art. XVI, § 6.
oring permit transfer fees, while $2,536,200 was paid to private parties for mooring permits 93 Agenda Item No. 3, March 28, 2017.
94 Approved Minutes, March 28, 2017.
95 5 Cal. Const., art. XVI, § 6.
96 Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 210.
97 Agenda Item No. 19, November 23, 2010.
98 The City keeps a transfer log on its website.
26 sold on the private market. The revenue received by the City in 2024 was approximately 2.87 percent of what was paid to private parties for permit transfers.99 This transfer fee is unrelated to the mooring permit purchase price and does not adequately compensate the City for the transfer. Therefore, the City's program allows private persons to profit from mooring permit transfers by creating a private market for the sale of public assets without compensation to the City. This is like a public agency leasing a building at a nominal rate and allowing the lessee to sublease for a profit, which violates the California Constitution.1 100 The transfer program may violate the Public Trust Doctrine and the City's grant statute.
The City, as the Legislature's tidelands grantee, is bound by the Public Trust Doctrine when managing Newport Bay.¹ 101 The Public Trust Doctrine's "dominant theme is the state's sovereign power and duty to exercise continued supervision over the trust."102 Grantees like the City assume that duty of continued supervision of the granted lands. Accordingly, the grant statute imposes a term limit of 50 years for any franchise or lease. 103 While the grant statute does not mention permits, for purposes of the Commission's management, the Public Resources Code defines "lease" as including "a permit, easement, or license."104 106
ease. 103 While the grant statute does not mention permits, for purposes of the Commission's management, the Public Resources Code defines "lease" as including "a permit, easement, or license."104 106 In this case, not only do the mooring permits not have a time limit, but because they allow private parties to transfer them they effectively never return to the City for distribution, and the public now relies on private parties to obtain a mooring permit. 105 The City can revoke mooring permits for certain reasons,¹ including a provision allowing the permit to be revoked if the "space is to be devoted for a more necessary public use.' "107 But this requires the City to justify the revocation, which may be difficult when it relies on subjective determinations like another use being "more necessary" than a mooring permit. The practical effect is that revocation of a permit will only be for cause, similar to terminating a lease for cause. And a 99 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, to Benjamin Johnson, Staff Attorney, State Lands Commission, November 18, 2025.
100 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a YMCA was not a gift because the YMCA fulfilled a public purpose and gained no monetary benefit from the lease].
101 Pub. Resources Code, § 6009, subd. (c); Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1174.
102 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 437.
103 City Grant, section 1(b).
104 Pub. Resources Code, § 6501.
105 Agenda Item No. 3, March 28, 2017.
106 Newport Beach Municipal Code, section 17.70.020, subds. (A)(1), (4).
107 Newport Beach Municipal Code, section 17.70.020, subds. (A)(1)(h).
27 27
de, § 6501.
105 Agenda Item No. 3, March 28, 2017.
106 Newport Beach Municipal Code, section 17.70.020, subds. (A)(1), (4).
107 Newport Beach Municipal Code, section 17.70.020, subds. (A)(1)(h).
27 27 lease for longer than 50 years will still violate the grant statute even though it can be terminated if the lessee fails to comply with its terms. Therefore, the City's mooring permit transfer program could be viewed as a relinquishment of the City's control of the permits to private parties, in violation of the Public Trust Doctrine and the City's grant statute The City does sublease moorings when the permit holder is away for an extended period of time, which to some degree helps address the privatization of the lands occupied by the moorings. But this does not resolve the fundamental problem that acquiring a mooring permit is now done at the discretion of private parties and not the City, and that the current transfer program effectively leads to alienation of the City's granted lands.
The transfer program may violate the City's fiduciary duties to the State.
As a legislative grantee, the City must manage the granted property "without subjugation of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises," and is bound to act as the State's fiduciary.108 Public Resource Code section 6009.1 lists fiduciary duties that legislative grantees must fulfill.
Among these duties are the following: • The duty to administer the trust solely in the interest of the beneficiaries.109 Under both the Public Trust Doctrine and the City's grant statute, the City must manage Newport Bay to serve the statewide public interest, and the statewide public are the
st of the beneficiaries.109 Under both the Public Trust Doctrine and the City's grant statute, the City must manage Newport Bay to serve the statewide public interest, and the statewide public are the beneficiaries in the trust relationship created by the City's Grant. 110 The transfer program allows the group of current mooring permit holders to control the recipients of the mooring permits and potentially extract value from the process. The transfer program is therefore for the benefit of the group of current mooring permit holders and not for the general public that wishes to acquire a permit.
• The duty to take reasonable steps under the circumstances to take and keep control of and to preserve the trust property, 111 and the duty to not delegate to others the performance of acts that the trustee can reasonably be required to perform and to not transfer the administration of the trust to a co-trustee. 112 The City's transfer program allows the private mooring tackle owners to control the future users of the property, which is potentially an impermissible transfer of power over the 108 Pub. Resources Code, §§ 6009, subd. (d), 6009.1, subd. (c).
109 Pub. Resources Code, § 6009.1, subd. (c)(5).
110 See Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 211.
111 Pub. Resources Code, § 6009.1, subd. (c)(8).
112 Pub. Resources Code, § 6009.1, subd. (c)(13).
28 sovereign land. This could be a violation of the City's duty to keep control of the trust property and not to delegate or transfer administration of the trust.
• The duty to make the trust property productive under the circumstances and in furtherance of the purposes of the trust. 113 As discussed above, private persons are selling mooring transfers and the City's transfer fee
the trust property productive under the circumstances and in furtherance of the purposes of the trust. 113 As discussed above, private persons are selling mooring transfers and the City's transfer fee does not appear to reflect that sale. This could violate the duty to make the property productive – in this case, by failing to secure adequate value for the City's trust fund.
Recommendation The City should end its program of allowing private mooring permit sales. Many current mooring permit holders purchased their moorings with the expectation that they would have the option to sell them in the future to recoup the purchase cost. The City could consider ways to phase out transfers which recognizes that the current mooring permit holders were only following the City's established rules when they purchased their moorings. Commission staff is not taking a position on whether compensation should be provided to the current mooring permit holders.
113 Pub. Resources Code, § 6009.1, subd. (c)(9).
29 Residential Pier Subleases Background At a December 11, 2012 Special Meeting, the City's Municipal Code was amended to allow residential pier owners to rent out their piers, in which case they would pay commercial rental rates ($1.26 per square foot). The staff report for this decision does not explain why the City chose to allow the private renting of residential piers, only noting that the changes were "a result of the feedback from the Council and the public at the November 28th 2012 Special meeting."
"114 Staff recently reviewed Dockskipper, a website that publicly lists residential piers for sublease in Newport Bay, and found eight docks for listed rent, ranging from $1,250 per month ($50 per
g."
"114 Staff recently reviewed Dockskipper, a website that publicly lists residential piers for sublease in Newport Bay, and found eight docks for listed rent, ranging from $1,250 per month ($50 per foot of vessel length per month, up to 25 feet) to $9,000 per month (or $1.50 per foot for a maximum vessel size of 95 feet, and use of a 2-car garage). 115 An average-sized residential pier of 1,116 square feet would pay about $1,406.16 per year in rent if charged at the commercial rate. According to City staff, there are currently 21 residential pier permittees that have notified the City they are subleasing their dock and who are being charged commercial rental rates.
Based on the data staff reviewed from Dockskipper, even at the low end of subleasing rates a pier permittee with an average sized pier would be able to cover nearly their entire year's rent by subleasing their pier for one month.
Analysis Commercial leasing is outside the scope of this Report, and staff did not review the City's ratesetting for its commercial marinas or subleased piers. Nevertheless, if the commercial rates charged for residential piers being subleased are too low (especially in light of the sublease rates being charged by pier permittees), then this could be an unconstitutional gift of funds.
Recommendation The City should investigate residential pier subleasing in Newport Bay. At a minimum, it must ensure that all subleased piers are being charged rent at the commercial rate, consistent with the City's Code. If there are residential pier permittees subleasing without authorization, the City should also explore how to effectively track and enforce restrictions in the residential pier 114 Agenda Item No. 1, December 11, 2012.
ntial pier permittees subleasing without authorization, the City should also explore how to effectively track and enforce restrictions in the residential pier 114 Agenda Item No. 1, December 11, 2012.
115 https://www.dockskipper.com/newport-beach-boat-docks-slips-rent/ (accessed October 27, 2025). The prices were: free use of dock in exchange for use of boat; 50 per foot of vessel length a month, up to 25 feet (maximum of $1,250); $1,750 per month (vessel up to 30 feet); $2,900 per month (vessel up to 70 feet); $3,400 per month (vessel up to 50 feet); $3,500 per month (vessel up to 66 feet); $7,500 per month or $1.50 per foot (vessel up to 85 feet); $9,000 per month or $1.50 per foot (vessel up to 95 feet, includes 2-car garage); 30 subleasing. The City should also evaluate whether the commercial rental rate is appropriate considering the rates residential pier permittees are charging for subleasing.
31 The Mooring License Program and the City's July 9, 2024 Action 116 On November 4, 2023, the City created the mooring license program.¹ The City's mooring licenses are non-transferable licenses that provide mariners with an option to rent moorings on a monthly basis, renewable for additional one-month terms. Fees for these licenses are based on an appraisal prepared by Netzer and Associates in August 2023, before the appraisal that Netzer and Associates prepared in December 2023 for the offshore moorings. Commission staff did not review or comment on the August 2023 Netzer appraisal. The license terms included: • Mooring Licenses are month-to-month and may be renewed, provided the licensee has paid in full the license fee, any late fees, and is not in violation of any provision of the license program.
• • • Live-aboards are prohibited.
-to-month and may be renewed, provided the licensee has paid in full the license fee, any late fees, and is not in violation of any provision of the license program.
• • • Live-aboards are prohibited.
The City may temporarily assign a mooring that is vacant or unoccupied to another vessel through the issuance of a mooring sub-permit.
Mooring licenses are not transferable.
The assigned vessel must actively occupy the mooring. Vacancy for more than 25 consecutive days is considered abandonment if it occurs without the prior approval of the Harbormaster. However, the mooring can be vacant for up to 6 months with prior approval from the Harbormaster.
A single tender – a small vessel, like a dinghy or kayak, which serves as access to and from shore to the assigned vessel – may be secured to the assigned vessel or to the offshore mooring in the absence of the assigned vessel.
A licensee may not allow vessels other than the assigned vessel and tender to use the mooring.1 117 On July 9, 2024, the City considered the Harbor Commission's recommendation to increase mooring permit rates. City staff also provided an alternate recommendation, where mooring permits would be phased out in favor of the License Program. City staff's alternate recommendation included: As of August 22, 2024, no new mooring permits would be issued. Instead, all new moorings would be authorized under the License Program.
• Existing mooring permittees would continue to pay the current mooring permit rates, with annual CPI adjustments or a 2 percent increase (whichever is less).
116 Agenda Item No. 4, November 14, 2023.
117 Resolution 2023-62, November 15, 2023.
32 32 Existing mooring permittees would be allowed to privately transfer their permit one
ease (whichever is less).
116 Agenda Item No. 4, November 14, 2023.
117 Resolution 2023-62, November 15, 2023.
32 32 Existing mooring permittees would be allowed to privately transfer their permit one time within four years, but no later than August 21, 2028. Following that transfer, no further transfers would be permissible for that mooring permit.
Mooring permits transferred during the four year "grace period" would be subject to the 2016 rates for four years from the date of the transfer. After this additional fouryear period the permit would convert to a License.
Mooring permittees that also held a live-aboard permit as of September 1, 2028, and whose mooring permit has converted to a mooring license, may continue to live on the vessel.
• Moorings and associated tackle subject to the License Program would be owned and maintained by the City. Moorings and associated tackle subject to the Permit Program would continue to be owned and maintained by the permittee. 118 The City approved staff's alternate recommendation. 119 However, the City deferred a second reading of the ordinance at State Lands Commission staff's request, meaning that it is not yet effective.12 120 Analysis The City concluded that the License Program rates were reflective of fair market value, and that conclusion is supported by the August 2023 appraisal. Similar to the December 2023 appraisal, the appraisal used for the License Program employed a "Comparable Rentals Approach" and a "Ratio Analysis” to arrive at a recommended fair market rent. The recommended rates were similar in both appraisals: for a 40-foot offshore mooring the August appraisal recommended $15.00 per linear foot, and the December appraisal recommended a benchmark rate of $16.00 per linear foot.
e similar in both appraisals: for a 40-foot offshore mooring the August appraisal recommended $15.00 per linear foot, and the December appraisal recommended a benchmark rate of $16.00 per linear foot.
The alternate recommendation would eventually lead to the cessation of private mooring transfers and live-aboards, while allowing existing Mooring Permit holders to continue paying current rates (with CPI adjustments) in exchange for the removal of the ability to transfer the permit. As discussed above, private mooring transfers may violate the Public Trust Doctrine, the City's fiduciary duties to the State, and the granting statute. An updated mooring program that leads to the cessation of such transfers would match staff's recommendations regarding private transfers. City staff's alternate recommendation would also lead to the eventual phase out of live-aboards. Live-aboards are generally not consistent with the Public Trust Doctrine. However, even if such use was consistent with the Public Trust Doctrine, the City has discretionary authority to choose between competing Public Trust uses and would be within its authority to eliminate live-aboard use in favor of other Public Trust uses.
118 119 Agenda Item No. 13, July 9, 2024.
Approved Minutes, July 9, 2024.
120 Approved Minutes, July 23, 2024.
33 Recommendation As discussed elsewhere in this report, staff supports both ensuring that rates remain at fair market value and the implementation of a fair resolution to the issues created by the City's current mooring program. The City should review its staff alternate proposal in light of the discussion in this report to determine if this proposal provides a fair solution that ensures both fair market rent and addresses the mooring program issues.
34 Conclusion
ate proposal in light of the discussion in this report to determine if this proposal provides a fair solution that ensures both fair market rent and addresses the mooring program issues.
34 Conclusion When reviewing the City's management of its mooring permits and residential pier leases, a common issue is that the City has not adequately explained - or sometimes, has not explained at all - how its granted lands management decisions comply with the City's obligations as the State's trustee under the granting statute.
For example, when recommending that the City remove the interior of a “U”-shaped pier from the rental calculations in 2017, the staff report does not explain why it is making the recommendation, only stating that "the decision to include or exclude the interior of the Ushape of a slip is left to the discretion of the City Council."121 It is the same with the recommendation to reduce the pier rate from an average of the two appraisals to the lower value: the staff report just states that "the City Council has the discretion under the Beacon Bay Bill [the grant statute] and Newport Beach Municipal Code to determine the fair market value rent for residential piers based in part on these two appraisals.”122 In the official minutes of that meeting, there is some discussion at the City Council meeting of the City's trustee obligations, and the reason for the reduction in the lease area, but not the rate reduction. 123 From the minutes it is unclear exactly how the City viewed its actions in relation to its trustee obligations.
This is also seen when the City reverted its mooring permit transfer policy in 2017, and staff only explained the basis for the reversion by stating, “Feedback from the mooring community
obligations.
This is also seen when the City reverted its mooring permit transfer policy in 2017, and staff only explained the basis for the reversion by stating, “Feedback from the mooring community suggests allowing transfers among private parties and rescinding the transfer-cap date.”124 The official minutes of that meeting do not reflect any discussion of the transfer policy's compliance with the City's trustee obligations.125 The City has discretion on how to manage its granted lands, but the City must exercise that discretion for the benefit of the statewide public and for the purposes described in its statute and within the bounds imposed by that statute and the Public Trust Doctrine. It might be that in some cases the City performs the analysis of its management decisions during the meeting when such decisions are made, but this is not always the case. And a failure to provide that analysis in the staff report means that the public cannot review the City's reasoning prior to the meeting.
Going forward, when the City takes any action involving its granted lands, it should explain how that action is consistent with its trust obligations - ideally in the staff report, so that the public can review that reasoning ahead of the meeting.
121 122 Agenda Item No. 16, February 10, 2015.
Agenda Item No. 16, February 10, 2015.
123 Approved Minutes, February 10, 2015.
124 Agenda Item No. 3, March 28, 2017.
125 Approved Minutes, March 28, 2017.
35 Exhibit B Report on the City of Newport Beach's Public Trust Lands Management Table of Contents Introduction .........
Background Residential Pier Rates Background Analysis.
Recommendation......
Mooring Permit Rates.
34 34 8 00 00 8 11 14 15 Background 15 Analysis Recommendation.........
ontents Introduction .........
Background Residential Pier Rates Background Analysis.
Recommendation......
Mooring Permit Rates.
34 34 8 00 00 8 11 14 15 Background 15 Analysis Recommendation.........
Residential Pier and Mooring Permit Comparison Analysis.
Recommendation........
Mooring Permit Transfers...
Background 17 19 20 20 22 23 23 Analysis.
24 Recommendation..........
Residential Pier Subleases 29 30 Background 30 Analysis.
30 Recommendation.........
30 The Mooring License Program and the City's July 9, 2024 Action.......
3231 Analysis.
3332 Recommendation….......
.3433 Conclusion.......
3534 2 Introduction This report summarizes and comments on the City of Newport Beach's management of tide and submerged lands in Newport Bay, which the Legislature granted to the City to manage on the state's behalf. Lands granted by the Legislature in this manner are often referred to as "granted lands." The report begins with a background of the State Lands Commission's role in overseeing granted lands, including the legal requirements that are often implicated in granted lands management. It then summarizes and analyzes several main topics: pier lease rates, mooring permit rates, a comparison of pier and mooring rates, mooring permit transfers, and the City's mooring license program.
Staff focused on these topics for the report because they are the core issues staff identified when reviewing the City's granted lands management. There are other topics that have been raised in public comments that are not discussed in this report, or which could be addressed more comprehensively. However, staff believe that the analysis and recommendations in this report will provide guidance for how the City should investigate additional issues related to its
e addressed more comprehensively. However, staff believe that the analysis and recommendations in this report will provide guidance for how the City should investigate additional issues related to its granted lands management even if such issues are not directly or comprehensively discussed in this report.
Additionally, this report is focused on a review of the City's actions and staff reports, and does not go into detail regarding the public participation process connected to the City's actions, such as Harbor Commission outreach meetings or public comments. As discussed in more detail below, the Legislature entrusted the lands in Newport Bay to the City's discretion, and this report focuses on whether the City is exercising its discretion within the limits created by the California Constitution, the Public Trust Doctrine, and the City's grant statutes. This report is also focused on whether, and how, the City explained its discretionary actions considering their legal obligations to act as the State's trustee. When City actions appear to conflict with their legal obligations to the state, this report identifies the potential legal violations so that the City may review its management and either provide additional justifications or make corrections as needed.
| Background In January 2024, City of Newport Beach staff and members of the City's Harbor Commission requested that Commission staff review an appraisal of fair market rent for the City's offshore mooring permits.¹ In April 2024, Commission staff sent a letter that concluded that while there were some areas that could be clarified or revised, the appraisal was generally reasonable and 1 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach,
t while there were some areas that could be clarified or revised, the appraisal was generally reasonable and 1 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, to Reid Boggiano, Granted Lands Program Manager, State Lands Commission, January 23, 2024.
3 | the City could rely on it for setting mooring rates.² Staff encouraged the City to phase in the rate increases and commented that the City should review its residential pier rates as well.³ In July 2024, City staff presented the new rates, based on the City's appraisal, to the City Council.ª City staff also presented an alternate proposal in which current mooring permit holders would be able to maintain their current rates but could only transfer the permit one more time. Upon transfer, the permit would be converted to the City's license program, which prohibits private transfers and which has rates based on an earlier City appraisal that Commission staff did not review, but that provided rates similar to the appraisal reviewed by staff. The City approved staff's alternate proposal.
On July 22, 2024, Commission staff sent a letter asking the City to delay the second reading of the ordinance with the alternate proposal so that Commission staff could conduct a management review of the City's granted lands and present it to the Commissioners. 5 In the letter, staff expressed its concern that the City was not comprehensively reviewing rates, resulting in inequitable treatment between mooring permittees and residential pier lessees.
Staff noted that it agreed with the City's effort to end the private transfer market for mooring permits.– The City agreed to delay the second reading of the ordinance.
s and residential pier lessees.
Staff noted that it agreed with the City's effort to end the private transfer market for mooring permits.– The City agreed to delay the second reading of the ordinance.
On August 12, 2024, staff sent a letter to the City providing an overview of its review of the pier and mooring rental rates and requesting information from the City.³ The letter explained that Commission staff will “evaluate whether the City's administration of these programs adheres to the City's obligations under its statutory trust grant, California Constitution, and the Public Trust Doctrine. The goal is to ensure that all user groups are treated equitably and that all rates reflect fair rental value." The letter stated that Commission staff would review: • • A history of the City's management of residential pier leases and mooring permits from 2006 to the present The City's mooring permit transfer policies 2 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
3 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
4 Agenda Item No. 13, July 9, 2024.
5 Letter from Jennifer Lucchesi, Executive Office, State Lands Commission, to Grace K. Leung, City Manager, City of Newport Beach, July 22, 2024.
6 The City refers to the residential pier leases as "permits." This report uses “leases" for clarity.
Z Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
eases" for clarity.
Z Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
³ Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, August 12, 2024.
4 | | The rates charged for the residential pier leases and mooring permits • The frequency of rate reassessment • The basis for rate revisions ● The current terms and conditions imposed on residential pier leases and mooring permits A history of the City's modifications to these terms and conditions, including those in response to the 2006-2007 Grand Jury Report A comparison between how the City manages its residential pier leases and its mooring permits The City manages Newport Bay on behalf of the State, and for the benefit of all Californians.
The State of California acquired tide and submerged lands and beds of navigable waterways when it was admitted to the Union in 1850. These lands are often referred to as "sovereign lands." Under the Public Trust Doctrine, the State holds these lands as the trustee for the people to ensure the lands are devoted to uses to which they are uniquely suited. 10 These lands must be used for statewide, as opposed to purely local purposes, and must be used for Public Trust purposes, which include commerce, navigation, fishing, water-oriented recreation, environmental protection, and open space, among other uses. ¹¹1 The State Lands Commission is responsible for managing these lands. 12 The Legislature can grant sovereign lands to local governments through legislation, referred to
open space, among other uses. ¹¹1 The State Lands Commission is responsible for managing these lands. 12 The Legislature can grant sovereign lands to local governments through legislation, referred to as "grant statutes.”13 In those cases, the ownership of the sovereign land transfers to the local government, which must use the lands under the conditions described in the grant statutes and subject to the Public Trust Doctrine. 14 These lands are often referred to as "granted lands."
When the state grants sovereign lands, those lands remain "subject to the oversight authority of the state by and through the State Lands Commission."15 The State Lands Commission has "[a]ll jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made."16 The Legislature transferred ownership of the tidelands and submerged lands in Newport Bay to the City, subject to the terms and conditions contained in the granting statute. The Legislature 9 City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521.
10 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434.
11 Marks v. Whitney (1971) 6 Cal.3d 251, 259.
12 Cal Pub. Resources Code, § 6301.
13 City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 615.
14 Pub. Resources Code, § 6009, subd. (c), City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 616.
15 Cal Pub. Resources Code, § 6009, subd. (d).
16 Cal Pub. Resources Code, § 6301.
5 | | first granted these lands to the City of Newport Beach in 1919 and modified that original grant with additional legislation a number of times. In 1978, the Legislature repealed the previous grants and replaced them with the operative grant, and has since amended this grant several times.17
grant with additional legislation a number of times. In 1978, the Legislature repealed the previous grants and replaced them with the operative grant, and has since amended this grant several times.17 The City is responsible for managing its legislatively granted lands and has discretion to determine how it manages the granted lands, as long as it stays within its grant statutes, the Public Trust Doctrine, and the California Constitution. 18 The City's grant contains specific provisions authorizing State Lands Commission oversight. It directs the Commission to, "from time to time, recommend to the Legislature such amendments as it may determine to be necessary in the terms and conditions of this act" 19 and also, "from time to time, institute a formal inquiry to determine that the terms and conditions of this act, and amendments thereto, have been complied with in good faith."20 If the Commission determines that any "transaction or condition" is "in probable conflict with this act [the grant statute] or with any other provision of law," it must report to the Legislature, which may direct the Attorney General to bring litigation to revoke the grant or compel compliance. 21 Additionally, after holding a publicly noticed hearing "at which the city has been given an opportunity to express fully any disagreement with the commission's findings or to describe any extenuating circumstances causing the violation," the Commission may formally request the Attorney General to bring litigation against the City to resolve a grant violation.22 The State Lands Commission Reviews the City's Management of the Granted Lands for Abuse of Discretion.
The State Lands Commission retains residual oversight authority to review a grantee's actions
.22 The State Lands Commission Reviews the City's Management of the Granted Lands for Abuse of Discretion.
The State Lands Commission retains residual oversight authority to review a grantee's actions for consistency with the Public Trust Doctrine, the California Constitution, its grant statutes, and its fiduciary duties to the State. The City, as the State's trustee, has discretion to choose between competing uses and set its own management policies for the granted lands, provided that it is acting with the bounds of the law. The Commission does not have authority to impose its own discretionary decisions on grantees.
California Constitution Article XVI, Section 6 of the California Constitution prohibits the State and local governments from making "any gift or authorize the making of any gift, of any public money or thing of 17 Chapter 74, Statutes of 1978, as amended [City Grant]. A list of the grant statutes is available at the Commission's website.
18 City of Long Beach v. Morse (1947) 31 Cal.2d 254, 262.
19 City Grant, § 1(0).
20 City Grant, § 1(p).
21 City Grant, § 1(q).
22 City Grant, § 1(q).
6 | | | | value."23 If a local agency uses granted tidelands, or money derived from the granted tidelands, in a manner that does not further the purposes of the grant, it is a gift of public property in violation of California Constitution. 24 If a local agency gifts the use of public property without appropriate payment or a compensating public purpose, that is also an unconstitutional gift.
For example, a public agency leasing a building at a nominal rate and allowing the lessee to sublease for a profit would be unconstitutional.25 Public Trust Doctrine The Public Trust Doctrine applies to the State's submerged lands, tidelands, and lands
nominal rate and allowing the lessee to sublease for a profit would be unconstitutional.25 Public Trust Doctrine The Public Trust Doctrine applies to the State's submerged lands, tidelands, and lands underneath navigable rivers and lakes. 26 The Public Trust Doctrine, in brief, prohibits the sale or permanent alienation of these lands and requires they be used for the purposes to which they are uniquely suited: navigation, fishing, waterborne commerce, scientific study, and open space, with the caveat that these uses may change to reflect changing public needs and values.27 It has been described as "an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust."28 When the Legislature granted tidelands and submerged lands to the City, the City took those lands subject to the Public Trust Doctrine.29 Grant Statute The City's grant statute contains, among other things, a requirement that granted lands be used "for purposes in which there is a general statewide interest," including a "public harbor" and "recreational facilities open to the general public.”30 The grant also requires that, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith."31 23 Cal. Const., art. XVI, § 6.
24 Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 210.
25 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a
n therewith."31 23 Cal. Const., art. XVI, § 6.
24 Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 210.
25 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a YMCA was not a gift because the YMCA fulfilled a public purpose and gained no monetary benefit from the lease].
26 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434.
27 People ex inf. Webb v. California Fish Co. (1913) 166 Cal. 576, 597, Marks v. Whitney (1971) 6 Cal.3d 251, 259–260.
28 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441 29 Cal Pub. Resources Code, § 6009, subd. (d), see, e.g., Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1178.
30 Ch. 74, Statutes of 1978, as amended, Section 1, subd. (a)(1), (2).
31 Ch. 74, Statutes of 1978, as amended, Section 1(d).
7 | | | The City has a legal obligation to comply with the terms of the grant, which requires that they act in the statewide best interest, "without subjugation of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises."
Fiduciary Duties "32 The City's grant also creates a trust relationship between the state and the City. “The state acts both as the trustor and the representative of the beneficiaries, who are all of the people of this state, with regard to public trust lands, and a grantee of public trust lands, including tidelands and submerged lands, acts as a trustee, with the granted tidelands and submerged lands as the corpus of the trust.”"33 The City, as the grantee, has fiduciary obligations as the state's trustee, which are listed in Public Resources Code section 6009.1. The fiduciary duties include, but are
the corpus of the trust.”"33 The City, as the grantee, has fiduciary obligations as the state's trustee, which are listed in Public Resources Code section 6009.1. The fiduciary duties include, but are not limited to, “the duty to administer the trust solely in the interest of the beneficiaries,”³4 "the duty to act impartially in managing the trust property,”35 and "the duty to not use or deal with trust property for the trustee's own profit or for any other purpose unconnected with the trust, and to not take part in a transaction in which the trustee has an interest adverse to the beneficiaries."36 Residential Pier Rates Background Before 2012, all residential pier leases within the City of Newport Beach's grant were charged a flat $100 annual permit fee, which did not consider the size or location of the pier. However, at a November 28, 2012 Special Meeting the City Council considered requiring rent for the residential pier leases. The staff report explained that while the granting statute, referred to as the Beacon Bay Bill, required charging fair market rent, the City had followed the State Lands Commission's practice of not charging rent for residential piers. But the State Lands Commission's practice changed, effective January 1, 2012, when Public Resources Code section 6305.5 was amended to require the Commission to charge fair rental value for residential piers.
City staff reasoned, "Because the City is a trustee of the State in regard to tidelands property, the City should comport its actions to that of the State and charge fair market value rent for the use of tidelands by residential piers." The staff report further concluded that "the City can no 32 Cal Pub. Resources Code, § 6009, subd. (d).
33 Pub. Resources Code, § 6009.1, subd. (b).
ent for the use of tidelands by residential piers." The staff report further concluded that "the City can no 32 Cal Pub. Resources Code, § 6009, subd. (d).
33 Pub. Resources Code, § 6009.1, subd. (b).
34 Pub. Resources Code, § 6009.1, subd. (c)(5).
35 Pub. Resources Code, § 6009.1, subd. (c)(6).
36 Pub. Resources Code, § 6009.1, subd. (c)(7).
80 | | longer justify an exemption for rental charges based upon the policy of the State and must now charge fair market rent for residential piers located over City tidelands."37 The City commissioned two appraisers, Mr. Netzer and Mr. Rasmussen, to appraise the piers for rental purposes and they arrived at rental rates of $0.55 and $0.50 per square foot, respectively. The Committee recommended calculating rent “not over the entirely of the tidelands outside of a residential property but to the tidelands that are both used and useable for docks, gangways, and vessels." The Committee recommended using an average of the appraised rental values to arrive at a rate of $0.525 per square foot for rent. 38 At a December 11, 2012 Special Meeting, the City Council adopted the Committee's recommended pier rent of $0.525 per square foot, with 2 percent CPI escalations. The City's Municipal Code was also amended to allow residential pier owners to rent out their piers, in which case they would pay commercial rates ($1.26 per square foot). The staff report does not explain why the City decided to allow the private renting of residential piers, only noting that the changes were "a result of the feedback from the Council and the public at the November 28th 2012 Special meeting."39 The next year, at a November 12, 2013 Study Session regarding implementation of the new
ges were "a result of the feedback from the Council and the public at the November 28th 2012 Special meeting."39 The next year, at a November 12, 2013 Study Session regarding implementation of the new charges, the City Council "looked back" over the various changes to tidelands to see if a decision for one type of use should be modified based on decisions on other uses.40 At the Study Session, staff recommended that the area considered for rent calculation be “(1) Footprint of the pier, gangway and float over City tidelands; (2) Interior of the U-shaped float; and (3) Buffer area of 10' around the float, except the backside." Rent would be reduced by 50 percent for the interior of a U-shaped pier and the 10-foot buffer area. There is extensive documentation of the public comments received at previous workshops, but no explanation for why staff made the recommendations it did except that they were based on comments received.41 At the November 26, 2013 City Council meeting, the City Council considered modifications to the pier lease program. Staff recommended that the City charge rent based on the footprint of the pier, including the interior of a U-shaped pier, but without a perimeter or buffer area. The staff report includes a chart comparing staff's proposed approach to the State Lands Commission's approach, but does not explain why this recommendation was made, except to indicate that staff was directed by the City Council at the previous Study Session after the 37 Agenda Item No. 1, November 28, 2012, at pg. 4.; when there are successive sentences paraphrasing a City staff report, for readability, a citation will be provided at the end of the summary or at the end of the paragraph.
38 Agenda Item No. 1, November 28, 2012, 39 Agenda Item No. 1, December 11, 2012.
y staff report, for readability, a citation will be provided at the end of the summary or at the end of the paragraph.
38 Agenda Item No. 1, November 28, 2012, 39 Agenda Item No. 1, December 11, 2012.
40 Agenda Item SS2, November 12, 2013.
41 See Item No. SS2, staff PowerPoint; discussion in Agenda Item No. 2, November 26, 2013.
9 | | Council considered public comments and staff recommendations. The City Council approved staff's recommended modifications as part of its consent calendar.42 A little over a year later, at a January 27, 2015 Study Session, City staff presented an overview of other jurisdictions' residential pier setting methods, and asked for direction on whether the City Council wanted staff to present changes, including whether to include the gangway or the area in the interior of a “U” shaped dock as part of the rent calculations, and whether to adjust rental rates. The City Council directed staff to return with a revised residential pier permit, including a revised fair market rental fee, an adjusted pier footprint, and to contact State Lands Commission staff regarding the proposed changes.
43 On February 10, 2015, City staff proposed reducing the rental rate to $0.50 per square foot, the value concluded in Mr. Rasmuson's appraisal, from the $0.525 rate that was determined by averaging Mr. Rasmuson's appraisal with Mr. Netzer's appraisal. The staff report does not explain why this lower rate was a better reflection of fair market rent.44 The staff report also recommended that the City not charge rent for the interior space of a "U" shaped pier, saying that the approach was consistent with the footprint for piers that did not have a “U” shape. The staff report states that City staff contacted State Lands Commission staff,
f a "U" shaped pier, saying that the approach was consistent with the footprint for piers that did not have a “U” shape. The staff report states that City staff contacted State Lands Commission staff, and that Commission staff were not opposed to the $0.50 rate but noted that the Commission included the interior of the “U” shape piers in its rental calculations because it still constituted private use of the property. The staff report concludes that "the decision to include or exclude the interior of the U-shape of a slip is left to the discretion of the City Council. As to whether the SLC will deem our actions (especially relating to the water in the U) as contrary to our responsibilities under the Tidelands Trust, that is unknown."45 At the meeting, an Assistant City Attorney stated that the Commission "desires that the City charge for the u-shaped dock, but the decision to charge for it is ultimately the City Council's decision." Some Council members explained that because the water was public and the pier lease did not allow the lessee to exclude the public from the water, they did not agree with charging rent for the pier owners to use it. The City Council approved reducing the residential rental rate and the pier footprint.46 43 Agenda Item SS3, January 27, 2015, staff PowerPoint presentation; see discussion in Agenda Item No. 16, February 10, 2015.
44 Agenda Item No. 16, February 10, 2015, 45 Agenda Item No. 16, February 10, 2015.
46 Approved Minutes, February 10, 2015.
| 42 Approved Minutes, November 26, 2013.
10 10 Analysis Comparison to Commission Rates | | The Commission leases private recreational facilities such as docks, piers, and moorings on State sovereign tidelands and submerged lands. These facilities offer many of the same
Commission Rates | | The Commission leases private recreational facilities such as docks, piers, and moorings on State sovereign tidelands and submerged lands. These facilities offer many of the same amenities as a commercial marina, such as a place for the docking and mooring of boats and the loading and unloading of passengers and equipment. Thus, these privately owned facilities represent a substitute for a commercial marina berth or mooring buoy. Accordingly, the Commission's method of estimating a fair rental value for improvements used for the docking and mooring of boats is centered on the principle of substitution, which bases the rental rate on what an individual would pay for a similar substitute site in a commercial marina.
To determine a rental rate for docking and mooring facilities on sovereign lands, Commission staff surveys local marinas to determine their rental rates. Generally, marinas rent berths on a per-linear-foot basis, based on the length of the berth or vessel. Commission staff determines average values for both rates and berth sizes based on the data obtained from the surveyed marinas. The average rate is then multiplied by the average berth size to determine gross annual income. The Commission then uses a 5 percent rate of return on this annual income to represent a comparable fair market compensation rate for the use of State sovereign land. The subsequent value is then converted to a per-square-foot value by using data from the Department of Boating and Waterways (DBW) publication Guidelines for Marina Berthing Facilities. This per-square-foot rate can then be applied to the area occupied and impacted by improvements and uses on State lands.
Using this methodology and the survey data from Newport Beach marinas collected by
s per-square-foot rate can then be applied to the area occupied and impacted by improvements and uses on State lands.
Using this methodology and the survey data from Newport Beach marinas collected by Commission staff for the 2022 Southern California Benchmark update, a per-square-foot value for Newport Beach recreational pier facilities could be determined as follows: 11 Table 1: 2022 CSLC SoCal Benchmark Data Marina No. of Name Slips Occupancy Rate Occupied Avg. Berth Avg. Berth Slips Length Rate/ft Balboa Yacht 172 100.00% 172 36 $35.95 Basin Bayside Village 124 100.00% 124 28 $34.38 Marina Lido Marina 28 100.00% 28 56 $65.86 Village Newport Dunes Resort 405 97.04% 393 30 $48.52 and Marina Averages 182.25 99.26% N/A 37.5 $46.18 Annual Gross % of Gross Per Sq. Ft. Rate Table 2: Rent Setting Calculations 38(rounded avg. berth length) x $46.18 x 12 months = $21,058.08 $21,058.08 x 5% of gross income = $1,052.90 $1,052.90/1197.1 sq. ft. (from DBW data) = $0.88 The above rent setting calculations can also be applied to the average monthly slip rent determined by the City's appraisal ($50.55 per linear foot) to arrive at a per-square-foot value for Newport Beach recreational pier facilities as follows: Table 3: CLSC Rent Setting Calculations Using Average Slip Rate From City's Appraisal Annual Gross 38 (rounded avg. berth length) x $50.55 x 12 months = $23,050.80 % of Gross Per Sq. Ft. Rate $23,050.80 x 5% of gross income = $1,152.54 $1,152.54/1197.1 sq. ft. (from DBW table) = $0.96 Staff is not suggesting that the City must use the above numbers – which are only rough calculations or that other approaches to valuation are not reasonable. But using the Commission's benchmark approach, it appears that the $0.58 per square foot currently charged 12
hich are only rough calculations or that other approaches to valuation are not reasonable. But using the Commission's benchmark approach, it appears that the $0.58 per square foot currently charged 12 for residential piers is significantly below market rate, and fair rental value may be as much as double the current rate. 47 Lease Area Commission staff calculates the lease area for which rent is assessed on piers and docks in a different manner than the City. The City only assesses rent for the square footage of tidelands occupied by a pier or dock (the "area of occupation"). In contrast, Commission staff includes an "impact area" in addition to the area of occupation when calculating rent. The impact area is an additional area, beyond the physical footprint of a structure, on which a lessee seeks authorization to conduct activities. In the case of piers or docks, the impact area is generally a nine-foot-wide area where a vessel could be expected to dock, or the area within a "slip" for piers or docks that are "U" shaped and where vessels are docked along the interior of the "U".
The impact area is assessed rent as this area is a key component of a pier's utility and because the pier-owner enjoys an exclusive right over the public in these areas. Because lessees anticipate a right to access and moor their vessel at their pier at any time, without obstruction from members of the public, they receive a preferential right to the impact area and effectively remove it from public use. Thus, rent is charged for this area.
The City previously included impact areas (also called “buffer areas"). In 2012, it charged rent for up to a 10 foot area if it was usable by a boat. 48 In 2013, the City removed the buffer area
area.
The City previously included impact areas (also called “buffer areas"). In 2012, it charged rent for up to a 10 foot area if it was usable by a boat. 48 In 2013, the City removed the buffer area but still included the interior of a “U”-shaped dock, though at a lower rate. 49 The 2013 staff report does not explain why removal of the buffer area was recommended. In 2015, the City removed the interior of the "U"-shaped docks and again did not explain why, only noting that "whether the SLC will deem our actions (especially relating to the water in the "U") as contrary to our responsibilities under the Tidelands Trust, that is unknown."50 According to City staff, the City's current lease area methodology (i.e. excluding the interior of "U" shaped piers or any impact area) results in residential pier rental areas ranging from 23 to 4,025 square feet, with an average area of 1,116 square feet. Correspondingly, residential pier annual fees range from $13.29 to $2,334.31, with an average rent of $893.02 per year.51 47 City's Schedule of Rents, Fines, and Fees. Pier rent is increased by the lesser of CPI or 2% annually per Resolution 2015-10.
48 See Agenda Item No. 1, November 28, 2012.
49 See Agenda Item No. 3, November 26, 2013.
50 Approved Minutes, February 10, 2015.
51 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach to Jeff Plovnick, Granted Lands Specialist, State Lands Commission, October 7, 2025.
33 13 The low rates and lease area calculations may violate the California Constitution Article XVI, Section 6 of the California Constitution prohibits gifts of public funds.52 Leasing below fair market rates is an example of an unconstitutional gift. 53 The low rates for residential
ion Article XVI, Section 6 of the California Constitution prohibits gifts of public funds.52 Leasing below fair market rates is an example of an unconstitutional gift. 53 The low rates for residential piers may be an unconstitutional gift of public funds. Additionally, if the City is not using an appropriate lease area to calculate rent in order to reduce overall rental rates, that may also be an unconstitutional gift.
The low rates and lease area calculations may violate the City's grant statute and fiduciary duties.
The City has a legal obligation “to manage the state's tidelands and submerged lands consistent with the terms and obligations of their grants and the public trust, without subjugation of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises."54 The City has the duty to administer the trust solely in the interest of the beneficiaries 55; the duty to act impartially in managing the trust property 56; and the duty to not use or deal with trust property for the trustee's own profit or for any other purpose unconnected with the trust, and to not take part in a transaction in which the trustee has an interest adverse to the beneficiaries. 57 During the rental area reduction and rate reduction decisions, the City did not explain how those actions were consistent with their obligations as the State's trustee. Without that explanation, the City's approach could be interpreted as providing benefits for City residents at the expense of the City's trust funds, which violates its grant statute and its fiduciary duties to the state.
Recommendation The City should immediately appraise its residential pier leases and update their rates. The City
's trust funds, which violates its grant statute and its fiduciary duties to the state.
Recommendation The City should immediately appraise its residential pier leases and update their rates. The City should also reevaluate its residential pier rent area calculations to determine whether they are adequately compensating the City, as the State's trustee, for private uses of the granted property.
52 Cal. Const., art. XVI, § 6.
53 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a YMCA was not a gift because the YMCA fulfilled a public purpose and gained no monetary benefit from the lease].
54 Pub. Resources Code, § 6009, subd. (d).
55 Pub. Resources Code, § 6009.1, subd. (c)(5).
56 Pub. Resources Code, § 6009.1, subd. (c)(6).
57 Pub. Resources Code, § 6009.1, subd. (c)(7).
14 | Mooring Permit Rates Background In 2007, the Orange County Grand Jury published a report highlighting issues with Newport Beach's management of its mooring permits. In particular, the Grand Jury made the following finding and recommendation: • F-4. The last assessment of the fair market value of mooring permit fees took place almost ten years ago.
• R-6. Establish a regularly scheduled independent appraisal for the fair market value of mooring permit fees, e.g., based on a percentage of the cost of a slip.58 In response to the Grand Jury's findings, the City Council approved increased mooring rates at its November 23, 2010 Meeting. The City Council increased mooring rates, which were to be gradually increased until they reached an annual rate of 14 percent of the Newport Harbor Marina Index. The staff report stated, "In the opinion of the City, the Beacon Bay Bill and the
ich were to be gradually increased until they reached an annual rate of 14 percent of the Newport Harbor Marina Index. The staff report stated, "In the opinion of the City, the Beacon Bay Bill and the California Constitution (Article XVI, Section 6) obligates the City to charge appropriate and nondiscriminatory rates for the use of tidelands, without conferring a benefit to private individuals for the use of public property in violation of the California Constitution's prohibition on gifts of public funds." The staff report stated that the mooring permit rates had not changed since 1996, and that the rates were now about 5 percent of the cost that a boater would pay for a slip or berth. City staff recommended that the rates be increased, over a 5-year period, to roughly 14 percent of an average of low- to moderately-priced marina berthing rates in Newport Harbor. This 14 percent rate was based on the Newport Harbor Marina Index, which compiled marina rates in Newport Bay and authorized staff to adjust the marinas selected. The Staff report explained that the 14 percent rate included a downward adjustment to account for the fact that mooring permittees in Newport Bay owned their own tackle. It also explained that Newport had not done an appraisal of the moorings, and asserted an appraisal was not required, contrary to the findings of the Grand Jury.
59 In January 2015, the City Council directed the Harbor Commission to study the mooring rates and other related mooring issues and return with recommendations.60 On June 16, 2015, the City Council considered the Harbor Commission's recommendations, which included setting a mooring rental rate of $25 per foot, per year, with a CPI adjustment, and did not recommend
June 16, 2015, the City Council considered the Harbor Commission's recommendations, which included setting a mooring rental rate of $25 per foot, per year, with a CPI adjustment, and did not recommend an appraisal. The $25 per-foot rate was derived by increasing the $6 per-foot rate charged in 58 2006-2007 Orange County Grand Jury, “Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?" Finding F-4, Recommendation R-6.
59 Agenda Item No. 19, November 23, 2010; see 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?”, Finding F4, Recommendation R-6.
| 60 Agenda Item No. 19, January 27, 2015.
15 | | 1976 based on CPI to the present day. The City Council considered the Harbor Commission's recommendations but directed staff to conduct an appraisal to set mooring permit rates.61 On January 26, 2016, the City Council considered new mooring rates based on an appraisal. In the staff report, City staff described that they had spoken with State Lands Commission staff who “expressed two recommendations regarding the City's mooring proposal: (1) the SLC recommended the City provide, in no uncertain terms, that the mooring permits do not convey a real property interest in the underlying tidelands; and (2) the SLC recommended the City obtain a current appraisal to assist with the establishment of fair market value mooring rental rates." City staff retained Netzer and Associates to conduct an appraisal, and the appraisal concluded that fair market rent was a range of annual rent of $32.00 to $38.00 per linear foot for offshore moorings, and $16.00 to $19.00 for onshore moorings. Staff recommended an annual rate of $35.00 per linear foot for offshore moorings and $17.50 per linear foot for
$38.00 per linear foot for offshore moorings, and $16.00 to $19.00 for onshore moorings. Staff recommended an annual rate of $35.00 per linear foot for offshore moorings and $17.50 per linear foot for onshore moorings, meaning a monthly rate of $2.91 and $1.46 respectively, with CPI adjustments.62 At the meeting, State Lands Commission staff submitted a letter stating that the appraisal "lacks important supporting discussion and analysis in a number of areas, which may affect the determination of fair market rent," included a list of initial questions on the appraisal, and requested that the City delay a vote so staff could perform a more detailed analysis.63 The City included responses to the questions from Mr. Netzer, who concluded, “Overall, the questions appear to be concerned with the amount of explanation included in the report, rather than the analysis and the conclusions presented. . . . On the basis of the comments and the above, I believe my analysis and conclusions are well supported and reliable and I see no reason to rethink the analysis or amend my report."64 The City did not delay the vote and adopted its staff's recommendation. 65 The City's resolution also authorized the City to conduct an appraisal to set new rates after March 1, 2018, and every 5 years thereafter.66 In 2023, the City of Newport Beach hired Netzer & Associates to conduct an appraisal to determine updated fair market values for mooring rates. The appraisal used several approaches: a "Tidelands Market Rent" that was based on upland land values; a “Comparable Rentals Approach" that surveyed other marinas that rent moorings and then adjusted the rates based on location and utilities; a "Ratio Analysis" that surveyed marina slip rates and compared 61 Agenda Item No. 1, June 16, 2015.
veyed other marinas that rent moorings and then adjusted the rates based on location and utilities; a "Ratio Analysis" that surveyed marina slip rates and compared 61 Agenda Item No. 1, June 16, 2015.
62 Agenda Item No. 20, January 26, 2016.
63 See Letter from Sheri Pemberton, Chief, External Affairs Division, State Lands Commission, to Mayor Dixen and Councilmembers, City of Newport Beach, January 25, 2016, available at Agenda Item No. 20 Correspondence, at p. 25.
64 Letter from James B. Netzer, MAI, to Chris Miller, Harbor Manager, City of Newport Beach, January 26, 2016, available at Agenda Item No. 20 Correspondence, at p. 31.
65 Approved Minutes, January 26, 2016.
66 Resolution 2017-16, adopted January 26, 2016.
16 | | | | them to mooring buoy rates to arrive at a ratio, then applied that ratio to Newport Bay marina slip rates to calculate mooring buoy rates; and a “CPI Adjustment Approach” that applied a Consumer Price Index adjustment to current mooring buoy rates. The appraisal then reconciled the four approaches by reviewing their factual and conceptual basis, ultimately placing primary emphasis on the Comparable Rentals Approach and Ratio Analysis after concluding that the Tidelands Market Rent approach was artificially high because of increased upland values and the CPI Adjustment Approach did not capture long term market trends. The appraisal concluded that a "benchmark" fair market rate for the mooring permits is $16.00 per linear foot per month for a 40-foot mooring (the most common length mooring in the Harbor), increasing rent for a 40-foot mooring from $134 per month to $640 per month. 67 "68 At City staff's request, State Lands Commission staff "reviewed the appraisal at a high level to
ing in the Harbor), increasing rent for a 40-foot mooring from $134 per month to $640 per month. 67 "68 At City staff's request, State Lands Commission staff "reviewed the appraisal at a high level to determine whether [staff] believed the City could reasonably rely on its concluded fair market mooring rates.” In a letter, staff concluded that "the City can reasonably rely on the appraisal's fair market rates. The City could also adopt different rates if additional information shows that the recommendations should be modified."69 At the Harbor Commission's April 10, 2024 meeting, it recommended that the City adopt rental rates equal to 24 percent of the Newport Harbor Marina Index, reduced from the 30 percent ratio used in the appraisal's Ratio Analysis to account for the costs of maintaining mooring tackle, and that these rates be phased-in over five and a half years. 70 This would result in an increase from the current rate of $3.35 per linear foot per month, to about $12.56 per linear foot per month, increasing rent for a 40-foot mooring from $134 per month to $502 per month.71 Analysis Comparison to Commission rates Commission staff's methodology for determining mooring buoy rent on State sovereign lands is a useful point of comparison when analyzing the City's rent setting methods. When determining a benchmark for mooring buoy-rent, Commission staff uses the principle of substitution in a similar manner as when setting a rental rate for piers or docks. As such, staff's method of determining a fair rental value for moorings buoys-is based on what an individual 67 Netzer and Associates, "Appraisal Report: Fair Market Rent, Offshore Moorings, Newport Beach, California,” December 26, 2023.
g a fair rental value for moorings buoys-is based on what an individual 67 Netzer and Associates, "Appraisal Report: Fair Market Rent, Offshore Moorings, Newport Beach, California,” December 26, 2023.
68 Letter from Reid Boggiano, Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach April 9, 2024.
69 2 Letter from Reid Boggiano Granted Lands Program Manager, State Lands Commission, to Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, April 9, 2024.
70 Approved Minutes, Harbor Commission, April 10, 2024.
71 See Agenda Item No. 13, July 9, 2024.
17 | | would pay for a similar mooring accommodation in a commercial marina. To derive a rental benchmark using this methodology, staff surveys local area marinas to determine mooring buoy rental rates and the number of buoys moorings rented. These buoys moorings are generally rented on a monthly or annual basis with rents based on the general size of a moored vessel (e.g. one rate for vessels 40 feet or less, and a different rate for vessels over 40 feet). Staff then utilizes the collected data to calculate the average annual gross income these marinas derive from buoy mooring rentals. Once the average annual gross income is calculated, staff applies a 5 percent rate of return to represent a comparable fair market compensation rate for the use of State sovereign land. The resulting value is then used as the annual rent for buoys moorings on sovereign land in the subject location.
In comparison, the City's appraisal used a variety of valuation methods but ultimately placed primary emphasis on the Comparable Rentals Approach and Ratio Analysis. The Comparable
e subject location.
In comparison, the City's appraisal used a variety of valuation methods but ultimately placed primary emphasis on the Comparable Rentals Approach and Ratio Analysis. The Comparable Rentals Approach is similar to the Commission's approach, but differs in that it surveyed marinas from locations all along the California coast instead of only local marinas. The rates collected from the surveyed marinas were then broken down into a per-linear-foot rate and adjusted based on the relative difference in the average monthly slip rent between Newport Harbor and the surveyed marinas. This provided an adjusted, per-linear-foot mooring rate that accounts for the relative difference in mooring costs between locations (similar to a cost-ofliving adjustment). Of note, the City's appraisal does not apply a 5 percent rate of return.
Instead, the appraisal uses the adjusted, per-linear-foot rate to arrive at a "benchmark" for the City's moorings buoys of $16 to $18 per month.
The Ratio Analysis utilized a different methodology from the Commission's approach and is based on the premise that both moorings buoys-and slips are options available to mariners for mooring a vessel and that their relative costs can be calculated as a ratio of one to the other.
For the Ratio Analysis, marinas from various locations along the California coast were surveyed to determine the monthly per-linear-foot rates for both moorings buoys and slips at each marina. This data was then used to calculate a “ratio," or percentage, for mooring rates as compared to slip rates. For example, if a marina charges a monthly rate of $50 per linear foot for a 40-foot slip and $10 per linear foot for a 40-foot mooring, then the ratio for the mooring
rates as compared to slip rates. For example, if a marina charges a monthly rate of $50 per linear foot for a 40-foot slip and $10 per linear foot for a 40-foot mooring, then the ratio for the mooring rate would be calculated as: $10/$50 = 0.20 (i.e. the mooring rate is 20 percent of the slip rate).
The Ratio Analysis provided a ratio of mooring rates to slip rates equal to 30 percent and concluded that a “benchmark” fair market rent could be derived by applying this 30 percent ratio to the "average slip rate" in Newport Harbor. The appraisal then provided two options for "average slip rates," one based on published slip fees for the Balboa Yacht Basin which is administered by the City through a third-party management company, and the other based on slip rates at comparable private marinas. By applying the 30 percent ratio to these "average slip rates," the Ratio Analysis provided a “benchmark” mooring rate of $14.60 to $15.17 per-linearfoot per month.
18 As the Comparable Rentals Approach and Ratio Analysis were given primary emphasis in the appraisal, these methodologies were ultimately used to arrive at a reconciled “benchmark" monthly mooring rate of $16 per linear foot. This benchmark was used as the rate for the most common mooring size of 40 feet, leading to an annual rate of $7,680 for a 40-foot mooring. The $16 benchmark rate was then tiered based on the vessel size that each mooring can accommodate. The resulting rates range from $10.50 per linear foot per month for a 25-foot mooring, to $23.25 per linear foot per month for a 95-foot mooring.
Staff concluded that the City could rely on the appraisal without violating the law.
As discussed in the introduction section above, Staff reviewed the City's December 2023
onth for a 95-foot mooring.
Staff concluded that the City could rely on the appraisal without violating the law.
As discussed in the introduction section above, Staff reviewed the City's December 2023 appraisal and concluded that the City could reasonably rely on it to set mooring rates. Staff's opinion has not changed. The Legislature granted Newport Bay to the City to manage in its discretion, and the Commission's role is to review whether the City is exercising that discretion within the bounds set by the Constitution, Public Trust Doctrine, and granting statute. The Commission does not have authority to dictate how the City exercises its discretion within those bounds. In this case, the appraisal does not violate generally accepted appraisal practices or methodologies and, as such, provides a reasonable basis for rental rates that are reflective of fair market value and therefore consistent with the Constitution, Public Trust Doctrine, and grant statutes.
Recommendation Staff recommends that the City continue using independent appraisals of fair market value, performed at regular intervals, to determine fair market mooring rates. As stated in Commission staff's April 9, 2024 letter to the City, the City may reasonably rely on the 2023 appraisal to set mooring permit rates. Staff understands that increasing the rates paid by current mooring permit holders to fair market values may create hardships, and is comfortable with the City phasing in the rate increase over time. Additionally, if the City wishes to explore adopting a program to provide a certain amount of reduced rate permits as part of a comprehensive program to provide equitable access to Newport Bay, staff will be happy to
the City wishes to explore adopting a program to provide a certain amount of reduced rate permits as part of a comprehensive program to provide equitable access to Newport Bay, staff will be happy to work with the City to determine how to implement that program in a way that is consistent with California Constitution and other legal requirements.
19 | Residential Pier and Mooring Permit Comparison Analysis In broad strokes, the calculation of residential pier rates and mooring rates are both based on appraisals that rely on comparisons to marina rates. There are differences, however, in how the City conceptualizes the rental area calculations.
Residential pier leases use only the footprint of the pier to calculate rent; there are no impact areas to account for the area used by boats moored to the pier, and no inclusion of water areas made inaccessible by the pier, such as the interior portion of a “U”-shaped pier.72 Mooring permit rates are based on linear feet of the maximum vessel size the mooring can accommodate, with different rates charged based on the maximum vessel size. So, for example, the proposed rate for a 40-foot mooring is $16 per linear foot and the proposed rate for a 60foot mooring is $21 per linear foot. Thus, a mooring that can accommodate up to a 40-foot vessel will be charged a monthly rate of $16 multiplied by 40 and a mooring that can accommodate a 60-foot vessel will be charged a monthly rate of $21 multiplied by 60, regardless of the actual length of the vessel associated with the mooring.
The mooring permit rate is based on the maximum length of the vessel and so is conceptually tied to the amount of space a moored vessel could occupy. The residential pier leases, on the
h the mooring.
The mooring permit rate is based on the maximum length of the vessel and so is conceptually tied to the amount of space a moored vessel could occupy. The residential pier leases, on the other hand, are calculated only based on the physical footprint of the pier and do not include areas that could be occupied by vessels or areas that are rendered inaccessible to the public because of the pier, such as the interior of a "U"-shaped pier. The issues related to the residential pier rental rates and lease area calculations are analyzed above in more detail, but even if the methodology is supportable, there is a discrepancy when comparing pier rent calculations to mooring permit rent calculations. One group is being charged based on the vessel's occupation, and the other group is not.
When comparing the frequency of rate adjustments there also appears to be a difference in how the City has addressed mooring permit rates and pier rates. For the piers, the City first adopted rates based on an average of two different appraisals in 201273; the City then adjusted buffer areas and rates in 201374; and in 2015 the City removed the buffer areas and reduced the rate to the lower of the two 2012 appraisals. 75 For moorings, the City raised rates in 2010 based on a percentage of a marina rate survey (the Marina Index) 76; in 2016 increased rates 72 Agenda Item No. 16, Feb 10 2015, attachment B.
73 Agenda Item No. 1, November 28, 2012.
74 Agenda Item No. 3, November 26, 2013.
75 Agenda Item No. 16, February 10, 2015.
76 Agenda Item No. 19, November 23, 2010.
20 20 | | | | based on an appraisal 77; and proposed raising rates in 2024 based on another new appraisal, 78 although that action has been paused.
10, 2015.
76 Agenda Item No. 19, November 23, 2010.
20 20 | | | | based on an appraisal 77; and proposed raising rates in 2024 based on another new appraisal, 78 although that action has been paused.
For both the pier rates and the mooring rates, the City's resolutions contemplated new appraisals every 5 years. 79 But, while the City has generally kept to that schedule for its mooring rates, it has been over 12 years since the City appraised its residential piers, and, as discussed above, the current residential pier rates appear to be significantly below fair market rates.
Viewing all this together, there appears to be a difference in how the City has managed its pier lease rates and its mooring permit rates. The trend for mooring rates has been to have regular appraisals to reflect market conditions; the trend for residential pier permits has been to reduce the overall rent amount through reductions of lease area and lowering of rates without conducting a new appraisal.
The City's discrepancy between residential pier and mooring permit rates may violate the grant statute and the City's fiduciary duties.
The City's Grant states, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith.”80 Commission staff interprets this provision to prohibit charging different rates for the same use – for example, a different mooring permit rate for residents and non-residents. Charging different rates for different types of uses is appropriate when the City can rationally explain the reason for the differences. In this case, is arguable whether residential pier leases and
. Charging different rates for different types of uses is appropriate when the City can rationally explain the reason for the differences. In this case, is arguable whether residential pier leases and mooring permits are similar enough to require the same rental rate calculations by the Granting Statute's anti-discrimination clause. On the one hand, they both have the purpose of providing boat storage; on the other, they might reasonably use different approaches to calculating the amount of tidelands used or the value of that use.
Nevertheless, even if the anti-discrimination clause is not violated, the City has a fiduciary duty to act with care and impartiality, to act only in the interest of the beneficiaries - the statewide public, and not to act for any purposes unconnected to its trustee duties. 81 The City appears to have treated its residential pier lessees, who are necessarily City residents, more favorably than its mooring permit holders. This could be interpreted as the City providing favorable treatment for its residents, especially when the City has not explained how its actions are consistent with 77 Agenda Item No. 20, January 26, 2016.
78 Agenda Item No. 13, July 9, 2024.
79 Resolution 2016-17, adopted January 26, 2016; Resolution 2012-120, adopted December 11, 2012.
80 City Grant section 1(d).
81 California Public Resources Code section 6009.1, subds. (c)(2), (6).
21 | its obligations as the State's grantee. Even if this does not fit into the technical definition of discrimination in the City's Grant, this disparate treatment risks violating its fiduciary duties to the State.
Recommendation The City should comprehensively review its mooring permit conditions and residential pier
n the City's Grant, this disparate treatment risks violating its fiduciary duties to the State.
Recommendation The City should comprehensively review its mooring permit conditions and residential pier lease conditions, including rental rates, rental area, method and frequency of rent revisions, potential for subleasing, and other terms, to ensure that both user groups are being treated equitably. When the City updates its residential pier lease rates, it should also establish a schedule to reappraise the residential pier rates and mooring rates at the same time, or at least on a regular schedule with the same intervals between reappraisals. Using an independent appraisal of fair market value, reappraised no less than every 5 years, is a reasonable, Trustconsistent approach to ensuring rates are at fair market value. Moorings and residential piers may use different calculation methods as long as each reflects fair market value and the reasoning supporting each approach is documented by the City.
22 22 | | Mooring Permit Transfers.
Background In the City's current mooring permit system, the mooring permit authorizes the permittee to occupy a mooring space located within the City's granted lands, and the permittee owns and is responsible for maintaining the mooring tackle (the tackle includes the buoys, chains, and anchors). Under this system, mooring permit holders are allowed to privately transfer their mooring permits. The ability to privately transfer mooring permits has led to a private market for these permits. According to the City, the prices for mooring permits within this market have ranged from $10,000 to $60,000.82 The Orange County Grand Jury Report criticized the City of Newport Beach for allowing this
cording to the City, the prices for mooring permits within this market have ranged from $10,000 to $60,000.82 The Orange County Grand Jury Report criticized the City of Newport Beach for allowing this secondary market for mooring permits, making the following Finding and Recommendation: Finding F-1. Private profits are being made from the current procedures used in transferring the mooring permits located on the public tidelands in Newport Harbor.
Because the mooring equipment and the vessel currently assigned to that mooring must be sold to the same person, when a vessel on a mooring is sold, the new owner transfers that mooring permit into his or her name, rather than vacating the mooring and allowing the waiting list to proceed in order.
Recommendation R-1. Tighten the regulations and procedures involved with Newport Harbor mooring permits and their transfers to ensure that all monies received which rightly belong to the public, stay within the public arena. 83 In response to the Grand Jury Report, on November 23, 2010, the City limited mooring permit transfers to two transfers per permit before 2021. After two transfers, mooring permits would revert to City control and be redistributed through a public waiting list, except for transfers within families. The staff report explained, "The City took the Grand Jury's report seriously, and embarked with the City's Harbor Commission and NMA [Newport Mooring Association] on a plan to address transfers (but not rates)."84 But on March 28, 2017, the City reversed its phase-out of the private mooring transfers and allowed permits to be transferred indefinitely. The City also created an internet listing of sold moorings detailing the location, size, and sale price at the time of transfer, which staff
ansfers and allowed permits to be transferred indefinitely. The City also created an internet listing of sold moorings detailing the location, size, and sale price at the time of transfer, which staff explained "promotes transparency, and provides a central location for the public to review pricing trends which there assists with determining the fair market value for moorings." The City's staff report did not discuss the Grand Jury report or the City's obligations under its grant 82 Agenda Item No. 19, November 23, 2010.
83 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?" Finding F-1, Recommendation R-1.
84 Agenda Item No. 19, November 23, 2010.
23 | | | statute. The only discussion and basis for the change was that “[f]eedback from the mooring community suggests allowing transfers among private parties and rescinding the transfer-cap date."85 The City also abolished the wait list. The staff report explained, “Because moorings have been privately sold to third parties and were rarely returned to the City, the wait list virtually never moved over the decades. . . . Under the current policy and after 2020, the wait list, in theory, would begin to move as permittees would no longer be allowed to sell moorings to third parties and would instead be required to return them to the City. However, given the recommendation in No. 1, above, to allow unlimited transfers, the wait list will once again be ineffective and be a burden to maintain as well as providing false expectations to the public.”86 Finally, the City increased the mooring transfer fee to 75 percent of annual mooring rent, up from 50 percent so the transfer fee for a 40-foot mooring increased from $708.60 to $1,062.90.87 Analysis
Finally, the City increased the mooring transfer fee to 75 percent of annual mooring rent, up from 50 percent so the transfer fee for a 40-foot mooring increased from $708.60 to $1,062.90.87 Analysis The mooring permit transfer system has been in place for decades – from a time when moorings were not as in-demand as they are today, and a transfer system existed side by side with a public waitlist. Now, however, the transfer system has replaced the waitlist and is the only way to obtain a mooring permit. 88 The transfer program created a private market for permit sales, and the City reported sales ranging from $10,000 to $60,000.89 Because a transfer is the only way to obtain a mooring, there is effectively a required up-front payment dictated by private parties and benefiting those private parties.
The City collects a transfer fee of 75 percent of annual rent. This amount is not connected to the sale price of the mooring permit itself. In the 2017 staff report reauthorizing transfers, the City noted that some people sought a mooring permit through the waitlist solely to profit from a subsequent transfer sale.90 The transfer program creates the potential for private parties to financially benefit from a private market for use of the City's granted lands - without the City's trust funds being fairly compensated.
Private profit from the use of granted lands is not, by itself, a legal violation. For example, commercial businesses lease tidelands to profit from the use; local governments benefit financially from tourism driven by waterfront uses; and residential home values increase if they have adjacent private docks. The problem with the mooring transfer sales in Newport Bay is 85 Agenda Item No. 3, March 28, 2017.
86 Agenda Item No. 3, March 28, 2017.
tial home values increase if they have adjacent private docks. The problem with the mooring transfer sales in Newport Bay is 85 Agenda Item No. 3, March 28, 2017.
86 Agenda Item No. 3, March 28, 2017.
87 Agenda Item No. 3, March 28, 2017.
88 Agenda Item No. 3, March 28, 2017.
89 Agenda Item No. 19, November 23, 2010.
90 Agenda Item No. 3, March 28, 2017.
24 24 that the mooring permits have been privately commodified by restricting public access, which allows individuals to dictate costs for access that are unrelated to the actual use of the tidelands and unregulated by the City. Undeniably, there is a potential for private profit without the City's tidelands fund being compensated. But even if an individual permit holder did not profit for their sale when compared to their own purchase price, the requirement that there be a private purchase is a barrier to access unrelated to the actual tidelands use and which does not benefit the City's trust fund.
Therefore, the private sale of mooring permits that is allowed by the City's transfer policy could be a violation of the City's grant statutes, fiduciary obligations to the State, and the public trust doctrine.
The City failed to consider its role as the State's trustee when rescinding the mooring permit transfer phase-out.
The concern with the mooring permit transfer market was brought to the City's attention in the 2006-2007 Grand Jury Report. Finding F-1 of that Report stated: "Private profits are being made from the current procedures used in transferring the mooring permits located on the public tidelands in Newport Harbor. Because the mooring equipment and the vessel currently assigned to that mooring must be sold to the same person, when a vessel on a mooring is sold, the new owner transfers that
nds in Newport Harbor. Because the mooring equipment and the vessel currently assigned to that mooring must be sold to the same person, when a vessel on a mooring is sold, the new owner transfers that mooring permit into his or her name, rather than vacating the mooring and allowing the waiting list to proceed in order."
The report's recommendation R-1 was to “Tighten the regulations and procedures involved with Newport Harbor mooring permits and their transfers to ensure that all monies received which rightly belong to the public, stay within the public arena." 91 When the City eliminated the transfers in 2010 (effective 2020), the City's ordinance stated that "When there is a great demand for moorings, a value is associated with a mooring permit well in excess of the annual permit fees. This value may be inappropriate in light of the California Constitution's prohibition against the gifting of public funds or assets as set forth in Article XVI, Section 6 of the state Constitution. This amendment to the mooring permit and transferability provisions... begins to bring the City's administration of moorings into compliance with Article XVI, Section 6."92 While prior to the Grand Jury report the City might have been unaware of the legal implications of the transfer program, it was demonstrability aware of them when it began to phase out the 91 2006-2007 Orange County Grand Jury, "Newport Harbor Moorings: Are They Held in the Public Trust or for Private Profit?" Finding F-1, Recommendation R-1.
92 Ordinance No. 2010-26, adopted November 23, 2010.
25 | transfers in 2010. The City should have been aware of those issues when it reversed its phaseout of the transfer program in 2017.
But when these transfer restrictions were rescinded in 2017, the City did not make any
The City should have been aware of those issues when it reversed its phaseout of the transfer program in 2017.
But when these transfer restrictions were rescinded in 2017, the City did not make any statements about the Grand Jury Report's conclusions, the identified conflict with Article XVI, Section 6, of the California constitution identified in the City ordinance, or the City's obligations under its Grant. The only reason given for the recommended changes in the staff report was that "[f]eedback from the mooring community suggests allowing transfers among private parties and rescinding the transfer-cap date.”93 The official minutes of the meeting also do not reflect that any Councilmember or staff person raised the issue. 94 The City appears to have failed to consider its legal and fiduciary obligations as a Legislative grantee when making the decision to revert the transfer restrictions in 2017. The City's staff report does not contain any analysis of how the changes would, or would not, satisfy their obligations under their grant statute, and does not mention the Gift of Public Funds issue that, in 2010, was noted in the transfer restrictions. This failure means that the City could be violating the California Constitution, the Public Trust Doctrine, its Legislative Grant, and the fiduciary duties it owes to the State.
The City's transfer program may violate the California Constitution.
The City's transfer program appears to violate the Constitutional prohibition against gifts of public property. Article XVI, Section 6 of the California Constitution prohibits the State and local governments from making “any gift or authorize the making of any gift, of any public money or
ts of public property. Article XVI, Section 6 of the California Constitution prohibits the State and local governments from making “any gift or authorize the making of any gift, of any public money or thing of value."95 When local agencies manage tidelands under a grant from the Legislature and use these granted tidelands, or money derived from the granted tidelands, in a manner that does not further the purposes of the grant, it is a gift of public property in violation of the California Constitution.96 In 2010 the City estimated that the value of privately sold moorings ranged from $10,000 to $60,000.97 The City's mooring transfer log shows that in 2024 the average transfer price was $35,187.50 (when excluding off-market transfers such as family transfers, additions of a second permittee, and transfers associated with house sales). 98 The City charges a transfer fee of 75 percent of the annual mooring rent, which for a 40' mooring would result in a transfer fee of about $1,206. According to City records, in 2024 the City received $72,678 in revenue from mooring permit transfer fees, while $2,536,200 was paid to private parties for mooring permits 93 Agenda Item No. 3, March 28, 2017.
94 Approved Minutes, March 28, 2017.
95 Cal. Const., art. XVI, § 6.
96 Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 210.
97 Agenda Item No. 19, November 23, 2010.
98 The City keeps a transfer log on its website.
26 sold on the private market. The revenue received by the City in 2024 was approximately 2.87 percent of what was paid to private parties for permit transfers.99 This transfer fee is unrelated to the mooring permit purchase price and does not adequately compensate the City for the transfer. Therefore, the City's program allows private persons to
t transfers.99 This transfer fee is unrelated to the mooring permit purchase price and does not adequately compensate the City for the transfer. Therefore, the City's program allows private persons to profit from mooring permit transfers by creating a private market for the sale of public assets without compensation to the City. This is like a public agency leasing a building at a nominal rate and allowing the lessee to sublease for a profit, which violates the California Constitution.10 100 The transfer program may violate the Public Trust Doctrine and the City's grant statute.
The City, as the Legislature's tidelands grantee, is bound by the Public Trust Doctrine when managing Newport Bay. 101 The Public Trust Doctrine's “dominant theme is the state's sovereign power and duty to exercise continued supervision over the trust.”102 Grantees like the City assume that duty of continued supervision of the granted lands. Accordingly, the grant statute imposes a term limit of 50 years for any franchise or lease. 103 While the grant statute does not mention permits, for purposes of the Commission's management, the Public Resources Code defines "lease” as including "a permit, easement, or license."104 106 In this case, not only do the mooring permits not have a time limit, but because they allow private parties to transfer them they effectively never return to the City for distribution, and the public now relies on private parties to obtain a mooring permit. 105 The City can revoke mooring permits for certain reasons, ¹ including a provision allowing the permit to be revoked if the "space is to be devoted for a more necessary public use."107 But this requires the City to justify the revocation, which may be difficult when it relies on subjective determinations like
evoked if the "space is to be devoted for a more necessary public use."107 But this requires the City to justify the revocation, which may be difficult when it relies on subjective determinations like another use being "more necessary" than a mooring permit. The practical effect is that revocation of a permit will only be for cause, similar to terminating a lease for cause. And a 99 Email from Lauren Wooding Whitlinger, Real Property Administrator, City of Newport Beach, to Benjamin Johnson, Staff Attorney, State Lands Commission, November 18, 2025.
100 See People v. City of Long Beach (1959) 51 Cal.2d 875, 883 [holding that nominal rent for a YMCA was not a gift because the YMCA fulfilled a public purpose and gained no monetary benefit from the lease].
101 Pub. Resources Code, § 6009, subd. (c); Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1174.
102 National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 437.
103 City Grant, section 1(b).
104 Pub. Resources Code, § 6501.
105 Agenda Item No. 3, March 28, 2017.
106 Newport Beach Municipal Code, section 17.70.020, subds. (A)(1), (4).
107 Newport Beach Municipal Code, section 17.70.020, subds. (A)(1)(h).
27 27 | | | lease for longer than 50 years will still violate the grant statute even though it can be terminated if the lessee fails to comply with its terms. Therefore, the City's mooring permit transfer program could be viewed as a relinquishment of the City's control of the permits to private parties, in violation of the Public Trust Doctrine and the City's grant statute The City does sublease moorings when the permit holder is away for an extended period of time, which to some degree helps address the privatization of the lands occupied by the
he City's grant statute The City does sublease moorings when the permit holder is away for an extended period of time, which to some degree helps address the privatization of the lands occupied by the moorings. But this does not resolve the fundamental problem that acquiring a mooring permit is now done at the discretion of private parties and not the City, and that the current transfer program effectively leads to alienation of the City's granted lands.
The transfer program may violate the City's fiduciary duties to the State.
As a legislative grantee, the City must manage the granted property "without subjugation of statewide interests, concerns, or benefits to the inclination of local or municipal affairs, initiatives, or excises," and is bound to act as the State's fiduciary. 108 Public Resource Code section 6009.1 lists fiduciary duties that legislative grantees must fulfill.
Among these duties are the following: • The duty to administer the trust solely in the interest of the beneficiaries. 109 Under both the Public Trust Doctrine and the City's grant statute, the City must manage Newport Bay to serve the statewide public interest, and the statewide public are the beneficiaries in the trust relationship created by the City's Grant. 110 The transfer program allows the group of current mooring permit holders to control the recipients of the mooring permits and potentially extract value from the process. The transfer program is therefore for the benefit of the group of current mooring permit holders and not for the general public that wishes to acquire a permit.
• The duty to take reasonable steps under the circumstances to take and keep control of and to preserve the trust property, 111 and the duty to not delegate to others the performance of
uire a permit.
• The duty to take reasonable steps under the circumstances to take and keep control of and to preserve the trust property, 111 and the duty to not delegate to others the performance of acts that the trustee can reasonably be required to perform and to not transfer the administration of the trust to a co-trustee. 112 The City's transfer program allows the private mooring tackle owners to control the future users of the property, which is potentially an impermissible transfer of power over the 108 Pub. Resources Code, §§ 6009, subd. (d), 6009.1, subd. (c).
109 Pub. Resources Code, § 6009.1, subd. (c)(5).
110 See Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 211.
111 Pub. Resources Code, § 6009.1, subd. (c)(8).
112 Pub. Resources Code, § 6009.1, subd. (c)(13).
28 sovereign land. This could be a violation of the City's duty to keep control of the trust property and not to delegate or transfer administration of the trust.
• The duty to make the trust property productive under the circumstances and in furtherance of the purposes of the trust. 113 As discussed above, private persons are selling mooring transfers and the City's transfer fee does not appear to reflect that sale. This could violate the duty to make the property productive – in this case, by failing to secure adequate value for the City's trust fund.
Recommendation The City should end its program of allowing private mooring permit sales. Many current mooring permit holders purchased their moorings with the expectation that they would have the option to sell them in the future to recoup the purchase cost. The City could consider ways to phase out transfers which recognizes that the current mooring permit holders were only
hey would have the option to sell them in the future to recoup the purchase cost. The City could consider ways to phase out transfers which recognizes that the current mooring permit holders were only following the City's established rules when they purchased their moorings. Commission staff is not taking a position on whether compensation should be provided to the current mooring permit holders.
| 113 Pub. Resources Code, § 6009.1, subd. (c)(9).
29 Residential Pier Subleases Background At a December 11, 2012 Special Meeting, the City's Municipal Code was amended to allow residential pier owners to rent out their piers, in which case they would pay commercial rental rates ($1.26 per square foot). The staff report for this decision does not explain why the City chose to allow the private renting of residential piers, only noting that the changes were "a result of the feedback from the Council and the public at the November 28th 2012 Special meeting."
"114 Staff recently reviewed Dockskipper, a website that publicly lists residential piers for sublease in Newport Bay, and found eight docks for listed rent, ranging from $1,250 per month ($50 per foot of vessel length per month, up to 25 feet) to $9,000 per month (or $1.50 per foot for a maximum vessel size of 95 feet, and use of a 2-car garage). 115 An average-sized residential pier of 1,116 square feet would pay about $1,406.16 per year in rent if charged at the commercial rate. According to City staff, there are currently 21 residential pier permittees that have notified the City they are subleasing their dock and who are being charged commercial rental rates.
Based on the data staff reviewed from Dockskipper, even at the low end of subleasing rates a
at have notified the City they are subleasing their dock and who are being charged commercial rental rates.
Based on the data staff reviewed from Dockskipper, even at the low end of subleasing rates a pier permittee with an average sized pier would be able to cover nearly their entire year's rent by subleasing their pier for one month.
Analysis Commercial leasing is outside the scope of this Report, and staff did not review the City's ratesetting for its commercial marinas or subleased piers. Nevertheless, if the commercial rates charged for residential piers being subleased are too low (especially in light of the sublease rates being charged by pier permittees), then this could be an unconstitutional gift of funds.
Recommendation The City should investigate residential pier subleasing in Newport Bay. At a minimum, it must ensure that all subleased piers are being charged rent at the commercial rate, consistent with the City's Code. If there are residential pier permittees subleasing without authorization, the City should also explore how to effectively track and enforce restrictions in the residential pier 114 Agenda Item No. 1, December 11, 2012.
115 https://www.dockskipper.com/newport-beach-boat-docks-slips-rent/ (accessed October 27, 2025). The prices were: free use of dock in exchange for use of boat; 50 per foot of vessel length a month, up to 25 feet (maximum of $1,250); $1,750 per month (vessel up to 30 feet); $2,900 per month (vessel up to 70 feet); $3,400 per month (vessel up to 50 feet); $3,500 per month (vessel up to 66 feet); $7,500 per month or $1.50 per foot (vessel up to 85 feet); $9,000 per month or $1.50 per foot (vessel up to 95 feet, includes 2-car garage); 30
up to 50 feet); $3,500 per month (vessel up to 66 feet); $7,500 per month or $1.50 per foot (vessel up to 85 feet); $9,000 per month or $1.50 per foot (vessel up to 95 feet, includes 2-car garage); 30 subleasing. The City should also evaluate whether the commercial rental rate is appropriate considering the rates residential pier permittees are charging for subleasing.
31 | The Mooring License Program and the City's July 9, 2024 Action On November 4, 2023, the City created the mooring license program. 116 The City's mooring licenses are non-transferable licenses that provide mariners with an option to rent moorings on a monthly basis, renewable for additional one-month terms. Fees for these licenses are based on an appraisal prepared by Netzer and Associates in August 2023, before the appraisal that Netzer and Associates prepared in December 2023 for the offshore moorings. Commission staff did not review or comment on the August 2023 Netzer appraisal. The license terms included: • Mooring Licenses are month-to-month and may be renewed, provided the licensee has paid in full the license fee, any late fees, and is not in violation of any provision of the license program.
• • • Live-aboards are prohibited.
The City may temporarily assign a mooring that is vacant or unoccupied to another vessel through the issuance of a mooring sub-permit.
Mooring licenses are not transferable.
The assigned vessel must actively occupy the mooring. Vacancy for more than 25 consecutive days is considered abandonment if it occurs without the prior approval of the Harbormaster. However, the mooring can be vacant for up to 6 months with prior approval from the Harbormaster.
A single tender – a small vessel, like a dinghy or kayak, which serves as access to and
Harbormaster. However, the mooring can be vacant for up to 6 months with prior approval from the Harbormaster.
A single tender – a small vessel, like a dinghy or kayak, which serves as access to and from shore to the assigned vessel – may be secured to the assigned vessel or to the offshore mooring in the absence of the assigned vessel.
A licensee may not allow vessels other than the assigned vessel and tender to use the mooring.117 On July 9, 2024, the City considered the Harbor Commission's recommendation to increase mooring permit rates. City staff also provided an alternate recommendation, where mooring permits would be phased out in favor of the License Program. City staff's alternate recommendation included: As of August 22, 2024, no new mooring permits would be issued. Instead, all new moorings would be authorized under the License Program.
• Existing mooring permittees would continue to pay the current mooring permit rates, with annual CPI adjustments or a 2 percent increase (whichever is less).
116 Agenda Item No. 4, November 14, 2023.
117 Resolution 2023-62, November 15, 2023.
32 32 Existing mooring permittees would be allowed to privately transfer their permit one time within four years, but no later than August 21, 2028. Following that transfer, no further transfers would be permissible for that mooring permit.
Mooring permits transferred during the four year "grace period" would be subject to the 2016 rates for four years from the date of the transfer. After this additional fouryear period the permit would convert to a License.
Mooring permittees that also held a live-aboard permit as of September 1, 2028, and whose mooring permit has converted to a mooring license, may continue to live on the vessel.
d convert to a License.
Mooring permittees that also held a live-aboard permit as of September 1, 2028, and whose mooring permit has converted to a mooring license, may continue to live on the vessel.
• Moorings and associated tackle subject to the License Program would be owned and maintained by the City. Moorings and associated tackle subject to the Permit Program would continue to be owned and maintained by the permittee. 118 The City approved staff's alternate recommendation. 119 However, the City deferred a second reading of the ordinance at State Lands Commission staff's request, meaning that it is not yet effective.120 Analysis The City concluded that the License Program rates were reflective of fair market value, and that conclusion is supported by the August 2023 appraisal. Similar to the December 2023 appraisal, the appraisal used for the License Program employed a "Comparable Rentals Approach" and a "Ratio Analysis” to arrive at a recommended fair market rent. The recommended rates were similar in both appraisals: for a 40-foot offshore mooring the August appraisal recommended $15.00 per linear foot, and the December appraisal recommended a benchmark rate of $16.00 per linear foot.
The alternate recommendation would eventually lead to the cessation of private mooring transfers and live-aboards, while allowing existing Mooring Permit holders to continue paying current rates (with CPI adjustments) in exchange for the removal of the ability to transfer the permit. As discussed above, private mooring transfers may violate the Public Trust Doctrine, the City's fiduciary duties to the State, and the granting statute. An updated mooring program that leads to the cessation of such transfers would match staff's recommendations regarding private
rine, the City's fiduciary duties to the State, and the granting statute. An updated mooring program that leads to the cessation of such transfers would match staff's recommendations regarding private transfers. City staff's alternate recommendation would also lead to the eventual phase out of live-aboards. Live-aboards are generally not consistent with the Public Trust Doctrine.
HoweverHowever, even if such use was consistent with the Public Trust Doctrine, the City has discretionary authority to choose between competing Public Trust uses and would be within its authority to eliminate live-aboard use in favor of other Public Trust uses.
118 Agenda Item No. 13, July 9, 2024.
119 Approved Minutes, July 9, 2024.
120 Approved Minutes, July 23, 2024.
33 Recommendation As discussed elsewhere in this report, staff supports both ensuring that rates remain at fair market value and the implementation of a fair resolution to the issues created by the City's transfer-current mooring program. The City should review the its staff alternate proposal in light of the discussion in this report to determine if this proposal provides a fair solution that ensures both fair market rent and addresses the mooring transfer-program issues.
34 | Conclusion When reviewing the City's management of its mooring permits and residential pier leases, a common issue is that the City has not adequately explained - or sometimes, has not explained at all - how its granted lands management decisions comply with the City's obligations as the State's trustee under the granting statute.
For example, when recommending that the City remove the interior of a “U”-shaped pier from the rental calculations in 2017, the staff report does not explain why it is making the
the granting statute.
For example, when recommending that the City remove the interior of a “U”-shaped pier from the rental calculations in 2017, the staff report does not explain why it is making the recommendation, only stating that "the decision to include or exclude the interior of the Ushape of a slip is left to the discretion of the City Council. "121 It is the same with the recommendation to reduce the pier rate from an average of the two appraisals to the lower value: the staff report just states that "the City Council has the discretion under the Beacon Bay Bill [the grant statute] and Newport Beach Municipal Code to determine the fair market value rent for residential piers based in part on these two appraisals." 122 In the official minutes of that meeting, there is some discussion at the City Council meeting of the City's trustee obligations, and the reason for the reduction in the lease area, but not the rate reduction. 123 From the minutes it is unclear exactly how the City viewed its actions in relation to its trustee obligations.
This is also seen when the City reverted its mooring permit transfer policy in 2017, and staff only explained the basis for the reversion by stating, “Feedback from the mooring community suggests allowing transfers among private parties and rescinding the transfer-cap date." 124 The official minutes of that meeting do not reflect any discussion of the transfer policy's compliance with the City's trustee obligations. 125 The City has discretion on how to manage its granted lands, but the City must exercise that discretion for the benefit of the statewide public and for the purposes described in its statute and within the bounds imposed by that statute and the Public Trust Doctrine. It might be that in
e that discretion for the benefit of the statewide public and for the purposes described in its statute and within the bounds imposed by that statute and the Public Trust Doctrine. It might be that in some cases the City performs the analysis of its management decisions during the meeting when such decisions are made, but this is not always the case. And a failure to provide that analysis in the staff report means that the public cannot review the City's reasoning prior to the meeting.
Going forward, when the City takes any action involving its granted lands, it should explain how that action is consistent with its trust obligations - ideally in the staff report, so that the public can review that reasoning ahead of the meeting.
121 Agenda Item No. 16, February 10, 2015.
122 Agenda Item No. 16, February 10, 2015.
123 Approved Minutes, February 10, 2015.
Agenda Item No. 3, March 28, 2017.
125 Approved Minutes, March 28, 2017.
124 35 Exhibit C Dear Executive Officer Dumlao and SLC Staff, I am a tidelands user in Newport Harbor and respectfully ask SLC staff to revisit the Newport Tidelands Draft report in its entirety based on updated information provided to staff over recent weeks. This draft report suggests policy changes that would have major adverse effects on equitable treatment of tidelands users both in Newport and throughout the state. My primary concerns include: 1. Historical and Existing Rate Discrimination: The draft SLC staff report on Newport Tidelands does not adequately address the existing extraordinary rate discrimination in Newport Harbor, which is strictly prohibited in the granting statute as well as current State policy.
A simple evaluation of existing rates charged per square foot of impact area of boats using moorings vs. boats using A1
is strictly prohibited in the granting statute as well as current State policy.
A simple evaluation of existing rates charged per square foot of impact area of boats using moorings vs. boats using A1 piers proves beyond a shadow of a doubt that mooring permit boaters are charged far more (up to 20 times more) than pier permit boaters. This extreme rate discrimination has occurred for more than a decade. (Please see the NMA Website "SLC Draft Report" page for more information.)
I respectfully ask SLC Staff to recommend that the City address the EXISTING rate discrimination and to refrain from further actions that increase financial harm to mooring permittees.
Please recommend to the City that they use the same square foot methodology for both self-maintained moorings as they do for self-maintained piers.
2.Unreasonable Attack on Legal Mooring Transfers: According to materials obtained by the Newport Mooring Association and stakeholders through public records requests, City staff and advisors appear to have been discussing changes to mooring transferability with State Lands Commission staff over the past two years. Frequently cited as justification for ending the longstanding mooring permit transfer program is an outdated 2006-07 Civilian Grand Jury Report. This is referenced despite the fact that the concerns raised in that report were subsequently addressed through years of Harbor Commission and City Council deliberations. Those public processes produced numerous improvements and community benefits, including: A2 A3 223 A4 A5 45 1. Mooring permit holders agreeing to pay a significant increase in permit transfer fees with significant A6 revenues going into the tidelands fund for public benefit 1
, including: A2 A3 223 A4 A5 45 1. Mooring permit holders agreeing to pay a significant increase in permit transfer fees with significant A6 revenues going into the tidelands fund for public benefit 1 2. Mooring permit holders agreed to make their privately owned and maintained mooring tackle available for general public use via the City run mooring sublet program, with all rents going to the tidelands fund for further public benefit.
AZ 3. Mooring holders agreed to not transfer any mooring permit within the first 12 months of acquiring | A8 one to avoid any appearance of "flipping" mooring permits.
4. Members of the public being limited to holding two mooring permits Is Staff asking for a major policy change affecting users of tidelands and State lands throughout the State, without a major study or analysis?
Mooring permits have been transferable for nearly a hundred years. Other permits for the use of tidelands and State lands historically have been, and remain, transferable. Both Staff and the Commission are well aware of these facts, yet the Staff report suggests ending the right to transfer a mooring permit in Newport Beach and treating working class mooring permit holders differently than what is allowed in other harbors throughout the state. Other tidelands permits remain transferable both in this harbor and others: 1. Mooring permits are lawfully transferable up and down the coast of California, including in Avalon, Morro Bay, and Monterey. Slip transfers are allowed in Santa Barbara. Permits for the use of other State lands are also transferable in many cases. Why single out working class people with boats on moorings in Newport Beach? This appears to be an inequitable and politically motivated policy change with major implications.
A9 A10 A11 A12
ny cases. Why single out working class people with boats on moorings in Newport Beach? This appears to be an inequitable and politically motivated policy change with major implications.
A9 A10 A11 A12 2. Transferability was not a concern when extreme rate increases were initially proposed in January 2024. In fact, in May of 2023 The City Attorney and City Harbormaster both assured mooring permit holders that permits would remain transferable "in perpetuity."
A13 3. Mooring permit holders have relied on past practice, mitigation factors, extremely high fees paid to the City for the right to transfer, and legal opinions expressed in public by the City attorney when lawfully acquiring mooring permits associated with privately maintained mooring tackle under mandated City policy 4. The City's proposal to eliminate permit transferability affects only one category of Tidelands Permit holders-majority lower income, non-resident mooring permittees. Within Newport Harbor, other permit holders of tidelands are allowed to transfer their permits, including for tidelands in front of homes with docks, marina owners, restaurants, etc.
I respectfully ask SLC Staff to acknowledge the facts above and remove from their draft that the transfer of mooring permits is in conflict with state laws or regulations, especially given that SLC Staff have not made this recommendation to other harbors who engage in the same practice.
3. Legal Guidance and Common Sense do not align with the City's proposed "taking" of mooring permits: Reputable law firm Palmieri, Hennessey, and Leifer (PHL) wrote a letter to the City dated July 9, 2024 regarding the City's plan to convert all mooring permits into licenses [without compensating mooring holders] stating that "The
ennessey, and Leifer (PHL) wrote a letter to the City dated July 9, 2024 regarding the City's plan to convert all mooring permits into licenses [without compensating mooring holders] stating that "The City's plan institutes a taking. More specifically, it is an uncompensated taking not in compliance with the Eminent Domain law or the United States and California Constitutions.....the City intends to increase the mooring rates despite the taking of the mooring permittees' personal property [and legally obtained permit]. This scenario therefore presents a textbook case of an unconstitutional taking pursuant to the Fifth and Fourteenth Amendments' due process clauses as well as the Fifth Amendment's taking clause ["nor shall private property be taken for public use without just compensation"].)" City of Newport Beach. City Council. (2024, July 9). Objections to City's Proposed Actions Regarding Mooring Rates [Letter to City Council]. Retrieved from [URL] p 367-410.
A14 A15 A16 A17 2 Given these facts and concerns, I respectfully ask SLC Staff to advise the City of Newport Beach not to remove or adversely impact transferability of existing mooring permits while they will continue to allow transferability of other permits in the Harbor.
A18 4. SLC Staff's reliance on a highly controversial and problematic December 2023 mooring rate appraisal: It appears SLC Staff has performed only an informal review of the December 2023 mooring rate appraisal that attempts to peg self-maintained mooring rates as a ratio of full service marina slip rates. SLC staff have not provided any formal appraisal review document. The December 2023 Mooring Rate appraisal has been highly controversial because:
ng rates as a ratio of full service marina slip rates. SLC staff have not provided any formal appraisal review document. The December 2023 Mooring Rate appraisal has been highly controversial because: 1. The appraisal relies on a mooring-to-slip ratio that the appraiser himself stated was "unreliable" in his previous 2016 appraisal.
2. Documentation has been provided to SLC Staff that appears to strongly suggest City officials identified the assigned appraiser well prior to the City even sending out an RFP (bid request) for the mooring appraisal project. The same documentation (City emails) suggest that the appraiser was possibly influenced or steered by City officials in advance of, and during the appraisal. (Please see the NMA website for more information) 3. Unlike other harbors looked at in the report, Newport Beach does not provide access to the moorings. However, the appraisal report did not deduct the cost of obtaining in-water dinghy dock space, which in addition to other reasons, gives the report the appearance of treating mooring holders unfairly. The lack of shoreside access to offshore moorings in Newport is a significant factor that must be accounted (factored in) for in any reliable mooring appraisal.
4. The Newport Mooring Association has provided a thorough appraisal prepared by CBRE, a global leader in commercial real estate appraisals, who confirmed that existing rates were already at fair market in late 2023, and which took into account the lack of access and the cost of obtaining access to moorings.
I respectfully ask SLC Staff to no longer deem the City's December 2023 appraisal as reliable given these circumstances and given the major difference between the two appraisals. Please advise the City to order a
ly ask SLC Staff to no longer deem the City's December 2023 appraisal as reliable given these circumstances and given the major difference between the two appraisals. Please advise the City to order a truly independent appraisal that uses the same methods for the use of tidelands for moorings, homeowner docks, restaurant docks and other uses on Newport Harbor.
5. Lack of Transparency in development of License Conversion (City's Alternative Recommendations): The public was informed of the Harbor Commission's proposal to increase mooring rates up to 500% in January of 2024. From January of 2024 to July of 2024, the public endeavored to engage in the democratic process regarding rate increases that would only compound the already existing rate discrimination. Over the busy 4th of July weekend in 2024, the City unveiled last minute "Alternative Recommendations" that would not only raise rates by up to 500%+, but in addition, would take mooring permits from individuals and convert them into short-term, "City-owned" and managed assets.
1. The City's abrupt pivot-from more than six months of dialogue on fair mooring rates to a proposal resembling mooring confiscation, introduced with less than one business day's notice-appears to advance an agenda of pricing working class boaters out of the harbor.
2. The last minute plan had no analysis or data to show that it would better provide or enhance coastal access. On the contrary, it would transition access away from those who presently have it.
A19 A20 3 I respectfully ask SLC Staff to recognize that the City failed to act transparently in its role as trustee of the State's tidelands, and has engaged in discriminatory Tidelands management.
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A19 A20 3 I respectfully ask SLC Staff to recognize that the City failed to act transparently in its role as trustee of the State's tidelands, and has engaged in discriminatory Tidelands management.
I respectfully ask that the City be required to start over on any changes to the mooring permit system and properly engage the public in a transparent process that is equitable and fair to all tidelands users.
A21 A22 4 Newport Mooring Association www.newportmooringassociation.org Newport Mooring Association Comment on Staff Report 66 Do some boats in Newport Harbor pay no tidelands fees for berthing at all?
FY 23-24 Revenue by Tidelands Permit FY 23-24 Revenue $2,000,000 $1,500,000 $1,000,000 $500,000 $1,380,000 $1,900,000 $282,000 $0 1200 Residential Piers 1900 Commercial Slips 1200 Moorings Tidelands Permit Type TIDE & SUBMERGED LANDS ANNUAL FINANCIAL REPORT, June 30th 2024 “These decisions appear to be political in nature and may violate both the granting statute and the California constitution." -Staff Report 66, p. 3 1 California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 CC By Email: SLC Staff: Jeff Plovnick, Sheri Pemberton, Ben Johnson CA Coastal Commissioners and Executive Director Dr. Kate Huckelbridge Deputy Attorney General Sahar Durali October 9, 2025 Dear Chair Kounalakis, Commissioner Cohen, Commissioner Stephenshaw, Alternates, Executive Officer Dr. Dumlao, and Executive Staff, The Newport Mooring Association extends its gratitude to the State Lands Commission (SLC) and Staff for the time and effort spent since July 2024 on the Tidelands Management review of Newport Harbor. The outcome of this report will have far reaching implications for coastal access in Newport Harbor. We appreciate the
ffort spent since July 2024 on the Tidelands Management review of Newport Harbor. The outcome of this report will have far reaching implications for coastal access in Newport Harbor. We appreciate the opportunity to provide comment and feedback on Staff's draft report, and are available to provide further documentation and/or clarification as needed regarding the content of this letter and exhibits.
2 Table of Contents 1. Appraisal & Rate Findings 3-9 2. Rate Discrimination and Transferability..
.10-17 3. Mooring License Timeline .18-19 4. Alternatives and Moving Forward 5. Exhibits.......
19-21 .22-123 Draft Report Appraisal and Rate Findings 1.1 We do not completely agree with Staff's statement that "Residential pier rates appear significantly below market rates “ (p.3 of Staff Report 66). Current pier rates are approximately $0.58/square foot, and are therefore actually above the current SLC local benchmark rate of $0.451/square foot. It's the NMA's position that the SLC has exhibited the experience and expertise required to set accurate Benchmark rates, and that the frequency at which this is done is logical. The problem in Newport is not that the Residential Pier rates the City applies are too low, it's that the City exempts any "impact area" at Residential Piers/Docks from fee assessment calculations.
Furthermore, the City does not enforce the Code requiring "Small Commercial Marina" rates on many of the Residential Piers that sublet and profit from that “impact area".
We continue to believe that the SLC benchmarks are appropriate guides for trustees to consider when setting rates as they use local data, including multiple marinas in Newport Harbor. As noted in SLC Staff Report 39, dated 06/23/22: B1 3
enchmarks are appropriate guides for trustees to consider when setting rates as they use local data, including multiple marinas in Newport Harbor. As noted in SLC Staff Report 39, dated 06/23/22: B1 3 "The use of benchmarks improves the consistency, transparency, and efficiency in how the Commission establishes rent for large numbers of similar leases, saving time, resources, and money for both the applicant and the State."
1.2 We do generally agree with Staff findings that "The trend for mooring permit rates has been to use regular appraisals to reflect market conditions; the trend for residential pier permits has been to reduce the overall rent amount through reductions of lease area and lowering of rates without conducting new or updated appraisals. These decisions appear to be political in nature and may violate both the granting statute and the California constitution." [Emphasis added] These observations regarding appraisal schedules and impact area are supported by an overwhelming amount of evidence and analysis, which reflects that the disparity in treatment has been the case for at least the past 10 years.
We were surprised that other relevant factors may have been overlooked by Staff when making findings, and that some findings seem to lack adequate supporting evidence and analysis. For example, the Newport Mooring community and City officials spent three years collaborating on changes to the harbor code to ensure the State of California was properly compensated for mooring holders' use of state tidelands in response to the 2007 Grand Jury report (see Exhibit I). However, the collaboration between mooring permit holders and the City is not acknowledged in the report.
Additionally, the appraiser appears to somehow have been known to harbor
port (see Exhibit I). However, the collaboration between mooring permit holders and the City is not acknowledged in the report.
Additionally, the appraiser appears to somehow have been known to harbor commissioners in July of 2020, prior to the RFP for appraisals being released in April of 2021. As evidenced in Exhibit D, the Harbor Commission not only predetermined the appraiser, but curated the report to meet its intended objectives, potentially in violation of the Brown Act and the advice from the City Attorney for the Harbormaster to recuse himself on mooring matters.
22 B2 B3 B4 B1 (cont) 4 As currently stated, the findings in the Staff report will disproportionately impact the mooring community by reducing rights of access and driving up costs. In fact, it is likely that many who rely on moorings will lose their coastal access all together, and in some cases, their homes, and proximity to work in their maritime careers. This is a community that, as former Executive Officer Lucchesi noted at the California Coastal Commission on October 9th of 2024, has been on the receiving end of “an incredible discrepancy between the pier rates and the mooring rates” where the mooring permittees are suffering from "real, definite inequity” and paying significantly higher rates while using substantially less tidelands than residential dock permittees. (California Coastal Commission, October 9, 2024), 1:18:55 - 2:02:35.
Appraisal Concerns 1.3 We strongly disagree with SLC Staff's findings that the December 2023 Netzer appraisal was "reasonable," for the following reasons: 1. "Apples to Oranges" Comparison: The 2023 Netzer appraisal compared privately owned and maintained berthing tackle (moorings) to berthing provided
raisal was "reasonable," for the following reasons: 1. "Apples to Oranges" Comparison: The 2023 Netzer appraisal compared privately owned and maintained berthing tackle (moorings) to berthing provided by a 3rd party (commercial, for-profit, well-appointed and easily accessible marina docks). Netzer concluded that mooring permits should be charged roughly 1/3 the marina slip rate- where amenities are provided by that 3rd party (marina operator). However, Netzer failed to properly recognize mooring permittees provide and maintain their own berthing amenity (mooring tackle) at no cost to the City. The rate charged for moorings should be a "water coverage only" rate. A perfect example of this is the "water coverage only” rates charged by the SLC and the City for residential piers, which are a small fraction of marina B5 B6 slip rates. (Please see Exhibit A- Commercial Marina Rate vs. Individual Permit rates) B6 (cont) "Apples to Oranges" Comparison (Individually Maintained Berthing vs. Commercial Berthing) Residential Dock 40ft Dock Permit Costs Approximately $58/month water depth (ft.)
5 ELECTRA CUTE -10 Residential docks provide their own dock/tackle pays for water covered by docks ONLY *Provides own "amenities" VS.
water depth (ft.)
Commercial Marina 40ft Commerical Dock slip Costs = $2,133/month 5 ELECTRA CUTE -10 www Boats at commercial docks RENT their "tackle" = Pays for water covered by boat + dock Also pays for marina provided amenities "Apples to Apples" Comparison (Individually Maintained Berthing vs. Individually Maintained Berthing) B6 (cont) 7 Same Use, Same Public Waters Residential Pier $58/Month VS Mooring Permit $136/month • • Differences Code allows Sublet for personal profit Access limited to real property owners No Tidelands Fees assessed for boats
Public Waters Residential Pier $58/Month VS Mooring Permit $136/month • • Differences Code allows Sublet for personal profit Access limited to real property owners No Tidelands Fees assessed for boats Insurance and registration NOT required Dye tabs NOT required • • Not required to prove "Safe, Seaworthy, Operable" • • Similarities Provides Coastal Access Pays Tidelands fee Self-installed Self-maintained Costs the city nothing Transferable water depth (ft.)
9 5 B6 (cont) -10 • · • • • Differences & Public Benefits of the moorings City can sublet to public when vacant, Permittee cannot All Sublet Revenues go to Tidelands Fund for public benefit High Transfer Fee goes to Tidelands Fund for public benefit Permit Available to non-residents and boaters-on-a-budget Required to be "Safe, Seaworthy, Operable", Registered, Insured Mooring permittees acknowledge, just as with residential pier permittees, that they do not hold any real property ownership interest in the public lands beneath their boat storage area. Both dock and mooring permittees provide their own amenities and should pay "water coverage only" fees.
2. Reliance on Unreliable Comparison: Mr. Netzer himself deemed a slip-to-mooring ratio rate as “unreliable” in a previous 2016 NB mooring appraisal. (Please see Exhibit B) 8 The Ratio analysis attempts to estimate the market rent for moorings as compared to the rent for similar slip spaces in the same marina or harbor. As shown in the analysis, the ratio can vary dramatically (25% to 92%) and, while a potential renter could take this into consideration (cost of a slip v. cost of a mooring), it is not judged to be a reliable measure of Fair Market Rent. This analysis is given little weight in the final reconciliation.
B6 (cont)
his into consideration (cost of a slip v. cost of a mooring), it is not judged to be a reliable measure of Fair Market Rent. This analysis is given little weight in the final reconciliation.
B6 (cont) It is not clearly explained how the ratio analysis became a reliable measure of Fair Market Value for the 2023 appraisal. It is important to underscore that the State Lands Commission itself applies the same basic methodology for setting rates for both piers and moorings: square footage of tidelands covered and substitution. In practice, SLC benchmarks treat these uses consistently. The City's departure from this approach ―using "marina slip substitution” for moorings but “water coverage only" for piers—has been the primary tool of discrimination. This inconsistency cannot be defended as a matter of law or policy.
3. The SLC Staff noted several deficiencies in the 2023 Netzer appraisal.
"...the appraisal would benefit from a more thorough discussion of the moorings and marinas used in its comparison analysis, including a more detailed explanation of the amenities, services, ownership and maintenance of tackle, and other factors of each comparable, along with the appraiser's analysis of how to reconcile those differences.... Finally, the appraisal would benefit from clearer explanations of how calculations were performed. For example, the appraisal uses an average marina slip rate of $50.55 for Newport Bay and concludes that a 30% marina-to-slip ratio is appropriate. In both cases the appraisal provides the data the conclusions are based on but does not provide an explicit calculation or analysis for how each conclusion was reached from the data." (SLC, April 9, 2024) (Exhibit C) 4. Yacht Club Mooring Rates
a the conclusions are based on but does not provide an explicit calculation or analysis for how each conclusion was reached from the data." (SLC, April 9, 2024) (Exhibit C) 4. Yacht Club Mooring Rates The December 2023 Netzer appraisal is fatally flawed in another respect not recognized by Staff. In addition to relying on marina slip rates, the appraisal used Yacht 9 Club-provided mooring rates as comparables. This is indefensible. An exclusive, privately operated, service-provided mooring field with member benefits bears no resemblance to Newport's system of self-installed, self-maintained moorings.
Furthermore, the City had planned to exempt Yacht Clubs from rate increases that would be imposed on public mooring fields. (Exhibit H.)
Using Yacht Club rates artificially inflates values, and erases the "low-cost", self-sufficient, access enhancing nature of the Newport mooring permit system. (Please note that while the Local Coastal Program, Coastal Land Use Plan's 3.3.2-3. seeks to "Continue to provide shore moorings and offshore moorings as an important source of low-cost public access to the water and harbor.", in Newport, offshore mooring permit rates are multiples higher than the City's Residential Pier rates, and higher than City rates for 12 types of Commercial, for-profit Tidelands Permits.)
Discrimination and Transferability In the draft report, Staff identifies concerns of potential discrimination related to the practice of transfers between individual members of the public that “may” be problematic because "current mooring holders could, in theory, select future users based on discriminatory intent, such as only transferring the mooring to another Newport Beach resident, or another member of a certain belief system” (p. 27.) Staff's “could, in theory”,
future users based on discriminatory intent, such as only transferring the mooring to another Newport Beach resident, or another member of a certain belief system” (p. 27.) Staff's “could, in theory”, does not mean that this has, or does happen. If these types of accusatory concerns are going to be used in part to justify the removal of the last form of "low-cost” berthing in Newport harbor, the community would appreciate seeing verifiable proof that this is an actual problem. Furthermore, discrimination is already prohibited by the language present in transfer agreements, which are required to be signed and notarized.
10 B6 (cont) B7 (Exhibit F) have paid the required transfer rental charge to the City of Newport Beach. I further represent that I did not discriminate Transferee or any prospective transferee because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, mantal status, sex, sexual orientation, age or any other impermissible basis under law.
Executed this 12 day of By LSignature pust be notarized!
2013 at da By: (Signature must be notarized] California "...I further represent that I did not discriminate Transferee or any prospective transferee because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law."
While any form of discrimination towards what are now commonly referred to as "protected classes" has not been evidenced in relation to mooring transfers, and is specifically prohibited through signed transfer contracts, we respectfully request that said language on page 27 be removed, and instead recognize the scope of the City's
to mooring transfers, and is specifically prohibited through signed transfer contracts, we respectfully request that said language on page 27 be removed, and instead recognize the scope of the City's well documented rate discrimination over at least the past decade between mooring permit holders and dock permit holders. We agree that discrimination should not exist in tidelands management, and per the granting statute, this extends to protection for all peoples against rate discrimination. We strongly urge the SLC to use its oversight to require that the rate disparity be properly addressed and corrected, before any detrimental changes to the existing mooring permit system are endorsed by the State Lands Commission.
Political Decisions as Systematic Discrimination Staff's own draft report states that rate decisions for residential piers appear to have been "political in nature." The effect of those political choices has been to lower costs, and reduce fee areas for dockholders while simultaneously raising them for mooring permittees. With no inherent property rights to a dock or a mooring, the only distinction 11 B8 88 B7 (cont) is, to be eligible for a dock permit, the City requires that the permittee be a member of a select group of property owners, while to be eligible for a mooring permit, the permittee does not have to be a member of the select group and could even be a non-resident of Newport Beach. The discrepancy in permit rates and the "gifting" of State tidelands occupied by the boats berthed at the docks is not only discriminatory, but a violation of the State constitution. When political discretion is exercised in a manner that consistently advantages one class of tidelands user, and disadvantages another, that is
scriminatory, but a violation of the State constitution. When political discretion is exercised in a manner that consistently advantages one class of tidelands user, and disadvantages another, that is not merely "politics”—it is systematic discrimination in violation of the granting statute.
The City has failed to resolve these rate discrepancies, which constitute clear violations of the granting statute. Rather, it appears the City is attempting to cover up years of discrimination and make the leap to the non-transparent (last minute City Staff recommendation on July 5th, 2024) confiscation of mooring permits and tackle in order to convert them to City owned, “short-term,” high-cost, access reducing "mooring licenses", which would enable the City to justify the rate discrimination, and expand it well into the future. It appears this tactic is largely based on the misleading assumption that prior concerns identified in the Grand Jury Report of 2006/2007 were not adequately addressed by the City. This is patently false, as proven by years of City records, including Harbor Commission records, showing the City and mooring community working to resolve concerns from 2007-2015. It is unclear if these documents were provided by the City when State Lands Staff originally requested records in August of 2024, because the State's request for records specified City Council records, not those of the Harbor Commission.
B8 (cont) B9 12 Outdated Grand Jury Report - False Flag?
SLC staff mentions the 2007 Grand Jury Report as a basis for some opinion. However, concerns related to the Grand Jury Report have been addressed BY the City.
Concern Mooring holders are illegally profiteering from mooring transfers → Mooring Holders are illegally profiteering from renting out moorings
the Grand Jury Report have been addressed BY the City.
Concern Mooring holders are illegally profiteering from mooring transfers → Mooring Holders are illegally profiteering from renting out moorings Changes Made Mooring holders can only transfer (sell) their permit once in any 12 month period, and pay the highest transfer fee in the harbor, at 75% of the yearly rent Mooring holders cannot rent or even loan moorings to a friend, while dock permittees can earn rental income of $1000s /year Mooring Holders are limiting coastal access by -Mooring holders can only hold two permits at a holding many mooring permits at a time → time -Members of the public have access to nearly 100 vacant moorings daily through City sublet -Moorings provide free day use to the public as well B10 As mooring permit holder Adam Leverenz noted in a previous letter to the State Lands Commission on 4-28-2025: "The State Lands Commission has specifically sought information relating to the City's responses/actions resulting from the 2006/2007 Orange County Grand Jury Report. I have found Harbor Commission Staff Reports and meeting minutes, dating back to 2009, which indicate years of City process to address concerns raised in the Report. Remedial actions have included: • Limiting Mooring Permit holders to two Permits; Prohibiting Mooring Permittees from subletting their permitted moorings; • Prohibiting Mooring Permittees from loaning their permitted moorings out to family or friends; • Requiring that Mooring Permittees provide to the City ownership and registration documentation to assure that moored vessels are owned by the Permittee; • Frequent City inspections of mooring fields, including photographing of vessels there located;
City ownership and registration documentation to assure that moored vessels are owned by the Permittee; • Frequent City inspections of mooring fields, including photographing of vessels there located; • Mooring Permittees being required to name the City as insureds to City designated dollar amounts on moored vessel policies; 133 • Mooring Permittees agreeing to submit to Harbor Department Staff boarding moored vessels at any time, without judicial oversight; • Substantially increasing the Transfer Fee in 2010, and again in about 2017; Etc. (According to my research, in June of 2010, the Transfer Fee was $1.20 per lineal foot per year, or about $48 for a 40' Offshore Mooring Permit. The fee went to 50% of annual permit fee on or about November 23, 2010. At present, the Transfer Fee stands at 75% of annual permit fee. In October of 2023, I paid a Transfer Fee of $1,181.40 for a 40' Offshore Mooring Permit)."
While mooring permit transfer fees are 75% of annual rent (approximately $1200.00), dock permit transfer fees in the harbor are a flat rate of $334. The disparity in transfer fee rates between mooring permits and dock permits is further evidence of systemic discrimination. Despite the measures that have been implemented to ensure that the people of California are adequately compensated for the private use of tidelands over which mooring balls and boats float, it appears as though now the mooring holders that spoke up against this targeted rate increase (whistleblowers) are being punished with a plan to confiscate mooring permits outright with claims that the tidelands fund is not being adequately compensated for the transfer of moorings between individual members of the public. However, data shows that tidelands fund
permits outright with claims that the tidelands fund is not being adequately compensated for the transfer of moorings between individual members of the public. However, data shows that tidelands fund revenue from moorings, including transfer fees, far outreaches revenue from other tidelands users in the harbor.
B10 (cont) B11 B12 14 FY 23-24 Revenue FY 23-24 Revenue by Tidelands Permit $2,000,000 $1,500,000 $1,000,000 $500,000 $1,380,000 $1,900,000 $282,000 $0 1200 Residential Piers 1900 Commercial Slips 1200 Moorings Tidelands Permit Type TIDE & SUBMERGED LANDS ANNUAL FINANCIAL REPORT, June 30th 2024 Misapplication of the Term "Use" in Granting Statute Staff Report 66 states that “piers and independent mooring buoys are not equivalent uses within the grant" (p.2.) However, we encourage Staff and the Commission to consider that both mooring permits and pier permits authorize the same trust-consistent use: the berthing of a recreational vessel on public tidelands, with the permit holder providing the berthing amenity, and paying rent for its placement over public waters.
Whether a vessel is secured by pier or mooring, the underlying activity—berthing a boat—is identical. The granting statute prohibits discrimination not in the form of infrastructure but in the "use" of tidelands. "Use," in its ordinary sense, refers to the privilege of employing tidelands for a particular purpose. In this case, that purpose is 15 B13 B12 (cont) berthing. It must be recognized that the use of tidelands is the same between these two users.
B13 (cont) Despite this equivalence, the City's rate structure charges materially more for lower tier or difficult to access mooring permits, than for higher tier access pier permits. Again,
wo users.
B13 (cont) Despite this equivalence, the City's rate structure charges materially more for lower tier or difficult to access mooring permits, than for higher tier access pier permits. Again, given that both mooring permittees and dock permittees self-install and self-maintain their berthing equipment, the City cannot rationally justify this disparity by reference to distinct facilities or services. The result is a discriminatory rate scheme directly at odds with the express terms of the tidelands grant.
Broader Discrimination Across All Harbor Uses It is also critical to recognize that discrimination against mooring holders is not limited to a comparison with residential dock permits. The majority of other tidelands users in Newport Harbor—including marinas, restaurants, yacht clubs, fuel docks, and boat rental companies-pay significantly less on a square-foot basis than mooring permit holders do. These users all rely on the same SLC square-foot and substitution methodologies that the City applies everywhere else. Only moorings are singled out for a different, inflated appraisal-based methodology. When viewed against the full range of tidelands uses, the City's treatment of moorings stands out as indefensible and patently discriminatory.
Transferability Across Other Harbor Uses The same pattern appears in the treatment of transferability. Virtually all other tidelands permits in Newport Harbor are transferable-from restaurant docks to commercial marinas to yacht clubs. Yet SLC Staff have not raised concerns with these arrangements. Why is Newport being told that mooring permits, and mooring permits only, must be stripped of transfer rights while other harbor permits retain them?
Inconsistent Application Statewide B14 B15 B16 16
Why is Newport being told that mooring permits, and mooring permits only, must be stripped of transfer rights while other harbor permits retain them?
Inconsistent Application Statewide B14 B15 B16 16 It is our understanding that Avalon mooring holders, Santa Barbara slipholders and Morro Bay mooring holders, among others, continue to enjoy transfer rights under their local programs. The suggestion that, out of these places, Newport alone should abolish transferability is therefore not just inconsistent, it gives the appearance of isolated treatment that unfairly targets one community. Newport's less advantaged Tidelands Permit holders respectfully ask that the State not endorse City intent to single them out for additional disparate treatment. We cannot understand how the State would allow the City to strip Permit transferability from one targeted group of users, who have clearly been discriminated against, while the State allows it to remain for other, wealthier tidelands users IN Newport, and other users across the State.
Cost vs. Profit Breakdown for Transfers The City's repeated characterization of mooring permit transfers as "profiting", fails to account for the actual costs borne by permittees. In reality, permittees will have paid roughly $1,500 every other year in tackle replacement and inspections-$6,000 over a decade-simply to keep the mooring in its Code mandated safe condition. There is also the extremely high transfer fee - 75% of a year's rent - which is roughly $1200 and goes directly to the tidelands fund.. What is portrayed as “profit" is in fact the recouping of hard maintenance costs and recouping part of the deposit paid for the tackle and permit. The “soft costs"-monthly rent-are not recouped, and properly accrue to the
“profit" is in fact the recouping of hard maintenance costs and recouping part of the deposit paid for the tackle and permit. The “soft costs"-monthly rent-are not recouped, and properly accrue to the trustee as expense for the use of public land. Staff's analysis ignores this basic economic reality. And even were there to be some factual basis indicating "profit", which has as of yet not been proven by the City or State, Staff note in the draft report that profiting from public lands is not forbidden. This is also evidenced by the many State leases that exist, have existed, and continue to be included, granted, and renewed, as are reflected in State Lands meeting agendas and minutes. Many of these are entered into with for-profit entities. "Profit" being allowable, is further evidenced by the existence of 14 types of Commercial, for-profit Tidelands Permits in Newport, and the codified ability of Residential Pier Permit holders to sublet and profit from renting their docks, with very little, if any revenue, paid into the tidelands fund. In Newport, Mooring Permit B17 B18 B19 17 holders are the only ones forbidden by Code from subletting, yet they pay comparatively B19 (cont) astronomical Transfer fees, and typically higher rental rates/fees than other, for-profit uses of the very same waters.
Mooring License Timeline- A Bait and Switch?
Many in the mooring community are struggling to reconcile the timeline of the last few years with current proposed changes. The timeline reflects a lack of transparency on the part of the trustee and seems to suggest desired/predetermined outcomes for mooring permits. This is especially concerning, considering the dearth of alternative options that would have resulted in more equitable management, and preserved and protected the
rmined outcomes for mooring permits. This is especially concerning, considering the dearth of alternative options that would have resulted in more equitable management, and preserved and protected the coastal access of many less affluent tidelands users. The City itself identified as a "Potential Project", one such option, as shown in the timeline below: October 2022 • City Staff consider an option to earmark $1 million/year for 30 years in order to purchase moorings from mooring permittees.
Potential Projects: Harbor and Beaches Master Plan Projects - Review -Revie October 12, 2022 Page 2 Restrooms (shoreside): Improve existing • Mooring Buyback: Potential $1M per year for 30 years • Fire Safety Boat: $2M Please see Exhibit G 18 B20 May/June 2023 • City Council votes to convert 14 City Owned Mooring permits into brand new "Mooring Licenses." Mooring Holders were assured existing permits would remain permits and existing transferability rules will remain “in perpetuity" at May 23, 2023 City Council Meeting.
January 2024 . Drastic rate increases introduced for mooring permits only • City asks SLC to review Netzer appraisal • January-July 2024: Mooring holders attend Harbor Commission and City Council meetings asking for fair rates, in line with those for other tidelands users B20 (cont) April 2024 . SLC Responds to City regarding appraisal for increasing mooring rates suggesting appraisal would benefit from additional clarification on how it reached its conclusions July 2024: • City suddenly and without warning introduces a never before seen proposal without any public input which would be high cost, harbor-wide, "City-owned," "short-term", access reducing mooring licensing program.
The proposal was publicly noticed over 4th of July holiday weekend
ithout any public input which would be high cost, harbor-wide, "City-owned," "short-term", access reducing mooring licensing program.
The proposal was publicly noticed over 4th of July holiday weekend with less than 2 business days before the City Council would take up the proposal and without the benefit of the analysis that a Coastal Development Permit (CDP) would bring 19 B20 (cont) . SLC issues letter asking City to pause changes while they review tidelands management due to the inconsistencies apparent in the management of the Newport Harbor Tidelands The community views the City's last-minute shift-from simply raising mooring rates to confiscating mooring permits and raising rates—as a retaliatory bait-and-switch that bypassed appropriate channels and due process.
Alternatives Analysis The last-minute introduction of 100% City-owned licenses came with no analysis of the licenses themselves, or any alternatives to them. The City's Staff recommendation to convert all moorings to licenses also conveniently included an additional 4 year grace period for yacht club mooring permittees. If the true policy goal was to broaden access, simple, fair solutions exist, that would not dismantle the low-cost mooring permit system: (1) add new City-owned moorings at the back of "H" field or other underutilized areas, such as the vastly more space consuming, lower boat density single-point yacht club mooring fields, or (2) return rates under the existing sublet program, to the point they once were, so that more people can afford to use them again. Neither option was studied or discussed, demonstrating the lack of a genuine intent to identify alternatives that would be fair for all users.
B21 Moving Forward We request the SLC recommend and support actions that would:
died or discussed, demonstrating the lack of a genuine intent to identify alternatives that would be fair for all users.
B21 Moving Forward We request the SLC recommend and support actions that would: ● Resolve existing rate discrimination first. Require the City address the long-standing rate disparities before it is allowed to dismantle the current mooring permit system and systematically transition coastal access to the more affluent, and only further expand existing inequities.
B22 20 Ensure fair and transparent decision-making. The City has not upheld its fiduciary duties on these issues. It must be required to work openly with the community to develop equitable solutions to the many legitimate concerns.
Require Moorings and other tidelands users be appraised simultaneously and with the same methodology Residential piers are reportedly being appraised at this time as well. Any changes recommended for any tidelands users, including moorings and residential piers, should be based on the same methodology and implemented at the same time. Selectively targeting moorings while deferring action on other user groups has, and will continue to compound the discrimination already documented.
We respectfully call on the State Lands Commission, as a final safeguard against discrimination, to review the independent CBRE appraisal and recognize the Netzer appraisal as flawed in process, in the involvement of parties with disclosed and undisclosed financial interests, and in conclusions and results.
B23 B24 B25 Additionally, please consider the wealth of information missing from the Staff report but B26 provided through public comment—such as the City's prior collaboration with the Mooring Association to resolve the 2006-2007 Grand Jury's concerns, which is
ation missing from the Staff report but B26 provided through public comment—such as the City's prior collaboration with the Mooring Association to resolve the 2006-2007 Grand Jury's concerns, which is seemingly completely omitted from this draft report.
Some of the conclusions in this draft report, if left uncorrected, will cause irreparable harm and a loss of coastal access for many in our harbor community. Please confirm receipt of this letter, and associated Exhibits A through J including an appraisal by Global Commercial Real Estate Services aka CBRE.
Sincerely, The Newport Mooring Association Board of Directors 21 Exhibits Exhibit A - Commercial Marina Rate Vs. Residential Pier Rates Exhibit B - Mr. Netzer Notes Ratio Approach is unreliable Exhibit C - April 9, 2024 SLC Letter Exhibit D Close Communication Between City Officials and Appraiser Exhibit E- Comparison of Current and Proposed Mooring Rates Exhibit F - Non-Discrimination Language in Permit Transfer Exhibit G - $30 million Mooring Buyback Concept Exhibit H - City's Intent to Exempt Yacht Club Moorings from Rate Increase Exhibit | - 2010 Email from Harbor Commissioner to Mooring Holders Exhibit J - CBRE Appraisal 22 22 Exhibit A: Commercial Marina Rates vs. Residential Pier Rates 5 Pgs.
23 Commercial Marinas charge rent for both use of water covered and amenities provided such as the dock, parking, water, electricity, security, trash removal, showers and restrooms, Staff, etc.
Common Marina Amenities A. Easy walk-up access and security B. Trash C.Storage and onsite parking D. Electricity E. Water D B Current Rates for Balboa Yacht Basin: Reconciling numbers from City documents identifying physical spaces of slips at Balboa
security B. Trash C.Storage and onsite parking D. Electricity E. Water D B Current Rates for Balboa Yacht Basin: Reconciling numbers from City documents identifying physical spaces of slips at Balboa Yacht Basin (BYB), with the State Lands referenced "Division of Boating and Waterways 2005 publication titled “Layout and Design Guidelines for Marina Berthing Facilities", a 40' single slip at BYB, would appear to encumber (Impact) approximately 867 sq. ft. City materials indicate that BYB's main dock portions should be 6' wide. There are slips on each side of the main dock. This would attribute 3' of dock impact area to each slip's length. A 40' boat is indicated in materials, as having a 14' beam (Width), and requiring one additional foot on each side of the slip, totaling a 16' slip width water impact area.
24 24 Finger docks are to provide 4' 2" (4.165') of unobstructed walkway (Additional sq. footage would be impacted by the obstructed sections where cleats, etc. are).
• impact area 16' Slip water-space width area + 4.165' finger dock width on one side of single = slip 20.165' slip width impact area approx.
25 25 CITY OF NEW CALIFORNIA BEACH Balboa Yacht Basin Marina 829 Harbor Island Drive Newport Beach, CA 92660 www.newportbeachca.gov/byb Slip Rates July 2025 Slip Length 2025-2026 Slip Rate (per foot, per month) 20' Slip $36.63 25' Slip $37.85 31' Slip $42.13 32' Slip $44.90 34' Slip $46.30 35' Slip $46.73 37' Slip $50.95 40' Slip $53.34 45' Slip $55.36 50' Slip $59.03 60' Slip $73.16 75' Slip $74.20
r month) 20' Slip $36.63 25' Slip $37.85 31' Slip $42.13 32' Slip $44.90 34' Slip $46.30 35' Slip $46.73 37' Slip $50.95 40' Slip $53.34 45' Slip $55.36 50' Slip $59.03 60' Slip $73.16 75' Slip $74.20 Current Rate for Residential Dock is $0.58/sq foot/year: City of Newport Beach - Schedule of Rents, Fines and Fees Description 1 Plers a) Residential b) Pier Permit Transfer Subject FY 24/25 Fee FY 25/26 Fee Charge Basis Note to CPI $0.58 $324.00 50.58 5334.00 per sq ft [a] Yes Yes 26 The following images show rates for offshore moorings vs. residential dock permits, both lacking City - provided amenities. Both of these permit types provide all their own tackle and maintain it at no cost to the City. Public offshore moorings have no designated parking, no restrooms, no dinghy service, no electricity or water hook-ups. Please note the number of empty moorings available for public use on any given day, which has been counted and recorded by mooring holders as close to 100. Please also note the average cost of residential piers (from this selection, Approx. $348 a year) in comparison to an offshore mooring, which currently costs $1,638 per year and can only hold one larger vessel and one dinghy under 14' 31133 Residential Pier Permits 207 Edgewater 549 sf $318.14/yr 209 Edgewater 458 sf $265.42/yr 211 Edgewater 488 sf $282.89/yr 213 Edgewater 438 sf $253.76/yr 217 Edgewater 719 sf $417.29/yr 301 Edgewater 960 sf $556.59/yr VARADO PL AVE E 1314 TAILTHY Offshore Mooring Rates 40 foot (most common size) Current Permit Rate: $1,638 /yr Pending License Rate: $7200 /yr Response to Harbor Commission Meeting January 10, 2024 Agenda Item No. 2.
Review of Appraisal and discussion of Rental Rates for Off-Shore Mooring Permits (1) Source: City of NB GIS Mapping
$7200 /yr Response to Harbor Commission Meeting January 10, 2024 Agenda Item No. 2.
Review of Appraisal and discussion of Rental Rates for Off-Shore Mooring Permits (1) Source: City of NB GIS Mapping https://www.newportbeachca.gov/ government/departments/city-ma nager-s-office/information-technol ogy-city-division/gis-mapping/inter active-maps (2) Source B: Resolution No.
2015-10 Adjusting the Rental Calculation and approving a Revised Model Permit Template for Residential Piers Located Upon Tidelands ($0.58/sq. ft.)
(3) Note: Both offshore mooring and pier permits are "triple net" meaning permittees are responsible for improvements and maintenance.
Biannual mandated offshore mooring maintenance approx.
$1,000 per year.
(4) Note: Offshore mooring permits are for linear feet assigned to the mooring while pier permits are for square feet of pier improvements and DO NOT include vessel footprint over tidelands in calculations Rev 2025-09-14 27 27 Highlighted Examples of Residential Pier Permits ALVARADO PL 207A ° 20 40 Shared Pier Rental Pier Feet 488 sq. ft.
$282/yr MERHEAD EDGEWATER AVE E 209 211 213 217 215 438 sq. ft.
$253/yr 719 sq. ft.
$417/yr CORONADO ST HEAD Only pier of these paying small commercial marina rate Response to Harbor Commission Meeting January 10, 2024 Agenda Item No. 2 Review of Appraisal and discussion of Rental Rates for Offshore Mooring Permits (1) Source: City of NB GIS Mapping 960 sq. ft.
$556/yr 728 sq. ft.
$422/yr 913 sq.
ft.
$903/yr Harbor Resources City of Newport Beach https://www.newportbeachca.gov/ government/departments/city-ma nager-s-office/information-technol ogy-city-division/gis-mapping/inter active-maps (2) Source B: Resolution No.
2015-10 Adjusting the Rental Calculation and approving a Revised Model Permit Template
a nager-s-office/information-technol ogy-city-division/gis-mapping/inter active-maps (2) Source B: Resolution No.
2015-10 Adjusting the Rental Calculation and approving a Revised Model Permit Template for Residential Piers Located Upon Tidelands ($0.58/sq. ft.)
(3) Note: Both offshore mooring and pier permits are "triple net" meaning permittees are responsible for improvements and maintenance.
Biannual mandated offshore mooring maintenance approx.
$1,000 per year.
(4) Note: Offshore mooring permits are for linear feet assigned to the mooring while pier permits are for square feet of pier improvements and DO NOT include vessel footprint over tidelands in calculations Rev 2025-09-14 Bulkhead & Pierhead Lines Single Pier 217 EDGEWATER AVE E RP11202171 (Total Permit Area = 719 sq. ft.)
Aerial Imagery takan February/March, 2014 Piar Exhibit created 2/25/2016 Shared Piers split area cost by 20%,259,33.396, or 5096 Rental Piers charged by area (sq. ft.)
Please note only one of these piers is identified by the City, as paying the Code required small commercial marina fee for subletting. The potential exists for other pierholders with multiple vessels tied up to their piers to be renting out their piers and profiting off the tidelands while not paying the required small commercial marina fees. Multiple websites aid in this, with rents stated in tens of thousands of dollars per year and/or "season."
28 Exhibit B: Mr. Netzer Notes Ratio Approach is unreliable 1 Pg.
29 Newport Harbor Moorings Newport Beach, California January 6, 2016 NETZER & ASSOCIATES moorings are rented based on the maximum mooring length not the vessel length. The quality and quantity of the market data upon which I have based my direct market comparison is considered
ASSOCIATES moorings are rented based on the maximum mooring length not the vessel length. The quality and quantity of the market data upon which I have based my direct market comparison is considered good; however, it did warrant adjustments for location and lack of access to dinghy storage. The Balboa Yacht Club mooring data is included for informational purposes as it is not offered on the open market but shows the demand within a closed market and defines an upper limit of the mooring rental range.
The CPI analysis is a trending of the rental rates established at various times (1975 & 1995) for the subject moorings. It is based on the assumption that the rental rates in the base years (1975 & 1995) are market based and that the change in CPI reflects the change in market conditions for moorings in Newport Harbor. The CPI is typically included as an annual adjustment to a lease, with periodic "market rent" adjustments applied to account for changes in market conditions as opposed to a trending of values based on a basket of goods. On the basis of my research, the 1995 figure was determined to be "Fair Market Rent" and is judged to be a more reliable indicator than the 1975 figure. The change in mooring rates at BYC between 2006 and 2015 suggests that the change in CPI may understate the change in market conditions for moorings in Newport Harbor.
The CPI analysis using the rent established in 1995 is judged to be more reliable than the 1975 figure and helps define the lower limit of the Fair Market Rent range.
The Ratio analysis attempts to estimate the market rent for moorings as compared to the rent for similar slip spaces in the same marina or harbor. As shown in the analysis, the ratio can vary
t range.
The Ratio analysis attempts to estimate the market rent for moorings as compared to the rent for similar slip spaces in the same marina or harbor. As shown in the analysis, the ratio can vary dramatically (25% to 92%) and, while a potential renter could take this into consideration (cost of a slip v. cost of a mooring), it is not judged to be a reliable measure of Fair Market Rent. This analysis is given little weight in the final reconciliation.
The Tidelands analysis is based on the premise that the Fair Market Rent for an individual mooring is tied to the market rent for the encumbered tidelands. This approach has its merits and the information and assumptions used in the analysis are well supported; however, the typical user of an individual mooring would not complete this analysis to determine market rent. In the final reconciliation this approach is given secondary emphasis.
Given the indications from the four approaches utilized, and the quality and quantity of the available market data, I have given each approach some consideration with primary emphasis placed on the Comparable Rental and CPI approaches. Based on my analysis of the market data uncovered, I have concluded that the subject off-shore moorings have an Annual Fair Market Rent, as of January 6, 2016, of: $32.00 to $38.00 per Linear Foot of Mooring.
30 Exhibit C: April 9, 2024 SLC Letter 3 Pgs.
31 STATE OF CALIFORNIA CALIFORNIA STATE LANDS COMMISSION 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 Established in 1958 April 9, 2024 GAVIN NEWSOM, Governor JENNIFER LUCCHESI, Executive Officer 916.574.1800 TTY CA Relay Service: 711 or Phone 800.735.2922 from Voice Phone 800.735.2929 or for Spanish 800.855.3000 Contact Phone: 916.574.1800 Lauren Wooding Whitlinger
LUCCHESI, Executive Officer 916.574.1800 TTY CA Relay Service: 711 or Phone 800.735.2922 from Voice Phone 800.735.2929 or for Spanish 800.855.3000 Contact Phone: 916.574.1800 Lauren Wooding Whitlinger Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Via email to: Subject: State Lands Commission staff review of City of Newport Beach Mooring Rate Appraisal Dear Ms. Whitlinger, Commission staff understands that the City of Newport Beach is reassessing mooring rates for Newport Bay to ensure they reflect fair market value, and the City's Harbor Commission contracted for an appraisal to serve as a basis of the rate update (commonly referred to as the Netzer Appraisal). Harbor Commission subcommittee members and staff requested that Commission staff provide a review of the Netzer appraisal.
Commission staff regularly provide informal advice to assist trustees in meeting their obligations under their granting statutes, and in that spirit agreed to review the appraisal. Staff acknowledges that Public Trust Lands often have unique characteristics that make them difficult to compare to other properties. As described more fully below, staff believes that the City can reasonably rely on the appraisal for setting mooring rates.
As background, the California legislature granted the state's tidelands and submerged lands in Newport Bay to the City of Newport Beach. The City has authority to set rents and rates for this granted land. The Commission oversees the City of Newport Beach to ensure it is complying with its grant statutes, its fiduciary T Chapter 74, Statutes of 1978, and as amended.
32 Lauren Wooding Whitlinger April 9, 2024 Page 2 duties to the State, 2 and the Public Trust Doctrine.3 As part of its fiduciary duties to
ts fiduciary T Chapter 74, Statutes of 1978, and as amended.
32 Lauren Wooding Whitlinger April 9, 2024 Page 2 duties to the State, 2 and the Public Trust Doctrine.3 As part of its fiduciary duties to the State, and to avoid making unconstitutional gifts of public property, the City must charge fair market rates for uses of granted sovereign land. The City, however, is not required to obtain the State Lands Commission's approval before adopting new mooring rates and is not required to use the same rent-setting methodologies as the State Lands Commission. Nor are any of the State's roughly 70 trustees of granted sovereign land.
Appraisals of submerged lands and fidelands are difficult, and we are aware that appraisers could reasonably employ different methodologies to arrive at fair market values. Staff is also mindful that the legislature entrusted management of Newport Bay, including establishing mooring rates, to the City's discretionprovided it acts within the contours of its granting statutes and fiduciary duties. Staff reviewed the appraisal at a high level to determine whether we believed the City could reasonably rely on its concluded fair market mooring rates.
After reviewing the City's appraisal, staff believes its approach.
methodologies, and its recommendations are reasonable. However, there are some areas where the appraisal would benefit from clarification or revision.
First, staff disagrees that residential land values should be used as a basis for valuing the offshore moorings, because the moorings' use is not connected with the residential use. Staff notes, however, that the rates based on upland residential values were ultimately not recommended by the appraisal.
Second, the appraisal references proposed mooring rate increases by the
l use. Staff notes, however, that the rates based on upland residential values were ultimately not recommended by the appraisal.
Second, the appraisal references proposed mooring rate increases by the San Diego Unified Port District, another trustee of sovereign land, and states that they were approved by the State Lands Commission. Just like in Newport Bay, the State Lands Commission does not have review or approval authority over the San Diego Unified Port District's mooring rates and therefore did not approve the Port's mooring rate increases.
Third, the appraisal would benefit from a more thorough discussion of the moorings and marinas used in its comparison analysis, including a more detailed explanation of the amenities, services, ownership and maintenance of tackle, and other factors of each comparable, along with the appraiser's analysis of how to reconcile those differences.
Finally, the appraisal would benefit from clearer explanations of how calculations were performed. For example, the appraisal uses an average marina 2 Public Resources Code §§ 6009, subd. (d); 6009.1.
3 See, e.g., City of Long Beach v. Morse (1947) 31 Cal.2d 254, 257 [holding that local grantee was subject to the same burdens as the state, including the Public Trust Doctrine].
33 Lauren Wooding Whitlinger April 9, 2024 Page 3 slip rate of $50.55 for Newport Bay and concludes that a 30% marina-to-slip ratio is appropriate. In both cases the appraisal provides the data the conclusions are based on but does not provide an explicit calculation or analysis for how each conclusion was reached from the data.
To be clear, staff is not suggesting that the appraisal be updated to address our comments, and neither are we mandating that the recommended rates be
or how each conclusion was reached from the data.
To be clear, staff is not suggesting that the appraisal be updated to address our comments, and neither are we mandating that the recommended rates be adopted by the City. Staff's conclusion, based on the City's request to review the appraisal, is that the City can reasonably rely on the appraisal's fair market rates.
The City could also adopt different rates if additional information shows that the recommendations should be modified. Many current mooring permitees contacted staff and made public comments at Commission meetings, expressing serious concerns over the large increase in mooring fees recommended by the appraisal.
Staff supports the City phasing in new, fair market mooring rate increases or otherwise working collaboratively with current mooring permitees to soften the impact of increased rates. Staff also observes a significant disparity between the City's residential pier rates and mooring rates. In addition to reassessing mooring rates, staff believes it is an opportune time for the City to also reassess its residential pier rates to ensure these rates reflect fair market value consistent with the City's granting statutes and fiduciary duties.
Charging less than fair market rates for the use and occupation of granted sovereign land may constitute an unconstitutional gift of public funds and a violation of the City's fiduciary duties to the state. Thank you for the opportunity to submit these comments.
CC: Sincerely, Пий Возний REID BOGGIANO Granted Lands Program Manager Sheri Pemberton, Chief of External Affairs Ben Johnson, Staff Attorney Chaun Wong, Staff Appraiser 34 Exhibit D: Close Communication Between City Officials and Appraiser 1 Pg.
35 On Jul 22, 2020. at 1:48 PM. Cunningham Scott Removing Jim.
airs Ben Johnson, Staff Attorney Chaun Wong, Staff Appraiser 34 Exhibit D: Close Communication Between City Officials and Appraiser 1 Pg.
35 On Jul 22, 2020. at 1:48 PM. Cunningham Scott Removing Jim.
wrote: Note the date. The RFP wasn't made public for bid by appraisers until April of 2021.
Hi All, I've had two long conversations with Jim regarding the 2016 Mooring Appraisal.
The net net is when we are ready (and funded) the appraisal results will look much different than the 2016 numbers.
My primary purpose in contacting Jim was to understand the discount applied to Newport Moorings (as compared to San Diego Mooring Company) for the lack of dinghy storage. Jim did confirm my exact assumption below. $1.67 per linear foot per month ($20.04/yr) discount was applied to the off shore moorings. By mistake, this discount was applied to the shore moorings at $.835 per foot. I have not read our agreements with the Yacht Clubs, but this $1.67 discount may also apply to the Yacht Clubs., who by default, have shore boat service baked into their mooring rental agreements.
My goal here is to highlight to everyone what revenue we are giving away due by not providing dinghy storage or better yet providing a shore boat service to moorings The "net net", "and funded", and "will look much different than the 2016 numbers" are very revealing statements.
From: Sent: Wednesday, December 27, 2023 10:15 AM To: Wooding, Lauren < Cc: Scully, Steve P: Beer, Ira P: Cunningham, Scott Blank, Paul On Thursday, December 28, 2023, 10:02 AM, Blank, Paul Howdy Jim: wrote: Subject: DRAFT- Offshore Mooring Appraisal w/ Tiered rates Lauren, On the basis of my meeting with the commissioners and the harbormaster I have attached a DRAFT (the watermark did not
wdy Jim: wrote: Subject: DRAFT- Offshore Mooring Appraisal w/ Tiered rates Lauren, On the basis of my meeting with the commissioners and the harbormaster I have attached a DRAFT (the watermark did not scan) of the offshore mooring appraisal with the inclusion of an analysis and conclusion based on the mooring lengths (5-foot increments for 25-49 feet & 10 foot increments for 50 to 70+ feet). There were a couple other typo/edits, but no other substantive changes.
They indicated that you were out of the office this week and requested that I forward it directly to them so that if there are any other edits I can get working on them ASAP.
Ira, Scott, Steve, and I just met and we all agree that we have no further comments to contribute to the report.
Please finalize at your earliest convenience and provide that final version for inclusion with a staff report to be written for the January 10, 2024 Harbor Commission meeting.
We all appreciate the significant effort you put into this appraisal and especially your responsiveness to suggestions during this holiday period.
All the best for a fantastic 2024.
Please call with any comments or questions.
Regards, Jim Netzer James B. Netzer, MAI Netzer & Associates simage001.png Paul Blank Harbormaster Harbor Department Office: These, and various other communications do not give the impression of an independent appraisal.
36 Exhibit E: Comparison of Current and Proposed Mooring Rates 2 Pgs.
37 Monthly Rate for 1200 Sq feet/ 40 foot Boat Monthly Rate for 1200 sq feet/40 foot Boat vs. Tidelands User $600 $400 $200 Type $136 $58 $0 Residential Pier Permit Mooring Permit Tidelands User Type $600 Mooring License Rental The graph above compares tidelands rates within Newport Harbor. City officials have
00 $400 $200 Type $136 $58 $0 Residential Pier Permit Mooring Permit Tidelands User Type $600 Mooring License Rental The graph above compares tidelands rates within Newport Harbor. City officials have voted to convert all permits to high-cost licenses. A 40' permit that currently pays $1632 yearly will cost $7200 a year under the new plan. It's important to note that both residential pier permittees and mooring permittees currently provide all of their own tackle and pay for their own maintenance—costing the City nothing.
The proposed rate increases are based on an illogical comparison of moorings to well appointed, full-service, for-profit marinas as described earlier, where the operator provides docks, utilities, support Staff and services. That is not an apples-to-apples comparison.
38 Yearly Mooring Rent for a 40' mooring $8,000.00 Yearly Rent For a 40' Mooring $6,000.00 $4,000,00 $2,000.00 $1,603.00 $1,320.00 $7,200.00 $0.00 $542.40 Avalon Morro Bay Newport Mooring PERMITS Newport Mooring LICENSE Mooring Location This graph compares self-maintained mooring tidelands fees in California. A look at identical, self-maintained mooring permit rates up and down to coast show that mooring rates in Newport are already in line with comparables.
39 Exhibit F: Non-discrimination Language in Permit Transfer 1 Pg.
40 40 MOORING PERMIT TRANSFER (Per NBMC Title 17, as amended or superseded) CITY OF NEWPORT BEACH, CALIFORNIA MOORING PERMIT NUMBER: H CURRENT MOORING PERMITTEE ("Transferor"); Mooring Permittee 1: MOORING LENGTH: 45 Mooring Permittee 2 (If Applicable): Phone Email CURRENT MOORING PERMITTEE DECLARATION Phone Email CALIFOR By signing below, I declare that I am the current Permittee of the Mooring Permit mentioned above. I wish to cancel the Mooring Permit
e Email CURRENT MOORING PERMITTEE DECLARATION Phone Email CALIFOR By signing below, I declare that I am the current Permittee of the Mooring Permit mentioned above. I wish to cancel the Mooring Permit listed above, and wish to transfer my interest in the mooring to person named below. All rent and fees are paid and current; all mooring inspections are current; all required maintenance and repairs are complete; and there are no derelict or unauthorized vessel(s) on the mooring. I have permanently vacated the mooring, have reported the price paid for the Mooring Permit to the City of Newport Beach, and have paid the required transfer rental charge to the City of Newport Beach. I further represent that I did not discriminate Transferee or any prospective transferee because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation age or any other impermissible basis under law.
Executed this By: [Signature must be notarized] 2024 at C NEW MOORING PERMITTEE ("Transferee"): (Signature must be notarizeu "...I further represent that I did not discriminate Transferee or any prospective transferee because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law."
41 Exhibit G: $30 million Mooring Buyback Concept 1 Pg.
42 BEACH EN CALIF CITY OF NEWPORT BEACH Harbor Commission Staff Report October 12, 2022 Agenda Item No. 6.2 TO: HARBOR COMMISSION FROM: Chris Miller, Administrative Manager, TITLE: Harbor and Beaches Master Plan Projects - Review Potential Projects: Restrooms (shoreside): Improve existing Mooring Buyback: Potential $1M per year for 30 years
Miller, Administrative Manager, TITLE: Harbor and Beaches Master Plan Projects - Review Potential Projects: Restrooms (shoreside): Improve existing Mooring Buyback: Potential $1M per year for 30 years Fire Safety Boat: $2M 43 43 Exhibit H: City originally did not intend to impose higher fees on Yacht Club Moorings 5 Pgs.
Note: The Current Harbor Master is a Staff Commodore at one Yacht Club that controls a large group of exclusive, members only moorings in Newport Harbor, and as evidenced in Exhibit D, was in fact involved with the 2023 Netzer appraisal of off-shore moorings, in spite of his agreement with the City to not participate.
44 44 Why are Yacht Club privileges relevant in this discussion?
Comparing public mooring fields to Yacht Club mooring fields is highly problematic. The Yacht Club mooring fields have benefitted in multiple ways from City favoritism towards this group of users. Yacht Club Mooring Fields contain far fewer vessels, over greater areas. Initially, the City did not intend to impose the rent/fee increases for members of the public on the exclusive yacht club fields at all, and was reluctant to acknowledge this intent (Please see Exhibit H).
The City's Harbormaster, responding to inquiry from the Coastal Commission on February 5, 2025, related to CDP 5-23-0753, stated that moorings at yacht clubs experience "a huge amount of turnover" (https://cal-span.org/meeting/ccc_20250205/ at approximately 6:43:20 on the timeline). And that "The yacht clubs are tasked with optimizing the utilization of their permitted space, for the benefit of their members. And they do so at a rate much greater than what the City does in terms of permitting the moorings in the other fields. So, there's a great deal of turnover
ted space, for the benefit of their members. And they do so at a rate much greater than what the City does in terms of permitting the moorings in the other fields. So, there's a great deal of turnover with the membership at the yacht clubs, and so they move boats in and out of their mooring fields much more quickly than permits transfer through the City, and the yacht clubs are just afforded that opportunity, and this goes back to the 1940s". (https://cal-span.org/meeting/ccc_20250205/ at approximately 7:02:48 on the timeline) Members of the public Mooring Permits on the other hand, must be held for a minimum of one year before “turnover”. City Mooring Transfer logs seem to indicate that the yacht club transfers, described by the Harbormaster as having "a huge amount of turnover", are exempted from paying the Code required 75% of annual rent Transfer Fee members of the public pay into the Tidelands Fund in instances those permits transfer. In Newport Harbor, discrimination in rates, tolls, charges goes deeper than just the monthly rent/fees for the occupation of public lands.
Coastal Commissioners on February 5th, had noted concerns of “inequity of access" between the two types of mooring fields, and had also observed that people who 45 currently have access to the coast, would not have safe access under City plans.
Coastal's findings reflect some of this: STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT OFFICE 301 E. OCEAN BLVD, SUITE 300 LONG BEACH, CA 90802-4325 VOICE (562) 590-5071 GAVIN NEWSOM, GOVERNOR Th15a Filed: 270th Day: Staff: Denied: 6/19/24 3/16/25 J. Palm-LB 2/5/25 Staff Report: 6/20/25 Hearing Date: 7/10/25 STAFF REPORT: REVISED FINDINGS Application No.: Applicant: 5-23-0753
WSOM, GOVERNOR Th15a Filed: 270th Day: Staff: Denied: 6/19/24 3/16/25 J. Palm-LB 2/5/25 Staff Report: 6/20/25 Hearing Date: 7/10/25 STAFF REPORT: REVISED FINDINGS Application No.: Applicant: 5-23-0753 City of Newport Beach Harbor Department (Attn: Paul Blank) In addition, permittees have asserted the proposed reconfiguration would be inequitable, given the City has asserted the proposed reconfiguration is in part intended to increase open water space within Newport Harbor. However, permittees note adjacent private yacht club mooring fields maintain a much larger footprint, and the City has not proposed nor intends to propose reconfiguration of the private yacht club mooring fields in an effort to increase open water space.
The Commission referenced these inequities in denial of the CDP application.
3. Private Yacht Clubs The applicant could reconfigure an adjacent private yacht club mooring field, which currently occupies more open water space than the subject field. This would achieve the City's objective of increasing open water space while testing alternative configurations.
46 46 The City's July 2024 plans for a full-on conversion of Mooring Permits into City owned Mooring Licenses would have yacht club favoritism continue into the future, as evidenced by Mayor and Council on July 9, moving to introduce Ordinance 2024-15 amending the Harbor Code related to Mooring Permits and Licenses, and adopting Resolution 2024-47, the "Alternative Recommendation for Rental Rates for Moorings".
In a nutshell, these convert Mooring Permits held by members of the public into "short-term", high-cost, access reducing "City owned” Mooring Licenses in four years, while giving Mooring Permits in the exclusive, members-only, lower density, higher
d by members of the public into "short-term", high-cost, access reducing "City owned” Mooring Licenses in four years, while giving Mooring Permits in the exclusive, members-only, lower density, higher impact area yacht club fields eight years. And during those eight years, City documents indicate that the yacht club's offshore moorings would get onshore mooring rates, which are half the price: Ordinance No. 2024-15, Resolution Nos. 2024-46 & 2024-47: Harbor Commission Recommendations and Alternative Recommendations for Rental Rates for Moorings July 9, 2024 Page 8 f) Yacht Clubs • The Balboa Yacht Club, the Newport Harbor Yacht Club, and the Lido Isle Community Association (LICA) are subject to the onshore mooring rates established in Resolution No. 2016-17 until August 31, 2032. Thereafter, the mooring permit will convert to a mooring license and subject to the short-term mooring rates established in Resolution No. 2023-62.
The above recommendations are reflected in the draft Ordinance No. 2024-15 (Attachment C) and license fee structure recommendations are drafted in Resolution No. 2024-47, (Attachment D). A redline strike out version of the ordinance is provided as Attachment K.
Some of Newport's Decision and Policymakers are members of, and/or closely affiliated with yacht clubs that benefit from the policy and decisions they themselves have made.
Does State Lands endorse this type of local, selfdealing policymaking?
47 Harbormaster Update - April 2022 Activities May 11, 2022 Page 5 Initiatives were launched resulting in better data capture and statistics reporting.
Future improvements will include customer satisfaction survey data analysis and calls for service location analysis Participated in the Emergency Operations Response to the following: о Elly oil spill
Future improvements will include customer satisfaction survey data analysis and calls for service location analysis Participated in the Emergency Operations Response to the following: о Elly oil spill Tsunami warning о о Three severe weather occurrences о Sewage spill into the harbor Out of control stolen boat in the harbor The Harbormaster has disclosed the arrangements made, at his own expense to alleviate any conflict of interest associated with his ongoing use of an offshore mooring permit.
While undergoing the recruitment process, any and all known possible conflicts of interest were disclosed. Prior to the City making an offer of employment, all such possible conflicts were discussed with the City Attorney. Agreements and arrangements satisfactory to all relevant parties were made during that discussion. The Harbormaster was entrusted and empowered to make determinations going forward related to any conflict disclosures. In support of this arrangement, the Harbormaster: does not participate in discussions or the development of recommendations related to use or financial arrangements associated with offshore moorings reminds anyone with an interest that input on recommendations related to offshore mooring permits are made by Real Property Administration staff does not deliberate or vote on any policy related matters before the Harbor Commission is expected to answer questions related to policy implementation and impacts on Harbor Department operations hereby discloses that the offshore mooring permit he enjoys is held in an irrevocable trust the beneficiary of which is the Balboa Yacht Club. The Balboa Yacht Club holds all the offshore mooring permits adjacent to the subject mooring hoping to avoid other conflict of interest concerns also hereby discloses any
ich is the Balboa Yacht Club. The Balboa Yacht Club holds all the offshore mooring permits adjacent to the subject mooring hoping to avoid other conflict of interest concerns also hereby discloses any significant financial interests related to the Balboa Yacht Club including a membership certificate are held in the same irrevocable trust further discloses that all remaining financial interests in either the subject offshore mooring permit or membership in the Balboa Yacht Club are de minimis 48 From: Ad lever < Sent: Thursday, June 13, 2024 11:55 AM To: Scully, Steve ◄ Subject: Thank you Chair Scully, I very much appreciate you approaching me after the Harbor Commission Meeting last evening, to answer my question about applicability of the fee/rent increases for Mooring Permits, under the Recommendation that has been forwarded to Council. Just to assure that I understood correctly, please confirm, that as with Mooring Permits held/administered under Yacht clubs, those under the Lido Island Community Association, are likewise, not subject to the Recommendation?
Again, thank you.
Adam Leverenz From: Scully, Steve < Sent: Thursday, June 13, 2024 12:25 PM To: Ad lever < Subject: Re: Thank you Correct Adam.
49 Exhibit I: 2010 Email from Harbor Commissioner to Mooring Holders Describing Changes made in respond to 2007 Grand Jury Report 2 Pgs.
50 50 -----Original Message---From: Marshal Duffield Sent: Wednesday, November 03, 2010 1:02 PM Subject: Reply to a mooring holder This is my reply to a person who two years ago paid $50k for a fifty-foot mooring!
I too feel the pain. 6 or so years ago Dave Kiff brought the mooring value issue up and then dropped it so we as a committee (Mooring Master Plan Sub Committee) went ahead to
for a fifty-foot mooring!
I too feel the pain. 6 or so years ago Dave Kiff brought the mooring value issue up and then dropped it so we as a committee (Mooring Master Plan Sub Committee) went ahead to provide data, outreach, and long debate on the boundaries and ad min of the moorings.
The City had a bid for the same work which I recall being around 300K-SOOK. Initially Dave K. and a few of his staff did not believe volunteers could provide the necessary information but changed their minds after attending a few meetings. Chip and the others came through very professionally all for no charge. I am not sure this council Is aware of the cost savings the committee provided. Unfortunately, it looks like the council Is going to proceed with Dave Kiffs suggestion of taking away mooring holders' equity and coming up with an out of the box method never been used anywhere for raising the fees. Very sad.
Real simple breakdown of our committee's scope of work: 1. Identify east, west, north, and south boundary lines for all the mooring fields then analyze for safety, workability to all those who use the bay.
2. Remove all derelict boats from the mooring fields. Find a way to prevent them from re-appearing.
3. Stop people from buying and selling moorings for profit. (emphasis added) 4. Improve transfer process.
Here's what we provided to the City: 1. We did the mooring field boundaries over a three-year period. Submitted to (NOAA) National Oceanic and Atmospheric Administration agency for approval.
2. We removed the rule that you had to have a boat on your mooring or you would lose the mooring. This solves the derelict boat issue.
3. After long and constructive debate decided the wait list was futile and should not
le that you had to have a boat on your mooring or you would lose the mooring. This solves the derelict boat issue.
3. After long and constructive debate decided the wait list was futile and should not exist. Since there are always empty moorings it was decided to require the empty mooring holder to allow the mooring to be rented by the City on a month to month basis. New income for the city and an affordable alternative for the new boat owner.
4. We word crafted a document that provides solid language to prevent the buying and selling of moorings (emphasis added).
51 5. Streamlined some of the bottlenecks of the paperwork and such when a transfer occurs and added a percentage of the sale to go to the City. Another new source of income for the City.
That's it in a nutshell. I can't see why the council would not stand behind the committee's hard work. The committee spent the time (years) and took the work very seriously. The Grand Jury at one point stepped in to investigate the process and found nothing of substance. A letter was sent by the mayor of Newport Beach to the grand jury confirming the process was above board.
The City attorney told me last night that the document was not on his desk and that he didn't know where it was. He did spend some time on it and put in his recommendations. It has been 18 months since we completed our work and submitted the document. I believe councilman Ed Selich has been holding on to it but that is just speculation.
Obviously many on my subcommittee had an (sic) vested interest in the moorings. The best resource one could draw upon for this work would be those who actively use the harbor and the moorings (emphasis added). Would someone from Riverside
an (sic) vested interest in the moorings. The best resource one could draw upon for this work would be those who actively use the harbor and the moorings (emphasis added). Would someone from Riverside County or who is not a boater in Newport Harbor be better for the job? The information is comprised from individuals closest to the issue. The council can choose on their own whether they want to use it or not.
Thank you, Marshall "Duffy" Duffield Chairman of the Mooring Master Plan Subcommittee for the Harbor Commission.
Note: "Chip and the others" were Newport Mooring Association board members and mooring holders who volunteered their time to support the City and mooring community. The changes described in this letter from Mr. Duffield were ultimately accepted by the City Council as acceptable and satisfied the Grand Jury.
52 42 Exhibit J: CBRE Appraisal of Offshore Moorings 2024 70 Pgs.
53 33 CBRE VALUATION & ADVISORY SERVICES APPRAISAL REPORT NEWPORT HARBOR OFFSHORE MOORING FIELDS TIDELANDS FAIR USE FEES NEWPORT HARBOR NEWPORT BEACH, CALIFORNIA 92662 NEWPORT MOORING ASSOCIATION, INC.
CBRE VALUATION & ADVISORY SERVICES February 12, 2024 Mr. L. Scott Karlin Policy and Legal Affairs on behalf of Newport Mooring Association, Inc.
NEWPORT MOORING ASSOCIATION, INC.
CBRE RE: Appraisal of: Newport Harbor Offshore Mooring Fields - Tidelands Fair Use Fees Newport Harbor, Newport Beach, Orange County, California Dear Mr. Karlin: At your request and authorization, CBRE, Inc. has prepared an appraisal of the market rental value of the referenced property. Our analysis is presented in the following Appraisal Report.
The subject property consists of the State-owned State of California Tidelands submerged in
market rental value of the referenced property. Our analysis is presented in the following Appraisal Report.
The subject property consists of the State-owned State of California Tidelands submerged in Newport Harbor that are currently utilized to accommodate individual offshore moorings. The Tidelands are currently held in Trust by the City of Newport Beach. There are approximately 740 offshore moorings, approximately 579 of which are in mooring fields A, B, C, D, F, G, H, J and K, and which excludes approximately 79 moorings in the Balboa Yacht Club mooring field and 73 moorings in the Newport Harbor Yacht Club mooring field which are not administrated by the City. The Harbor Patrol also has 6 moorings.
Although requested, updated precise sourced detailed information including the exact number of moorings, intended boat length for each mooring, and the amount of tidelands encumbered or utilized within each mooring field for use by individual moorings was not available. We have estimated / filled in any missing data and figures based on available information including mooring area maps, 6 years of detailed mooring transfer logs, Landvision aerial measuring tool, and calculations based on typical vessel sizes and mooring equipment. From these resources we have estimated 579 moorings in 9 mooring fields ranging from 18 moorings to 133 moorings, with average intended boat lengths ranging from 40' to 50' and average beam (width) of 15 feet, each of which is extended on average 12 feet from the boat to the buoy at the bow, and 12 feet from the stern to the stern buoy. In the case of mooring using only one buoy, the extra area at the stern would not be added. The mooring fields within which the individual
uoy at the bow, and 12 feet from the stern to the stern buoy. In the case of mooring using only one buoy, the extra area at the stern would not be added. The mooring fields within which the individual moorings are located comprise just over 82 acres of tidelands. Note that we independently estimated the area of the mooring fields with an aerial measuring tool which indicated actual mooring fields of around 73 acres; however, the Harbor Department-provided-data was relied upon for the purposes of the appraisal, despite being unsourced. The areas within the mooring fields outside the areas occupied by, or which could be occupied by a vessel on the individual moorings is not an area used exclusively by the owners of vessels on the individual moorings.
These areas are generally used by the public inclusive of kayakers, paddle boarders, small craft © 2024 CBRE, Inc.
Mr. L. Scott Karlin February 12, 2024 Page 2 such as Duffy Boats, as well as the occasional use by the owner of a vessel using a tender to access an individual mooring.
Our analysis is of the tidelands used by the individual moorings within the mooring fields. Actual fees or fair market rent would vary from mooring to mooring. For example, a mooring on the perimeter of a moorings field would have superior unobstructed views, easier access, and/or mooring fields are closer to the harbor entrance, etc. This, however, is offset by a generally inferior mooring which may be very far from the harbor entrance, have difficult or crowded access, be located near a gas dock or a “louder” area in the harbor, etc. Accordingly, for this assignment, and in order to provide as balanced and equitable an analysis of the tidelands in a harbor-wide context as possible, we based the valuation of market rent for the subject
rdingly, for this assignment, and in order to provide as balanced and equitable an analysis of the tidelands in a harbor-wide context as possible, we based the valuation of market rent for the subject tidelands upon a "typical" mooring.
Based on the analysis contained in the following report, and certain assumptions based on the typical area of tidelands used by a vessel on a mooring, and the lack of additional services or areas of tidelands available to mooring holders to access these moorings, the market value of the subject is concluded as follows: TIDELANDS FAIR USE FEES / FAIR MARKET RENT Annual Rent per 40' Mooring Based on Market Rent / Lineal Foot / 1,326SF of Tidelands Appraisal Premise As Is Date of Value January 15, 2024 YR for Tidelands ($3.36 LF per mo) $41.00 Compiled by CBRE Summary Table - Various Size Moorings Mooring Size Sq Ft with Annual Fee Max Swing Per Lineal Factor Foot (rounded to Annual Fee Based on Sq Ft Tidelands (without Annual Fee Per Lineal Foot (rounded to full dollar) full dollar) Rounding) 30 843 $35 $1,045.32 $1,050 40 1,326 $41 50 1,857 $46 60 2,322 $48 70 2,840 $50 $1,644.24 $1,640 $2,302.68 $2,300 $2,879.28 $2,880 $3,521.60 $3,500 used for individual mooring $1,640 If the City was to provide additional services to provide access to the moorings (such as shore boat service) or set aside areas of the tidelands for reasonable access to the moorings (such as in water motorized dinghy/tender boat dockage), an adjustment in the value may be appropriate, © 2024 CBRE, Inc.
CBRE Mr. L. Scott Karlin February 12, 2024 Page 3 depending on the nature and extent of such additional services or additional tideland used for such access.
The report, in its entirety, including all assumptions and limiting conditions, is an integral part of,
n the nature and extent of such additional services or additional tideland used for such access.
The report, in its entirety, including all assumptions and limiting conditions, is an integral part of, and inseparable from, this letter.
The following appraisal sets forth the most pertinent data gathered, the techniques employed, and the reasoning leading to the opinion of value. The analyses, opinions and conclusions were developed based on, and this report has been prepared in conformance with, the guidelines and recommendations set forth in the Uniform Standards of Professional Appraisal Practice (USPAP), and the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute.
The intended use and user of our report are specifically identified in our report as agreed upon in our contract for services and/or reliance language found in the report. As a condition to being granted the status of an intended user, any intended user who has not entered into a written agreement with CBRE in connection with its use of our report agrees to be bound by the terms and conditions of the agreement between CBRE and the client who ordered the report. No other use or user of the report is permitted by any other party for any other purpose. Dissemination of this report by any party to any non-intended users does not extend reliance to any such party, and CBRE will not be responsible for any unauthorized use of or reliance upon the report, its conclusions or contents (or any portion thereof).
It has been a pleasure to assist you in this assignment. If you have any questions concerning the analysis, or if CBRE can be of further service, please contact us.
Respectfully submitted, CBRE - VALUATION & ADVISORY SERVICES
assist you in this assignment. If you have any questions concerning the analysis, or if CBRE can be of further service, please contact us.
Respectfully submitted, CBRE - VALUATION & ADVISORY SERVICES Rabat Z facation Robert Jacobson, MAI Executive Vice President California State Certification No. AG035731 Expiration Date: July 7, 2025 © 2024 CBRE, Inc.
CBRE Certification Certification We certify to the best of our knowledge and belief: 1. The statements of fact contained in this report are true and correct.
2. The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions and are our personal, impartial and unbiased professional analyses, opinions, and conclusions.
3. We have no present or prospective interest in or bias with respect to the property that is the subject of this report and have no personal interest in or bias with respect to the parties involved with this assignment.
4. Our engagement in this assignment was not contingent upon developing or reporting predetermined results.
5. Our compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal.
6. This appraisal assignment was not based upon a requested minimum valuation, a specific valuation, or the approval of a loan.
7. Our analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the 2024 Uniform Standards of Professional Appraisal Practice, as well as the requirements of the State of California.
conclusions were developed, and this report has been prepared, in conformity with the 2024 Uniform Standards of Professional Appraisal Practice, as well as the requirements of the State of California.
8. The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute.
9. The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives.
10. As of the date of this report, Robert Z. Jacobson, MAI has completed the continuing education program for Designated Members of the Appraisal Institute.
11. Robert Z. Jacobson, MAI has made a personal inspection of the property that is the subject of this report.
12. No one provided significant real property appraisal assistance to the persons signing this report.
13. Valuation & Advisory Services operates as an independent economic entity within CBRE, Inc.
Although employees of other CBRE, Inc. divisions may be contacted as a part of our routine market research investigations, absolute client confidentiality and privacy were maintained at all times with regard to this assignment without conflict of interest.
14. Robert Z. Jacobson, MAI has not provided any services, as an appraiser or in any other capacity, regarding the property that is the subject of this report within the three-year period immediately preceding acceptance of this assignment.
Robert Jacobson, MAI California State Certification No. AG03573 © 2024 CBRE, Inc.
i CBRE SUPERIOR AVE BALBOA BI Pump It, Don't Dump It!
A Pumpout Nav App.
Find the nearest sewage pumpout and out of water using your phone's
alifornia State Certification No. AG03573 © 2024 CBRE, Inc.
i CBRE SUPERIOR AVE BALBOA BI Pump It, Don't Dump It!
A Pumpout Nav App.
Find the nearest sewage pumpout and out of water using your phone's geolocation, Available for iOS and Android devices. For more information regarding clean boating, please visit www.santamonicabay.org and www.Boating CleanandGreen.com Pumpout Station Public Dock Ferry Crossing Mooring Sites NEWPORT BLVDTURNING BASIN MAP OF NEWPORT HARBOR AND MOORING FIELDS City of Newport Beach WEST LIDO COAST-HWY-W LINDA ISLE LIDO PENINSULA CHINES Marina Park/ HarbormasterHNEWPORT BALBOA BLVD-W CHANNEL HARBOR ISLAND Anchorage COLLINS ISLAND CZZFZ NHYC BAY ISLAND NEWPORT PIER NORTH STAR BEACH NEWPORT DUNES JAMBOREE RD COAST HWY E ISLAND ISLAND BALBOA AND CHANNEL CHANNEL BYC Harbor Map SAN JOAQUIN HILLS RD Harbor Patrol/ County Harbormaster Newport Harbor is a No-Wake Harbor!
Harbor Related Contact Information The Speed Limit is 5 mph Upper and Lower Newport Bay are No Discharge Zones.
Dumping treated and untreated boat sewage is Illegal Warning: Underwater submerged lines City of Newport Beach Harbor Master: 949-270-8159 or VHF Radio Channel 19A Do not cross through mooring areas.
Orange County Sheriff Harbor Patrol: 949-723-1002 or VHF Radio Ch. 16 Newport Beach Lifeguard: 949-644-3047 Newport Beach Fire Department: 949-644-3611 or 911 US Coast Guard: 310-521-6000 or VHF Radio Channel 16 off shore Oil, Chemical and Sewage Spills Call Both Numbers California Office of Emergency Response: (800) OILS911 (645-7911) National Response Center: (800) 424-8802 Emergency: Call 9-1-1 Hoag Hospital: 949-764-4624 Sea Tow: 562-592-2808 or VHF Ch. 16 TowBoat US: 949-278-3207 or VHF Ch. 16 24 Hr. Crime Tip Hot Line: 800-550-6273 Newport Beach Weather: 949-675-0503
Emergency: Call 9-1-1 Hoag Hospital: 949-764-4624 Sea Tow: 562-592-2808 or VHF Ch. 16 TowBoat US: 949-278-3207 or VHF Ch. 16 24 Hr. Crime Tip Hot Line: 800-550-6273 Newport Beach Weather: 949-675-0503 BALBOA BLVD E BALBOA PIER E 0.25 Miles 1 inch 1,362 feet Newport Dunes Launch Ramp Info: http://www.dbw.ca.gov/Boating Facilities/Details/997 C THE WEDGE 0.5 © 2024 CBRE, Inc.
i CBRE FASHION ISLAND HARBOR ENTRANCE EAST J WEST MACART ACARTHUR BLVDBIG CORONA Mooring Field A from west Mooring Field A from east Mooring Field C from west Mooring Field C from east Subject Photographs Mooring Field B from west Mooring Field G from north © 2024 CBRE, Inc.
CBRE Executive Summary Executive Summary Property Name Location Client Highest and Best Use As If Vacant As Improved Property Rights Appraised Date of Report Date of Inspection Newport Harbor Offshore Mooring Fields - Tidelands Fair Use Fees Newport Harbor, Newport Beach, Orange County, CA 92662 Newport Mooring Association, Inc.
Offshore Mooring Use Offshore Mooring Use Leased Fee Interest January 31, 2024 January 15, 2024 Submerged Tidelands Area Mooring Fields Moorings Utilized Average Mooring Size Concluded Tidelands SF / Lineal Boat / Mooring Size Tidelands Attributable / 40' Boat 81.583 AC 9 579 40' 33 SF 1,326 SF VALUATION Rent Per Year Market Rent As Is On January 15, 2024 California State Tidelands Commission Methodology Inflation Methodology Based on City's Prior Benchmark Ratio Method $1,613 $1,670 $1,920 Appraisal Premise As Is Compiled by CBRE © 2024 CBRE, Inc.
3,553,765 SF TIDELANDS FAIR USE FEES / FAIR MARKET RENT Date of Value January 15, 2024 Market Rent / Lineal Foot / YR for Tidelands ($3.36 LF per mo) $41.00 Annual Rent per 40' Mooring Based on 1,326SF of Tidelands used for individual mooring $1,640 E: CBRE
ate of Value January 15, 2024 Market Rent / Lineal Foot / YR for Tidelands ($3.36 LF per mo) $41.00 Annual Rent per 40' Mooring Based on 1,326SF of Tidelands used for individual mooring $1,640 E: CBRE Executive Summary Market Rates for Moorings - Other Sizes Based on Methodologies Used in This Report the Value per Square Foot is $1.24 per Square Foot of Tidelands Used Per Annum. The square foot valuation would not change in relation to the size of mooring, only the square foot used and resulting adjustment to the total rate would change.
Sq Ft of Tidelands Used – No Swing Factor Boat Size + X Beam Total Sq Ft 30 + 24 X 12 648 40 + 28 X 15 1,020 50 + 34 17 1,428 60 + 34 × 19 1,786 70 + 34 X 21 2,184 Rates without a Swing Factor Boat Size Sq Ft with X Total Sq Ft Lines etc Fee Per Year at $1.24 sq Fee Per Year Per Lineal Foot 30 648 X 648 $803.52 $26.79 40 1,020 X 1,020 $1,264.80 $31.62 50 1,428 X 1,428 $1,770.72 $35.42 60 1,786 X 1,786 $2,214.64 $36.91 70 2,184 X 2,184 $2,708.16 $38.69 Add Swing Factor at 20% Boat Size Sq Ft with X 20% Total Sq Ft Fee Per Year Fee Per Year Lines etc with Swing Per Lineal Foot 30 648 X 778 $964.72 $32.16 40 1,020 X 1,224 $1,517.76 $37.95 50 1,428 X 1,714 $2,125.36 $42.51 60 1,786 X 2,144 $2,658.56 $44.31 70 2,184 X 2,621 $3,250.04 $46.43 Add Swing Factor at 25% Boat Size Sq Ft with X 25% Total Lines etc with Swing Fee Per Year Fee Per Year Per Lineal Foot 30 648 X 810 $1,004.40 $33.48 40 1020 X 1,275 $1,581.00 $39.53 50 1428 X 1,785 $2,213.40 $44.27 60 1786 X 2,233 $2,768.92 $46.15 70 2184 2,730 $3,385.20 $48.36 © 2024 CBRE, Inc.
iv CBRE Add Swing Factor at 30% Executive Summary Boat Size Sq Ft with X 30% Total Fee Per Year Fee Per Year Lines etc with Swing Per Lineal Foot 30
0 $3,385.20 $48.36 © 2024 CBRE, Inc.
iv CBRE Add Swing Factor at 30% Executive Summary Boat Size Sq Ft with X 30% Total Fee Per Year Fee Per Year Lines etc with Swing Per Lineal Foot 30 648 X 843 $1,045.32 $34.85 40 1,020 X 1,326 $1,644.24 $41.11 667 50 1,428 1,857 $2,302.68 $46.06 60 1,786 X 2,322 $2,879.28 $47.99 70 2,184 X 2,840 $3,521.60 $50.31 * Variations with Summary results from rounding square foot calculations.
v © 2024 CBRE, Inc.
CBRE Executive Summary MARKET VOLATILITY We draw your attention to a combination of inflationary pressures (leading to higher interest rates) and recent failures/stress in banking systems which have significantly increased the potential for constrained credit markets, negative capital value movements and enhanced volatility in property markets over the short-to-medium term.
Experience has shown that consumer and investor behavior can quickly change during periods of such heightened volatility. Lending or investment decisions should reflect this heightened level of volatility and the potential for deteriorating market conditions.
It is important to note that the conclusions set out in this report are valid as at the valuation date only. Where appropriate, we recommend that the valuation is closely monitored, as we continue to track how markets respond to evolving events.
CURRENT ECONOMIC CONDITIONS At its December 2023 meeting, the Federal Reserve held the federal funds rate at a range of 5.25% to 5.50% and indicated it will continue reducing its balance sheet by $95 billion per month. The Fed reaffirmed its commitment to lowering inflation to its 2.00% target, while also acknowledging that risks (inflation vs. growth) have become more balanced.
lance sheet by $95 billion per month. The Fed reaffirmed its commitment to lowering inflation to its 2.00% target, while also acknowledging that risks (inflation vs. growth) have become more balanced.
Despite headline inflation remaining above the Fed's 2.00% target, core inflation, which excludes food and energy prices, has steadily decreased over the past 12 months. The recent run-up in the 10-year Treasury yield has further tightened financial conditions, which will continue to suppress economic growth and inflation. Commercial real estate investment activity is unlikely to improve until capital sources are confident that interest rates have stabilized, and pricing has fully adjusted.
While opinions vary on future economic issues, the general market consensus at the time of this appraisal is the anticipation of moderating inflation as higher interest rates cool demand. Tighter lending conditions and a weakening economy will keep capital markets activity subdued and reduce leasing demand in the short to medium term. Amid this uncertain and dynamic environment, investment market performance will be uneven across property types.
Local Impact Note that while Newport Beach Harbor and its users are somewhat uniquely more insulated from broader changes in prevailing economic conditions due to the level of affluence surrounding the area and harbor, current economics and market fundamentals of harbor-related operations were artificially turbocharged due to the COVID-19 lockdowns and restrictions set forth by government throughout California. The lockdowns spurred boat usage and harbor demand in dramatic fashion during 2020 and 2021. As will be illustrated in the market analysis section, this artificial
by government throughout California. The lockdowns spurred boat usage and harbor demand in dramatic fashion during 2020 and 2021. As will be illustrated in the market analysis section, this artificial demand has waned with the COVID-19 pandemic, lockdowns, and operation restrictions behind © 2024 CBRE, Inc.
vi CBRE Executive Summary us, there is market evidence of a contraction in the boating market. In addition, we are currently facing unprecedented economic headwinds with the Fed raising rates over 500 basis points since April 2022, which historically has never been seen. This is intended and is anticipated to "unwind" much of the (again artificially imposed) COVID-19 pandemic era inflationary gains (increases in market rent and compression of rates of return).
EXTRAORDINARY ASSUMPTIONS An extraordinary assumption is defined as “an assignment-specific assumption as of the effective date regarding uncertain information used in an analysis which, if found to be false, could alter the appraiser's opinions or conclusions."
• 1 We have utilized the number of moorings, intended / assigned lineal foot capacity per mooring, and the amount of tidelands attributable to each mooring field based on multiple sources, the primary of which was the Newport Harbor Department mooring summary sheet.
This summary sheet was provided by the Harbor Department but was unsourced. Although requested, a full detailed comprehensive list of this information including actual surveyed tidelands areas was not provided / available. Also of importance but which was not available is the intended lineal boat capacity for each mooring. The appraiser is not a licensed surveyor. It is recommended that a professional tidelands survey be performed by a certified
ch was not available is the intended lineal boat capacity for each mooring. The appraiser is not a licensed surveyor. It is recommended that a professional tidelands survey be performed by a certified licensed surveyor and reliable source for all / average lineal foot mooring capacity for the mooring fields in question prior to making a business decision. The appraiser has made his best effort to accurately estimate these figures as relied upon in the following analysis. We reserve the right to amend our opinion of fair market rent if actual encumbered tidelands areas and lineal boat capacities vary from those figures utilized in the appraisal.
The use of extraordinary assumptions might have affected assignment results.
HYPOTHETICAL CONDITIONS A hypothetical condition is defined as "a condition, directly related to a specific assignment, which is contrary to what is known by the appraiser to exist on the effective date of the assignment results, but is used for the purposes of analysis." 2 • None noted OWNERSHIP AND PROPERTY HISTORY Title to the subject tidelands is currently vested in the State of California, in Trust to the City of Newport Beach.
To the best of our knowledge, there has been no ownership transfer of the property during the previous three years, nor any other marketing activity of unsolicited offers, and the subject is not currently listed for or pending sale.
1 The Appraisal Foundation, USPAP, 2024 2 The Appraisal Foundation, USPAP, 2024 © 2024 CBRE, Inc.
vii CBRE Table of Contents Certification Executive Summary Table of Contents......
Scope of Work......
Neighborhood Analysis .....
Subject Analysis Zoning.
Market Analysis….......
Highest and Best Use Fair Market Rent Analysis .....
Reconciliation of Market Rent Assumptions and Limiting Conditions
....
Neighborhood Analysis .....
Subject Analysis Zoning.
Market Analysis….......
Highest and Best Use Fair Market Rent Analysis .....
Reconciliation of Market Rent Assumptions and Limiting Conditions ADDENDA A General Data B Appraiser License Table of Contents .viii 1 9 10 13 14 16 17 31 33 viii © 2024 CBRE, Inc.
CBRE Scope of Work Scope of Work This Appraisal Report is intended to comply with the reporting requirements set forth under Standards Rule 2 of USPAP. The scope of the assignment relates to the extent and manner in which research is conducted, data are gathered, and analysis is applied.
INTENDED USE OF REPORT This appraisal is to be used for internal purposes related to discussions with the governing authority regarding increasing fees payable by mooring owners, and no other use is permitted.
CLIENT The client is Newport Mooring Association, Inc.
INTENDED USER OF REPORT This appraisal is to be used by Newport Mooring Association, Inc., and no other user may rely on our report unless as specifically indicated in the report.
Intended Users - the intended user is the person (or entity) who the appraiser intends will use the results of the appraisal. The client may provide the appraiser with information about other potential users of the appraisal, but the appraiser ultimately determines who the appropriate users are given the appraisal problem to be solved.
Identifying the intended users is necessary so that the appraiser can report the opinions and conclusions developed in the appraisal in a manner that is clear and understandable to the intended users. Parties who receive or might receive a copy of the appraisal are not necessarily intended users. The appraiser's responsibility is to the
manner that is clear and understandable to the intended users. Parties who receive or might receive a copy of the appraisal are not necessarily intended users. The appraiser's responsibility is to the intended users identified in the report, not to all readers of the appraisal report.
PURPOSE OF THE APPRAISAL 3 The purpose of this appraisal is to estimate fair use fees / fair market rent for the subject property.
DEFINITION OF VALUE There is no specific definition of Fair Market Rent. However, Market Rent is considered to be synonymous with Fair Market Rent for the purpose of this appraisal. Fair Market Rent is defined in the Sixth Edition (2015) of The Dictionary of Real Estate Appraisal as: "The most probable rent that a property should bring in a competitive and open market reflecting the conditions and restrictions of a specified lease agreement, including the rental adjustment and revaluation, permitted uses, use restrictions, expense obligations, term, concessions, renewal and purchase options, and tenant improvements (Tls)."
3 Appraisal Institute, The Appraisal of Real Estate, 14th ed. (Chicago: Appraisal Institute, 2013), 50.
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1 CBRE Scope of Work INTEREST APPRAISED The value estimated represents fair market rent, not an ownership interest such as fee simple or leased fee. Therefore, the concept of ownership interest is not applicable in this assignment.
Extent to which the Property is Identified The property is identified through the following sources: • various mapping software and records physical inspection Extent to which the Property is Inspected We inspected the subject property as well as the surrounding environs on the effective date of the appraisal. The inspection included various aerial and mapping resources, as well as a physical
pected We inspected the subject property as well as the surrounding environs on the effective date of the appraisal. The inspection included various aerial and mapping resources, as well as a physical inspection around and throughout the harbor.
Type and Extent of the Data Researched CBRE reviewed the following: • various public resources • comparable data • previous market studies and appraisals Type and Extent of Analysis Applied CBRE, Inc. analyzed the data gathered through the use of appropriate and accepted appraisal methodology to arrive at a probable value indication via each applicable approach to value. The steps required to complete each approach are discussed in the methodology section.
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Scope of Work Data Resources Utilized in the Analysis Item: Subject Encumbered Tidelands Area Number of Moorings Mooring Capacity / Lineal Boat Feet per Mooring Field Compiled by CBRE DATA SOURCES Source(s): Information Provided by Newport Harbor Department, LandVision Aerial Measuring Tool Information Provided by Newport Harbor Department (indicates 6 more moorings than the mooring field harbor maps) Public Record Mooring Transfer Logs June 2017 thru October 2022, LandVision Aerial Measuring Tool APPRAISAL METHODOLOGY In appraisal practice, an approach to value is included or omitted based on its applicability to the property type being valued and the quality and quantity of information available.
METHODOLOGY APPLICABLE TO THE SUBJECT In performing our market rental analysis, we have performed a rent comparable or paired rent analysis for available harbors in California that offer both slip and mooring options for boaters.
These harbors are in San Diego, Morro Bay, Monterey Bay/Santa Cruz, and Half Moon Bay. We
paired rent analysis for available harbors in California that offer both slip and mooring options for boaters.
These harbors are in San Diego, Morro Bay, Monterey Bay/Santa Cruz, and Half Moon Bay. We have incorporated this methodology into the market standard State of California employed methodology described below.
The Benchmark analysis is employed consistently throughout California by the California State Lands Commission. This is a common practice utilizing benchmarks which are used to establish uniform rental rates in specific geographic regions with large concentrations of similar facilities, mostly private recreational improvements within the Commission's jurisdiction. (Cal. Code Regs., tit. 2, § 2003, subd. (a)(5).) Within this analysis, it will be necessary to determine what income can typically be generated by a commercial marina / typical boat slip; the area occupied by a mooring in a well-designed harbor; what the rental charge would be for a typical sized boat; and the rate of return the state should receive for the use of its land. The "Commission typically charges 5% to 6% of gross income for boat berthing for sites leased to commercial marina operators, with most of the leases set at 5% of gross income." (Tomales Bay Berths and Buoys benchmark rates Staff Report 28). We note that the City of Newport Beach has used rates as high as 8.5% of rents received by Newport Harbor marinas to establish the fair rental value of the tidelands in relation to the largest marinas in Newport Harbor and less in relation to smaller marinas and other uses. This is set forth in the comprehensive Appraisal Report of the valuation of fees to be charged for use of tideland for all uses of the tidelands in Newport Harbor adopted
aller marinas and other uses. This is set forth in the comprehensive Appraisal Report of the valuation of fees to be charged for use of tideland for all uses of the tidelands in Newport Harbor adopted by the City of Newport Beach and published in 2016 and 2017 in two separate reports by George Hamiton Jones report which can be found at: © 2024 CBRE, Inc.
3 CBRE Scope of Work https://archive.newportbeachlibrary.org/NBPL/DocView.aspx?id=1263772 The Phase 1 report of George Hamiton Jones concerned a particular marina, and the Phase 2 report, which incorporated the methodology of the prior report concerned all commercial uses as well as other uses. It is noteworthy that some offshore moorings are used for approved commercial uses and as such fall under the George Hamiton Jones appraisal under other uses, and offshore moorings used for recreations use would also fall under "other uses", using a reasonable interpretation of the George Hamiton Jones appraisal. The rates in the George Hamiton Jones report were adopted by the City of Newport Beach, and then published and updated annually with increases. The current published rates can be found at the following link: https://www.newportbeachca.gov/government/departments/harbor/harborcharges/commercial-tidelands-permits-and-leases The City's published rates for, in effect, all uses except for homeowner docks, but which includes HOA (homeowner association docks when rented out by the HOA) shown in the link above are as follows: The following rates are effective March 1, 2022 through February 29, 2024: 4 CBRE © 2024 CBRE, Inc.
Commercial Use Category* Large Commercial Marinas Scope of Work Annual Rental Rate (Per SF) 3/1/22-2/28/23 Annual Rental Rate (Per SF) 3/1/23 2/29/24 $1.34 $1.42 $1.02
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Commercial Use Category* Large Commercial Marinas Scope of Work Annual Rental Rate (Per SF) 3/1/22-2/28/23 Annual Rental Rate (Per SF) 3/1/23 2/29/24 $1.34 $1.42 $1.02 Medium Commercial Marinas $1.08 $0.88 $0.93 Small Commercial Marinas $0.42 $0.45 Shipyards HOA Marinas/Docks for Nonmembers' Use > 30,000 SF $1.34 $1.42 $1.02 $1.08 < 13,000 SF $0.88 $0.93 Yacht Club Guest Slips $0.42 $0.45 Vessel Rental Facility (Boat Rentals) $0.88 $0.93 Sport Fishing Charters $0.88 $0.93 Restaurants' Guest Slips $0.42 $0.45 Vessel Charters $0.88 $0.93 Fuel Docks * $0.88 $0.93 All Others $0.88 $0.93 * The Annual Rental Rate for commercial tidelands being used as Fuel Docks can be calculated one of three ways, per City Council Resolution No. 2018-09. The table above reflects the base rent only calculation option.
Beginning on March 1, 2019, annual rental rates may be adjusted on the first day of March each Permit/Lease year to reflect an increase in the cost of living, as indicated by the Consumer Price Index. Additional information regarding rental rates can be found in City Council Resolution No. 2017-49 and No. 2018-09.
As discussed below, the estimated square foot of tidelands used by a 40-foot offshore mooring is 1,326 square feet. That is the same for a commercial offshore mooring as well as a recreational © 2024 CBRE, Inc.
5 CBRE Scope of Work offshore mooring. Using the "Other Uses" published by the City and based on the square feet of tidelands used, the rate would be $0.93 per annum, which is $1,233 per year.
While this rate is materially lower than the rate found in this report, it does show that the current rates charged for offshore moorings is, and has been significantly higher than what the City is
r.
While this rate is materially lower than the rate found in this report, it does show that the current rates charged for offshore moorings is, and has been significantly higher than what the City is charging and has been charging for almost all other uses of the tidelands, namely $1.16 per square foot of tidelands used per annum based on an estimated 1,326 square feet of tidelands used for a 40 foot vessel.
We have also estimated current fair market rent for the subject by utilizing various measures of inflation and applying an appropriate level of inflation to the City's previously adopted Fair Use Fee / Market Rent on which today's fees are based. The City's adopted rate of $35 per lineal foot in 2016 with annual CPI adjustments subject to a cap, was based on an appraisal by Netzer and Associates as hired by the City. The City's appraiser Mr. Netzer concluded a range from $32 to $38 per lineal foot and the City adopted $35 per lineal foot per year. As such, it is concluded that Netzer's 2015/2016 appraisal was reflective of market as adopted by the City, and again as hired by the City of Newport Beach.
Presumably, the City were aware of the George Hamiton Jones report of the same year, which is also taken into account when adjusting the base values to information available regarding market conditions.
Of material consideration throughout the report and analysis, in contrast to all other surveyed facilities in the appraisal, marinas with slips and / or moorings, which all provide ready access, such as extensive permanent dinghy docks where a motorized dinghy/tender is available 24/7 by to provide access to the moorings, Newport Harbor has exceedingly poor / grossly inadequate
ready access, such as extensive permanent dinghy docks where a motorized dinghy/tender is available 24/7 by to provide access to the moorings, Newport Harbor has exceedingly poor / grossly inadequate public accessibility (harbor proximate dinghy storage or comparable) and amenities that serve the mooring fields. The additional cost to obtain similar motorized in water dinghy/tender dock space in Newport Beach is a major and necessary adjustment which needs to be taken into account. Put simply, a mooring without easy access has greatly diminished value. This will be discussed in detail throughout the report. Mooring access is a free City-provided service in the harbors of San Diego, Morro Bay, and Monterey and other Harbors that have off-shore moorings.
What follows is a Table of Rates (Implied Subject mooring / tidelands market Rates) that are based on rates published by the City for 2024, using the Small Marina and Other Use Sq Ft rate of $0.93 per annum per Sq Ft.
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CBRE Rates Per Annum Using City's 2024 Small Marina and Other Use Rates Based on Sq Ft of Tidelands Tidelands Used without Swing Factor Boat Size Total Sq Ft 30 + 24 12 648 40 + 28 X 15 1,020 50 60 34 17 1,428 34 X 19 1,786 70 34 × 21 2,184 Rates Based on Tidelands Used with No Swing Factor Small Marina /Other Use Boat Size Total Sq Ft with lines etc Fee Per Year Rate $0.93 30 648 $0.93 40 1,020 $0.93 50 1,428 $0.93 60 1,786 $0.93 70 2,184 $602.64 $948.60 $1,328.04 $1,660.98 $2,031.12 Boat Size Sq Ft with Lines etc 30 648 X 40 1,020 X Rates Adding a Swing Factor of 20% 20% Total Sq Ft with Swing Fee Per Year $723.54 $1,138.32 778 1,224 50 1,428 X 1,714 $1,594.02 60 1,786 X 2,144 $1,993.92 70 2,184 X 2,621 $2,437.53
X Rates Adding a Swing Factor of 20% 20% Total Sq Ft with Swing Fee Per Year $723.54 $1,138.32 778 1,224 50 1,428 X 1,714 $1,594.02 60 1,786 X 2,144 $1,993.92 70 2,184 X 2,621 $2,437.53 Rates Adding a Swing Factor of 25% Boat Size Sq Ft with X 25% Total Lines etc with Swing 30 648 810 40 1,020 1,275 Fee Per Year $744.93 $1,185.75 50 1,428 X 1,785 $1,660.05 60 1,786 X 2,233 $2,076.69 70 2,184 X 2,730 $2,538.90 7 © 2024 CBRE, Inc.
Scope of Work CBRE Rates Adding a Swing Factor of 30% Boat Size Sq Ft with X Lines etc 30% Total with Swing 30 648 X 843 Fee Per Year $783.99 40 1,020 X 1,326 $1,233.18 50 1,428 X 1,857 $1,727.01 60 70 1,786 X 2,322 $2,159.46 2,184 X 2,840 $2,641.20 © 2024 CBRE, Inc.
Scope of Work 8 00 CBRE Neighborhood Analysis NING NCH Newport Beach Irvine Ave Newport Bay BALBOA ISLAND Neighborhood Analysis NEWPORT CENTER Jamboree Rd Ford Rd Pacific Coast Hwy Omapbox © Mapbox, OpenStreetMap The center of recreation in the city is Newport Harbor, which is the largest small boat harbor in the United States. Boating facilities include marinas, docks, slips, moorings, fuel docks and repair and maintenance yards. Also having prominent waterfront locations are many dinner house type restaurants, the exclusive Balboa Bay Club, and many yacht clubs.
Newport Harbor is a premier destination-oriented location where population swells in the summertime with tourism and people with second homes around the harbor.
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9 CBRE Subject Analysis The following chart summarizes the salient characteristics of the subject site.
HARBOR MOORING FIELDS SUMMARY AND ANALYSIS Subject Analysis Physical Description Tidelands Area 81.583 Acres 3,553,765 Sq. Ft.
Moorings 579 Mooring Field A 133 22.148 Acres 964,786 Sq. Ft.
bject site.
HARBOR MOORING FIELDS SUMMARY AND ANALYSIS Subject Analysis Physical Description Tidelands Area 81.583 Acres 3,553,765 Sq. Ft.
Moorings 579 Mooring Field A 133 22.148 Acres 964,786 Sq. Ft.
Mooring Field B 61 8.430 Acres 367,221 Sq. Ft.
Mooring Field C 54 8.857 Acres 385,811 Sq. Ft.
Mooring Field D 56 7.329 Acres 319,247 Sq. Ft.
Mooring Field F 22 3.326 Acres 144,881 Sq. Ft.
Mooring Field G 18 2.345 Acres 102,130 Sq. Ft.
Mooring Field H 91 10.531 Acres 458,738 Sq. Ft.
Mooring Field J 122 15.44 Acres 672,686 Sq. Ft.
Mooring Field K 22 3.17 Acres 138,265 Sq. Ft.
Source: Various sources compiled by CBRE DEFINITIONS 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 and includes any apparatus used to secure a vessel in Newport Harbor which is not carried aboard such vessel as regular equipment when under way. (City of Newport Beach, Harbor Code, Chapter 17.01.030.J.7.)
Mooring Area - The term “mooring area” shall mean an area designated for a group of moorings.
(City of Newport Beach, harbor Code, Chapter 17.01.030.J.8.)
Offshore Mooring – The term "offshore mooring” shall mean a mooring that is located bayward of the pierhead line and comprises a single or double buoy, the weight and chain installed for the purpose of berthing a vessel, as provided by Chapter 17.25. (City of Newport Beach, Harbor Code, Chapter 17.01.030.L.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. (City of Newport Beach, Harbor Code,
ity 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. (City of Newport Beach, Harbor Code, Chapter 17.01.030.P.1.)
Tidelands Utilized by a Mooring - shall mean that area within a Mooring Area (mooring field) utilized by an individual mooring for the exclusive use of the mooring holder for a vessel which is or could be located on the mooring.
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CBRE Subject Analysis TIDELAND SQUARE FOOTAGE ATTRIBUTABLE TO A 40 LINEAL FOOT BOAT MOORING Each mooring holder has the exclusive right to use a certain area of the tidelands and the mooring holder places its own equipment, weights, chain and lines within the small area. For example, a 40 foot mooring would use 40 feet plus 12 feet of line to the front and back buoy on a two buoy mooring, plus 2 feet for each buoy, with a 15 foot beam, plus allowing for a 30% swing factor 1,326 square feet of tidelands used.
= In this example, 33.15 square feet of tidelands would be used per 1 lineal foot of mooring size Tideland square footage other sizes and swing factor The added square footage for a "swing factor" is the maximum adjustment for a mooring using two buoys, one off the bow and one off the stern. This has been used as a consideration in establishing rates in other harbors. However, it should be noted that when a boat moves or swings in one direction it opens up tidelands in the place from where it moved / swung from and opens up those tidelands for use by the public, thus the swing factor could reasonably be concluded to be "zero" due to these offsetting factors.
What follows is a Table Square Footage Used for various size boats with and without a swing factor.
c, thus the swing factor could reasonably be concluded to be "zero" due to these offsetting factors.
What follows is a Table Square Footage Used for various size boats with and without a swing factor.
Sq Ft of Tidelands Used – No Swing Factor Boat Size + X Beam Total Sq Ft 30 + 24 X 12 648 40 + 28 X 15 1,020 50 + 34 X 17 1,428 60 + 34 X 19 1,786 70 + 34 X 21 2,184 Add Swing Factor at 20% Boat Size Sq Ft with X 20% Total Sq Ft Lines etc with Swing 30 648 X 778 40 1,020 X 1,224 50 1,428 X 1,714 60 1,786 X 2,144 70 2,184 X 2,621 11 © 2024 CBRE, Inc.
CBRE Add Swing Factor at 25% Boat Size Sq Ft with ✗ 25% Total Lines etc with Swing 30 648 X 810 40 1 020 X 1275 50 1,428 X 1785 60 1,786 X 2,233 70 2,184 X 2730 Add Swing Factor at 30% Boat Size Sq Ft with X 30% Total Lines etc with Swing 30 648 X 843 40 1,020 X 1,326 50 1,428 X 1,857 60 1,786 X 2,322 70 2,184 X 2,840 Subject Analysis 12 © 2024 CBRE, Inc.
CBRE Zoning 05 TURNING BASIN SEE DETAIL A MU-W1 0.3 LIDO PC-45 Districts WEST Pl Pl Market Analysis PC-19 OR OG 0.25 PC-56 PC-54 CV NEWP PC-1-MHP PC-37 PC-48 PC-9 CG03/05 MU-W2 RM CM 0.3 mm(39 DU) CG 0.3 GV PC-47 CHANNEL SEE DETAIL B 0.3 NEWPORT PC-51 Pl RM 23 DU MU-W2 R-BI MU-V SEE DETAIL C PC-39 PC 30 PC-12 CNO PC-55RM 58 du PI 0.3 R-2 CHANNEL MU-W2 R-B PI 0.3 PC-40 RM 48 du PI 0.8 The subject tidelands are under the regulatory supervision of several entities in addition to the City of Newport Beach. These include the State of California Division of Boating and Waterways, the California Coastal Commission, as well as oversight by the Army Corps of Engineers, the California Department of Fish and Wildlife and others.
Note that City development standards are largely inapplicable to the subject mooring field
well as oversight by the Army Corps of Engineers, the California Department of Fish and Wildlife and others.
Note that City development standards are largely inapplicable to the subject mooring field encumbered tidelands due to the fact that there is no existing or possible joinder, or operation/utilization of the tidelands in tandem with an uplands property as virtually all other commercial uses along the harbor currently operate.
Given the lack of access, the only way to truly utilize the subject tidelands is for offshore moorings.
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CBRE Market Analysis Market Analysis With the onset of the COVID-19 pandemic and subsequent lockdowns and restrictions on businesses shopping, dining, etc., there was a surge in demand for alternative recreational or leisure activities. Notable surges included RVing and Boating. New boat sales reportedly increased 40% during the pandemic. However, note that 95% of recreational boats are lake boats under 26', which are not truly applicable or relevant to the analysis of the moorings within the subject saltwater harbor.
That being said, the surge in demand for boating resulted in an increase in demand for slips and moorings. Consequently, prices and rents also increased given the relatively fixed supply of marina space. It is difficult to quantify the increase in slip fees year over year; however, as an important distinction marinas owned over the long term with inactive management have been acquired by active competent managers and operators which are able to increase rents by a factor of two or more over the short term. The distinction is that this is not a linear market trend, but instead a realization of mark-to-market rents with short-term rental agreements.
se rents by a factor of two or more over the short term. The distinction is that this is not a linear market trend, but instead a realization of mark-to-market rents with short-term rental agreements.
However, it is important to recognize the release of pressure or easing of demand for boating as the COVID-19 pandemic is behind us and people have returned to activities that were not available to them during the pandemic in 2020 and 2021. In addition to this, we are currently facing severe economic headwinds and uncertainty due to the unprecedented Fed rate hikes of more than 500 basis points since April of 2022. The already apparent result of this and its economic consequences are detailed in the following: • According to Recreational Boating Statistics published by the NMMA (National Marine Manufactures Association) 2022 report: ○ ○ Powerboat sales normalized in 2022, down an estimated 15% to 18% from 2021 to pre-pandemic levels 2022 sales and 2023 projections highlight segments driving growth as entry level personal watercraft, freshwater fishing boats, and pontoon boats under 26' These are not market segments that contribute to Newport Harbor, thus indicating a sharper decline in demand for vessels found in Newport Harbor In summary, a significant easing of demand was widely apparent through 2022 and into 2023.
With all of this being said, despite substantial anticipated headwinds, Newport Harbor remains a highly sought after location, noting that there is increased availability in 2023 and rents have stabilized.
CRC Marinas operates four marinas in Newport Harbor: Balboa Marina, Bayside Marina, Villa Cove Marina, and Bayshore Marina. When surveyed in 2022 they had only five availabilities.
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14 CBRE Market Analysis
our marinas in Newport Harbor: Balboa Marina, Bayside Marina, Villa Cove Marina, and Bayshore Marina. When surveyed in 2022 they had only five availabilities.
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14 CBRE Market Analysis CRC Marinas currently has 11 available slip spaces throughout their Balboa and Bayside Marinas.
CONCLUSION Overall, the market is in a period of "returning to normalcy" with rents stabilizing and availability increasing. The end of the COVID-19 pandemic and resultant declining demand for personal recreational watercraft in the face of extreme uncertainty in the current economic climate with materially unsettled / disrupted financial markets is anticipated to at least partially unwind the upward pressure on slip rates observed during 2020 and 2021.
Also, a notable distinction is that per our review of the mooring transfer logs in Newport Harbor from 2017 through 2022, appreciation in pricing of moorings is negligible compared to the increase in the far more rare and highly desirable marina slip rental rates. As such, the increase in slip rents versus the increase in mooring rent is less than 1 : 1.
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CBRE Fair Market Rent Analysis Highest and Best Use Per the terms of the assignment, the appraiser is to provide a fair market rent analysis for the subject in its current condition. Determination of highest and best use is beyond the scope of this assignment. That said, given the lack / absence of accessibility to the subject mooring fields other than by boat, the subject is assumed to be operating to its highest and best use, as mooring fields.
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CBRE Fair Market Rent Analysis Fair Market Rent Analysis METHODOLOGIES We have employed multiple methodologies in our analyses. All are based on market data relating to a
fields.
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CBRE Fair Market Rent Analysis Fair Market Rent Analysis METHODOLOGIES We have employed multiple methodologies in our analyses. All are based on market data relating to a typical mooring or slip intended to accommodate a boat measuring 40 lineal feet.
CALIFORNIA STATE LANDS COMMISSION - BENCHMARK TIDELANDS RENT The first methodology employed is consistent with multiple recent Benchmark Tidelands Rental adjustments reports with the following methodology: In order to determine the value of the leased area (of a pier, buoy, mooring pole, etc.), it will be necessary to determine: what income can typically be generated by a commercial marina; the area occupied by a marina slip in a well-designed marina; what the rental charge would be for a typical sized boat; and the rate of return the State should receive for the use of its land.
We have three recent reports referencing / employing this methodology: • Southern California Benchmark Memo date May 6, 2022 • San Francisco Bay Area Benchmark Memo date January 18, 2022 • Tomales Bay Benchmark Memo date October 7, 2020 • We also note that the City of Newport Beach has used 8.5% when assessing rates to be charged to companies operating the largest marinas in Newport Harbor but substantially less for smaller marinas and other commercial uses, and have taken that into account as a local benchmark.
This is shown in the 2016 and 2017 George Hamiton Jones Reports utilized by the City for all uses of the tidelands as well as in the City's published rate (link provided above).
As a reference to California State Lands Commission Tomales Bay report PDF page 11: "The Commission typically charges 5% to 6% of gross income for boat berthing for sites
d rate (link provided above).
As a reference to California State Lands Commission Tomales Bay report PDF page 11: "The Commission typically charges 5% to 6% of gross income for boat berthing for sites leased to commercial marina operators, with most of the leases set at 5% of gross income."
A rate of return on the income applicable to the Tidelands utilized in each of the three above referenced reports was 5%. We have concluded to the higher rate of 6% given the recent / current inflationary pressures that have resulted in notable rate hikes which are anticipated to remain elevated in the near-term. However, noting that the Fed controls only short-term rates, only a slight adjustment upward from 5% is appropriate for a long-term normalized rate of return. The complete analysis is contained on the following pages.
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CBRE Fair Market Rent Analysis The following contains a comprehensive rental survey of various marinas throughout Newport Harbor: Location Lido Yacht Anchorage Balboa Yacht Basin Marina (no amenities) Bayside Village Marina Port Calypso Lido Park Place Marina (no amenities) Marina Park (Based on $88 Nightly Rate) Newport Dunes Resort Marina NEWPORT BEACH SLIP RENTALS Boat Slip Length 40' 40' 40' 40' 40' 40' 40' Average $/ft Average $/ft Adjusted for Amenities Average $/month $52 $52 $2,080 $50 $63 $2,500 $41 $41 $1,640 $44 $44 $1,760 $45 $56 $2,250 $66 $66 $2,640 $76 $76 $3,040 Mean Median $52.22 $55.66 $2,226 $50.00 $56.25 $2,250 Market Rent Estimate 6% Return Appliable to the tidelands $56 $3.36 Annual Rent $134 $1,613 6% of Gross Income Attributable to State Owned Tidelands Annual Fair Rental x 40' boat / slip Compiled by CBRE
nt $134 $1,613 6% of Gross Income Attributable to State Owned Tidelands Annual Fair Rental x 40' boat / slip Compiled by CBRE In the above analysis we did not use the 8.5% used by the City when establishing rates uses per the George Hamiton Jones Report for the largest marinas, since the other rates published by the City and adopted by the George Hamilton Jones report for smaller marinas and "other uses" was approximately 1/3 lower, which would result in a rate of approximately 5.67% of the gross revenues charged by marinas, which is a rate very closely aligned with the State Lands Benchmarks.
We have concluded market rent consistent with the mean and median rents indicated by the aggregated survey data at $56/LF for a boat in a slip with all the benefits which include parking, restrooms, electricity, security, nighttime lighting, easy access and walk-on walk-off, and use of the marina docks and gangways. We then calculated the annual rent allocation to the tidelands based on the rate of return typically used by State Lands, and not on the higher rate used by Newport Beach of 6%, which is above the typical 5% rate utilized in the three referenced reports, but which is appropriate due to the current interest rate environment while still within the long-term “5% to 6% of gross income" range as advised in the reports.
CONSIDERATION OF ADJUSTMENT FACTORS Slip Versus Mooring The first consideration of adjustment factor is actual tidelands encumbered by the 40' boat which differs for a slip versus a mooring.
According to the California State Lands Commission reports, the "Layout and Design Guidelines for
tment factor is actual tidelands encumbered by the 40' boat which differs for a slip versus a mooring.
According to the California State Lands Commission reports, the "Layout and Design Guidelines for Marina Berthing Facilities" publication (last updated July 2005) from the State Department of Boating and Waterways is used to determine the amount of submerged land area necessary to accommodate a given mooring size. The results are in the following chart: © 2024 CBRE, Inc.
18 CBRE TIDELANDS UTILIZED PER BOAT SIZE Fair Market Rent Analysis Tidelands SF Allocation per Lineal Boat Foot Tidelands Report Boat Length Allocation Tomales Bay Benchmark 31' 865 28 San Francisco Benchmark 38' 1,197 32 Southern California Benchmark 37' 1,153 31 Subject Estimate 40' 1,326 33.15 Compiled by CBRE As previously determined, the Tidelands square footage required to accommodate a similar size mooring is somewhat greater than that of a slip, even when the docks, gangways and related features are added to the area associated with a slip. This is mainly due to the added square footage associated with lines from the vessel to the buoys vs the areas of dock space in front of and on either side of a slip, While we added significant extra square footage to each mooring to account for the area from a vessel to the buoys at the full beam of the vessel (which is an area greater than the distance used by lines to the buoys) we did not add any area for the swing of the boat since as a boat on a double mooring moves slightly in one direction it opens up tidelands in the other direction which can be used by the public for kayaking, paddle boarding and other recreational use.
Access and Amenities The second consideration of adjustment factor is the difference in convenience and functional utility
used by the public for kayaking, paddle boarding and other recreational use.
Access and Amenities The second consideration of adjustment factor is the difference in convenience and functional utility between a slip in a typical marina versus a typical mooring. Items include dedicated shore facilities such as restrooms and showers, actual utility to boat operation such as electricity and water, security, fencing, nighttime lighting, and most importantly use of docks and gangways for easy access, compared to a boat on a mooring that has none of these amenities. All other harbors with any significant sized mooring fields provide much less favorable access by way of dinghy docks available for docking dinghies and tenders for 24/7 access, but Newport Beach moorings unlike the moorings in other harbors, do not even have this access.
Clearly with a marina or slip rental, a renter can physically walk with all of their supplies to their vessel.
With a moored vessel, a dinghy or other boat is required to travel from the shore to the mooring.
Further impacting the subject Newport Harbor is the lack of access by way of an in-water motorized dinghy/tender for access to a Newport Beach mooring.
We have reviewed multiple harbors with both slips and off-shore moorings in San Diego, Morro Bay, Monterey, and Half Moon Bay Harbors, all of which provide docks where mooring renters and/or permit holders can have a tender for 24/7 access at no charge, with the exception of Half Moon Bay, which may charge a nominal $64 per month, and Monterey which changes $89 per quarter or $30 per month. San Diego's moorings have access to dinghy docks, but in some cases the dinghy dock may be more remote to some mooring fields. We have noted that data from these other harbors show that
$30 per month. San Diego's moorings have access to dinghy docks, but in some cases the dinghy dock may be more remote to some mooring fields. We have noted that data from these other harbors show that mooring rates are really a combination of not just the use of an area of the tidelands, but a combination of the area of tidelands used plus the use of dinghy/tender docks for fulltime access to the © 2024 CBRE, Inc.
19 CBRE Fair Market Rent Analysis moorings 24/7, and in the case of San Diego, having the maintenance of the mooring (estimated at $120 per month) included in the fees.
Note that we have focused our research on public versus private ownership mooring versus slip fee rentals as the private institutions. For example, in Newport Harbor various yacht clubs offer shore boat service for a nominal fee which is less easily quantified. The yacht clubs total charges, including shore boat service, for moorings mostly on the larger size, would need to adjusted not only for the cost of a slip for a dinghy/tender in Newport Harbor, but also for the cost of purchasing a seaworthy tender with motor, maintaining the tender and engine, as well as other amenities the yacht club provides to its mooring holders.
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20 20 CBRE Fair Market Rent Analysis Approximate Mooring to Slip Fee Ratio In reviewing the slip to mooring fee ratios, this is a very imprecise "derivative" method and is difficult to rely on. Some of the reasons why it is unreliable and should not be used are discussed here. One major factor is that similar assets are not being compared. As the old saying goes, it's like comparing apples to oranges. Another factor would be the extent to which an increase in slip fees does not necessarily track the supply and demand for moorings, especially larger slips
goes, it's like comparing apples to oranges. Another factor would be the extent to which an increase in slip fees does not necessarily track the supply and demand for moorings, especially larger slips that only a small group of people demand and can afford.
Another important factor that cannot be underestimated is that the comparison with other harbors is a comparison of Moorings plus Dinghy Docks to Local Slips. In the case of Newport Beach, it would be comparing Mooring without Dinghy Docks to Local Slips with full access. Whereas any "ratio" at other harbors would compare the area used by a mooring plus full access to a dinghy/tender dock for access to the mooring to rates charged for a slip of the same size as the maximum size of the mooring. This makes such a method even more derivative, since once an initial valuation is made using a ratio from other harbors, the suggested fee would need to be reduced by the cost of obtaining a slip for a motorized dinghy/tender available 24/7 without restriction.
As mentioned, the data regarding fees charged for moorings with dinghy dock access vs slip rates in other harbors and the resulting ratios are not sufficiently reliable and can be seen using a few examples. One example is the rates for moorings in San Diego have not risen in many years and may be due for an increase. If and when the lease would take off some of the caps on rates charged for moorings (plus use of dinghy docks, plus servicing the mooring equipment). If rates are increased, it will take years to ascertain if the public will continue to rent the moorings at the new rate and if vacancies will occur. So, while the manager of the San Diego moorings, like any other manager of any other rental property may "wish" to increase the rates, it is a wish, which is
the new rate and if vacancies will occur. So, while the manager of the San Diego moorings, like any other manager of any other rental property may "wish" to increase the rates, it is a wish, which is not a reliable source to be considered until and after it has been in place for many years and the response to the increase is known. Any owner of real estate may "wish" to increase his or her rental rates, but without doing so and assessing how the market will respond with move outs and resulting vacancies often will take years to assess. In the case of a boat on a mooring, it would likely take even longer since moving a boat off a mooring would require an alternative place to store the boat. A large sailboat with a keel cannot be put on a trailer, and the boat owner may be forced to pay above market rent until he or she can move or sell the boat. Again, it would take years to assess such a "wished for" increase.
The manager of the San Diego moorings has estimated that the cost to inspect and maintain the moorings is in excess of $120 per month per mooring. Even after market rent was established, as mentioned, the "ratio" that may eventually be established in San Diego would need to be adjusted because the ratios in San Diego would not be for moorings versus slips, but for moorings with full maintenance, inspections, and full dinghy dock access, as compared to a slip.
Such a ratio, once established years from now, would not apply to Newport Harbor, where the © 2024 CBRE, Inc.
21 CBRE Fair Market Rent Analysis mooring holder pays for its own maintenance, inspects, makes periodic replacement of weights and chain, and where the City is not providing access by way of dinghy docks made reasonably available to all offshore moorings with 24/7 for access to the moorings.
es periodic replacement of weights and chain, and where the City is not providing access by way of dinghy docks made reasonably available to all offshore moorings with 24/7 for access to the moorings.
To complicate the situation even more is the fact that while the manager of the San Diego moorings may "wish" to test increases in mooring rates, the manager has not obtained formal approval to do so at this time, nor has the State Lands Commission been consulted on any proposed increase.
In the case of Morro Bay, as mentioned, the rates charged for slips for the commercial fishing fleet and other commercial uses may be subsidized and would be difficult to measure. On the other hand, the rates charged for moorings plus ample dinghy docks is currently $110 per month for a mooring that can be used for a 50-foot vessel, which is approximately $2.00 per lineal foot per month. On the other hand, the City of Morro Bay charges approximately $26 per foot for slips as shown on page 32 of the Netzer appraisal report. That would indicate a ratio of over 1/10 and that is for moorings with docks for dinghy/tenders to allow access to the moorings 24/7.
It is also worthy of note that the City of Morro Bay also has City-owned moorings and the City charges approximate 3 times more for renting City-owned moorings versus individual-owned moorings because the city installs and maintains the mooring hardware, likely has insurance to cover these activities, and makes necessary adjustments from time to time, whereas a Morro Bay mooring owner is responsible for all of these costs.
Monterey Bay data is also difficult to ascertain. One of the marinas where there is not a long wait time sits at the base of a power plant with many complaints about dirt and grime on vessels
e costs.
Monterey Bay data is also difficult to ascertain. One of the marinas where there is not a long wait time sits at the base of a power plant with many complaints about dirt and grime on vessels in the marina. It is unclear what the wait time is for other nearby marinas. Nearby Santa Cruz Harbor marinas do not suffer from these issues. A 45-foot slip in Santa Cruz would cost approximately $16 to $30 per foot per month depending on the location of the slip, with an average of $23 per foot, or $1,035 per month, compared to $187 per month for a "east harbor mooring" or $100 per month (if paid annually) for an “out harbor mooring," for an average of $144 for a mooring in Monterey Bay that also comes with dinghy dock access (at a cost of $89 per quarter = $30 per month) for a total of $174 per month for a mooring and a dock for a dinghy/tender to access the mooring. This would result in a ratio of 1/6, but again this is for a mooring with use of a dinghy/tender dock.
Half Moon Bay is also problematic for similar reasons. Slip fees for a 50-foot boat are on average $540 per month. Mooring rates are $1.92 per month per lineal foot, which is $96 per month for a 50-foot boat and add a possible $64 per month for use of the dinghy docks, for a total of $160 per month. But we do not know if there is a long wait list for slips or if the slip rate reflects market rates for slips. This would be 29.6% but again only as a combination of use of a mooring plus use of a dinghy dock.
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22 22 CBRE Fair Market Rent Analysis For all of the above reasons, the ratio derivative method derived from other harbors cannot be used.
= Ironically, without looking to other harbors, the only ratio where moorings without dinghy docks
For all of the above reasons, the ratio derivative method derived from other harbors cannot be used.
= Ironically, without looking to other harbors, the only ratio where moorings without dinghy docks to slips has been derived from appraisals conducted and accepted by the City of Newport Beach was approximately 2016. In that year, market rates for slips were shown in the George Hamilton Jones appraisal which showed the average slip rate in Newport Beach for a 40-foot slip to be $1,640 per month per month $41 per lineal foot per month / $492 per lineal foot per year.
At the same time, Mr. Netzer appraised the market rate for Newport Moorings to be $32 to $38 per year, and the City established the rate to be $35 per lineal foot per year. The result was that that the ratio of mooring fees without dinghy docks and without reasonable access to slips fees in Newport Harbor for a 40-foot mooring was 35/492 35/492 approximately 7%. There is no reason to suggest that ratio would have changed. Again, this "derivative" approach is not a generally accepted appraisal approach and using this approach does not yield a much different result (when the lack of access is factored in) as compared to traditional established methods.
However, if used and applied to Newport Harbor based on the two formal and accepted appraisals done at that time, it would result in rates lower than the opinion of rates shown in this report.
As noted above, this "derivative" approach is the least reliable of all other methods and is included to show the various factors that are at play and change from time to time and are affected by different variables, such as favoring a type of use or a subsidized type of use, or
ethods and is included to show the various factors that are at play and change from time to time and are affected by different variables, such as favoring a type of use or a subsidized type of use, or popularity of one type of use over another as we have seen during the Covid years with people becoming interested in a condo on the water in a marina with electricity and easy access. For this reason, this ratio approach was not used.
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CBRE Fair Market Rent Analysis Proposed Rates for City-Owned Moorings The City is in the process of renting moorings under a license arrangement. Under the license the licensee is free to leave on 30 days' notice and has no capital commitment to the use of the mooring. The number of these moorings is limited, and each size is limited even more. As in the case of the possible future rate increases in San Diego, any data from such rental would take years to assess. First, these would need to be rented, then over the next few years the length of time a person rents such a mooring would need to be determined. Third, how the limited number of persons obtain access would need to be ascertained. For example, if the licensee has access by way of a home dock, a shore mooring, use of a boat that he or she was already using for their purposes, or use of a friends dock space, this would only demonstrate value, utility, or rent for that particular person where access was not an issue. However, that fact that a particular person may pay what is otherwise over market for the general public, thus does not establish market rent.
In addition, it should be noted that the City has created its own scarcity of rentable moorings. At any given time, the harbor master has observed that there are over 100 vacant moorings. At the
rent.
In addition, it should be noted that the City has created its own scarcity of rentable moorings. At any given time, the harbor master has observed that there are over 100 vacant moorings. At the same time the City does not allow mooring holders to rent these out. As such, the City has created its own scarcity of moorings for rent, and with only a handful available, this artificially and significantly decreases the supply thus artificially increasing competition and the amount of equilibrium or fair market rent indicated by the market, again which is entirely artificial in nature.
Of note also is the fact that the City will need to maintain, inspect, and periodically replace mooring equipment, buoys, anchors and chain, which is estimated by the operator of the San Diego Mooring Company to be over $120 per month.
For the above reasons, the future rental of this handful of moorings cannot be used in any comparative or other analysis.
As a final note, other harbors that have both privately-owned and City-owned moorings and have considered the difference in each, have established rates much lower for privately-owned moorings. For example, Morro Bay charges $110 per month for private moorings (and provides access to dinghy docks) but charges $330 per month when it rents out City-owned moorings on a long-term basis.
Half Moon Bay charges $1.92 per month per foot for privately-owned moorings, but charges $5.08 per foot per month for City-owned moorings.
OTHER METHODOLOGIES NOT USED AND DEEMED UNRELIABLE Comparison of Tideland Use in Connection with Adjacent Properties Should Not Be Used Attempting to separate component parts and considerations that make up a property value is an extremely unreliable methodology and if ever used as a consideration is done only when there
d Not Be Used Attempting to separate component parts and considerations that make up a property value is an extremely unreliable methodology and if ever used as a consideration is done only when there are no other established methods. As shown in this report there are other established methods, and this approach should not be considered.
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24 CBRE Fair Market Rent Analysis A few examples might illustrate the issue with such a methodology. Consider a view home on a bluff that sells for $40 million dollars, and the identical home that is across the street from the view home and sells for $15 million dollars less. One might think the "view" component, by itself, has a value of $15 million dollars. That would mean that if there were an unbuildable lot next to the view home it should have a value of $15 million dollars. However, it is likely the unbuildable lot has little or no value. The extra value is completely integrated into the value of the home and cannot be separated from the location, characteristics, amenities, and established value of the home.
Another example would be rental of home docks within Newport Harbor. If a home with a dock has a value of $60 million dollars and rents out its 40 foot slip the slip rate should be four times higher than a $15 million dollar home that rents out its 40-foot slip. However, slip rates for home docks do not seem to vary much from marina slip rates and do not appear to correlate to the value of the adjacent home.
These examples are used only to illustrate why considering the value of adjacent real property cannot be used in extrapolating rates for moorings in Newport Harbor.
Attempting to Extrapolate Rates from Reported Mooring Sales is an Unreliable Method and Should Not be Considered
ent real property cannot be used in extrapolating rates for moorings in Newport Harbor.
Attempting to Extrapolate Rates from Reported Mooring Sales is an Unreliable Method and Should Not be Considered A handful of offshore moorings is sold and transferred each year. However, the data and circumstances are typically not fully known, and the number of sales is insufficient to establish a reliable database of sales where a buyer and a seller with full knowledge of the property in question established a value. Unlike real estate transactions typically handled by licensed real estate brokers, moorings are typically sold by individuals privately without help from brokers. In a brokered transaction, there are multiple disclosure forms required and used so the buyer has full knowledge of all of the risks and hazards that are known to be related to the property. As discussed elsewhere in this report, the single most important component of value, or lack of value, of a mooring is access to the mooring which, in all other harbors, is established by an adequate number of dinghy docks. While a person not familiar with the access problem in Newport Beach might see several public docks and mistakenly conclude that they have sufficient access to the mooring being purchased, that conclusion would be mistaken. Since the details of each of the reported sales are unknown, it is pure speculation to provide an opinion of the extent, if any, of disclosure regarding the material and functional lack of dinghy dock access in Newport Harbor. Once a person has acquired a mooring and put their boat on the mooring, it is difficult to find an affordable low cost alternative place to move the boat, which may be a reason why,
in Newport Harbor. Once a person has acquired a mooring and put their boat on the mooring, it is difficult to find an affordable low cost alternative place to move the boat, which may be a reason why, after becoming aware of the access problem, a mooring might not be put up for sale in the short term (as the Harbor Department does not allow resale of moorings within one year of purchase), and the person might have to resort to far less desirable methods to gain access to the mooring.
In addition to the disclosure issue, there may be a handful of people for whom access is not a problem. For example, they may have a home dock, have access to a friend's home dock, may © 2024 CBRE, Inc.
25 25 CBRE Fair Market Rent Analysis have a shore mooring, may have a small boat on a slip that they already used for other purposes. The number of buyers of moorings for whom access is not an issue or less of an issue is completely unknown.
It is also noteworthy that the reported sale data is provided by individuals and not from any formal source. In some cases, a mooring is sold in combination with a boat and because a sale of a boat is subject to sales tax, the allocation on the price between the boat and the mooring might be adjusted in a manner that might have a lower impact on the sales tax to be paid.
These are some of the reasons why focusing on the fact that moorings are sold at a particular price cannot be used to ascertain rates to be charged for the use of the tidelands occupied by boats on moorings.
Summary and Conclusion In contrast to the subject Newport Harbor Mooring fields, the surveyed harbors above provide easy access to moorings, with dinghy docks for in water motorized dinghy/tenders to allow people to access
In contrast to the subject Newport Harbor Mooring fields, the surveyed harbors above provide easy access to moorings, with dinghy docks for in water motorized dinghy/tenders to allow people to access their moorings 24/7 with no significate time limits. Access to the individual moorings in these other harbors (all other harbors) is far superior to the subject as the City of Newport Beach provides extremely limited in-water motorized dinghy access to moorings. The handful of spaces available are limited in time and only randomly available, depending on how many other dinghies are using the limited spaces at any time. Moreover, the handful of dinghy dock spaces are also available to the public, not just for access to moorings, and the space is limited to a maximum of 36 hours which means, in effect, if a mooring holder were lucky enough to secure a space, by the time he or she came back the next weekend his or her dinghy would have been impounded by the City and subject to a large penalty. As such, to make an appropriate adjustment, the benefit provided by the dinghy docks at other harbors needs to be quantified. To obtain a space for a dinghy/tender of 9 to 12 feet at a marina in Newport Beach, the costs would be approximately $400 to $750 per month. There is a limited supply of such spaces and often there is a minimum length of 18 to 20 feet, which is reflected by the higher range cost of $750. The estimated cost would of course change were the City to require marina operators to provide smaller spaces (without losing revenue) but that is currently unavailable. On a comparative basis with what other harbors offer (which is a combination of mooring plus access to the mooring), an additional
er spaces (without losing revenue) but that is currently unavailable. On a comparative basis with what other harbors offer (which is a combination of mooring plus access to the mooring), an additional discount is warranted as related to the preceding discussion and analysis. In other words, on a comparison basis, if Newport Beach provided easy motorized in-water access to moorings 24/7 without any significant time restriction, the rate would be subject to an upward adjustment.
However, as noted above, a mooring without access, just like land without access, has substantially diminished value.
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CBRE Fair Market Rent Analysis INDICATED MARKET RENT Tidelands Rent for 40' Boat Estimated Annual Rent to Slip for 40' slips in 2024 Estimated Annual Rent for 40' slip in lineal feet Ratio of Mooring without access versus slip $26,880 $672 1/14 % Multiplier = 1/14 7.1% Annual Market Rent for 40 Lineal Foot Mooring $1,920 Annual Rent Per Lineal Foot $48.00 Compiled by CBRE Again, this was provided for informational purposes only and is not weighted in our final reconciliation of fair rent due to diminished reliability of the ratio approach compared to the other approaches utilized in the appraisals.
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CBRE Fair Market Rent Analysis METHODOLOGY UTILIZING MARKET INFLATION FROM THE PREVIOUS BENCHMARK The previously determined rent for offshore moorings was concluded to be $35 per lineal foot per year based on an appraisal performed by Netzer & Associates as hired by the City of Newport Beach. This $35 rate adopted by the City as determined by the City-hired appraiser is considered to be representative of market. The following analysis utilizes this benchmark rate
the City of Newport Beach. This $35 rate adopted by the City as determined by the City-hired appraiser is considered to be representative of market. The following analysis utilizes this benchmark rate with appropriate inflation factor applied to accurately reflect a market based rental rate in today's more favorable market.
CALIFORNIA STATE LAND COMMISSION BENCHMARK PAIRED INFLATION DATA Indicated Simple Location Southern California Benchmark San Francisco Bay Area Tomales Bay CPI 1982-84=100 Compiled by CBRE Base Year Tidelands Rent Reassessed Market Adjusted Tidelands Rent Annual Inflation $0.374/sf in 2016 $0.451/sf in 2022 4.1% $0.198/sf in 2016 $0.227/sf in 2022 2.4% $0.114/sf in 2015 $0.133/sf in 2020 3.3% December 2023 CPI 302.408 December 2023 CPI 302.408 March 2016 CPI 238.132 July 2018 CPI 252.006 3.48% 3.69% Mean of All Survey Data Median of All Survey Data 3.36% 3.48% As illustrated above, the most recent reports reflect the highest inflation due to the unprecedented inflationary times experienced in 2020 and 2021, and as a result of which the Fed has increased rates over 500 basis points. This is an offsetting factor in the determination of a new benchmark rate which is highly influenced by the artificially-created inflationary environment of 2020 and 2021, which is not reflective of long-term trends. When inflation is measured against the relevant time periods up until 2020, historical inflation is closer to 2% per year. As such, downward consideration is warranted from the preceding data.
We have concluded to 3% as a long-term trend which is based on the 3.5% to 3.9% indication above, adjusted downward for the artificial inflationary environment of 2020 and 2021.
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the preceding data.
We have concluded to 3% as a long-term trend which is based on the 3.5% to 3.9% indication above, adjusted downward for the artificial inflationary environment of 2020 and 2021.
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CBRE Fair Market Rent Analysis In addition to the preceding, we have also compared current surveyed rents to those indicated in a City of Newport ordered appraisal by George Hamilton Jones dated March 2016.
NEWPORT BEACH PAIRED RENT ANALYSIS Rent From 2016 Indicated Simple Location Boat/Slip Length Current Rent GHJ Appraisal Annual Inflation Lido Yacht Anchorage 40' $52 $37 5.5% Balboa Yacht Basin Marina (no amenities) 40' $50 $32 7.7% Bayside Village Marina 40' $41 $32 3.8% Newport Dunes Resort Marina 40' $76 $42 10.9% Mean 6.5% Median 6.6% Compiled by CBRE Of important distinction, note the greatest inflation was observed for those properties with the greatest amenities again which is a function of the artificially created demand and resultant inflation resulting from the COVID-19 pandemic lockdowns and use restrictions where people spent increasingly more time on their boats, which is enhanced by amenities.
And again, demand is clearly tapering, and the recent two-year inflationary environment is not reflective of stabilized long-term trends. Furthermore, mooring utility and desirability is vastly inferior compared to a marina slip with immediately convenient accessibility and amenities such as water and power, restroom facilities, dedicated parking, etc. As such, the increase in demand and pricing for a mooring versus a slip would not be correlated 1 : 1, it would be reasonable that slip fees would increase at a much higher rate than a mooring, especially given the level of affluence of the surrounding community.
s a slip would not be correlated 1 : 1, it would be reasonable that slip fees would increase at a much higher rate than a mooring, especially given the level of affluence of the surrounding community.
As evidence of this, we have reviewed the mooring transfer logs from 2017 to 2022 which includes pricing. The value of moorings while having increased over the years (again most recently given the uptick in demand during the COVID-19 pandemic), has increased by a marginal basis which is nowhere near the rates indicated in the preceding slip rent increase indication. As such, appropriate inflation for mooring rents should fall well below the indicated inflation or paired slip rent analysis over the same time period. The inflation and other tidelands rates serve as a much more relevant benchmark for inflation compared to paired slip rents.
Conclusion Based on the preceding data indicated by the recently reassessed Benchmark Rates for California State Tidelands, market-driven inflation data, and actual paired-rent comparable information from Newport Harbor, an appropriate inflation factor should fall in the 3% range. We have based the time adjustment on the July 2018 adoption date of the previous benchmark rate change. The appropriate time adjust is approximately five and one-half years. The implied adjusted market rent is detailed in the following chart.
© 2024 CBRE, Inc.
29 CBRE INDICATED MARKET RENT 2016 Appraisal 2018 Adopted City Benchmark Offshore Mooring Rent Simple Inflation Factor at 3.5% without a cap July 2018 Adoption date versus 1Q2024 New Benchmark Date Compiled by CBRE Fair Market Rent Analysis $/Lineal Ft/Yr $35 Annual 3.5% Years 5.5 Total Inflation 19% $35 $42 40 Prior Benchmark Market Conditions Adjusted Rate Benchmark Lineal Feet of Boat
rk Date Compiled by CBRE Fair Market Rent Analysis $/Lineal Ft/Yr $35 Annual 3.5% Years 5.5 Total Inflation 19% $35 $42 40 Prior Benchmark Market Conditions Adjusted Rate Benchmark Lineal Feet of Boat Annual Market Rent $1,670 30 © 2024 CBRE, Inc.
CBRE Reconciliation of Market Rent Reconciliation of Market Rent The rent indications from the two methodologies are summarized as follows: SUMMARY OF MARKET RENT ESTIMATES California State Tidelands Commission Methodology Inflation Methodology Based on City's Prior Benchmark Ratio Method Reconciled Market Rent Estimate Based on Typical 40 Lineal Foot Boat Compiled by CBRE Annual Rent $1,613 $1,670 $1,920 $1,640 $41.00 As discussed throughout the report, the ratio method is deemed the least reliable methodology illustrated in the appraisal. We have placed equal approximate emphasis on the first two methodologies utilized in the preceding chart.
Based on the foregoing, the market rent of the subject tidelands has been concluded as follows: TIDELANDS FAIR USE FEES / FAIR MARKET RENT Annual Rent per 40' Mooring Based on Market Rent/Lineal Foot / 1,326SF of Tidelands used for individual Appraisal Premise As Is Date of Value January 15, 2024 YR for Tidelands ($3.36 LF per mo) $41.00 Compiled by CBRE mooring $1,640 Tidelands Fair Use Fees / Fair Market Rent - Other Size Moorings Based on Methodologies Used in This Report the Value per Square Foot is $1.24 per Square Foot of Tidelands Used Per Annum. The square foot valuation would not change in relation to the size of mooring, only the square foot used and resulting adjustment to the total rate would change.
Sq Ft of Tidelands Used – No Swing Factor Boat Size + X Beam Total Sq Ft 30 + 24 X 12 648 40 + 28 X 15 1,020 50 + 34 ✗ 17 1,428 60 + 34 19 1,786 70 + 34 21
he total rate would change.
Sq Ft of Tidelands Used – No Swing Factor Boat Size + X Beam Total Sq Ft 30 + 24 X 12 648 40 + 28 X 15 1,020 50 + 34 ✗ 17 1,428 60 + 34 19 1,786 70 + 34 21 2,184 31 © 2024 CBRE, Inc.
CBRE Rates without a Swing Factor Reconciliation of Market Rent Boat Size Sq Ft with X Total Sq Ft Fee Per Year Lines etc Fee Per Year Per Lineal Foot 30 648 X 648 $803.52 $26.79 40 1,020 X 1,020 $1,264.80 $31.62 50 1,428 X 1,428 $1,770.72 $35.42 60 1,786 X 1,786 $2,214.64 $36.91 70 2,184 X 2,184 $2,708.16 $38.69 Add Swing Factor at 20% Boat Size Sq Ft with X 20% Total Sq Ft Lines etc with Swing Fee Per Year Fee Per Year Per Lineal Foot 30 648 X 778 $964.72 $32.16 40 1,020 X 1,224 $1,517.76 $37.95 50 1,428 X 1,714 $2,125.36 $42.51 60 1,786 X 2,144 $2,658.56 $44.31 70 2,184 X 2,621 $3,250.04 $46.43 Add Swing Factor at 25% Boat Size Sq Ft with X 25% Total Lines etc with Swing Fee Per Year Fee Per Year Per Lineal Foot 30 648 X 810 $1,004.40 $33.48 40 1020 X 1,275 $1,581.00 $39.53 50 1428 X 1,785 $2,213.40 $44.27 60 1786 X 2,233 $2,768.92 $46.15 70 2184 2,730 $3,385.20 $48.36 Add Swing Factor at 30% Boat Size Sq Ft with X 30% Total Lines etc with Swing Fee Per Year Fee Per Year Per Lineal Foot 30 648 843 $1,045.32 $34.85 40 1,020 X 1,326 $1,644.24 $41.11 50 1,428 X 1,857 $2,302.68 $46.06 60 1,786 2,322 $2,879.28 $47.99 70 2,184 X 2,840 $3,521.60 $50.31 * Variations with Summary results from rounding square foot calculations.
© 2024 CBRE, Inc.
32 32 CBRE Assumptions and Limiting Conditions Assumptions and Limiting Conditions 1. CBRE, Inc. through its appraiser (collectively, "CBRE") has inspected through reasonable observation the subject
.
32 32 CBRE Assumptions and Limiting Conditions Assumptions and Limiting Conditions 1. CBRE, Inc. through its appraiser (collectively, "CBRE") has inspected through reasonable observation the subject property. However, it is not possible or reasonably practicable to personally inspect conditions beneath the soil and the entire interior and exterior of the improvements on the subject property. Therefore, no representation is made as to such matters.
2. The report, including its conclusions and any portion of such report (the "Report"), is as of the date set forth in the letter of transmittal and based upon the information, market, economic, and property conditions and projected levels of operation existing as of such date. The dollar amount of any conclusion as to value in the Report is based upon the purchasing power of the U.S. Dollar on such date. The Report is subject to change as a result of fluctuations in any of the foregoing. CBRE has no obligation to revise the Report to reflect any such fluctuations or other events or conditions which occur subsequent to such date.
3.
Unless otherwise expressly noted in the Report, CBRE has assumed that: (i) Title to the subject property is clear and marketable and that there are no recorded or unrecorded matters or exceptions to title that would adversely affect marketability or value. CBRE has not examined title records (including without limitation liens, encumbrances, easements, deed restrictions, and other conditions that may affect the title or use of the subject property) and makes no representations regarding title or its limitations on the use of the subject property. Insurance against financial loss that may arise out of defects in title should be sought from a qualified title insurance company.
egarding title or its limitations on the use of the subject property. Insurance against financial loss that may arise out of defects in title should be sought from a qualified title insurance company.
(ii) Existing improvements on the subject property conform to applicable local, state, and federal building codes and ordinances, are structurally sound and seismically safe, and have been built and repaired in a workmanlike manner according to standard practices; all building systems (mechanical/electrical, HVAC, elevator, plumbing, etc.) are in good working order with no major deferred maintenance or repair required; and the roof and exterior are in good condition and free from intrusion by the elements. CBRE has not retained independent structural, mechanical, electrical, or civil engineers in connection with this appraisal and, therefore, makes no representations relative to the condition of improvements. CBRE appraisers are not engineers and are not qualified to judge matters of an engineering nature, and furthermore structural problems or building system problems may not be visible. It is expressly assumed that any purchaser would, as a precondition to closing a sale, obtain a satisfactory engineering report relative to the structural integrity of the property and the integrity of building systems.
(iii) Any proposed improvements, on or off-site, as well as any alterations or repairs considered will be completed in a workmanlike manner according to standard practices.
(iv) Hazardous materials are not present on the subject property. CBRE is not qualified to detect such substances.
The presence of substances such as asbestos, urea formaldehyde foam insulation, contaminated groundwater,
ials are not present on the subject property. CBRE is not qualified to detect such substances.
The presence of substances such as asbestos, urea formaldehyde foam insulation, contaminated groundwater, mold, or other potentially hazardous materials may affect the value of the property.
(v) No mineral deposit or subsurface rights of value exist with respect to the subject property, whether gas, liquid, or solid, and no air or development rights of value may be transferred. CBRE has not considered any rights associated with extraction or exploration of any resources, unless otherwise expressly noted in the Report.
(vi) There are no contemplated public initiatives, governmental development controls, rent controls, or changes in the present zoning ordinances or regulations governing use, density, or shape that would significantly affect the value of the subject property.
(vii) All required licenses, certificates of occupancy, consents, or other legislative or administrative authority from any local, state, nor national government or private entity or organization have been or can be readily obtained or renewed for any use on which the Report is based.
(viii) The subject property is managed and operated in a prudent and competent manner, neither inefficiently or super-efficiently.
(ix) The subject property and its use, management, and operation are in full compliance with all applicable federal, state, and local regulations, laws, and restrictions, including without limitation environmental laws, seismic hazards, flight patterns, decibel levels/noise envelopes, fire hazards, hillside ordinances, density, allowable uses, building codes, permits, and licenses.
(x) The subject property is in full compliance with the Americans with Disabilities Act (ADA). CBRE is not qualified to
side ordinances, density, allowable uses, building codes, permits, and licenses.
(x) The subject property is in full compliance with the Americans with Disabilities Act (ADA). CBRE is not qualified to assess the subject property's compliance with the ADA, notwithstanding any discussion of possible readily achievable barrier removal construction items in the Report.
© 2024 CBRE, Inc.
33 CBRE 4.
5.
6.
Assumptions and Limiting Conditions (xi) All information regarding the areas and dimensions of the subject property furnished to CBRE are correct, and no encroachments exist. CBRE has neither undertaken any survey of the boundaries of the subject property nor reviewed or confirmed the accuracy of any legal description of the subject property.
Unless otherwise expressly noted in the Report, no issues regarding the foregoing were brought to CBRE's attention, and CBRE has no knowledge of any such facts affecting the subject property. If any information inconsistent with any of the foregoing assumptions is discovered, such information could have a substantial negative impact on the Report. Accordingly, if any such information is subsequently made known to CBRE, CBRE reserves the right to amend the Report, which may include the conclusions of the Report. CBRE assumes no responsibility for any conditions regarding the foregoing, or for any expertise or knowledge required to discover them. Any user of the Report is urged to retain an expert in the applicable field(s) for information regarding such conditions.
CBRE has assumed that all documents, data and information furnished by or behalf of the client, property owner, or owner's representative are accurate and correct, unless otherwise expressly noted in the Report. Such data and
documents, data and information furnished by or behalf of the client, property owner, or owner's representative are accurate and correct, unless otherwise expressly noted in the Report. Such data and information include, without limitation, numerical street addresses, lot and block numbers, Assessor's Parcel Numbers, land dimensions, square footage area of the land, dimensions of the improvements, gross building areas, net rentable areas, usable areas, unit count, room count, rent schedules, income data, historical operating expenses, budgets, and related data. Any error in any of the above could have a substantial impact on the Report.
Accordingly, if any such errors are subsequently made known to CBRE, CBRE reserves the right to amend the Report, which may include the conclusions of the Report. The client and intended user should carefully review all assumptions, data, relevant calculations, and conclusions of the Report and should immediately notify CBRE of any questions or errors within 30 days after the date of delivery of the Report.
CBRE assumes no responsibility (including any obligation to procure the same) for any documents, data or information not provided to CBRE, including without limitation any termite inspection, survey or occupancy permit.
All furnishings, equipment and business operations have been disregarded with only real property being considered in the Report, except as otherwise expressly stated and typically considered part of real property.
7. Any cash flows included in the analysis are forecasts of estimated future operating characteristics based upon the information and assumptions contained within the Report. Any projections of income, expenses and economic
ded in the analysis are forecasts of estimated future operating characteristics based upon the information and assumptions contained within the Report. Any projections of income, expenses and economic conditions utilized in the Report, including such cash flows, should be considered as only estimates of the expectations of future income and expenses as of the date of the Report and not predictions of the future. Actual results are affected by a number of factors outside the control of CBRE, including without limitation fluctuating economic, market, and property conditions. Actual results may ultimately differ from these projections, and CBRE does not warrant any such projections.
8.
9.
The Report contains professional opinions and is expressly not intended to serve as any warranty, assurance or guarantee of any particular value of the subject property. Other appraisers may reach different conclusions as to the value of the subject property. Furthermore, market value is highly related to exposure time, promotion effort, terms, motivation, and conclusions surrounding the offering of the subject property. The Report is for the sole purpose of providing the intended user with CBRE's independent professional opinion of the value of the subject property as of the date of the Report. Accordingly, CBRE shall not be liable for any losses that arise from any investment or lending decisions based upon the Report that the client, intended user, or any buyer, seller, investor, or lending institution may undertake related to the subject property, and CBRE has not been compensated to assume any of these risks. Nothing contained in the Report shall be construed as any direct or indirect recommendation of CBRE to buy, sell, hold, or finance the subject property.
been compensated to assume any of these risks. Nothing contained in the Report shall be construed as any direct or indirect recommendation of CBRE to buy, sell, hold, or finance the subject property.
No opinion is expressed on matters which may require legal expertise or specialized investigation or knowledge beyond that customarily employed by real estate appraisers. Any user of the Report is advised to retain experts in areas that fall outside the scope of the real estate appraisal profession for such matters.
10. CBRE assumes no responsibility for any costs or consequences arising due to the need, or the lack of need, for flood hazard insurance. An agent for the Federal Flood Insurance Program should be contacted to determine the actual need for Flood Hazard Insurance.
11. Acceptance or use of the Report constitutes full acceptance of these Assumptions and Limiting Conditions and any special assumptions set forth in the Report. It is the responsibility of the user of the Report to read in full, comprehend and thus become aware of all such assumptions and limiting conditions. CBRE assumes no responsibility for any situation arising out of the user's failure to become familiar with and understand the same.
12. The Report applies to the property as a whole only, and any pro ration or division of the title into fractional interests will invalidate such conclusions, unless the Report expressly assumes such pro ration or division of interests.
© 2024 CBRE, Inc.
34 =4 CBRE Assumptions and Limiting Conditions 13. The allocations of the total value estimate in the Report between land and improvements apply only to the existing use of the subject property. The allocations of values for each of the land and improvements are not intended to
l value estimate in the Report between land and improvements apply only to the existing use of the subject property. The allocations of values for each of the land and improvements are not intended to be used with any other property or appraisal and are not valid for any such use.
14. The maps, plats, sketches, graphs, photographs, and exhibits included in this Report are for illustration purposes only and shall be utilized only to assist in visualizing matters discussed in the Report. No such items shall be removed, reproduced, or used apart from the Report.
15. The Report shall not be duplicated or provided to any unintended users in whole or in part without the written consent of CBRE, which consent CBRE may withhold in its sole discretion. Exempt from this restriction is duplication for the internal use of the intended user and its attorneys, accountants, or advisors for the sole benefit of the intended user. Also exempt from this restriction is transmission of the Report pursuant to any requirement of any court, governmental authority, or regulatory agency having jurisdiction over the intended user, provided that the Report and its contents shall not be published, in whole or in part, in any public document without the written consent of CBRE, which consent CBRE may withhold in its sole discretion. Finally, the Report shall not be made available to the public or otherwise used in any offering of the property or any security, as defined by applicable law. Any unintended user who may possess the Report is advised that it shall not rely upon the Report or its conclusions and that it should rely on its own appraisers, advisors and other consultants for any decision in
d user who may possess the Report is advised that it shall not rely upon the Report or its conclusions and that it should rely on its own appraisers, advisors and other consultants for any decision in connection with the subject property. CBRE shall have no liability or responsibility to any such unintended user.
35 © 2024 CBRE, Inc.
CBRE © 2024 CBRE, Inc.
Addenda ADDENDA © 2024 CBRE, Inc.
Addenda Addendum GENERAL DATA MooringsA.mxd BAY AVE E OPAL AVE TOPAZ AVE TURQUOISE AVE COLLINS AVE BAY FRONTS.
S D PUBLIC DOCK B BYC 297 296 34 " 293 284 294 285 295 286 55 44 22 11 43 21 275 266 42 31 292 283 274 265 291 281 271 261 1 264 255 273 282 236 227 272 263 254 245 262 253 244 235 226 234 225 215 252 243 233 224 214 204 251 242 232 241 231 52 41 W 114 81 223 222 A 124 113 102 213 203 212 202 221 211 201 134 123 112 101 184 193 183 154 144 133 122 111 ST 192 173 182 172 153 143 132 121 191 181 162 171 152 142 131 161 151 141 F A ST OCEAN FRONT E Peninsula Park 200 400 Feet B ST BALBOA BLVD E D ST EST G ST BAY-AVE E Miramar Park H ST MIRAMAR DR OCEAN BLVD OCEAN FRONT ALLEY E OCEAN FRONT-E IST Mooring A CITY OF NEWPORT CALIFORNIA City of Newport Beach GIS Division March 26, 2015 L Street Park OPAL AVE TOPAZ AVE T TURQUOISE BAY AVE E AST COLLINS AVE BAY FRONTS OCEAN FRONT E Peninsula Park BST 0 200 400 MooringsA.mxd Feet RUBY AVE PUBLIC DOCK BALBOA BLVDE B 114 A 124 113 102 134 123 1.12 184 183 154 144 133 122 111 173 182 172 153 132 121 162 181 171 152 142 131 161 151 141 DST EST FST Mooring A 10 GST HST BAY AVE E Miramar Park BYC 22 11 21 JST MIRAMAR DR OCEAN BLVD OCEAN FRONT ALLEY E OCEAN FRONT E KST CITY OF Street Park NEWPORT BEACE CALIFORNIA City of Newport Beach GIS Division March 26, 2015 MooringsB.mxd 0 150 Feet 300 A BAY-FRONT-S OPAL AVE TOPAZ AVE TURQUOISE AVE
ONT ALLEY E OCEAN FRONT E KST CITY OF Street Park NEWPORT BEACE CALIFORNIA City of Newport Beach GIS Division March 26, 2015 MooringsB.mxd 0 150 Feet 300 A BAY-FRONT-S OPAL AVE TOPAZ AVE TURQUOISE AVE COLLINS AVE RUBY AVE DIAMOND AVE SAPPHIRE AVE CORAL AVE 201 191 171 161 151 141 131 121 111 202 192 172 162 152 142 132 122 112 123 PUBLIC DOCK 101 102 91 81 92 82 72 103 93 83 73 ՈՒ H APOLENA AVE AMETHYST AVE 15 71 61 51 41 52 33 31 21 11 42 32 22 12 53 43 33 54 44 34 23 13 234 222220 24 14 4567 35 25 15 36 26 16 17 Mooring B CITY O NEWPORT CALIFORNIA City of Newport Beach GIS Division March 26, 2015 BYC ONYX AVE PARK AVE MARINE AVE GRAND CANAL ABALONE AVE CRYSTAL AVE MooringsB.mxd BAY FRONTS OPAL AVE TOPAZ AVE TURQUOISE AVE COLLINS AVE 201 191 171 161 151 141 131 121 111 202 192-172 162 152 142 132 122 112 123 RUBY AVE DIAMOND AVE HERRI SAPPHIRE AVE 101 888 102 103 Mooring B NEWPOR OF NEW CITY BEACH City of Newport Beach GIS Division March 25, 2015 CORAL AVE 889 APOLENA AVE AMETHYST AVE RNK 5888 2239 ONYX AVE 333333 222222 2352 MARINE AVE THEIDEL GRAND CANAL BYC ABALONE AVE CRYSTAL AVE HD1C 26 36 87 46 56 HD2C 66 25 76 35 86 45 55 HD3C 65 24 75 34 85 44 95 64 74 C 54 13 23 33 84 43 94 53 12 63 22 73 32 83 42 93 52 11 62 21 72 31 82 41 92 51 61 71 81 91 my u v BAY IS ANADE AVE 100 Feet 200 MooringsC.mxd EDGEWATER AVE E MEDINA WAY MONTERO AVE ALVARADO PL PUBLIC DOCK CORONADO ST EDGEWATER PL FERNANDO ST FERRY CRO CYPRESS ST FERRY CROSSING ADAMS ST BAY AVE E HARDING ST Mooring C OF NEWPORT CALIFORNIA BEACE City of Newport Beach GIS Division March 26, 2015 0 BAY IS HDIC 26 36 87 46 56 HD2G 66 25 76 35 86 45 55 HD3G 65 24 75 34 85 95 64 74 C5 44 54 13 23 33 84 43 94 53 12 63 22 73 32 83 42 93 52 11 62 21 72 31 82 41 51 61 71 91 81 100 200 Feet MooringsC.mxd ANADE AVE
26 36 87 46 56 HD2G 66 25 76 35 86 45 55 HD3G 65 24 75 34 85 95 64 74 C5 44 54 13 23 33 84 43 94 53 12 63 22 73 32 83 42 93 52 11 62 21 72 31 82 41 51 61 71 91 81 100 200 Feet MooringsC.mxd ANADE AVE EDGEWATER AVE E PUBLIC DOCK CORONADO ST [H] ALVARADO MEDINA WAY MONT AVE FERNANDO ST EDGEWATER PL CYPRESS ST 574 ADAMS ST BAY AVE E HARDING ST NEWPORT Mooring C CITY O CALIFORNIA City of Newport Beach GIS Division March 26, 2015 MooringsD.mxd FRONT ALLEY S CAPE COVE KETCH RD www ПО ПЛ PROMONTORY BAY LIVII UL SHELTER COVE PUBLIC DOCK BAY FRONT-N BAY-FRONT ALLEY N EMERALD AVE PARK AVE 0 150 300 Feet GARNET AVE SCHOONER RD www REEF COVE HARBOR ISLAND DR YAWL RD MT C U LUU UU BALBOA YACHT BASIN wwwwwww www จากกากกกกกกกกกก Myrtle Park NE PROMONTORY-DR-E.
BAYSIDE BAYSIDE DR ---56 54 52 50 48 46 44 42 40 38 36 34 32 30 28 26 24 22 20 18 16 14 10 11 55 53 51 49 47 45 D 21 19 17 15 8 6 4 2 5 43 23 41 25 39 37 35 33 31 29 27 5 PEARL AVE AGATE AVE OPAL AVE COLLINS AVE RUBY AVE DIAMOND AVE BALBOA AVE PUBLIC DOCK SAPPHIRE AVE CORAL AVE APOLENA AVE OVE-W AMETHYST AVE 33 BAY-FRONT-N ONYX AVE Mooring D CITY OF NEWPORT CALIFORNIA City of Newport Beach GIS Division March 26, 2015 BAYSIDE COVE E M JAMBOREE RD DOLPHIN TER MooringsD.mxd BAY FRONT ALLEY'S CAPE COVE KETCH RD SHELTER COVE SCHOONER RD ميلتي 54 52 56 55 53 LUBAY FRONT N 88 48 49.47 PUBLIC DOCK BAY FR EMERALD AVE PARK AVE GARNET AVE PEARL AVE AGATE AVE OPAL AVE REEF COVE HARBOR ISLAND DRY YAWLRD 42.40 8 41 39 37 COLLINS AVE 38 36 34 RUBY AVE Myrtle 32 D 30 30 31-29 26 24 25-23 22 PUBLIC DOCK DIAMOND AVE BALBOA AVE SAPPHIRE AVE CORAL AVE 20 18 16 19 15 APOLENA AVE AMETHYST AVE PROMONTORY DRE BAYSIDE COVEW SIDE C Mooring D City of Newport Beach GIS Division March 26, 2015 CITY OF NEW PORT BEACH BAYSIDE DR BAY FRONT N
HIRE AVE CORAL AVE 20 18 16 19 15 APOLENA AVE AMETHYST AVE PROMONTORY DRE BAYSIDE COVEW SIDE C Mooring D City of Newport Beach GIS Division March 26, 2015 CITY OF NEW PORT BEACH BAYSIDE DR BAY FRONT N ONYX AVE 20 BAYSIDE DE COVE JAMBOREE RD DOLPHIN TER Moorings Atlas.mxd о 75 150 Feet F-022 F-020 F-018 F-014 F-016 F-019 F-017 F-015 F-013 F-021 P-091 F F-002 NHYC F-004 F-006 F-008 F-010 F-012 F-001 F-003 F-005 F-007 F-011 F-009 P-084 P-083A P-083 P-082 P-081 P-080 BAY AVE W F - Mooring Number of Moorings: 22 Total Area: sq. ft.
City of Newport Beach GIS Division September 24, 2018 NEWPORT BEACH GIS P-075 P-074 P-073 P-072 TER CIRCLE DR m 100 Feet 200 MooringsG.mxd BAY SHORE DR WAVERLY DR CRESTVIEW DR wwwwwww 3 5 7 9 11 13 15 17 G 2 4 6 8 10 12 14 16 18 COAST HWY W ㅁ NEWPORT Mooring G CITY OF CALIFORNIA City of Newport Beach GIS Division March 26, 2015 MooringsG.mxd 100 Feet 200 2 3 CIRCLE DR VISTA DR BAY SHORE DR TO WAVERLY DR 5 7 11 13 15 17 6 8 G 10 12 14 16 18 Mooring G CRESTVIEW DR COAST HWY W RT BEAC NEWPORT BEACE CITY O CALIFORNIA City of Newport Beach GIS Division March 26, 2015 MooringsH.mxd 0 125 250 Feet Veterans Memorial Park J mm 15TH ST VIA HAVRE VIA ITHACA VIA JUCAR VIA KORON VIA LORCA STRADA LORCA P VIA MENTONE 814 714 614 813 713 613 413 13■ 812 712 612 412 12■ 811 711 611 511 411 211 11 ▪ 810 710 610 510 410 310 210 89 79 69 59 49 " 88 78 68 58 48 H 39 29 38 28 I 87 77 67 57 47 37 27 86 76 66 56 46 36 26 85 75 65 55 45 35 25 ■ 84 74 64 54 44 34 24 ' 83 73 63 53 43 33 23 82 72 62 52 42 32 22 81 71 61 51 41 31 21 PUBLIC DOCK BAY AVE W כן VIA NICE VIA ORVIETO VIA PALERMO NEWPORT CHANNEL ⇓ W ILU yu wyy yw Mooring H CALIFORNIA City of Newport Beach GIS Division March 26, 2015 NEWPOR F VIA QUITO STRADA QUITO VIA RAVENNA VIA SAN REMO
y כן VIA NICE VIA ORVIETO VIA PALERMO NEWPORT CHANNEL ⇓ W ILU yu wyy yw Mooring H CALIFORNIA City of Newport Beach GIS Division March 26, 2015 NEWPOR F VIA QUITO STRADA QUITO VIA RAVENNA VIA SAN REMO VIA TRIESTE STRADA TRIESTE MooringsH.mxd Feet 250 Memorial Veterans Park 限: 15TH ST VIA HAVRE VIA ITHACA VIA JUCAR PIMBE VIA KORON VIA LORCA 814 888888888822388 H 410 411 412 413 2888888888888 2යීය ශශලය 8 PUBLIC DOCK BAY AVEW 14TH ST Mooring H 13TH ST I VIA MENTONE CITY OF NEW 12TH ST BEACH March 26, 2015 GIS Division City of Newport Beach VIA NICE VIA ORVIETO VIA PALERMO F 14 VIA QUITO™ STRADA QUITO VIA RAVENNA VIA SAN REMO VIA TRIESTE STRADA TRIESTE MooringsJ.mxd 20TH ST 19TH ST YARD WAY ANZA ST BOLIVAR ST SHIP BEACH DR + CABRILLO ST CHANNEL RD 0 125 250 Feet H T T H CAKE ☐ FREMONT ST EL PASEO ST 18TH ST ST mmmmmmm ANCHORAG WAY K VIA HAVRE VIA ITHACA 516 615 515 714 614 514 414 LIDO 813 812 PENINSULA -811 713 613 513 712 612 512 412 711 611 511 411 810 710 610 510 410 310 413 113 312 212 112 311 211 111■ 210 110■ 89 79 69 59 49 39 29 19 98 88 78 68 58 48 38 28 18 107 97 87 77 67 57 47 37 27 17 H 106 96 86 76 66 56 46 36 26 16 105 95 85 75 65 55 45 35 25 15 104 94 84 74 64 54 44 34 24 14 1103 103 93 83 73 63 53 43 33 23 13 1102 102 92 82 72 62 52 42 32 22 12 1101 101 91 81 71 61 51 41 31 21 11 18th Street Sailing Base www Marina Park Veterans Memorial Park Mooring J PUBLIC DOCK 15TH ST BAY AVE W VIA JUCAR NEWPORT CALIFORNIA City of Newport Beach GIS Division March 26, 2015 VIA KORON VIA LORCA STRADA LORCAMooringsJ.mxd 20TH ST Feet 19TH ST 250 ANZA ST BOLIVAR ST SHIPYARD WAY BEACH DR CABRILLO ST DRAKE ST EL PASEO ST FREMONT ST CHANN RD 18TH ST ANCHORAGE WAY 1103 1102 102 1101 101 - 91 9384889872 8888888 Marina Park Mooring J K 238288488393388 Veterans
IVAR ST SHIPYARD WAY BEACH DR CABRILLO ST DRAKE ST EL PASEO ST FREMONT ST CHANN RD 18TH ST ANCHORAGE WAY 1103 1102 102 1101 101 - 91 9384889872 8888888 Marina Park Mooring J K 238288488393388 Veterans Memorial Park 2227227 3333333 15TH ST PUBLIC DOCK BAY AVEW CITY OF NEW PORT BEACH City of Newport Beach GIS Division March 26, 2015 14TH ST VIA HAVRE VIA ITHACA VIA JUCAR VIA KORON VIA LORCA STRADA LORCA Moorings Atlas.mxd VIA ANTIBES STRADA CENTRO BU BA K-021 K-019 K-017 K-015 K-013 K-011 K-009 K-007 K-005 K-003 K-001 ' K K-022 K-020 K-018 K-016 K-014 K-012 K-010 K-008 K-006 K-004 K-002 ° 75 150 Feet K - Mooring ANCHORAGE WAY Number of Moorings: 22 Total Area: 138,265 sq. ft.
VIA LIDO SOUD L-042 NEWPORT BEACH GIS City of Newport Beach GIS Division September 24, 2018 L-041 L-040 © 2024 CBRE, Inc.
Addenda Addendum APPRAISER LICENSE PROFESSIONAL PROFILE ROBERT Z. JACOBSON, MAI Executive Vice President Valuation and Advisory Services ROBERT Z. JACOBSON, MAI Robert Z. Jacobson, MAI is the head appraiser in the Ontario office for CBRE Valuation & Advisory Services. Mr. Jacobson joined the Ontario office in 2002 and has served institutional as well as local clients on all types of appraisal and consulting assignments throughout the Inland Empire. Mr. Jacobson also works in concert with the National Self Storage Valuation Group that is based out of the Ontario office.
Assignment specific experience includes Mr. Jacobson's appraisal of harbor usage-oriented properties in Oceanside and Port Hueneme Harbors, and his access to and review of CBRE's vast resources which include appraisals of commercial properties and associated water rights and associated rent determination in virtually every harbor along the California
ss to and review of CBRE's vast resources which include appraisals of commercial properties and associated water rights and associated rent determination in virtually every harbor along the California Coast, as well as more harbor specific uses nationally including but not limited to: Location Size Property Description Cell.
CBRE Harbor Appraisals Harbor Redevelopment ■ Port - Market Rent Arbitration www.cbre.com/Robert.Jacobson Multiple Marina Portfolio ■ Marina Harbor Apartments & Anchorage CLIENTS REPRESENTED ■ Deep Water Bulk Container Facility Institutional ■ Dry Stack and West Slip Mixed-Use Prologis Blackstone ■ Super Yacht shipyard & drydock KKR Panattoni IDI ■ Shipyard & Drydock Super Yacht Marina REPRESENTATIVE ASSIGNMENTS Acres Confidential, CA Confidential, CA 239 acres San Diego, CA Marina Del Rey, CA Confidential, WA Naples, FL Puerto Rico Confidential, FL British VI 300 acres 900+ slips 966 unit, 321 slip 12,000 acres 350 slips 97,000 GSF 28 acres 30 slips Local Altus Trojan Lewis Group March JPA HIP Property Description Location Size Industrial SF General Mills Perris 1,547,342 ■ Proctor & Gamble Moreno Valley 1,479,117 Self Storage Units Bank Deutsche Bank Wells Fargo Cantor Western Alliance Bank Public Storage - Proposed SoCal Self Storage Los Angeles County 2,065 Hollywood 1,007 Land Acres ■ Riverside Mining - Industrial US Bank ■ Future Residential Land Riverside Adelanto/Victorville 223 1,150 Comerica Citizens Business Bank Self Storage Trojan Public Storage SmartStop Extra Space A-1 SoCal CREDENTIALS Professional Affiliations/Accreditations/Certifications ■ Appraisal Institute, Designated Member (MAI) ■ Certified General Real Estate Appraiser, State of California, No. AG035731 EDUCATION
REDENTIALS Professional Affiliations/Accreditations/Certifications ■ Appraisal Institute, Designated Member (MAI) ■ Certified General Real Estate Appraiser, State of California, No. AG035731 EDUCATION ■ University of Arizona, Tucson, Arizona, Bachelor of Science Duel Major Finance and Accounting - Cum Laude CBRE SEAL OF GREAT SE THE G THE STATE CALIFORNIA Business, Consumer Services & Housing Agency BUREAU OF REAL ESTATE APPRAISERS REAL ESTATE APPRAISER LICENSE Robert Z. Jacobson has successfully met the requirements for a license as a residential and commercial real estate appraiser in the State of California and is, therefore, entitled to use the title: "Certified General Real Estate Appraiser" This license has been issued in accordance with the provisions of the Real Estate Appraisers' Licensing and Certification Law.
BREA APPRAISER IDENTIFICATION NUMBER: AG 035731 E A Effective Date: Date Expires: July 8, 2023 July 7, 2025 3070653 Angle mot Angela Jemmott, Bureau Chief, BREA EXVAR THIS DOCUMENT CONTAINS A TRUE WATERMARK - HOLD UP TO LIGHT TO SEE "CHAIN LINK" CITY NEWPORT BEACH CALIFORNIA October 30, 2025 Via Email and U.S. Mail CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment Jeff Plovnick Granted Lands Specialist California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 [email protected] Subject: Dear Jeff: Comments on Staff Report and Exhibit A - Draft "Report on the City of Newport Beach's Public Trust Lands Management” (Item 66, meeting 08/21/2025) The City of Newport Beach (City) appreciates the State Lands Commission (Commission) preparing the staff report and draft Exhibit A (Report) addressing
Lands Management” (Item 66, meeting 08/21/2025) The City of Newport Beach (City) appreciates the State Lands Commission (Commission) preparing the staff report and draft Exhibit A (Report) addressing management of the City's granted tidelands. We support the Commission's oversight role and share the goal of ensuring that the City's programs for moorings and residential piers are fully consistent with the California Constitution, the Public Trust Doctrine, and applicable granting statutes.
This letter provides the City's preliminary comments and outlines actions already underway. We welcome a working session with Commission staff to incorporate these comments prior to finalizing the Report for the Commission's December 2025 meeting.
1) Requested Clarifications and Edits to the Draft Report Please add a note in the final Report that explains the Commission's role: it checks for consistency with the Constitution, the Public Trust Doctrine, and the granting statutes (collectively referred to herein as the “Trust”). At the same time, the City— as trustee can choose among any lawful policy implementation options. Stating this clearly will help avoid the impression that Commission staff is replacing the City's policy choices when those choices are consistent with the Trust.
C1 Community Development Department California State Lands Commission Comments on Staff Report and Exhibit A October 30, 2025 Page | 2 2) Residential Pier "Impact Area" Methodology The Report rightly notes that valuing residential piers should look at the area of tidelands that is primarily serving the private use. To keep things transparent and consistent, we'd like clear technical guidance and agreement-on a standard way to define the "impact area" considering the unique characteristics of Newport
private use. To keep things transparent and consistent, we'd like clear technical guidance and agreement-on a standard way to define the "impact area" considering the unique characteristics of Newport Harbor (for example, the footprint, fairway/berth space, and any safety or approach buffers). The City proposes conducting an independent appraisal using the agreed methodology and to phase-in any rate adjustments.
3) Fair-Market Rent Framework and Appraisal Cadence Please confirm in the final Report that using the most current independent appraisal of mooring uses and residential piers—indexed to CPI and refreshed no less than every 5 years—is a reasonable, Trust-consistent approach. Also, please note that moorings and residential piers may use different calculation methods (for example, linear-foot vs. square-foot/impact-area) as long as each reflects fair market value and the reasoning is documented in the record.
4) Private Transfers and Transition Tools References in the draft Report, which explicitly says "The City should end its program of allowing private mooring permit sales." (Recommendation, p. 28); and also notes the City's license program prohibits private transfers (p. 3) and explains why the private sale policy could conflict with the Trust, specifically the gift-ofpublic-funds rules (pp. 28-30).
The City intends to end private sales/transfers of mooring permits. Please confirm that implementing a sunset date is consistent with the Trust and does not create a gift-of-public-funds issue.
5) Parity Across User Classes The draft Report indicates mooring users and residential pier users are treated differently. We're asking the final Report to clarify the Commission's position whether a phasing plan and timeline will be consistent with the Trust, to bring
s and residential pier users are treated differently. We're asking the final Report to clarify the Commission's position whether a phasing plan and timeline will be consistent with the Trust, to bring residential pier rents in line with mooring rates, using the most recent appraisals and the agreed upon impact area method. If appropriate, the City can phase these changes in based on findings to prevent hardship while still delivering fair value to the Trust.
72 C2 C3 C4 55 C5 California State Lands Commission Comments on Staff Report and Exhibit A October 30, 2025 Page | 3 The City appreciates the Commission's partnership in stewarding public trust resources in Newport Harbor. The updates and commitments we've outlined are intended to give everyone-Commission, City, and the harbor community-a transparent, durable framework that secures fair value while protecting navigation, habitat, and public access.
Sincerely, Lauren Wooding Whitlinger Real Property Administrator City of Newport Beach CC: Newport Beach City Council Harbor Commissioners City Manager City Attorney From: Sent on: To: Subject: Sawyer Jones Tuesday, August 26, 2025 11:25:22 PM Comments on CSLC meeting Item 66, City of Newport Beach (G09-02) Follow up: Flag for follow up Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
I wanted to send comments on the recent CSLC meeting from August 21, 2025 at noon. My comments are in response to Item 66, City of Newport Beach (G09-02). I am a mooring permit holder in the City of Newport Beach.
end comments on the recent CSLC meeting from August 21, 2025 at noon. My comments are in response to Item 66, City of Newport Beach (G09-02). I am a mooring permit holder in the City of Newport Beach.
The staff report 66 does show a huge discrepancy in the pricing between dock owners and mooring permits values and that D1 alone is egregious and should be illegal. But what I also find significant is what was not discussed in this report. Your staff simply concludes that the city can "reasonably rely on its recent moring rate apprraisal" to set rates for its mooring permits but I disagree significantly. I've reviewed the City of Newport Beach appraisal for the mooring permits and have a significant disagreement with the way they come to their assessment of the values for offshore moorings. My simple argument is this, a mooring is not a DOCK.
It's as though the assessor does not even know what they are assessing. Using items like land value, waterfront land value, and marina dock rental pricing in their assessment to try to evaluate an off-shore mooring can is not appropriate.
How can you compare a dock to a mooring. How can you compare the value of dock that you can reach and access by foot/land versus a mooring where your only access is to swim, boat or dingy to. How can you compare the value of a mooring which does not have access to fresh water or power to a dock that has access to both.
The values are outrageously inflated because of this.
The appraisal compares marina slip rental values, where a marina provides access, security, maintenance of the docks and floats and utilities and property, provides water and power, restrooms, bathrooms, parking, etc., etc. etc. While a mooring
lues, where a marina provides access, security, maintenance of the docks and floats and utilities and property, provides water and power, restrooms, bathrooms, parking, etc., etc. etc. While a mooring permittee is required to pay and maintain all mooring facilities out of their own pocket (all mooring weights, chains, ropes, floats, balls, etc), all without being provided access, water or power.
And look at your staffs own data, who has shown how egregious these rate hikes are in comparison to the CSLC So. Ca.
benchmark of $0.451 / square ft for a mooring.
How can you compare the two? How do you agree with the City assessment that the value of a mooring permit should be the same price as a dock/slip at a marina?
This appraisal is nothing more than a deceptive assessment paid for by the City that shows a one-sided opinion favoring the City's views and how they are willing to fraudulently manipulate the system to try to single out the mooring permits.
Please consider this City's intentions here. Why would they focus on one very insignificant group (mooring permittees) while ignoring and helping out the property/water front/dock owners? There seems to be some lobbying going on and its not in favor of the poor mooring permit holders. The City has been trying to get rid of the permit holders for years.
Thank you for your consideration.
Sawyer Jones Re: Public Trust Doctrine and Liveaboards in Newport Beach Harbor - Request that the SLC obtain Attorney General Opinion From: Samantha McDonald, PhD Resident Liveaboard of Newport Beach To: State Lands Commission Chair and Chief Counsel 100 Howe Avenue, Suite 100 South Sacramento CA 95825 Dear Chair Kounalakis and Chief Counsel, I am writing in response to comments made by the California State Lands Commission (CSLC) Chief
ef Counsel 100 Howe Avenue, Suite 100 South Sacramento CA 95825 Dear Chair Kounalakis and Chief Counsel, I am writing in response to comments made by the California State Lands Commission (CSLC) Chief Counsel on August 21st, 2025 during Agenda Item 66, “Report on the City of Newport Beach's Public Trust Lands Management."
I respectfully request that, well before accepting a final draft of this report, the Commission formally seek an Attorney General opinion specific to the situation of liveaboards in Newport Beach. This request is based on strong evidence that the legal guidance provided by CSLC Chief Counsel was overbroad and risks misapplying the Public Trust Doctrine to Newport's liveaboard community. Without further investigation, these decisions could lead to the unjust eradication of a century-old community in the California tidelands.
To summarize my claims: 1. Newport Beach liveaboards are recreational and public trust-aligned.
2. The Granting Act of Newport Beach enables private use on public tidelands.
3. The State has historically allowed private use on public land for specific purposes, including liveaboards in the tidelands across California.
4. The housing crisis implores the CSLC to prioritize, protect, and preserve affordable housing.
CSLC Concerns From The August 21st Commission Meeting During the State Lands Commission's Meeting on August 21st, the Commission discussed a draft report written by Commission Staff to review topics related to the City of Newport Beach's mooring permit program.¹ This review came after more than a year of investigation by the State Lands Commission and continuous input by concerned tidelands users who believe that the City of Newport Beach unlawfully discriminated against mooring holders in comparison to other tidelands
he State Lands Commission and continuous input by concerned tidelands users who believe that the City of Newport Beach unlawfully discriminated against mooring holders in comparison to other tidelands E1 (entire letter) 1 ' Cal. State Lands Comm'n, Staff Report 66 (Informational), Grant File No. 09-02 (Aug. 21, 2025).
1 users. The staff analysis supported the public's concerns, stating that Newport Beach may have violated both the granting statute and the California constitution in relation to rates.
However, Staff concluded in their report that the City of Newport Beach's plan to use their proposed City License program, a program converts all Mooring Permits to short-term City-owned licenses, was reasonable. Staff recommended that Newport Beach move forward with their license program.
During public comment the members of the public, including myself, noted that the short-term city-owned licenses were access-restricting, as the program eradicates the liveaboard community in Newport Beach because short-term licenses do not allow liveaboards.
During the meeting, Chair Kounalakis asked Commission Staff and Counsel why the removal of liveaboards was not addressed in the draft report. Chief Counsel Seth Blackmon responded to Chair Kounalakis stating: "Your predecessor in this position did agree to waive privilege on an Attorney General opinion on liveaboards... because it privatizes uses of public land and it takes that out of the public."
Chair Kounalakis responded, “I am sorry Seth, but are you saying the liveaboards are not allowed?"
Chief Counsel Seth Blackmon responded, "We are saying that under the Attorney General, yeah, in the current framework of the public trust doctrine, liveaboards are a privatization of public land [sic]."
ief Counsel Seth Blackmon responded, "We are saying that under the Attorney General, yeah, in the current framework of the public trust doctrine, liveaboards are a privatization of public land [sic]."
Chief Counsel explained that this reasoning was based on a letter from the Attorney General's office of California provided to the State Lands Commission on June 19th, 2015.² This letter provides informal advice from the Attorney General concerning whether private residential use of houseboats on sovereign tidelands in Redwood City, California is legally permissible. This letter was made available to the public on January 4th, 2016.
This interpretation of the Attorney General's letter and its application to liveaboards in Newport Beach is, to the best of my knowledge, incorrect. The reasonings for this argument are the following: 1. Newport Vessels are Recreational and Public Trust-Aligned In 2016, the SLC reviewed a Draft Environmental Impact Report (DEIR) for the Redwood City Inner Harbor Specific Plan. The Commission was concerned about the use of House Boats in Redwood City's Docktown Marina as a form of residence on public tidelands. House boats are designed for permanent residential use. House boats are often non-navigable structures, attached to land-based utilities, and designed for non-maritime uses. In simpler terms, they are floating houses³. 80% of ² Letter from Andrew M. Vogel, Deputy Attorney General, to Jennifer Lucchesi, Executive Officer, California State Lands Commission (June 19, 2015).
3 The Attorney General's letter uses the term liveaboard to describe residents of house boats but according to Cal. Code Regs. Tit. 14, § 10128, “A live-aboard boat' is a boat that is not a transient boat, that is capable of being
r uses the term liveaboard to describe residents of house boats but according to Cal. Code Regs. Tit. 14, § 10128, “A live-aboard boat' is a boat that is not a transient boat, that is capable of being used for active self-propelled navigation, and that is occupied as a residence as that term is defined in California Government Code Section 244." House boats are often non-navigational and would most likely not be defined as a liveaboard boat.
2 berths in Redwood City were used for residential houseboats, at the time of the Attorney General's review.
In People ex rel. San Francisco Bay Conservation and Development Com. v. Smith the court concluded "A houseboat is neither a water-oriented use nor a use that furthers the public trust and does not serve a statewide public benefit.”4 The Attorney General cited this case among others to highlight that the non-recreational use of House Boats does not align with the Public Trust Doctrine.
By contrast, Newport Beach's Harbor Code, Title 17, prohibits house boats. 5 Newport Beach liveaboards are recreational-first, fully navigational boats, consistent with the public trust doctrine of boating recreation recognized by California courts.6 These are sailboats and motorboats designed and used primarily for coastal access and recreation.
Living aboard is incidental to recreational boating, not a substitute for it. Unlike Redwood City where 80% of berths in the marina were used for residential purposes, the City of Newport Beach currently only allows 7% of vessels in Newport Beach for liveaboard use; it is not the primary use of the mooring fields.
The evidence for such recreation by the liveaboards community can be seen in both the City rules
ows 7% of vessels in Newport Beach for liveaboard use; it is not the primary use of the mooring fields.
The evidence for such recreation by the liveaboards community can be seen in both the City rules and practices of the community. For example, the City of Newport Beach permits a system in which empty mooring balls can be rented out by the City while the mooring holder is away. This is due to the fact that all Newport Beach vessels on moorings are navigable and for recreation.
The City of Newport Beach also requires liveaboards to pass an annual inspection in which they must prove navigability and safety standards to ensure that such boats are maintaining their designed use and standards for recreational boating and safety. No other boats in the harbor; including non-liveaboard boats which utilize the public moorings, yacht clubs moorings, marina boats, or boats on residential piers, must undergo this annual inspection.
As noted above, the City of Newport Beach rents mooring spots when liveaboards and other permittees are away, and there are typically 100 empty mooring balls available each day. Mooring balls do not block public access through privatization, they enhance it, as any public boater can use empty mooring balls while unused by the permittee. Proceeds from fee-use through sublet are collected and kept by the City.
More importantly - most, if not all, liveaboards in Newport Beach are engaged in the activities defined in the Public Trust Doctrine as public use. For example, a large number of liveaboards are cruisers (i.e., boaters who take extended voyages out to sea and other locations). My partner and I spent two cruising seasons in Western Mexico. Our liveaboard neighbors sailed to French Polynesia
re cruisers (i.e., boaters who take extended voyages out to sea and other locations). My partner and I spent two cruising seasons in Western Mexico. Our liveaboard neighbors sailed to French Polynesia and back last year; another liveaboard couple sailed their vessel from South East Asia to Newport Beach. This is only a few examples. This form of recreation long-distance voyaging - is 4 People ex rel. San Francisco Bay Conservation & Dev. Comm'n v. Smith (1994) 26 Cal.App.4th 113, 123.
5 Newport Beach, Cal., Mun. Code tit. 17, § 17.35.020 (2025).
6 Marks v. Whitney (1971) 6 Cal.3d 251, 259.
7 Newport Beach, Cal., Mun. Code tit. 17, ch. 17.40 (Live-Aboards) (current through Ordinance No. 2025-6).
3 inextricably linked to residence aboard, and therefore directly tied to navigation and recreation under the trust.
Chief Counsel stated during the August meeting: "...We generally highlight the fact it is a public trust consistent use, the piers are, because it's actually access for waterborne activities with boats. [sic]" - Chief Counsel Blackmon, State Lands Commission Meeting, August 21st The mooring liveaboards are not different. We live on vessels to access waterborne activities and services with our vessels.
In addition to recreation, the California Supreme Court in People v. City of Long Beach, explained that facilities serving maritime personnel could be consistent with trust purposes: "Personnel are as vital to these activities as the ships and other facilities used therein, and no distinction can properly be drawn between providing dormitories and other facilities for maritime personnel and docks for ships, warehouses for goods (City of Oakland v. Williams, 206 Cal. 315, 331 [274 P. 328])."8
n properly be drawn between providing dormitories and other facilities for maritime personnel and docks for ships, warehouses for goods (City of Oakland v. Williams, 206 Cal. 315, 331 [274 P. 328])."8 This reasoning underscores the importance of residents connected to navigation and other maritime functions. In Newport Harbor, liveaboards are not isolated homeowners; they are active participants in maritime life. The liveaboard community includes fishing boat crews, charter captains, boat repairmen, delivery captains, and recreational sailors that reside on their vessels in order to support navigation and recreation – both recognized trust purposes.
Thus, the Commission's Counsel cannot argue that liveaboards prevent recreational use when the liveaboards are indeed recreational users and users that serve maritime purposes that are essential to the use of the tidelands. The liveaboards are consistent with Public Trust purposes.
2. The Granting Act of Newport Beach Enables Private Use on Public Tidelands Redwood City's grant (Stats. 1945, ch. 1359 [Redwood City grant]) is older and narrower in scope than Newport Beach's tideland grant. It is centered on “harbor, aviation, commerce, navigation and fishery" purposes and related works. There is no broad recreation language (e.g., public beaches, marinas, aquatic playgrounds.) Redwood City's narrower grant was one reason the State Attorney General concluded in their informal analysis that Docktown's private residential House Boats were inconsistent with both the public trust and the grant itself.
Newport Beach's grant (Stats. 1978, ch. 74 [Newport Beach Beacon Bay Bill]) is broader; the grant expressly denotes uses in which there is a general statewide interest. The original grant was dated
f.
Newport Beach's grant (Stats. 1978, ch. 74 [Newport Beach Beacon Bay Bill]) is broader; the grant expressly denotes uses in which there is a general statewide interest. The original grant was dated July 25, 1919 but there have been several separate amendments since then, including the new grant in 1978. The Beacon Bay grant explicitly lists public marinas, bathing beaches, aquatic playgrounds, 8 People v. City of Long Beach (1959) 51 Cal.2d 875.
4 recreational facilities, public parks, and open space, harbor, commerce, and navigation. The Beacon Bay grant lets the City lease tidelands for those enumerated, trust-consistent uses.
The Beacon Bay Bill also contains special instances for privatization on public land. For example, there are private residential homes in Newport Beach that lay on public tidelands. These were once submerged lands that were artificially filled and then legislatively authorized for residential leaseholds. These houses are established on lease land, in which they are required to pay into the tidelands fund to own and maintain." Liveaboards in Newport Beach, also pay funds into the tidelands, as well as an additional fee to reside on their vessels, just as the privatized homes in Beacon Bay.
Liveaboards do not represent an outlier to the charter for Newport Beach, nor should liveaboards be scrutinized for residential use of public tidelands when much wealthier Newport residents have multi-million dollar homes on public tidelands, approved by the tideland grant.
The homes on tidelands in Beacon Bay exist only because the Legislature enacted a special statutory allowance to allow long-term residential leases. By contrast, Newport's liveaboards remain navigable
The homes on tidelands in Beacon Bay exist only because the Legislature enacted a special statutory allowance to allow long-term residential leases. By contrast, Newport's liveaboards remain navigable vessels in open water. They are not fixed homes on filled land, and their primary uses - boating, navigation, recreation align with core trust purposes. They demonstrate uses of recreation on a public tideland.
3. The State has historically allowed private use on public land for specific purposes, including liveaboards.
"We are saying that under the Attorney General in the current framework of the public trust doctrine, liveaboards are a privatization of public land." - Chief Counsel Blackmon, State Lands Commission Meeting, August 21st Mr. Blackmon's assertion that private occupancy of vessels automatically constitutes privatization of public land oversimplifies the court's interpretation of California law. The State Lands Commission does not ban all private uses of public lands; rather, it requires that such uses be consistent with, or incidental to, trust purposes. This includes residential purposes.
The State has accommodated private residential uses on public lands on multiple occurrences where rent/fees are paid for that use. One clear example is University Hills at The University of California Irvine. University Hills is a neighborhood built on state-owned land. The land is held by the Regents of the University of California, and nearly two-thirds of faculty live there under leaseholder arrangements.
Residents of University Hills own their homes but they do not own the underlying land; they pay "ground rent" to a state managed fund and are responsible for maintenance. In practice, University
ents.
Residents of University Hills own their homes but they do not own the underlying land; they pay "ground rent" to a state managed fund and are responsible for maintenance. In practice, University 9 City of Newport Beach, Summary of Proposed Compliance With Stats. 1978, ch. 74 (Beacon Bay) (May 1981), State Lands Commission; Stats. 1978, ch. 74. S3.C (Beacon Bay) (April 1978).
10 These houses include the home of former Newport Beach Harbor Commissioner, Scott Cunningham demonstrating a public authority in the harbor having a private home on publicly submerged tidelands.
5 Hills residents also own and trade their homes on a private market. This model is directly analogous to Newport Beach liveaboards, who own their vessels (the “home”), can transfer the permit, sell their home, and pay rent for space on state lands which are directed into the State.
University Hills was also created as a way to preserve affordable housing for University employees.
As I will describe in the next section, such use of state land for purposes of affordability is compliant and endorsed by recent State actions. Just as University Hills demonstrates that private residential use coexists with public land ownership when aligned with state objectives, liveaboards in Newport Beach demonstrate that residence aboard can coexist with, and in fact advance, public trust purposes of boating, navigation, and recreation.
Additional examples of State land with private residences exist. The Department of Parks and Recreation maintains nearly 500 state-owned residences, including houses, mobile homes, dorms, and trailers for park employees-often at highly subsidized rents."
In People v. City of Long Beach, 51 Cal.2d 875 (1959), the Supreme Court determined that residence of
ng houses, mobile homes, dorms, and trailers for park employees-often at highly subsidized rents."
In People v. City of Long Beach, 51 Cal.2d 875 (1959), the Supreme Court determined that residence of persons that maintain the “the harbor and commerce, fishery, and navigation" are "not only consistent with but in direct aid of the basic trust purpose to establish and maintain a harbor and necessary.” at 879. This is relevant to liveaboards that are fishermen, captains, and harbor tour guides that directly aid basic trust purposes.
Finally, and most importantly, the Attorney General and the State Lands Commission have a recorded history of allowing liveaboards.
12 The Attorney General's letter to the City regarding Redwood City cites a historical letter from William Northrop, Commission Executive Director, to State Sen. Dennis E. Carpenter on January 10, 1978. In that case, the State Lands Commission staff reviewed an ordinance to approve liveaboards in Berkeley. The CSLC staff and the Attorney General's Office determined it was not in violation of the public trust and the general policy prohibiting residences on public trust land to have liveaboards in Berkeley.¹³ This is because the liveaboards were a trust-use serving a state-wide purpose. From what I understand, the City of Berkeley still maintains this liveaboard opportunity¹.
13 Today, many cities in California allow berths in private marinas to be liveaboards, including cities like Monterey, Morro Bay, and Ventura.15 The San Francisco Bay Conservation and Development Commission (BCDC) created a 10% liveaboard allowance in the "Bay Plan" of 1969, and this 11 12 Gutierrez, M. (2020, December 11). California parks workers. Los Angeles Times.
servation and Development Commission (BCDC) created a 10% liveaboard allowance in the "Bay Plan" of 1969, and this 11 12 Gutierrez, M. (2020, December 11). California parks workers. Los Angeles Times.
Letter from William Northrop, Commission Executive Director, to State Sen. Dennis E. Carpenter (Jan. 10, 1978). It is interesting to note that the reasoning for liveaboards in this case requested for security and surveillance, which the Newport Beach Liveaboards community has pointed out multiple times in meetings as a primary benefit to liveaboards. The liveaboard community of Newport Beach has used CSLC public comment to share their stories of life saving and boat-saving experiences in the Harbor.
13 Cal. State Lands Comm'n, Minutes of the Meeting of December 20, 1978, at 2660-61.
14 A liveaboard waiting list is still available for liveaboards on the City of Berkely's website.
https://berkeleyca.gov/sites/default/files/documents/Liveaboard%20App%26Notice.pdf 15 Monterey, Cal., Mun. Code § 17-43; Morro Bay, Cal., Mun. Code § 15.40; Burgh, J. Office of the Auditor-Controller - County of Ventura California. Audit of the Harbor Department's Management of Channel Islands Harbor Boat Slip Inventory. (October, 2023) 6 commission authorizes liveaboard use across the San Francisco Bay Area. 16 In both Monterey and the BCDC, it is made clear that liveaboards are incidental to regular use of the open water, but service state-wide purposes that align with the public trust doctrine."
Lastly, the City Newport Beach has no restrictions on the number of liveaboards that can exist in private marinas.18 The Newport Beach City Council specifically rejected the Harbor Commission's proposed 7% limit for commercial marinas when they updated Title 17 on January 28, 2020, leaving
xist in private marinas.18 The Newport Beach City Council specifically rejected the Harbor Commission's proposed 7% limit for commercial marinas when they updated Title 17 on January 28, 2020, leaving commercial marinas without numerical restrictions on liveaboards. 19 These liveaboards, among many other marinas in California, have not been contested by the State Lands Commission, and such denial would create disparity between liveaboards on moorings in Newport Beach and other instances in California and within the City.
The Counsel's claim that private residents on state-land is impermissible and tied to the liveaboard community of Newport Beach is misguided, and there are clear historical examples where private residences have been approved for public land by the CSLC, including liveaboards across California.
4. The housing crisis implores the CSLC to prioritize, protect, and preserve affordable housing.
To quote the Attorney General's website "California is in dire need of additional housing...Housing shortages and rising costs are increasing inequality and limiting advancement opportunities for all Californians. For California's vulnerable populations, racial discrimination and inadequate accommodations for people with disabilities are worsening affordability challenges and equal access."
"20 The website also notes that as of 2025, California faces a severe housing affordability crisis, with a shortage of millions of homes needed to meet demand. Over half of California renters are considered "rent burdened," spending more than 30% of their income on housing, and nearly a third are "severely rent burdened," allocating over 50% of their income to rent. Additionally, thousands of
considered "rent burdened," spending more than 30% of their income on housing, and nearly a third are "severely rent burdened," allocating over 50% of their income to rent. Additionally, thousands of affordable housing units are stalled due to lack of funding.” This crisis disproportionately affects low-income and marginalized communities, exacerbating homelessness and housing instability across the state.
The Governor's Executive Order N-06-19 from February of 2025 orders the State to seek uses of public land to address housing concerns². The Newport Beach ordinance, however, undermines these objectives and runs afoul of California's No Net Loss provision.23 By eliminating liveaboard 16 17 Bay Conservation and Development Commission. San Francisco Bay Plan (January 1969, as amended).
See Monterey, Cal., Mun. Code § 17-43 D.6 ; Bay Conservation and Development Commission. San Francisco Bay Plan (January 1969, as amended) p.24.
18 Newport Beach, Cal., Mun. Code tit. 17.
19 Newport Beach City Council Approves updates to Title 17 - Harbor Code, THE LOG, https://www.thelog.com/local/newport-beach-city-council-approves-updates-to-title-17-harbor-code/ 20 California Attorney General, Housing, https://oag.ca.gov/housing (last visited Aug. 23, 2025) 21 'California Attorney General, Housing, https://oag.ca.gov/housing (last visited Aug. 23, 2025) 22 Cal. Exec. Order No. N-06-19 (Feb. 13, 2019) 23 Cal. Gov. Code § 65863 (No Net Loss Law) 7 housing, the city is removing a form of affordable housing during an ongoing housing crisis. The State Lands Commission risks violating the spirit—and potentially the letter-of its own rules and the State's executive orders by allowing Newport Beach to remove a pre-existing form of affordable housing on public trust lands.
s violating the spirit—and potentially the letter-of its own rules and the State's executive orders by allowing Newport Beach to remove a pre-existing form of affordable housing on public trust lands.
In addition, there is legal precedent in California for regulation around rent and affordability of boaters residing on their vessels. In Interstate Marina Dev. Co. v. County of L.A., 155 Cal. App. 3d 436 (1984), the Court of Appeal of California determined that rent laws in California which aim to restrict rent increases are valid and constitutional as it applies to liveaboards. 24 Thus, California courts recognize not only the existence of liveaboards but the application of state rent limits to those that live on their vessels in the tidelands.
The community of liveaboards in California falls within this realm of affordable housing and the need for state-mandated rate limits. Most liveaboards are retirees on fixed income including at least one disabled veteran. Many liveaboards will not be able to afford residences on land at the current rates in California. Newport Beach's liveaboard system, allows these individuals to pay their own way, and not further burden the limited land based subsidized housing inventory. It does not make economic sense for the State to allow the City to push more people into subsidized housing.
Moreover, given the severity of the housing crisis, and various State and local efforts to address it, it must be considered that the vessels on Newport moorings with valid Liveaboard Permits, would be in those spaces anyway. Would it not be logical then, to continue to allow those already occupied spaces, for which rent is paid to the tidelands, to be used as the last means of affordable housing in Coastal Orange County?
Would it not be logical then, to continue to allow those already occupied spaces, for which rent is paid to the tidelands, to be used as the last means of affordable housing in Coastal Orange County?
It should be noted that the City of Newport Beach is required to create affordable housing set forth by the State of California Housing Element. Newport Beach has been allocated 4,845 new housing units which need to be created with varying affordability levels between 2021 and 2029 under the Regional Housing Needs Assessment (RHNA).25 By eliminating liveaboard housing, the City is stripping away a vital source of affordable housing during a severe statewide housing crisis. If the City were to double the number of liveaboards to 14%, instead of removing them from the Harbor, the City could create hundreds of new affordable housing opportunities that not only align with the public trust but with the affordable housing needs of California. Yet, the City has decided to remove these currently existing affordable housing units, while falling behind on their Housing Element duties.
If the State Lands Commission allows the City of Newport Beach to remove liveaboards, the commission risks violating the intent—and potentially the letter-of the State's own regulations and the Governor's executive orders by removing affordable housing from State lands. The State Lands Commission and the City of Newport Beach will also be contributors to the housing crisis by leaving liveaboard residents with nowhere to go.
24 Interstate Marina Development Co. v. County of Los Angeles (1984) 155 Cal.App.3d 435.
25 City of Newport Beach, Resolution 2024-58. 6th Cycle Housing Element Implementation Program.
8 Conclusion and Request
tate Marina Development Co. v. County of Los Angeles (1984) 155 Cal.App.3d 435.
25 City of Newport Beach, Resolution 2024-58. 6th Cycle Housing Element Implementation Program.
8 Conclusion and Request It is clear from this evidence that CSLC Chief Counsel should further investigate the legal precedent of liveaboards in California in relation to the Public Trust Doctrine. There is ample evidence to support the liveaboards existence in Newport Beach, and the CSLC should recognize the legality of liveaboards and ensure its protection in the face of extinction.
Given these distinctions, I urge the Commission to: 1. Request an Attorney General inquiry of liveaboards in Newport Beach, which is tailored to Newport Beach's unique recreational circumstances.
2. Provide language in the staff report that recognizes the liveaboards and how we may align with the public trust principles of California.
3. Urge the City of Newport Beach to maintain liveaboards and, if necessary, request formal intervention from the Attorney General to protect the liveaboard community.
By doing so, the Commission can stop the eradication of a community that embodies navigation, recreation, affordability, and public access in California.
Thank you for your consideration.
Respectfully, Samantha A. McDonald, PhD 6 Re: McDonald - Staff Draft Report Feedback - Newport Beach Harbor Samantha McDonald August 27th, 2025 Dear CSLC Commission and Staff, I am writing in response to the Draft Staff Report written as part of a formal inquiry by the CSLC on topics related to the rates and rules of the Harbor of Newport Beach. Specifically, Staff addressed process, rates, and rules for mooring balls and piers in the Harbor.
There are some significant concerns with the draft as it currently stands. Although there is
t Beach. Specifically, Staff addressed process, rates, and rules for mooring balls and piers in the Harbor.
There are some significant concerns with the draft as it currently stands. Although there is much to say, I want to focus on three primary topics in this letter, which I recommend Staff address before final submission. These items include the following: 1. CSLC's legal interpretation of liveaboards risks misapplying the Public Trust Doctrine. Staff should address this in their language and recommendations to the Commission.
2. The current report draft potentially strengthens discriminatory instances in the tidelands. Staff should address these instances.
3. The draft report supports a proposed system of city licenses that limits the recreational opportunities in the tidelands, rather than furthering such recreational activities. Staff should address this as a concern within their report.
This letter also provides small but important feedback on the wording and writing of this report.
CSLC's legal interpretation of liveaboards risks misapplying the Public Trust Doctrine.
The draft Staff Report decidedly omits any opinions or engagement with the liveaboard situation in Newport Beach, except to mention that liveaboards will not be allowed under the City's new mooring license program (p. 29).
From comments made by staff and counsel during the August 2025 CSLC meeting, it appears that CSLC counsel determined that Newport Beach liveaboards are not a community under the interest of the CSLC or AG because the presence of liveaboards denotes a privatization of public land.
E1 This interpretation of the Public Trust Doctrine and historical legal analysis of liveaboards is overbroad and risks misapplying the Public Trust Doctrine to Newport's unique
zation of public land.
E1 This interpretation of the Public Trust Doctrine and historical legal analysis of liveaboards is overbroad and risks misapplying the Public Trust Doctrine to Newport's unique liveaboard community. The reasons for this argument are numerous, and I wrote a separate letter detailing why the Chief Counsel's interpretation is very likely to be incorrect. I urge the staff to read this letter, but to briefly summarize my findings: 1. Newport Beach liveaboards are recreational and public trust-aligned.
2. The Granting Act of Newport Beach enables private use on public tidelands.
3. The State has historically allowed private use on public land for specific purposes, including liveaboards in the tidelands across California.
4. The housing crisis implores the CSLC to prioritize, protect, and preserve affordable housing.
As a result, the revised report should provide language that recognizes the legitimacy of liveaboards and how we align with the public trust principles of California. Staff should recommend an informal review specific to liveaboards in Newport Beach by the Attorney General in this report. The report should also urge the City of Newport Beach to maintain liveaboards and, if necessary, the CSLC should request formal intervention from the Attorney General to protect the liveaboard community.
The current staff report draft potentially strengthens discriminatory instances in the tidelands.
Starting on page 22 of the draft report, Staff discuss the mooring permit transfers in Newport Beach. Staff investigate the ability of mooring permit holders to transfer their permit to other private citizens on an open market. I will consolidate my comment to three parts that need further consideration:
ff investigate the ability of mooring permit holders to transfer their permit to other private citizens on an open market. I will consolidate my comment to three parts that need further consideration: 1. Discrimination of General Public Moorings Against Yacht Clubs + Associations Moorings 2. Discrimination of moorings against transferability for other tideland users Yacht Clubs Associations Moorings Staff do not mention Yacht Clubs or the Lido Island Community Associations (LIDA) as a key stakeholder in their analysis despite clear differences in treatment between these E1 (cont) E2 communities and general public mooring permittees through the City License program and subsequently approved City Ordinance No. 2024-15.
To quote the Harbor Code of Newport Beach (§ 17), "The Balboa Yacht Club and the Newport Harbor Yacht Club (collectively, "yacht clubs") currently hold permits for single point moorings placed within certain mooring area boundaries established by the City...The yacht clubs and LICA shall be solely responsible for managing moorings under their control and shall be permitted to assign moorings under their control to yacht club members and members of LICA, respectively" Yacht clubs and LICA hold mooring balls, just as individual mooring permittees hold mooring balls. According to Newport Beach's City Council Staff Report on July 9th, there are approximately 79 offshore permits issued to Balboa Yacht Club and 73 offshore permits issued and managed by Newport Harbor Yacht Club. There are also 44 permits issued to and managed by the Lido Isle Community Association.² There is little to no difference between a mooring ball held by a general public mooring permittee and a mooring ball in the hands of a yacht club or association. Unlike a pier
Community Association.² There is little to no difference between a mooring ball held by a general public mooring permittee and a mooring ball in the hands of a yacht club or association. Unlike a pier versus a mooring ball, their use and utility is the same. They provide tackle, moorings, and buoys floating in the Harbor as a form of moorage for a vessel.
According to Newport Beach Harbor Code and the approved alternative recommendations made by City staff on July 19th, 2024, "With the exception of the Balboa Yacht Club, the Newport Harbor Yacht Club, and the Lido Isle Community Association's designated moorings, mooring permittee may not rent, assign, or transfer the use of the mooring to any other person"³ (§ 17) (Attachment C, Exhibit A, 11G) The City has provided clear language that treats these Yacht Clubs and LIDA differently than general public mooring permittees. The City provides explicit language that allows these groups to rent, assign, or transfer the use of the mooring to any other person. These 2 3 Newport Beach Mun. § 17.60.040.B1.A City of Newport Beach Staff Report. July 9th, 2024. Ordinance No. 2024-15, Resolution Nos. 2024-46 & 2024-47: Harbor Commission Recommendations and Alternative Recommendations for Rental Rates of Moorings.
Newport Beach Municipal Code § 17.60.040(B)(1)(A). City of Newport Beach; Staff Report to City Council, July 9, 2024, Ordinance No. 2024-15, Exhibit A § 11(G).
E2 (cont) groups cannot sell or transfer moorings to a third party that is not a member of their groups, but they can transfer within their own exclusionary group as they see fit.
This is a major concern for the CSLC. To quote Staff from the August meeting, a major concern with the moorings in general is that:
ey can transfer within their own exclusionary group as they see fit.
This is a major concern for the CSLC. To quote Staff from the August meeting, a major concern with the moorings in general is that: "they can transfer to whomever they want... and that transfer can continue essentially forever, and so that land never actually becomes available to the public at large again.
[sic]" Staff J. Plovnick (57:37) If the CSLC is concerned with this possibility as a violation of the California constitution through a gift of public funds, why has the CSLC report neglected to address Yacht Club and Association's mooring permits? These permits do exactly that. Yacht Clubs and Associations can transfer their mooring to whomever they want essentially forever, and that land never becomes available to the public at large.
The CSLC Staff explicitly state in the draft report that they are also concerned with the potential for private profit without the tidelands fund being compensated. The City has given Yacht Clubs and Associations the explicit authority to rent, assign, or transfer to whatever private party they please within their membering groups. They can set their own internal rates and obtain a profit from their mooring ball permits on a private market that excludes public use. Yet, this issue was not addressed by Staff in the draft report.
In addition to these concerns, the City of Newport Beach explicitly established rate applications for the Yacht Clubs and Association differently than general public mooring permittees as part of the City License conversation.
According to the adopted ordinance by the City, while a rate increase for general public mooring permittees would go into effect in four years (or by August 21, 2028) to provide a
icense conversation.
According to the adopted ordinance by the City, while a rate increase for general public mooring permittees would go into effect in four years (or by August 21, 2028) to provide a grandfathered rate adjustment; Balboa Yacht Club, Newport Harbor Yacht Club, and the Lido Isle Community Association were provided an implementation data of August 31st, 2032, which is eight years for a grandfathered rate adjustment.* Why has the city allowed these exclusive groups an additional four years of rate adjustments compared to the general public mooring holder?
The City's grant statute says, E2 (cont) 4 Ordinance No. 2024-15, Resolution Nos. 2024-46 & 2024-47: Harbor Commission Recommendations and Alternative Recommendations for Rental Rates for Moorings “the city or its successor shall make no discrimination in rates, tolls, or charges for any use or service in connection therewithin." - Ch.74.Statutes of 1978, as amended, Section 1(d)).
Staff quote this section in the draft report given concerns of rate discrimination. Yet, charging Yacht Club and Association moorings at a different rate, even if this rate is between a 4-year cycle, is discrimination. All moorings, yacht clubs and associations are of equivalent use. They must be rated the same without discrimination. The actions by the City to charge different rates to moorings for Yacht Clubs and Association compared to general public mooring permit holders could violate the anti-discrimination clause of the City's Grant Statute, and this discrimination needs to be addressed in the report.
It should also be noted that the City has historically favored Yacht Clubs and Associations
crimination clause of the City's Grant Statute, and this discrimination needs to be addressed in the report.
It should also be noted that the City has historically favored Yacht Clubs and Associations over general public mooring permittees. For example, earlier this year, the City of Newport Beach filed a Coastal Development Permit with the California Coastal Commission to realign general permit mooring balls and obtain city ownership over mooring tackle equipment, which currently belong to the permittee holder. The general public pointed out that this proposal was discriminatory against general permit mooring balls, as Yacht Clubs were given explicit exclusion from these changes as well as complete ownership over their tackle compared to other mooring holders. The California Coastal Commission agreed with the public's concerns, and denied the CDP on February 5th, 20245. The California Coastal Commission recognized that the City was potentially treating Yacht Clubs more favorably than general mooring-permit holders.
Staff cannot exclude the differences between Yacht Clubs, Associations, and Liveaboards that the City is enshrined into the Ordinance. Such discrimination may very much violate the Public Trust Doctrine and the City's Grant Statute. Excluding an investigation into Yacht Clubs and Associations, compared to general public mooring holders, would leave the CSLC complicit in this discrimination.
Discrimination of General Public Moorings Permittees Against Transferability + Privatization of Other Tideland Users The draft report identified concerns with the transferability of mooring permits in Newport Beach. From what I understand from the draft report, the reason for this concern is based
her Tideland Users The draft report identified concerns with the transferability of mooring permits in Newport Beach. From what I understand from the draft report, the reason for this concern is based on the ability of mooring permits to transfer to any private party in a private market, which means that such transfer can limit who has access to public recreational opportunities.
5 California Coastal Commission, Application No. 5-23-0753 (City of Newport Beach), February 9, 2025.
E2 (cont) Staff state that private profit in the tidelands is not, by itself, a legal violation. Rather, "there is a potential for private profit without the City's tidelands fund being compensated” and that “a private purchase [of a mooring] is a barrier to access unrelated to the actual tidelands use and which does not benefit the City's trust fund."
(p.24) This argument is hard to understand in specific regards to general mooring permittees.
Profits to Tidelands At this point in time, the mooring permittees provide more profit into the tidelands than piers. It's hard for the Staff to argue that the tidelands funds are not being fully compensated by mooring permittees when moorings contribute more to the tidelands fund than piers, and have been for well over a decade. To reference Chief Counsel's statement during the commission meeting, there is a 12-fold difference between how much moorings permittees pay per square foot and what piers pay per square foot. The community has showcased Moorings pay 571.4% more (about $1.7 million more) to the tidelands than the piers when comparing 1200 piers to 1200 Moorings.
6 Staff also does not address the large sums of profit that pier holders obtain by renting their
e (about $1.7 million more) to the tidelands than the piers when comparing 1200 piers to 1200 Moorings.
6 Staff also does not address the large sums of profit that pier holders obtain by renting their piers on a private market, without such funds going into the public tidelands. The mooring permittees have provided ample evidence to the CSLC at public comment to demonstrate how pier permittees rent their spaces for tens of thousands of dollars for personal profit that does not contribute to the tidelands.' General mooring ball permittees are not allowed to rent their moorings for this exact reason.
Lastly, Staff do not provide any evidence, outside anecdotal stories from City Staff, that display evidence that moorings are profiting off the tidelands. Most mooring permittees will note that the moorings are more often a financial loss. As one mooring holder, Coeli Hylkema, pointed out during the meeting, “The idea that people are profiting when transferring moorings is misinformation, and frankly it's ridiculous” she notes that, 20 years ago the cost to acquire a 40ft mooring with tackle was $40,000, and today (20 years later) the cost is about the same adjusted for inflation. If you consider payment of $15,000 in the last 20 years to maintain the mooring, plus even more to maintain the vessel, it is nearly See public comment slides from CSLC Meeting on August 21st, 2024. Anne Stenton, president of the Newport Mooring Association.
See public comment by Adam Leverenz at the recent August 15th, 2025 California Coastal Commission Meeting. Screenshots demonstrate piers for rent at $7,500 a month, $17,400 per season, and $43,200 per year. All of which are unpermitted for commercial rent.
E3 E4 E5
25 California Coastal Commission Meeting. Screenshots demonstrate piers for rent at $7,500 a month, $17,400 per season, and $43,200 per year. All of which are unpermitted for commercial rent.
E3 E4 E5 impossible to profit off a mooring. I can also say from personal experience that most mooring permittees just want to recoup lost funds from the purchase of their mooring, as it is the only affordable way in which we were able to obtain a mooring for our vessels in the first place.
There is very little evidence of moorings profiting, and Staff should not allude to this suspicion in the report without proof of its existence.
Private Pier Transferability + Use Piers have the exclusive privilege to provide access to their piers to whoever they want without oversight from the City. Pier permittees are not required to register vessels, show proof of insurance, or be inspected by the Harbor Department, nor do they need to prove ownership of the vessels at their dock. Thus, a homeowner could theoretically rent and transfer their dock use to whatever person and whatever vessel they wanted to.
During the CSLC meeting, Staff argued that piers are tied to private upland use, and therefore have different privileges than moorings. However, this is not true in all instances.
There are piers in Newport Beach that are not physically attached to private land. For example, on Balboa Island on Beacon Bay, there are piers that are exclusive to private individuals that are not connected directly to the private homes in which the docks are associated. Rather, the home owners have private access to a dock that is attached to a public sidewalk on Balboa Island. These piers are not tied to upland use, but are somehow allowed through a privilege given by the City to exist.
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have private access to a dock that is attached to a public sidewalk on Balboa Island. These piers are not tied to upland use, but are somehow allowed through a privilege given by the City to exist.
Why has the Staff not investigated these specific incidents, where piers exist on public tidelands, connecting to public sidewalks, yet still maintain the privilege of private access despite no upland connection? This would seem to me, in clear violation of the California Constitution, rather than an incidence of privilege to private pier holders.
It is apparent from this situation that Yacht Clubs can transfer to whoever they want or rent it to make a profit, piers can give boating access to their docks to whoever they want or rent it to make a profit, but mooring balls cannot transfer to recoup their costs or rent their moorings? Staff should provide specific reasons why private individuals in positions of exclusionary circumstances maintain freedoms that should violate the tidelands, while the moorings are under intense scrutiny for obtaining that last affordable and accessible means of parking a vessel in California.
Discrimination Against Moorings In Newport vs. Rest of California E5 (cont) E6 E7 If Staff are suggesting transferability is in violation of the Public Trust Doctrine, is the CSLC prepared to suggest that all transferability across the state of California be taken away from mooring ball holders? This includes mooring balls in places like Avalon, Catalina³.
Would a recommendation to remove transferability of liveaboards in Newport Beach, but not other moorings, be a form of discriminatory behavior against one specific mooring community versus another?
I highly recommend Staff spend time considering these questions and how the conclusions
not other moorings, be a form of discriminatory behavior against one specific mooring community versus another?
I highly recommend Staff spend time considering these questions and how the conclusions in this draft focus on one population but not others in similar circumstances. Such focus could deepen discriminatory differences, and allude to an increasing privilege of wealthier Californians compared to the everyday boater.
The draft report supports a proposed system of licenses that reduces recreational opportunities in the tidelands.
According to Staff, the Commission's team investigated “the management practices overall of the City in regards to all its granted lands and all the improvements there on the various permits and leases that they issue have been reviewed since July of last year" If Staff fully reviewed the management practices of Newport Beach, including the City License conversation program, then the Staff need to provide more explanation and scrutiny into the City License system and its regulations.
For example, according to Newport Beach Code 17.60.045 G, "Extended Vessel Absence. Vacancy or absence from the mooring by the assigned vessel for at least 25 consecutive days shall be deemed abandonment of the mooring and shall result in automatic termination of the Mooring license. Termination of license based on abandonment shall not be appealable to the harbor commission."
As I explained to the Coastal Commission on April 9th, 2025 during public comment, this rule for licenses severely limits recreation for boaters. One of the primary reasons why mariners have boats is to go on extended journeys out to sea. Whether it be fishing trips, long-term cruising, or summer vacations to Catalina Island, there are a multitude of
the primary reasons why mariners have boats is to go on extended journeys out to sea. Whether it be fishing trips, long-term cruising, or summer vacations to Catalina Island, there are a multitude of reasons why a boater would leave a mooring ball for extended periods of time. Most 8 Note that Catalina has multiple versions of mooring ball permittees, some of which are transferable and some of which are not.
E8 E9 importantly, many vessels need to be hauled out of the water every other year for inspection and repairs. These repairs can take months if the damage is severe.
A blanket rule that provides the City with authority to take away your license when not on your mooring is a highly concerning practice. Especially when you consider that an empty mooring is always available for the City to rent and to profit from while the license holder is away.
For the Coastal Commission, protecting public access to the coast for all and recreational opportunities is a core mandate of the Coastal Act. I encourage you to ask Coastal Staff to address this.
E9 (cont) For the CSLC, it is the commission's responsibility to ensure the practices of the grantee do not violate the California constitution, public trust doctrine, and granted lands statute. If the City license program is reducing recreational opportunities, and putting boaters at risk of license termination for conducting normal forms of recreation, it is the duty of this commission to address it.
Additional Syntax Feedback: On page 11 'Lease Area', Staff should use the word 'dock' instead of 'moor' to ensure no confusion with moorings. I recommend using the syntax ‘docking' for docks/piers, and 'moored' for moorings without cross-use. For all boats that use their anchor to park, please
of 'moor' to ensure no confusion with moorings. I recommend using the syntax ‘docking' for docks/piers, and 'moored' for moorings without cross-use. For all boats that use their anchor to park, please use the term 'anchored' as well, such as boats that sit within the anchorages.
There is also no distinct difference between a mooring buoy and mooring, and there should be consistency in using the same phrasing throughout the document. I recommend using just 'mooring' because certain moorings have two buoys attached to each end of a dual-point mooring system.
Thank you for your consideration, Samantha McDonald, PhD August 27th, 2025 E10 From: Ivan Skobtsov Sent on: Thursday, September 18, 2025 2:00:34 AM To: Subject: SLC staff report 66 on Newport Beach tidelands [Some people who received this message don't often get email from| https://aka.ms/LearnAboutSenderIdentification ] Learn why this is important at Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Mr Plovnick, As a long-time Newport Beach resident I enjoyed the public benefit perspective presented in the above report on August 21.
F1 I agree with pretty much every point made in the report and offer my time, if needed, to help preserve them in the final report that you expect to publish in December. I also offer below observation, informed by my graduate degree in economics and several decades in the financial markets as a portfolio manager in leading investment management firms.
There is a degree of arbitrary selection of metrics in the Netzler report on fair market value of mooring rates.
in the financial markets as a portfolio manager in leading investment management firms.
There is a degree of arbitrary selection of metrics in the Netzler report on fair market value of mooring rates.
The economically correct answer for the fair mooring lease rate is one that results in a near full occupancy, with the market just clearing. This is also the rate that would maximize the benefits to the public by allocating the public resource to the highest value use, as manifested by the price the users are willing to pay. From the practices employed by the leading real estate companies, such as The Irvine Company, the correct occupancy rate is about 95%, to maintain a small inventory of available resource for price discovery through regular transactions.
The secondary market for the mooring permit transfers at (for a 40ft mooring, for example) $885 average price per linear foot is really all one needs to know to estimate the mooring rent that should clear the market. This price is a capitalized expected lifetime saving between the current low mooring permit rent rate and a fair rate. At an 8-9% rate of return discussed elsewhere in the Netzler report (and commonly used to discount low risk private cash flows across markets), the rent saving priced in by this market is $75 per year per linear foot, or $6.25 per month. Add this to the current $3.29 monthly permit rate and you get a fair market rent of around $9.50 per linear foot per month, or $380 a month for a 40-foot mooring.
This is about half of the fair market rate estimates used by the Harbor Commission Staff as based on the Netzler report.
This more accurate estimate should go a long way to reducing the intensity of lobbying from the Newport Mooring
arket rate estimates used by the Harbor Commission Staff as based on the Netzler report.
This more accurate estimate should go a long way to reducing the intensity of lobbying from the Newport Mooring Association that has been extracting so much value from the public asset all these years. They have made their voices heard in the past, at the expense to the silent other side that simply moved their boats elsewhere or gave up on the boat ownership altogether. It will also likely result in a healthy, functional mooring market with fewer derelict or abandoned boats.
I hope this letter can contribute to an informed discussion of this issue. If needed I can formalize this analysis as an alternative to the Netzler appraisal.
Best regards Ivan Skobtsov From: Sent on: To: CC: Hein Online Wednesday, October 8, 2025 12:37:13 AM Subject: Apparent Institutional Bias and Inequitable Treatment of Identical, Law Abiding, Tidelands Users in Newport Beach Harbor Attachments: NPB.jpg (5.85 MB) You don't often get email from Learn why this is important
nstitutional Bias and Inequitable Treatment of Identical, Law Abiding, Tidelands Users in Newport Beach Harbor Attachments: NPB.jpg (5.85 MB) You don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Honorable Lt. Gov. Kounalakis, State Lands Commissioners, Alternates, and Staff, The simplest and most equitable way to detect rate discrimination is to compare the price per square foot of tideland area used by pier permit holders versus mooring permit holders. When that analysis is applied, it becomes clear that mooring permit holders in Newport pay substantially more per square foot than docks (~15 x more) which is an unmistakable case of rate discrimination, and thus prohibited by the Granting Statute, the CA Coastal Act, the Public Trust Doctrine, and the SLC Environmental Justice Policy.
City officials and their chosen appraisers have obscured this disparity by applying an inconsistent methodology: charging moorings by linear foot while charging all other tideland users by square footage. This selective approach-favoring the more influential Harbor Commissioners, City Council persons, and affluent pier permit holders—further underscores the inequity and bias inherent in the City's rate system.
This Commission has a statutory duty to uphold the prohibition against rate discrimination.
Staff's assertion that piers and moorings constitute “different uses” is incorrect, to say the least.
Both serve the same public trust purpose-recreational boating- both are self-installed, selfmaintained, using the same water, by their permit holders.
Accordingly, I urge the Commission to direct staff to withdraw the draft report and re-evaluate the
l boating- both are self-installed, selfmaintained, using the same water, by their permit holders.
Accordingly, I urge the Commission to direct staff to withdraw the draft report and re-evaluate the matter using a consistent, square-footage-based analysis. Only then can this Commission ensure compliance with the law and the fair treatment of all tideland users.
G1 P.S. Staff's suggestion that, on page 3 of the Draft Staff Report, the private transfer of mooring permits and tackle "appears to violate" policy is equally misleading and void of material facts.
This long-standing, lawful practice occurs throughout the state and should not be mischaracterized. Including such speculative language perpetuates institutional bias against mooring permit holders and should be removed from the draft report, and be tabled for a more thorough analysis, and to be given the proper public due process, as a sole issue to remedy, to the satisfaction of the State, the City, and the Stakeholders.
Respectfully, Hein Austin FREE SQUARE FOOT BASED ONLINE Map Calculators, and The Newport Beach Harbor Permits GIS Website: 1. Official Orange County Online Map Calculator 2. FREE MAP TOOLS Online Map Calculator 3. Newport Harbor GIS MAPS AND Permits (see Harbor Layers and Residentail Permits).
G2 From: Sent on: To: CC: Subject: Hein Online Thursday, October 16, 2025 9:39:54 PM
[email protected]; Jackson, Urgent Action Requested: End 5,000% Socioeconomic Rate Disparity in Newport Harbor- - Enforce 1:1 Dock to Mooring Rate Ratio Attachments: NPB.jpg (5.85 MB), ATTACHMENT B CITY RATE INCREASE PROPOSAL Item No. 6.pdf (456.53 KB), Attachment A Newport Beach Moorings vs Docks OCt 2025.pdf (421.57 KB), Attachment C - Dock
te Ratio Attachments: NPB.jpg (5.85 MB), ATTACHMENT B CITY RATE INCREASE PROPOSAL Item No. 6.pdf (456.53 KB), Attachment A Newport Beach Moorings vs Docks OCt 2025.pdf (421.57 KB), Attachment C - Dock at 710 South Bay Front EXCLUDING BOATS .png (121.85 KB) Attention: This email originated from outside of SLC and should be treated with extra caution.
October 16, 2025 California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 Attn: Honorable Lt. Governor Eleni Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff RE: Request for Enforcement of Fair Rate Ratio - Dock to Mooring Rate Ratio of 1:1 in Newport Harbor Dear Honorable Lt. Governor Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff, My name is Hein Austin, and I am writing to formally advocate for the adoption and enforcement of a Dock to Mooring Rate Ratio of 1:1 on the Tidelands in Newport Harbor.
As shown in the attached image (see Attachment A), the docks in question are connected to a public walkway that separates the Tidelands from adjacent upland properties. Importantly, these upland parcels do not abut H1 the Tidelands and therefore do not possess any special or littoral rights. Their proximity does not confer any exclusive privilege or priority access to these public lands.
This matter is not simply about proximity, but about equity and consistency. Docks and moorings serve identical functions and should be treated as such under the law. Both are: Used for recreational boating H1 (cont) H2 • Installed and maintained by the permittee • • Used to store personal vessels • Occupying the same public water space • Pay rent for their placement over these public waters
onal boating H1 (cont) H2 • Installed and maintained by the permittee • • Used to store personal vessels • Occupying the same public water space • Pay rent for their placement over these public waters Docks have amenities, and are easy to access, while moorings are primitive, with no amenities, and are difficult to access, suggesting that Moorings should pay less than Docks, per square foot.
However, there is currently an alarming discrepancy in the valuation and rate methodology applied. While dock rates (Docks + boats) are calculated at approximately $0.17 per square foot in Newport, the City has adopted a linear-foot-based methodology for moorings, and proposes an effective rate of approximately $8.00 per square foot a nearly 5,000% disparity, or a Dock to Mooring Rate Ratio of ~ 1:47. (see Rate Table in Attachment B) This gross inequity cannot be reconciled with the Granting Statute, which clearly prohibits “discrimination in rates, tolls, and charges for any use of the Tidelands." (See CA Granting Statute) While I understand that the State Lands Commission does not directly set rates imposed by local Trustees, I also understand that the Commission bears the legal and ethical responsibility to ensure that rate structures between identical users remain fair, reasonable, and consistent with the Public Trust Doctrine.
To that end, I respectfully request that Staff and the Commission: 1. Recognize Docks and Moorings as “like for like” uses, and therefore subject to the same valuation principles, applied simultaneously and comprehensively; 2. Recommend the elimination of the current inequitable, and misleading, linear-foot-rate methodology applied to only moorings in Newport Harbor;
rinciples, applied simultaneously and comprehensively; 2. Recommend the elimination of the current inequitable, and misleading, linear-foot-rate methodology applied to only moorings in Newport Harbor; 3. Enforce a Dock to Mooring Rate Ratio of 1:1, using the same square-foot-rate methodology consistently across all user types in the Harbor.
This long-standing rate disparity is more than just an accounting issue; it is a matter of fairness, legal compliance, principle, and public trust. The undeniable Truth is water is water-whether under a dock or a boat and it should be valued equally when used in the same manner. Affluent Dock owners and Lower income, working class, Mooring Holders should all pay one and the same rate per square foot.
Thank you for your attention and consideration. I trust the Commission will take appropriate steps to address and resolve this glaring socioeconomic inequity in the spirit of fair and lawful stewardship of our public Tidelands.
Respectfully, Hein Austin image.png Enclosure and Footnotes (using rounded numbers): Attachment A – Image of Public Walkway, Docks, and Moorings Attachment B - Mooring Rental Rates/Linear Foot Table (showing Increase Proposal) Shore Mooring (next the current CPI Rate increase system to the Balboa Yacht Basin Marina Slip Rate Increase System (BYB), where Moorings will experience extreme rate increases each year, and rates will go up from the current $29/m ($356/yr), for a shore mooring, to $138.72/m by 2030, or $1664.64/yr ($1664.64/198sqf = $8.4/sqf) (Dock Rates on the other hand will continue to go up in significantly smaller increments, and according to the
), for a shore mooring, to $138.72/m by 2030, or $1664.64/yr ($1664.64/198sqf = $8.4/sqf) (Dock Rates on the other hand will continue to go up in significantly smaller increments, and according to the Consumer Price Index of 2-3%/yr) Tying Mooring Rates increases to the Slip rates at the BYB will further increase the 5000% disparity between the Affluent Dock owners and the Lower income Mooring Holders.
Attachment C - Dock: City's GIS Website showing the Dock pays $692/yr for 1,193 sqf. Owner pays for Dock structure only, boats not included. An Online Map Calculator shows that if Boats are included the total 17c/sqf) The Dock pays 17c/sqf/yr to park multiple boats.
$8/17c47 (Dock to Mooring Rate Ratio is 1:47) The mooring pays 47x more than the Dock per square foot on the same water.
The CA Granting Statutes of 1978 CA Granting Statute FREE SQUARE FOOT BASED ONLINE Map Calculators, and The Newport Beach Harbor DOCK Permits GIS Website: 1. Official Orange County Online Map Calculator 2. FREE MAP TOOLS Online Map Calculator 3. Newport Harbor GIS MAPS AND Dock Permits (see Harbor Layers and Residentail Pier Permits).
SOCIOECONOMIC RATE DISCRIMINATION BETWEEN DOCKS AND MOORINGS Nearest Address to Notation C: 710 South Bay Front Newport Beach, CA Public Pedestrian Walkway, and Seawall, Separating Upland Residential Parcels and the Tidelands Three Identical Users: All Recreational, Self Installed, Self Maintained, Boat storage, Using the Same Water S Bay Front HOMES WITH NO SPEC S Bay Front ACCESSIO S Bay Front PAN RIGHTS TO THE TIDEL 802 804 806 808 810 7.02 509 706 710 800 S Bay Front S Bay Front Sapphire Ave 900 904 908 902 906 PUBLIC WALKWAY & SEAWALL C DOCK A
ITH NO SPEC S Bay Front ACCESSIO S Bay Front PAN RIGHTS TO THE TIDEL 802 804 806 808 810 7.02 509 706 710 800 S Bay Front S Bay Front Sapphire Ave 900 904 908 902 906 PUBLIC WALKWAY & SEAWALL C DOCK A SHORE MOORING - 18ft 4000 sqf/$690/yr = 17c/sqf/yr A SHORE MOORING ~ 190 sqf ~ $1600/yr ~ $8/sqf/New Rate Transferability Ends Cannot Rent B B OFF-SHORE MOORING - 40ft OFFSHORE MOORING ~1200 sqf ~ $7200/yr ~ $7/sqf/New Rate Transferability Ends Cannot Rent C PRIVATE DOCK ~ $690/yr ~ 17c/sqf/yr Transferable/Renewable 50 YRS Can Rent to 3rd Parties 8 Bay Front Kryboard shortcuts Map data 92025 2m 0.002 Hectares 192.909 Feet Keyboard shortcuts Map data 2025 magery 92025 Arts 5m 0.011 Hectares 1192.776 Feet D. A.
Bay Front StayF Keyboard shortcuts Map data 2025 agery 2025 Arbus 5m S 0.036 Hectares 3912.766 Feet WEBSITES REFERENCED: USING FREE MAP TOOLS, NEWPORT BEACH GIS WEBSITE Y OF CITY NEWPORT BEACH CALIFORNIA Notes: No increase in rates until January 1, 2025.
Six Proportionate increases over almost 6 years.
BYB (Balboa Yacht Basin) rates are based on the City adopted Marina Index of 5 marinas in Newport Harbor per the Netzer appraisal.
Rate Comparisons Designated Mooring Lengths Current Mooring Rates Mooring Rental Rate Phased-in Recommendation BYB Average Slip Rental Rate Increase Is Phased-in Through FYE 2030 Price Per Linear Foot Per Month Effective Effective LOA Feet $/LF $ per LF $/LF Jan 1, 2025 July 1, 2025 Effective July 1, 2026 Effective July 1, 2027 Effective July 1, 2028 Effective July 1, 2029 $ per LF FYE 2025 FYE 2026 FYE 2027 FYE 2028 FYE 2029 FYE 2030 18 32.23 1.67 2.27 2.88 4.08 5.29 6.50 7.71 25 32.38 3.34 3.74 4.19 5.08 5.98
July 1, 2027 Effective July 1, 2028 Effective July 1, 2029 $ per LF FYE 2025 FYE 2026 FYE 2027 FYE 2028 FYE 2029 FYE 2030 18 32.23 1.67 2.27 2.88 4.08 5.29 6.50 7.71 25 32.38 3.34 3.74 4.19 5.08 5.98 6.87 7.77 January 1, 2025 and July 1, 2025 increases are about one-tenth the difference between current rates and the adjusted FMV.
30 39.60 3.34 3.91 4.53 5.78 7.02 8.26 9.50 35 42.59 3.34 3.98 4.68 6.06 7.45 8.84 10.22 40 50.09 3.34 4.16 5.04 6.78 8.53 10.28 12.02 Each fiscal year beginning July 1, the annual 45 51.27 3.34 4.19 5.09 6.90 8.70 10.50 12.30 adjustment is about one-fifth the difference between 50 60.59 3.34 4.42 5.54 7.79 10.04 12.29 14.54 current rates and the adjusted FMV.
60 70.65 3.34 4.66 6.02 8.76 11.49 14.22 16.96 Each year the increase will be adjusted based on 24% of the annual adjustment percentage per the City Marina Index for slip rentals.
Each year the rates will be adjusted based on the FYE 2030 rates equaling 24% of the current Marina Index rates. An adjustment will be applied each year to the Effective Rates for FYE 2030, and the net increase or decrease will be divided and applied equally to the prior remaining years. For example, if there was an adjustment that resulted in a $1.00 increase to the FYE 2030 rates and there remained four scheduled increases until FYE 2030, then the increase would result in $0.25 per linear foot added to the above rate 70 74.08 3.34 4.74 6.19 9.09 11.98 14.88 17.78 Designated Mooring Lengths/Feet BYB Average Slip Rental Rate Current Price Per Mooring LOA Per Month Mooring Rates Jan 1, 2025 $/Month $/Month FYE 2025 July 1, 2025 FYE 2026 July 1, 2026 FYE 2027 July 1, 2027 FYE 2028 July 1, 2028 July 1, 2029 FYE 2029 FYE 2030 18 580.14 30.06 40.93 51.79 73.52 95.25 116.98 138.72 25 809.50 83.50 93.46 104.75 127.00
July 1, 2025 FYE 2026 July 1, 2026 FYE 2027 July 1, 2027 FYE 2028 July 1, 2028 July 1, 2029 FYE 2029 FYE 2030 18 580.14 30.06 40.93 51.79 73.52 95.25 116.98 138.72 25 809.50 83.50 93.46 104.75 127.00 149.50 171.75 194.25 30 1,188.00 100.20 117.34 135.90 173.40 210.60 247.80 285.00 35 1,490.65 116.90 139.41 163.80 212.10 260.75 309.40 357.70 40 2,003.60 133.60 166.52 201.60 271.20 341.20 411.20 480.80 45 2,307.15 150.30 188.62 229.05 310.50 391.50 472.50 553.50 50 3,029.50 167.00 220.76 277.00 389.50 502.00 614.50 727.00 schedule for each year until FYE 2030.
18' LOA Mooring is for onshore mooring rates 60 4,239.00 200.40 279.41 361.20 525.60 689.40 853.20 1,017.60 70 5,185.83 233.80 331.72 433.30 636.30 838.60 1,041.60 1,244.60 Map Viewer Newport Beach - GIS Layers bay front, newport beach No layers match your search query.
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Filter +1 Residential Pier Permit Address: 710 BAY FRONT S Permit Area Total Square Footage: 1,193 Pier is not shared by more than one resident. Fee is based on total square footage.
Permit Fee Current Year: $692.00 Pier Permit Exhibit Add to Results View Additional Details 704 1/2 706 BAY FRONT S 1,193 Sq Ft 710 710 1/2 DIAMOND AVE From: Sent on: To: Subject: Thomas LeBeau Tuesday, October 21, 2025 7:52:52 PM Newport Beach Tidelands Draft Report Comments Follow up: Follow up Start date: Tuesday, October 21, 2025 12:00:00 AM Due date: Tuesday, October 21, 2025 12:00:00 AM Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Honorable State Lands Commission,
ved this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Honorable State Lands Commission, I have been living in Newport Beach since 1992 and have lived in a Newport Harbor front home with a dock over State Tidelands for over 10 years (since 2014).
The following are my public comments related to Newport Beach's tidelands trust and the California State Lands Commission's recent draft report. My comments focus on specific concerns revolving around the liveaboard community and the City's/Trustees management of public trust lands.
1) Residential zoning within Newport Harbor has never been publicly approved: Live-aboard status in the Harbor is provided by City code, specifically Municipal Code Title 17 (MCT17). Granting housing/zoning by code, thus circumventing public review and environmental scrutiny, is a violation of the California Constitution and a violation of the Subdivision Map Act.
2) We have 51 live-aboard permits issued in the Harbor: The Trustee (City), in direct conflict with the wishes of the State Lands Commission has spread these liveaboard permits all over the Harbor, rather than consolidating these live-aboards into a single area of the Harbor where the Trustee can provide adequate oversight. At a minimum the Trustee must relocate all liveaboard permits into one central location within the Harbor directly adjacent to the Harbormasters office so adequate Trustee oversight can be achieved.
3) Under MCT17 the City is required to verify seaworthiness of each liveaboard vessel: We can assure the Commission that the liveaboards in these State Tidelands never move off the permitted liveaboard moorings, at most maybe once a year for a single trip to
s of each liveaboard vessel: We can assure the Commission that the liveaboards in these State Tidelands never move off the permitted liveaboard moorings, at most maybe once a year for a single trip to the Harbormasters office. Rather these liveaboard vessels remain 363 days a year in a static berthed condition. This amounts to a taking of public tideland for the benefit of private residential use.
At a minimum the Trustee should enforce that the liveaboard leave their moorings for at least 20% of the year. That means leaving the Harbor, into the open sea or a visit to another Harbor or anchorage. As of now the Trustee issued live-aboard permits provide exclusive space in the mooring fields for a small select group of house-boats that never leave the assigned mooring and could not navigate safely in the open ocean. A short trip for one day within the Harbor, monitored by the Trustee, does not provide an example of adequate seaworthiness as such rendering the live-aboards essentially houseboats.
4) California Affordable Housing Units: The Newport Mooring Association ("NMA") and the Trustee often refer to the 51 liveaboards in Newport Harbor as satisfying some small portion of the City of Newport Beach's obligation to provide/meet the State's affordable housing (quota). Unfortunately for a liveaboard to qualify as affordable housing unit they would indeed be by definition houseboats.
Houseboats are prohibited within the State Tidelands. If they are indeed houseboats/affordable housing units they would be in violation of the Subdivision Map Act and the California Constitution as the Harbor is not zoned for private residential use. MCT17 (Code) cannot entitle, grant or map residential zones or lots within the Harbor.
f the Subdivision Map Act and the California Constitution as the Harbor is not zoned for private residential use. MCT17 (Code) cannot entitle, grant or map residential zones or lots within the Harbor.
5) Violation of Public Trust Doctrine. State tidelands equitable "distribution" refers to the legal principle of the public trust doctrine, which dictates that state-owned tidelands and submerged lands must be managed for the benefit of all the public. This means they cannot be sold and must be used for purposes that benefit the public, such as recreation, commercial services, or environmental preservation, and not for private gain or only local enjoyment. Equitable distribution involves managing these lands to serve the broad needs of all Californians.
Allocating, by City permit. exclusive to 51 live-aboards, which provide 11 for exclusive residential use is a violation of the Public Trust Doctrine.
Only those 51 permit holders may sleep aboard the vessel. The other 549 mooring users may only sleep aboard the moored vessel 3 nights per month. Furthermore residential dock users (harbor front homeowners with private docks) may NOT ever sleep aboard a vessel tied to the private residential dock.
Therefore, the 3 groups of non commercial users within the State Tidelands are therefore treated entirely differently with respect to residential use.
The 51 live-aboard/houseboats may live-aboard, no other harbor user may live-aboard. This violates the Public Trust Doctrine.
It is clear through the Redwood City litigation and Court findings that houseboats are not allowed on State Tidelands. MCT17 has granted legal residential rights to mooring users in violation of the State Constitution and the Subdivision Map Act. As such, as well as the other points made in this
ed on State Tidelands. MCT17 has granted legal residential rights to mooring users in violation of the State Constitution and the Subdivision Map Act. As such, as well as the other points made in this correspondence we ask that the State Tidelands instruct the Trustee to eliminate all live-aboard uses within Newport Harbor.
Thank you for considering these very important matters as it relates to public use.
11 (cont) From: Sent on: To: Subject: natalie fogarty Tuesday, October 28, 2025 11:07:04 PM Moorings for Newport Beach Categories: Granted Lands Public Email Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
The proposed rate increases are excessive and unfair for mooring holders. We have maintained and paid responsibly for our moorings.
Please be fair to mooring holders!
Natalie Fogarty S-3 J1 From: Sent on: To: Subject: Pit Kaz Tuesday, October 28, 2025 11:19:13 PM City of Newport Beach Mooring management and staff report Categories: Granted Lands Public Email Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear State Land commissioners and Staff Members, The mooring community has been attacked systematically and treated unfairly compared to yatch clubs and residential docks and businesses...
We have been paying already a higher rate than other state and country Moorings... We have been paying a higher rate than residential docks.
I'm a single father and this is the only way I can spend quality time with my son.
eady a higher rate than other state and country Moorings... We have been paying a higher rate than residential docks.
I'm a single father and this is the only way I can spend quality time with my son.
The provided appraisal is dishonesty... We got third party appraisal...
We take care of our mooring equipment with bi annual inspection. We don't paid for water, we paid for equipment and we are responsible...
We are already paying much more than State Land commission benchmark as well..
The harbor used to be run by the harbor patrol/Sheriff and used to be run much better and more efficient...
We are the victim of bureaucracy and endless city spending...
K1 It's so difficult to have no parking, no restrooms, power and utilities... Please don't let them to make it harder on us.
Also they are making 51 live aboard to go away eventually. These live aboard are passionate boaters and Captains and retired people on social security...
K2 We don't make money on mooring transfer. If we get a mooring permit we should keep it for one year before any transfers which we have to pay all the fees for one year so no way to make profit.
K3 Please respectfully reconsider a new staff report.
This the same city that wanted to put mooring so close to each other and put our life in danger 4. Limit the safe access to mooring.
Please be our voice.
Thank you, Peter Kaz Executive Officer Matthew Dumlao California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA. 95825 [email protected]
@slc.ca.gov; [email protected] Re: City of Newport Beach Management of state public trust lands, consistent with its statutory trust grant, the Public Trust Doctrine, and the California Constitution, as it relates to setting rates.
Dear CA State Lands Commissioners and Staff, I want to start by apologizing, in advance, for the length of this document. There is much to cover here. My intent is to use my story to put a face to all the mooring permit holders who are being significantly affected by the City's unreasonable proposals, and to demonstrate how their dreams will likely be ruined by the imposition of the draconian fee increases and license changes, envisioned and proposed by the City.
Let me start by saying that I am a proud liveaboard member of the Newport Harbor offshore mooring community. I have been a liveaboard mooring resident of the Harbor for 9 years, and am representative of the community that occupies the offshore moorings in the harbor.
I am 75 years old, gainfully employed as a Yacht Broker, selling sailing catamarans, internationally. I visit and work in harbors all over the world - and call Newport Harbor my home. A college graduate, and a sailor, I have been a resident of Orange County since 1986. Was a homeowner in the city of Costa Mesa for 20 years, raised two children there, and built a life in the Newport/Mesa community. As my children left the nest, I migrated back to the yachting environment, finding housing near the beach, in the Newport Beach area - employment in the
and built a life in the Newport/Mesa community. As my children left the nest, I migrated back to the yachting environment, finding housing near the beach, in the Newport Beach area - employment in the yacht brokerage business - and began to get back to my sailing roots.
In 2007 (18 years ago) I secured my first 35ft mooring, and the 34ft Sailboat on it. The reasonable fees associated with the moorings, even though higher than the fees other tidelands users in Newport pay, made ownership of this vessel a practical reality.
In 2009/2010 (3 years later), the city of Newport Beach embarked on a major re-analysis of Title 17. Examining mooring fees and the process of mooring transfers between members of the public. Significant price increases were initially proposed – to the tune of 150% increases –to a level of $55/ft/year - along with the cessation of the transfer of mooring permits between permit holders. These changes were adamantly opposed by mooring permit holders at the time, in that the increase was draconian, and the termination of the previously approved transfer process left mooring permittees holding the bag on significant investments made in procuring the permits and tackle. The Harbor Commission and the City refused to budge, but responded by proposing to make the changes on a graduated basis, with yearly Fees beginning at $50/ft/year - with yearly increases bringing the fees to a high of roughly $55/ft/year, phased in over a five year period - and a maximum of two transfers permitted over the same 5 year period, to allow those who could not afford the fee increases, to recoup some of the funds invested in securing their mooring permit and tackle.
In 2013 (3 years later), I was able to avail myself of a transfer to a 50ft mooring, next to a very
the fee increases, to recoup some of the funds invested in securing their mooring permit and tackle.
In 2013 (3 years later), I was able to avail myself of a transfer to a 50ft mooring, next to a very good friend's mooring - resulting in both of us spending considerable amounts of time enjoying each other's company and boats. Forming the nucleus of an active community of liveaboards, and the more active mooring permit holders.
In 2015 (2 years later) I was able to purchase a 45ft powerboat, to put on the new mooring, securing a liveaboard permit, allowing me to move onto the boat, in the harbor, full time.
Mooring fees were rapidly approaching the $55/ft/yr figure at that point.
In 2016, after having received continuous-feedback from the mooring community, explaining how City actions would drastically reduce coastal access for many - and following years of debate and an appraisal - a new, mooring-friendly City Council, voted to reverse the price increases instituted by the prior administration (in 2010), and lower the annual offshore permit fee to a more reasonable $35/ft/yr. The rates to be adjusted annually based upon the CPI.
Mooring transfers between members of the public were once again allowed, with restrictions designed to discourage gaming of the system. These codes have been in place for the past 9 years - and have served the State and the offshore mooring community well. The fees generally match those found throughout the state, and the ability to transfer mooring permits, has produced a flexible model that allows new boat owners to avail themselves of moorings that match the lengths of their new boat purchases. All in all, a thoughtfully considered, and practical set of
as produced a flexible model that allows new boat owners to avail themselves of moorings that match the lengths of their new boat purchases. All in all, a thoughtfully considered, and practical set of agreements. Today, with the factoring in of CPI adjustments, the yearly mooring fee has risen to about $40/ft/yr.
Over the last 10 years, as a liveaboard, I have built a strong community of friends, who have boats on moorings in the harbor. Liveaboard, and non-liveaboard mooring holders – all sharing the same passion for the boating life. It is our life, and our community. A cohesive community of varied backgrounds and means - bound by a shared passion for the sea. Given that my children, and lifelong friends live in the area it is my hope to be able to retire, and live out the remainder of my life in this community. I have been planning this for some years. And my wife recently joined me in this dream.
With that in mind, my wife and I have been out of the country for the last two years - bringing a sailboat that we purchased abroad, to Newport Harbor, to reside at that liveaboard mooring that we keep there. This is intended as our last Hurrah. Our way of bringing a fine vessel back to Newport Harbor, on which to retire. Many years of planning – and a significant portion of our lifelong savings (including the sale of my wife's suburban home, that she had lived in for over 24 years) have gone into this boat - and this dream. A dream that was based on the understandings that had been developed over the years by the City of Newport Beach, in consultation with its offshore mooring stakeholder community - governing the management of the offshore moorings.
Understandings that had been in place since 2016. The reasonable mooring fees made under this
ation with its offshore mooring stakeholder community - governing the management of the offshore moorings.
Understandings that had been in place since 2016. The reasonable mooring fees made under this existing agreement, made this retirement plan a practical reality.
That story told – it is a fair representation of the stories and dreams – large and small – that the approximately 700 individuals and families who hold permits to the offshore moorings would share with the Commission, if asked. The point is, that in reading the story above, one can see that it has been a roller coaster ride, with the mooring holders subject to the vagaries of whatever administration is in control of the City, at the time. That the offshore mooring statutes and fees, as they have been managed for the last 9 years have finally reached an equilibrium that represent a reasonable compromise between the offshore mooring permittees, and the City of Newport.
And they have served the community well, and the intent of the Tidelands Trust, and will do so going forward, if they are permitted to continue, in the form codified in 2016.
However, that said; over the same two years, I have been watching from afar (with increasing concern) the progression of radical changes being proposed by a new group of Newport Harbor Commissioners, for the offshore moorings, with the seeming concurrence of the current Newport Beach City Council. Unilateral and arbitrary changes that would radically increase the cost of mooring fees beyond all reason - pricing a large percentage of mooring holders out of the mooring community (this could include my wife and me) - and installing licensing conditions that would put all mooring holders at risk, without recourse - to the detriment of the entire
ers out of the mooring community (this could include my wife and me) - and installing licensing conditions that would put all mooring holders at risk, without recourse - to the detriment of the entire offshore mooring holder community. I can state here, that should the City prevail in its draconian fee increase, that my wife and I will likely have to fold our dream of living and retiring on our mooring in Newport Harbor, sell our boat, and move out of Newport (our hometown), and quite possibly leave the state of California. And I suspect that a very large number of the offshore mooring holders will also be forced to move and/or sell their boats, as they will be unable to afford to keep them on their current moorings, given the irrational, new proposed rates. This will cause major disruption and pain, for mooring holders individually, and the community, at large.
I have been listening to State Land Commission meetings on-line, from afar, and understand that the Commission, which was approached by the mooring holders to assist them in contesting this egregious overreach, is reaching the end of its study on this matter and will be making recommendations within a month or so. It is not my nature to be confrontational – but given the gravity of the chaos, and damage that the City's proposals would have on the mooring permittees' lives, I cannot stand by, and watch this travesty unfold... So, taking pen in hand, I would like to highlight a couple of my concerns - before it is too late.
A number of very dedicated offshore mooring holders have submitted copious and thoroughly researched documents outlining the background of this subject, and the unconscionable disparity in the conditions under which the three major groups of stakeholders in the tidelands operate (the
ughly researched documents outlining the background of this subject, and the unconscionable disparity in the conditions under which the three major groups of stakeholders in the tidelands operate (the community of Offshore Moorings, the Yacht Club mooring users community, and the Residential Pier community). So I will not try to reiterate those findings. They speak starkly for themselves.
What I WOULD like to address, are two major items: 1. The acceptance of the City's recently commissioned appraisal by Mr. Netzer, as the rationale on which to base the increase in mooring fees.
Given the comments made in the Commission Staff's presentation on August 21- I have a concern that the Commission's staff has indicated that they have accepted the veracity of this very suspect appraisal that the City is using as the basis for their radically unreasonable fee increase. That the lack of mention of any comparison of this study to any review of the alternative study by CBRE, commissioned by the mooring community in 2024 (which disagrees widely with Mr. Netzer's analysis) - and - the much lower figure analysis provided by that study.
AND any comment on the study provided by the very same Mr. Netzer, in a prior City commissioned analysis, submitted by him, in 2016 - which was the analysis that the City and the mooring community had agreed was reasonable, at that time. It calls into question the entire basis of the current irrational fee increase. I would ask whether the Commission's staff has done a comparison of the alternative studies just mentioned, and if so, how have they found them to be less conclusive than the one of December 26, 2023, commissioned from Mr. Netzer? The conclusions found in both of these other studies are radically different than the conclusions
they found them to be less conclusive than the one of December 26, 2023, commissioned from Mr. Netzer? The conclusions found in both of these other studies are radically different than the conclusions promoted by the recent study that the City commissioned – and lend themselves to support the fee structure currently in place. There is a big disconnect here, and it needs a thorough review – with explanations.
-and2. The lack of long-term continuity in the City's Codes, affecting the mooring permits: Given the City's history of the constant tinkering with the offshore mooring agreements, one has reason to believe that once an agreement is hammered out in this round – that there needs to be commitments included as to guidelines, or reasonably long time frames built into that, and future agreements – preventing the City of Newport Beach from amending the agreements, at will, as it has been prone to do, in the past, and is currently doing.
In Closing; The Granting Statutes require that the City manage the Trust Lands without discrimination, for the benefit of the Public, at large. It is the city's obligation to promote these values, with equal treatment to all parties..., I ask that the Commission recognize there are two storylines here: 1) The unconscionable discrimination exhibited by the City over the years, in the varying treatment afforded the three different stakeholders on the Harbor's tidelands (the Offshore/Onshore moorings, the Yacht Club moorings and the Residential Piers).
2) The draconian changes proposed to the Title 17 terms currently in place L3 L1 L2 a.
the unconscionable increases in the fees that the City (the caretaker of the Trust) is proposing to levy against offshore/onshore moorings ONLY) - fees which
17 terms currently in place L3 L1 L2 a.
the unconscionable increases in the fees that the City (the caretaker of the Trust) is proposing to levy against offshore/onshore moorings ONLY) - fees which masquerade as “market value”, when in fact the effect of which will be to drive those of average means out of the harbor, to the benefit of those of more means...
The antithesis of the express intent of the Trust...
L4 b. The cessation of transfers between members of the public – a time honored mechanism (one used all over the State) that provides flexible matching of availability to need.
c. Liveaboard licensing - again a time-honored fixture in most harbors, worldwide. An arrangement that provides affordable housing for those with a passion for the sea provides a core group around which a community is built - and which provides the security and practical assistance that a group of residents bring to the day-to-day activities in the harbor.
We are asking the Commission to look past the façade of the City's arguments, to understand and exert its considerable influence to motivate the City to manage the tidelands equitably.
I appreciate the time that the Commissioners will have taken in reading this. This is not an insignificant concern on the part of the mooring permit holders, but is actually a life changing event for those permittees - as evidenced by the substantial effort devoted by the permittees, and their representatives, in asking the States' assistance in preventing this travesty.
Please do not hesitate to reach out to me if you have questions pertaining to any of the content above.
Respectfully, Mark Womble Mooring Number: L5 L6 From: Sent on: To: Subject: Rudy Alvarez Thursday, October 30, 2025 8:16:13 PM
h out to me if you have questions pertaining to any of the content above.
Respectfully, Mark Womble Mooring Number: L5 L6 From: Sent on: To: Subject: Rudy Alvarez Thursday, October 30, 2025 8:16:13 PM Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Executive Officer Dumlao and SLC Staff, I am a tidelands user in Newport Harbor and respectfully ask SLC Staff to revisit the Newport Tidelands Draft report in its entirety based on updated information provided to Staff over recent weeks.
This draft report suggests policy changes that would have major adverse effects on equitable treatment of tidelands users both in Newport and throughout the state. My primary concern are: 1) Aggressive rate Increases for moorings 2) Disparity management, treatment, and monthly fees paid to the City of Newport Beach between Moorings and Docks • They both occupy the same Tidelands • A similar size boat occupies less tideland space when on a mooring, and more space when on a dock. Yet, the monthly payments to the City for a similar size Mooring / Dock, is grossly more expense for a mooring then it is for a dock • Dock owners are able to rent their docks for a profit. Mooring owners can not In addition, not in my wildest dreams, did I ever think I would not be allowed to resell my mooring when I purchased it about 1.5 years ago. I paid for it. I pay to maintain it, and I pay a monthly fee to the City. I have since learned the City of Newport Beach is considering the possibility of taking my mooring, without compensation if I decide to sell it in X+ years
ain it, and I pay a monthly fee to the City. I have since learned the City of Newport Beach is considering the possibility of taking my mooring, without compensation if I decide to sell it in X+ years Why is this targeting ONLY mooring owners, and not DOCK owners? We all occupy the same Tidelands.
As the son of Cuban immigrants that fled Cuba in 1961 as the communist party was taking away their properties without compensation.... I'm shocked to hear that the City of Newport Beach is contemplating doing the same. Not as extreme, but similar.
A very concerned resident, and active boater in the City of Newport Beach Rudy M1 M2 From: Sent on: To: Subject: Morgan Coburn Friday, October 31, 2025 4:58:53 AM Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email Learn why this is important at [Some people who received this message don't often get email from] https://aka.ms/Learn AboutSenderIdentification ] Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Executive Officer Dumlao and SLC Staff, I am an avid tidelands user and paddleboarder in Newport Harbor and I respectfully ask SLC Staff to revisit the Newport Tidelands Draft report in its entirety based on updated information provided to Staff over recent weeks. This draft report suggests policy changes that would have major adverse effects on equitable treatment of tidelands users both in Newport and throughout the state.
As a paddleboarder I've often looked towards the mooring fields as a safe and lower traffic area to rest and avoid oncoming
table treatment of tidelands users both in Newport and throughout the state.
As a paddleboarder I've often looked towards the mooring fields as a safe and lower traffic area to rest and avoid oncoming boats. The water and winds are usually calmer in the fields and I always enjoy paddling by to enjoy the boats and chat with other people recreating on their boats. I've meet some wonderful people out there and made friendships with a few of them. Furthermore, I am Type 1 Diabetic and rely on being able to rest by mooring balls and out of the main traffic while my blood sugar comes back to normal, something I do not feel welcome to do on the many private docs that protrude into the harbor.
The mooring balls and the community they foster through the permit system lead to safe and enjoyable paddleboard recreating in the Newport Harbor.
I respectfully ask SLC Staff to recognize that the City failed to act transparently in its role as trustee of the State's tidelands, and has engaged in discriminatory Tidelands management.
I respectfully ask that the City be required to start over on any changes to the mooring permit system and properly engage the public in a transparent process that is equitable and fair to all tidelands users.
Thank you, Best, Morgan Morgan Coburn, PhD (she/her) Assistant Director of Outreach and Education Center for the Neurobiology of Learning and Memory University of California, Irvine (Situated on the unceded land of the Acjachemen and Tongva People) Draft Newport Beach Mooring Management/Settlement Proposal - 10/30/2025: This document incorporates thoughts and suggestions gathered from hundreds of mooring permit holders in Newport Beach, past and present, many of whom, having indicated in various ways that they are too fearful of
t incorporates thoughts and suggestions gathered from hundreds of mooring permit holders in Newport Beach, past and present, many of whom, having indicated in various ways that they are too fearful of City retaliation to speak on their own behalf. This comes from the fact that the City has Codified numerous methods in which it may revoke/confiscate mooring permits, and has exhibited a clear desire and intent to take them all, for conversion into “short-term", "City owned”, high-cost mooring licenses, those assessed at rates more than 1,300% higher than current California State Lands Commission Benchmark rates for moorings in Orange County, and much higher than rates for many of the other Tidelands users the City favors, and also issues permits to. For simplicity, this is crafted in the form of a Resolution. In instances where Resolutions are not proper process, it's intended that the points here made, which are supported by the record for these matters, motivate fairness, and consideration of recommendations/ alternatives that do not risk depriving many who are socio-economically disadvantaged, or non-residents, of opportunity to have and maintain coastal boating access in, and from Newport Beach, California.
Draft Newport Beach Mooring Management/Settlement Proposal text: In order that Mooring Permit holders receive no less than equal footing as compared to other Tidelands users in Newport Beach; and considering that mooring fields and areas offer a lower tier form of boat berthing; and considering that they have been charged substantially more by the City in fees/rents than other Tidelands Permittees over at least the past decade for that lower tier access; and that in consideration of their lower impact form of
n charged substantially more by the City in fees/rents than other Tidelands Permittees over at least the past decade for that lower tier access; and that in consideration of their lower impact form of coastal access; and that they have also been subjected to much higher levels of monitoring and regulation by the City, while at the same time other Permittees have seen very favorable City rates, lax or non-existent regulation, and have been the recipients of free boat berthing over public lands, also for at least the past decade, the following steps are offered as solution/ Resolution/mitigation/making parties whole/Etc. for many of the past wrongs: 1 Whereas, the City of Newport Beach has been entrusted by the State of California with the management of designated Granted Sovereign Tide and Submerged Lands in compliance with the Beacon Bay Bill; the State Constitution; and the Public Trust Doctrine; Whereas, the City of Newport Beach has managed those lands in such a way, as to in the words of the California State Lands Commission (CSLC), create "rate discrepancies" and rate "disparities" which are "really appalling"; Whereas, the record reflects that the City has knowingly and willfully gone against CSLC policy, and managed Trust lands in such a way as to "gift" Residential Pier Permit holders the space their vessels occupy over State land for at least a decade; Whereas, the City of Newport Beach has exercised a generally lax or non-existent enforcement policy related to imposition of the City's Small Commercial Marina rate on the many Residential Pier Permitholders who sublet space at their piers/dock to others though real estate agents; websites; posting of signage; and other means; Whereas, various aspects of the City's unique Tidelands management
ermitholders who sublet space at their piers/dock to others though real estate agents; websites; posting of signage; and other means; Whereas, various aspects of the City's unique Tidelands management style of fee free boat berthing and non-enforcement of sublet fees/rent at Residential Piers over at least the past 10 years, has resulted in a substantial loss of revenue to the Tidelands fund, running into the millions of dollars; Whereas, a number of City of Newport Beach Decision and Policymakers have berthed vessels over those fee free State lands while being Decision and Policymakers; Whereas, City of Newport Beach Decision/Policymakers were advised by the CSLC in a letter dated April 9, 2024, that: "it is an opportune time for the City to also reassess its residential pier rates to ensure these rates reflect fair market value consistent with the City's granting statutes and fiduciary duties.”
Whereas, City of Newport Beach Decision/Policy makers were advised by the California Coastal Commission in a letter dated July 9, 2024, that: "Commission staff recommend that the City analyze the fair market rent rate for private slips and develop a proposal to simultaneously implement the updated rental rates for both moorings and private slips to resolve this discrepancy and ensure equitable access to recreational boating activities in Newport Harbor."
2 Whereas, having received those letters, City of Newport Beach Decision and Policymakers at a regularly scheduled City Council Meeting of July 9, 2024, did advocate and vote to increase fees for Moorings by hundreds of percentages; to confiscate the Mooring Permits; to phase out Liveaboards; Whereas, these things, and the associated imposition through Code of a
e and vote to increase fees for Moorings by hundreds of percentages; to confiscate the Mooring Permits; to phase out Liveaboards; Whereas, these things, and the associated imposition through Code of a 25 day Mooring vacancy = forfeiture provision, all severely reduce Coastal access, primarily for visitors and less affluent non-residents; Whereas, Newport Beach Decision/Policymakers at that same July 9, 2024 meeting, voted to raise residential Pier fees by pennies per square foot per year; Whereas, State Lands observed in its "DRAFT Report on the City of Newport Beach's Public Trust Lands Management" of August 2025, that: "The City appears to have treated its residential pier lessees, who are necessarily City residents, more favorably than its mooring permit holders."; Whereas, City of Newport Beach Financial reports indicate that in FY 2023-2024, revenue from Mooring fees brought in approximately $1.9 Million Dollars in revenue; Whereas, Newport Harbormaster Paul Blank, in his Harbormaster Update to the Harbor Commission of July 9. 2025, revealed that Mooring Management cost the City approximately $316,000; Whereas, City of Newport Beach Harbormaster Paul Blank stated during his Harbormaster Update to the Harbor Commission on September 10, 2025, that he'd received "a direct request by two sitting City Council people, asking me specifically, to find more revenue, for the Department. So we did."; Whereas, the City profiting greatly off of Mooring Permittees, while consistently returning little value to them, has contributed to extreme levels of inequity and discrimination for these specific Tidelands users; Whereas, the CSLC has stated that it has the expertise and experience to set rates for the use of State Lands, and does so approximately every five
d discrimination for these specific Tidelands users; Whereas, the CSLC has stated that it has the expertise and experience to set rates for the use of State Lands, and does so approximately every five years through "Benchmarks" for lands under CSLC management in Orange County; 3 Whereas, in these processes, the CSLC uses Newport Beach data in the formulation of the applicable Benchmark Rates for mooring buoys; Whereas, in contrast, the City of Newport Beach has created/endorsed a rate scheme which charges the highest rates to the lowest tier, most heavily regulated and oppressed users of State Tide/Submerged Lands; Whereas, the Orange County Sheriff's Department (OCSD) Harbor Patrols costs for management in 2016 were approximately $360,000, as stated by the City's Harbormaster at a meeting of July 9, 2025; Whereas, the OCSD Harbor Patrol has maintained a 24/7/365 presence in the Harbor since approximately 1972, and has extensive experience in Mooring management; marine firefighting; search/rescue; a dive team; and a far higher level of training and experience than the City of Newport Beach Harbor Department; Whereas, the OCSD Harbor Patrol additionally uses more appropriately sized, outfitted, and capable boats in fulfilling their Harbor related duties; Whereas, Mooring Field G in Newport Harbor has remained under County control, even after the City of Newport Beach created its Harbor Department, and took over "managing" other Mooring Fields; Whereas, the Orange County Sheriff, in a letter dated July 13, 2021 (Hereto attached with 07/14/2021 Orange County LAFCO Minutes, re: Agenda Item 9b), appears to question the costs, benefits, and usefulness of a City motivated study related to a desire for City duplication of an existing government funded Harbor enforcement agency;
Agenda Item 9b), appears to question the costs, benefits, and usefulness of a City motivated study related to a desire for City duplication of an existing government funded Harbor enforcement agency; Whereas, Mooring Permit Holders are likely to be willing to continue to pay the fees they pay now, higher than most all other Tidelands users in Newport, if those fees actually assure that they receive more equitable Tidelands management and services than the City's vastly oppressive and discriminatory Tidelands management model has provided; Whereas, Mooring Permits also provide diverse members of the public opportunity to have 24/7/365 Coastal access at an affordable price, through a highly regulated add-on Live-aboard Permit option; Whereas, the Live-aboard Permit option allows numerous persons in maritime industries to be in close proximity to their work, providing various goods and services to other mariners, residents, visitors, etc.; Whereas, these Live-aboard Permits offer virtually the last form of affordable housing on the Southern California coast, and are only issued to vessels that have been mandated to be, and are annually inspected to assure that they are "Safe. Seaworthy. And Operable"; Whereas, boating access is the primary use, and housing is a secondary/accessory use, and considering the severity of the housing crisis, City efforts to eliminate an affordable housing opportunity, wherein there are no construction costs; no cost to run utilities; the spaces are already occupied by vessels; the people to be housed provide their own housing, and pay rent for the occupation of public lands, etc., etc., the City's efforts are illogical/ counterintuitive/counterproductive/counter to the State's best interests;
used provide their own housing, and pay rent for the occupation of public lands, etc., etc., the City's efforts are illogical/ counterintuitive/counterproductive/counter to the State's best interests; Whereas, the City does not require that the many boats on Residential Piers be inspected to be "Safe. Seaworthy, and operable"; or be registered; or be insured; or have their marine sanitation systems tested for leaks; Now, Therefore, resolves as follows: Section 1: The State Lands Commission, in relation to public lands granted to the City of Newport Beach, shall "institute a formal inquiry to determine that the terms and conditions of this act, and amendments thereto, have been complied with in good faith" for all Tide/Submerged Lands granted; Section 1a: The State Lands Commission shall then hold a publicly noticed hearing "at which the city has been given an opportunity to express fully any disagreement with the Commission's findings or to describe any extenuating circumstances causing the violation"; Section 1b: In the event of finding(s) of breach of fiduciary duties, and/or discrimination, and/or other City sanctioned/Codified/implicit improprieties in management between Tidelands users by the City of Newport Beach, the Commission shall formally request the Attorney General to bring.
litigation against the City to resolve any and all grant violations; Section 1c: The State Lands Commission, having determined that "any "transaction or condition" is "in probable conflict with this act [the grant statute] or with any other provision of law," shall furthermore "report to the 5 Legislature, which may direct the Attorney General to bring litigation to revoke the grant or compel compliance."; Section 1d: The State Lands Commission shall also "recommend to the
"report to the 5 Legislature, which may direct the Attorney General to bring litigation to revoke the grant or compel compliance."; Section 1d: The State Lands Commission shall also "recommend to the Legislature such amendments as it may determine to be necessary in the terms and conditions of this act"; Section 2: The California State Lands Commission, with Legislative action if required, shall thereafter directly assume Tide/Submerged Lands management authority from the City of Newport Beach, over those Stateowned places where Mooring Fields and Shore Moorings are located; Section 2a: The California State Lands Commission shall then, going forward, apply the same methodologies for the rate setting of Category 1 Benchmarks in Newport Beach, which are generally applied to private docks, piers, and buoys, and as are routinely outlined and used by the Commission for Orange County, and other areas of the State, i.e.: "...based on one or more of the following methods, including, but not limited to: 9 percent of the appraised value of the leased land.
A percentage of annual gross income, where the percentage is based on an analysis of the market for like uses and other relevant factors.
A comparison of rents for other similar land or facilities.
Benchmarks for regions with large concentrations of similar facilities, with benchmark rental rates to be based on analysis of similar or substitute facilities in the local area.
Other such methods or information that are based on commonly accepted appraisal practices and principles; and for leases for recreational piers or buoys, rent shall be based on local conditions and local fair annual rental values. (Cal. Code Regs., tit. 2, § 2003; Pub.
Resources Code, §§ 6503, 6503.5.)
s; and for leases for recreational piers or buoys, rent shall be based on local conditions and local fair annual rental values. (Cal. Code Regs., tit. 2, § 2003; Pub.
Resources Code, §§ 6503, 6503.5.)
The Commission may consider the amount of rent the State would receive under various rental methods, and whether relevant, reliable, 6 and comparable data are available concerning the value of the leased land in determining which rent method should apply. (Cal.
Code Regs., tit. 2, § 2003, subd. (d)(1), (2).)
PUBLIC TRUST AND STATE'S BEST INTERESTS: Benchmarks are used to establish uniform rental rates in specific geographic regions with large concentrations of similar facilities, mostly private recreational improvements within the Commission's jurisdiction. (Cal. Code Regs., tit. 2, § 2003, subd. (a)(5).) The use of benchmarks improves consistency, transparency, and efficiency in how the Commission establishes rent for large numbers of similar leases, saving time, resources, and money for both the applicant and the State. Periodic benchmark adjustments ensure that the people of the State are fairly compensated according to current market rates for the private use of State-owned land, consistent with the California Constitution. Generally, staff recommend updates to the benchmarks every 5 years. The Commission's current benchmarks and benchmark map may be found at https://www.slc.ca.gov/leasespermits/benchmarks/."
Section 3: The approximately $1.9 million of revenue generated annually from Mooring management in Newport, shall be vested with the State Lands Commission, and shall be used to fund State level Staff for any required management and Permit processing needs at that level; Section 3a: The monies shall be further used to restore local Mooring
nds Commission, and shall be used to fund State level Staff for any required management and Permit processing needs at that level; Section 3a: The monies shall be further used to restore local Mooring management authority to the Orange County Sheriff's Office Harbor Patrol Division; Section 4: Upon the date of the City's annual renewal for each Onshore and Offshore Mooring Permit, the State Lands Commission, as is policy for other similar Permits issued through the State for the lease of other State land for waters it oversees, from the near to Newport Harbor Huntington Harbor, and the more distant Lake Tahoe on the California side, shall reissue Mooring Permits for 10-years, with renewal opportunity in 10-year increments, up to 50 years total, as is for many other Tidelands permit holders of similar permits Statewide; 7 Section 4a: In the alternative, the State Lands Commission on a date certain, may extend all Mooring Permits in Newport Harbor in unison for 10year term increments, with opportunity for renewal in subsequent 10-year increments, up to 50 years total, as is common for many other Tidelands permit holders of similar permits Statewide; Section 4b: Mooring Permit holders in Newport Beach shall no longer be discriminated against relating to terms and fees, and shall be provided rights, including that of permit transferability, as are other Tidelands permit holders in Newport Beach, and other locations Statewide; Section 5: At the discretion of the State Lands Commission and/or State Legislature, The City of Newport Beach may retain management of the portion of Tidelands encumbered/impacted by the Residential and Commercial Piers and Docks. This offering the City the choice of whether or
ture, The City of Newport Beach may retain management of the portion of Tidelands encumbered/impacted by the Residential and Commercial Piers and Docks. This offering the City the choice of whether or not they wish to begin actually assessing fees/rents for the "impact area" of these places, and start imposing the Code required Residential Pier sublet rates to support the continuation of the City's lower-level, duplication of services provided by the Orange County Sheriff's Harbor Patrol.
Section 6: Should the City of Newport Beach, now, or in the future, be permitted to act as Trustee over any portion of Tide/Submerged lands, it shall no longer allow Decision and Policymakers to participate in decision and policymaking, when these things do, or may directly benefit them, financially or otherwise.
ADOPTED this day of 202 ATTEST APPROVED AS TO FORM: 8 00 ORANGE COUNTY LAFCO EST. 1963 PROMOTING EFFECTIVE LOCAL GOVERNANCE LOCAL AGENCY FORMATION COMMISSION ORANGE COUNTY FINAL MINUTES OC LAFCO REGULAR MEETING AGENDA Wednesday, July 14, 2021 8:15 a.m.
Due to COVID-19, this meeting was conducted by teleconference pursuant to the provisions of the Governor's Executive Orders N-25-20 and N-29-20, which suspend certain requirements of the Ralph M. Brown Act.
1.
CALL TO ORDER Chair Davert called the meeting of the Orange County Local Agency Formation Commission (OC LAFCO) to order at 8:15 a.m., announced that the Commission meeting is being conducted by teleconference, and participation by Commissioners and staff are from remote locations.
2. PLEDGE OF ALLEGIANCE Pledge of Allegiance was recited.
3. OATH OF OFFICE COMMISSIONER PENROSE Executive Officer Carolyn Emery announced that the oath for Commissioner Penrose was completed electronically.
4.
ROLL CALL
NCE Pledge of Allegiance was recited.
3. OATH OF OFFICE COMMISSIONER PENROSE Executive Officer Carolyn Emery announced that the oath for Commissioner Penrose was completed electronically.
4.
ROLL CALL The following Commissioners and Alternates were present: • Chair Douglass Davert @ 0 Vice Chair Donald Wagner Commissioner Lisa Bartlett Commissioner James Fisler Commissioner Derek J. McGregor Commissioner Mike Posey • Alternate Commissioner Katrina Foley • Alternate Commissioner Kathryn Freshley • Alternate Commissioner Peggy Huang Alternate Commissioner Lou Penrose July 14, 2021 FINAL Minutes Page 2 of 6 5.
The following Commissioner was absent: • Commissioner Wendy Bucknum The following OC LAFCO staff members were present: Executive Officer Carolyn Emery Assistant Executive Officer Raymond Barragan Policy Analyst Luis Tapia • Policy Analyst Gavin Centeno ⚫ Commission Clerk Cheryl Carter-Benjamin Legal Counsel Scott Smith ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATION (Received After Agenda Distribution) Executive Officer Carolyn Emery noted that supplemental communication was received from Sheriff-Coroner Don Barnes for Agenda Item 9b and would be read into the record during hearing of the item.
6. PUBLIC COMMENT Chair Davert requested public comments on any non-agenda items. Executive Officer Carolyn Emery noted no public comments were received. Chair Davert closed the hearing of public comments.
7.
CONSENT CALENDAR Chair Davert called for a motion on the consent calendar. Commissioner Fisler motioned for approval of the consent calendar and Commissioner Posey seconded the motion.
The Executive Officer conducted a roll call vote on the item.
7a. Approval of Minutes - June 9, 2021 Regular Commission Meeting MOTION: SECOND: FOR: Approve the consent calendar. (James Fisler)
otion.
The Executive Officer conducted a roll call vote on the item.
7a. Approval of Minutes - June 9, 2021 Regular Commission Meeting MOTION: SECOND: FOR: Approve the consent calendar. (James Fisler) Mike Posey James Fisler, Mike Posey, Donald Wagner, Lisa Bartlett, Peggy Huang, Derek J. McGregor, Douglass Davert AGAINST: None ABSTAIN: None MOTION PASSED: 7-0.
July 14, 2021 FINAL Minutes Page 3 of 6 8.
PUBLIC HEARING No public hearing items scheduled.
9. COMMISSION DISCUSSION AND ACTION 9a.-2021-2022 OC LAFCO Work Plan Executive Officer Carolyn Emery presented the staff report on the FY 2021-2022 Work Plan, highlighting current applications under the Commission's focused areas and noted the revised timeline for the 4th cycle of MSRs.
Chair Davert called for Commission discussion and public comments. Executive Officer Carolyn Emery noted no comments were received by email on the item.
There was consensus of the Commission to provide additional time for the County, cities and special districts to review subsequent proposed work plans. Chair Davert called for a motion on the recommended action. Commissioner Posey motioned to approve the recommended action and Vice Chair Wagner seconded the motion.
The Executive Officer conducted a roll call vote on the item.
MOTION: Adopt the 2021-2022 OC LAFCO Work Plan. (Mike Posey) SECOND: Donald Wagner FOR: Mike Posey, Donald Wagner, Lisa Bartlett, James Fisler, Peggy Huang, Derek J. McGregor, Douglass Davert AGAINST: None ABSTAIN: None MOTION PASSED: 7-0.
9b. - Professional Consultant Services Agreement with Citygate Associates Chair Davert requested reading of supplemental communication. Executive Officer Carolyn Emery read comments submitted by email from Don Barnes, Sheriff-
ant Services Agreement with Citygate Associates Chair Davert requested reading of supplemental communication. Executive Officer Carolyn Emery read comments submitted by email from Don Barnes, SheriffCoroner, Orange County Sheriff's Department (Attachment A) into the meeting record.
Chair Davert called for the staff presentation. Assistant Executive Officer Raymond Barragan provided the brief presentation on the City's application for preparation of the focused MSR and the RFP process for selection of a consultant. He acknowledged that staff along with Carol Jacobs, Assistant City Manager of Newport Beach and Stewart Gary with Citygate Associates were available to answer any questions.
Chair Davert called for Commission discussion and public comments. Executive Officer Carolyn Emery noted no additional comments were received by email on the item. The Commission engaged in general discussion. Commissioner Bartlett July 14, 2021 FINAL Minutes Page 4 of 6 recommended the item be continued to allow a representative of the Sheriff Department to address the Commission at the next regular meeting on the item.
Commissioners Wagner and Posey concurred with Commissioner Bartlett's recommendation.
Carol Jacobs, Assistant City Manager of Newport Beach provided general comments on the delivery of harbor patrol services within the Newport Harbor Tidelands.
Ray Grangoff, Chief of Staff to Sheriff Barnes provided additional comments to the letter submitted by the Sheriff-Coroner.
Chair Davert called for a motion on the item. Commissioner Bartlett motioned to continue the item to the Commission's August 11 meeting to allow Sheriff Barnes or his designee to address the Commission on the item and Commissioner Posey seconded the motion.
r Bartlett motioned to continue the item to the Commission's August 11 meeting to allow Sheriff Barnes or his designee to address the Commission on the item and Commissioner Posey seconded the motion.
The Executive Officer conducted a roll call yote on the item.
MOTION: Continue consideration of the Professional Services Agreement with Citygate to August 11, 2021 and allow Sheriff-Coroner Barnes or his designee to address the Commission on the item. (Lisa Bartlett) SECOND: FOR: Mike Posey Lisa Bartlett, Mike Posey, Donald Wagner, James Fisler, Peggy Huang, Derek J. McGregor, Douglass Davert AGAINST: None ABSTAIN: None MOTION PASSED: 7-0.
9c. - Legislative Report (July 2021) Policy Analyst Luis Tapia presented the July legislative report and highlighted the recent amendments to Senate Bill 403 (SB 403). He added that staff received a call from the bill author regarding the Commission's current position on recent changes to the bill. Staff is seeking direction from the Commission for a follow-up response to the bill author.
Chair Davert called for Commission discussion and public comments. Executive Officer Carolyn Emery noted no comments were received by email on the item.
During discussion, there was consensus of the Commission to maintain the previously adopted position of "Oppose Unless Amended" on SB 403. Chair Davert called for a motion on the item. Commissioner Huang made a motion for the Commission to maintain the "Oppose Unless Amended" position on SB 403 and to receive and file the legislative report and Vice Chair Wagner seconded the motion.
July 14, 2021 FINAL Minutes Page 5 of 6 The Executive Officer conducted a roll call vote on the item.
MOTION: Maintain "Oppose Unless Amended" position on SB 403; Receive and file the July 14, 2021 Legislative Report.
AL Minutes Page 5 of 6 The Executive Officer conducted a roll call vote on the item.
MOTION: Maintain "Oppose Unless Amended" position on SB 403; Receive and file the July 14, 2021 Legislative Report.
(Peggy Huang) SECOND: FOR: Donald Wagner Peggy Huang, Donald Wagner, Lisa Bartlett, James Fisler, Derek J. McGregor, Mike Posey, Douglass Davert AGAINST: None ABSTAIN: None 10.
MOTION PASSED: 7-0.
COMMISSIONER COMMENTS The Commission made general comments.
11. EXECUTIVE OFFICER'S REPORT The Executive Officer gave an oral update on the following activities: Resuming In-Person Commission Meetings 12.
.Hamer Island Community Workshops • Upcoming July 19 Ladera Ranch Civil Council Meeting ⚫ September 8 Strategic Planning Workshop INFORMATIONAL ITEMS & ANNOUNCEMENTS No informational items or announcements reported.
13.
CLOSED SESSION The Chair stated that there were no closed session items for discussion.
14.
ADJOURNMENT OF THE REGULAR COMMISSION MEETING Chair Davert adjourned the Regular Commission Meeting at 9:04 a.m. to the next regular OC LAFCO meeting scheduled for Wednesday, August 11, 2021, at 8:15 a.m.
July 14, 2021 FINAL Minutes Page 6 of 6 Douglass Davert, Chair Orange County Local Agency Formation Commission By: Carolyn Emery Executive Officer Attachment: A. Letter from Orange County Sheriff's Department SHERIFF July 13, 2021 ATTACHMENT A- AGENDA ITEM 9B ORANGE COUNTY SHERIFF'S DEPARTMENT OFFICE OF THE SHERIFF SHERIFF-CORONER DON BARNES The Honorable Douglass Davert, Chair Orange County Local Agency Formation Commission 2677 N Main St Suite 1050 Santa Ana, CA 92705 RE: Municipal Service Review of Newport Harbor Tidelands Dear Chairman Davert: Possibly no aspect of Orange County local government has been more studied than the Sheriff's
te 1050 Santa Ana, CA 92705 RE: Municipal Service Review of Newport Harbor Tidelands Dear Chairman Davert: Possibly no aspect of Orange County local government has been more studied than the Sheriff's Harbor Patrol. A total of at least 17 studies have been conducted since 1975. The item before the Orange County Local Agency Formation Commission (LAFCO) for a Municipal Service Review adds to this work.
I question the necessity of this study and what additional policy insight can be provided. The current model for harbor patrol services meets both the legal and public safety obligations to the residents we serve. While I am never opposed to looking at options for making government more efficient, using resources to add another report to the shelf is the epitome of government waste.
The cost of the study is a concern. The agreement before the LAFCO Board is an up to amount of $89,400. That amount does not include the costs my department will incur in responding to the information requests that will result from the study. I respectfully request the courtesy of consultation with my department before the Commission makes a decision to move forward on awarding a contract to perform this work.
Thank you for your consideration on this matter.
Sincerely, Doubilal Ban Don Barnes Sheriff-Coroner 550 N. FLOWER STREET, SANTA ANA, CA 92703 | 714-647-1800 www.ocsd.org Newport Beach City Council Meeting-09-23-2025 Partial Transcription: (Starting at Approximately 1:00:30 on the timeline) (Presentation Slides Attached) Adam Leverenz: I just wanted to clarify. I e-mailed the clerk's office yesterday. So non-agenda occurs now?
Mayor Stapleton: Correct.
roximately 1:00:30 on the timeline) (Presentation Slides Attached) Adam Leverenz: I just wanted to clarify. I e-mailed the clerk's office yesterday. So non-agenda occurs now?
Mayor Stapleton: Correct.
Adam Leverenz: Okay.
Mayor Stapleton: Yeah. We've been moving it over, but this is the way it's gonna be from here on out, so, Adam Leverenz: Okay. Great.
Mayor Stapleton: Sorry for any confusion.
Adam Leverenz: No. I appreciate it. Um, I had some slides that I hope to have called up. Um, on the top of this there's a headline from an L.A. Times Staff writer from September 5th. It says State Lands Commission Draft Report weighs in on Newport Beach mooring permits. Um, from that article it says assistant city manager Seimone Jurjis told the Daily Pilot quote "The Commission made their position clear. People can't be buying and selling State Tidelands. It's the public, public's lands. The State's lands.
Transferability is going to have to come to an end at some point", close quote. And below that there's a Voice of OC article headline Newport Harbor mooring battle heads to State Lands Commission. That's from September 9th. And quoting from that article, "Jurjis said that there is no legal way to continue allowing the sale and transferability of public State tidelands" close quote. Below the black bar, oops, still on the first slide, uh, there's a portion of a mooring permit, an offshore mooring permit. And there's uh, terms and conditions, and number one, in the green boxes, it indicates that it's for the temporary use of the mooring location. And further below, it says the mooring permit does not create or represent any form of property right, or provide any ownership interest in the underlying tidelands,
orary use of the mooring location. And further below, it says the mooring permit does not create or represent any form of property right, or provide any ownership interest in the underlying tidelands, which are held in trust by the City, and owned by the people of that state of California. And then next slide please.
These are sections are from Title 17. The first one, 17 01, defines public trust lands, which I, I hope most are familiar with. 1740 references liveaboards, and part of that again, says nor does it create any property right to the mooring site. And then chapter 1760, from Title 17 Harbor Permits and Leases, it references City owned or controlled Tidelands, that is offshore moorings. Again it talks about the temporary use of a specific location, and again says a mooring permit does not provide any ownership interest in the underlying Tidelands, which are held in trust by the City, and owned by the people of the state of California. Uh, clearly, mooring permits, defined in Code, don't convey deed or title to land. And as I noted at a recent Council meeting, on the City website, uh the Assistant City Manager, soon to be City Manager, was a Chief Operating Officer of a real estate investment company, and currently holds a real estate license. And I don't see how someone with those qualifications, can claim that mooring permits are selling Tidelands. I've heard the same sort of mis-statements out of a couple of Harbor Commissioners. And I, would like more truthfulness going forward. And, I, again, it seems like deception is being used to try and push an agenda, and it seems improper to me, and I hope it stops. Thank you.
State Lands Commission draft report weighs in on Newport Beach mooring permits By Gabriel San Román Staff Writer Follow
and push an agenda, and it seems improper to me, and I hope it stops. Thank you.
State Lands Commission draft report weighs in on Newport Beach mooring permits By Gabriel San Román Staff Writer Follow Sept. 5, 2025 4:11 PM PT Assistant City Manager Seimone Jurjis told the Daily Pilot..... "The commission made their position clear," .... "People can't be buying and selling state tidelands. It's the public's lands, the state's lands. Transferability is going to have to come to an end at some point."
Newport Harbor Mooring Battle Heads to State Lands Commission VoiceofOC Angelina Hicks Sep 9, 2025 "Jurjis said there is no legal way to continue allowing the sale and transferability of public state tidelands."
NEW WPORT CALIFORNIA BEACH CITY OF NEWPORT BEACH HARBOR DEPARTMENT OFF-SHORE MOORING PERMIT 31 October day of 23 20 by the CITY OF NEWPORT THIS OFF-SHORE MOORING PERMIT ("Mooring Permit") is issued as of this BEACH, a California municipal corporation and charter city ("City"), to the person(s) listed below; if more than one (1) person or entity, each shall be jointly and severally liable and all are collectively referred to as "Mooring Permittee" herein.
This Mooring Permit is issued under the following terms and conditions: 1) This Mooring Permit is a license for the temporary use of the mooring location specified herein and is revocable. The issuance of this Mooring Permit does not create or represent any form of property right or provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State of California (NBMC Section 17.60.040(A), (B)(2)(i)) Newport Beach Title 17 Harbor Code: Chapter 17.01 DEFINITIONS 7. Public Trust Lands. The term "public trust
ty and owned by the people of the State of California (NBMC Section 17.60.040(A), (B)(2)(i)) Newport Beach Title 17 Harbor Code: Chapter 17.01 DEFINITIONS 7. 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 and includes all tidelands, submerged lands, the beds of navigable lakes and rivers, and historical tidelands and submerged lands that are presently filled or reclaimed and which were subject to the public trust at any time.
Chapter 17.40 LIVE-ABOARDS C. The issuance of a live-aboard permit to a mooring permittee is not transferrable and does not create any tenancy between the City and the permittee or other persons living aboard. nor does it create any property right to the mooring site. (Ord. 2023-22 § 760, 2023; Ord. 2020-27 § 8, 2020: Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 § 158, 2013; Ord. 2008-2 § 1 (part), 2008) Chapter 17.60 HARBOR PERMITS AND LEASES 17.60.040 Mooring Permits.
A. Permit Required. No person shall place, erect, construct, maintain, use or tie to a mooring in the waters of Newport Harbor over City-owned or controlled tidelands (i.e., an offshore mooring or in the nearshore perimeter of Newport Harbor perpendicular to the shoreline (i.e., an onshore mooring) without first having obtained a mooring permit from the Harbormaster or having otherwise complied with this section. A mooring permit is in the nature of license for the temporary use of a specific location within Newport Harbor.
i. Agree that the mooring permit does not provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State of California;
arbor.
i. Agree that the mooring permit does not provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State of California; Clearly, Permits do not provide deed or title to land, submerged or otherwise.
Newport Beach City Council Meeting - 10-28-2025 Partial Transcription: (Starting at Approximately 20:59 on the timeline: https://newportbeach.granicus.com/player/clip/4556?redirect=true) (Presentation Slides Attached) Adam Leverenz: Hey, Adam Leverenz, I have a couple slides, if they could be called up. This is both a refresher, and an update on things you've heard me speak to before. Um, first slide when it comes up will be sections I've shown you of Title 17, Newport's Harbor Code. And, it defines Public Trust Lands, and I don't know if most people know, but most of the submerged lands in the Harbor are public lands, even though docks and moorings are over them, they're generally not privately owned.
Um, there are sections in the Code about liveaboards and mooring Permits.
I've highlighted some green portions, or highlighted in green some portions, indicating that a mooring doesn't create any property interest. And again identifying that City owned or controlled Tidelands. And a mooring permit does not provide any ownership interest in the underlying Tidelands, which are held in trust by the City, and owned by the people of the State of California.
Clearly according to the Code, uh, permits, whether they be Residential Piers, or moorings, or restaurant docks, don't convey interest in real property. Next slide please.
And if you don't believe the Code makes that clear, uh each mooring permittee was compelled to enter into a contract after the City took over from
convey interest in real property. Next slide please.
And if you don't believe the Code makes that clear, uh each mooring permittee was compelled to enter into a contract after the City took over from the Sheriff's Harbor Patrol. And the contract says that the moorings are for the temporary use of the mooring location, and again, the mooring permit does not create or represent any form of property right or provide any ownership interest in the underlying Tidelands, which are held in trust by the City, and owned by the people of the State of California.
In spite of those things, the Assistant City manager, soon to be City Manager, on September 5th, as quoted in a LA Times, article, says that quote "the commission made their position clear.... People can't be buying and selling state tidelands. It's the public's lands, the state's lands.
Transferability is going to have to come to an end at some point." Close quote.
1 And then on September 9th, he said there is no legal way to continue allowing the sale and transferability of public state tidelands. Close Quote.
Next slide please.
This is the update portion. Um, I'd e-mailed Mr. Jurjis on September 25th, October 5th, and October 6th, asking please clarify for me whether or not you believe that Mooring Permits in Newport reflect some valid real estate interest/claim? On the 6th I got a reply, indicating that he does not have a position on whether the mooring permits have some real estate interest or claim.
Um, from the City's website, it indicates that he was a President and Chief Operating Officer for a real estate investment company, focusing on entitlements, land transactions, and development, and is a licensed real estate broker. I can think of three reasons why someone with those
ng Officer for a real estate investment company, focusing on entitlements, land transactions, and development, and is a licensed real estate broker. I can think of three reasons why someone with those qualifications, would make false and misleading statements in a newspaper.
Or 2 newspapers. None of them very flattering.
The City Manager is one of the highest paid positions in the City. Making over a half million dollars in pay and benefits each year. I would like that to pay for integrity. Thank you.
2 Newport Beach Title 17 Harbor Code: Chapter 17.01 DEFINITIONS 7. 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 and includes all tidelands, submerged lands, the beds of navigable lakes and rivers, and historical tidelands and submerged lands that are presently filled or reclaimed and which were subject to the public trust at any time.
Chapter 17.40 LIVE-ABOARDS C. The issuance of a live-aboard permit to a mooring permittee is not transferrable and does not create any tenancy between the City and the permittee or other persons living aboard. nor does it create any property right to the mooring site. (Ord. 2023-22 § 760, 2023; Ord. 2020-27 § 8, 2020: Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 § 158, 2013; Ord. 2008-2 § 1 (part), 2008) Chapter 17.60 HARBOR PERMITS AND LEASES 17.60.040 Mooring Permits.
A. Permit Required. No person shall place, erect, construct, maintain, use or tie to a mooring in the waters of Newport Harbor over City-owned or controlled tidelands (i.e., an offshore mooring or in the nearshore perimeter of Newport Harbor perpendicular to the shoreline (i.e., an onshore mooring)
waters of Newport Harbor over City-owned or controlled tidelands (i.e., an offshore mooring or in the nearshore perimeter of Newport Harbor perpendicular to the shoreline (i.e., an onshore mooring) without first having obtained a mooring permit from the Harbormaster or having otherwise complied with this section. A mooring permit is in the nature of license for the temporary use of a specific location within Newport Harbor.
i. Agree that the mooring permit does not provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State of California; Clearly, Permits do not provide deed or title to land, submerged or otherwise.
CITY OF NEWPORT BEACH CITY OF NEWPORT BEACH HARBOR DEPARTMENT OFF-SHORE MOORING PERMIT THIS OFF-SHORE MOORING PERMIT ("Mooring Permit") is issued as of this 31 day of October 2023 by the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), to the person(s) listed below; if more than one (1) person or entity, each shall be jointly and severally liable and all are collectively referred to as "Mooring Permittee" herein.
This Mooring Permit is issued under the following terms and conditions: 1) This Mooring Permit is a license for the temporary use of the mooring location specified herein and is revocable. The issuance of this Mooring Permit does not create or represent any form of property right or provide any ownership interest In the underlying tidelands, which are held in trust by the City and owned by the people of the State of California (NBMC Section 17.60.040(A), (B)(2)(i)) State Lands Commission draft report weighs in on Newport Beach mooring permits By Gabriel San Román Staff Writer Follow Sept. 5, 2025 4:11 PM PT
te of California (NBMC Section 17.60.040(A), (B)(2)(i)) State Lands Commission draft report weighs in on Newport Beach mooring permits By Gabriel San Román Staff Writer Follow Sept. 5, 2025 4:11 PM PT Assistant City Manager Seimone Jurjis told the Daily Pilot..... "The commission made their position clear," .... "People can't be buying and selling state tidelands. It's the public's lands, the state's lands. Transferability is going to have to come to an end at some point."
Newport Harbor Mooring Battle Heads to State Lands Commission VoiceofOC Angelina Hicks Sep 9, 2025 "Jurjis said there is no legal way to continue allowing the sale and transferability of public state tidelands."
From: Ad lever Sent: Thursday, September 25, 2025 11:48 AM To: Subject: Moorings/Real Property From: Ad lever Sent: October 06, 2025 11:16 AM To: Jurjis, Seimone Subject: Re: Moorings/Real Property From: Ad lever Sent: October 05, 2025 3:19 PM To: Jurjis, Seimone Subject: Moorings/Real Property "Simone, ...Please clarify for me whether or not you believe that Mooring Permits in Newport reflect some valid real estate interest/claim?"
From: Jurjis, Seimone Sent: Monday, October 6, 2025 11:43 AM To: Ad lever Subject: RE: Moorings/Real Property Hello Adam, I've already given you my response. I do not have a position on whether the mooring permits have some real estate interest or claim.
OF CITY NEWPORT BEACH CALIFORNIA Seimone Jurjis Assistant City Manager Office: 100 Civic Center Drive Newport Beach, CA 92660 Seimone was the President and Chief Operating Officer for a real estate company focusing on entitlements, land transactions and development.
Seimone... is a licensed real estate broker.
From: Sent on: To: CC: Subject: Hein Online < Friday, October 31, 2025 11:16:33 PM
ate company focusing on entitlements, land transactions and development.
Seimone... is a licensed real estate broker.
From: Sent on: To: CC: Subject: Hein Online < Friday, October 31, 2025 11:16:33 PM [email protected]; Jackson,
Does the SLC risk Complicity in the Systemic Discrimination on California's Public Tidelands? - In Newport Beach - Request for State Intervention - AND POTENTIAL REMEDIES Attachments: Attachment A 2015-10 - Adjusting The Rental Calculation And Approving A Revised Model Permit Template For Residential Piers Located Upon Tidelands.pdf (833.29 KB), Attachment B1 Newport Beach Moorings vs Docks at Balboa Island.pdf (421.57 KB), Attachment C Unpublished Opinion - Court of Appeal 090120(2872503.1).pdf (194.78 KB), Attachment D p4 City.SJ.final.notice.motion. May 24, 2018(2644833.1).pdf (2.85 MB), Attachment E Docks Settle Lawsuit with City of Newport Beach.pdf (55.93 KB), Attachment F NewportBeach Tite17.pdf (416.73 KB), Attachment G City Harbor Codes Discrimination w highlights.pdf (553.09 KB), Attachment H City Staff_Report - OC Sheriffs Manage Harbor.pdf (1.09 MB), Attachment I GRANTING STATUTE 1978.jpeg (36.96 KB), NEWPORT BEACH.jpg (5.85 MB), Attachment B2 The City of Newport Beach Created a Mooring Artifical Scarcity Socioeconomic Rate Disparity in Newport Harbor - Enforce 1_1 Dock to Mooring Rate Ratio.pdf (116.38 KB) You don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Date: OCTOBER 31, 2025 California State Lands Commission 100 Howe Avenue, Suite 100-South
is is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Date: OCTOBER 31, 2025 California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 Subject: Request for an unbiased State Lands Commission Intervention - Historic Discrimination Against People with Moorings and Recommended Remedies Dear Honorable Lt. Gov. Eleni Kounalakis, Dr. Matthew Dumlao, Alternates, and Staff I am writing to respectfully request the attention and intervention of the California State Lands Commission (SLC) regarding longstanding and systemic discrimination by the City of Newport Beach against individuals with moorings on the California Public Tidelands. The inequitable treatment of Mooring Permit Holders compared to private Dock Owners is inconsistent with the Granting Statutes, the California Coastal Act, and the Public Trust Doctrine that governs fair and equal use of public tidelands.
This issue has persisted for years and has resulted in preferential treatment for approximately 800 waterfront homes with docks, while mooring holders—who represent a more economically diverse and historically underserved group ―face extensive punitive regulations, higher fees, and exclusionary practices, all of which result in severe reductions of coastal access for those the City disfavors.
Below are four possible remedies that may bring the City into compliance with State law and promote equity, transparency, and lawful stewardship of the Public Tidelands.
1. Amendment of City Resolution No. 2015-10 The SLC has indicated that they have the authority to make recommendations to the City. The SLC should thus, recommend that the City amend Resolution 2015-10 to ensure equitable treatment between docks and moorings.
icated that they have the authority to make recommendations to the City. The SLC should thus, recommend that the City amend Resolution 2015-10 to ensure equitable treatment between docks and moorings.
Resolution 2015-10 currently grants exclusive privileges to waterfront homeowners with docks, including past and present City Officials providing them with the most generous terms among all tideland's users. (see Attachment A) To achieve compliance with State equitability requirements, the City could simply amend Resolution 2015-10 by adding the words "and Moorings" wherever the word “Docks” appears. This would formally recognize "Docks and Moorings” as one unified, non-commercial user group on the Tidelands—both being recreational, long-term boat storage uses, selfinstalled and maintained, and both paying permit fees to the City. (see Attachment B1) Such an amendment would create parity and equal legal standing for both groups, addressing years of unequal access and discrimination in fee levels. Under the City's New Mooring License Plan, Moorings stand to pay nearly 5000% more than Docks per square foot of the same water. (see Attachment B2 - City's Mooring License Scheme, and B3 Proposed Dock to Mooring Rate Ratio of 1:47) Addressing the Unlawful Gifting of Public Water Space Currently, dock owners receive exclusive use of the surrounding tidelands water space at no charge, often posting "No Trespassing" signs, while paying only for the footprint of their dock structures-around $650 per year, even when mooring multiple boats (sometimes up to seven). This arrangement constitutes a gift of public property to private homeowners.
To remedy this, both docks and moorings should pay the same standard rate per square foot within their designated
seven). This arrangement constitutes a gift of public property to private homeowners.
To remedy this, both docks and moorings should pay the same standard rate per square foot within their designated boundary lines, or both should be exempt from paying for additional surrounding space. The City (and the State) already has the capability to calculate areas via online mapping tools.
This amendment would: • Establish one standard for similar users of the same public water; • End the gifting of public tidelands water space; • Re-affirm that Moorings and Docks have equal standing, because the City persuaded the Courts that “an “upland owner who does not own title to the submerged land or tide land in front of [her] property" [has no littoral rights, and] cannot maintain a due process claim against the State," in California. (see Riddle v. Valley, in Attachment C p17, and Riddle v. The City Of Newport Beach, in Attachment D pages 4,14, and 15) • Bring the City into compliance with State equitability principles and mandates; • Require no additional cost to the City; and • Foster collaboration between Dock and Mooring Permit Holders-creating a self-policing mechanism that could reduce the SLC's oversight burden.
Historically, the Dock Owners have effectively held the City accountable, as seen in the "Stop the Dock Tax” lawsuit (2013), where the City ultimately settled and adopted Resolution 2015-10. A unified "Docks and Moorings" user group would help ensure long-term fairness and reduce administrative/regulatory friction between stakeholders. (see Attachment E) 2. Amendment of City Municipal Harbor Code - Title 17 The SLC should also recommend that the City amend Municipal Harbor Code Title 17 to eliminate socioeconomic
tween stakeholders. (see Attachment E) 2. Amendment of City Municipal Harbor Code - Title 17 The SLC should also recommend that the City amend Municipal Harbor Code Title 17 to eliminate socioeconomic discriminatory provisions that target mooring permit holders, who are generally lower income, and/or nonresidents.
Currently, Title 17 contains vastly disproportionate regulations against moorings, violating the State's equitability requirements. (see Attachment F - Title 17) Fact: • The word "Dock” appears 185 times in Title 17.
• The word "Mooring" appears 485 times.
This disparity reflects the City's heavy regulatory burden on mooring holders while dock owners face minimal oversight― dock owners have no insurance or vessel registration requirements, no seaworthiness inspections, and no dye-tab City testing logs. Mooring users, conversely, face frequent inspections, insurance mandates, and stringent Harbor Code enforcement. (1 page of regulations for affluent docks, and 9 pages of regulations for lower income moorings) (see Attachment G) By requiring the City to treat "Docks and Moorings” as a single user group within Title 17, all users would be subject to the same rules and oversight-promoting fairness and encouraging dock owners to advocate for more reasonable, equitable regulations across the board.
While this process may take longer than amending Resolution 2015-10, it would have the profound effect of dismantling the decades long structural inequities embedded in the City's Harbor Code.
3. Returning Mooring Management to the Orange County Sheriff's Department If the City remains non-compliant, the SLC has the authority to recommend that management of the moorings be
ty's Harbor Code.
3. Returning Mooring Management to the Orange County Sheriff's Department If the City remains non-compliant, the SLC has the authority to recommend that management of the moorings be returned to the Orange County Sheriff's Department. (Mooring Field G remains under the management of the OC Sheriff's Dept) The Sheriffs managed the Tidelands and 1,200 moorings efficiently for decades, with high professionalism and impartiality, at a cost of roughly $330,000 per year. In contrast, the City's Harbor Department-created in 2016 after assuming control from the Sheriffs-now costs taxpayers over $2.3 million annually, for the same 1200 moorings.
The Sheriffs' tenure was marked by fairness, competence, 24/7 patrols, and low administrative cost. One part-time staff member managed all mooring administration for approximately $65,000 per year, without bias or favoritism. Restoring Sheriff management would return integrity, equity, and fiscal prudence to the administration of the Tidelands. (see Link to Sheriff's past Cost to Taxpayers, or Attachment H) 4. Referral of the City of Newport Beach to the California Attorney General Under the 1978 Granting Statutes, the SLC holds the authority to refer the City to the Office of the Attorney General for non-compliance with State laws governing the use and management of the Public Tidelands. (see Attachment I) Such a referral would allow the Attorney General to investigate: • The ballooning of the Harbor Department budget from $330,000 to $2.3 million annually; • Potential misuse of Tidelands funds for municipal purposes; • Discriminatory fee structures and regulatory disparities between groups of users; • Possible unlawful commercialization or privatization of the Tidelands; and
Tidelands funds for municipal purposes; • Discriminatory fee structures and regulatory disparities between groups of users; • Possible unlawful commercialization or privatization of the Tidelands; and • Whether the City has engaged in efforts at systemic exclusion of lower-income and non-resident mooring holders in favor of affluent homeowners and yacht club members, including past and present City Leaders with equity memberships in the Yacht Clubs.
It appears the City has pursued a coordinated policy to transform Newport Harbor into an exclusive low cost enclave primarily for the affluent, contrary to the public trust principles that mandate inclusivity and accessibility for all Californians.
Only decisive State action can put an end to this grotesque injustice and restore lawful, equitable management of the Newport Beach Tidelands.
Conclusion The remedies proposed—particularly the immediate amendment of Resolution 2015-10-represent a practical, cost-free path to compliance, fairness, and sustainable oversight. By merging “Docks and Moorings" into ONE equitable user group, the City can uphold its obligations under the Granting Statutes, the Coastal Act, and the principles of the Public Trust.
I respectfully urge the State Lands Commission, under your leadership, to investigate this matter more thoroughly and exercise its oversight authority to ensure Newport Beach's full compliance with State law and the equitable use of California's public tidelands.
Thank you for your time and your continued commitment to fairness and justice on California's coastal lands.
Sincerely, Hein Austin HeinA.pn Attachments: • Areal View of Identical Users (Docks and Moorings) • A - City Resolution No. 2015-10 (for reference) • B1 - Areal View of Identical Users paying different rates
ly, Hein Austin HeinA.pn Attachments: • Areal View of Identical Users (Docks and Moorings) • A - City Resolution No. 2015-10 (for reference) • B1 - Areal View of Identical Users paying different rates • B2 - City Owned Mooring License Scheme • B3 - Dock to Mooring Rate Ratio of 1:47 (instead of 1:1) • C - Riddle v Valley (unpublished court opinion) • D-Riddle v City of Newport Beach • E-Stop the Dock Tax Article • F - City Harbor Code Title 17 • G - Disproportionate Regulations for Moorings • H - Orange County Sheriffs Cost to Manage Newport Harbor • I - Granting Statute of 1978 RESOLUTION NO. 2015-10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADJUSTING THE RENTAL CALCULATION AND APPROVING A REVISED MODEL PERMIT TEMPLATE FOR RESIDENTIAL PIERS LOCATED UPON TIDELANDS 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, the Beacon Bay Bill and Chapter 17.60 of the Newport Beach Municipal Code ("NBMC") allow the City to authorize third parties to construct/maintain residential piers upon tidelands; WHEREAS, the Beacon Bay Bill, California Constitution Article 16, Section 6, NBMC Section 17.60.060(D) and City Council Policy F-7(D) require the City to receive fair market value rent from third parties using the tidelands; WHEREAS, the City Council has the exclusive discretion to determine fair market value rent based, in part, upon the findings of a City-selected appraiser; WHEREAS, an appraisal report by Rasmuson Appraisal Services, and an appraisal report by Netzer & Associates, were prepared and delivered to the City and
upon the findings of a City-selected appraiser; WHEREAS, an appraisal report by Rasmuson Appraisal Services, and an appraisal report by Netzer & Associates, were prepared and delivered to the City and have been reviewed and considered by the City Council, which reports are part of the record for this matter; WHEREAS, on November 26, 2013, the City Council adopted Resolution No. 2013-88, approving a model residential pier permit for residential piers located upon tidelands and establishing fair market value rent; WHEREAS, on January 27, 2015, the City Council considered, at its regularly scheduled study session, the current status of the City's tidelands regulations and rents for moorings, commercial piers and residential piers and directed staff to bring back certain amendments contained in this resolution to improve the tidelands rent process; WHEREAS, the City Council has considered all documents and comments in the record in connection with this resolution; and WHEREAS, all previous resolutions, or portions thereof, and actions regarding the fair market value rent for residential piers and the model pier permit template for residential piers that are in conflict with the provisions in this resolution are hereby repealed.
City of Newport Beach follows: NOW, THEREFORE, the City Council of the City of Newport Beach resolves as Section 1: The Recitals provided above are true and correct and are incorporated into the substantive portion of this resolution.
Section 2: The City Council finds that the rent provisions contained in the attached Adjusted Residential Pier Tidelands Rent Calculations, which is incorporated by reference, provide for the charging of fair market value rent and that the rental rate
visions contained in the attached Adjusted Residential Pier Tidelands Rent Calculations, which is incorporated by reference, provide for the charging of fair market value rent and that the rental rate (and adjustments) in the attachment constitute fair market value rent for residential piers located upon tidelands, which findings are made by the City Council in its exclusive discretion but are based, in part, on the information in the appraisals of its City-selected appraisers and, in addition, on other testimony and documents in the record for this matter. The City Council further finds and determines the rent for residential piers located upon tidelands, operating under a permit, shall be set in accordance with the attached Adjusted Residential Pier Tidelands Rent Calculations. The rent established in this resolution shall only be applicable to permittees with a residential pier located over tidelands.
Section 3: The City Council adopts the revised model residential pier tidelands permit attached to this resolution, and incorporated by this reference, for use by residential pier tidelands users. The City Council finds that the residential tidelands users subject to the attached model permit are not subject to the open bid process found in City Council Policy F-7 because redevelopment/reuse of the tidelands by a third party would require excessive time, resources and costs which would outweigh other financial benefits.
Section 4: The City Council finds the adjustment of residential pier rent and the approval of a revised model permit template for residential piers located upon tidelands 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
al piers located upon tidelands 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 adjustment of residential pier rent and the approval of a revised model permit template for residential piers located upon tidelands is entitled to a Class 1 Categorical Exemption pursuant to CEQA Regulation Section 15301 because the residential pier rent and permit contemplate the continued use of existing facilities, with no expansion of the proposed use. Further, the City Council finds the adjustment of residential pier rent for piers located upon tidelands is entitled to a Statutory Exemption pursuant to CEQA Regulation Section 15273(a)(1) because the fair market value rent established by the City Council will be used to meet operating expenses within the tidelands. Lastly, the City Council finds the adjustment of residential pier rent and the approval of a revised model permit template for residential piers located upon tidelands is not a project under City of Newport Beach CEQA Regulation Section 15061(b)(3) because it has no potential for causing a significant effect on the environment.
Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall
nificant effect on the environment.
Section 5: 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 invalid or unconstitutional.
Section 6: 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 10th day of February, 2015.
ATTEST: Leilani I. Brown, City Clerk Demie B. Dien Edward D. Selich, Mayor OF CITY NEWPORT BEACH CALIFORNIA for Attachments: (1) Adjusted Residential Pier Tidelands Rent Calculations (2) Revised Model Permit Template for Residential Piers City of Newport Beach Adjusted Residential Pier Tidelands Rent Calculations Residential Pier Rent (1) Residential Pier Permittees shall pay as Rent Fifty Cents ($0.50) per square foot of the Premises, as phased in and adjusted pursuant to this resolution.
Two (2) examples of the Rent calculation are provided below for illustrative purposes: 209 213 413 RHEAD Proposed - 215 VIA LIDO SOUD Proposed - 417 EDGEWATER PL _ Total Permit Area — 992 59ft.
2017 Rental Fee = $496 ($0.50/sq. ft.)
637 sq. ft.
$318.95 ft.)
(2) (3) Total Permit Area = 2017 Rental Fee = ($0.50/sq. ft.
Permittees that desire to rent/lease their Residential Pier shall notify the City in writing. Permittees that rent/lease their Residential Pier, either in
ermit Area = 2017 Rental Fee = ($0.50/sq. ft.
Permittees that desire to rent/lease their Residential Pier shall notify the City in writing. Permittees that rent/lease their Residential Pier, either in whole or in part, shall pay the Rent applicable to Small Commercial Marinas as established in Resolution No. 2012-98, or any successor resolution, for the Premises.
To the extent a Residential Pier is shared by two (2) or more Permittees, the Rent shall be apportioned equally among the Permittees (i.e., if a City of Newport Beach Residential Pier is shared by two (2) Permittees, half (1/2) of the Rent shall be billed to one (1) Permittee and the other half (1/2) of the Rent shall be billed to the other Permittee). The Permittees shall be jointly and severally liable for the Rent. Each Permittee shall receive a permit from the City indicating the percentage of the Premises apportioned to the Permittee.
Periodic Adjustments of Rent and Phase In Rent for Residential Piers provided by this resolution, shall be phased-in and adjusted as follows in the table below. In the table, "A" represents the calculated rent based on the known square footage under permit in 2012, multiplied by Fifty Cents a square foot ($0.50/SF): Fifty Cents ($0.50) Rent Phase-in Table and Adjustment Examples 2012 2013 2014 2015 2016 2017 $100 + $100 ([A-$100]/5) ([A-$100]/5) ([A-$100]/5)|([A-$100]/5) Fully Phased-In Rent (A) Example #1: $100 $194 $288 $382 $476 $570 1,139 SF Example #2: $100 $223 $345 $468 $590 $713 1,426 SF Example #3: $100 $428 $756 $1,084 $1,412 3,480 SF $1,740 A = square footage x $0.50 Rent for Residential Piers of one hundred ninety square feet (190') or less shall pay the
45 $468 $590 $713 1,426 SF Example #3: $100 $428 $756 $1,084 $1,412 3,480 SF $1,740 A = square footage x $0.50 Rent for Residential Piers of one hundred ninety square feet (190') or less shall pay the fully phased in Rent immediately and be subject to CPI adjustment beginning in 2018.
During the phase-in period there shall be no adjustment by the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers ("CPI"), Los Angeles-Riverside-Orange County region or otherwise.
Beginning in 2018 and indefinitely beyond, the rental rate shall be adjusted by the change in the CPI or two percent (2%) whichever is less. The City may conduct a new appraisal of residential pier rental rates in Newport Harbor after March 1, 2018, and every fifth (5th) year thereafter, as part of the appraisal required by Resolution No. 201296, or any successor resolution. The City Council, at its discretion, may use the appraisal to adjust Rent for the following year (i.e., the Rent determined by the appraisal following March 1, 2018 shall be effective March 1, 2019). If the City Council chooses not to adjust Rent across the Class of Permit, it shall use the appraisal's results to adjust the Rent of only those individual Permits that transfer ownership following each appraisal. Once adjusted, these transferred Permits shall be adjusted by the change in CPI or two percent (2%), whichever is less, until such time that a new appraisal applies to this Permit or Class of Permit.
City of Newport Beach Definitions Unless otherwise provided, the terms provided in the Newport Beach Municipal Code ("NBMC") shall apply to this resolution. The singular of any term also includes the plural.
(1) Class of Permit means all Permits for Residential Piers in Newport Harbor.
(2)
port Beach Municipal Code ("NBMC") shall apply to this resolution. The singular of any term also includes the plural.
(1) Class of Permit means all Permits for Residential Piers in Newport Harbor.
(2) (3) (4) (5) (6) (7) (8) (9) Permit refers to a permit issued by the City authorizing a Residential Pier upon the Premises.
Permittee means a person who has a permit from the City to construct/maintain a Residential Pier.
Premises means those Tidelands which are subject to the applicable permit and are more particularly described and depicted in the applicable permit, excluding any Private Waterways and improvements owned by the Permittee or Tidelands subject to recorded easements for pier and slip purposes. The Premises shall include only the portion of the Tidelands located under a Residential Pier and shall exclude the interior U-Shape of a slip.
Private Waterways means privately owned submerged lands or submerged lands subject to recorded easements for pier and slip purposes.
Rent means the annual fair market rent charged on a square footage basis for the use of the Premises.
Residential Pier means a pier used by the owner(s), occupant(s), guest(s) or lessee(s) of the abutting residentially zoned upland property. A Residential Pier shall include the entire pier system, including, but not limited to, the float, gangway, gangway landing, pier, and pier platform. The Residential Pier shall specifically exclude the interior U-Shape of a slip.
Tidelands mean certain tidelands and submerged land (whether filled or unfilled), located in the City of Newport Beach, County of Orange, State of California, granted to the City of Newport Beach, as trustee, by the State of California, pursuant to the Tidelands Grant.
r unfilled), located in the City of Newport Beach, County of Orange, State of California, granted to the City of Newport Beach, as trustee, by the State of California, pursuant to the Tidelands Grant.
Tidelands Grant means uncodified legislation related to the State of California's grant of certain rights in the Tidelands to the City of Newport Beach, including, without limitation, the Beacon Bay Bill (Chapter 74 of the Statutes of 1978, as amended [citations omitted]).
City of Newport Beach ATTACHMENT B Residential Tidelands Pier Permit (1) Permittee: This Permit is issued on to ("Permittee”) to construct/maintain a residential pier located upon City of Newport Beach ("City") tidelands, as more particularly described and depicted in Attachment 1 ("Premises"), which is attached hereto and incorporated by reference. By acceptance of this Permit, the Permittee agrees to be bound by the terms contained in this Permit.
(2) 20 Term: This Permit shall be valid for a period of year(s) beginning on March 1, and expiring on February 20 unless terminated earlier as provided herein. A new permit may be automatically issued upon expiration, provided rent is paid and the pier is maintained. The City's longstanding policy is to re-issue residential permits to the upland property owner, who also owns the physical dock associated with the Premises.
or any (3) Rent: Rent shall be calculated pursuant to Resolution No. 2015successor/amended resolution. Resolution No. 2015- and any successor/amended resolution are automatically incorporated by reference into this Permit, without any further action by the parties, when adopted by the Newport Beach City Council.
(A) Payment of Rent: All rent shall be annually prorated and billed through
ed by reference into this Permit, without any further action by the parties, when adopted by the Newport Beach City Council.
(A) Payment of Rent: All rent shall be annually prorated and billed through Permittee's Municipal Services Statement ("MSS"). All rent shall be due and payable pursuant to the terms of Permittee's MSS.
(4) (B) (C) Late Charges: A ten percent (10%) late charge shall be added to all payments due but not received by City by the due date.
Permittee to rent/lease the Premises to a third-party.
Utilities and Taxes: The Permittee is solely responsible for obtaining all utilities and paying all taxes (including possessory interest tax, if applicable), fees and assessments for the Premises or improvements located thereon.
(5) Maintenance: The Permittee assumes full responsibility for operation and maintenance and repair of the Premises and associated improvements throughout the term of this Permit at its sole cost, and without expense to the City.
(6) Transfer/Assignment: This Permit may be transferred or assigned by the Permittee as provided in the Newport Beach Municipal Code.
(7) Property Right Protection: The residential pier maintained under this Permit is private property and shall be protected to the maximum extent under the law from unlawful seizure.
(8) Settlement Agreement: This Permit is in full compliance with the February 21, 2014 Settlement Agreement entered into between the City and the Newport Beach Dock Owners Association.
1 City of Newport Beach ATTACHMENT B Attachment 1 Description & Depiction of Premises Premise's Address (or description of general location): Premise's Square Footage: Premise's Depiction: 2 City of Newport Beach STATE OF CALIFORNIA COUNTY OF ORANGE
Description & Depiction of Premises Premise's Address (or description of general location): Premise's Square Footage: Premise's Depiction: 2 City of Newport Beach STATE OF CALIFORNIA COUNTY OF ORANGE } SS.
CITY OF NEWPORT BEACH I, Leilani 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 resolution, being Resolution No. 2015-10 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 10th day of February, 2015, and that the same was so passed and adopted by the following vote, to wit: Council Member Peotter, Council Member Petros, Council Member Muldoon, Mayor Pro Tem Dixon AYES: NAYS: Council Member Curry RECUSED: Council Member Duffield, Mayor Selich IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 11th day of February, 2015.
Leilani City Clerk W Newport Beach, California (Seal) NEWPORT CITY CITY OF BEACH CALIFORNIA City of Newport Beach SOCIOECONOMIC RATE DISCRIMINATION BETWEEN DOCKS AND MOORINGS Nearest Address to Notation C: Public Pedestrian Walkway, and Seawall, Separating Upland Residential Parcels and the Tidelands Three Identical Users: All Recreational, Self Installed, Self Maintained, Boat storage, Using the Same Water S Bay Front HOMES WITH NO SPEC S Bay Front ACCESSIO S Bay Front PAN RIGHTS TO THE TIDEL 802 804 806 808 810 7.02 509 706 710 800 S Bay Front S Bay Front Sapphire Ave 900 904 908 902 906 PUBLIC WALKWAY & SEAWALL C DOCK A SHORE MOORING - 18ft 4000 sqf/$690/yr = 17c/sqf/yr A SHORE MOORING ~ 190 sqf ~ $1600/yr ~ $8/sqf/New Rate
902 906 PUBLIC WALKWAY & SEAWALL C DOCK A SHORE MOORING - 18ft 4000 sqf/$690/yr = 17c/sqf/yr A SHORE MOORING ~ 190 sqf ~ $1600/yr ~ $8/sqf/New Rate Transferability Ends Cannot Rent B B OFF-SHORE MOORING - 40ft OFFSHORE MOORING ~1200 sqf ~ $7200/yr ~ $7/sqf/New Rate Transferability Ends Cannot Rent C PRIVATE DOCK ~ $690/yr ~ 17c/sqf/yr Transferable/Renewable 50 YRS Can Rent to 3rd Parties 8 Bay Front Kryboard shortcuts Map data 92025 2m 0.002 Hectares 192.909 Feet Keyboard shortcuts Map data 2025 magery 92025 Arts 5m 0.011 Hectares 1192.776 Feet D. A.
Bay Front StayF Keyboard shortcuts Map data 2025 agery 2025 Arbus 5m S 0.036 Hectares 3912.766 Feet WEBSITES REFERENCED: USING FREE MAP TOOLS, NEWPORT BEACH GIS WEBSITE Date: October 31, 2025 Dr. Matthew Dumlao, and Staff Executive Director California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 Subject: Request for Investigation into Artificial Mooring Scarcity and Excessive Visitor Rates in Newport Harbor Dear Honorable Dr. Dumlao, and Staff: I am writing to respectfully request that the State Lands Commission investigate actions taken by the City of Newport Beach concerning its management of public moorings and docks within the Tidelands Trust area with respect to the New City Owned Mooring Licenses. Evidence suggests that the City has deliberately created an artificial demand for moorings to pave the way for its Mooring License Scheme by setting prohibitively high visitor rates, effectively pricing out working-class boaters and undermining the long standing low cost Coastal Access they used to enjoy, and the public trust doctrine.
by setting prohibitively high visitor rates, effectively pricing out working-class boaters and undermining the long standing low cost Coastal Access they used to enjoy, and the public trust doctrine.
According to publicly available data (Google Earth), there are consistently over 100 vacant moorings and docks within Newport Harbor—many of which remain unused for extended periods. The City retains the right to rent out vacant moorings to short-term visitors, yet not docks. Despite this, the City has made little effort to make these moorings accessible. Instead, it has progressively raised visitor rates, creating an artificial demand for moorings, and turning public waters into a privileged playground for the affluent.
When the Harbor Department (essentially the Mooring Department) was established in 2016, the City rapidly increased daily mooring rates from around $12 per night to over $57 per night. For local boaters, this escalation has made short recreational stays unaffordable. A one night on the harbor now costs over $87 per day when factoring in launch fees, compared to $12 per night for a public campsite in the Angeles National Forest—an unmistakable inequity in access to public lands and waters.
All expenses related to mooring maintenance are already borne by private permit holders, meaning these inflated visitor rates do not reflect increased costs. Instead, they appear to serve a more strategic goal: to transform Newport Harbor into an exclusive enclave, effectively excluding working-class families who have long enjoyed access to these public waters.
This strategy became more evident with the City's 2024 introduction of the City's new high cost Mooring License Program. The City claims that its high vacancy rates necessitate this new program,
ters.
This strategy became more evident with the City's 2024 introduction of the City's new high cost Mooring License Program. The City claims that its high vacancy rates necessitate this new program, alleging that boaters are deterred by the lack of longer-term lease options. However, this justification lacks merit. Many of these moorings have been vacant for extended periods, and simple communication with permit holders could easily resolve short-term occupancy issues. Furthermore, the Newport Mooring Association has previously proposed viable solutions, such as temporary fee relief for permit holders who agree to keep their moorings vacant for set periods, yet the City chose not to pursue these recommendations.
Instead, the City appears to be using the artificial scarcity it created to justify a commercialized “CityOwned" licensing system for profit-an activity fundamentally inconsistent with its role as an impartial trustee of public tidelands. The City's purported demand for these new licenses is also questionable; preliminary review suggests that many of the supposed “applicants” on the City's list may not represent genuine demand but rather serve to support this narrative of scarcity.
Under California Public Resources Code §6009.1, the City is bound by specific duties as trustee of the granted tidelands: 1. To act impartially in managing trust property.
2. To refrain from using or dealing with trust property for its own profit.
3. To ensure that trust revenues are not diverted for general municipal purposes.
By commercializing public moorings for revenue generation and restricting access to low cost coastal recreation, the City is in clear violation of both the spirit and the letter of its public trust obligations. The
zing public moorings for revenue generation and restricting access to low cost coastal recreation, the City is in clear violation of both the spirit and the letter of its public trust obligations. The State Lands Commission, along with the California Coastal Commission, holds the authority to enforce these principles and preserve the existing limited number of public moorings for low-cost coastal access, as required under the State's coastal access mandates.
For these reasons, I respectfully urge the State Lands Commission to initiate a formal in depth review of Newport Beach's mooring management policies and practices against moorings. Specifically, I request that the Commission examine: • • • The City's use of excessive visitor mooring rates and their compliance with PRC §6009.1.
The City's introduction of high cost "City-Owned Mooring Licenses" and the potential conflict with public trust obligations.
The systematic marginalization of working-class and recreational boaters from access to public moorings and tidelands, while preserving low cost Coastal Access for the Affluent Docks and local constituents, including past and present City Leaders.
The City's determination the Steal as many Mooring permits as it can through the unvetted City Owned mooring licenses program, one mooring at a time, or in bulk. (expropriation without compensation for lower income boaters, while The Affluent Docks remain unaffected) Thank you for your attention to this important matter. I am confident that your office shares a commitment to ensuring fair, equitable, and lawful access to California's public coastal waters.
Respectfully submitted, Hein Austin Filed 9/1/20 Riddle v. Vallely CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
t to ensuring fair, equitable, and lawful access to California's public coastal waters.
Respectfully submitted, Hein Austin Filed 9/1/20 Riddle v. Vallely CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SUSAN [BIDART] RIDDLE, as Trustee, etc., Plaintiff and Appellant, V.
JOHN VALLELY et al., Defendants and Respondents.
G057397 (Super. Ct. No. 30-2015-00808124) OPINION Appeal from a judgment of the Superior Court of Orange County, Layne H.
Melzer, Judge. Affirmed.
Claremont Land Group, Geralyn L. Skapik, Mark C. Allen III and Blair J.
Berkley for Plaintiff and Appellant.
Respondents.
Law Office of Harry S. Carmack and Harry S. Carmack for Defendants and * * * This is a dispute between neighboring property owners on Balboa Island in the City of Newport Beach (the City). The City leased the tidelands in front of the properties to one of the property owners, who operates a commercial pier that extends in front of both properties. The other property owner asserts the City improperly issued the lease and complains the pier “encroaches” in front of her property, foreclosing her access to the harbor. She brought a complaint and petition for writ of mandate against her neighbor and the City, asserting claims for inverse condemnation, declaratory relief, and violations of due process, the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et
it of mandate against her neighbor and the City, asserting claims for inverse condemnation, declaratory relief, and violations of due process, the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.), the City Charter, and City Council Resolution No. 2012-97 regarding commercial tidelands leases. The trial court granted the City's motion for summary adjudication (MSA) on her inverse condemnation claim, and following a bench trial, it entered judgment for defendants on the remaining claims. For the reasons discussed below, we affirm.
FACTS Plaintiff Susan [Bidart] Riddle, as trustee of the Leonard A. Bidart Family Trust under Trust Agreement Dated August 15, 2001, has owned the real property located at 510 and 510½ South Bay Front on Balboa Island in the City of Newport Beach since 1993. Defendant John Vallely and his wife, Karen Vallely, as co-trustees of the John Stephen Vallely Trust, own the neighboring real property located at 508 South Bay Front.
The Vallely family has owned and lived in that property for over 80 years.
Both properties overlook the water, but they are separated from Newport Bay by an eight-foot-wide City-owned public walkway. The City holds title to the tidelands in Newport Bay in trust from the State of California.
Vallely and his wife operate a commercial business, Vallely Boat Rentals (a sole proprietorship), in those tidelands. The pier, dock, and floats have existed in their current configuration since the late 1930s, when Vallely's father added the dock and 2 floats under permits issued by the City and the Army Corps of Engineers. Vallely has managed his family's business since 1976.
Although the Vallely pier was already there when Riddle purchased her
d 2 floats under permits issued by the City and the Army Corps of Engineers. Vallely has managed his family's business since 1976.
Although the Vallely pier was already there when Riddle purchased her property in 1993, Riddle now objects to the pier's existence because it "encroaches” in front of her property, blocks her access to the harbor, and prevents her from applying for a permit to build her own pier.
After Vallely's mother died in 2012, Vallely applied to have the permit for the pier, which the City had issued to his parents' family trust, transferred to his own family trust. The City denied his transfer application because at the time, the Newport Beach Municipal Code (NBMC') required a new pier permit application under the circumstances. (See NBMC § 17.35.020(F) [“In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by ownership of the abutting upland property owned by the permittee or upon the death of the permittee . . .”].)
Vallely filed a petition for writ of mandate to require the City to transfer his parents' permit to him. The trial court denied his petition, noting the relevant provisions of the NBMC were “confusing” and “riddled with uncertainty.” Vallely appealed.
While his appeal was pending, in December 2013, the City adopted Ordinance No. 2013-27, which amended NBMC Chapter 17.60 and subsection 17.35.030(B)(2) regarding leases and permits for piers in the tidelands.
Among other things, the ordinance amended NBMC section 17.60.060(E) to “allow a person to apply for a commercial pier permit or lease in front of or encroaching upon 1
mits for piers in the tidelands.
Among other things, the ordinance amended NBMC section 17.60.060(E) to “allow a person to apply for a commercial pier permit or lease in front of or encroaching upon 1 The NBMC has undergone various revisions in recent years. This opinion utilizes the 2015 version, which was introduced as an exhibit at trial and which controlled during the events in question.
3 abutting upland property not owned or leased by the person applying for the permit."
(Italics added.) The amended code section also exempted commercial pier leases and permits “from any provision requiring involvement of the owner or long-term lessee of an abutting upland property."
After these legislative changes took effect, Vallely learned he could operate his commercial pier business under a tidelands lease and thus did not need to pursue a permit transfer via his pending appeal. Vallely's litigation counsel and the assistant city attorney negotiated a lease in which Vallely Boat Rentals leased the tidelands in front of the Vallely and Riddle properties from the City for a 50-year period. Subject to revisions which we discuss below, the lease resembled the model commercial tidelands lease template that the City Council had approved and adopted in late 2012 in Resolution No.
2012-97. The City Manager signed the Vallely lease on behalf of the City, and Vallely signed on behalf of Vallely Boat Rentals. The lease was issued without a public hearing or any formal notice to Riddle.
One day after the lease's effective date, Vallely dismissed his appeal in the permit transfer litigation. The City Manager and the assistant city attorney concede the lease was designed to resolve the litigation and moot Vallely's appeal. There is no
dismissed his appeal in the permit transfer litigation. The City Manager and the assistant city attorney concede the lease was designed to resolve the litigation and moot Vallely's appeal. There is no evidence the City Council approved any sort of formal settlement with Vallely.
Riddle takes issue with both the Vallely lease and the way it was issued.
She contends the lease damages her littoral rights in the tidelands, including her right to access the harbor and her right to build her own pier. She contends the City Manager lacked the authority to issue the Vallely lease, and she asserts the lease does not comply with local law regarding commercial tidelands leases. Riddle further complains the City Council secretly settled Vallely's pier permit transfer litigation by issuing the lease, without giving her notice of the lease or an opportunity to be heard, and without following the requirements of the Brown Act.
4 Riddle sued the City and Vallely (collectively, Defendants) to invalidate the lease. In her operative Third Amended Verified Petition for Writ of Mandate and Complaint, Riddle asserted five claims: (1) declaratory relief that the lease is invalid; (2) petition for a writ of mandate invalidating the lease as a violation of the City Charter and Resolution No. 2012-97 concerning commercial tidelands leases; (3) petition for a writ of mandate invalidating the lease as a violation of Riddle's due process rights; (4) violation of the Brown Act (against the City only); and (5) inverse condemnation (against the City only).
The City filed an MSA on Riddle's inverse condemnation claim, asserting Riddle has no property right in the leased tidelands and thus cannot show a taking occurred. The trial court agreed and granted summary adjudication for the City.
2
verse condemnation claim, asserting Riddle has no property right in the leased tidelands and thus cannot show a taking occurred. The trial court agreed and granted summary adjudication for the City.
2 Trial then commenced on the remaining four causes of action. After trial, the trial court issued a detailed 14-page statement of decision ruling in Defendants' favor, and it entered judgment for Defendants on all five causes of action. Riddle appealed.
DISCUSSION 1.
Inverse Condemnation Riddle first contends the trial court erred in granting summary adjudication for the City on her inverse condemnation claim. According to Riddle, a triable issue of fact exists as to whether the Vallely lease harmed her littoral property rights. We review the grant of summary adjudication de novo, applying the same standards we apply in reviewing an order granting a motion for summary judgment, and considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1471-1472.)
2 The City also sought summary adjudication on Riddle's fourth cause of action, but the trial court denied that portion of its motion.
5 To bring a successful inverse condemnation claim, a plaintiff “must prove that a public entity has taken or damaged [her] property for a public use." (Pacific Bell v.
City of San Diego (2000) 81 Cal.App.4th 596, 602.) That is, she “must show there was an invasion or appropriation (a "taking" or "damaging") of some valuable property right which the property owner possesses by a public entity and the invasion or appropriation directly and specially affected the property owner to [her] injury."" (City of Los Angeles
luable property right which the property owner possesses by a public entity and the invasion or appropriation directly and specially affected the property owner to [her] injury."" (City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221.)
Riddle contends the City damaged her property rights by allowing the pier on Vallely's leased premises to “encroach” in front of her property and foreclose her access to the harbor. The City holds title to the tidelands where the offending pier and floats are located, but Riddle insists she owns the "full complement of littoral property rights" in those tidelands, including the right to build a pier out to the line of navigability and the right of access from every part of her frontage across the foreshore. According to Riddle, these rights were harmed by the issuance of the Vallely lease. We cannot agree.
Littoral rights are water rights enjoyed by landowners whose property "border[s]," is "adjacent to,” or “abut[s]” a natural lake, pond, sea, or ocean. (See State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 63, fn.1; Kendall v. Walker (2009) 181 Cal.App.4th 584, 593; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 146-147; see also L.A. Athletic Club v. Santa Monica (1944) 63 Cal.App.2d 795, 799 [properties that “no longer bordered upon the sea” were not littoral properties].) "A littoral owner has been held to have the right to build a pier out to the line of navigability; a right to accretion; [fn. omitted] a right to navigation (the latter right being held in common with the general public) [citation]; and a right of access from every part of his frontage across the foreshore [citation].” (Marks v. Whitney (1971) 6 Cal.3d 251, 263 (Marks).)
t being held in common with the general public) [citation]; and a right of access from every part of his frontage across the foreshore [citation].” (Marks v. Whitney (1971) 6 Cal.3d 251, 263 (Marks).)
Riddle's property neither borders nor abuts the tidelands. As Riddle conceded in her declaration and separate statement opposing the City's MSA, and during 6 oral argument, there is an eight-foot-wide City-owned public walkway that runs between her property and Newport Bay. Riddle's property therefore carries no ordinary littoral rights in the tidelands.
Riddle insists, however, that the NBMC affords her the “equivalent” of littoral property rights, including the right to construct a residential noncommercial pier.
We again disagree. According to the NBMC, the owner of an abutting upland residential property which by definition includes properties on Balboa Island that are separated from the harbor by a City-owned public walkway, like Riddle's-may obtain a residential pier permit if the Harbor Commission determines it is in the public interest.
(See NBMC §§ 17.01.030(A), 17.35.020(A)(1), 17.35.020(A)(8), 17.35.060, 17.60.030.)
Therefore, Riddle, as the owner of an abutting uplands property, has the right only to apply for a pier permit.* 3 In any event, we need not resolve the question of Riddle's littoral rights because even if she did have such rights, those rights are subservient to the City's exercise of its powers to create and regulate the public harbor. The state, which holds all navigable waterways in trust for the benefit of the people of California, granted the City title in trust to the tidelands in Newport Bay in 1919. In 1978, through legislation known as the Beacon Bay Bill, the state renewed its grant to the City of all right, title, and
ia, granted the City title in trust to the tidelands in Newport Bay in 1919. In 1978, through legislation known as the Beacon Bay Bill, the state renewed its grant to the City of all right, title, and interest in the tidelands and submerged lands, whether filled or unfilled, bordering upon or under the Pacific Ocean or Newport Bay that were within the City's corporate limits as of July 25, 1919, for the purpose of establishing, improving, and conducting a public harbor, and for constructing wharves, docks, piers, slips, quays, ways, and streets, among other uses. The Beacon Bay Bill further specifies the City may lease portions of the tidelands for up to 50 years for any purpose consistent with the trust. (See Stats. 1997, 3 Riddle has never applied for residential pier permit, nor has the Harbor Commission ever determined whether such a pier would be in the public interest.
7 ch. 317, §§ 1-2, pp. 2248-2254; Stats. 1978, ch. 74, §§ 1-16, pp. 198-207; cf. Civ. Code, § 718 [tidelands granted to any city by the state may be leased for a period not to exceed 66 years unless the grant from the state specifies the term for which said lands may be leased].)
The fact that the City holds title to the tidelands severely limits whatever littoral rights Riddle may claim. Although a “littoral owner has a right in the foreshore adjacent to [her] property separate and distinct from that of the general public,” that right is "burdened with a servitude in favor of the state [or its grantee] in the exercise of its trust powers over navigable waters." (Marks, supra, 6 Cal.3d at pp. 262-263; see Colberg, Inc. v. State of California ex rel. Dept. of Pub. Wks. (1967) 67 Cal.2d 408, 422 [littoral property owner's “right to have access to those navigable waters. . . is burdened
t pp. 262-263; see Colberg, Inc. v. State of California ex rel. Dept. of Pub. Wks. (1967) 67 Cal.2d 408, 422 [littoral property owner's “right to have access to those navigable waters. . . is burdened with a servitude in favor of the state which comes into operation when the state properly exercises its power to control, regulate, and utilize such waters"].)
As a result, "the littoral rights of an upland owner who does not own title to the submerged land or tide land in front of his property are, under the law in this state, subject to being terminated at will by any disposition which the state may choose to make of such submerged lands or tide lands." (City of Newport Beach v. Fager (1940) 39 Cal.App.2d 23, 31 (Fager), italics added.) Thus, such an owner cannot maintain a claim against the state or its grantee for “depriv[ing her] of [her] property rights without due process and without compensation." (Ibid.) A littoral owner is “deprived of no property right since [her] right of access over the intervening tide lands to navigable water was a qualified right at all times subordinate to the paramount right of the state in which title to such tide lands was vested. No right of action exists in favor of a littoral owner whose right of access over the tide lands to navigable waters has been cut off by the disposition which the state has made of such tide lands.” (Ibid.) "Although it is true that as against a stranger a littoral owner of upland bordering upon navigable waters may not be deprived of his right of access to such waters, no such right exists in favor of such 8 littoral owner as against the state or its grantee in the exercise of a lawful use or purpose.” (Id. at p. 28, italics added.)4
right of access to such waters, no such right exists in favor of such 8 littoral owner as against the state or its grantee in the exercise of a lawful use or purpose.” (Id. at p. 28, italics added.)4 Under these authorities, even if Riddle has littoral rights to access or build a pier in the tidelands (an issue we need not decide), those rights are subservient to the City's powers to manage the tidelands in trust. The City's issuance of the Vallely lease was a valid exercise of those powers. As noted, under the Beacon Bay Bill, the City holds title to the tidelands in trust for the purpose of establishing and conducting a public harbor and for constructing docks and piers, among other purposes. The Beacon Bay Bill also expressly allows the City to lease the tidelands for terms not exceeding 50 years for purposes consistent with the trust. The Vallely lease is consistent with the trust's purposes, and it is for a term that does not exceed 50 years; thus it is a valid exercise of the City's powers. Consequently, any littoral rights Riddle may have in the tidelands were terminated by the City's issuance of the Vallely lease. (See Fager, supra, 39 Cal.App.2d at p. 31 [littoral rights are “subject to being terminated at will by any disposition which the state may choose"].)
For these reasons, Riddle cannot show the issuance of the lease amounted to a taking of a valuable property right. The trial court therefore properly granted summary adjudication for the City on Riddle's inverse condemnation claim.
2.
Writ of Mandate Invalidating the Lease We next consider the trial court's denial of Riddle's petition for a writ of mandate invalidating the Vallely lease as a violation of the City Charter and Resolution
of Mandate Invalidating the Lease We next consider the trial court's denial of Riddle's petition for a writ of mandate invalidating the Vallely lease as a violation of the City Charter and Resolution No. 2012-97. In this cause of action, Riddle asserted the City Council never authorized the City Manager to issue the Vallely lease, and the City Manager exceeded the scope of 4 Riddle attempts to distinguish Fager on the grounds that it was a sea-wall case in which the city was required to completely extinguish littoral property rights to make harbor improvements for the public benefit. This seems to us a distinction without a difference.
9 his authority in doing so. The trial court rejected these contentions and entered judgment for Defendants.
In a mandamus proceeding, the trial court “must determine whether the agency's action was arbitrary, capricious, or without evidentiary support, and/or whether it failed to conform to the law. The trial court may not substitute its judgment for that of the agency or force the agency to exercise its discretion in a certain way." (Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist. (2008) 168 Cal.App.4th 535, 542.) “In reviewing a judgment on a petition for writ of mandate, "[w]e review the trial court's findings of fact for substantial evidence, and review its legal conclusions, including its interpretation of statutory provisions, under a de novo standard of review."""" (Small Property Owners of San Francisco Institute v. City and County of San Francisco (2018) 22 Cal.App. 5th 77, 84.) Applying those standards here, we find no error in the trial court's denial of Riddle's writ petition.
5 To start, the City Manager had the authority to issue a commercial tidelands
.App. 5th 77, 84.) Applying those standards here, we find no error in the trial court's denial of Riddle's writ petition.
5 To start, the City Manager had the authority to issue a commercial tidelands lease to Vallely. The City Charter permits the City Council to designate a city employee to enter into written contracts on its behalf. Consistent with that provision, in late 2012, the City Council adopted Resolution No. 2012-97, in which it approved and adopted a model lease template and a model permit template for commercial tidelands uses. In section 5 of the resolution, the City Council expressly "authorize[d] the City Manager or his/her designee to enter into the attached lease/permit, in a form that is substantially similar to the attached” templates. Attachment 1 to the resolution is a 38-page model lease agreement, and attachment 2 is a 6-page model commercial tidelands permit. As these provisions make clear, the City Council delegated to the City Manager the power to 5 Section 421 of the City Charter requires all contracts binding the City to "be made in writing, approved by the City Council or [an] employee designated by the City Council and signed on behalf of the City by the Mayor or by such other employee as shall be designated by the City Council." (Italics added.)
10 enter into commercial pier leases so long as they are "substantially similar" to the approved lease template.
Riddle contends the Vallely lease is not “substantially similar” to the model lease template adopted in Resolution No. 2012-97, and the City Manager therefore exceeded his authority in issuing the lease. The trial court rejected this argument: “The lease template contains approximately 166 individual provisions. In connection with
the City Manager therefore exceeded his authority in issuing the lease. The trial court rejected this argument: “The lease template contains approximately 166 individual provisions. In connection with their negotiations, the City and Vallely made approximately 15 modifications (largely eliminating certain language deemed unnecessary) while adding just a single provision.
None of these modifications have anything to do with the Riddle Property; they do not countermand existing provisions of the Harbor Code; nor do they undermine the City's fundamental police power to protect the public health, safety and welfare which remains safeguarded in the approved lease and the existing legislative structure for commercial uses in the Newport harbor. [¶] [] While the actual lease varies from the template such variations are to be expected the template must be adapted to accommodate a wide variety of commercial uses in Newport Harbor―shipyards, fuel docks, cruise docks, restaurant docks, marinas, etc. . . . In this context, the lease is 'substantially similar to the template."
Substantial evidence—most notably, the redlined comparison of the model lease template to the Vallely lease-supports the trial court's findings. We find no major revisions, additions, or deletions that render the Vallely lease not "substantially similar” to the model lease in violation of Resolution No. 2012-97. The phrase "substantially 11 similar" does not mean “identical." Indeed, in some contexts, the phrase can contemplate notable dissimilarities.° 6 According to Riddle, the “[m]ost concerning” revision was the deletion of paragraph 20 from the template concerning "surrender" of the pier premises at the end of the lease term. Riddle contends the deletion of this language will allow Vallely to remain
was the deletion of paragraph 20 from the template concerning "surrender" of the pier premises at the end of the lease term. Riddle contends the deletion of this language will allow Vallely to remain in possession of the City's tidelands indefinitely. This argument misconstrues the Vallely lease language, which unambiguously states the lease term will be 50 years commencing on March 12, 2015 and terminating on March 11, 2065, unless sooner terminated.
Riddle further contends the deletion of recitals D and E from the model lease agreement shows the Vallely lease was not substantially similar to the model lease.
We are not persuaded. Recitals D and E state the lease was entered into pursuant to a resolution and the City previously issued a pier permit to the lessee. Neither is of particular significance here.
Riddle insists the City Council, in approving the template, deemed every provision in the model lease necessary. Thus, she contends, the City Attorney could not negotiate away provisions without consulting the City Council, and the City Manager could not execute the lease without the City Council's approval. Again, we disagree. In section 5 of the resolution, the City Council expressly authorized the City Manager to enter into leases that are “substantially similar” to the template. Nowhere does the 6 For example, in the copyright context, a plaintiff may establish that the defendant copied her work by showing the defendant had access to the copyrighted work and the two works are “substantially similar”—that is, that the two works share an objective similarity of ideas and expression, and an ordinary, reasonable person would find their total concept and feel to be substantially similar. (Williams v. Gaye (9th Cir.
the two works share an objective similarity of ideas and expression, and an ordinary, reasonable person would find their total concept and feel to be substantially similar. (Williams v. Gaye (9th Cir.
2018) 895 F.3d 1106, 1119 [upholding decision that Pharrell Williams and Robin Thicke's song “Blurred Lines” infringed copyright in Marvin Gaye's song "Got To Give It Up"].)
12 resolution require the City Manager or his designee to seek the City Council's approval of the modified lease, as Riddle suggests.
Riddle insists the lease could not have been entered into pursuant to Resolution No. 2012-97 because the resolution only allows the conversion of existing permits to leases, and because Vallely Boat Rentals did not have an existing pier permit in place when the lease was issued in March 2015. Not so. Section 2 of the resolution does state the model lease template “satisfies the requirement of NBMC Section 17.60.060(A) covering the conversion of existing permits to leases” (italics added), but the resolution does not require a permit to be in place for a lease to issue. In fact, recital E in the model lease specifically contemplates that a prior permit will have expired before the lease's effective date: “The City previously issued City Pier Permit Number (‘Permit') for the Premises; City Pier Permit Number which shall expire February 28, 2013 after which time the City has stated such Permit will not be renewed and Lessee or any other party has no continuing rights in such Permit after such date.”
Further, NBMC section 17.60.060(A) expressly allows commercial tideland users to pursue either a lease or a permit: “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." Thus,
deland users to pursue either a lease or a permit: “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." Thus, neither Vallely nor his sole proprietorship needed to have a permit in place for the lease to issue.
و We conclude Riddle did not establish the City Manager's issuance of the lease was arbitrary, capricious, without evidentiary support, or in violation of the law.
The trial court properly denied Riddle's petition for writ of mandate.
7 The City issued permits to Vallely Marina, not Vallely Boat Rentals, for the period of March 1, 2013 to February 28, 2015. The Vallely lease took effect on March 12, 2015, about two weeks after the second permit expired.
13 3.
Declaratory Relief Invalidating the Lease 8 We next consider Riddle's declaratory relief cause of action, in which she sought a declaration that the Vallely lease is void and invalid. The trial court denied Riddle any relief, reasoning that “declaratory relief is not an available vehicle for challenging the [administrative] decision of the City Manager to approve the Vallely lease." The correctness of this ruling presents a question of law, which we review de novo.
“It is settled that an action for declaratory relief is not appropriate to review an administrative decision.” (State of California v. Superior Court (1974) 12 Cal.3d 237, 249.) "A declaratory relief action is an appropriate method for obtaining a declaration that a statute or regulation is facially unconstitutional,” but administrative mandamus is ""the proper and sole remedy" where a local agency's administrative decision is at issue.
(Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155 [collecting cases].)
mus is ""the proper and sole remedy" where a local agency's administrative decision is at issue.
(Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155 [collecting cases].)
The City Manager's approval and execution of the lease and the City's issuance of the lease were both administrative decisions involving the lease procedures outlined in the NBMC and Resolution No. 2012-97. Accordingly, Riddle cannot challenge the validity of the lease by way of a claim for declaratory relief. The trial court thus properly entered judgment for Defendants on this cause of action.
4.
Due Process Riddle's third cause of action claims she suffered a violation of her due process rights. In her operative complaint, Riddle alleged she has vested littoral property 8 Defendants assert Riddle abandoned any challenge to the trial court's ruling on her declaratory relief cause of action because her opening brief fails to address the court's ruling. While this is true, her brief does present various arguments why the Vallely lease should be “declared void." We therefore exercise our discretion to consider this cause of action.
14 rights to access the water adjacent to her property, and the City's issuance of the Vallely lease deprived her of her right to seek a permit for a residential dock without notice or an opportunity to be heard. After reviewing her due process claim de novo (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241), we conclude no notice of the lease was required, and we find no due violation.
process We begin by observing the statewide legislative protocol regarding city leases did not require the City to give Riddle notice of the Vallely lease. California law allows cities to lease property they own or control for up to 55 years without providing
tocol regarding city leases did not require the City to give Riddle notice of the Vallely lease. California law allows cities to lease property they own or control for up to 55 years without providing notice or opportunity to be heard. (Govt. Code, § 37380, subd. (a).) Although this same section imposes notice and public hearing requirements on leases longer than that period (id., subd. (b)(3)), those requirements do not apply to charter cities, such as Newport Beach. (Id., subd. (b); see also Civ. Code, § 719, subds. (c), (e), (f) [public hearing requirements for leases of city property do not apply to charter cities, nor to general law cities' leases of tidelands].)
Nor did local law require the City to give Riddle notice of the lease. The NBMC section on commercial leases of tidelands that encroach upon an abutting upland property expressly dispenses with any notice obligation, stating that "[c]ommercial uses . . . are exempt from any provision requiring involvement of the owner . . . of an abutting upland property." (NBMC § 17.60.060(E).)
Riddle relies on NBMC section 17.35.020(F), which requires notice be given to an abutting upland property owner before the City issues a new permit for a pier that will encroach in front of that person's property: “In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: [¶] [] 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee; [¶] . [] Before the Harbor Commission acts on the new permit, the owner of the abutting upland property, in front of which the harbor facility 15
d by the permittee or upon the death of the permittee; [¶] . [] Before the Harbor Commission acts on the new permit, the owner of the abutting upland property, in front of which the harbor facility 15 encroaches, shall be notified in writing of the meeting in which the new permit will be considered." (Italics added.) This code section is inapplicable here, however, because it applies to pier permits, not leases. Unlike permits for encroaching piers, commercial leases for encroaching piers are exempt from notice requirements. (See NBMC § 17.60.060(E).)
Riddle insists NBMC section 17.35.020(F)'s notice requirements apply to both permits and leases. In support, she relies on the recitals to Ordinance No. 2013-27, which amended section 17.60.060(E) and other NBMC sections on leases and permits for tideland piers. According to these recitals, in enacting the ordinance, the City desired to "codify[] the Harbor Resources Manager's interpretation of Subsection 17.60.060(E), which allows commercial piers to encroach in front of adjacent property but does not relieve a person from compliance with Subsection 17.35.020(F)." (Italics added.) Thus, Riddle contends section 17.60.060(E) should not be read as eliminating the section 17.35.020(F) notice obligation.
Again, we are not persuaded. Notwithstanding that recital, there is no language in the actual NBMC code sections, section 17.35.020(F) and 17.60.060(E), suggesting that section 17.35.020(F)'s notice requirements apply to commercial tidelands leases. To the contrary, section 17.60.060 expressly states commercial tidelands leases “are exempt from any provision requiring involvement of the owner or long-term lessee of an abutting upland property." (§ 17.60.060(E), italics added.)" 9
expressly states commercial tidelands leases “are exempt from any provision requiring involvement of the owner or long-term lessee of an abutting upland property." (§ 17.60.060(E), italics added.)" 9 9 As the trial court observed in its statement of decision: "The City's municipal code is not a model of clarity but read together these provisions seem to draw a distinction between residential piers and commercial piers with the former species alone requiring notice to abutting upland owners of the meeting where a new permit may issue regarding the encroachment. Commercial piers in contrast may be approved by the City Manager alone by permit or lease and do not require 'involvement' of the upland abutting land owner nor any sort of public ‘meeting' for which notice might be applicable.
Regardless there is no requirement that the city provide any notice before it approves a commercial pier lease in the tidelands.” (Original bold removed.)
16 Riddle contends constitutional due process principles required the City to provide her notice and an opportunity to object to the lease. But “only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements." (Horn v.
County of Ventura (1979) 24 Cal.3d 605, 612.) The City's issuance of the lease was legislative in nature. (See Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303 [“public entity's ‘award of a contract, and all of the acts leading up to the award, are legislative in character””].) It was thus not subject to due process principles.
Further, even if the issuance of the lease were adjudicatory rather than
d all of the acts leading up to the award, are legislative in character””].) It was thus not subject to due process principles.
Further, even if the issuance of the lease were adjudicatory rather than legislative, notice was not required here because, as we have already explained, the lease did not implicate a significant property right. (See Horn, supra, 24 Cal.3d at p. 616 ["constitutional notice and hearing requirements are triggered only by governmental action which results in ‘significant' or 'substantial' deprivations of property, not by agency decisions having only a de minimis effect on land”].) Even assuming that Riddle has littoral rights in the tidelands near her property, those rights are at best "qualified right[s,] at all times subordinate to the paramount right of the state” and its grantees.
(Fager, supra, 39 Cal.App.2d at p. 31, italics added.) For this reason, an “upland owner who does not own title to the submerged land or tide land in front of [her] property" cannot maintain a due process claim against the State or its grantee because her littoral rights, “under the law in this state, [are] subject to being terminated at will by any disposition which the state may choose to make of such submerged lands or tide lands."
(Ibid.)
We therefore conclude the City was not required to give formal notice to Riddle or conduct a public hearing before entering into the Vallely lease. Judgment for Defendants on Riddle's due process claim was proper.
17 5.
The Brown Act Claim Finally, we consider Riddle's fourth cause of action for violation of the Brown Act, which requires the “legislative body of a local agency" to conduct open and public meetings except as otherwise provided. (Govt. Code, § 54950 et seq.) Riddle
of action for violation of the Brown Act, which requires the “legislative body of a local agency" to conduct open and public meetings except as otherwise provided. (Govt. Code, § 54950 et seq.) Riddle sought a declaration that the City violated the Brown Act by not publicly reporting the issuance of the lease to Vallely or the City's settlement of Vallely's appeal concerning his permit transfer request. The trial court found no Brown Act violation. The parties agree that we review the ruling, which presents a pure question of law, de novo.
We can find no Brown Act violation. The City Council was not required to approve or discuss the City Manager's issuance of the lease at a public meeting. The solitary act of an individual public official—in this instance, the City Manager-is not an act by a legislative body subject to the Brown Act. (Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1514 ["it is collective decisionmaking by a legislative body, not the solitary decisionmaking of an individual public official, which is subject to the Brown Act"]; see Govt. Code, § 54952 [defining “legislative body"].)
Riddle asserts the Brown Act required the City Council to publicly report the issuance of the lease because it was issued in exchange for the dismissal of Vallely's appeal and thus amounted to a "Secret Settlement Agreement," which the City Council surreptitiously approved. But the trial court found “zero evidence that the City Council (in some secret meeting or otherwise serially) approved any sort of formal settlement with Vallely. Instead, the evidence demonstrated this ‘resolution' of the Vallely litigation was handled at the staff level—without the involvement of the Council."10 Riddle cites 10 As the trial court explained, “[t]he only City Council Meeting where the
resolution' of the Vallely litigation was handled at the staff level—without the involvement of the Council."10 Riddle cites 10 As the trial court explained, “[t]he only City Council Meeting where the Vallely permit-transfer litigation was discussed was on January 27, 2015 [when the litigation was still pending]. [Citation.] There was no evidence that any settlement was approved by the City at this meeting (or any meeting) and the City credibly denied ever reaching a ‘settlement' with Vallely. The lease agreement was negotiated after this closed session and not signed until 3/11/15. While the lease may have resolved the then 18 nothing in the record to undermine these findings. She asks us to infer from the “suspect" timing of the lease issuance and the dismissal that the City Council was involved in the settlement, asserting it is “axiomatic” that the City Council directed the city attorney to settle the Vallely litigation during a closed session. This is pure conjecture and runs contrary to the evidence cited by the trial court in its statement of decision.
Riddle also suggests the Brown Act requires all settlement agreements resolving city litigation to be reported in open sessions of the City Council. Not so. The Brown Act allows a local agency's legislative body to hold closed sessions to confer with legal counsel regarding pending litigation, provided the legislative body later publicly reports a settlement of the pending litigation after the settlement is final. (Govt. Code, §§ 54956.9, subd. (a)), 54957.1, subd. (a)(3).) But no such closed session occurred here, so no public reporting was required. Simply put, the fact that the lease mooted or resolved the Vallely appeal did not require the City Council to take up the resolution of
osed session occurred here, so no public reporting was required. Simply put, the fact that the lease mooted or resolved the Vallely appeal did not require the City Council to take up the resolution of the Vallely appeal during either an open session or closed session.
For these reasons, we conclude the trial court properly entered judgment for the City on Riddle's Brown Act cause of action.
pending litigation, as Vallely immediately dismissed his appeal upon receipt of the lease, this does not mean that the City Council authorized any ‘settlement' of the litigation."
The court also found "nothing sinister” in the settlement of Vallely's appeal. The court explained: "As Vallely testified, during the course of his litigation against the City he became aware that the City's rules and procedures for approving commercial piers had changed. Rather than continuing his unsuccessful fight with the City over an effort to compel a transfer of his parents' pier permit, he pursued the alternative of his own longterm lease. Contrary to Plaintiff's assertion, there was no evidence that the legislative amendments creating this opportunity had anything to do with ‘settling' with Vallely.
Instead, these changes were in the works even before Vallely filed his lawsuit and were implemented before any adverse judicial decision on his writ petition. A dismissal of his lawsuit naturally and understandably followed the approval of the lease.”
19 DISPOSITION The judgment is affirmed. Defendants shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
WE CONCUR: MOORE, ACTING P. J.
ARONSON, J.
GOETHALS, J.
20 20 1 Harry S. Carmack, State Bar No. 135569 Law Office of Harry S. Carmack 2 3 Telephone: Facsimile: 4 5 Attorney for: Defendant City of Newport Beach 6 7 8 9 10
TING P. J.
ARONSON, J.
GOETHALS, J.
20 20 1 Harry S. Carmack, State Bar No. 135569 Law Office of Harry S. Carmack 2 3 Telephone: Facsimile: 4 5 Attorney for: Defendant City of Newport Beach 6 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER 11 12 13 SUSAN [BIDART] RIDDLE, as Trustee of ) Case No. 30-2015-00808124-CU-WM-CJC the LEONARD A. BIDART FAMILY TRUST UNDER TRUST AGREEMENT DATED AUGUST 15, 2001, Petitioner/Plaintiff, CITY OF NEWPORT BEACH; JOHN VALLELY and DOES 1-50, 14 VS.
15 16 17 18 19 20 21 22 23 24 Respondents/Defendants.
Assigned For All Purposes To: Hon. Peter Wilson Department C15 DEFENDANT CITY OF NEWPORT BEACH'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; SEPARATE STATEMENT OF UNDISPUTED FACTS; DECLARATIONS OF HARRY S. CARMACK, JOHN VALLELY, CHRIS MILLER, AND LEILANI I. BROWN IN SUPPORT; REQUEST FOR JUDICIAL NOTICE; ) PROPOSED ORDER [Filed concurrently with City of Newport Beach's Motion for Summary Adjudication of Issues and John Vallely's Motion for Summary Judgment] Hearing Date: Time: Dept.: Reservation: August 16, 2018 2:00 p.m.
C15 72812069 25 26 27 22 28 Complaint Filed: September 4, 2015 Trial Date: November 5, 2018 1 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on August 16, 2018, at 2:00 p.m., or as soon thereafter as the 3 matter may be heard in Department C15 of the above-entitled court, located at 700 Civic Center Drive 4 West, Santa Ana, CA 92701, respondent/defendant City of Newport Beach (the “City”), will and hereby 5 does move the court pursuant to California Code of Civil Procedure section 437c for an order granting
t, Santa Ana, CA 92701, respondent/defendant City of Newport Beach (the “City”), will and hereby 5 does move the court pursuant to California Code of Civil Procedure section 437c for an order granting 6 Summary Judgment on petitioner/plaintiff Susan [Bidart] Riddle's ("Riddle's" or "Riddle") Third 7 Amended Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 22 23 24 24 25 25 26 26 Under C.C.P. §§ 526, 1085, 1086; and In the Alternative for Regulatory Taking (the "TAPC”), in favor of the City, and against Riddle.
The Motion for Summary Judgment is brought upon the following grounds: 1. Riddle's Fifth Cause of Action for inverse condemnation fails as a matter of law because Riddle has no damaged or taken property interest or property right in the leasehold estate leased to Vallely by the City as the leasehold estate is comprised exclusively of tidelands held in trust and managed by the City pursuant to a legislative grant from the State of California.
2. The Court lacks jurisdiction over the Fifth Cause of Action for Inverse Condemnation because Riddle failed to exhaust her administrative remedies under Newport Beach Municipal Code section 17.60.080 before seeking judicial relief.
3. Riddle failed to assert the Fifth Cause of Action for Inverse Condemnation within the time period set forth in the applicable statute of limitations.
4. The Court lacks jurisdiction over the Fourth Cause of Action for violation of the Brown Act because Riddle failed to exhaust the administrative remedies in Government Code Sections 54960.1 and/or 54960.2 of the Brown Act before seeking judicial relief.
5. Riddle lacks standing to sue on the First, Second, and Third Causes of Action of the TAPC
emedies in Government Code Sections 54960.1 and/or 54960.2 of the Brown Act before seeking judicial relief.
5. Riddle lacks standing to sue on the First, Second, and Third Causes of Action of the TAPC because she is not the real party in interest with respect to the claims sued upon.
6. The Court lacks jurisdiction over the First, Second, and Third Causes of Action of the TAPC because Riddle failed to exhaust the administrative remedies available to her under Newport Beach Municipal Code section 17.60.080 before seeking judicial relief.
27 28 /// 2 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 7. The Court lacks jurisdiction over the First, Second, Third and Fourth Causes of Action of the 2 TAPC because Riddle failed to present a claim to the City pursuant to the Government Claims Act.
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 21 22 22 23 (Calif. Govt. Code §§ 900, et seq.)
8. The Court lacks jurisdiction to hear the Second Cause of Action of the TAPC because Riddle has not complied with the California Rules of Court. (Calif. Rules of Court, rule 3.1103.)
9. The City has complete defenses to First, Second, Third, Fourth and Fifth Causes of Action of the TAPC.
10. Riddle cannot establish at least one of the necessary elements of each of the claims of the First, Second, Third, Fourth and Fifth Causes of Action of the TAPC.
The City respectfully submits that it is entitled to an order granting summary judgment as a matter of law, since (1) it is undisputed Riddle cannot establish a property interest or property right in the leasehold estate (i.e. tidelands held in trust by the City through a legislative grant from the State of
since (1) it is undisputed Riddle cannot establish a property interest or property right in the leasehold estate (i.e. tidelands held in trust by the City through a legislative grant from the State of California); (2) there are no triable issues of fact as to the lack of the Court's jurisdiction; (3) there are no triable issues of fact as to Riddle's lack of standing; (4) there are complete defenses to each cause of action; and (5) Riddle cannot establish each element of her causes of action, one reason being that many of her factual allegations are indisputably false.
This Motion for Summary Judgment is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities in support filed herewith; the Declarations of Harry S. Carmack, John Vallely, Chris Miller and Leilani I. Brown, and all exhibits attached thereto, filed herewith; the Separate Statement of Undisputed Material Facts filed herewith; the Request for Judicial Notice made pursuant to California Evidence Code sections 451 and 452 filed herewith; the records and files of the Court in this action; and such further evidence and argument as may be presented prior to or at the time of hearing on the motion.
24 25 Dated: May 25, 2018 26 26 27 /Harry S. Carmack/ HARRY S. CARMACK Attorney for Respondent/Defendant City of Newport Beach 28 3 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 TABLE OF CONTENTS 2 3 TABLE OF CONTENTS Page: i.
4 TABLE OF AUTHORITIES iii.
5 MEMORNADUM OF POINTS AND AUTHORITIES IN SUPPORT OF CITY OF NEWPORT BEACH'S MOTION FOR SUMMARY JUDGMENT.
1 6 7 I. INTRODUCTION.
1 8 II. THE CITY MAY MOVE FOR SUMMARY JUDGMENT.
3 9 10 A. Summary Judgment.
B. The Purpose Of Summary Judgment.
11 HII. RIDDLE'S FIFTH CAUSE OF ACTION FOR INVERSE
MARY JUDGMENT.
1 6 7 I. INTRODUCTION.
1 8 II. THE CITY MAY MOVE FOR SUMMARY JUDGMENT.
3 9 10 A. Summary Judgment.
B. The Purpose Of Summary Judgment.
11 HII. RIDDLE'S FIFTH CAUSE OF ACTION FOR INVERSE CONDEMNATION FAILS AS A MATTER OF LAW.
12 13 33 3 4 14 A. Riddle Has No Property Right In The Leasehold Premises, Which Are Exclusively Tidelands Held In Trust By The City Pursuant To A Legislative Grant From The State Of California.
4 15 1. Statement of Facts.
4 16 2. No Real Property Interest of Riddle was Taken or Damaged.
4 17 5 18 19 20 20 223 21 22 23 24 25 26 3. Riddle is not a Littoral Property Owner.
4. Any Right of Riddle to Access the Tidelands is Subservient to the City's Superior Right to Administer the Tidelands.
B. The Court Lacks Jurisdiction Over The Inverse Condemnation Cause of Action Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To NBMC Section 17.60.080.
1. Statement of Facts.
2. Riddle Failed to Exhaust Her Administrative Remedies.
C. Riddle Failed To Allege The Fifth Cause Of Action For Inverse Condemnation Within The Time Required By The Applicable Statute Of Limitations.
1. Statement of Facts.
27 28 2. Riddle's Inverse Condemnation Claim is Untimely and Barred by the Statute of Limitations, which is Three Years (Damages) or Five Years (Taking).
i Table of Contents 6 8 8 9 12 12 12 1 TABLE OF CONTENTS (cont.)
2 Page: 3 D. Conclusion.
13 4 IV.
RIDDLE'S FOURTH CAUSE OF ACTION FOR VIOLATION OF THE BROWN ACT FAILS AS A MATTER OF LAW.
14 10 5 9 7 8 9 10 11 12 12 13 V.
14 A. The Court Lacks Jurisdiction Over The Fourth Cause Of Action For Violation Of The Brown Act Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To Government Code Sections 54960.1 And 54960.2.
Lacks Jurisdiction Over The Fourth Cause Of Action For Violation Of The Brown Act Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To Government Code Sections 54960.1 And 54960.2.
1. Riddle Failed to Exhaust the Administrative Remedies Set Forth In the Brown Act.
14 2. The City Did Not Violate the Brown Act.
B. Conclusion.
RIDDLE'S FIRST, SECOND AND THIRD CAUSES OF ACTION FAIL AS A MATTER OF LAW AND RIDDLE IS LEGALLY BARRED FROM SEEKING DAMAGES.
14 15 17 17 15 16 A. Because Riddle Has No Rights Or Duties Under The Vallely Lease, She Is Not Entitled To Declaratory Relif Or The Issuance Of A Writ Of Mandate, And Her Due Process Rights Have Not Been Violated.
17 17 18 1. Declaratory Relief.
2. Writ of Mandate.
17 18 19 3. Due Process.
18 20 20 B. Riddle Failed To Exhaust Her Administrative Remedies Under NBMC Section 17.60.080.
19 21 22 22 23 224 VI.
25 C. Riddle Did Not File A Claim For Damages As Required By The Government Claims Act.
CONCLUSION.
DECLARATION OF HARRY S. CARMACK 26 DECLARATION OF JOHN VALLELY 27 DECLARATION OF CHRIS MILLER 28 DECLARATION OF LEILANI I. BROWN ii Table of Contents 20 20 20 1 369 1 2 Cases: 3 Aguilar v. Atlantic Richfield Co.
TABLE OF AUTHORITIES Page: 4 (2001) 25 Cal.4th 826 5 Anderson v. Metalclad Insulation Corp.
(1999) 72 Cal.App.4th 284 3 6 3 7 Baker v. Burbank-Glendale-Pasadena Airport Auth.
8 (1985) 39 Cal.3d 862 12 9 Beaty v. Imperial Irrigation Dist.
10 (1986) 186 Cal.App.3d 897 5 11 Beck Development Co., Inc. v. Southern Pacific Transportation Co.
12 (1996) 44 Cal.App.4th 1160 13 13 Bleeck v. State Bd. Of Optometry 14 (1971) 18 Cal.App.3d 415 9 15 Boorstein v. CBS Interactive, Inc.
16 (2013) 222 Cal.App.4th 456 17 Bostrom v. County of San Bernardino 17 18 19 20 20 (1995) 35 Cal.App.4th 1654
tate Bd. Of Optometry 14 (1971) 18 Cal.App.3d 415 9 15 Boorstein v. CBS Interactive, Inc.
16 (2013) 222 Cal.App.4th 456 17 Bostrom v. County of San Bernardino 17 18 19 20 20 (1995) 35 Cal.App.4th 1654 Carsten v. Psychology Examining Com.
(1980) 27 Cal.3d 793 City of Newport Beach v. Fager, et al.
(1940) 39 Cal.App.2d 23 21 22 23 City of Oakland v. Buteau, et al.
24 24 3 17,18 6,7 6 25 25 26 26 27 (1934) 219 Cal. 745 City of Oakland v. E.K. Wood Lumber Co.
(1930) 211 Cal. 16 City of Stockton, et al. v. Sup. Ct.
28 (2007) 42 Cal.4th 730 iii Table of Contents 7 20 20 TABLE OF AUTHORITIES (cont.)
Page: 1 2 Cases: 3 County of Lake v. Smith 4 (1991) 228 Cal.App.3d 214 5 6 7 Henry Dalton & Sons Co, v. City of Oakland (1914) 168 Cal. 463 Horn v. County of Ventura 5 6 8 (1979) 24 Cal.3d 605, 612.)
19 9 Koyer v. Miner 10 (1916) 172 Cal. 448 7 11 Lewis v. Sup. Ct.
12 (1937) 21 Cal.App.2d 340 9 13 |Lopez v. Civil Service Comm'n of City & County of San Francisco 14 (1991) 232 Cal.App.3d 307 9 15 Lyles, et al. v. State of California, et al.
16 (2007) 153 Cal.App.4th 281 13 17 18 19 20 20 21 Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294 Miramar Co. v. City of Santa Barbara (1943) 23 Cal.2d 170 Pacific Coast S. S. Co. v. Kimball (1896) 114 Cal. 414 22 23 People v. Monstad 24 (1930) 209 Cal. 658 25 R.R. Hensler v. City of Glendale 26 46 27 27 28 = | /// (1994) 8. Cal.4th 1 iv Table of Contents 10,11 8 7 7 10,11 1 TABLE OF AUTHORITIES (cont.)
2 Cases: Page: 3 Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeal Board 4 (1973) 8 Cal.3d 792 5 San Diego Gas & Electric Co. v. Superior Court 6 (1996) 13 Cal.4th 893 7 State of California v. Sup. Ct. (Bodde) 8 (2004) 32 Cal.4th 1234, at 1239 9 Wilkinson v. Norcal Mutual Ins. Co.
(1979) 98 Cal.App.3d 307 10
s & Electric Co. v. Superior Court 6 (1996) 13 Cal.4th 893 7 State of California v. Sup. Ct. (Bodde) 8 (2004) 32 Cal.4th 1234, at 1239 9 Wilkinson v. Norcal Mutual Ins. Co.
(1979) 98 Cal.App.3d 307 10 11 12 Statutes: 13 California Civil Code, section 830 14 California Code of Civil Procedure, section 312 15 California Code of Civil Procedure, section 367 16 California Code of Civil Procedure, section 437c 9 5 20 9 Page: 5 13 17 California Code of Civil Procedure, section 1060 18 California Code of Civil Procedure, section 1061 17 53⑉5 17 17 19 California Code of Civil Procedure, section 1086 18 20 California Rules of Court, rule 3.1100, et seq.
18 21 California Rules of Court, rule 3.1300 18 22 Chapter 17 of the State of California Statutes of 1997 4,5,6,10,19 23 California Government Code, section 905 20 24 California Government Code, section 911.2 25 California Government Code, section 915 222 26 California Government Code, section 54957.1 27 California Government Code, section 54960.1 28 California Government Code, section 54960.2 20 20 16,17 14,15 14,15 V Table of Contents 1 TABLE OF AUTHORITIES (cont.)
2 City of Newport Beach Authorities: 3 Newport Beach City Council Ordinance No. 2013-27 4 5 6 7 8 Newport Beach City Council Resolution No. 2012-91 Newport Beach City Council Resolution No. 2012-97 Newport Beach Municipal Code, section 17.05.090 Newport Beach Municipal Code, section 17.35.020 Newport Beach Municipal Code, section 17.35.060 9 Newport Beach Municipal Code, section 17.60.060 10 Newport Beach Municipal Code, section 17.60.080 11 Newport Beach Municipal Code, section 17.65.050 Page: 5 11 11 7 11 11 10,11,16 9,10,11,12,19 8 7 12 Newport Beach Municipal Code, section 21.48.035 13 14 Other Authorities: Page: 15
ction 17.60.080 11 Newport Beach Municipal Code, section 17.65.050 Page: 5 11 11 7 11 11 10,11,16 9,10,11,12,19 8 7 12 Newport Beach Municipal Code, section 21.48.035 13 14 Other Authorities: Page: 15 Asimov, Strumwasser, Bolz and Tuleja, Administrative Law, Calif. Practice Guide, 9 16 (The Rutter Group 2018) 17 Schwing, California Affirmative Defenses, (2010 Ed.)
9 18 Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2017 Update) 3,4 19 20 20 221 22 22 23 24 24 25 26 25 26 27 27 28 vi Table of Contents 2 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CITY OF NEWPORT 3 I.
4 10 5 6 7 8 9 10 11 12 13 14 15 16 BEACH'S MOTION FOR SUMMARY JUDGMENT.
INTRODUCTION.
Petitioner/plaintiff Susan [Bidart] Riddle's ("Riddle") First, Second, Third, Fourth, and Fifth Causes of Action each fail as a matter of law and as shown below the City of Newport Beach's (“City”) motion for summary judgment should be granted. Since 1939, John Vallely and his family have owned and operated a private commercial marina (“Vallely Marina”) bayward of the Vallely home located at 508 S. Bay Front Avenue, Balboa Island, City of Newport Beach ("Vallely Property"). The Vallely | Marina was constructed and permitted by the U.S. Army Corps of Engineers, and subsequently permitted by the City. The Vallely Marina exists exclusively on tidelands owned by the State of California and held in trust by the City pursuant to a State legislative grant, and is operated under a lease dated May 12, 2015 (“Vallely Lease”). The Vallely Marina operates commercially as Vallely Boat Rentals. (Separate Statement of Undisputed Material Facts “SSUMF” #'s 2, 14-18.)
The Vallely Marina and the Vallely Property are separated by S. Bay Front Avenue, which is
commercially as Vallely Boat Rentals. (Separate Statement of Undisputed Material Facts “SSUMF” #'s 2, 14-18.)
The Vallely Marina and the Vallely Property are separated by S. Bay Front Avenue, which is public right-of-way owned by the City. The Vallely Lease is expressly allowed by the State legislative grant to the City and is consistent with the Newport Beach Municipal Code (“NBMC”) requirements enacted in furtherance thereof; namely, that in the event tidelands are used by an entity other than the City, that entity shall enter into a lease or permit with the City. (SSUMF #'s 4-7, 8-11, 21-27, 40.)
Riddle owns the property at 510 and 510 ½ S. Bay Front Avenue (“Riddle Property”), which is 20 adjacent to the Vallely Property. The Riddle Property and the tidelands of Newport Bay are separated 17 18 19 21 22 23 24 24 25 by S. Bay Front Avenue, which is public right-of-way owned by the City. Riddle acquired the Riddle Property in 1993. The configuration of the pier, dock and floats that comprise the Vallely Marina has not changed in 79 years, which includes the entire time period Riddle has owned the Riddle Property.
(SSUMF #'s 1, 3, 4-7, 17, 29.)
Riddle filed the Third Amended Verified Petition and Complaint ("TAPC") on September 12, 26 2017, amending for the third time her original complaint filed on September 4, 2015. Riddle's TAPC is 27 28 comprised of five causes of action against the City, with three jointly against Vallely. The TAPC seeks to invalidate the Vallely Lease (declaratory relief), challenges the procedure allowing for the execution 1 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 24 25 26 27 28
the procedure allowing for the execution 1 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 24 25 26 27 28 of the Vallely Lease (under the City Charter and City Council resolutions, due process, and the Brown Act), and claims the Vallely Lease constitutes inverse condemnation as a taking of a property interest of Riddle for which just compensation is owed. The TAPC seeks compensatory damages on all causes of action.
This motion will discuss numerous grounds for granting summary judgment. First, Riddle has no property right in the tidelands occupied by the Vallely Marina. City right-of-way separates the Riddle Property from the tidelands, and Riddle is not a party to, or beneficiary of, the Vallely Lease. As a result, Riddle neither has a contractual interest in the tidelands or a right therein as a littoral property owner. Importantly, the City has the statutory authority from the State of California to execute the Vallely Lease, and any interest of Riddle in the tidelands is subservient to the City's statutory right to manage the tidelands. Thus, execution of the Vallely Lease is not inverse condemnation because no property right of Riddle has been taken or damaged. In any event, Riddle failed to exhaust her administrative remedies on her inverse condemnation cause of action and is barred by the statute of limitations from bringing the inverse condemnation cause of action.
Riddle failed to exhaust her administrative remedies on all other causes of action. As to the Vallely Lease, the NBMC requires that Riddle file an administrative appeal challenging the execution of the Vallely Lease prior to filing this lawsuit. Riddle failed to file an administrative appeal of any City
ase, the NBMC requires that Riddle file an administrative appeal challenging the execution of the Vallely Lease prior to filing this lawsuit. Riddle failed to file an administrative appeal of any City actions, and does not allege otherwise. Similarly, Riddle alleges the City violated the Brown Act, but she did not exhaust her administrative remedies under the Brown Act (through a written demand to cure and correct the action delivered to the City Council or a cease and desist letter to the City Clerk) prior to filing this lawsuit.
No actual controversy exists regarding the Vallely Lease, and Riddle lacks standing to challenge the Vallely Lease because she has no beneficial interest in the tidelands or the Vallely Lease. The City's legislative actions allowing for the leasing of tidelands do not trigger Riddle's due process rights.
Finally, Riddle is not entitled to the compensatory damages she seeks for each cause of action in the TAPC because she failed to file a claim with the City as required by the Government Claims Act.
Riddle is not legally entitled to any of the relief she seeks under the TAPC. Summary judgment is the appropriate vehicle to put a stop to this action. The Court may take judicial notice of the Vallely 2 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 Lease (an exhibit to the TAPC) and the statutes, codes, ordinances and resolutions that contradict the TAPC.
A.
II. THE CITY MAY MOVE FOR SUMMARY JUDGMENT.
Summary Judgment.
A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
7 8
otion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
7 8 (Calif. Code Civ. Proc. § 437c(c).) There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in 9 accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Code of Civil Procedure section 437c provides: 10 11 12 13 14 15 16 "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Calif. Code Civ. Proc. § 437c(p)(2).)
To show a complete defense, a defendant must present admissible evidence of each essential 17 18 element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad 19 Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) A defendant moving for summary judgment need 20
18 element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad 19 Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) A defendant moving for summary judgment need 20 address only the issues raised by the complaint; summary judgment cannot be denied on grounds not raised by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 166322 1664.)
21 23 B.
24 24 The Purpose Of Summary Judgment.
Summary judgment motions enable a court to determine that the opposing party's pleadings lack 25 evidentiary support and limit or terminate the action. (Weil & Brown, Civ. Pro. Before Trial (The Rutter| 26 Group 2017 Update), Chapter 10 Summary Judgment and Summary Adjudication, § 10.1, citing 27 (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 843.) The summary judgment procedure 28 enables the court to look behind the pleadings to determine whether the party against whom the motion 3 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 is directed has evidence to back up the claims pleaded. (emphasis original.) (Weil & Brown, supra, at § 2 10.1.)
3 III.
4 A.
5 6 7 8 9 10 RIDDLE'S FIFTH CAUSE OF ACTION FOR INVERSE CONDEMNATION FAILS AS A MATTER OF LAW.
Riddle Has No Property Right In The Leasehold Premises, Which Are Exclusively Tidelands Held In Trust By The City Pursuant To A Legislative Grant From The State Of California.
Underlying Riddle's cause of action for inverse condemnation is the false premise that Riddle has a property interest or property right in the “Premises” described by the Vallely Lease.
1. Statement of Facts.
The Vallely Lease is a lease exclusively of tidelands held in trust by the City pursuant to a
operty interest or property right in the “Premises” described by the Vallely Lease.
1. Statement of Facts.
The Vallely Lease is a lease exclusively of tidelands held in trust by the City pursuant to a 11 legislative grant from the State of California found at Chapter 74 of the Statutes of 1978, as amended 12 13 14 ("Beacon Bay Bill”). (TAPC, Exh. 1, Exhs. F & G; SSUMF #'s 8-11, 22-27.) Pursuant to the Beacon Bay Bill, the City is granted and holds in trust, all right, title and interest to the tidelands and submerged lands, whether filled or unfilled, bordering upon or under the Pacific Ocean or Newport Bay. (SSUMF #'s 8-11.) The leasehold "Premises” is exclusively on tidelands. (SSUMF #'s 22-27). The Vallely Lease defines the "Tidelands" as those lands granted to the City by the State of California, including 17 submerged lands (whether filled or unfilled). (TAPC, Exh. 1, Exh. A, p. 2.)
15 16 18 The Riddle Property adjoins S. Bay Front Avenue, which separates the Riddle Property and the 19 tidelands. S. Bay Front Avenue adjoins the tidelands of Newport Bay at the bulkhead that defines the line of high tide. (SSUMF #'s 4-7; RJN, Exh. C.) S. Bay Front Avenue is City right-of-way. (RJN, Exh.
21 D.) Thus, it is City right-of-way that is abutting the tidelands, not Riddle's property.
20 20 22 22 23 24 24 25 26 27 2. No Real Property Interest of Riddle was Taken or Damaged.
To succeed on an inverse condemnation case, Riddle must allege and prove that (i) she had an interest in certain real property, (ii) the City was engaged in some activity for public use or benefit, (iii) her real property was taken or damaged, suffering diminution in value, and (iv) the City's activity was
rtain real property, (ii) the City was engaged in some activity for public use or benefit, (iii) her real property was taken or damaged, suffering diminution in value, and (iv) the City's activity was | the proximate cause of the physical damage or taking. The property owner must first clear the hurdle of establishing that the public entity has, in fact, taken [or damaged] his or her property before he or she 28 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 can reach the issue of just compensation. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 2 Cal.4th 893, 939-940.) (citing Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 903.)
3 4 Riddle has no property interest or rights in the leasehold estate, i.e., the Premises, conveyed by the Vallely Lease. The Premises are exclusively tidelands. (TAPC, Exh. 1, at Exh. A, p. 2; SSUMF #'s 5 22-27.) The Beacon Bay Bill provides that the City of Newport Beach hold title to the tidelands and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 21 22 23 24 24 25 26 26 24 27 28 submerged lands in Newport Harbor in trust. (SSUMF # 8, RJN, Exh. E.) The Beacon Bay Bill explains: "There is hereby granted to the City of Newport Beach and its successors all of the right, title, and interest of the State of California held by the state by virtue of its sovereignty in and to all that portion of the tidelands and submerged lands, whether filled or unfilled, bordering upon and under the Pacific Ocean or Newport Bay in the County of Orange, which were within the corporate limits of the City of Newport Beach, a municipal corporation, on July 25, 1919; the same to be forever held by the city and its successors
Bay in the County of Orange, which were within the corporate limits of the City of Newport Beach, a municipal corporation, on July 25, 1919; the same to be forever held by the city and its successors in trust for the uses and purposes and upon the following express conditions ……..” (RJN, Exh. B, Beacon Bay Bill, §*1.)
" Riddle fails to identify what “Private Property" rights, vested or otherwise, she claims have been taken and damaged by the NBMC or the Vallely Lease (TAPC, p. 19, lns. 1-3, ¶ 93). The complained of NBMC provision is identified as the Newport Beach City Council's adoption of Ordinance No. 2013-27 on December 10, 2013, whereby the City Council enacted legislation clarifying existing NBMC language requiring the issuance of new permits to pier permittees upon the death of a permittee or transfer of ownership of the permittee's real property. (Id., at p. 17, Ins. 12-13.)
3. Riddle is not a Littoral Property Owner.
"Littoral rights" concern lands abutting static water like an ocean, bay, sea or lake, rather than a flowing river or stream (riparian). (See, e.g., County of Lake v. Smith (1991) 228 Cal.App.3d 214, 219.)
Riddle claims "...the littoral owners nonetheless have a property right in their continued access to the adjacent waters." (TAPC, p. 11, Ins. 10-11, ¶43.) However, the Riddle Property does not border or adjoin the tidelands and Riddle is therefore not a littoral property owner with littoral rights. The Court may take judicial notice of the certified tract map of Balboa Island. (RJN, Exh. C.) S. Bay Front Avenue separates the Riddle Property and Newport Bay, and is City owned right-of-way. S. Bay Front Avenue adjoins the tidelands at the bulkhead. (SSUMF #'s 4-7; RJN, Exh. C.)
JN, Exh. C.) S. Bay Front Avenue separates the Riddle Property and Newport Bay, and is City owned right-of-way. S. Bay Front Avenue adjoins the tidelands at the bulkhead. (SSUMF #'s 4-7; RJN, Exh. C.)
California Civil Code section 830 confirms, "[e]xcept where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide water, takes to ordinary 5 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 high-water mark..." Here, the Riddle Property does not abut the tidelands as it is separated from the 2 tidelands by S. Bay Front Avenue. Further, even if Riddle were a littoral owner of property abutting the 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 14 25 26 26 27 28 tidelands, which she is not, her rights are subservient to the rights granted to the City through the Beacon Bay Bill, as expressly stated in the text of the Beacon Bay Bill itself. (RJN, Exh. E.)
4. Any Right of Riddle to Access the Tidelands is Subservient to the City's Superior Right to Administer the Tidelands.
Riddle, even if she were a littoral property owner, does not have a property right against the City or Vallely in the continued access to adjacent waters. The correct rule is stated as follows: "We are satisfied that the correct rule is that the littoral owner of uplands upon a navigable bay has no right of access to the waters of the bay over intervening tidelands, whether filled or unfilled, which have been granted by the state to a city in trust for the purpose of improving such navigable bay in furtherance of commerce and navigation. [] Although it is true that as against a stranger a littoral owner of upland bordering upon navigable waters may not be deprived of his right of
avigable bay in furtherance of commerce and navigation. [] Although it is true that as against a stranger a littoral owner of upland bordering upon navigable waters may not be deprived of his right of access to such waters, no such right exists in favor of such littoral owner as against the state or its grantee in the exercise of a lawful use or purpose. (City of Newport Beach v.
Fager, et al. (1940) 39 Cal.App.2d 23, 28) (citations omitted) (see also Henry Dalton & Sons Co, v. City of Oakland (1914) 168 Cal. 463, 467-468; City of Oakland v. Buteau, et al. (1934) 219 Cal. 745, 754 ["[T]he littoral owner of land on a navigable bay has no right of access to deep water over intervening tide lands which the state has granted to a city in trust for the purpose of improving its harbor in aid of commerce and navigation."]" [citation omitted].) (emphasis added.)
This "correct rule” stated in Fager, i.e., that a littoral owner has no right of access against the state or its grantee in the exercise of a lawful use or purpose, applies to Riddle's alleged right of access.
While it is true the lease of a private commercial dock is not a public landfill project as in Fager, or a public sea wall project as in Henry Dalton, the Vallely Lease is nonetheless authorized by the Beacon Bay Bill. (RJN, Exh. E.)
The Beacon Bay Bill specifically provides for the construction, maintenance and operation of docks, piers and slips necessary or convenient for the promotion or accommodation of navigation and commerce. (RJN, Exh. E, Beacon Bay Bill § 1(a)(1).) The Beacon Bay Bill specifically provides that the City may lease the tidelands, or any part thereof, for terms not exceeding 50 years for purposes
commerce. (RJN, Exh. E, Beacon Bay Bill § 1(a)(1).) The Beacon Bay Bill specifically provides that the City may lease the tidelands, or any part thereof, for terms not exceeding 50 years for purposes consistent with the trust upon which the lands are held by the state and with the uses specified in the Beacon Bay Bill. (Id., Beacon Bay Bill § 1(b).) The Beacon Bay Bill does not limit the City's ability to lease tidelands to only public projects for purposes of general navigation and commercial.
Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 The California Supreme Court has long held that cities may lease tidelands to private individuals for public purposes. (Pacific Coast S. S. Co. v. Kimball (1896) 114 Cal. 414, 416 (lease of waterfront to 3 railroad for erection and use of private wharf); Koyer v. Miner (1916) 172 Cal. 448, 452-453 (franchise 4 granted to operate a private electric railroad over adjoining tideland); City of Oakland v. E.K. Wood 10 5 6 7 Lumber Co. (1930) 211 Cal. 16, 23 (lease to private lumber company for landing and wharf); People v.
Monstad (1930) 209 Cal. 658, 662 (lease of tidelands and submerged lands for construction, maintenance and operation of a private wharf) ["The law is well settled that the power to lease, which 8 exists by virtue of the above statutes, includes the power to lease to an individual, firm, or corporation for the purpose of erecting a private wharf or pier."].)
9 10 11 12 13 14 15 16 17 18 Fager further holds that any right of access claimed by Riddle is terminated by the Vallely Lease: “the littoral rights of an upland owner who does not own title to the submerged land or tideland in front of his property are, under the law in this state, subject to being terminated at will by any
: “the littoral rights of an upland owner who does not own title to the submerged land or tideland in front of his property are, under the law in this state, subject to being terminated at will by any disposition which the state may choose to make of such submerged or tidelands.” (Fager, supra, 39 Cal.App.2d 23 at 31) (citations omitted.)) The Vallely Lease provides that the Premises will be used solely and exclusively for the operation of a marina or boat berthing facility and associated ancillary uses. (TAPC, Exh. 1, p. 4, ¶6.)
The lease of tidelands for the purpose of a private commercial marina is a lawful purpose benefiting commerce and navigation consistent with the specifically enumerated purposes set forth in the Beacon Bay Bill. The Vallely Marina provides boat owners and their guests access to Newport Bay, and thereby 20 promotes navigation and commerce within Newport Harbor.
19 21 22 224 23 24 25 25 26 26 27 The Vallely Marina is consistent with the NBMC. NBMC Section 21.48.035(B)(4) provides: "B. Where applicable, development in Newport Harbor shall: 4. Protect, and where feasible, enhance and expand marinas and dry boat storage facilities.” (RJN, Exh. S.)
Further, NBMC Sections 17.05.090(C)(4) & (6), Local Coastal Programs, states: "C. Where applicable, development in Newport Harbor shall: ...4. Protect, and where feasible, enhance and expand marinas and dry dock facilities...6. Protect, and where feasible, enhance and expand dinghy docks, guest docks at public facilities, yacht clubs and at privately owned marinas, restaurants and other appropriate locations.” (RJN, Exh.
G.)
28 Ill 7 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 The Supreme Court of California has held “[t]he right of the public to use navigable
ocations.” (RJN, Exh.
G.)
28 Ill 7 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 The Supreme Court of California has held “[t]he right of the public to use navigable 2 waters, however, is not limited to any particular type of craft. Pleasure yachts and fishing 3 4 5 boats are used for navigation and the state, or city as its representative, can provide harborage for them as well as for merchant vessels and steamers." (Miramar Co. v. City of Santa Barbara (1943) 23 Cal.2d 170, 175.)
6 B.
7 8 10 11 12 13 14 15 16 17 18 1192 20 20 12 21 22 22 25 23 24 25 25 26 26 27 28 The Court Lacks Jurisdiction Over The Inverse Condemnation Cause Of Action Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To NBMC Section 17.60.080.
1. Statement of Facts.
The Fifth Cause of Action in the TAPC alleges that execution of the Vallely Lease resulted in a taking or damage to Riddle private property rights for which she is owed just compensation. (TAPC, p.
18, Ins. 23-27, p. 19, ln. 16.) However, the Vallely Lease's “Premises” is entirely tidelands, held by the City in trust. (SSUMF #'s 8, 22-27; TAPC, Exh. 1, Exhs. F & G.) The Beacon Bay Bill provides for leases of tidelands by the City for a period not to exceed fifty years. (SSUMF # 11, RJN, Exh. E.) As discussed above, the Vallely Lease is for uses statutorily authorized by the Beacon Bay Bill and NBMC, which include the lease of tidelands for uses such as the Vallely Marina. (See, Division III, Section A, supra.)
The Vallely Lease was executed as of March 12, 2015. (TAPC, Exh. 1; SSUMF #21.) Riddle knew of the execution of the Vallely Lease at least by September 4, 2015 - the day Riddle filed this lawsuit. (SSUMF # 49.)
y Lease was executed as of March 12, 2015. (TAPC, Exh. 1; SSUMF #21.) Riddle knew of the execution of the Vallely Lease at least by September 4, 2015 - the day Riddle filed this lawsuit. (SSUMF # 49.)
The Vallely Lease is a public record posted on the City's website with the City's other public agreements. (SSUMF #61.) Riddle was provided a copy of the Vallely Lease by the City on November 10, 2015, in response to a request by Riddle under the Public Records Act. (SSUMF #'s 77-78.)
NBMC Title 17, Harbor Code, applies to Newport Harbor and all tidelands under the jurisdiction of the City. It sets forth the administrative processes for appeal of City decisions regarding Newport Harbor, including decisions pertaining to permits and leases. Specifically, NBMC section 17.65.050, Judicial Review of a City Decision, requires the exhaustion of all administrative appeals before judicial review. (RJN, Exh. CC.) NBMC section 17.60.080, Appeals, sets forth the administrative appeal 8 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 process involving any permit or lease for lands in Newport Harbor held in trust by the City. (SSUMF #'s 2 |41-42; RJN, Exh. P.) An appeal under NBMC section 17.60.080 must be initiated within twenty-one 3 (21) days of the decision under appeal by submitting a written appeal to the City's Harbor Resources 4 Manager and paying any applicable fee. (Id., # 42; RJN, Exh. P.) Riddle did not file an appeal, of the 5 issuance of the Vallely Lease or otherwise, which must be done to exhaust her administrative remedies.
6 (SSUMF #43.)
7 8 9 10 11 12 13 14 2. Riddle Failed to Exhaust Her Administrative Remedies.
If an administrative remedy is provided by statute, relief must be sought from the administrative
remedies.
6 (SSUMF #43.)
7 8 9 10 11 12 13 14 2. Riddle Failed to Exhaust Her Administrative Remedies.
If an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy exhausted before judicial relief for that remedy is available. (Schwing, California Affirmative Defenses, (2010 Ed.), Chapter 16 Exhaustion of Administrative Remedies, §16.1, p. 1004, citing Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeal Board (1973), 8 Cal.3d 792, 794.)
An administrative claim or "cause of action" is within the special jurisdiction of the administrative agency, and courts may act only to review the final administrative decision. Allowing a suit prior to such final determination constitutes interference with the subject matter jurisdiction of another tribunal. Accordingly, exhaustion of an administrative remedy is a jurisdictional element in 17 California. (Schwing, supra, at § 16.1, p. 1006.)
15 16 18 19 20 20 21 Lack of jurisdiction of an action can be raised at any time, including appeal. (Lewis v. Sup. Ct.
(1937) 21 Cal.App.2d 340, 343.) It is a proper subject for summary judgment. (Wilkinson v. Norcal Mutual Ins. Co. (1979) 98 Cal.App.3d 307, 317-318.)
The exhaustion of remedies requirement applies to all forms of mandate, even if the petitioner challenges ministerial rather than quasi-judicial functions. (Asimow, Strumwasser, Bolz and Tuleja, 23 Administrative Law, Calif. Practice Guide, (The Rutter Group 2018), Chapter 15 Timing of Judicial 22 22 24 24 25 25 26 26 22 27 Review-When Judicial Review Is Premature, § 15:60, citing Lopez v. Civil Service Comm'n of City & County of San Francisco (1991) 232 Cal.App.3d 307, 314-315.) The exhaustion rule applies to actions
27 Review-When Judicial Review Is Premature, § 15:60, citing Lopez v. Civil Service Comm'n of City & County of San Francisco (1991) 232 Cal.App.3d 307, 314-315.) The exhaustion rule applies to actions for declaratory relief. (Id., Asimow, et al., Administrative Law, at §15:61, citing Bleeck v. State Bd. Of Optometry (1971) 18 Cal.App.3d 415, 432.)
28 /// 9 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 Riddle filed the TAPC on September 12, 2017, alleging the Vallely Lease was not issued pursuant to Title 17 of the NBMC, Harbor Code. (TAPC, p. 17, Ins. 26-28, 183.) The TAPC further 3 alleges that the enactment of an amendment to the Harbor Code on December 10, 2013 (presumably, 4 5 | NBMC section 17.60.060(E)), together with the issuance of the Vallely Lease, is a taking and damaging of her private property rights. (TAPC, p. 19, Ins. 1-3, 193.) Riddle has no property rights in the tidelands 6 of Newport Harbor; therefore, the enactment of NBMC section 17.60.060 and the issuance of the 7 8 10 Vallely Lease do not take or damage any property rights of Riddle. (See, Division III, Section A, supra.)
Nevertheless, the Court lacks jurisdiction to hear the Fifth Cause of Action because the 9 California Supreme Court has held that the doctrine of exhaustion of administrative remedies applies to 11 12 13 14 15 16 17 18 19 12 20 20 21 22 22 23 24 24 25 26 26 27 28 inverse condemnation actions, and Riddle did not file an administrative appeal, of the issuance of the Vallely Lease or otherwise, pursuant to NBMC section 17.60.080. (SSUMF # 43.)
The rule that applies to exhaustion of administrative remedies in inverse condemnation claims is set forth in the case of R. R. Hensler v. City of Glendale (1994) 8 Cal.4th 1.) R.R. Hensler upheld the
The rule that applies to exhaustion of administrative remedies in inverse condemnation claims is set forth in the case of R. R. Hensler v. City of Glendale (1994) 8 Cal.4th 1.) R.R. Hensler upheld the trial court's ruling sustaining a demurrer to the inverse condemnation claim because the plaintiff failed to first exhaust administrative remedies. R.R. Hensler states the rule as follows: "The impact of a law or regulation on the owner's right to use or develop the property cannot be assessed until an administrative agency applies the ordinance or regulation to the property and a final administrative decision has been reached with regard to the availability of a variance or other means by which to exempt property from the challenged restriction. A final administrative decision includes exhaustion of any available review mechanism.” (R. R. Hensler v. City of Glendale, supra, 8 Cal.4th 1, at 12.) (Emphasis added.)
The City's issuance of a lease of the tidelands is a legislative act: "A public entity's 'award of a contract, and all of the acts leading up to the award, are legislative in character.' ... Thus, both the award of the contracts and the decision to reject the protest should be considered legislative actions………….. [¶] [o]nce exercised, legislative discretion is, absent special circumstances, not subject to judicial control and supervision. [] Any decision made in the exercise of that [legislative] authority would involve the use of discretion. As a consequence, the steps to be undertaken, the method selected, and the decision reached in the course thereof, in the absence of fraudulent or arbitrary action, would not be interfered with by the courts. []" (Mike Moore's 24-Hour Towing v. City of San Diego, et al. (1996) 45 Cal.App.4th 1294, 1303-1305) (Internal
he absence of fraudulent or arbitrary action, would not be interfered with by the courts. []" (Mike Moore's 24-Hour Towing v. City of San Diego, et al. (1996) 45 Cal.App.4th 1294, 1303-1305) (Internal quotes and citations omitted.).)
In issuing a tidelands lease, the City applies the authority granted to the City pursuant to (1) the Beacon Bay Bill, i.e., as amended by Chapter 317 of the State of California Statutes 1997 (RJN, Exh.
10 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 E); (2) the provisions of the NBMC, Harbor Code, Chapter 17.60 Harbor Permits and Leases, section 2 17.60.060 Public Trust Lands, subsection 17.60.060(A) (RJN, Exh. O); (3) the provisions of Newport 3 Beach City Council Resolution No. 2012-91 (RJN, Exh. M), allowing marinas to operate on the 4 tidelands under either a permit or lease; and, (4) the provisions of City Council Resolution No. 2012-97 5 6 7 8 9 10 11 12 13 (RJN, Exh. N), authorizing the City Manager to exercise discretion and authorizing the City Manager to execute tidelands leases.
Riddle alleges the Vallely Lease violated the mandates set forth in these authorities.' (See TAPC, p. 18, Ins. 13-15.) Riddle alleges the Vallely Lease was not a lease issued under NBMC Chapter [sic] 17. (Id., at p. 18, Ins. 17-18.) Riddle alleges the enactment of a Harbor Code amendment, presumably NBMC section 17.60.060(E), contributed to the taking of her property. (Id., p. 19, Ins. 1-3.) The alleged inverse condemnation, therefore, is the letting of the Vallely Lease.
The enactment of the NBMC Title 17 Harbor Code; the implementation of NBMC Chapter 17.35| Harbor Development Regulations; the implementation of Chapter 17.60 Harbor Permits and Leases and
llely Lease.
The enactment of the NBMC Title 17 Harbor Code; the implementation of NBMC Chapter 17.35| Harbor Development Regulations; the implementation of Chapter 17.60 Harbor Permits and Leases and 14 section 17.60.060 Public Trust Lands; the implementation of NBMC section 17.60.060 under Newport 15 Beach City Council Resolution Nos. 2012-91 and 2012-97; and, the issuance of the Vallely Lease, are 16 legislative acts not subject to interference from the courts. (Mike Moore's 24-Hour Towing v. City of San Diego, et al., supra,) 45 Cal.App.4th 1294, at 1303-1305.)
17 18 19 20 20 21 22 22 23 Riddle's inverse condemnation action challenges these legislative acts without first obtaining a final administrative decision by filing an appeal pursuant to NBMC section 17.60.080. (SSUMF # 43.)
Riddle was required as a matter of law to exhaust any review mechanism prior to filing this lawsuit. (R.
R. Hensler v. City of Glendale, supra, 8 Cal.4th 1, at 12.)
Riddle is not exempt from the requirement that she exhaust her administrative remedies pursuant to California Government Code section 905.1, which exempts inverse condemnation actions from the 24 25 26 1 Although unclear from the TAPC, Riddle may also be challenging the enactment of NBMC section 17.35.060(A), Balboa Island-Noncommercial Piers, which prohibits the approval of noncommercial (residential) piers on Balboa Island unless determined to be in the public interest (RJN, Exh. T), and the enactment of NBMC section 17.35.020(B) Setbacks, which 27 allows piers and slips of commercial properties to extend beyond prolongation of the property line with the City's prior approval (RJN, Exh. R). The Vallely Lease does not violate either of these sections as the Riddle Property is residential, and
to extend beyond prolongation of the property line with the City's prior approval (RJN, Exh. R). The Vallely Lease does not violate either of these sections as the Riddle Property is residential, and the Vallely Property is commercial.
28 25 11 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 requirement to file a government claim. R.R. Hensler, an inverse condemnation case, holds otherwise.
The Government Claims Act is separate and distinct from the doctrine of exhaustion of administrative 3 remedies. Riddle did not exhaust her administrative remedies to challenge the issuance of the Vallely 4 Lease, as required by NBMC section 17.60.080.
5 C.
6 7 8 Riddle Failed To Allege The Fifth Cause Of Action For Inverse Condemnation Within The Time Required By The Applicable Statute of Limitations.
1. Statement of Facts.
The Vallely Marina was constructed pursuant to permits issued by the U.S. Army Corp of 9 Engineers and the City, and its location and configuration has remained unchanged since 1939. (SSUMF| 10 11 12 13 14 15 16 17 18 19 20 20 2 21 22 22 23 24 24 25 26 27 #'s 17-18.) Riddle purchased the Riddle Property in 1993, and the location and configuration of the Vallely Marina is the same today as when Riddle purchased the Riddle Property. (RJN, Exh. A; SSUMF #'s 1, 17.)
On August 11, 2004, Riddle's then attorney, Christopher K. Barnette, sent a letter to Vivian Vallely, John Vallely's mother, expressing concerns regarding the Vallely Marina ("Barnette Letter").
(Vallely Decl., p. 3, Ins. 11-14, Exh. H.) The Barnette Letter claimed the Vallely Marina extended well in front of the Riddle Property, violated numerous City policies, encroached into Riddle's sight lines,
y Decl., p. 3, Ins. 11-14, Exh. H.) The Barnette Letter claimed the Vallely Marina extended well in front of the Riddle Property, violated numerous City policies, encroached into Riddle's sight lines, and caused significant damage to the Riddle Property. (Id., Exh. H.) The Vallely Lease retains exactly the same location and configuration of the Vallely Marina as existed on the date of the Barnette letter.
(Decl. Vallely, p. 1, Ins. 9-11; SSUMF # 17.)
2. Riddle's Inverse Condemnation Claim is Untimely and Barred by the Statute of Limitations, which is Three Years (Damages) or Five Years (Taking).
California Code of Civil Procedure section 338(j) requires that an action for "physical damage to private property" under California Constitution Article 1, section 19, be brought within three years.
Section 338(j) addresses only "physical damage," and does not address "takings." An inverse condemnation based on a governmental agency's "taking" of private property must be brought within five years after the entity takes possession of the property. (Baker v. Burbank-Glendale-Pasadena | Airport Auth. (1985) 39 Cal.3d 862, 867.)
28 12 Memorandum of Points and Authorities in Support of Motion for Summary Judgment An inverse condemnation action accrues when the damage to the property occurs, or if not 2 immediate, when the damage manifests itself. (Lyles, et al. v. State of California, et al. (2007) 153 3 Cal.App.4th 281, 286.) The statute of limitations does not “reaccrue” or start anew every time the 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 ownership of a property changes hands. (Beck Development Co., Inc. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.) (Citation omitted.) California Code of Civil Procedure section 312 provides:
operty changes hands. (Beck Development Co., Inc. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.) (Citation omitted.) California Code of Civil Procedure section 312 provides: "Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation period is prescribed by statute." (Calif. Code Civ. Proc. § 312.)
Any alleged damage to or taking of the Riddle Property occurred in 1939. (SSUMF # 17; Vallely Decl., Exh. A.) The alleged injury and damage were immediate upon the completion of construction of the pier, dock and floats. Any claim for inverse condemnation belonged to the owner of the Riddle Property at that time. The time to commence an action for inverse condemnation expired in 1944.
Riddle did not acquire the benefit of a new statute of limitations when she purchased the Riddle Property, and even if she did, more than five years have elapsed since her purchase of the Riddle Property in 1993. It is undisputed Riddle was aware of the location and configuration of the Vallely Marina when she purchased the Riddle Property, and as of the Barnette letter from August 11, 2004.
The City denies Riddle has any property interest or right taken by the Vallely Lease. Even if it did, the Vallely Lease does not damage or take the Riddle Property in any manner different from any damage or taking that could have been alleged in 1939. The Vallely Lease does not change the location or configuration of the Vallely Marina, as it existed when constructed in 1939, as it existed when Riddle 21 purchased the Riddle Property in 1993, or as it existed in 2004 when the Barnette letter was sent on 22 23 24 24 25 25 26 26 22
na, as it existed when constructed in 1939, as it existed when Riddle 21 purchased the Riddle Property in 1993, or as it existed in 2004 when the Barnette letter was sent on 22 23 24 24 25 25 26 26 22 behalf of Riddle. The statute of limitations under any theory therefore expired in 2009, barring Riddle's Fifth Cause of Action for Inverse Condemnation as a matter of law.
D.
Conclusion.
As a matter of law, Riddle has no property interest or littoral rights in the leasehold Premises, and therefore has suffered no taking or damage to a property right in the tidelands. The Court has no 27 jurisdiction over the inverse condemnation cause of action due to Riddle's failure to exhaust her 28 13 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 administrative remedies or to commence the claim within the statute of limitations. Any right of Riddle to access across the tidelands is subservient to the City's lawful administration of the tidelands.
IV.
RIDDLE'S FOURTH CAUSE OF ACTION FOR VIOLATION OF THE BROWN ACT FAILS AS A MATTER OF LAW.
The Court Lacks Jurisdiction Over The Fourth Cause Of Action For Violation Of The Brown Act Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To Government Code Sections 54960.1 and 54960.2.
5 A.
6 7 1. Riddle Failed to Exhaust the Administrative Remedies set forth in the Brown Act.
Riddle's Fourth Cause of Action seeks declaratory relief for violation of the Brown Act. (TAPC, 8 9 10 11 12 13 14 15 16 17 18 19 20 20 p. 12, Ins. 15-16, p. 20, Ins. 11-13.) However, Riddle is barred from pursuing the cause of action due to her failure to exhaust the administrative remedies and requirements of the Brown Act.
19 20 20 p. 12, Ins. 15-16, p. 20, Ins. 11-13.) However, Riddle is barred from pursuing the cause of action due to her failure to exhaust the administrative remedies and requirements of the Brown Act.
If an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy must be exhausted before judicial relief respecting that remedy is available. (See generally Section III.B.2.a, supra.)
Government Code sections 54960.1 and 54960.2 provide the administrative processes for seeking redress of alleged violations of the Brown Act. They are statutory prerequisites mandating that legal challenges must be initiated within either ninety (90) days (section 54960.1) or nine (9) months (section 54960.2) of an alleged violation of the Brown Act. (RJN, Exhs. AA, BB; SSUMF #'s 63-69.)
First, to file an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by the Newport Beach City Council violated certain provisions of the Brown Act and is therefore null and void if not cured, California Government Code section 54960.1 21 requires a written demand to "cure or correct” the action alleged to have been taken in violation of the Brown Act within ninety (90) days of the date the action was taken (or thirty [30] days for certain alleged actions) clearly describing the challenged action and the nature of the alleged violation.
22 23 24 25 26 26 27 28 Second, to file an action to determine the applicability of the Brown Act to a past action of the Newport Beach City Council, California Government Code section 54960.2 requires a "cease and desist" letter to be submitted to the City Clerk within nine (9) months of the alleged violation.
on of the Newport Beach City Council, California Government Code section 54960.2 requires a "cease and desist" letter to be submitted to the City Clerk within nine (9) months of the alleged violation.
Neither Government Code section 54960.1 nor Section 54960.2 provides for an extension of the time to comply due to a claimant's delayed discovery of an item lawfully placed on a public agenda 14 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 freely accessible to the public and acted upon during a meeting of the City Council. After the alleged discovery of the alleged “secret settlement agreement" that Riddle claims violated the Brown Act, 3 Riddle did not comply with either section 54960.1 or section 54960.2. Riddle did not submit either a 4 written demand to "cure or correct” or a cease and desist letter to the City Clerk within nine (9) months, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 21 22 22 23 23 or at any time. (SSUMF #'s 67, 69.) The Court may not legislate exceptions to the explicit unambiguous requirements of the statute.
Riddle argues that a letter from her attorney, Geralyn L. Skapik, to Harry S. Carmack, outside litigation counsel for the City in this action, dated April 21, 2017, constitutes a cease and desist letter pursuant to California Government Code section 54960.2. (See generally, TAPC, pp. 12-14.) Any review of this letter will conclude that it is a request to stipulate to an amendment to Riddle's First Amended Complaint to add causes of action for violation of the Brown Act and inverse condemnation.
(Carmack Decl., Exh. A.) It is not a “cease and desist” letter or a written demand to cure or correct.
The letter does not describe the past action of the City Council and nature of the alleged violation (for
Decl., Exh. A.) It is not a “cease and desist” letter or a written demand to cure or correct.
The letter does not describe the past action of the City Council and nature of the alleged violation (for instance, what section of the Brown Act was allegedly violated?), as required by the Brown Act. (Cal.
Govt. Code § 54960.2.) Furthermore, the letter is addressed to opposing counsel for the City in a lawsuit on file for almost nineteen (19) months before the date of the letter, and is not addressed to the City Clerk as required by statute.
Riddle did not exhaust her administrative remedies in compliance with the Brown Act and therefore, as a matter of law, the Court lacks jurisdiction over the Fourth Cause of Action.
2. The City did not Violate the Brown Act.
Riddle alleges that a resolution of the permit litigation preceding execution of the Vallely Lease should have been announced in open session by the City Council, that the terms and conditions resolving the litigation should have been specifically before the City Council or presented at a City Council meeting for consideration and approval, and should have been disclosed to the public 25 (presumably as a separate item on a City Council agenda). (TAPC, p. 16, Ins. 2-6.) None of these actions were legally required. There was no "secret settlement agreement."
24 24 26 27 28 The NBMC gives Vallely the option of occupying tidelands under either a permit or lease. (RJN, Exh. O; NBMC § 17.60.060.) Section 17.60.060 was adopted by legislative action of the Newport 15 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 Beach City Council on December 10, 2013, as part of the City's establishment of fair market rents under 2
he Newport 15 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 Beach City Council on December 10, 2013, as part of the City's establishment of fair market rents under 2 the Beacon Bay Bill. (SSUMF # 19; Miller Decl., p. 1, Ins. 17-23.) All commercial users of the 3 tidelands were given the opportunity to choose between a lease and a permit. (Miller Decl., Exh. A.)
4 5 6 7 8 9 10 11 12 13 14 15 16 17 Prior to the amendment of NBMC section 17.60.060, commercial users of tidelands were issued annual permits. The amendment to NBMC section 17.60.060 affected Vallely in the same manner as the other approximate 60 commercial users of the tidelands, all of whom are subject to the lease/permit requirement of the NBMC.
Vallely operated pursuant to permits for approximately 76 years, until March of 2015, when Vallely chose to exercise the option to lease the tidelands pursuant to NBMC section 17.60.060, resulting in the Vallely Lease. (Vallely Decl., p. 1, Ins. 12-17, Ins. 22-25.)
Vallely's annual pier permit expired on February 28, 2015. Through his attorney, Vallely notified the City that he chose to operate pursuant to a lease, which was his option, on February 4, 2015.
(Carmack Decl., p. 2, lns. 14-18.) The Vallely Lease was executed on March 12, 2015, and complies with all requirements of the Beacon Bay Bill. The Vallely Lease is a public record. A memorandum of the Vallely Lease was recorded with the Orange County Recorder's Office. (RJN, Exh. Q.).)
No legislative approval of the Vallely Lease was required. The City Council had expressly delegated authority to execute leases of tidelands, including the Vallely Lease, to the City Manager.
18 (SSUMF # 36.) The alleged “secret settlement agreement," is nothing more than a label fabricated by
gated authority to execute leases of tidelands, including the Vallely Lease, to the City Manager.
18 (SSUMF # 36.) The alleged “secret settlement agreement," is nothing more than a label fabricated by Riddle to allege a nonexistent Brown Act violation.
19 20 20 21 22 23 Riddle cites Government Code section 54957.1 as the basis of her allegation. (TAPC, p. 12, lns.
13-14.) Government Code section 54957.1 applies to closed sessions of a legislative body of a local agency. It does not require closed sessions, but rather requires public reporting of any action taken in closed session only when certain requirements are satisfied. Government Code section 54957.1(d) 24 provides that nothing in that section shall be construed to require that a legislative body approve actions not otherwise subject to legislative body approval. (RJN, Exh. Y.)
25 26 26 27 28 By Newport Beach City Council Resolutions Nos. 2012-91 and 2012-97, the City Council authorized the City Manager to execute leases of tidelands in Newport Bay. (RJN, Exhs. M, N.)
Because of this express authorization from the City Council, the subsequent execution of a tidelands 16 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 lease is valid without the need to additional legislative body approval. Therefore, Government Code 2 section 54957.1 does not require the Newport Beach City Council to meet in either closed session or 3 open session to approve the issuance of a tidelands lease, let alone require that approval be made in 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 22 23 24 25 25 26 27 28 closed session subject to the reporting out requirements of Government Code section 54957.1.
B.
Conclusion.
proval be made in 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 22 23 24 25 25 26 27 28 closed session subject to the reporting out requirements of Government Code section 54957.1.
B.
Conclusion.
As a matter of law, Riddle failed to exhaust her administrative remedies for alleging a Brown Act violation, either by written demand to cure or correct or a cease and desist letter.
A.
V.
RIDDLE'S FIRST, SECOND, AND THIRD CAUSES OF ACTION FAIL AS A MATTER OF LAW AND RIDDLE IS LEGALLY BARRED FROM SEEKING DAMAGES.
Because Riddle Has No Rights Or Duties Under The Vallely Lease, She Is Not Entitled To Declaratory Relief Or The Issuance Of A Writ Of Mandate, And Her Due Process Rights Have Not Been Violated.
The City incorporates Section III.A, supra, as if set forth in full immediately below.
1. Declaratory Relief.
Riddle seeks a declaration of the rights and duties of the parties with respect to the Vallely Lease.
|(TAPC, p. 8, Ins. 5-6.) Declaratory relief is authorized by California Code of Civil Procedure section 1060, and governed by sections 1060-1062.3. California Code of Civil Procedure section 1061 states: "the court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances."
(Calif. Code Civ. Proc. § 1061.)
To state a claim for declaratory relief there must be an actual controversy relating to the rights and duties of the parties. Here, no actual controversy exists. Riddle is neither a party to the Vallely Lease or a littoral property owner with rights in the tidelands that supersede the City's rights under the Beacon Bay Bill. (RJN, Exh. E.)
Further, Riddle lacks standing to bring the First Cause of Action. A plaintiff must be the real
with rights in the tidelands that supersede the City's rights under the Beacon Bay Bill. (RJN, Exh. E.)
Further, Riddle lacks standing to bring the First Cause of Action. A plaintiff must be the real party in interest with respect to the claim sued upon. (Calif. Code Civ. Proc. § 367.) For standing, a party must be beneficially interested in the controversy; that is, he or she must have 'some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.' (Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456, 466, citing Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796.) Riddle lacks any 17 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 2 1 special interest or right in the tidelands. Riddle has no rights and duties under the Vallely Lease, yet 3 4 10 5 6 7 00 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Riddle improperly seeks a declaration that the Vallely Lease is void and lacks standing to bring the First Cause of Action.
2. Writ of Mandate.
Riddle seeks a writ of mandamus compelling the City to declare the Vallely Lease invalid.
(TAPC, p. 10, Ins. 22-23.)
California Code of Civil Procedure section 1086 reads: "the writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested." (Calif. Code Civ. Proc. § 1086.)
Further, California Rules of Court, rule 3.1103, requires that a writ of mandate comply with the law and motion procedures set forth in Rules 3.1100, et seq. Law and motion rules require Riddle to
6.)
Further, California Rules of Court, rule 3.1103, requires that a writ of mandate comply with the law and motion procedures set forth in Rules 3.1100, et seq. Law and motion rules require Riddle to file a notice of hearing on the motion, a motion and a memorandum of points and authorities in support of the motion in order to seek a writ of mandate. (Calif. Rules of Court, rule 3.1112.) The procedure must follow Code of Civil Procedure section 1005. (Calif. Rules of Court, rule 3.1300(a).) A motion is deemed to have been brought before the court upon due service and filing of a notice of motion. (Calif.
Code Civ. Proc. §1005.5.)
Riddle has no beneficial interest in the Vallely Lease, and therefore lacks standing to bring the Second Cause of Action. (Carsten v. Psychology Examining Comm., supra, 27 Cal.3d 793, at 796.)
Riddle cannot establish the existence of property interest or property right in the tidelands, and has never served and/or filed a notice of motion or motion for a writ of mandate or a memorandum of points and authorities. (Carmack Decl., p. 2, Ins. 9-10.) For these reasons, her Second Cause of Action fails as a matter of law.
3. Due Process.
Riddle seeks an order setting aside the Vallely Lease for an alleged due process violation, and an 25 injunction permanently enjoining the City from issuing more leases or permits without complying with 26 26 due process. (TAPC, p. 11, lns. 19-23.) Riddle alleges the City took actions without notice or opportunity to be heard by her or the public at large. (Id., Ins. 12-18.)
27 28 | /// 18 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7 Riddle has no "vested right” in the leasehold Premises or in access to the tidelands. Due process
| /// 18 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7 Riddle has no "vested right” in the leasehold Premises or in access to the tidelands. Due process notice and hearing are not required when there is no deprivation of property: “we emphasize, however, that constitutional notice and hearing requirements are triggered only by governmental action which results in 'significant' or 'substantial' deprivations of property, not by agency decisions having only a de minimus effect on land.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 616.)
The request to the Court for an injunction requiring notice and hearing before the City issues any more permits or leases is not within the Court's power to grant. "Only those governmental decisions 8 which are adjudicative in nature are subject to procedural due process principles. Legislative action is 9 not burdened by such requirements.” (Horn, supra, 24 Cal.3d 605, at 612.) (citation omitted) (emphasis 10 original).) The issuance of leases and permits in the tidelands is authorized by the Beacon Bay Bill and 11 NBMC. The procedures regarding the issuance of leases and permits in the tidelands is governed by the 12 13 14 15 16 17 18 19 20 21 22 24 NBMC and legislative acts of the Newport Beach City Council, enacted after notice and opportunity to be heard. For these reasons, Riddle's due process rights were not violated as a matter of law.
B.
Riddle Failed To Exhaust Her Administrative Remedies Under NBMC Section 17.60.080.
The City incorporates Section III.B, supra, as if set forth in full immediately below.
The City Council has enacted legislation, i.e., NBMC, Title 17, Harbor Code, Chapter 17.60,
MC Section 17.60.080.
The City incorporates Section III.B, supra, as if set forth in full immediately below.
The City Council has enacted legislation, i.e., NBMC, Title 17, Harbor Code, Chapter 17.60, Harbor Permits and Leases, section 17.60.080, Appeals, that provides an administrative remedy for appeals involving permits and leases issued in Newport Harbor. (RJN, Exh. P; SSUMF #'s 41, 42.)
The Vallely Lease is a lease of tidelands of Newport Harbor. (SSUMF #'s 22-27.) Riddle did not seek administrative relief as required by NBMC section 17.60.080. (SSUMF #42.) Riddle did not submit a written appeal to the Harbor Resource Manager, which is required for Riddle to exhaust her administrative remedies. (SSUMF #43.) Riddle has been aware of the existence of the Vallely Lease 23 (effective March 12, 2015) since at least September of 2015. (SSUMF #49.) Riddle failed to initiate an appeal within twenty-one (21) days of the execution of the Vallely Lease, and failed to initiate an appeal within twenty-one (21) days of her undisputed discovery of the Vallely Lease. (SSUMF # 43.)
25 25 26 26 27 22 As a matter of law, the Court lacks jurisdiction over the First, Second, and Third Causes of Action due to Riddle's failure to exhaust her administrative remedies.
28 /// 19 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1192 20 20 21 22 22 23 24 24 C.
Riddle Did Not File A Claim For Damages As Required By The Government Claims Act.
The First, Second, Third and Fourth Causes of Action of the TAPC each seek either actual or compensatory damages. (TAPC, p. 16, In. 27 through p. 17, In. 1; p. 21, Ins. 1-2.) The TAPC fails to allege compliance with the Government Claims Act. (Calif. Govt. Code §§ 900, et seq.)
her actual or compensatory damages. (TAPC, p. 16, In. 27 through p. 17, In. 1; p. 21, Ins. 1-2.) The TAPC fails to allege compliance with the Government Claims Act. (Calif. Govt. Code §§ 900, et seq.)
Government Code section 905 reads: "there shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against public entities except any of the following..." (Calif. Govt. Code § 905.)
Subsections (a) through (o) of section 905 contain the exceptions to the claim requirement, none of which apply to the first three causes of action.
Any claim relating to a cause of action for injury to personal property must be presented not later than six months after the accrual of the cause of action, and that all claims relating to any other cause of action shall be presented not later than one year after the accrual of the cause of action. (Calif. Govt.
Code §911.2.) A claim shall be presented to the public agency by delivery to the clerk, secretary or auditor, or by mailing the claim to the city clerk, secretary or auditor at the public agency's principal office. (Calif. Govt. Code §915(a).)
Failure to present a claim to a public entity bars a plaintiff from filing a lawsuit seeking damages against that entity. (City of Stockton, et al. v. Sup. Ct. (2007) 42 Cal.4th 730, 738, citing State of California v. Sup. Ct. (Bodde) (2004) 32 Cal.4th 1234, at 1239.)
Riddle never submitted a claim as required by the Government Claims Act. As a result, Riddle is statutorily barred from her First, Second, Third, and Fourth Causes of Action seeking damages.
V.
CONCLUSION.
For these reasons, Riddle's First, Second, Third, Fourth, and Fifth Causes of Action each fail as
rily barred from her First, Second, Third, and Fourth Causes of Action seeking damages.
V.
CONCLUSION.
For these reasons, Riddle's First, Second, Third, Fourth, and Fifth Causes of Action each fail as a matter of law. The City respectfully requests that this motion for summary judgment be granted.
Dated: May 25, 2018 Respectfully submitted by: 25 25 26 26 27 22 28 /Harry S. Carmack/ HARRY S. CARMACK Attorney for Respondent/Defendant City of Newport Beach 20 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 DECLARATION OF HARRY S. CARMACK I, Harry S. Carmack, declare as follows: 1.
I have personal knowledge of the matters set forth in this declaration, and if 4 5 6 7 8 9 called upon, could and would competently testify thereto.
2.
I am an attorney licensed to practice in the State of California. I am the attorney in this action for the respondents/defendants City of Newport Beach (the "City") and John Vallely ("Vallely").
3. Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibits A, B, C, D and Q are true and correct copies of the recorded 10 documents certified by the Office of the County Recorder of Orange County.
11 12 13 14 15 16 4. Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibit E, is a true and correct copy of Chapter 317 of the State of California Statutes of 1997.
5.
Attached to the Request for Judicial Notice in Support of the Motions for Summary
ntly herewith, as Exhibit E, is a true and correct copy of Chapter 317 of the State of California Statutes of 1997.
5.
Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed 17 concurrently herewith, as Exhibit F, G, I, K, L, O, P, R, S, T, V and W are true and correct copies of the 18 Newport Beach Municipal Code sections 17.05.030, 17.05.090, 17.01.030, 17.05.040, 17.05.050, 17.60.060, 17.60.080, 17.35.020, 20.18.010, 17.35.060, 21.48.035 and 17.65.050.
192 20 20 21 222 22 23 24 24 6.
Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibit H, M and N, are true and correct copies of Newport Beach City Council Ordinance No. 2013-27, and Newport Beach City Council Resolution Nos. 2012-91 and 201297.
7.
25 25 26 26 27 28 Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, Judgment, filed concurrently herewith, as Exhibits J and X, are true and correct copies of Newport Beach City Charter sections 421 and 405.
1 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 2 8. Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed 3 concurrently herewith, as Exhibit U, is a true and correct copy of California Rules of 4 5 6 Court, Rule 3.1103.
9.
City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed 3 concurrently herewith, as Exhibit U, is a true and correct copy of California Rules of 4 5 6 Court, Rule 3.1103.
9.
Attached to the Request for Judicial Notice in Support of the Motion for Summary Judgment of the City, and the City's Motion for Summary Adjudication of Issues, filed concurrently 7 herewith, as Exhibits Z, AA, BB, and CC are true and correct copies of Government Code sections 8 54957.1, 54960, 54960.1, and 54960.2.
9 10. Attached to the Request for Judicial Notice in Support of the Motion for Summary 10 Judgment of Vallely and the City, and the City's Motion for Summary Adjudication of Issues, filed 11 concurrently herewith, as Exhibit Y is this Court's Minute Order, entered December 19, 2017.
11.
12 13 14 15 16 17 18 Riddle has never served or filed a notice of motion or motion for a writ of traditional mandate, and Riddle has never served and/or filed a memorandum of points and authorities.
Attached hereto as Exhibit A is a true and correct copy of a letter from Geralyn Skapik to Harry S. Carmack, dated April 21, 2017.
12.
13.
14.
The initial complaint in this action was filed on September 4, 2015.
On February 4, 2015, I notified Deputy City Attorney Michael Torres that Vallely opted to occupy the tidelands pursuant to a tidelands lease. Agreement to the proposed lease was reached on 19 February 19, 2015. There was a brief delay while the insurance requirements of Exhibit D to the lease 20 21 2015.
22 were completed. The City then drafted the lease for signature, executed by the parties as of March 12, 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is
completed. The City then drafted the lease for signature, executed by the parties as of March 12, 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17th day of May, 2018, at Costa Mesa, California.
24 25 /Harry S. Carmack/ 26 27 28 HARRY S. CARMACK 2 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment Exhibit A Writer: Geralyn L. Skapik Mark C. Allen CLAREMONT LAND GROUP Attorneys Fax VIA EMAIL & FIRST CLASS MAIL Email: Harry S. Carmack, Esq.
LAW OFFICE OF HARRY S. CARMACK April 21, 2017 File No.: CLG.043 Re: Susan [Bidart] Riddle v. City of Newport Beach Orange County Superior Court Case No.: 30-2015-00808124-CU-WM-CJC Dear Mr. Carmack: This letter requests that your clients stipulate to an amendment of the complaint or, alternatively, the City of Newport Beach ("City") accept an order and remand, holding the Lease to be invalid, as improperly entered into by the City. I explain our thinking below.
While I know you are familiar with the background, I will provide a brief summary of what we see as the relevant facts to provide context for the remainder of my comments. On May 21, 2013, Vallely, as trustee of a family trust, appealed the Harbor Division's denial of a request to transfer the permit at 508510 Bayfront previously issued to Mr. Vallely's parents. On June 28, 2013, the City denied the appeal.
On September 23, 2013, Vallely, as trustee, filed an action against the City seeking to overturn the denial. On December 10, 2013, the City amended its Harbor Code to allow commercial tideland leases to abut upland property not owned by the holder of the leasehold. Vallely lost the case against the City
ial. On December 10, 2013, the City amended its Harbor Code to allow commercial tideland leases to abut upland property not owned by the holder of the leasehold. Vallely lost the case against the City in the trial court and appealed. The appeal was dismissed and the Lease was entered into on or about March 12, 2014. The instant action followed.
The City and Vallely have contended and represented to the court that there was nothing untoward about the transaction. The argument was that the entry into the Lease was simply a ministerial action by the City Manager and that the change in the code allowing Vallely to block any access by Riddle was simply a neutral change made by the City. We have now determined based on the just-finished depositions and documents we finally pried out of the defendants that virtually all of these representations are and were false.
Harry S. Carmack, Esq.
Re: Susan [Bidart] Riddle v. City of Newport Beach April 21, 2017 Page 2 • .
• It is untrue that the change in the Harbor code was neutral. In fact, it was "special legislation" that benefited Vallely and only Vallely.
It is untrue that the Lease was a ministerial act. The City Manager and your client testified that it was negotiated as a settlement of the litigation.
It is untrue that the City has made similar accommodations for others. The Vallely Lease is much more favorable to the lessee than any other lease the City has executed.
This leads me to the need to amend the complaint. First, these facts clearly show the City and Vallely entered into secret negotiations and then a secret settlement. This clearly violated the open meeting
leads me to the need to amend the complaint. First, these facts clearly show the City and Vallely entered into secret negotiations and then a secret settlement. This clearly violated the open meeting requirements of the Brown Act. Under the City Charter, settlements are vested in the City Council (See Sec. 405) and have not been (and indeed, could not be) delegated to an employee, Second, it is now clear that the City and Vallely combined to attempt to block Riddle from developing her property so that Vallely could have his docks. Since the City's actions benefited only Vallely and there has been no showing (or even contention) of a public purpose, what we are left with is naked trampling on Riddle's right in order for the City to help another private party. This is a classic case of inverse condemnation for which Riddle is entitled to damages.
We intend to amend our complaint to add, at a minimum, violation of the Brown Act and damages for inverse condemnation. As you know, amendment of a complaint can only be denied in very rare situations, none of which even arguably exist here. Therefore, we ask that you stipulate to the amendment, subject, of course, to your review of the amended complaint. In the absence of conditional assent we will seek our remedy with the court forthwith.
Please let me know your thoughts as soon as possible. Given the upcoming trial date, I will need to have your decision by COB April 26, 2017. Please feel free to call with any questions or concerns.
/GLS CC: Very truly yours, CLAREMONT LAND GROUP Днавер удпарл GERALYN L. SKAPIK Aaron Harp, City Attorney, City of Newport Beach (Via Email & First Class Mail) 1 2 3 4 DECLARATION OF JOHN VALLELY
SKAPIK Aaron Harp, City Attorney, City of Newport Beach (Via Email & First Class Mail) 1 2 3 4 DECLARATION OF JOHN VALLELY I, John Vallely, declare as follows: 1.
1 have personal knowledge of the matters set forth in this declaration, and if called upon, could and would competently testify thereto.
5 2.
I am the co-trustee of the John Stephen Vallely Trust. My wife, Karen Vallely, is the 6 other co-trustee.
3.
The John Stephen Vallely Trust owns the real property located at (the "Vallely Property") The Vallely Property is on Balboa Island.
7 I 9 4.
Bayward of the Vallely Property are a pier, dock and floats that have existed in their 10 current configuration since my father constructed the dock and floats in 1938 and 1939 (the "Vallely 11 Marina").
12 13 14 15 5. The Vallely Marina was constructed pursuant to permits issued by the Army Corp of Engineers and the City of Newport Beach (the "City"). A true and correct copy of the Army Corp of Engineers pier permit, issued in 1939, is attached hereto as Exhibit A. A true and correct copy of the City pier permit, initially issued in 1966, is attached hereto as Exhibit B. A true and correct copy of the 16 pier permit issued by the City for March 1, 2014 to February 28, 2015, the last year the Vallely Marina operated under a permit vs. a lease, is attached as Exhibit C.
17 18 19 200 6. The Vallely Marina has always been operated as a sole proprietorship, licensed annually with the City as "Vallely Boat Rentals." A true and correct copy of the City business license held by Vallely Boat Rentals is attached hereto as Exhibit D.
21 22 22 23 24 7.
I have managed the business of the Vallely Marina since 1976.
8.
." A true and correct copy of the City business license held by Vallely Boat Rentals is attached hereto as Exhibit D.
21 22 22 23 24 7.
I have managed the business of the Vallely Marina since 1976.
8.
On March 12, 2015, I exercised the option, provided under the Newport Beach Municipal Code section 17.60.060, to convert the Vallely Marina pier permit to a lease. A true and correct copy of the lease is attached to Riddle's Third Amended Petition/Complaint as Exhibit 1. (the 25 "Vallely Lease.") 26 27 28 9. At the time of the execution of the Vallely Lease, I had already appealed to the Fourth District Court of Appeals to reverse a superior court denial of a writ of mandate seeking to order the City to transfer the existing pier permit from my deceased parents' family trust to my family trust.
3 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 10.
At the time I filed an application for a pier permit transfer in 2013, the City had not 2 adopted Newport Beach Municipal Code (NBMC”) section 17.60.060, offering the option to lease 3 4 5 6 7 tidelands for commercial uses.
11.
I had no involvement whatsoever in the City's enactment of NBMC section 17.60.060 or its amendments.
12. I was not aware of the option to lease tidelands, as provided in NBMC section 17.60.060, until after filing the appellant's opening brief for the appeal of the denial of the writ of mandate seeking 8 to transfer my parents' pier permit from their family trust to my family trust. The brief was filed on 9 November 25, 2014.
10 11 12 13 14 15 16 17 18 19 20 21 22 22 25 23 24 24 25 25 26 27 28 13.
I was also not aware until then that commercial uses could be operated by entities other than the upland property owner, as provided in NBMC section 17.60.060(E).
22 22 25 23 24 24 25 25 26 27 28 13.
I was also not aware until then that commercial uses could be operated by entities other than the upland property owner, as provided in NBMC section 17.60.060(E).
14. In February of 2015, I learned Vallely Boat Rentals could continue to operate the Vallely Marina under a tidelands lease, without the need to transfer a pier permit from my parents' family trust to my family trust.
15.
With this knowledge I made the decision in February of 2015 to operate Vallely Boat Rentals under a tidelands lease.
16. I dismissed the appeal because I exercised my right under NBMC section 17.60.060 to operate Vallely Boat Rentals pursuant to a tidelands lease. The appeal of the denial of the writ seeking an order to transfer the pier permit became moot when I made this decision. A true and correct copy of the dismissal of the appeal is attached hereto as Exhibit E.
17. Contrary to the allegations of Riddle's complaint, the leasehold “Premises” do not include the pier, dock and floats that comprise the Vallely Marina. (TAPC, p. 3, Ins. 20-25.) The definition of the leasehold "Premises” in the Vallely Lease does not include the pier, dock and floats.
My family has always owned the pier, dock and floats that comprise the Vallely Marina, and my family has always paid real property taxes on the Vallely Marina as an improvement to the Vallely Property.
Contrary to the allegations of Riddle's complaint, neither myself, nor anyone associated with the Vallely Marina, has ever claimed a vested property right in the tidelands. (TAPC, p. 3, Ins. 2627.) I have always known the tidelands are owned in trust by the City.
18.
4 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 19.
idelands. (TAPC, p. 3, Ins. 2627.) I have always known the tidelands are owned in trust by the City.
18.
4 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 19.
Contrary to the allegations of Riddle's complaint, I have never appeared in front of the 2 Harbor Commission for a permit transfer. (TAPC, p. 4, Ins. 12-13.) The denial of the pier permit 3 4 transfer application by the City was by the Harbor Resources Manager, with the administrative appeal to a hearing officer, not the Harbor Commission.
5 20.
Contrary to the allegations of Riddle's complaint, the Vallely Marina does not 6 completely block Riddle's access to Newport Harbor. Attorney Christopher K. Barnette, representing 7 Riddle, sent a letter to the Harbor Commission, dated March 11, 2013, with attached Exhibits A to C.
8 9 10 11 12 13 14 15 Exhibit B to the Barnette letter of March 11, 2013, at pages 7 and 9, contains accurate pictures of the Vallely pier and public pier at Opal Street as of that date, as they have always been, and as they exist today. A true and correct copy of the Barnette letter of March 11, 2013, is attached hereto as Exhibit F.
21. Attached hereto as Exhibit G is a true and correct copy of a letter, dated August 11, 2004, addressed to Vivian Vallely, from Christopher K. Barnette, Riddle's attorney. As the person who managed the Vallely Marina, this letter has been kept in my files since it was forwarded to me by Vivian Vallely, my mother, at the time it was received.
22. Attached hereto as Exhibit H is a true and correct copy of a letter, dated May 30, 2012, addressed to Duncan Forgey of California Prudential Realty, from Christopher K. Barnette, Riddle's
eceived.
22. Attached hereto as Exhibit H is a true and correct copy of a letter, dated May 30, 2012, addressed to Duncan Forgey of California Prudential Realty, from Christopher K. Barnette, Riddle's 17 attorney. Duncan Forgey was my real estate agent at the time, and was engaged to attempt to sell the 16 18 19 20 20 21 Vallely Property before my decision to purchase the property by buying my sister's one-half interest.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17th day of May, 2018, at Newport Beach, California.
22 23 224 24 25 26 26 27 28 /John Vallely/ JOHN VALLELY 5 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment Exhibit A WAR DEPARTMENT NOTE. It is to be understood that this instrument does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. IT MERELY EXPRESSES THE ASSENT OF THE FEDERAL GOVERNMENT SO FAR AS CONCERNS THE PUBLIC RIGHTS OF NAVIGATION. (See Cummings v. Chicago, 188 U. S., 410.)
PERMIT 3-8360 Office, Division Engineer, South Pacific Division, 414 Customhouse, United States-Engineer-Office¬San Francisco Calif.
APR 27 1999 19 36.
Mr. Roland F. Vallely, Balboa, Calif.
Dear Sir: Referring to written request dated February 24, 1936, for permit to install floats, anchor piles and ramp in Newport Bay, Calif., I have to inform you that, upon the recommendation of the Chief of Engineers,
ng to written request dated February 24, 1936, for permit to install floats, anchor piles and ramp in Newport Bay, Calif., I have to inform you that, upon the recommendation of the Chief of Engineers, and under the provisions of Section 10 of the Act of Congress approved March 3, 1899, entitled "An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes," you are hereby authorized by the Secretary of War, (Here describe the proposed structure or work.)
to install two wooden landing floats, ramp and 3 anchor piles channelward of U. S. Pierhead line, in front of existing pier, westerly of Agate Avenue, Balboa Island, in Newport Bay, (Here to be named the river, harbor, or waterway concerned.)
at Newport Beach, Calif., (Here to be named the nearest well-known locality-preferably a town or city-and the distance in miles and tonths from some definite point in the sauno, stating whether above or below or giving direction by points of compass.)
in accordance with the plans shown on the drawing attached hereto, marked "Proposed (Or drawings; give file number or other definite identification marks.)
Landing Float and Anchor Piles at Newport Beach, California. Application by R. F. Vallely, February, 1936."
subject to the following conditions: applicat (a) That the work shall be subject to the supervision and approval of the District Engineer, Engineer Department at Large, in charge of the locality, who may temporarily suspend the work at any time, if in his judgment, the interests of navigation so require.
(b) That any material dredged in the prosecution of the work herein authorized shall be removed evenly, and no
suspend the work at any time, if in his judgment, the interests of navigation so require.
(b) That any material dredged in the prosecution of the work herein authorized shall be removed evenly, and no large refuse piles, ridges across the bed of the waterway, or deep holes that may have a tendency to cause injury to navigable channels or to the banks of the waterway shall be left. If any pipe, wire, or cable hereby authorized is laid in a trench, the formation of permanent ridges across the bed of the waterway shall be avoided and the back filling shall be so done as not to increase the cost of future dredging for navigation. Any material to be deposited or dumped under this authorization, either in the waterway or on shore above high-water mark, shall be deposited or dumped at the locality shown on the drawing hereto attached, and, if so prescribed thereon, within or behind a good and substantial bulkhead or bulkheads, such as will prevent escape of the material into the waterway. If the material is to be deposited in the harbor of New York, or in its adjacent or tributary waters, or in Long Island Sound, a permit therefor must be previously obtained from the Supervisor of New York Harbor, Army Building, New York City.
(c) That there shall be no unreasonable interference with navigation by the work herein authorized.
(d) That if inspections or any other operations by the United States are necessary in the interests of navigation, all expenses connected therewith shall be borne by the permittee.
(e) That no attempt shall be made by the permittee or the owner to forbid the full and free use by the public of all navigable waters at or adjacent to the work or structure
be borne by the permittee.
(e) That no attempt shall be made by the permittee or the owner to forbid the full and free use by the public of all navigable waters at or adjacent to the work or structure (f) That if future operations by the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owners shall, without expense to the United States, and to such extent and in such time and manner as the Secretary of War may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable capacity of the watercourse. No claim shall be made against the United States on account of any such removal or alteration.
(g) That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the Bureau of Lighthouses, Department of Commerce, shall be installed and maintained by and at the expense of the owner.
(h) That the permittee shall notify the said district engineer at what time the work will be commenced, and as far in advance of the time of commencement as the said district engineer may specify, and shall also notify him promptly, in
the said district engineer at what time the work will be commenced, and as far in advance of the time of commencement as the said district engineer may specify, and shall also notify him promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week, resumption of work, and its completion.
day 1939, this permit, if not previously revoked or specifically extended, shall cease and be null of That if the structure or work herein authorized is not completed on or before Becember and void.
_ the 31st (J) That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the Government for the conservation or improvement of navigation, and no claim or right to compensation shall accrue from any such damage.
By authority of the Secretary of War: WAR DEPARTMENT Form No. 96 Revised April 28, 1922 3-8360 GEMENT PRINTING OFFICE T. H. Jackson, Colonel, Corps of Engineers, Division Engineer.
Bulkhead Line -83'Pier Anchor Piles 11753' Ramp Line M.N.T.EL 5.2 Float LIDO ISLE NEWPORT CENTRAL BAL BO SLAND BAY PROFILE -20° SCALE IN FEET HORIZONTAL VERTICAL.
0 10 20 Sta. No. 158 PEARL Agate AVE.
PACIFIC -33°55' OCEAN 12 Scale in Miles LAND AND JETTY VICINITY SKETCH NEWPORT BAY Traced from Map of Real Estate, Rivers & Harbors, US Engineer's Off Los Angeles, California. File No 815 A Soundings are expressed in feet and denote depths below mean lower low water RE SUBDIVISION OF SECTION ONE 2 BALBOA ISLAND M.B. 6P.30 3 4 5 BLOCK 7 U.S. BULKHEAR 183' 100' U.S. PIERHEAD LINE 7 Anchor U.S. PROJEC Anchor Pile Bay 25 13 50 Scale in Feet 08.
53 Existing Anchor Pile AGATE AVE.
Toto PROPOSED LANDING FLOAT AND ANCHOR PILES
3 4 5 BLOCK 7 U.S. BULKHEAR 183' 100' U.S. PIERHEAD LINE 7 Anchor U.S. PROJEC Anchor Pile Bay 25 13 50 Scale in Feet 08.
53 Existing Anchor Pile AGATE AVE.
Toto PROPOSED LANDING FLOAT AND ANCHOR PILES NEWPORT BEACH, CALIFORNI Application by R.F. Vallely Hey Apr February, 1936.
Exhibit B CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT HARBOR PERMIT ROLAND F. AND VIVIAN VALLELY NAME OF APPLICANT 508 SOUTH BAY FRONT MAILING ADDRESS BALBOA ISLAND, CALIFORNIA IN COMPLIANCE WITH YOUR APPLICATION OF DECEMBER 27 , 196 6 AND SUBJECT TO ALL TERMS, CONDITIONS AND RESTRICTIONS WRITTEN BELOW OR PRINTED AS GENERAL, OR SPECIAL PROVISIONS ON ANY PART OF THIS FORM, PERMISSION IS HEREBY GRANTED TO MAINTAIN AN EXISTING PIER AND FLOAT BAYWARD OF 508 AND 519-BOUTH BAY FRONT, BALBOA ISLAND.
THIS PERMIT IS ISSUED IN ACCORDANCE WITH CITY COUNCIL INSTRUCTIONS PER COUNCIL MINUTES dated 12-27-66.
ALL WORK TO BE IN ACCORDANCE WITH THE STANDARD SPECIFICATIONS OF THE CITY OF NEWPORT BEACH AND DRAWINGS ATTACHED OR REFERENCED THERETO: THIS PERMIT SHALI BE VOID UNLESS THE WORK HERE IN CONTEMPLATED SHALL HAVE BEEN COMPLETED BEFORE DECEMBER 27 19 68.
APPROVED BY CITY ENGINEER AUTHORIZED BY THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, MEETING HELD ON THE 27TH DAY OF DECENSER AT A 1966 La L CITY CLERK NO.
A-1484 Exhibit C CERTIFIED AS A TURE AND CORRECT COPY City Clerk of the City of Newport Beach BEACH (1) Commercial Marina Permit Date 11.9.15 Commercial Marina Permittee: This Permit is issued on March 1, 2014 to Vallely Marina ("Permittee”) to operate a commercial marina located upon City of Newport Beach ("City") tidelands, as more particularly described in Attachment 1 and depicted in Attachment 2 ("Premises"). Both Attachment 1 and Attachment 2 are
ommercial marina located upon City of Newport Beach ("City") tidelands, as more particularly described in Attachment 1 and depicted in Attachment 2 ("Premises"). Both Attachment 1 and Attachment 2 are incorporated by reference into this Permit. By acceptance of this Permit, the Permittee agrees to be bound by the terms contained in this Permit.
(2) Term: This Permit shall be valid for a period of twelve (12) calendar months beginning on March 1, 2014, and expiring on February 28, 2015, unless terminated earlier as provided herein.
(3) Rent: Rent shall be calculated pursuant to Resolution No. 2012-98, or any successor/amended resolution. Resolution No. 2012-98 and any successor/amended resolution are automatically incorporated by reference into this Permit, without any further action by the parties, when adopted by the Newport Beach City Council.
(4) (A) (B) (C) Periodic Payment of Rent: One-twelfth (1/12) of annual rent for a particular year shall be payable on the first (1st) day of each month during the term.
Place for Payment of Rent: All payments of rent shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time to time designate in writing to the Permittee. If requested by City, the Permittee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at the Permittee's cost). The Permittee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal.
ittee's cost). The Permittee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal.
Late Charges: A ten percent (10%) late charge, or the maximum rate allowable under State law, shall be added to all payments due but not received by City with fifteen (15) calendar days following the due date. In addition, all unpaid amounts shall accrue at a delinquency rate of one and a half percent (1½%) per month or any portion of a month until paid in full.
Utilities and Taxes: The Permittee is solely responsible for obtaining all utilities and paying all taxes, fees and assessments for the Premises or improvements located thereon.
(5) Possessory Interest Tax Notice: The City hereby gives notice to the Permittee, pursuant to Revenue and Tax Code Section 107.6 that this Permit may create a possessory interest that is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of the Permittee. The Permittee NEWPORT CALIFORNIA 1 shall advise in writing any sublessee, licensee, concessionaire or third party using the Premises of the requirements of Section 107.6.
(6) Compliance With Applicable Laws: The Permittee is required at its sole expense to comply with all applicable City, County, State and Federal laws and regulations.
(7) Maintenance: The Permittee assumes full responsibility for operation and maintenance and repair of the Premises and associated improvements throughout the term of this Permit at its sole cost, and without expense to the City.
(8) Transfer/Assignment: This Permit may not be transferred or assigned by the Permittee without the City's prior written consent. Transfer/assignment without the
ost, and without expense to the City.
(8) Transfer/Assignment: This Permit may not be transferred or assigned by the Permittee without the City's prior written consent. Transfer/assignment without the City's prior written consent is null and void.
(9) Termination: This Permit may be terminated for cause (e.g., failure to abide by the terms of this Permit, etc.) by the City with no less than seven (7) calendar days prior written notice to the Permittee. In the event of termination under this section, the City shall owe no compensation to the Permittee and the Permittee shall remove all improvements from the Premises within ninety (90) calendar days. The Permittee shall continue to pay rent to the City during the period in which the improvements are removed. Alternatively, the Permittee, with the City's prior written consent, may quitclaim all fixtures, equipment, and improvements on the Premises to the City.
Notwithstanding any other provision of this Permit as permitted by California Public Resources Code Section 6312, or any successor statute, the parties agree that upon expiration or earlier termination of this Permit the City shall have no liability or obligation to pay compensation for any improvements made to the Premises.
(10) Inspection: Upon seventy-two (72) hours notice, the City may enter the Premises, and all improvements thereon, including a right of reasonable access to the Premises across the Permittee's owned or occupied lands adjacent to the Premises, to inspect the Premises for compliance with the terms of this Permit.
(11) Indemnification: To the fullest extent permitted by law, Permittee shall indemnify, defend (with counsel selected by the City) and hold harmless the City, its
iance with the terms of this Permit.
(11) Indemnification: To the fullest extent permitted by law, Permittee shall indemnify, defend (with counsel selected by the City) and hold harmless the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to this Permit including, but not limited to, Permittee's occupancy and use, or Permittee's guests, invitees, sublessees, or licensees occupancy and use, of the Premises, or improvements including, but not limited to, any use involving petroleum based products, hazardous materials, hazardous waste and/or other hazardous substances as defined by City, County, State or Federal laws and regulations. The Permittee's obligations in this section shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such 2 Claims. This indemnification provision and any other indemnification provided elsewhere in this Permit shall survive the termination of this Permit and shall survive for the entire time that any third party can make a Claim.
(12) Insurance: The Permittee shall maintain insurance for the Premises during the term of this Permit, issued by a company authorized to transact business in California with a rating of A- (or higher) and Financial Size Category Class VII (or larger), in at
the Premises during the term of this Permit, issued by a company authorized to transact business in California with a rating of A- (or higher) and Financial Size Category Class VII (or larger), in at least the following amounts: (i) workers' compensation insurance providing statutory benefits and employer's liability insurance in an amount not less the $1 million; (ii) commercial general liability insurance in an amount not less than $2 million per occurrence and $4 million general aggregate for bodily injury, personal injury, and property damage; (iii) contractor's pollution liability insurance, in an amount of no less than $3 million, for contractors or subcontractors performing construction work providing coverage for liability arising out of a sudden, accidental and gradual pollution; and (iv) Pollution legal liability, of no less than $1 million, applicable to bodily injury; property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed; cleanup costs; and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims; all in connection with any loss arising from the Premises. The City (i.e., its elected or appointed officers, officials, employees, agents and volunteers) shall be named as an additional insured on all insurance policies required by this section.
(13) No Damages: The Permittee acknowledges the City would not have issued this Permit if it were to be liable for damages under, or relating to, this Permit. The parties agree that declaratory relief, injunctive relief, mandate and specific performance shall be the Permittee's sole and exclusive judicial remedies.
(14) Uplands Support: The location of the parking spaces serving the Premises as
ief, injunctive relief, mandate and specific performance shall be the Permittee's sole and exclusive judicial remedies.
(14) Uplands Support: The location of the parking spaces serving the Premises as required by NBMC Section 20.40.040, or any successor statute, shall be depicted on Attachment 2.
3 Attachment 1 Description of Premises 25 Feet 50 Bulkhead/Pierhead Lines 410 AGATE AVE 500502 501 PILERHEAD 14.
TT 508.
3,159 sf 510 510 1/2 111 1/2 111 201 OPAL AVE 108 BAY FRONT ALLEY 514 516 Vallely - 508 Bay Front S 116 118 114 A 114 518 A 518 B 320 1522 TOPAZ AVE BAY 526 524 Permit# CP25605081 Effective 2013 (Per Resolution 2012-98) 528 Standard Marina Rate (Small): (3,159 sq. ft. x Current Rate) Attachment 2 Depiction of Premises & Uplands Support 5 Newport Beach GIS NEWPORT CITY OF CALIFORNIA BEACH 050 052 37 50 052 15 504 508 BAYFRONTS 0 20 40 Feet 050 052 14 510 510 1/2 050 052 13 _ BAY FRON OPAL AVE (512) ALLEYS Amusin 050 052 33 050 051 21 Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use.
Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 8/14/2014 Exhibit D RV160 NEWPORT OF CITY BEACH CALIFORNIA CITY OF NEWPORT BEACH VALLELY BOAT RENTAL ACCOUNT NUMBER: BT30043417 EXPIRATION DATE: 05/31/2018 INSTRUCTIONS AND CONDITIONS Welcome to the City of Newport Beach, and thank you for your business tax payment. This business tax certificate is evidence that the named business has paid a tax to conduct the business activity designated, within the City of Newport Beach, until the expiration date
s tax payment. This business tax certificate is evidence that the named business has paid a tax to conduct the business activity designated, within the City of Newport Beach, until the expiration date shown. Please notify the Revenue Division immediately if any of the information on the certificate changes.
This certificate is valid only at the address indicated and must be displayed in a conspicuous location. If your business is not conducted at a permanent location, Municipal Code requires that any representative, while transacting business within the city, carry this certificate.
This business tax certificate does not authorize the named business to conduct any activities regulated by the City of Newport Beach or other agencies. Authorization for such activities must be obtained from the appropriate departments prior to application for business tax, including land use authorization from the City's Community Development Department. Certificates are not transferable to any other party or person and are not pro-rated. Refunds are not provided once the certificate has been issued.
Your business tax certificate is valid until the expiration date, and must be renewed annually prior to that date. Changes in type of ownership (i.e. from a sole proprietorship to a partnership or LLC), nature of business, or ownership void the current certificate and require filing of and payment for a new application. Additional certificates are required if additional types of business activity are initiated at the same address, or additional locations of the same business are established (Municipal Code sections 5.04 through 5.08).
For your convenience, the Revenue Division will mail a courtesy renewal notice, prior to the expiration date, to the mailing address of record.
established (Municipal Code sections 5.04 through 5.08).
For your convenience, the Revenue Division will mail a courtesy renewal notice, prior to the expiration date, to the mailing address of record.
Non-receipt of the notice does not alleviate the requirement to renew. Penalties are imposed for late renewal at a rate of 25% per month to a maximum of 50% of the base tax.
The Revenue Division is available to answer any questions regarding business tax certificate and requirements. Call (949) 644-3141; e-mail us at: [email protected], or visit us on the internet at www.newportbeachca.gov and view the Municipal Code online.
DISPLAY CONSPICUOUSLY AT PLACE OF BUSINESS FOR WHICH ISSUED.
THIS TAX PAYMENT EXPIRES: SERVICE ADDRESS: VALLELY BOAT RENTAL BUSINESS CATEGORY: CITY OF NEWPORT BEACH BUSINESS TAX CERTIFICATE 05/31/2018 NEWPOR MISC AMUSEMENT & RECREATION SV SELLERS PERMIT: PCITY ACH ACCOUNT NUMBER: BT30043417 OWNER/PRINCIPAL NAME: JOHN VALLELY OWNERSHIP TYPE: SOLE PROPRIETORSHIP TAX INCLUDES PAYMENT FOR: 0 EMPLOYEES DATE OF ISSUE: 05/20/2013 NO SELLERS PERMIT ALIFORNIA PRINT DATE: 06/01/2017 Exhibit E COURT OF APPEAL - STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE JOHN STEPHEN VALLELY, Plaintiff and Appellant, COURT OF APPEAL-4TH DIST DIV 3 FILED MAR 13 2015 V.
CITY OF NEWPORT BEACH, Deputy Clerk Defendant and Respondent.
G050539 Orange County No. 30-2013-00677168 Appellant having filed a request for dismissal in this court, the appeal is DISMISSED. The remittitur shall issue forthwith. (Cal. Rules of Court, rule 8.244(c)(2).)
O'Leary, P.J.
Presiding Justice CC: See attached list Exhibit F LAW OFFICES OF CHRISTOPHER BARNETTE March 11, 2013 VIA FEDEX Harbor Commission City of Newport Beach c/o Chris Miller, Harbor Resources Manager Re:
J.
Presiding Justice CC: See attached list Exhibit F LAW OFFICES OF CHRISTOPHER BARNETTE March 11, 2013 VIA FEDEX Harbor Commission City of Newport Beach c/o Chris Miller, Harbor Resources Manager Re: Permit Application for Commercial Pier at 508 S. Bayfront Hon. Commissioners: I represent the owners of the property at| . I am writing on their behalf to oppose the permit application for a commercial pier located at The pier in its present configuration and use is an illegal structure, in violation of numerous provisions of the Newport Beach Municipal Code ("NMBC”). Although the pier was allowed to stand as a non-conforming use for many years, the owner of the upland property associated with the pier is in escrow to sell that property. As such, the existing permit by its terms is expiring, and the new owner will be required to obtain an entirely new permit. For a new permit to be issued in circumstances such as these, the new permittee is required to bring the pier and use into compliance with the law.
Present Configuration and Use of Pier The pier in question is bayward of a residence located at An aerial photo showing the location of the pier in relation to the property (labeled the "Vallely House") and my client's property (labeled the “Bidart/Riddle House") is attached for the Commission's convenience as Exhibit "A." The pier extends perpendicularly from the bulkhead in front of the 1 Although a permit to maintain the pier is clearly required under sections 17.10.050 and/or 17.60.020 of the Newport Beach Municipal Code, the Harbor Resources Manager has indicated that no application for a permit has been made. As such, without an application pending, the Harbor Commission has neither the obligation, nor the jurisdiction, to undertake any action at
as indicated that no application for a permit has been made. As such, without an application pending, the Harbor Commission has neither the obligation, nor the jurisdiction, to undertake any action at this time. In addition, adequate notice was not given to my clients or surrounding properties.
Accordingly, my clients object to any action taken by the Harbor Commission.
Harbor Commission City of Newport Beach March 11, 2013 Page 2 of 10 Vallely residence, and is built on the property line of the residences (without setback). Near and at the end of the pier are two horizontal pier extensions that were built to accommodate multiple boats.
The horizontal pier extensions encroach across the entirety of my clients' upland | property.
A photo taken from directly in front of my client's property is below. The pier on the left is a public pier that extends from the center of Opal Avenue. The pier on the right is the pier in question. The sandy area in the photo is directly in front of my clients' property.
Additional photos of the pier are attached as Exhibit "B."
Harbor Commission City of Newport Beach March 11, 2013 Page 3 of 10 The current owner has been renting the slips on the pier, and currently six boats are tying up at the pier. There is no off-street parking available for the slip renters, nor are there any bathroom facilities. The property has been marketed as having a “mini-marina,” allowing the owner to rent out ties for six boats for income. (MLS Listing attached as Exhibit "C.") Newport Beach Municipal Code Requirements The pier in its present form is an illegal structure. The pier encroaches in front of another upland property, violates Newport Beach setback requirements, does not have any offsite parking as
rements The pier in its present form is an illegal structure. The pier encroaches in front of another upland property, violates Newport Beach setback requirements, does not have any offsite parking as required by the Code, nor does it have an restroom facilities as required by the Code.
Setbacks.
Section 17.35.020.B.1 of the NMBC provides: "All piers and slips for residential properties shall be set back a minimum of five feet from the prolongation of the property line.” Piers associated with commercial properties: “... may extend to, but not past, the prolongation of the property line." NMBC Sec. 17.35.020.B.2. The 508 S. Bayfront property is improved with and has been used as a residence, but apparently is zoned for commercial use.
The pier extensions here not only extend past the property line, but across the entirety of the neighboring upland property. There is no question that it violates the setback requirements.
Off-Street Parking.
Section 17.35.080 of the NMBC requires parking be provided for piers as provided in Chapter 20 of the Newport Beach Municipal Code. Similarly, section 17.10.050.E of the code, which governs use of piers for commercial purposes, requires parking be provided under the requirements of the same chapter.
Section 20.40.040 of the Code requires .75 off-street parking spaces for every slip in a private marina. Accordingly, for the six slips here, 4.50 off-street parking spaces are required under that section and, because fractional spaces are to be rounded up (NBMC Sec. 20.40.030.E.1), the proposed permit holder here will be required to provide five off-street parking spaces. The current use has no off-street parking.
Restroom Facilities.
Section 17.45.010.B requires all private commercially operated shore-connected marinas have a
to provide five off-street parking spaces. The current use has no off-street parking.
Restroom Facilities.
Section 17.45.010.B requires all private commercially operated shore-connected marinas have a minimum of two restroom facilities, one for men and one for women, for each 20 berthing spaces. The pier at present has no accessible restroom facilities.
Harbor Commission City of Newport Beach March 11, 2013 Page 4 of 10 Permit Requirements Section 17.60.010 of the Newport Beach Municipal Code notes that the City manages tidelands through a series of permits, franchises and leases. Section 17.60.020 provides that applications for permits which pertain to the harbor are to be filed with the Harbor Resources Division, in writing, on forms prescribed by the Harbor Resources Manager.
Section 17.10.020.F further requires that no person shall engage in, or conduct, any commercial activity on Newport Harbor without a Marine Activities Permit. Under section 17.01.030.C.12 "commercial" activity includes pier rentals. Section 17.10.050 provides that a Marine Activities Permit cannot be approved if off-street parking does not meet the requirements of Chapter 20 of the Code, or if the commercial activity would otherwise violate the City Code. Moreover, any Marine Activities Permits actually issued impose as standard conditions the requirement of adequate off-street parking (Sec. 17.10.070.B.1) and compliance with City ordinances (17.10.070.B.11). Accordingly, no Marine Activities Permit can be issued here unless the pier is brought into compliance with the Newport Beach Municipal Code, and adequate off-street parking and restroom facilities are provided for its use.
Although no permit application is actually pending here, it is unquestioned that a new permit will
ach Municipal Code, and adequate off-street parking and restroom facilities are provided for its use.
Although no permit application is actually pending here, it is unquestioned that a new permit will be required for the pier in question. Section 17.35.020.F provides that where “... existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: 3. Any change of the of the existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee."
The existing pier encroaches over neighboring upland property. As such, a new permit is required to maintain and use the existing pier.
Significantly, nowhere in the code is the Harbor Resources Manager or the Harbor Commission provided discretionary authority to issue permits for structures or activities that violate the Code, as the pier does in this instance. In other words, the permit here cannot be issued unless the pier is brought in compliance with the Code. Because the existing structure and use are unlawful, a permit may no be issued for use in its present form.
Conclusion It is undisputed that the pier at in its present configuration and use violates the law. My client is mindful of the fact that the City previously allowed use of the structure in its present form because its prior permit holder obtained the pier permit many years ago, and the City adopted the view that it was grandfathered as a non-conforming use. That permit, however, has expired or is expiring and any right to maintain an illegal use is terminating.
Harbor Commission City of Newport Beach March 11, 2013 Page 5 of 10 The Newport Beach Municipal Code does not grant the Harbor Commission discretion to permit
o maintain an illegal use is terminating.
Harbor Commission City of Newport Beach March 11, 2013 Page 5 of 10 The Newport Beach Municipal Code does not grant the Harbor Commission discretion to permit structures and uses that entail blanket violations of the Code. The Harbor Commission is certainly entitled to issue a permit for structures and uses that do comply with Code.
Accordingly, if the permit applicant here were to bring the structure into compliance, and otherwise complies with use requirements in the Code, a permit may be permissible. If used as a residential pier, it would need to be moved to comply with the setback requirements. If used as a commercial pier, then it would need to be modified to comply with the setback requirements and, among other things, the applicant would need to provide adequate off-street parking and restroom facilities. Because the pier does not comply with any of these requirements, however, any permit application must be denied.
Moreover, even if a permit were allowed for a structure that violated the Code, there is no justification for issuance of such a permit here. Among other things, this is not a circumstance where unique conditions apply to the property, where compliance with the Code would deprive the property owner of privileges enjoyed by other properties in the vicinity, and where issuance of a permit is necessary to preserve substantial property rights. Because the permit terminates upon a change of ownership, the new owner will have no ownership rights or justifiable use expectations with respect to the pier. Furthermore, granting of the permit will effectively constitute a grant of a special privilege inconsistent with the limitations on other properties in the area. As such, any such request should be denied.
Thank you.
nting of the permit will effectively constitute a grant of a special privilege inconsistent with the limitations on other properties in the area. As such, any such request should be denied.
Thank you.
Sincerely, Coco Christopher Barnette Attachments CC: Susan Riddle (via email) Leonard Bidart (via email) Harbor Commission City of Newport Beach March 11, 2013 Page 6 of 10 EXHIBIT A Valliely House Vallely Pior Bidart Riddle House Harbor Commission City of Newport Beach March 11, 2013 Page 7 of 10 EXHIBIT B View from Inside Riddle/Bidart House Harbor Commission City of Newport Beach March 11, 2013 Page 8 of 10 View of Pier in question from Public Pier on Opal Avenue Harbor Commission City of Newport Beach March 11, 2013 Page 9 of 10 OPAL View showing distance between Subject Pier and Public Pier Harbor Commission City of Newport Beach March 11, 2013 Page 10 of 10 EXHIBIT C Agent Full Report Email 5/3/12 9:55 AM JAKE KLOHS SFR Residential Detached RES Active Thu, May 3, 2012 09:54 AM Newport Beach (NB) Ref: 1 Price $4,599,000 Lower Newport Bay Balboa Island (N9) Orange County (OR) Zip 92662TGNO 919C1 XSTS Park Ave and Opal Aerial Map U12001752 Media: 30 Bed 3 Baths 2 View Bay View, City Lights View, Harbor View, Marina View, View, Water View ASqFt 0 Other Builder Tract Balboa Island - Main Island (BALM) Model (C) Style Cottage Stories Split Level Floor HOA Dues $ 0 + $0 Land Lse/Yr $ ALotSize YrBit 1912 Assessor Dim Land Fee Acres 2,632 Assessor Prkng Assigned Parking, Garage Attached Tot Prkg 2 Garage, # Rem cars 2 A # Uncovered Spaces Cprt # Garages RV Acc Range $: No This timeless home sits in the heart of Balboa Island. Perfectly situated with a direct view of the venerable ferry boats and the majestically
2 A # Uncovered Spaces Cprt # Garages RV Acc Range $: No This timeless home sits in the heart of Balboa Island. Perfectly situated with a direct view of the venerable ferry boats and the majestically lighted Balboa Pavilion. A three bedroom and two bath classic home in great living condition. NEVER BEFORE ON THE MARKET! Home to one of Newport's pioneer families with a large two car garage, boatman's basement and a small sandy beach. The property is a hybrid, in that, it is commercially zoned with a single family residence. Use it as a primary residence, a classic Balboa Island second home, a short or long term rental property or a business. Furnishings are available. Out front is a 'mini marina' unavailable elsewhere in Newport Harbor allowing the owner to rent out ties for six boats, this income is allowable, or use the oversized dock configeration for personal use for a boat up to fifty feet plus four or more smaller boats. One-of-a-kind opportunity!
Directions Balboa Island......Marine Avenue to Park Avenue, right on Park to Opal Avenue.....park and walk to South Bayfront.... three doors from Ferry Special Conditions: Standard Sale or Lease/None Bedrooms Main Floor Master Bedroom Kitchen Total Baths 2 Baths Desc Rooms Living Rm Dining Formal Dining Rm Full Baths 2 3/4 Baths 0 1/2 Baths 0 1/4 Baths 0 Other Basement - Unfinished Pool No Pool Spa No Spa TV Cable TV Firepl Living Room/Brick/Uses Both Gas & Wood Appliances Other Dock Private Amenities Water Heater High or Mid-Rise Amenities Security Heating Forced Air Interior/Exterior/StructuralCooling Ceiling Fan(s), No Air Conditioning Interior Misc Built-In Bookcases, Cathedral-Vaulted Ceilings, Window Shutters, Wood Ceilings, Wood Product Walls Disability Access None Entry Location Ground Level w/steps
Fan(s), No Air Conditioning Interior Misc Built-In Bookcases, Cathedral-Vaulted Ceilings, Window Shutters, Wood Ceilings, Wood Product Walls Disability Access None Entry Location Ground Level w/steps Roof Composition Patio Patio, Porch - Front Cond As Is, Restored Common Walls Exterior Construction Stucco/Brick, Wood Floors Carpet - Partial Plumbing Sprinklers Doors/Windows Wood Frame Windows -Lot/Community/Association Lot/Block/Tract APNO 050 052 14 Zoning Com 5/9/99 City Inspection Required No Mello Roos No Sewer In Street Paid Lot Bay Front, Water Front Water District/Public Legal Coastal Commission Restrictions, In Flood Zone HS Dist Newport Mesa Unified Water District Newport Beach Elemen Yard School District Junior Corona del High Sch Corona Mar del Mar Units Amenities Builder's Name HOA 190 HOA1 Fees Frequency HOA $0 Other Association Fees HOA Phone Total HOA Dues 0 Land Fee Land Lse/Yr $ HOA2 Fees Frequency Terms Cash, Cash To New Loan Instr Appointment Only Builder's Name Distance to Beach (miles) Financial Information Private Transfer Taxes No Total HOA Dues Frequency None Tax Year Total Property Tax $ "Showing Instructions Occupant Agent / Agent Total Assessed Value $ Phone to Show 949-548-4800 Page 1 of 2 Agent Full Report Email Comp 2.5% Add! Comp Dual/Var No LockBox No Key Safe, No Key Safe List Type Exclusive Right To Sell or Lease/Full Service Tours/Open Houses Consider Lease No Possession Gate Code Misc Sign on Property -List Office/Agent Info Cell 5/3/12 9:55 AM List Office Prudential California Realty (U7143) Office 949-723-70800fcFax 949-675-2156 AgtFax 949-675-2156 Res LA Direct
on Gate Code Misc Sign on Property -List Office/Agent Info Cell 5/3/12 9:55 AM List Office Prudential California Realty (U7143) Office 949-723-70800fcFax 949-675-2156 AgtFax 949-675-2156 Res LA Direct List Agent Duncan Forgey (u11813) DRE# 00866951 Pager Primary 949-548-4800 LA Toll Free Agt E-Mail Yes Co List Office Co/LA OfcFax Agt WSite www.DuncanForgey.com Priv Rmks BROKER PREVIEW THURSDAY 5/3 11-2PM...OPEN SAT & SUN 5/5 & 5/6 1-4PM...This home is one of a kind. Easy to show call Duncan 949-548-4800 or Madelynn 949-933-9130. Property is zoned commercial so it opens up possibilities that residential lots do not have. Questions feel free to call. DO NOT MISS THIS OPPORTUNITY TO SHOW AND SELL ONE OF NEWPORT BEACH'S MOST IMPORTANT BAYFRONTS. Buyer and buyer's agent to verify all information. Thanks for your interest.
Price Excl Price Includes Phone to Show Type Agent Phone to Show Name Agent Show Phone 949-548-4800 List Agent Contact Priority: L/A Preferred Phone, L/A Toll Free Phone, L/A Direct Phone, L/A Cell Phone, L/A E-mail, L/A Office Phone Recip Listing No List Date 5/1/2012 Org Price $4,599,000 Date Added 5/1/2012 Prev Price $ -Listing Activity Tran Date 5/3/2012 Cur List Prc $4,599,000 DOM 2 CDOM 2 Off Market LP/SqFt $0.00 Comp 2.5% The accuracy of all information, regardless of source, including but not limited to square footages and lot sizes, is deemed reliable but not guaranteed and should be personally verified through personal inspection by and/or with the appropriate professionals.
http://socallistings.marketlinx.com/Search Detail/Scripts/PrtAgtFulE...L.asp?emailGUID-f9919d82-4ee6-4450-b3f5-8285407fbale&Agentid=U12691 Page 2 of 2 Miller, Chris From: Sent: To: Cc:
CARETS® CARETS http://socallistings.marketlinx.com/Search Detail/Scripts/PrtAgtFulE...L.asp?emailGUID-f9919d82-4ee6-4450-b3f5-8285407fbale&Agentid=U12691 Page 2 of 2 Miller, Chris From: Sent: To: Cc: Subject: Rich Kredel Monday, March 11, 2013 5:37 PM Miller, Chris; Levin, Shannon Fwd: Dock permit application on Balboa Island > March 10, 2013 > > > Mr. Chris Miller > > Balboa Island, CA Balboa Island as a result of the recent sale of the residence.
use. The residential property was advertised for sale as a 'Mini Marina'. The commercial zoning that exists on this block adjacent to the Balboa Ferry creates negative parking impact for the nearby residential streets.
the parking impact from all day or multi day boat trips from this location on Balboa Island is problematic. It negatively impacts Balboa island in general and our neighborhood specifically.
As homeowners here we know the island is public and anyone can come here, park their car, walk, ride the ferry, etc. But why issue long term permits which you know will further impact the residents' and the public's ability to park and enjoy this island.
residential construction in the city. Hopefully, the city and the Harbor Commission are looking at parking
wport Beach is clear and consistent in their requirement for on-site parking for R-2 or multi residential construction in the city. Hopefully, the city and the Harbor Commission are looking at parking impacts from rented docks as well.
> 1 Exhibit G FROM VIVIAN VALLELY FAX NO. :949-673-9517 Aug. 12 2004 06:01PM P1 LUCE FORWARD ATTORNEYS AT LAW FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP CHRISTOPHER K. BARNETTE, PARTNER August 11, 2004 Vivian Vallely Re: Pier at Balboa Island, California www.luce.com Dear Ms. Vallely: This firm represents Susan Bidart, who owns the home adjacent to your property at 510 South Bayfront on Balboa Island. Ms. Bidart has retained me to address concerns with the pier that extends from your property into the bay. As you are aware, the pier not only extends beyond the allowable pier headline, but begins at the edge of Mrs. Bidart's property and extends well in front of the Bidart Property. In doing so, the pier violates numerous City Council policies regarding use and configuration of piers extending from properties on Balboa Island.
Obviously, the pier in its current configuration encroaches well into the sightlines of Mrs.
Bidart's property and is causing significant damage to the property. We would like to explore with you alternative arrangements to mitigate the significant harm being caused by the pier, yet while allowing you to maintain a pier from your property. We are willing to meet with you in person at a mutually convenient time within the next several weeks to discuss these alternatives.
pier, yet while allowing you to maintain a pier from your property. We are willing to meet with you in person at a mutually convenient time within the next several weeks to discuss these alternatives.
If we are unable to meet by September 3, 2004, however, we will begin pursuing alternative recourse to address this problem. Please contact me at your earliest convenience to discuss arrangements. I look forward to hearing from you.
Very truly yours, نيمة Сега чинь Christopher K. Barnette of LUCE, FORWARD, HAMILTON & SCRIPPS LLP CKB:hmk CC: Susan Bidart 1989115.1 326111 CARMEL VALLEY/DEL MAR ” LOS ANGELES " NEW YORK SAN DIEGO SAN FRANCISCO + WEST LOS ANGELES Exhibit H LAW OFFICES OF CHRISTOPHER BARNETTE May 30, 2012 Duncan Forgey Prudential California Realty Re: Dear Mr. Forgey: Newport Beach, California I represent the owner of the property at , which is adjacent to the abovereferenced property you have listed for sale (the "Vallely Property"). I am writing to express concern regarding statements you have made in the listing materials for the property.
As you are aware, the Vallely Property includes a pier in front of the property. Your listing advertises that the property includes a “mini marina'... allowing the owner to rent out ties for six boats... or use the oversized dock configuration for personal use...." In fact, and as set forth below, the pier in front of the Vallely Property does not comply with the City of Newport Beach Municipal Code, and any buyer of the property (in addition to the current owners) will need to bring the pier into compliance with the Code. That change will necessarily substantially reduce the size of the pier.
Newport Beach Municipal Code section 17.35.020.B provides that all piers for residential
the pier into compliance with the Code. That change will necessarily substantially reduce the size of the pier.
Newport Beach Municipal Code section 17.35.020.B provides that all piers for residential properties must be set back a minimum of five feet from the upland property line, and piers for commercial properties may not extend beyond the property line. The Vallely pier extends well over the property line, and indeed extends over the length of my clients' upland property.
Accordingly, regardless whether the Vallely Property is governed by the residential setback or the commercial setback, the pier is in violation of the code.
Section 17.35.020.F.3 of the Code further provides where existing piers encroach in front of abutting upland property owners, a new permit must be approved by the Harbor Commission upon any change of the existing ownership of the abutting upland property or death of the permittee. As a consequence of Mrs. Vallely's recent death, the existing permit for the Vallely pier is no longer valid and a new permit will be necessary.
Mr. Duncan Forgey Re: May 30, 2012 Page 2 of 2 Moreover, to obtain a new permit, the requesting party will need to ensure that the pier complies with the long-standing setback requirements of the municipal code-i.e., it will need to remove those portions of the pier that falls outside the setback requirements.
Although the current "dock configuration" of the Vallely pier may have been grandfathered under Mrs. Vallely's permit, the Newport Beach Municipal Code is clear that under these circumstances a new permit will be required, and that conformance of the pier with the existing municipal code is necessary. Accordingly, we believe that your listing materials for the Vallely
r these circumstances a new permit will be required, and that conformance of the pier with the existing municipal code is necessary. Accordingly, we believe that your listing materials for the Vallely Property are misleading at best. We do not want to faced with a new property owner who has incorrect expectations about what is and what is not allowed with the use of the Vallely pier, nor I expect do you.
We ask that you please correct the listing materials immediately. If I can provide any further information, please do not hesitate to contact me.
Sincerely, Ст Christopher Barnette CC: client (via email) 2 3 DECLARATION OF CHRIS MILLER I, Christopher Miller, declare as follows: 2.
I have personal knowledge of the matters set forth in this declaration, and if 4 S called upon, could and would competently testify thereto.
3.
6 I am employed by the City of Newport Beach as the Newport Beach Harbor Resources Manager.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4. I have been employed by the City of Newport Beach in the Harbor Resources Division since 2003, and have been Harbor Resources Manager since 2008.
5. My duties as Harbor Resources Manager include administering the harbor related policies adopted by the City Council and the Harbor Commission, maintaining files and records of all pier permits issued, and recommending to the City Manager appropriate changes and modifications to harbor-related policies. My duties also include conducting regular inspections of both public and private facilities and structures located 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, and to recommend action to the City
e facilities and structures located 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, and to recommend action to the City Manager to ensure compliance with Newport Beach Municipal Code ("NBMC"), Title 17 Harbor Code.
These duties are set forth in NBMC section 17.05.060.
6. In late 2012, the Newport Beach City Council approved City Council Resolution Nos.
2012-91, 2012-92, 2012-96 and 2012-98, establishing the fair market value rental rates for commercial uses upon tidelands throughout Newport Harbor, and establishing the mechanism by which tidelands could be used by private operators, i.e., either a permit or a lease.
7. On May 2, 2013, I sent a letter to all commercial users of the tidelands informing all commercial users that they had a choice to enter into either an annual permit for use of the tidelands, or a longer term lease agreement. A true and correct copy of that letter is attached hereto as Exhibit A.
8.
I have inspected and am familiar with the location and configuration of the pier, dock and floats that comprise the Vallely Marina, located bayward of the Vallely property at 508 South Bay 25 26 Front, Newport Beach, CA (the "Vallely Property").
27 } /// 28/ 6 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 9.
2 Riddle property at I have inspected and am familiar with the location of the Vallely Marina in relation to the Newport Beach, CA (the "Riddle Property"), and in 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 relation to the tidelands bayward of the Vallely Property and Riddle Property.
10. I have inspected and am familiar with the location of the bulkhead that separates the
8 9 10 11 12 13 14 15 16 17 18 relation to the tidelands bayward of the Vallely Property and Riddle Property.
10. I have inspected and am familiar with the location of the bulkhead that separates the tidelands of Newport Bay and South Bay Front Avenue.
11. South Bay Front Avenue abuts the tidelands at the bulkhead in front of both the Vallely Property and the Riddle Property. The Riddle Property does not border on the tidelands, but rather borders on South Bay Front Avenue.
12.
13.
South Bay Front Avenue is a City right-of-way.
The Vallely Marina does not foreclose access to Newport Harbor from the tidelands abutting South Bay Avenue bayward of the Riddle Property.
14. Access to Newport Harbor from the tidelands bayward of the Riddle Property is available between the floats of the Vallely Marina and the City's pier at Opal Street. Boats berthed at the Vallely Marina use this access.
15.
One of my duties as Harbor Resources Manager is to receive appeals of any City actions involving permits or leases. An appeal must be accompanied by the fee established by the City Council.
This duty and requirement is set forth at NBMC section 17.60.080.
16. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an 19 appeal to myself or to the Harbor Resources Division.
20 20 17. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an 21 appeal to myself or the Harbor Resources Division concerning the Vallely Lease for the Vallely Marina.
22 23 18.
Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an appeal to myself or the Harbor Resources Division concerning the adoption of any City resolution or 24 City ordinance, including Newport Beach City Council Resolution No. 2012-97 and Newport Beach 25 26 46 27
o myself or the Harbor Resources Division concerning the adoption of any City resolution or 24 City ordinance, including Newport Beach City Council Resolution No. 2012-97 and Newport Beach 25 26 46 27 28 Ordinance No. 2013-27.
19.
There are approximately 60 commercial users of tidelands of Newport Harbor. I am familiar with the location and configuration of all commercial uses in Newport Harbor.
7 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 2 20.
Use Water).
21.
3 The Vallely Marina is a commercial use. The Vallely Property is zoned MU-W (Mixed Commercial uses other than the Vallely Marina, i.e., other commercial piers in Newport 4 Harbor, extend past the prolongation of the property lines of the abutting upland property. Two 5 examples, also zoned MU-W, are located at There are other such examples throughout Newport Harbor.
and 22. NBMC section 17.50.010 requires a Harbor Construction Permit to construct a pier in & Newport Harbor. NBMC section 17.50.020 requires that an application to construct a pier must be filed 9 10 11 12 13 14 15 16 17 18 19 20 21 22 with both the Community Development Department and the Harbor Resources Division.
23. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an application to the Harbor Resources Division to construct a pier bayward of the Riddle Property.
24.
NBMC section 17.35.060, enacted in 2008, provides that no new noncommercial piers on Balboa Island shall be approved unless determined by the Harbor Resources Division and harbor Commission to be in the public interest.
25.
NBMC Title 17 Harbor Code, including section 17.35.060, codified the prior Harbor
be approved unless determined by the Harbor Resources Division and harbor Commission to be in the public interest.
25.
NBMC Title 17 Harbor Code, including section 17.35.060, codified the prior Harbor Permit Policies for Newport Harbor. I am aware the same restriction on noncommercial piers on Balboa Island was a prior Harbor Permit Policy in effect since at least 1966.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 24 th day of May, 2018, at Newport Beach, California.
Car Miler CHRIS MILLER 23 24 25 26 27 28 蠶 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues Exhibit A CITY OF NEWPORT CALIFORNIA May 2, 2013 Vallely BEACH CITY OF NEWPORT BEACH Public Works Department Harbor Resources Division Re: Commercial Uses upon Tidelands Permit & Lease Issuance Dear Commercial Marina Neighbor, Thank you for your patience through our recent process of establishing fair market value rent of tidelands in Newport Harbor. Pursuant to the City of Newport Beach's tidelands trust, known as the Beacon Bay Bill (Chapter 74 of the State of California Statutes of 1978), the City is obligated by State law to charge fair market value for rent of certain tide and submerged lands. Establishing the market value rental rates and creating a program to fairly implement these rates has been challenging, and your cooperation and support are truly appreciated.
City Council Resolutions (including 2012-91, 2012-92, 2012-96, and 2012-98) approved in late 2012 establish the fair market value rental rates of the various types of commercial uses located upon tidelands throughout the harbor, and the mechanism by which the lands can be used by private
late 2012 establish the fair market value rental rates of the various types of commercial uses located upon tidelands throughout the harbor, and the mechanism by which the lands can be used by private operators: an annual permit or lease agreement.
In preparation of implementing these new annual permit and lease agreements, the enclosed exhibit has been created - your 2013 Commercial Pier Exhibit for the tidelands associated with your marina. The exhibit was developed using aerial photographs and our Geographic Information System (GIS) which was tested using field measurements, and it was found that the GIS-developed maps slightly underestimate actual square footage. We have proposed staying with that underestimation, as it benefits you. Where piers are over private waterways, County tidelands, or where a recorded easement allows the dock system, no charge is proposed for that portion of the water footprint (and should be excluded and reflected in the diagram).
Effective March 1, 2013, it is your choice to enter into either an annual permit for use of the tidelands associated with your marina, or a longer term lease agreement. Please find examples of both documents on the City's website at www.newportbeachca.gov/HarborRenters Regardless of the type of agreement you select, your rent has been calculated based on the square feet of public tidelands area used by your marina. The rent calculation is shown in the below examples: Example A - Large Commercial Marina Fair Market 2013 (greater than 15,000 SF) Permit Area: 20,000 SF of tidelands 2013 rate based on historical rate ($0.36/SF) $0.36/SF x 20,000 SF = $7,200.00 annual rental rate Example B - Small Commercial Marina Fair Market 2013 (15,000 SF or less) Permit Area: 10,000 SF of tidelands
ate based on historical rate ($0.36/SF) $0.36/SF x 20,000 SF = $7,200.00 annual rental rate Example B - Small Commercial Marina Fair Market 2013 (15,000 SF or less) Permit Area: 10,000 SF of tidelands 2013 rate is 75% of Large Commercial rate (75% of $0.36 = $0.27) City Hall 100 Civic Center Drive Post Office Box 1768 Newport Beach, California 92658-8915. www.newportbeachca.gov (949) 644-3001 Commercial Uses Upon Tidelands Letter Page 2 $0.27/SF x 10,000 SF = $2,700.00 annual rental rate Effective March 1, 2014 the Commercial Marina rates will be calculated by one of two methodologies, equivalent rent or the rent alternative (the greater of base rent or a percentage of gross marina revenue).
• • • Equivalent Rent. Equivalent rent is calculated as an aggregate of established marinas resulting in an established percentage; or Rent Alternative. The Rent Alternative is a base rent of 75% of the established equivalent rent plus 16% of gross marina revenue to the extent it exceeds the base rent payment.
Rates will be phased in over a five year period from 2014-2018 I respectfully ask for your assistance in this process by doing the following: 1. Review the enclosed diagram to confirm the square footage of tidelands area accurately depicts your property lines, pier footprint, and commercial use(s) identified on those docks (i.e.
correctly reflects areas used for charter, vessel rental facility, public slip rental, HOA not rented to public, etc...).
2. If the diagram does not correctly reflect the size and use(s) included in your marina, please contact the City's Harbor Resources Division: Chris Miller at Shannon Levin at 3. Review the annual permit and lease agreement forms on our website http://www.newportbeachca.gov/index.aspx?page=2228 and decide which form works best for
Division: Chris Miller at Shannon Levin at 3. Review the annual permit and lease agreement forms on our website http://www.newportbeachca.gov/index.aspx?page=2228 and decide which form works best for your business. Complete the Request for Commercial Tidelands Permit Form or the Request for Tidelands Lease Agreement Form (also found on the website), and submit it to the City according to the instructions on the form.
4. Review our website for more information. This has been a long process, and there is a lot of misinformation out there. Find out about how the City developed the Resolutions that were approved, along with the basics of the rental charges, on the City's website at www.newportbeachca.gov/HarborRenters Thank you again for your patience with this process and these changes; we hope to make the implementation process as simple and fast as possible, and we appreciate your cooperation with the above steps.
Respectfully, Chris Milter Chris Miller Harbor Resources Manager Enclosure: 2013 Commercial Pier Exhibit 510 510 1/2 1516 618 518 B Vallely - 508 Bay Front S Standard Marina Rate (final)) OF CITY NEWPORT CALIFORNIA May 2, 2013 BEACH CITY OF NEWPORT BEACH Public Works Department Harbor Resources Division Re: Commercial Uses upon Tidelands Permit & Lease Issuance Dear Commercial Marina Neighbor, Thank you for your patience through our recent process of establishing fair market value rent of tidelands in Newport Harbor. Pursuant to the City of Newport Beach's tidelands trust, known as the Beacon Bay Bill (Chapter 74 of the State of California Statutes of 1978), the City is obligated by State law to charge fair market value for rent of certain tide and submerged lands. Establishing the
Beacon Bay Bill (Chapter 74 of the State of California Statutes of 1978), the City is obligated by State law to charge fair market value for rent of certain tide and submerged lands. Establishing the market value rental rates and creating a program to fairly implement these rates has been challenging, and your cooperation and support are truly appreciated.
City Council Resolutions (including 2012-91, 2012-92, 2012-96, and 2012-98) approved in late 2012 establish the fair market value rental rates of the various types of commercial uses located upon tidelands throughout the harbor, and the mechanism by which the lands can be used by private operators: an annual permit or lease agreement.
In preparation of implementing these new annual permit and lease agreements, the enclosed exhibit has been created - your 2013 Commercial Pier Exhibit for the tidelands associated with your marina. The exhibit was developed using aerial photographs and our Geographic Information System (GIS) which was tested using field measurements, and it was found that the GIS-developed maps slightly underestimate actual square footage. We have proposed staying with that underestimation, as it benefits you. Where piers are over private waterways, County tidelands, or where a recorded easement allows the dock system, no charge is proposed for that portion of the water footprint (and should be excluded and reflected in the diagram).
Effective March 1, 2013, it is your choice to enter into either an annual permit for use of the tidelands associated with your marina, or a longer term lease agreement. Please find examples of both documents on the City's website at www.newportbeachca.gov/HarborRenters Regardless of the type of agreement you select, your rent has been calculated based on the square
. Please find examples of both documents on the City's website at www.newportbeachca.gov/HarborRenters Regardless of the type of agreement you select, your rent has been calculated based on the square feet of public tidelands area used by your marina. The rent calculation is shown in the below examples: Example A - Large Commercial Marina Fair Market 2013 (greater than 15,000 SF) Permit Area: 20,000 SF of tidelands 2013 rate based on historical rate ($0.36/SF) $0.36/SF x 20,000 SF = $7,200.00 annual rental rate Example B - Small Commercial Marina Fair Market 2013 (15,000 SF or less) Permit Area: 10,000 SF of tidelands 2013 rate is 75% of Large Commercial rate (75% of $0.36 = $0.27) City Hall 100 Civic Center Drive Post Office Box 1768 Newport Beach, California 92658-8915 www.newportbeachca.gov (949) 644-3001 Commercial Uses Upon Tidelands Letter Page 2 $0.27/SF x 10,000 SF = $2,700.00 annual rental rate Effective March 1, 2014 the Commercial Marina rates will be calculated by one of two methodologies, equivalent rent or the rent alternative (the greater of base rent or a percentage of gross marina revenue).
• • • Equivalent Rent. Equivalent rent is calculated as an aggregate of established marinas resulting in an established percentage; or Rent Alternative. The Rent Alternative is a base rent of 75% of the established equivalent rent plus 16% of gross marina revenue to the extent it exceeds the base rent payment.
Rates will be phased in over a five year period from 2014-2018 I respectfully ask for your assistance in this process by doing the following: 1. Review the enclosed diagram to confirm the square footage of tidelands area accurately depicts your property lines, pier footprint, and commercial use(s) identified on those docks (i.e.
following: 1. Review the enclosed diagram to confirm the square footage of tidelands area accurately depicts your property lines, pier footprint, and commercial use(s) identified on those docks (i.e.
correctly reflects areas used for charter, vessel rental facility, public slip rental, HOA not rented to public, etc...).
2. If the diagram does not correctly reflect the size and use(s) included in your marina, please contact the City's Harbor Resources Division: Chris Miller at [email protected] or (949) 644-3043 Shannon Levin at [email protected] or (949) 644-3041 3. Review the annual permit and lease agreement forms on our website http://www.newportbeachca.gov/index.aspx?page=2228 and decide which form works best for your business. Complete the Request for Commercial Tidelands Permit Form or the Request for Tidelands Lease Agreement Form (also found on the website), and submit it to the City according to the instructions on the form.
4. Review our website for more information. This has been a long process, and there is a lot of misinformation out there. Find out about how the City developed the Resolutions that were approved, along with the basics of the rental charges, on the City's website at www.newportbeachca.gov/HarborRenters Thank you again for your patience with this process and these changes; we hope to make the implementation process as simple and fast as possible, and we appreciate your cooperation with the above steps.
Respectfully, Chris Milter Chris Miller Harbor Resources Manager Enclosure: 2013 Commercial Pier Exhibit 490 508 510 2/1019 Vallely - 508 Bay Front S 516 618 518 B 1 DECLARATION OF LEILANI I. BROWN 2 I, Leilani I. Brown, declare as follows: 1.
3 4 called upon, 2.
5 6 3.
sure: 2013 Commercial Pier Exhibit 490 508 510 2/1019 Vallely - 508 Bay Front S 516 618 518 B 1 DECLARATION OF LEILANI I. BROWN 2 I, Leilani I. Brown, declare as follows: 1.
3 4 called upon, 2.
5 6 3.
I have personal knowledge of the matters set forth in this declaration, and if could and would competently testify thereto.
I am employed by the City of Newport Beach (the "City") as the City Clerk.
I have been employed by the City since December 15, 1997, and have been the Newport 7 Beach City Clerk since November 22, 2008.
00 8 9 4.
My duties as City Clerk are set out in Section 603 of the Newport Beach City Charter.
5.
I attend all meetings of the City Council unless excused and am responsible for the 10 recording and maintaining of a full and true record of all of the proceedings of the City Council. I 11 maintain separate books, in which are recorded respectively all ordinances and resolutions, with the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certificate of the Clerk annexed to each thereof stating the same to be the original or a correct copy, and as to an ordinance requiring publication, stating that the same has been published or posted in accordance with this Charter. I keep all books properly indexed and open to public inspection when not in actual use. I maintain separate books, in which a record is made of all written contracts and official bonds.
6. The City provided proper notice of the City Council meeting wherein the City enacted Newport Beach City Council Ordinance No. 2013-27. (RJN, Exh. H.) This ordinance ordained the amendment of Newport Beach Municipal Code section 17.60.060(E). Specifically, this item was placed on the agenda of the meeting of the City Council, which was posted as required by law and freely
the amendment of Newport Beach Municipal Code section 17.60.060(E). Specifically, this item was placed on the agenda of the meeting of the City Council, which was posted as required by law and freely accessible to the public at least seventy-two (72) hours in advance of the meeting at which the City Council considered the item.
7. In late 2012, the Newport Beach City Council approved City Council Resolution Nos.
2012-91, 2012-92, 2012-96 and 2012-98, establishing the fair market value rental rates for commercial uses upon tidelands throughout Newport Harbor, and establishing the mechanism by which tidelands 26 27 could be used by private operators, i.e., either a permit or a lease. These items were properly placed on the agenda, and posted as required by law.
28 9 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 2 3 4 5 6 7 8. As part of my duties as City Clerk, I receive, maintain and enter into the public record all leases of tidelands in Newport Harbor. Leases are available on the City of Newport Beach website at 9. The tidelands lease between the City and Vallely Boat Rentals, dated March 12, 2015 (the "Vallely Lease"), is kept by the City and was entered into the public record on March 12, 2015.
10.
One of my duties as City Clerk is to receive any written demands directed to the Newport Beach City Council to cure or correct pursuant to Government Code section 54960.1, and/or to receive 8 cease and desist letters directed to myself or the Newport Beach secretary or CEO pursuant to 9 10 11 12 13 14 15 16 17 18 19 20 21 Government Code section 54960.2.
ection 54960.1, and/or to receive 8 cease and desist letters directed to myself or the Newport Beach secretary or CEO pursuant to 9 10 11 12 13 14 15 16 17 18 19 20 21 Government Code section 54960.2.
11. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented a written demand to cure and correct to the Newport Beach City Council.
12. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented a cease and desist letter to myself or the Newport Beach City Manager.
13. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an appeal to myself or the Harbor Resources Division concerning the adoption of any City resolution or City ordinance, including Newport Beach City Council Resolution No. 2012-97 and Newport Beach Ordinance No. 2013-27.
14. By letter addressed to me dated September 23, 2015, attorney Geralyn L. Skapik made a request to the City of Newport Beach for public records under Government Code section 6250, et seq.
(the "Public Records Request") 15.
The City of Newport Beach responded to the Public Records Request by producing the 22 requested documents on November 10, 2015.
23 24 [!!!
25 26 27 22 28 ミミミ 10 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 2 3 4 5 6 7 16.
Among the documents produced pursuant to the Public Records Request was the lease between the City and Vallely Boat Rentals, dated March 12, 2015.
17.
Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented a claim for money or damages to the City of Newport Beach under the Government Claims Act..
I declare under penalty of perjury under the laws of the State of California that the foregoing is
presented a claim for money or damages to the City of Newport Beach under the Government Claims Act..
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 25th day of May, 2018, at Newport Beach, California.
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEILANI I. BROWN CITY OF NE CALIFORNIA BEACH Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 2 3 4 5 PROOF OF SERVICE I am a resident of the County of Orange, State of California, and am over the age of eighteen years and not a party to the within action. My business address is: 6 7 8 10 11 12 13 14 On May 25, 2018, I served the DEFENDANT CITY OF NEWPORT BEACH'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS; DECLARATIONS OF HARRY S. CARMACK, JOHN VALLELY, CHRIS MILLER, AND LEILANI I.
BROWN IN SUPPORT; REQUEST FOR JUDICIAL NOTICE; PROPOSED ORDER on all parties by placing a copy thereof with UPS Ground for overnight delivery, prepaid, at addressed as follows, and by email addressed as follows: Geralyn L. Skapik, Esq.
CLAREMONT LAND GROUP 15 17 18 19 20 20 21 22 23 I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct.
Executed on May 25, 2018, at Costa Mesa, California.
24 24 25 26 27 22 28 /Harry S. Carmack/ HARRY S. CARMACK the Log California's Boating & Fishing News March 5, 2014 NEWPORT BEACH - After a year of battling the city, the Newport Beach Dock Owners Association has settled its lawsuit with the City of Newport Beach for violating the Ralph M. Brown Act.
March 5, 2014 NEWPORT BEACH - After a year of battling the city, the Newport Beach Dock Owners Association has settled its lawsuit with the City of Newport Beach for violating the Ralph M. Brown Act.
The Newport Beach Dock Owners Association filed a lawsuit against the city after city officials implemented an annual pier permit fee increase that raised prices from 800 to 5,000 percent, depending on the size of the dock. The fee increases adopted at a Dec. 11, 2012 city council meeting changed the annual $100 residential pier fee to 52.5 cents per square foot charge, leading to a new annual charge for a majority of piers that averages $300 to $700. Owners of larger residential piers will pay as much as $3,000 per year The lawsuit was filed after the fee increase was adopted on Feb. 21, 2013, alleging violations of California state law requiring open meetings.
"I think they did it unintentionally,” said Bob McCaffrey, volunteer chairman of Stop the Dock Tax Political Action Committee (PAC) and Newport Beach Dock Owners Association, describing what he felt was naiveté on the part of city council members.
The settlement was executed Feb. 21, 2014 by McCaffrey. An agreement not to initiate discovery, including depositions of city council members and key staff was made in return for: replacement of the 1-year permit with a 10-year pier permit that renews for an additional 10 years; upon sale or transfer of the upland homeowner, the pier permit must transfer to the new owner and a 50 year total term allotted to pier permit holders.
In order for the changes in dock owner rights to become official, Newport Beach must first process the ordinance of change, said Aaron Harp, city attorney for Newport Beach.
ed to pier permit holders.
In order for the changes in dock owner rights to become official, Newport Beach must first process the ordinance of change, said Aaron Harp, city attorney for Newport Beach.
"You have to have two readings before they go into effect," he said. “We'll bring it to city council the second meeting in March and the first meeting in April.”
The ordinance will go into effect 30 days after the second meeting.
"It is unfortunate that we had to sue our own city to restore the equity in our docks that they stole in passing the Dock Tax, [it] was an unnecessary money grab that while distasteful, paled in comparison to the city stripping us of the property right to our residential pier,” McCaffrey said.
This property right is estimated at $1 million in some cases, he added.
Stop the Dock Tax Political Action Committee is in the process of ending its affairs, McCaffrey noted, but the Newport Beach Dock Owners Association will remain active.
"Anytime government takes a million dollars in our value we will fight, sue and make changes at city hall” he added. "We will make an announcement in the next few weeks about our plans to make sure taxpaying residents are never again forced to sue our city to protect our property from an overbearing government.”
Chapters: Title 17 HARBOR CODE* 17.01 Definitions 17.05 General Provisions 17.10 Marine Activities Permit 17.20 Vessel Launching and Operation 17.25 Berthing, Mooring and Storage 17.30 17.35 17.40 17.45 Harbor Use Regulations Live-Aboards Sanitation Harbor Development Regulations 17.50 Harbor Development Permits 17.55 Dredging Permits 17.60 Harbor Permits and Leases 17.65 17.70 Appeals or Calls for Review Enforcement *
ons Live-Aboards Sanitation Harbor Development Regulations 17.50 Harbor Development Permits 17.55 Dredging Permits 17.60 Harbor Permits and Leases 17.65 17.70 Appeals or Calls for Review Enforcement * Prior history: Prior Code §§ 8700-8706, 10100, 10103-10105, 10201-10203, 10205-10207, 10209, 10300-10305, 1030710311, 10500(a)-10500(c), 10500.1, 10501-10510, 10600(a), 10601-10603 as amended by Ords. 604, 1029, 1090, 1099, 1145, 1148, 1154, 1286, 1314, 1322, 1328, 1377, 1387, 1390, 1436, 1440, 1468, 1577, 1602, 1607, 1619, 1641, 1667, 1722, 1776, 1801, 1852, 86-24, 87-31, 88-18, 89-7, 90-39, 91-33, 96-10, 98-13, 98-24, 99-6, 2002-18, 2003-2, 2004-24, 2006-3, 2006-5, 2006-15 and 2006-24.
599 (Newport Beach 3-24) 17.01.010 Sections: 17.01.010 17.01.020 17.01.030 17.01.010 Chapter 17.01 DEFINITIONS Effect of Chapter.
Rules for Construction of Language.
Definition of Terms.
Effect of Chapter.
For the purposes of this title and the "Waterfront Project Guidelines and Standards, Harbor Design Criteria, Commercial and Residential Facilities," the words and phrases herein defined shall, unless the context clearly indicates otherwise, have the meanings herein set forth in this chapter. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.01.020 Rules for Construction of Language.
In addition to the general provisions of this Code, the following rules of construction shall apply: A. The particular shall control the general.
B. Unless the context clearly indicates to the contrary, the following conjunctions shall be interpreted as follows: 1. "And" indicates that all connected words or provisions shall apply.
2. "Or" indicates that the connected words or provisions may apply singly or in any combination.
3. "Either...or” indicates that the connected
cates that all connected words or provisions shall apply.
2. "Or" indicates that the connected words or provisions may apply singly or in any combination.
3. "Either...or” indicates that the connected words or provisions shall apply singly but not in combination.
C. In case of conflict between the text and a diagram, the text shall control.
D. All references to departments, commissions, or boards, are to those of the City, unless otherwise indicated.
E. All references to public officials are to those of the City, unless otherwise indicated. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.01.030 Definition of Terms.
A. Definitions: A.
1. Abutting Upland(s) Property. The term “abutting 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 harbor structure 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.
2. Alternate Materials, Design and Methods of Construction. The term “alternate materials, design and methods of construction" shall refer to the alternate materials, design or methods of construction authorized in Sections 1.8.7.2 and [A] 104.11 of the California Building Code.
3. Anchorage or Anchorage Area. The terms "anchorage” and “anchorage area” shall mean any portion of Newport Harbor 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.
4. Applicant. The term “applicant” shall mean a
een designated pursuant to law and approved by the Federal government for the temporary anchorage of vessels, using the vessel's own anchoring tackle.
4. Applicant. The term “applicant” shall mean a person applying for a permit under this title.
5. Approval in Concept. The term “approval in concept” shall mean a conceptual approval issued by the City prior to the application to the Coastal Commission, Army Corps of Engineers or other regulatory agency for development in areas where the regulatory agency retains jurisdiction, which indicates the proposed development conforms in concept to this Code and the design criteria.
6. Assigned Vessel. The term “assigned vessel" shall mean a vessel lawfully owned and registered or documented to a permittee to occupy a designated mooring or berthing location in Newport Harbor.
Definitions: B.
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 unconsoli601 (Newport Beach 3-24) 17.01.030 dated 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, at the water line where the boat directly interfaces the dock, and the walking deck.
For the purpose of compliance with any measure-
. Vessel beams are generally critical at two locations of the boat, at the water line where the boat directly interfaces the dock, and the walking deck.
For the purpose of compliance with any measurement requirements, the beam shall be interpreted as the widest point of the vessel which includes all vessel attachments including but not limited to boarding steps, rub rails and fixed fenders.
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. 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.
7. Bulkhead or Seawall. The term “bulkhead" or "seawall" shall mean the retaining wall that separates dry land areas and water areas.
8.
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 Newport 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.
9. Business or Business Activity. The terms "business" and "business activity" shall mean all activities, whether the activity is nonprofit or for profit, engaged in for gain, benefit, advantage or livelihood to any person, directly or indirectly, including, but not limited to, any profession, trade,
ies, whether the activity is nonprofit or for profit, engaged in for gain, benefit, advantage or livelihood to any person, directly or indirectly, including, but not limited to, any profession, trade, occupation, 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.
C. 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 Federal 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, City navigation charts or maps, or 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. Chum. The term “chum” shall mean to place in the water fish, or other material upon which fish feed, for the purpose of attracting fish to a particular area in order that they may be taken.
6. City Tide and Submerged Land. The term
n to place in the water fish, or other material upon which fish feed, for the purpose of attracting fish to a particular area in order that they may be taken.
6. 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.
7.
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.
8. 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 California Coastal Act including review of coastal permits on appeal from local agencies.
9. Coastal-Dependent Development or Use. The terms "coastal-dependent development” or “coastaldependent use” shall mean any development or use which requires a site on, or adjacent to, the sea to be (Newport Beach 3-24) 602 17.01.030 able to function at all (from California Public Resources Code Section 30101).
10. 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.
11. Commercial Fishing Vessel. The term "commercial fishing vessel" shall mean a vessel registered by the Department of Fish and Wildlife pursuant to the California Fish and Game Code Section 7880 et seq., when operating under the authority of a fish and game permit or license.
12. Current. The term “current” as applied to the
Wildlife pursuant to the California Fish and Game Code Section 7880 et seq., when operating under the authority of a fish and game permit or license.
12. Current. The term “current” as applied to the flow of water shall mean a flow of water in a particular direction. Such flows can be driven by wind, temperature or density differences, tidal forces, and wave energy.
D. Definitions: D.
1. Dead Load. The term "dead load" shall mean the weight of all construction materials and equipment that may be permanently attached to a dock.
2. Design Criteria. The term “design criteria" refers to "Waterfront Project Guidelines and Standards, Harbor Design Criteria, Commercial and Residential Facilities" adopted by the City and as amended from time to time, as minimum standards for design whenever harbor permits are required.
The City may require additional requirements, based on the specific details of a particular application and project.
3. Dinghy or Tender. The term “dinghy” or “tender” shall mean a vessel no longer than fourteen (14) feet in overall length.
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 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
r 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 a 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 or mooring buoy locations that feed into a channel, and which is used for direct access to slips or moorings. When associated with slips, the fairway 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.). When associated with a mooring area, the fairway is defined as lying between the outer ends of the mooring buoy on either side of the fairway as delineated by Council policy.
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
her side of the fairway as delineated by Council policy.
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 Engineers to Congress on November 11, 1936, as recorded in the first session of the Seventy-Fifth Congress in 1937.
3. Finger. The term “finger” shall mean a portion of a floating dock section that is perpendicular or at an angle to the walkways and is used for tying up and boarding vessels.
603 (Newport Beach 3-24) 17.01.030 4. 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.
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 gunwale.
5. Functional Capacity. In terms of wetlands and estuaries, the term “functional capacity” shall mean the ability of the wetland or estuary to be selfsustaining 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 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. Graywater. The term “graywater” shall mean all water and other fluids used on a vessel for any purpose whatsoever, including, but not limited to, washing or cleaning clothing, linens, towel, bedding or other linens; washing or cleaning cooking equipment, eating utensils, or serving ware; bathing,
ose whatsoever, including, but not limited to, washing or cleaning clothing, linens, towel, bedding or other linens; washing or cleaning cooking equipment, eating utensils, or serving ware; bathing, showering or cleansing; and/or washing and/or cleaning all or any portion of the interior of a vessel, including, but not limited to, heads, kitchens, engine rooms, floors, windows, furniture, equipment or other portions of the interior of the vessel.
3. 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 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.).
4. Groin System or Groin Field. The term "groin system" or "groin field” shall mean a series of groins acting together to protect a section of beach or shoreline.
H. Definitions: H.
1. Habitat. The term “habitat” shall mean the locality, including the physical and biological environment, in which a plant or animal lives.
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. 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
ongress.
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 inand over-water structures; mooring maintenance and repair; and/or waterborne debris and pollution control, collection, and removal. This category also includes environmental, survey, or scientific vessels and related equipment based, or on assignment, in Newport Harbor.
4. Harbor Structures. The term "harbor structures" refers to any pier, float, gangway, piling, bulkhead, seawall, reef, breakwater or any other structure excluding moorings or watercraft 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.
5.
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.
6.
Houseboat. The term "houseboat” shall mean any vessel or harbor structure, floating or nonfloating, which is designed or fitted out as a place of habitation and is not principally used for transportation.
7. Human-Powered Vessel. The term “humanpowered vessel” shall mean a vessel that is being propelled by the human body through the use of oars, paddles, or the like and without the use of wind, a motor, or other machinery.
(Newport Beach 3-24) 604 17.01.030 I. Definitions: L.
1. Launching Facility. The term “launching facility” shall mean a generic term referring to any
hout the use of wind, a motor, or other machinery.
(Newport Beach 3-24) 604 17.01.030 I. 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. Licensee(s). The term "licensee(s)" shall mean the person(s) who holds a validly issued shortterm mooring license pursuant to Section 17.60.045.
3. Live-Aboard. The term “live-aboard” shall mean the use or occupancy of a vessel for human habitation (a) while at its mooring for a period exceeding seventy-two (72) hours in any thirty (30) day consecutive period; or (b) at its dock or berth in a commercial marina for a period exceeding one hundred eighty (180) days or more, in any three hundred sixty-five (365) day period.
4. Live Bait and/or Sea Life Receiver. The term "live bait" or "sea life receiver” shall mean an object for confining live bait or sea life such as those receivers fostering growth of sea life under the water, which is afloat in the waters of Newport Harbor or the Pacific Ocean, either moored to a pier, bulkhead or sea wall, or moored by means of an anchor or other weight to the bottom of the harbor or ocean; provided, however, that a live bait receiver shall not be deemed to be a “structure” within the meaning of Chapter 17.50.
5. Live Load. The term “live load" refers to the weight of all temporary loads such as pedestrians and berthing loads.
6. Local Coastal Program (LCP). The term "Local Coastal Program” or “LCP” shall mean Title 21 and the City of Newport Beach Coastal Land Use Plan adopted by the City and certified by the Coastal Commission in order to implement the provisions
Local Coastal Program” or “LCP” shall mean Title 21 and the City of Newport Beach Coastal Land Use Plan adopted by the City and certified by the Coastal Commission in order to implement the provisions and policies of the Coastal Act at the local level.
7. Longshore. The term “longshore” shall mean parallel to and near the shoreline.
8. Lower Newport Bay. The term “Lower Newport Bay" shall mean the area of Newport Bay south of the centerline of Coast Highway.
J.
Definitions: M.
1. Maintenance Construction. The term “maintenance construction" shall mean the reconstruction or replacement within the existing footprint of twenty (20) percent, or less, of the total replacement value of an existing pier, float, gangway, piling, bulkhead, seawall, reef, breakwater or other structure, 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 predetermined values of various work on record with and established by the Building Official.
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, anchorage or noncommercial pier) in which five or more vessels are wet-stored (in water) and/or drystored (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
. 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.
5. Mean Lower Low Water (MLLW). The term "mean lower low water" or "MLLW" shall mean the nineteen (19) year average of the lower low water heights. MLLW is the datum used to define elevations of structures within the bay, along the coastline, and for navigation.
6. 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.
7. 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 and includes any apparatus used to secure a vessel in Newport Harbor which is not carried aboard such vessel as regular equipment when under way.
8. Mooring Area. The term “mooring area” shall mean an area designated for a group of moorings.
9. Motorboat. The term "motorboat” shall mean any vessel being propelled by machinery.
605 (Newport Beach 3-24) 17.01.030 10. Mudline. The term "mudline" shall mean the highest elevation of accumulated sediments.
11. Multiple Vessel Mooring System. The term "multiple vessel mooring system” shall mean a floating platform secured to a single or double anchor mooring system which allows multiple vessels to be secured.
K. Definitions: N.
or 1. New Construction. The term "new construction” shall mean: the erection or construction of a new pier, float, gangway, piling, bulkhead, seawall,
tiple vessels to be secured.
K. Definitions: N.
or 1. New Construction. The term "new construction” shall mean: the erection or construction of a new pier, float, gangway, piling, bulkhead, seawall, reef, breakwater or other structure; or the improvement, conversion, extension, reconstruction replacement of more than twenty (20) percent of the replacement value of an existing pier, float, gangway, piling, bulkhead, seawall, reef, breakwater or other structure. Construction estimates and the total value of work on any given project is based on predetermined values of various work on record and established by the Building Official.
2. Newport Bay. The term “Newport Bay” shall mean the estuary consisting of the Lower Newport Bay and the Upper Newport Bay.
3. Newport Harbor. 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 Ecological Reserve.
4. Nonprofit Organization. The term “nonprofit organization" shall mean an entity that registers with the Internal Revenue Service or the State Franchise Tax Board as tax exempt and, as a result, 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 mooring that is located bayward of the pierhead line and is comprised of a single or double buoy, weight and chain installed for the purpose of berthing a vessel, as provided by Chapter 17.25.
2. Onshore Mooring. The term “onshore mooring" or "shore mooring" shall mean a mooring for vessels which is located in the nearshore perimeter of the harbor and its islands, perpendicular to the shoreline, where one end of the mooring line is attached to
mooring" shall mean a mooring for vessels which is located in the nearshore perimeter of the harbor and its islands, perpendicular to the shoreline, where 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 single buoy, weight and chain installed for the purpose of berthing a vessel, as provided by Chapter 17.25.
3. Open Coastal Waters. The term “open coastal waters” shall mean the area composed of submerged lands at extreme low water of spring tide extending seaward to the boundaries of the exclusive economic zone (twelve (12) to two hundred (200) miles). This includes navigation channels, turning basins, vessel berthing, anchorage and mooring areas of Newport Bay.
4. Operable. The term “operable” shall mean capable of safely 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.
5. 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. 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.
2. Permittee(s). The term “permittee(s)” shall be the person or entity who holds a validly issued permit under any provision of this title. Permittee(s) shall also include licensee(s), except in cases where such definition would conflict with another provision of this title.
3. Pier. The term “pier” shall mean any fixed or floating structure for securing vessels, loading or
ee(s), except in cases where such definition would conflict with another provision of this title.
3. 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 the water. A pier includes wharf, dock, slip, gangway or float, or any other landing facility or floating dry dock.
a.
Commercial Pier. The term "commercial pier" shall mean a pier adjacent to commercially or nonresidentially 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 or boat yards. For purposes of this title, multiple piers which are adjacent to a lot or parcel of land occupied by a multifamily dwelling or dwelling units that are (Newport Beach 3-24) 606 17.01.030 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(s), occupant(s), guest(s) or lessee(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.
4. Pierhead Line. The term “pierhead line” shall mean the harbor water area perimeter lines established in Newport Harbor by the Federal government or the City, in cooperation with private associations, 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 struc-
e 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 the Harbor Commission.
5. Project Line. The term “project line” shall mean the harbor water area channel lines of the improvements constructed by the Federal Government in 1935 through 1936.
6. Property Owner. The term "property owner," for purposes of Chapter 17.50, shall mean the owner of the abutting upland property who has obtained a permit to place a structure in Newport Harbor.
7. 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 and includes all tidelands, submerged lands, the beds of navigable lakes and rivers, and historical tidelands and submerged lands that are presently filled or reclaimed and which were subject to the public trust at any time.
N. Definitions: R.
1. Residential. The term “residential” shall mean those properties that are identified in Title 20 as a district that allows residential uses or areas designated and used for residential purposes.
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.
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 the City.
4. Riprap. The term “riprap” shall mean a pro-
arf public pier” shall mean the pier and long float parallel to the Rhine Wharf, and which is used for public recreational purposes provided by the City.
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.
O. Definitions: S.
1. Sail Area. The term "sail 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 boats owned or operated by the club for its members.
3. Seaworthy. The term “seaworthy” shall mean that the vessel is safe, operable and reasonably fit for its intended purpose, not leaking fluids overboard, and its 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 line.
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 (NOAA) Office of Coast Survey nautical charts and surveys approximating the mean low tide water line at the time the chart was prepared.
6. Side Tie. The term "side tie" shall mean a berth where the dock is alongside only one side of the boat.
7. Slip. The term “slip” shall mean a berth
de water line at the time the chart was prepared.
6. Side Tie. The term "side tie" shall mean a berth where the dock is alongside only one side of the boat.
7. 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.
8. Sport Fishing Charter. The term "sport fishing charter" shall mean a vessel chartered solely for sport fishing outside of Newport Harbor.
607 (Newport Beach 3-24) 17.01.030 9. Submerged Lands. The term “submerged lands" shall mean lands which lie below the line of mean low tide.
10. Sub-Permit. The term “sub-permit” shall mean a permit issued by the Harbormaster for the temporary use of a deemed vacant or noticed vacant mooring.
P. Definitions: T.
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.
2.
Tidelands Trust. The term "tidelands trust" shall mean all tidelands and submerged lands granted to the City by State or Federal legislation and the terms and conditions of any such legislative grant.
Q. Definitions: U.
1. Upland. The term “upland” shall mean land with a shared property line with and immediately adjacent to Newport Harbor.
2. 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 Newport Bay north of the centerline of Coast Highway.
R. Definitions: V.
1. Vessel. The term "vessel" shall mean any watercraft used as a means of transportation on water, whether mechanically powered, human powered or wind powered, including, but not limited to,
ons: V.
1. Vessel. The term "vessel" shall mean any watercraft used as a means of transportation on water, whether mechanically powered, human powered or wind powered, including, but not limited to, ships and boats of all kinds, sailboats, catamarans, trimarans, dinghies, and every hulled structure adapted to be navigated from place to place for the transportation of persons or property.
2. Vessel Length. The term “vessel length" shall include the following: a. Length overall as published by the manufacturer of a particular vessel (LOA).
b. Adjusted length overall (adjusted LOA) is the LOA plus the length including all vessel attachments which may include bowsprits, swim steps or stern mounted dinghies or other objects affixed to the vessel adding to the LOA.
C.
In the event the LOA cannot be obtained from the published manufacturer specifications, then the LOA shall be determined by first, a United States Coast Guard (USCG) documentation certificate, or if none is available then second, by a State-issued registration document, or if none is available, then third by other official documentation certifying the LOA of the vessel acceptable to the Harbormaster at his or her discretion.
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.
4. Vessel Width. The term "vessel width" shall have the same meaning as “beam” defined above.
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 New-
ystem 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.
3. Wind-Powered Vessel. The term "wind-powered vessel" shall mean a vessel that is being propelled by the wind through the use of sails and without the use of a motor or other machinery.
T.
Definitions: Z.
1. Zostera Marina. See Eelgrass. (Ord. 2023-22 § 751, 2023; Ord. 2022-4 § 1, 2022; Ord. 2020-27 § 1, 2020; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-18 § 1, 2018; Ord. 2018-17 §§ 3—6, 2018; Ord. 2017-8 §§ 1, 2, 2017; Ord. 2017-7 §§ 1, 2, 2017; Ord. 2013-27 § 1, 2013; Ord. 2013-11 §§ 124-131, 2013; Ord. 2013-1 §§ 2, 3, 4, 5, 2013; Ord. 2011-6 §§ 1, 2, 2011; Ord. 2010-26 §§ 1, 2, 3, 2010; Ord. 2009-2 § 1, 2009; Ord. 2008-2 § 1 (part), 2008) (Newport Beach 3-24) 608 17.05.010 Chapter 17.05 GENERAL PROVISIONS Sections: 17.05.010 Title.
Purpose.
Applicability.
Administrative Authority.
Duties of the City Manager.
Duties of the Harbormaster.
Duties of the Public Works Director.
Duties of the Community Development Director.
Duties of the Harbor Commission.
17.05.020 17.05.030 17.05.040 17.05.050 17.05.055 17.05.060 17.05.062 17.05.065 17.05.070 17.05.080 17.05.090 17.05.100 Public Trust Lands.
Local Coastal Program.
Coordination with Resource Agencies.
17.05.110 17.05.120 Rules for Interpretation.
Payment of Fees.
17.05.130 17.05.140 Title.
17.05.010 Establishment of Channels,
Trust Lands.
Local Coastal Program.
Coordination with Resource Agencies.
17.05.110 17.05.120 Rules for Interpretation.
Payment of Fees.
17.05.130 17.05.140 Title.
17.05.010 Establishment of Channels, Turning Basins, Etc.
Permits Nontransferable.
Public Hearings.
This title shall be known as the "City of Newport Beach Harbor Code" and referred to as the "Harbor Code." (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2008-2 § 1 (part), 2008) 17.05.020 Purpose.
A. Preserve the diverse uses of the harbor and the waterfront that contribute to the charm and character of Newport Bay, and that provide needed support for recreational boaters, visitors, and residents with regulations limited to those necessary to protect the interests of all users; B. Maintain and enhance public access to the harbor water and waterfront areas; C. Enhance the water quality and protect the marine environment in the harbor; D. Preserve and enhance the visual character of the harbor; E. Preserve and enhance historical resources of the harbor; F. Provide for the ongoing administration and maintenance of the harbor; G. Recover the costs of services provided to tidelands users and the fair market rental value where appropriate; H. Administer the use of public trust lands in a manner consistent with the tidelands trust, the California Constitution, the certified Local Coastal Program, and applicable laws; and I.
Implement the policies of the General Plan and certified Local Coastal Program. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § (part), 2008) 17.05.030 Applicability.
The provisions of this title, and any rules and regulations adopted pursuant to this title, shall be applicable to and within Newport Harbor and all public trust lands under the jurisdiction of the City that are
of this title, and any rules and regulations adopted pursuant to this title, shall be applicable to and within Newport Harbor and all public trust lands under the jurisdiction of the City that are not subject to Title 21, except where otherwise provided in this title. Any activity or action or use of Newport Harbor regulated herein is prohibited unless specifically permitted by the provisions of this Code, or the tidelands trust. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.040 Administrative Authority.
The responsibility for the administration of the provisions of this title is delegated to the City Manager, or officers or employees of a department or departments of the City designated by him or her, except as delegated by this title. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 7, 2018: Ord.
2013-11 § 132, 2013: Ord. 2008-2 § 1 (part), 2008) 17.05.050 Duties of the City Manager.
The City Manager shall be authorized to: A. Carry out the orders of the City Council and to enforce this title and all other ordinances and tidelands trust requirements; B. Order any vessel improperly berthed to change its position or location as he or she may designate, and in case his or her orders are not complied with, or the vessel is unattended, to cause such vessel 609 (Newport Beach 3-24) 17.05.055 to be so moved, and to collect the cost of removal; and C. Promptly report to the appropriate Federal agency any violation of the laws of the United States for the protection of navigation and the preservation of navigable waters, particularly any encroachment on the waterway by the building of illegal structures, illegal filling or dumping of material of any sort into the waterway, or throwing overboard or setting adrift
ters, particularly any encroachment on the waterway by the building of illegal structures, illegal filling or dumping of material of any sort into the waterway, or throwing overboard or setting adrift or allowing to be set adrift anything that is or might become obstructive or dangerous to navigation.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 § 133, 2013; Ord. 2008-2 § 1 (part), 2008) 17.05.055 Duties of the Harbormaster.
It shall be the duty of the Harbormaster and the Harbormaster is hereby authorized to: A. Act for and assist the City Manager in administering the provisions of this title, perform the duties assigned to the Harbormaster in this title, coordinate with the resource agencies, regulatory agencies, and private organizations, as set forth in Section 17.05.100, coordinate with interested civic associations and coordinate with the Public Works Director, Community Development Director, and other appropriate department directors for services falling within their respective functions as defined in Title 2; B. Act as the head of the Harbor Department and supervise and assist the City staff assigned to the Harbor Department to carry out the purposes of this title; C. Administer the harbor-related policies adopted by the City Council and the Harbor Commission, and recommend to the City Manager appropriate changes and modifications to harbor-related policies; D. Conduct regular inspections of both public and private facilities and structures located 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, and to recommend action to the City Manager to ensure compliance with this title; E. Interpret the meaning and application of the
cean or any other water where the tide ebbs and flows within the City, and to recommend action to the City Manager to ensure compliance with this title; E. Interpret the meaning and application of the provisions of this title related to uses and activities that require a permit be issued by the Harbormaster and enforce this title with respect to uses and activities that fall within the Harbormaster's duties; and F. Approve, conditionally approve or disapprove applications for uses and activities that require a permit to be issued by the Harbormaster in accordance with the provisions set forth in this title. (Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 8, 2018) 17.05.060 Duties of the Public Works Director.
It shall be the duty of the Public Works Director and the Public Works Director is hereby authorized to: A. Maintain files and records of all pier permits issued by the City; B. Act for and assist the City Manager in administering the provisions of this title, perform such duties as assigned to the Public Works Director by this title, and coordinate with the resource agencies, regulatory agencies, the Harbormaster, the Community Development Director and other appropriate department directors for services falling within their respective functions as defined in Title 2; C. In cooperation with the Community Development Director, issue approvals in concept or harbor development permits, for development located on tidelands or submerged lands that do not involve a discretionary action required by Title 20 or 21, where the authority is specifically assigned to the City Council, Planning Commission, Harbor Commission, Community Development Director, or Zoning Administrator; D. Interpret the meaning and application of the
ority is specifically assigned to the City Council, Planning Commission, Harbor Commission, Community Development Director, or Zoning Administrator; D. Interpret the meaning and application of the provisions of this title related to uses and activities that require a permit be issued by the Public Works Director and enforce this title with respect to uses and activities that fall within his or her function; and E. Approve, conditionally approve, or disapprove application for the uses and activities that require a permit to be issued by the Public Works Director in accordance with the provisions set forth in this title. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 9, 2018: Ord. 2013-11 § 134, 2013; Ord. 2008-2 § 1 (part), 2008) (Newport Beach 3-24) 610 17.05.062 17.05.062 Duties of the Community Development Director.
It shall be the duty of the Community Development Director and the Community Development Director is hereby authorized to: A. Act for and assist the City Manager in administering the provisions of this title, perform such duties as assigned to the Community Development Director by this title, and coordinate with the Harbormaster, the Public Works Director and other appropriate department directors for services falling within their respective functions as defined in Title 2; B. Interpret the meaning and application of the provisions of this title related to uses and activities that require a permit be issued by the Community Development Director, and enforce this title with respect to uses and activities that fall within his or her function; and C. Approve, conditionally approve, or disapprove applications for the uses and activities that require a permit to be issued by the Community Development Director in accordance with the provi-
; and C. Approve, conditionally approve, or disapprove applications for the uses and activities that require a permit to be issued by the Community Development Director in accordance with the provisions set forth in this title. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020) 17.05.065 Duties of the Harbor Commission.
It shall be the duty of the Harbor Commission to: A. Advise the City Council in all matters pertaining to the use, control, operation, promotion and regulation of all vessels and watercraft within Newport Harbor.
B. Approve, conditionally approve, or disapprove applications on harbor permits provided in this Code.
C. Serve as an appellate and reviewing body for decisions related to harbor permits, and other harborrelated administrative matters.
D. Advise the City Council on proposed harborrelated improvements.
E. Advise the City Council, Planning Commission, and City Manager on land use and property development applications referred to the Harbor Commission by the City Council, Planning Commission, or the City Manager.
F. Make recommendations to the City Council for the adoption of regulations and programs necessary for the ongoing implementation of the goals, objectives, policies of the Harbor and Bay Element of the General Plan, the Harbor Area Management Plan, and the Tidelands Infrastructure Capital Plan.
G. Advise the City Council on the implementation of assigned parts of the Tidelands Capital Plan including, but not limited to, dredging priorities, inbay beach sand replenishment priorities, and Newport Harbor amenities such as mooring support service areas and public docks. (Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.070 Establishment of Channels, Turning Basins, Etc.
rbor amenities such as mooring support service areas and public docks. (Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.070 Establishment of Channels, Turning Basins, Etc.
All channels, turning basins, anchorage areas, and pierhead and bulkhead lines in Newport Harbor shall be as established by the Federal government or by the City Council upon recommendation of the Harbor Commission. A map thereof shall be kept on file in the offices of the City Clerk and the Harbor Department for public inspection. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 10, 2018: Ord.
2013-11 § 135, 2013: Ord. 2008-2 § 1 (part), 2008) 17.05.080 Public Trust Lands.
A. Limits on Uses. Public trust lands are subject to the common law public trust, which limits uses to navigation, fishing, commerce, public access, wateroriented recreation, open space and environmental protection.
B. Exceptions. State legislation has modified public trust restrictions for the historic tidelands in Beacon Bay, the Balboa Bay Club, and Harbor Island as follows: 1. Beacon Bay. The Beacon Bay Bill (Chapter 74, Statutes of 1978) and Senate Bill 573 (Chapter 317, Statutes of 1997) allow the residential lots of Beacon Bay located within State tidelands to be leased for residential purposes.
2. Balboa Bay Club. The Beacon Bay Bill (Chapter 74, Statutes of 1978) and Assembly Bill 3139 (Chapter 728, Statutes of 1994) allow Parcel D of the Balboa Bay Club to be leased for residential purposes until December 31, 2044.
3. Harbor Island. Chapter 715, Statutes of 1984, allows the filled or reclaimed land on Harbor Island to be leased for nonpermanent recreational and land611 (Newport Beach 3-24) 17.05.090 scaping purposes. (Ord. 2020-5 § 1 (Exh. 1) (part),
f 1984, allows the filled or reclaimed land on Harbor Island to be leased for nonpermanent recreational and land611 (Newport Beach 3-24) 17.05.090 scaping purposes. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.090 Local Coastal Program.
A. Discretionary applications shall be reviewed to ensure conformity with the policies and regulations of the certified Local Coastal Program.
B. All uses of the marine environment shall be carried out in a manner consistent with sustaining the biological productivity of coastal waters and to support populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes.
C. Where applicable, development in Newport Harbor shall: 1. Protect, and where feasible, expand and enhance vessel-launching facilities in Newport Harbor including low-cost public launching facilities, such as trailer launch ramps, boat hoists, commercial landing facilities, and organized recreational boating launch facilities; 2. Provide a variety of berthing opportunities reflecting State and regional demand for slip size and affordability throughout Newport Harbor; 3. Protect, and where feasible, enhance and expand marinas and dry boat storage facilities; 4. Protect shore moorings and offshore moorings as an important source of low-cost public access to the water and harbor; 5. Protect, and where feasible, enhance and expand dinghy docks and guest docks at public facilities, yacht clubs and at privately owned marinas, restaurants and other appropriate locations; 6. Protect, and where feasible, expand and enhance facilities and services for visiting vessels, including public mooring and docking facilities, dinghy docks, guest docks, club guest docks, pump-out
. Protect, and where feasible, expand and enhance facilities and services for visiting vessels, including public mooring and docking facilities, dinghy docks, guest docks, club guest docks, pump-out stations and other features through City, County, and private means; 7. Protect, and where feasible, expand and enhance facilities necessary to support vessels berthed or moored in the harbor, such as boat haulout facilities; 8. Protect, and where feasible, expand and enhance existing harbor support uses serving the needs of existing waterfront uses, recreational boaters, the boating community and visiting vessels; 9. Support private sector uses, such as vessel assistance, that provide emergency, environmental enhancement and other services that are not provided by public agencies and that are essential to the operation of a harbor; and 10. Provide, and, wherever feasible, expand and enhance existing recurring and year-round harbor special permits and special purpose uses such as boat shows and boating festivals, boat sales displays and delivery/commissioning facilities. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.100 Coordination with Resource Agencies.
In carrying out the provisions of this title, coordination with the Coastal Commission, the Army Corps of Engineers, California Department of Fish and Wildlife, United States Fish and Wildlife Service, the National Marine Fisheries Service, other resource management agencies, and private organizations, as applicable, shall be required to ensure the protection of marine resources. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.110 Rules for Interpretation.
Where uncertainty exists regarding the interpreta-
ensure the protection of marine resources. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.05.110 Rules for Interpretation.
Where uncertainty exists regarding the interpretation of any provision of this title or its application to a use or activity that requires a permit be issued by the Harbormaster, Public Works Director or Community Development Director, the person holding the position charged with issuing the permit shall determine the intent of the provision or the application thereof and issue a determination or refer the matter to the Harbor Commission for a determination. An interpretation made by the Harbormaster, Public Works Director or Community Development Director may be appealed to or called for review by the Harbor Commission, in compliance with Chapter 17.65. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2018-17 § 11, 2018: Ord. 2008-2 § 1 (part), 2008) 17.05.120 Payment of Fees.
A. Date of Payment. All permit fees required to be paid under this title shall be due and payable on a schedule established by the Finance Director. Any permit holder who fails to pay any permit fee or renewal fee required by this title after the same is due (Newport Beach 3-24) 612 17.05.130 shall be subject to late fees and charges in the amount established by resolution of the City Council in accordance with Section 3.36.040. Failure to pay the permit fee or renewal fee, plus any late fees and charges, within one hundred twenty (120) days of when the permit fee or renewal fee was due shall constitute grounds for revocation of the permit by the responsible review authority.
B. Revenue. The revenue resulting from the administration of this title shall be accounted for separately and used exclusively for the purposes autho-
the permit by the responsible review authority.
B. Revenue. The revenue resulting from the administration of this title shall be accounted for separately and used exclusively for the purposes authorized to be used for public trust lands. (Ord. 2020-5 §1 (Exh. 1) (part), 2020: Ord. 2018-17 §§ 12, 13, 2018; Ord. 2013-11 §§ 136, 137, 2013; Ord. 2008-2 § 1 (part), 2008) 17.05.130 Permits Nontransferable.
Unless otherwise authorized in this title, any permit issued under this title is personal to the person receiving such permit, and may not be transferred or assigned to any other person without the express written consent of the issuing official or body in compliance with the provisions for issuance of such permit. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2008-2 § 1 (part), 2008) 17.05.140 Public Hearings.
A. Purpose. Except for revocations covered under Chapter 17.70, when a public hearing is required, advance notice of the hearing shall be given and the hearing shall be conducted in compliance with this chapter and all other applicable laws, including the Ralph M. Brown Act.
B. Notice of Public Hearing.
1. Content of Notice. Notice of a public hearing shall include the following applicable information: Hearing Information.
a.
i. The date, time, and place of the hearing and the name of the review authority; ii. A brief description of the City's general procedure concerning the conduct of hearings and decisions; iii. The phone number, street address, and website of the City, where an interested person can call or visit to obtain additional information; iv. A statement that an interested person or authorized agent may appear and be heard at the public hearing and the procedures for appeal; and V. A statement that if a person challenges the
rmation; iv. A statement that an interested person or authorized agent may appear and be heard at the public hearing and the procedures for appeal; and V. A statement that if a person challenges the subject development in court, that person may be limited to raising only those issues that the person, or someone else speaking on their behalf, raised at the public hearing (described in the notice) or in written correspondence delivered to the City at, or before, the public hearing.
b. Project Information.
i.
The name of the applicant; ii. The City's file number(s) assigned to the application; iii. A general explanation of the matter to be considered; and iv. A general description, in text and/or by diagram, of the location of the property or mooring that is the subject of the hearing.
2.
Method of Notice Distribution. Notice of a public hearing required by this title shall be given as specified below.
a. Mailing. Notice shall be mailed or delivered at least ten (10) calendar days before the scheduled hearing to all the following: i. Project Site Owners, Applicant and Appellant. The owners of the property being considered in the application, or the owners' agent, the applicant or the applicant's agent, and the appellant, if any; ii. Nearby Property Owners. All owners of real property located within a three hundred (300) foot radius, excluding intervening rights-of-way and waterways, of the exterior boundaries of the location of the subject matter of the application, as shown on the last equalized assessment roll. It shall be the responsibility of the applicant to obtain and provide to the review authority a list of the names and addresses of all owners who are to be provided notice under this subsection; and iii. Persons Requesting Notice. A person who
cant to obtain and provide to the review authority a list of the names and addresses of all owners who are to be provided notice under this subsection; and iii. Persons Requesting Notice. A person who has made a written request for notice with the City Clerk.
b. Posting of a Sign and Notice. Notice shall be posted at a conspicuous place, easily readable by the public and placed as close as possible to the site of the proposed development at least ten (10) calendar 613 (Newport Beach 3-24) 17.05.140 days before the scheduled public hearing in the following manner: i. One or more signs shall be posted as determined by the City; ii. The size and location of the sign(s) shall be determined by the City to ensure that it will be easily readable by the public; iii. The project applicant, or in the case of an appeal, the appellant shall be responsible for maintaining the sign(s) in a satisfactory condition; and iv. The project applicant shall remove the sign(s) after the date specified for the public hearing.
C. Failure to Receive Notice. The failure of any person or entity to receive notice given in compliance with this section shall not invalidate the actions of the applicable review authority.
C. Hearing Procedure.
1. Time and Place of Hearing. A hearing shall be held at the date, time and place for which notice was given.
2. Continued Hearing. A hearing may be continued without further notice, provided that the official or chair of the review authority announces the date, time and place to which the hearing will be continued before the adjournment or recess of the hearing.
3. Deferral of Final Decision. The review authority may announce a tentative decision and defer their action on a final decision until appropriate
ued before the adjournment or recess of the hearing.
3. Deferral of Final Decision. The review authority may announce a tentative decision and defer their action on a final decision until appropriate findings and/or conditions or approval have been prepared.
D. Findings and Decision.
1. Except in the case of a variance, the reviewing authority may approve or conditionally approve a permit only after making all of the following findings: a. The use complies with this title, the Local Coastal Program, General Plan, design criteria, and any applicable standards and policies approved by the City Council; b. The design, location, size and/or operating characteristics of the use are compatible with the allowed uses in the vicinity; C. For any structures, the site is physically suitable in terms of design, location, shape, size and operating characteristics, and the provision of the public and emergency vehicle (e.g., fire and medical) access and public services and utilities; d. Operation of the use at the location proposed would not be detrimental to or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare; e. Any new development is designed or sited so as to not obstruct public access to coastal resources or, in the case of the alteration, extension, enlargement, expansion, reconstruction, replacement or addition of any structures, would not, in comparison to the existing structure or structures, further restrict or impair the public's use of the bay or beach in the vicinity of the existing structure of structures; and f. Any specific findings set forth in this title.
2. With respect to a request for a variance, the reviewing authority may approve or conditionally
icinity of the existing structure of structures; and f. Any specific findings set forth in this title.
2. With respect to a request for a variance, the reviewing authority may approve or conditionally approve a variance from the standards of this title, the design criteria and other applicable standards and policies otherwise applicable to the property only after making all of the following findings: a.
The strict application of this title, the design criteria and other applicable standards and policies otherwise applicable to the property would deny the property owner privileges enjoyed by other property owners in the vicinity, based on special circumstances applicable to the property, including location, shape, size, surrounding topography or other physical features; b. Strict compliance with this title, the design criteria and other applicable standards and policies applicable to the property would deprive the subject property of privileges enjoyed by other properties in the vicinity; C. Granting of the variance is necessary for the preservation and enjoyment of substantial property rights of the applicant; d. Granting of the variance will not constitute a grant of a special privilege inconsistent with the limitations on other properties in the City; e. Granting of the variance will not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the vicinity; and f. Granting of the variance will not be in conflict with the intent and purpose of this title, the (Newport Beach 3-24) 614 17.10.010 design criteria and any applicable standards and policies approved by the City Council.
ce will not be in conflict with the intent and purpose of this title, the (Newport Beach 3-24) 614 17.10.010 design criteria and any applicable standards and policies approved by the City Council.
E. Decision. The reviewing authority may announce and record their decision on the matter being considered at the conclusion of a scheduled hearing or defer action and continue the matter to a later meeting. (Ord. 2023-22 § 752, 2023; Ord.
2020-5 § 1 (Exh. 1) (part), 2020) Chapter 17.10 MARINE ACTIVITIES PERMIT Sections: 615 17.10.010 17.10.020 17.10.025 17.10.030 17.10.040 Filing Fee.
17.10.050 17.10.060 17.10.070 Findings and Purpose.
Permit for Commercial Activities in Newport Harbor Required.
Exemptions.
Application for Permit.
Issuance of Permit.
Power to Impose Conditions― Hold Harmless.
Insurance.
17.10.080 Duration of Permit.
17.10.090 Enforcement Right of Entry.
17.10.100 Transfer of Permit.
17.10.110 Licenses and Fees Not Exclusive.
17.10.120 Application to Existing Commercial Activities.
Prior code legislation: Ord. 2020-5.
17.10.010 Findings and Purpose.
A. Newport Harbor is a limited resource with an extensive existing and growing demand for marine and recreational use; B. There has been an increase in the nature and intensity of commercial activities occurring on the waters of Newport Harbor; C. Some 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 Newport Harbor that can provide adequate boarding, parking or sanitation facilities necessary to serve their employees, clients and customers; 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;
e their employees, clients and customers; 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; E. Commercial activities on Newport Harbor have created an additional demand for available parking and created traffic congestion in and around the waterfront; F.
Commercial activities have sometimes created a level of noise which has interfered with the (Newport Beach 3-24) 17.10.020 right of residents, persons who own property and visitors on or near Newport Harbor to the peaceful enjoyment of their property and public areas; G. Commercial activities, especially the mix of large craft with limited maneuverability and restricted uplands access, have the potential to interfere with the safe navigation of vessels operating on the waters of Newport Harbor; H. The requirements of this chapter are necessary to promote safety in Newport Harbor, minimize the traffic congestion, parking shortages, excessive noise and speed and the discharge of waste that could result from unregulated commercial activity and to ensure safe operation within the capacity and constraints of Newport Harbor; I. 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 commercial activities. The Local Coastal Program establishes commercial definitions that allow for certain uses with policies established
nd, if necessary, establish new standards for the operation of commercial activities. The Local Coastal Program establishes commercial definitions that allow for certain uses with policies established to accommodate commercial designations; J. In adopting this chapter, the City Council intends that the health, safety and welfare of those who use, enjoy and own property on or 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 adequately considered in permit application processes; K. Fees and charges imposed on commercial users of Newport Harbor should recover City costs and contribute to major harbor maintenance projects (i.e., dredging); L. Leases should be used where appropriate to recover the fair market value of the use of public tidelands from holders of permits for marine commercial activities on tidelands properties; and M. To administer the use of public trust lands in a manner consistent with the tidelands trust, the California Constitution, the certified Local Coastal Program, and applicable laws. (Ord. 2021-3 § 2, 2021; Ord. 2008-2 § 1 (part), 2008. Formerly 17.10.005) 17.10.020 Permit for Commercial Activities in Newport Harbor Required.
A. No person shall engage in any commercial activity including, but not limited to, scheduling, arranging, operating or renting any bareboat or certified charter, vessel or equipment, on the waters of Newport Harbor without first obtaining a valid marine activities permit pursuant to this chapter.
B. No person shall use a vessel to conduct a business or service including, but not limited to, pumpout, towing, bottom cleaning, fuel delivery,
alid marine activities permit pursuant to this chapter.
B. No person shall use a vessel to conduct a business or service including, but not limited to, pumpout, towing, bottom cleaning, fuel delivery, and/or maintenance or repair services, on the waters of Newport Harbor without first obtaining a valid marine activities permit pursuant to this chapter.
(Ord. 2021-3 § 2, 2021; Ord. 2013-11 §§ 138, 139, 2013; Ord. 2008-2 § 1 (part), 2008) 17.10.025 Exemptions.
The requirements of this chapter are not applicable to the following: A. Commercial activities operating pursuant to a permit issued by the Army Corps of Engineers, or a special event permit or commercial film permit issued by the City; B. Persons operating with a commercial pier permit, lease or franchise issued by the City unless engaging in commercial activities that would otherwise require a permit pursuant to this chapter. (Ord.
2021-3 § 2, 2021; Ord. 2008-2 § 1 (part), 2008) 17.10.030 Application for Permit.
An application for a new permit or the reinstatement of a permit under this chapter shall be filed with the Harbormaster, upon forms provided by the City, and shall contain such information which the Harbor Commission or Harbormaster may require. (Ord.
2021-3 § 2, 2021; Ord. 2018-17 § 14, 2018: Ord.
2008-2 § 1 (part), 2008) 17.10.040 Filing Fee.
A new or renewal application for a marine activities permit or an application for the reinstatement of a marine activities permit shall be accompanied by (Newport Beach 3-24) 616 17.10.050 the fee established by resolution of the City Council.
(Ord. 2021-3 § 2, 2021; Ord. 2008-2 § 1 (part), 2008) 17.10.050 Issuance of Permit.
Upon receipt of a complete application for a marine activities permit, the Harbormaster shall
n of the City Council.
(Ord. 2021-3 § 2, 2021; Ord. 2008-2 § 1 (part), 2008) 17.10.050 Issuance of Permit.
Upon receipt of a complete application for a marine activities permit, the Harbormaster shall investigate the information contained in the application. The Harbormaster shall refer the application to the Community Development Department to verify that all of the applicable provisions of Titles 20 and 21 have been addressed or complied with and the Public Works Department to ensure safe vehicular ingress and egress, and, where applicable, the safe loading and unloading of passengers and supplies.
The Harbormaster may also refer the application to the Harbor Commission, or other appropriate City departments, for investigation, report or recommendation. The Harbormaster shall inspect, or cause to be inspected, the vessel(s), marine sanitation device(s), boarding facilities, parking and all upland support facilities listed in the application. The Harbormaster shall notify an applicant of his or her decision in writing within ninety (90) days from the date on which a completed application is received.
Except as provided in this section, the Harbormaster may issue the marine 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 on or near Newport Harbor.
The Harbormaster 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 on or near the waters of Newport Harbor to the peaceful and quiet enjoyment of that property;
aters of Newport Harbor by members of the public, or interfere with the rights of those who own property on or 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 water pollution and/or litter 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 of Orange, State or Federal requirements of law; D. The proposed commercial activity is likely, when viewed in conjunction with other anticipated rentals, 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, 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 not be considered adequate unless the number of parking spaces required by Titles 20 and 21 is provided for the duration of the permit and will be available during the days and hours of operation specified by the permit and that any off-site parking arrangements have been approved in accordance with Titles 20 and 21; F. The commercial activity would violate City, County of Orange, State or Federal requirements of law; G. The applicant has misrepresented material facts in the application; H. The proposed commercial activity, where applicable, 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;
ity, where applicable, 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 Titles 20 and 21 and such permit has not been obtained; or J. The applicant has a marine activities permit which is currently suspended or had a marine activities permit that has been revoked, or a notice of revocation or suspension that is no longer subject to appeal has been issued within the past ninety (90) days. (Ord. 2021-3 § 2, 2021; Ord. 2018-17 § 15, 2018; Ord. 2013-11 § 140, 2013: Ord. 2008-2 § 1 (part), 2008) 17.10.060 Power to Impose Conditions-Hold Harmless.
A. In granting any permit pursuant to this chapter, the Harbormaster, or the Harbor Commission on appeal, may impose any additional conditions on the permit to ensure that the proposed commercial activ617 (Newport Beach 3-24) 17.10.070 ity 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 State of California 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 including attorney's fees and other costs and expenses incurred by the City.
The Harbormaster or Harbor Commission, on
r the activities of the permittee carried on under the authority of such permit including attorney's fees and other costs and expenses incurred by the City.
The Harbormaster or Harbor Commission, on approval or review, shall have the power to impose new conditions or modify existing conditions with regard to any permit issued pursuant to this chapter upon a determination that the operations by the permittee, in the absence of the new or modified conditions, may adversely impact the health, safety or welfare of those who use, enjoy or own property near or on the waters of 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 in accordance with Titles 20 and 21 for all employees, passengers and patrons of the commercial harbor activity; 2. No passenger loading or unloading shall occur at any fuel 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; 4. All passengers and provisions shall be loaded and unloaded only from docks or piers where the abutting uplands property is commercially zoned with proper permits; 5. Music and sound from the vessel shall not be loud and unreasonable and shall comply with the standards and requirements of Chapters 10.28 and 10.32; 6. Music, live entertainment, and all forms of amplified sound are prohibited from 10:00 p.m. to 8:00 a.m.; 7. Air horns, whistles, bells, and other noisemaking equipment shall not be used, except as required by United States Coast Guard regulations; 8. All outdoor lighting shall be designed, shielded, aimed, located and maintained so that the directed light shall be substantially confined to the
required by United States Coast Guard regulations; 8. All outdoor lighting shall be designed, shielded, aimed, located and maintained so that the directed light shall be substantially confined to the object or area intended to be illuminated to minimize skyglow and/or glare onto adjacent properties, the shoreline, coastal waters, and coastal bluffs; 9. All trash and litter generated by the commercial activity shall be properly disposed of in a private trash receptacle; 10. All vessels in excess of twenty-five (25) feet in length 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; 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 Harbormaster; 12. All Federal, State, County of Orange, and City statutes, rules, ordinances, laws and regulations shall be obeyed; 13. Insurance, which types and amounts shall be determined by the Risk Manager, and a business license shall be maintained in full force and effect for the full term of the permit; 14. Registration/documentation for all vessels engaged in a commercial activity must be kept current and provided to the Harbormaster upon request; and 15. All signs shall comply with the applicable provisions of Title 20; 16. All vessels shall obey the speed limit of Section 17.20.020(A) and operate safely at all times while on the waters of Newport Harbor. (Ord. 202322 § 753, 2023; Ord. 2022-9 § 2, 2022; Ord. 2021-3 § 2, 2021; Ord. 2018-17 § 16, 2018: Ord. 2013-11
tion 17.20.020(A) and operate safely at all times while on the waters of Newport Harbor. (Ord. 202322 § 753, 2023; Ord. 2022-9 § 2, 2022; Ord. 2021-3 § 2, 2021; Ord. 2018-17 § 16, 2018: Ord. 2013-11 § 141, 2013; Ord. 2008-2 § 1 (part), 2008. Formerly 17.10.070) 17.10.070 Insurance.
Persons engaging in any commercial activity including, but not limited to, charters, rentals, com(Newport Beach 3-24) 618 17.10.080 mercial services or any other types of operations on the waters of Newport Harbor shall at all times maintain insurance, which types and amounts shall be determined by the Risk Manager. The Risk Manager shall issue a written notice of determination of the policy limits and coverage, which shall be served in the manner provided in Section 1.08.080. Proof of insurance must clearly identify the activities and/or vessels covered. (Ord. 2023-22 § 754, 2023; Ord.
2021-3 § 2, 2021; Ord. 2008-2 § 1 (part), 2008. Formerly 17.10.075) 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 Harbormaster may issue a permit for a shorter duration, provided the applicant meets all the requirements of this chapter for the duration of the period permitted. (Ord. 2021-3 § 2, 2021; Ord. 2018-17 § 17, 2018: Ord. 2008-2 § 1 (part), 2008) 17.10.090 Enforcement Right of Entry.
A. Enforcement. It shall be the duty of the Harbormaster to enforce each and all of the provisions of this title, and the Chief of Police or other authorized City employee shall render such assistance in its enforcement as may be required from time to time by the Harbormaster.
B. Right of Entry. The Harbormaster and any
Chief of Police or other authorized City employee shall render such assistance in its enforcement as may be required from time to time by the Harbormaster.
B. Right of Entry. The Harbormaster 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. (Ord. 2021-3 § 2, 2021; Ord. 2018-17 § 18, 2018: Ord. 2013-11 § 142, 2013: Ord. 2008-2 § 1 (part), 2008. Formerly 17.10.085) 17.10.100 Transfer of Permit.
No permit issued pursuant to the provisions of this chapter shall be transferable either by assignment, sale, hypothecation, and 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. (Ord. 2021-3 § 2, 2021; Ord. 2008-2 § 1 (part), 2008) 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. (Ord. 2021-3 § 2, 2021; Ord. 20082 § 1 (part), 2008) 17.10.120 Application to Existing Commercial Activities.
A. The commercial activities of those holding valid permits issued prior to March 24, 2006, may be continued to the extent authorized by the prior permit, provided the previously approved commercial activity shall not be increased or expanded beyond
permits issued prior to March 24, 2006, may be continued to the extent authorized by the prior permit, provided the previously approved commercial activity shall not be increased or expanded beyond the activities conducted as of March 24, 2006. The holder of a permit issued under former Chapter 17.41 that applied for a renewal of the permit issued under Chapter 17.41 pursuant to the requirements of this chapter on or before December 1, 2008, shall be allowed to operate under the previously approved conditions and any condition of this chapter not inconsistent with the operations and activities authorized under the previously issued permit.
A commercial activity exempt from obtaining a marine activity permit pursuant to Ordinance No.
2008-2 is a nonconforming commercial activity as of February 25, 2021, and may continue to operate without a marine activities permit but shall comply with Sections 17.10.060(B)(2) through (15) (Power to Impose Conditions—Hold Harmless). A substantial change in the commercial activity as defined in subsection (B) of this section or noncompliance with Sections 17.10.060(B)(2) through (15) shall result in loss of the nonconforming commercial activity status and require a marine activities permit and full compliance with this chapter. The Harbormaster shall maintain a list that includes the name, type and size of the commercial activity exempt as of February 25, 2021, so as to ensure any substantial change 619 (Newport Beach 3-24) 17.20.010 in the commercial activity is required to conform with the provisions of this chapter.
B. All commercial activities covered under this section shall be deemed to meet the requirements of this chapter, or any successor chapter, for renewal purposes unless or until such time as the reviewing
All commercial activities covered under this section shall be deemed to meet the requirements of this chapter, or any successor chapter, for renewal purposes unless or until such time as the reviewing authority determines there is a substantial change in the commercial activity. A substantial change may include, but is not limited to, the following: 1. An increase in or expansion of the operational characteristics of the commercial activity; 2. 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; 3. Change in the maximum number of patrons or passengers authorized to participate in the commercial harbor activity on an authorized vessel; 4. Change in the approved off-street parking agreement(s), or loss of parking provided prior to the effective date of the ordinance codified in this title; 5. Change in the physical condition of the dock, gangway or pilings that would compromise the safety of the patrons or passengers; 6. 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; 7. Change in the approved route of travel; or 8. Failure to correct a violation of the standard conditions imposed pursuant to Section 17.10.060 or subsection (A) of this section.
The Harbormaster shall investigate and determine whether there has been a substantial change in commercial activity or noncompliance resulting in loss of nonconforming commercial activity status. In the event the Harbormaster's investigation determines there has been a substantial change in commercial activity or noncompliance resulting in the loss of nonconforming commercial activity status, the Har-
vent the Harbormaster's investigation determines there has been a substantial change in commercial activity or noncompliance resulting in the loss of nonconforming commercial activity status, the Harbormaster shall issue a written notice of termination of nonconforming status, which sets forth the basis for the Harbormaster's decision. The notice of determination shall be served on the operator in accordance with Section 1.08.080. (Ord. 2021-3 § 2, 2021; Ord. 2018-17 § 21, 2018; Ord. 2008-2 § 1 (part), 2008) Chapter 17.20 VESSEL LAUNCHING AND OPERATION Sections: 17.20.010 Vessel Launching and Hauling.
Vessel Operation.
17.20.020 17.20.030 17.20.040 17.20.050 Trespass or Injury to Vessel.
Abandoned or Unattended Vessels and Property.
Air and Water Propulsion Vessels Prohibited.
17.20.060 Vessel Races.
17.20.010 Vessel Launching and Hauling.
A. No person shall launch or remove any vessel onto or from the waters of Newport Harbor over any public seawall, sidewalk, street end or public property, except at locations where a regular business, as authorized under Titles 20 and 21, for launching and hauling vessels is conducted or at launching sites designated by resolution of the City Council.
B. Any person who uses a City Council designated boat launch site shall comply with all of the following: 1. Designated boat launching locations may be used only between the hours of 7:00 a.m. and sunset.
2. The use of motors on any vessel being launched or recovered shall not be permitted within one hundred (100) feet of such launching sites.
3. Only hand-carried vessels may be launched from some sites, as designated by the City Council.
4. No motorized devices may be used for purposes of launching any vessel at locations designated
tes.
3. Only hand-carried vessels may be launched from some sites, as designated by the City Council.
4. No motorized devices may be used for purposes of launching any vessel at locations designated for the launching of hand-carried vessels, or for transporting them on beaches. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.20.020 Vessel Operation.
A. Speed Limit. No owner, operator or person in command of any vessel, except a public officer or employee in the performance of his or her 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 nautical miles per hour, or at any speed which creates (Newport Beach 3-24) 620 17.20.030 a wake that may cause damage to moorings of vessels or floating structures, except as provided for in this title.
B. Designation of Closed Areas. Whenever the City Manager finds that public safety so requires, he or she may designate any water area or tidelands or filled lands in or upon which harbor improvement work is being performed as a closed area and shall cause the areas to be posted accordingly. 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 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. From and including June 1st through September 15th, the channel between Bay Island and the Balboa Peninsula is designated as a closed area for the use and/or operation of motorboats.
2.
thereof.
1. From and including June 1st through September 15th, the channel between Bay Island and the Balboa Peninsula is designated as a closed area for the use and/or operation of motorboats.
2.
From and including June 1st through September 15th, the Grand Canal is designated as a closed area; however, the closure shall not apply to humanpowered vessels or vessels berthed at residential piers or moorings located along or within the Grand Canal.
C. Restriction of Water Traffic. For such time as necessary preceding, during and after any activity or other event 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 or she 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, or his or her deputies or agents. For purposes of this section, waterborne traffic shall mean any object, structure or vessel in contact with the water.
D. Towing. No person operating a vessel shall tow any object, structure or vessel at a distance in excess of seventy-five (75) feet astern of the towing vessel.
E. Anchoring. In addition to the requirements set forth in Section 17.25.020(A)(1)(b), no person owning, leasing, occupying or having charge or possession of any vessel shall anchor such vessel in any of Newport Harbor's designated public anchorage areas or on the Pacific Ocean unless the vessel is continuously occupied by a person during: 1. Any nighttime hours (sunset to sunrise); 2. Any time period when a small craft advisory or greater has been issued by the National Oceanic and Atmospheric Administration; and
ed by a person during: 1. Any nighttime hours (sunset to sunrise); 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 per day for no more than three hours. (Ord.
2020-27 § 2, 2020; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-18 § 2, 2018; Ord. 2013-11 § 145, 2013: Ord. 2008-2 § 1 (part), 2008) (Ord. No. 200917.20.030 Trespass or Injury to Vessel.
A. Damage to Property. No person shall willfully or carelessly destroy, damage, disturb, deface or interfere with any buoy, float, life preserver, sign, notice, navigational marking, or other similar property under the jurisdiction of the City, County, or other governmental agency.
B. Boarding Vessel Without Permission. No person shall climb into or upon any vessel moored, docked or anchored in Newport Harbor without the consent of the owner or other person having charge thereof, unless authorized by the Harbormaster.
C. Tampering with Vessel. No person shall willfully injure or tamper with, or break or remove any part of or from, any vessel in the City, or tamper with the lines securing any such vessel, without the consent of the owner or other person having charge thereof, unless authorized by the Harbormaster.
D. Tampering with Moorings. No person shall tamper with any mooring or anchorage in the City whether or not the same is occupied by a vessel, unless authorized by the Harbormaster for the maintenance of harbor operations. (Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2018-17 §§ 22, 23, 2018; Ord.
2013-11 § 146, 2013; Ord. 2008-2 § 1 (part), 2008.
Formerly 17.20.040) 17.20.040 Abandoned or Unattended Vessels and Property.
Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2018-17 §§ 22, 23, 2018; Ord.
2013-11 § 146, 2013; Ord. 2008-2 § 1 (part), 2008.
Formerly 17.20.040) 17.20.040 Abandoned or Unattended Vessels and Property.
All stray, unattended or abandoned vessels, timber or any other personal property found in the water or on the shore of Newport Harbor or the Pacific Ocean, not in the lawful possession or control of some person, shall be immediately reported to the 621 (Newport Beach 3-24) 17.20.050 Harbormaster. Any such vessel or property shall be dealt with as provided in the appropriate provisions of Chapters 1.20 and 17.70, California Harbors and Navigation Code Section 510 et seq., as the same now read or may hereafter be amended. For purposes of this section, any vessel on the Pacific Ocean shall be deemed to be stray, unattended and abandoned if the vessel is unoccupied by a person during: A. Any nighttime hours (sunset to sunrise); B. Any time period when a small craft advisory or greater has been issued by the National Oceanic and Atmospheric Administration; or C. Daylight hours for more than three hours.
(Ord. 2023-22 § 755, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 24, 2018: Ord. 2008-2 § 1 (part), 2008) (Ord. No. 2009-2, § 3, 1-27-2009.
Formerly 17.20.050) 17.20.050 Air and Water Propulsion Vessels Prohibited.
A. No person shall operate any vessel on the waters of Newport Harbor if the vessel is powered or maneuvered by means of mechanical air or water propulsion above the surface of the water.
B. The provisions of this section do not apply to the operation of any vessel by any public agency or any person responding to an emergency on behalf of any public agency. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2017-2 § 1, 2017; Ord. 2015-13 § 1,
e operation of any vessel by any public agency or any person responding to an emergency on behalf of any public agency. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2017-2 § 1, 2017; Ord. 2015-13 § 1, 2015: Ord. 2008-2 § 1 (part), 2008. Formerly 17.20.060) 17.20.060 Vessel Races.
A. The Harbormaster may issue a permit to a person, as defined in Chapter 17.01, that would allow individuals operating a human-powered vessel, wind-powered vessel, or vessel providing support services to a human- or wind-powered vessel as part of the person's special event (e.g., race) or organized practice to exceed the speed limit provided in Section 17.20.020(A).
B. An application for a vessel racing permit shall be filed with the Harbormaster, in accordance with Section 17.60.015, and issued by the Harbormaster if the Harbormaster determines the event will not interfere with the natural flow of traffic, or negatively impact surrounding property owners.
C. The Harbormaster has discretion to determine if a permit shall be associated with a single event or multiple events; however, no permit shall be valid for more than six months from the date of issuance.
D. Permits issued under this section are nontransferable and shall be in addition to any license, permit or fee required under this Code or any other provision of law.
E. The Harbormaster 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.
At a minimum, every permit issued under this section shall be conditioned to require permittees to: 1. Obtain, provide, and maintain at their own expense, for the full period of time for which the per-
a minimum, every permit issued under this section shall be conditioned to require permittees to: 1. Obtain, provide, and maintain at their own expense, for the full period of time for which the permit is granted, policies of insurance with such limits and coverage as established by the Risk Manager that clearly identify the activity and vessel(s) covered; 2. Indemnify, defend and hold harmless the City, County of Orange, and the State of California for all liability, injury or damage that relates in any way to or arises from permittee's event/activity; 3. Otherwise comply with this Code, California Harbors and Navigation Code, and the Federal Inland Navigation Rules; and 4. Ensure any vessel operating pursuant to a vessel racing permit is operated in a safe, controlled, and seamanlike manner, and at a speed that does not endanger the safety of persons or property.
F. Notwithstanding the process set forth in Chapter 17.70 for the revocation of permits, any permit issued under this section may be immediately revoked at any time, without notice, by the Harbormaster, if: 1. The permittee fails to comply with the conditions contained within the permit; 2. An individual participating in the permittee's special event or organized practice operates a vessel in an unsafe, uncontrolled, or unseamanlike manner or at a speed that endangers persons or property; or 3. An individual participating in the permittee's special event or organized practice fails to comply with the lawful instructions of the Harbormaster, or (Newport Beach 3-24) 622 any other person authorized by the City to enforce rules and regulations within Newport Harbor. (Ord.
2023-22 § 756, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-18 § 3, 2018. Formerly 17.20.070) 623 17.25.010 Chapter 17.25
e City to enforce rules and regulations within Newport Harbor. (Ord.
2023-22 § 756, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-18 § 3, 2018. Formerly 17.20.070) 623 17.25.010 Chapter 17.25 BERTHING, MOORING AND STORAGE Sections: 17.25.010 Docking Regulations.
17.25.020 Anchorage, Berthing and Mooring Regulations.
17.25.030 Storage Regulations.
17.25.010 Docking Regulations.
A. Docking Permission Required.
1. No person having charge of any vessel shall make the same fast to any pier, either public or private, in Newport Harbor, or permit the same to remain at such location after finishing loading or unloading such vessel, without the consent of the City, owner, agent, or person in charge of any such pier.
2. No person shall make fast any vessel to any other vessel already occupying any pier, either public or private, without first obtaining a special event permit as required in Chapter 11.03. At the Rhine Wharf, the Harbormaster shall have the authority to authorize this activity, via a Rhine Wharf permit, under either of the following conditions: a. A commercial fishing vessel is loading or unloading, and no other mooring or berthing space is available in Newport Harbor for this purpose; or b. A vessel is taking refuge from inclement weather and no other mooring or berthing space is available in Newport Harbor for this purpose.
In no event shall more than one vessel be made fast to the dockside vessel and no other vessel shall be made fast to the outboard vessel. Both vessels shall have operators aboard at all times.
3. No person holding a harbor development permit issued under the terms of Chapter 17.50 or having care, custody, control or use of any pier in Newport Harbor shall permit or allow a vessel to be
3. No person holding a harbor development permit issued under the terms of Chapter 17.50 or having care, custody, control or use of any pier in Newport Harbor shall permit or allow a vessel to be made fast to any other vessel which is occupying any pier over which the permit holder has control, except as provided in the exceptions found in subsection (A)(2) of this section.
B. Obstruction Prohibited. No person shall intentionally obstruct the free access to and departure from any portion of any pier.
(Newport Beach 3-24) 17.25.010 C. Time Limits and Rules.
1. Public piers and other Newport Harbor facilities may be maintained by the City for the purpose of loading and unloading passengers, supplies, and boating gear and for similar purposes. It is the policy of the City to maintain such facilities in a manner that will permit the greatest public use and avoid continuous occupancy, congestion or blocking thereof. Where necessary to achieve public use and to avoid extended occupancy, congestion or blocking thereof, the Harbormaster is authorized and directed to post the following dock markings or signs limiting the time during which a vessel may be tied up or secured or supplies or gear may be placed at or on any such pier or facility or limiting vessel length.
The dock markings shall have the following meanings: a. Blue markings shall mean vessels may be tied up or secured for twenty (20) minutes maximum.
b. Green markings shall mean vessels may be tied up or secured for three hours maximum.
C.
White markings shall mean vessels may be tied up or secured for twelve (12) hours maximum.
d. Black markings shall mean vessels may be tied up or secured for twenty-four (24) hours maximum.
e.
Yellow markings shall mean vessels may be
y be tied up or secured for twelve (12) hours maximum.
d. Black markings shall mean vessels may be tied up or secured for twenty-four (24) hours maximum.
e.
Yellow markings shall mean vessels may be tied up or secured for seventy-two (72) hours maximum.
f. Red markings shall mean vessels shall not be tied up or secured for any amount of time.
g. Orange markings shall mean the maximum length vessel permitted to be tied up or secured is nine feet.
h. No vessel greater than thirty (30) feet long may be tied or secured at Central Public Pier.
2. In addition to a Rhine Wharf permit issued in accordance with subsection (A)(2) of this section, the Harbormaster shall have the discretion to issue a Rhine Wharf permit, if an application is filed in accordance with Section 17.60.015, and the Harbormaster makes the findings set forth in Section 17.05.140(D). Unless a Rhine Wharf permit is issued the Rhine Wharf shall not be used by vessels for any purpose. A Rhine Wharf permit shall be subject to the following standard conditions as well as any additional conditions imposed by the Harbormaster: a.
Vessels may be tied or secured to the Rhine Wharf for four hours maximum unless the Harbormaster determines special circumstances dictate an extension and the Harbormaster authorizes an extension; C.
b. The Harbormaster shall have the authority to limit the size of vessels using the Rhine Wharf; and Vessels using the Rhine Wharf shall be in the actual process of loading, unloading, engaged in temporary repairs or taking refuge from inclement weather, when no other mooring or berthing is available.
3. When dock markings and signs are posted giving notice of the time limits and/or size restrictions in subsections (C)(1)(a) through (h) of this sec-
en no other mooring or berthing is available.
3. When dock markings and signs are posted giving notice of the time limits and/or size restrictions in subsections (C)(1)(a) through (h) of this section, no person shall tie up or secure a vessel at any such facility for a period of time in excess of that period, exceed the maximum permitted vessel length, or permit any supplies or gear to remain on such facility for a period in excess of that permitted by the dock markings or posted signs. Vessels tied up or secured in marked areas designated with time restrictions provided in subsections (C)(1)(c) through (e) of this section shall not continue to use that same dock area beyond those established periods by relocating the vessel to another section of that dock, or securing the line associated with that vessel to tie to another location on that dock. Any vessel that has occupied a marked area must be removed from the same public pier, dock or facility, after the expiration of the time allowed, and may not reoccupy the dock for a subsequent tie-up period sooner than twenty-four (24) hours following expiration of the time allowed.
4. The Rhine Wharf shall be closed between the hours of midnight and 6:00 a.m. daily.
D. Vessel Tie-Up Method. Every vessel tied up and secured at any pier in Newport Harbor shall be fastened in such a manner as to assure the security of such vessel fore (bow) and aft (stern) at a minimum with the exception of dinghies which may tie up bow only at public piers.
E. Direct Fueling Prohibited. No person shall fuel any vessel with any petroleum product directly from a tank, wagon or truck except by a certified vessel designed for such purpose and with a conditional use permit or marine activities permit.
(Newport Beach 3-24) 624 17.25.020
product directly from a tank, wagon or truck except by a certified vessel designed for such purpose and with a conditional use permit or marine activities permit.
(Newport Beach 3-24) 624 17.25.020 F. Gangway Required-Lights. Every vessel used for hire while loading or unloading passengers or crew from a pier or from another vessel shall be provided with a gangway with manropes or railings, and from sunset until sunrise any such gangway shall be lighted adequately to provide visibility as long as such gangway is or may be used.
G. Dockside Steam Engine Spark Prevention.
No person shall use any donkey engine or other steam engine on any pier or vessel within Newport Harbor in loading or unloading vessels or otherwise without a bonnet or spark arrestor attached to the smokestack of such engine so as to prevent sparks from coming into contact with the pier or vessel.
(Ord. 2022-9 §§ 3, 4, 2022; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 §§ 25-27, 2018; Ord.
2011-6 § 3, 2011: Ord. 2008-2 § 1 (part), 2008) 17.25.020 Anchorage, Berthing and Mooring Regulations.
A. Designated Areas. In the designation of mooring areas and anchorage areas, consideration shall be given to the needs of commerce, the utilization of the turning basins, the use of channels for navigation, and the economy of space.
1. No person owning, leasing, occupying, or having charge or possession of any vessel shall: a. Berth or anchor the same in Newport Harbor except within the designated areas; or b. Anchor a vessel in any of Newport Harbor's designated public anchorage areas or at any location on the open waters of the Pacific Ocean within five hundred (500) yards of a designated protected swimming area for a cumulative period of time that exceeds seventy-two (72) hours within any thirty
on the open waters of the Pacific Ocean within five hundred (500) yards of a designated protected swimming area for a cumulative period of time that exceeds seventy-two (72) hours within any thirty (30) day period. The Harbormaster may authorize, in writing, an extension to the seventy-two (72) hour time limit if the Harbormaster determines that given the particular circumstances an extension of time is reasonable and warranted.
2. Any vessel which is berthed, moored or anchored at a place in Newport Harbor not designated for such vessel shall be moved as directed by the Harbormaster.
3. Mooring permittees shall, at their expense, move their vessels or relocate to another mooring when deemed necessary by the Public Works Director and/or Harbormaster to address vessels drifting from their assigned mooring locations or to address safety or navigational concerns. Offshore mooring permittees who are assigned to mooring rows with established lengths that are greater than the permittees' mooring lengths by at least five feet shall be subject to relocation for the purpose of accommodating mooring extension requests under Section 17.60.040(M), with the costs to be borne by the requestor of the extension. The costs of moving the vessels or relocating to the reassigned mooring shall include the costs of moving the mooring equipment.
B. Application of Chapter. The terms of this chapter, as they relate to moorings and buoys, shall apply to "on-shore moorings” which are moorings located landward of the pierhead line and to “offshore moorings" which are located bayward of the pierhead line, with equal force and effect.
C. Berthing.
1. Boats berthed at private or public piers shall not extend beyond the prolongation of the side prop-
orings" which are located bayward of the pierhead line, with equal force and effect.
C. Berthing.
1. Boats berthed at private or public piers shall not extend beyond the prolongation of the side property lines of the property or properties to which the pier is connected in accordance with Section 17.35.020.
2. Any boat berthed at a pier or slip shall not extend bayward beyond the end of the pier or slip by a distance of more than the maximum width of its beam. Between Bulkhead Station 256, beginning at Collins Avenue to Bulkhead Station 255, boats moored at a pier or slip shall not extend more than fifteen (15) feet bayward beyond the end of the pier or slip or more than the width of the beam of the boat, whichever is less.
D. Permit Required. No person shall place, erect, construct or maintain a pier mooring or buoy in the waters of Newport Harbor over City-owned or controlled tidelands without first having obtained a permit pursuant to this title.
E. Unauthorized Use of Mooring. No person shall use a mooring unless he or she holds a current and valid permit except with the permission of the Harbormaster for temporary use, as herein provided.
F. Mooring System Chains and Fastenings.
1. No person shall erect, construct or maintain any mooring in Newport Harbor unless all chains and fastenings are of sufficient size to stand a break625 (Newport Beach 3-24) 17.25.020 ing strain of at least six times the weight of the mooring.
2. All mooring lines on buoys shall be so arranged that, when dropped, they will immediately sink. It shall not be a violation of this subsection for a double mooring to connect two mooring anchor lines or buoys with a spreader line having floats attached thereto to keep such spreader line afloat when the mooring is unoccupied.
this subsection for a double mooring to connect two mooring anchor lines or buoys with a spreader line having floats attached thereto to keep such spreader line afloat when the mooring is unoccupied.
3. With the approval of the Harbormaster, mooring permittees may use a single buoy system for a two-point mooring by use of a sand line, defined as a line from one anchor line to the opposing anchor line and that is properly weighted to immediately sink when dropped. The mooring permittee shall submit a mooring modification request to the Harbormaster with details of the modification, including diagrams, if requested. The Harbormaster may approve or conditionally approve the request if the Harbormaster determines that the modification will not result in any safety or navigational concerns.
G. Buoy Markings. Mooring buoys shall be painted with the number allocated thereto by the Harbormaster to the mooring, the numeral(s) of which shall be at least three inches in height.
H. Mooring, Anchoring and Vessel Condition Requirements.
vessels 1. Anchoring and Mooring. All anchored on the open waters of the Pacific Ocean or in the designated anchorage area in Newport Harbor shall be anchored in such a manner so that the vessel does not come in contact with another vessel or structure. Vessels anchored in the designated anchorage area in Newport Harbor shall also not extend beyond the demarcation line of the designated anchorage area. All vessels using moorings in Newport Harbor shall be firmly anchored to a mooring from bow and stern in such a manner as to prevent the vessel from swinging, turning or drifting in a way that interferes with or impedes safe navigation around the moored vessel, except in areas designated by the Harbormaster as single mooring areas. Ves-
essel from swinging, turning or drifting in a way that interferes with or impedes safe navigation around the moored vessel, except in areas designated by the Harbormaster as single mooring areas. Vessels in single mooring areas shall be tied from the bow. Double or two-point moorings that are equipped with two mooring buoys for mooring to both bow and stern are required to have at all times (a) a vessel properly tied to both mooring buoys or (b) a spreader line secured and connected to both buoys. The spreader line shall be kept clean of algae and other marine growth to ensure it remains easily visible. The maximum permitted mooring lengths shall not exceed the established length of their mooring rows. No portion of a moored vessel or any object attached to the vessel may extend into the mooring field fairways.
2. Vessel Condition. Safety, Seaworthiness and Operability. Vessels assigned to a mooring by permit must be maintained in a safe, seaworthy and operable condition. If, based upon the appearance of the vessel, inspection by the City or other facts, the Harbormaster has cause to believe a vessel is not safe, seaworthy and operable, the Harbormaster shall give written notice to the permittee, in accordance with the service requirements of Section 1.05.030, requesting a demonstration that the vessel is safe, seaworthy and operable. The permittee shall, upon written notice specifying the date and time, demonstrate to the Harbormaster that the vessel assigned to the mooring is safe, seaworthy or operable. In the event that the Harbormaster determines that vessel is not safe, seaworthy or operable, the permittee shall: Commence repairs within thirty (30) days upon service of the written notice of such determina-
ent that the Harbormaster determines that vessel is not safe, seaworthy or operable, the permittee shall: Commence repairs within thirty (30) days upon service of the written notice of such determination and complete repairs within ninety (90) days of the commencement unless the Harbormaster, upon written request from the permittee specifying the reasons therefor, approves an extension of time to complete the repairs; or a.
b. Remove the vessel within thirty (30) days of service of the written notice of such determination and request assignment of a different vessel that is safe, seaworthy and operable to the mooring within sixty (60) days after the removal of the vessel. This section is not intended to apply to any brief period of repair common to most vessels. The Harbormaster may repeat his or her request to test operability and seaworthiness as needed.
3. Vessel Condition—Public Nuisance. No person owning, leasing, occupying or having charge or possession of any vessel shall maintain, permit, cause or allow to exist on such vessel any of the following conditions: a.
Promotion of a fire hazard, including, but not limited to, improper open fuel storage, deficiencies (Newport Beach 3-24) 626 17.25.020 in the vessel's fuel storage tanks, inoperable electrical systems, storage of combustible or other flammable material that constitutes a fire hazard to any vessel; b. Retention of water that becomes stagnant, unsanitary, or polluted; c. Accumulation or storage of rubbish, trash, debris, rubble, containers, or boxes that are visible aboard the vessel or stored inside the vessel in such a way as to make the vessel inoperable for its intended use; d. Storage or securing a vessel in such a way that it impedes pedestrian travel on City beaches and tidelands;
ed inside the vessel in such a way as to make the vessel inoperable for its intended use; d. Storage or securing a vessel in such a way that it impedes pedestrian travel on City beaches and tidelands; e. Contribution to hazards to public safety or health, such as, but not limited to: propagation of vermin, rats, insects, or unsanitary conditions from the accumulation of fecal materials; f. Maintenance in such nonseaworthy condition that the vessel is unsafe, unsightly or poorly maintained, including, but not limited to: broken windows, unsecured doors or hatches, excessive marine growth attached to the vessel, being inoperable for the vessel's intended use, partially destroyed or partially repaired for more than three continuous months, providing access to marine mammals, actively seeping hazardous or toxic material into the surrounding waters, or would present a physical danger to public safety personnel during emergency access; g. Operation of its mechanical or electrical systems creates excessive noise, odors, vibrations, fumes, discharges or emissions that constitute an impact on public health or safety; h.
Violation of the terms and conditions of other use or rental permits as granted by the City; i. Allowance of repetitive, boisterous or unruly conduct by the vessel operator or occupants when that conduct: i.
Is offensive to a person of ordinary sensibility, and ii. Continues after a written or oral request to terminate the conduct, or iii. Is offensive to a considerable number of people; j. Anchorage in an area controlled by the City without adequate anchor(s) rope or chain appropriate for the wind and sea conditions encountered in Newport Bay; k. Inability of a vessel on a shore mooring to be self-righting on an incoming tide without flooding
e anchor(s) rope or chain appropriate for the wind and sea conditions encountered in Newport Bay; k. Inability of a vessel on a shore mooring to be self-righting on an incoming tide without flooding the vessel; 1.
Attachment to a mooring in such a way that the vessel regularly drifts or impedes safe navigation in Newport Bay; or m. Installation of a marine sanitation device that is not connected directly to an internal holding tank at all times while in Newport Bay.
Violation of this subsection (H) is hereby declared to be a public nuisance. In the event that the City determines that a vessel is a public nuisance, the City may commence public nuisance abatement as provided in this title.
4. If, based upon the appearance of the vessel, inspection by the City or Harbormaster or other facts, the Harbormaster determines that a sea lion has boarded a moored vessel, the Harbormaster shall issue and serve a notice of violation in accordance with Section 1.05.030 and the permittee shall take any and all necessary action to employ and maintain appropriate measures to deter sea lions from boarding the vessel within seven days of the notice of violation. If the Harbormaster determines that appropriate deterrent measures have not been taken within seven days of the notice of violation, the Harbormaster may issue an administrative citation or take any other enforcement action authorized by this Code. In the event the Harbormaster issues an administrative citation, the permittee shall: a. Take any and all necessary action to employ and maintain appropriate sea lion deterrent measures; or b. Remove the vessel from Newport Harbor.
"Appropriate deterrent measures" shall be defined as the latest methodology permitted by National
y and maintain appropriate sea lion deterrent measures; or b. Remove the vessel from Newport Harbor.
"Appropriate deterrent measures" shall be defined as the latest methodology permitted by National Marine Fisheries Service to minimize sea lion boarding of vessels assigned to a mooring. If the City is unable to reach the permittee within the seven days, the Harbormaster may install temporary deterrent measures as needed and recover the City's cost of compliance.
I. Maintenance. All moorings shall be kept in good and serviceable condition in the location assigned by the Harbormaster. Mooring permittees 627 (Newport Beach 3-24) 17.25.030 shall be responsible for the maintenance, repair, and replacement of mooring system components including, but not limited to, chains, shackles, anchors, weights, lines, buoys, and all other gear and equipment used in securing the vessel to the mooring. This subsection shall not apply to City-installed anchors for use as shared moorings, which shall be maintained, repaired, and replaced by the City.
J. Specifications. Specifications for the size of chains required on moorings, weights of moorings, and other mooring equipment shall be established by the Harbor Commission.
K. Inspection of Moorings. Each mooring shall be lifted by the owner for inspection by the Harbormaster at least once every two years and shall be repaired, as necessary, so as to be in good condition before being replaced; provided, that the Harbormaster may require any mooring to be lifted at any time when deemed necessary to assure it is in good condition. If the permittee has such lifting performed by a marine contractor, then the Harbormaster may authorize such contractor to inspect the mooring on behalf of the Harbormaster and certify the results to
If the permittee has such lifting performed by a marine contractor, then the Harbormaster may authorize such contractor to inspect the mooring on behalf of the Harbormaster and certify the results to the Harbormaster in writing. The permittee shall pay the costs of any inspection performed by a contractor on behalf of the Harbormaster.
L. Rental Not Permitted. Except as authorized in Section 17.60.040(B)(1)(a), no mooring may be leased or rented by the permittee to another person except with the written permission of the Harbormaster.
M. Administration. The Harbormaster shall administer all provisions in this section. (Ord. 202322 § 757, 2023; Ord. 2023-8 §§ 1-5, 2023; Ord.
2020-27 § 3, 2020; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 28, 2018: Ord. 2013-11 §§ 147 150, 2013; Ord. 2010-5 §§ 1, 2, 2010; Ord.
2009-2, §§ 4, 5, 1-27-2009; Ord. 2009-1 § 1, 1-272009; Ord. 2008-2 § 1 (part), 2008) 17.25.030 Storage Regulations.
A. Vessel or Trailer Storage on Beaches Prohibited Exceptions. No person shall store any vessel, trailer or other similar object on any public beach in the City except as provided in subsection (A)(1) of this section. As used in this section, the term “store” shall mean to leave or permit to remain unattended for a period of three hours or more and not in the possession or control of the owner or user.
1. Vessels, watercraft and equipment directly related to the use of the vessel or watercraft (related equipment) may be stored on a public beach as follows: a. Any vessel(s), watercraft and/or related equipment owned and maintained by the City or its contractors which is (are) used in conjunction with recreation programs offered by the City; b. Any vessel(s), watercraft and/or related
nd/or related equipment owned and maintained by the City or its contractors which is (are) used in conjunction with recreation programs offered by the City; b. Any vessel(s), watercraft and/or related equipment that cannot feasibly be berthed or moored at a privately owned pier or mooring and is (are) used by a nonprofit corporation for noncommercial purposes provided a vessel storage permit has been approved by the Harbormaster. An application for a vessel storage permit shall be filed with the Harbormaster, in accordance with Section 17.60.015 and issued if the Harbormaster makes the findings set forth in Section 17.05.140(D) and there is substantial evidence that the permit would not adversely affect the health, safety or welfare of those who use, enjoy or own property on or near the waters of Newport Bay. Vessel storage permits are subject to the following standard conditions as well as any additional conditions imposed by the Harbormaster: i. The permittee shall not cause or permit any unreasonable noise that would adversely affect the use or enjoyment of public or private property in the vicinity of the vessel, watercraft or equipment; ii. The permittee shall not engage in, or permit, any activity that unreasonably interferes with the use of the beach or adjoining waters by the public; iii. The permittee shall not cause or permit any activity that pollutes any public or private property of the waters of Newport Bay; and iv. Notwithstanding the process set forth in Chapter 17.70 for the revocation of permits, the permit provided herein may be revoked by the Harbormaster, without cause, at any time, upon thirty (30) days' written notice to the permittee.
C.
Any vessel for which a mooring permit has been issued by the City pursuant to Section
oked by the Harbormaster, without cause, at any time, upon thirty (30) days' written notice to the permittee.
C.
Any vessel for which a mooring permit has been issued by the City pursuant to Section 17.60.040, or any successor section, provided the vessel remains on the beach only to the extent neces(Newport Beach 3-24) 628 sary to load or unload. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 29, 2018: Ord. 2008-2 § 1 (part), 2008) 629 17.30.010 Chapter 17.30 HARBOR USE REGULATIONS Sections: 17.30.010 17.30.020 Landing of Aircraft.
Loading or Unloading Hazardous Materials.
17.30.030 17.30.040 Live Bait and Sea Life.
17.30.010 Special Event Permits.
Landing of Aircraft.
No person shall land or take off from the waters of Newport Harbor with any aircraft without first obtaining a permit from the City Council. An application for an aircraft landing permit shall be filed with the Harbormaster in accordance with Section 17.60.015. Such permit may be issued if the City Council determines that, under the circumstances, the proposed landing or takeoff will not create a hazard to life or property or otherwise impact the health, safety and welfare of the public. In granting such permit, the City Council may impose such conditions on the exercise thereof as it deems appropriate.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.30.020 Loading or Unloading Hazardous Materials.
No person shall load or unload any hazardous materials to or from any vessel from or upon any pier or other vessel in Newport Harbor without first obtaining a permit from the Fire Marshal pursuant to California Fire Code Section 105.6 and Chapter 9.04. An application for a permit to load or unload any hazardous materials shall be filed with the Har-
ining a permit from the Fire Marshal pursuant to California Fire Code Section 105.6 and Chapter 9.04. An application for a permit to load or unload any hazardous materials shall be filed with the Harbormaster in accordance with Section 17.60.015.
The Fire Marshal shall issue the permit if he or she finds that the hazardous materials and the associated maintenance, handling and/or storage activities conform to the California Fire Code and this Code. The Fire Marshal may impose any conditions on the issuance of the permit necessary to protect the health, safety and welfare of the public. The decision of the Fire Marshal may be appealed in accordance with (Newport Beach 3-24) 17.30.030 Chapter 15.80. (Ord. 2023-22 § 758, 2023; Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.30.030 Live Bait and Sea Life.
A. Requirements for Live Bait/Sea Life Receivers. All live bait/sea life receivers used within the waters of Newport Harbor shall be fitted with screen trays in the bottom thereof so as to retain all dead bait or sea life or other debris within the receiver which can be raised to dispose of the dead bait/sea life or other debris. All live bait receivers within the City shall also have a screen or solid cover which fits closely unless the receiver is completely covered by a roof.
B. Nonconforming Bait and/or Sea Life Receivers. Storage of live bait or sea life other than in a receiver conforming to the requirements hereof is prohibited. After three days' written notice, served in accordance with Section 1.05.030, to the owner of a nonconforming receiver, it may be removed by the Harbormaster and stored at the expense of the owner.
C. Commercial Bait Boats, Bait and Sea Life Receivers. All boats used to catch or furnish live bait
onconforming receiver, it may be removed by the Harbormaster and stored at the expense of the owner.
C. Commercial Bait Boats, Bait and Sea Life Receivers. All boats used to catch or furnish live bait or sea life shall, at all times, have aboard a covered receptacle in which shall be placed all dead bait and other sea life debris. No person shall commercially operate a bait boat or a bait receiver without first obtaining a marine activities permit pursuant to Chapter 17.10. Bait tanks on such boats when containing bait shall be covered at all times when in Newport Harbor by a cover which fits closely over the top except while bait is actually being transferred to or from the tank.
D. Disposal of Bait. No person shall chum, place or allow to be placed any live or dead bait, fish or other sea life debris in the unconfined waters of Newport Harbor or on the waters of the Pacific Ocean within the jurisdiction of the City except when it is attached to a hook or hooks in the act of fishing.
E. Transfer of Live Bait. No person shall transfer live bait from one vessel to another vessel or sell the same at retail from a vessel within the limits of Newport Harbor, except when all vessels involved are moored to a pier and are within the pierhead line.
During a period of adverse conditions of sea or beaches causing the transfer from offshore receivers to be hazardous, a location inside the harbor may be used with the written approval of the Harbormaster or when authorized by a lease issued pursuant to Chapter 17.60. (Ord. 2023-22 § 759, 2023; Ord.
2018-17 §§ 30, 31, 2018; Ord. 2013-11 § 151, 2013; Ord. 2008-2 § 1 (part), 2008) 17.30.040 Special Event Permits.
If a permittee proposes a use of Newport Harbor other than that allowed by this Code, he or she must
31, 2018; Ord. 2013-11 § 151, 2013; Ord. 2008-2 § 1 (part), 2008) 17.30.040 Special Event Permits.
If a permittee proposes a use of Newport Harbor other than that allowed by this Code, he or she must first obtain a "special event permit,” as provided by Chapter 11.03. Upon issuance of the special event permit, the City 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. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020) (Newport Beach 3-24) 630 17.35.010 Chapter 17.35 HARBOR DEVELOPMENT REGULATIONS Sections: 17.35.010 General Provisions for Harbor Structures.
Piers.
Bayward Location of Piers and Floats.
17.35.020 17.35.030 17.35.040 Other Structures.
17.35.050 Bulkheads.
17.35.060 17.35.070 17.35.080 17.35.090 Signs.
17.35.010 Balboa Island-Noncommercial Piers.
Areas with Special Harbor Permit Regulations.
Parking Requirements.
General Provisions for Harbor Structures.
A. Design. 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 alternate design for review and potential approval of the City prior to the issuance of a harbor development permit using the "Alternate Materials, Design or Method of Construction" as provided in Sections 1.8.7 and [A] 104.11 of the California Building Code.
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 minimizing impacts to
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 minimizing 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, and flagmen employed, as necessary or otherwise required. 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.
Additionally, adequate lighting and signals required by the particular work in progress or as prescribed by the U.S. Coast Guard shall be provided by the permittee at his or her expense.
G. Structures. 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.
H. 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
le 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 by reasons of, or in connection in any way with such work, permittee shall defend, indemnify and hold them and each of them, harmless from such claim.
I.
Repairs. The permittee shall keep the structures in good repair at all times. Failure to repair, when written notice has been given by the Public Works Department, shall be cause for the revocation of the permit in accordance with Section 17.70.020.
J. 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 in accordance with Section 17.70.020. When unusual circumstances arise with respect to the collection of debris or litter, the City Manager may 631 (Newport Beach 3-24) 17.35.020 authorize by the use of City forces or by contract, the removal of such debris. Cost for such pollution control shall be borne by the permittee.
K. Rights to Impose Rental or Other Charges.
The approval of permits or leases by the City shall not constitute a waiver of any rights or requirements which it may now have or hereafter have to impose
K. Rights to Impose Rental or Other Charges.
The approval of permits or leases by the City 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 upon the users of the same.
L. Special Event Permits. If a permittee proposes a use of Newport Harbor other than that allowed by this Code, he or she must first obtain a "special event permit,” as provided by Chapter 11.03. Upon issuance of the special event permit, the City of Newport Beach may impose conditions on the permit to ensure that the proposed use does not affect the health, safety or welfare of the residents of Newport Beach. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2017-8 § 3, 2017; Ord. 2013-11 § 152, 2013; Ord. 2013-1 § 6, 2013; Ord. 2008-2 § 1 (part), 2008) 17.35.020 Piers.
A. Use Regulations.
1. No permits for a residential pier will be granted to persons other than the owners or longterm lessee of the abutting upland properties.
2. The permit application for a residential pier permit must be signed by the fee owners or longterm lessee of all abutting upland property having access to the pier.
3. Piers bayward of residential zoned areas shall be controlled by the permittee. Vessels moored at residential piers shall not create a nuisance with regard to vehicle parking, vessel waste, or noise disturbances to adjoining residents.
4. Piers bayward of commercial-zoned areas may be rented pursuant to the provisions of this title.
5. Only piers and certain patio decks authorized under subsection (C) of this section and their appurtenances shall be permitted bayward of the bulkhead.
6. No private piers shall be permitted at street ends.
ers and certain patio decks authorized under subsection (C) of this section and their appurtenances shall be permitted bayward of the bulkhead.
6. No private piers shall be permitted at street ends.
7. In single-unit and two-unit residential districts, only a single pier and slip shall be permitted bayward of each parcel or lot. For multi-unit or mixed-use districts, only a single pier and slip shall be permitted bayward of each parcel or lot unless permitted by the reviewing authority.
8. No new noncommercial piers on Balboa Island shall be permitted, unless approved pursuant to Section 17.35.060.
9. The City shall provide harbor lines, parcel lines, parcel information, utility easements, and other pertinent information associated with the permitting process, via the City of Newport Beach website at: https://www.newportbeachca.gov.
10. Permits may be granted for joint ownership piers at the prolongation of common lot lines. The permit for joint ownership piers shall provide that all parties shall have equal rights under the permit and shall be held jointly responsible for compliance with all rules, regulations, and conditions set forth in the permit.
B.
Setbacks.
1. All piers and slips for residential properties shall be set back a minimum of five feet from the prolongation of the side property line.
2. With the prior approval of the City, piers and slips for commercial properties may extend past the prolongation of the property line.
3. The prolongation of the property line bayward at the same bearing from the bulkhead shall generally be used in determining the allowable setbacks for piers and slips. Because there are certain physical conditions which preclude the strict application of this policy without prejudice to adjoining
be used in determining the allowable setbacks for piers and slips. Because there are certain physical conditions which preclude the strict application of this policy without prejudice to adjoining properties, special consideration will be given to areas where precise prolongation of the property line has not been determined and at least one of the following conditions exist: a. Where property lines are not approximately perpendicular to the bulkhead line; b.
line; or C.
Where curves or angles exist in the bulkhead Where bridges, topography, street ends or publicly owned facilities adjoin the property.
4. Setbacks apply to joint ownership piers with the exception that the slips, floats and piers may extend over the common property line.
C. Patio Decks. Patios are not permitted to extend over the waters of Newport Harbor unless the waters are adjacent to the upland property and out(Newport Beach 3-24) 632 17.35.020 side the areas described in the tidelands trust, and provided the patio complies with the following conditions: 1. The maximum projection of patio deck encroachments beyond the bulkhead line shall be limited to five feet.
2. The minimum setbacks from the prolongations of the side property lines shall be five feet.
3. No float shall be permitted within one foot of the decks.
4. No permanent structure shall be permitted on the projecting portion of the patios except: a.
Planters and benches not over sixteen (16) inches in height; and/or b. Railings not over forty-two (42) inches in height with approximately ninety-five (95) percent open area.
5. A harbor development and building permit has been obtained.
D. Storage Lockers. Storage lockers and boat boxes may be installed on shore-connected piers and floats subject to the following limitations:
harbor development and building permit has been obtained.
D. Storage Lockers. Storage lockers and boat boxes may be installed on shore-connected piers and floats subject to the following limitations: 1. The overall height shall not exceed thirty (30) inches when located bayward of residential property zones.
2. The overall height shall not exceed thirty (30) inches when located bayward of commercial and industrial property zones where the piers and floats are used primarily for the mooring of pleasure boats.
3. The overall height shall not exceed sixty (60) inches when located on facilities bayward of commercial and industrial-zoned property where the use is not primarily for the mooring of pleasure boats.
4. The overall height shall be measured from the deck of the pier or float to the top of the storage locker. The enclosed portion of the locker or box shall not exceed the storage locker height.
E. Safety Requirements.
1. All commercially operated boat docking facilities shall be equipped with firefighting facilities as specified by the Fire Code.
2. Any electrical service upon any pier, dock or float shall be installed under a permit obtained from the Community Development Department.
3. Any domestic water service upon any pier, dock, or float shall be installed under a permit obtained from the Community Development Department.
4. All commercial piers, floats or docks used for the loading of passengers shall be lighted in such a manner as to provide an illumination level as specified by the California Building Code for all areas used for the loading of such passengers.
F. Encroaching Piers and Floats. In areas where existing piers and floats encroach in front of abutting upland property owned or leased by others, a new
areas used for the loading of such passengers.
F. Encroaching Piers and Floats. In areas where existing piers and floats encroach in front of abutting upland property owned or leased by others, a new permit shall be required upon the occurrence of any of the following: 1. Any change in type of existing use of the piers and floats; 2. Any change in type of existing use of the abutting upland property owned by the permittee; 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee; or 4. Any destruction of the pier and float in which over sixty (60) percent of the replacement value of the pier and float has been destroyed.
A public hearing before the Harbor Commission is required prior to the issuance of a new permit for an encroaching pier or float. The public hearing shall be held in accordance with the procedures set forth in Section 17.05.140. The Harbor Commission may approve or conditionally approve a new permit for an encroaching pier or float upon making the findings set forth in Section 17.05.140(D)(1). The requirements in this subsection are limited to permits and shall not apply to leases entered into by the City in accordance with Chapter 17.60.
G. Defective Piers. Upon learning that any pier is in a defective or dangerous condition, the Public Works Director shall immediately notify the owner or other person having charge of the same in writing, requiring such person or persons to immediately repair it or to put up barriers to prevent persons from going upon it. If such person fails or neglects to do so, the Public Works Director may place barriers, as necessary, for the protection of the public and charge the cost thereof to such person. It shall be a violation
such person fails or neglects to do so, the Public Works Director may place barriers, as necessary, for the protection of the public and charge the cost thereof to such person. It shall be a violation of this title for any person to interfere with any such barrier.
633 (Newport Beach 3-24) 17.35.030 H. Damaged Pier. If any pier, or any portion thereof, or any material on such pier, shall fall into the waters of Newport Harbor, it shall be the duty of the owner, agent or lessee of such pier to forthwith remove the same from the waters of Newport Harbor and, if they shall fail to do so, the Public Works Director may do so and the cost thereof may be recovered from the owner, agent, or lessee of such pier in a civil action. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-27 § 2, 2013; Ord. 2013-11 §§ 153, 154, 2013; Ord. 2008-2 § 1 (part), 2008) 17.35.030 Bayward Location of Piers and Floats.
A. Piers and floats located in the areas of Newport Harbor set forth in this subsection shall not extend bayward beyond the specified limits without the approval of the Harbor Commission pursuant to subsection (G)(1) of this section: 1. From United States (U.S.) Bulkhead Station No. 107 to No. 109: the U.S. Pierhead Line.
2. From U.S. Bulkhead Station No. 109 to the northerly prolongation of the easterly line of “H” Street: sixteen (16) feet bayward of the U.S. Pierhead Line.
3.
From U.S. Bulkhead Station No. 110 to No.
112: the U.S. Pierhead Line.
4. From the northerly prolongation of the westerly line of Cypress Street to U.S. Bulkhead Station No. 113: the U.S. Pierhead Line.
5. From U.S. Pierhead Station No. 564 northerly to U.S. Bulkhead Station No. 162: the U.S. Pierhead Line.
6. From U.S. Bulkhead Station No. 115 to No.
119: the U.S. Pierhead Line.
. Pierhead Line.
5. From U.S. Pierhead Station No. 564 northerly to U.S. Bulkhead Station No. 162: the U.S. Pierhead Line.
6. From U.S. Bulkhead Station No. 115 to No.
119: the U.S. Pierhead Line.
7. From U.S. Bulkhead Station No. 120 to No.
221: twenty (20) feet bayward of the U.S. Pierhead Line.
8. From U.S. Bulkhead Station No. 122 to No.
123: twenty (20) feet bayward of the U.S. Pierhead Line.
9. From Lido Isle Bridge to U.S. Bulkhead Station No. 125: twenty (20) feet bayward of the U.S.
Pierhead Line.
10. West Newport Channels.
a. Rialto and Rivo Alto: thirty (30) feet bayward of the bulkhead line. Float lengths may be increased parallel to the bulkhead line by a maximum of one foot for each additional two feet of the bulkhead line along the property in excess of thirty (30) feet.
Example 1. If the bulkhead line along a property is thirty (30) feet, then the maximum length for the float parallel to the bulkhead line is twenty (20) feet (with five-foot setbacks).
Example 2. If the bulkhead line along a property is thirty-four (34) feet, then the maximum length for the float parallel to the bulkhead line is twenty-two (22) feet (with five-foot setbacks) (twenty (20) feet + two feet = twenty-two (22) feet).
b. Channel northerly of Newport Island and westerly of Newport Boulevard, along the South Line of the one hundred twenty-five (125) foot Channel Reservation as shown on Tract No. 1011 map ("South Line"): thirty (30) feet bayward of the South Line. Floats may be extended parallel to the South Line by a maximum of one foot for each additional two feet of the South Line along the property in excess of thirty (30) feet.
C.
Balboa Coves and Newport Marina Villas, along the North Line of the one hundred twenty-five (125) foot Channel Reservation as shown on Tract
h Line along the property in excess of thirty (30) feet.
C.
Balboa Coves and Newport Marina Villas, along the North Line of the one hundred twenty-five (125) foot Channel Reservation as shown on Tract No. 1011 map ("North Line"): i.
Community/association piers and commercial marinas shall not extend more than thirty (30) feet bayward of the North Line.
ii. Residential, noncommunity/association piers and floats parallel to the North Line shall not extend more than thirty (30) feet bayward of the North Line.
For piers and floats longer than twenty (20) feet parallel to the North Line, the thirty (30) foot bayward limit shall be reduced by one foot for every two feet the pier and float exceed the length of twenty (20) feet.
Example. A twenty-six (26) foot long float parallel to the North Line may extend bayward a maximum of twenty-seven (27) feet (thirty (30) feet three feet = twenty-seven (27) feet) from the North Line.
11. Lido Isle.
a. From U.S. Pierhead Station No. 574 northerly to U.S. Bulkhead Station No. 171, excluding the area prohibited by subsection (E)(2) of this section: the U.S. Pierhead Line.
(Newport Beach 3-24) 634 17.35.030 b. From U.S. Bulkhead Station No. 172 to No.
173, excluding the area prohibited by subsection (E)(3) of this section: twenty (20) feet bayward of the U.S. Pierhead Line.
C. From U.S. Bulkhead Station No. 173 to Lido Isle Bridge, excluding the area prohibited by subsection (E)(3) of this section: thirty (30) feet bayward of the U.S. Pierhead Line.
12. From U.S. Bulkhead Station No. 128A to No.
130: the U.S. Pierhead Line.
13. From U.S. Bulkhead Station No. 130 to No.
131: twenty (20) feet bayward of the U.S. Pierhead Line.
14. Dover Shores: the pierhead line shown on the Pier Permit Area Map, City Plan No. H-5014-S.
e.
13. From U.S. Bulkhead Station No. 130 to No.
131: twenty (20) feet bayward of the U.S. Pierhead Line.
14. Dover Shores: the pierhead line shown on the Pier Permit Area Map, City Plan No. H-5014-S.
15. From U.S. Bulkhead Station No. 132 to No.
133 then easterly to U.S. Pierhead Station No. 535B: the pierhead line shown on the Pier Permit Area Map for Tract No. 4003, City Plan No. H-5029-S.
16. Linda Isle: both the U.S. Pierhead Line and the pier permit line shown on the Pier Permit Area Map for Tract No. 4003, City Plan No. H-5029-S.
17. From U.S. Bulkhead Station No. 141 southerly to No. 140: the U.S. Pierhead Line.
18. From U.S. Bulkhead Station No. 160 to No.
250: the U.S. Pierhead Line.
19. Balboa Island.
a.
South Bay Front, from U.S. Bulkhead Station No. 255 to No. 256: sixteen (16) feet bayward of the U.S. Pierhead Line.
b. South Bay Front, from U.S. Bulkhead Station No. 256 to No. 259: ten (10) feet bayward of the U.S.
Pierhead Line.
C.
South Bay Front, from U.S. Bulkhead Station No. 259 to the westerly prolongation of the northerly line of Lot 5: the U.S. Pierhead Line.
d.
North Bay Front, from U.S. Bulkhead Station No. 151 easterly to the northerly prolongation of the easterly line of Garnet Avenue: ten (10) feet bayward of the U.S. Pierhead Line.
e. North Bay Front, easterly from the northerly prolongation of the easterly line of Coral Avenue to U.S. Bulkhead Station No. 152: ten (10) feet bayward of the U.S. Pierhead Line.
f.
East Bay Front, from U.S. Bulkhead Station No. 152 southerly to the easterly prolongation of the northerly line of Park Avenue: ten (10) feet bayward of the U.S. Pierhead Line.
g. East Bay Front, southerly from the easterly prolongation of the northerly line of Park Avenue to U.S. Bulkhead Station No. 255: sixteen (16) feet
e: ten (10) feet bayward of the U.S. Pierhead Line.
g. East Bay Front, southerly from the easterly prolongation of the northerly line of Park Avenue to U.S. Bulkhead Station No. 255: sixteen (16) feet bayward of the U.S. Pierhead Line.
20. From U.S. Bulkhead Station No. 137 to the east property line of Beacon Bay subdivision: sixteen (16) feet bayward of the U.S. Pierhead Line.
21. From east property line of Beacon Bay subdivision to Marine Avenue Bridge: twenty (20) feet bayward of the U.S. Pierhead Line.
22. Promontory Bay: the pierhead line as shown on Tract Map No. 3867.
23. From U.S. Bulkhead Station No. 101 to No.
104: twenty (20) feet bayward of the U.S. Pierhead Line.
B. The bayward extension of piers and floats located in the areas of Newport Harbor set forth in this subsection shall require Harbor Commission approval in accordance with subsection (G)(2) of this section unless the Public Works Director, Community Development Director or Harbormaster, as applicable, determines that the proposed pier or float will not extend beyond the existing permitted length, is substantially similar in size and configuration to the existing structure, and would not, in comparison with the existing structure, further impede ingress and egress to adjacent piers and floats: 1. Harbor Island: From U.S. Bulkhead Station No. 140 easterly to Harbor Island Bridge.
Collins Isle.
2.
a.
From U.S. Bulkhead Station No. 160 easterly to Collins Isle Bridge.
b. From Collins Isle Bridge northerly to U.S.
Bulkhead Station No. 250.
3. Yachtsman's Cove: submerged portions of Parcel 1 and Parcel 2 of Parcel Map No. 93-115 between 1601 and 1701 Bayside Drive.
4.
Corona Del Mar: from U.S. Bulkhead Station 5. Upper Bay: from Coast Highway Bridge
ortions of Parcel 1 and Parcel 2 of Parcel Map No. 93-115 between 1601 and 1701 Bayside Drive.
4.
Corona Del Mar: from U.S. Bulkhead Station 5. Upper Bay: from Coast Highway Bridge northerly on the eastern shoreline to Back Bay Science Center.
635 (Newport Beach 3-24) 17.35.030 C. The bayward extension of existing piers and floats located in the areas of Balboa Island set forth in this subsection shall require Harbor Commission approval in accordance with subsection (G)(3) of this section unless the Public Works Director, Community Development Director or Harbormaster, as applicable, determines that the proposed pier or float will not extend beyond the existing permitted length: 1. South Bay Front, from the westerly prolongation of the northerly line of Lot 5 to Collins Isle Bridge.
2. North Bay Front, from Collins Isle Bridge northeasterly to U.S. Bulkhead Station No. 151.
3. North Bay Front, easterly from the northerly prolongation of the easterly line of Garnet Avenue to the northerly prolongation of the easterly line of Coral Avenue.
D. The bayward extension of piers and floats located in the areas of Newport Harbor set forth in this subsection shall require Harbor Commission approval in accordance with subsection (G)(2) of this section: 1. From northerly prolongation of the easterly line of “H” Street westerly to U.S. Bulkhead Station No. 110.
2. From U.S. Bulkhead Station No. 112 westerly to the northerly prolongation of the westerly line of Cypress Street (between "A" Street and Cypress Street).
3. From U.S. Bulkhead Station No. 113 to No.
115.
4. Bay Island between U.S. Bulkhead Station No. 162 and No. 163.
5.
120.
From U.S. Bulkhead Station No. 119 to No.
6. The Rhine, extending northerly from U.S.
U.S. Bulkhead Station No. 113 to No.
115.
4. Bay Island between U.S. Bulkhead Station No. 162 and No. 163.
5.
120.
From U.S. Bulkhead Station No. 119 to No.
6. The Rhine, extending northerly from U.S.
Bulkhead Station No. 221 into the Rhine to No. 122.
7. From U.S. Bulkhead Station No. 123 to Lido Isle Bridge (Lido Peninsula along Anchorage Way and Lido Park Drive).
8.
a.
172.
Lido Isle.
From U.S. Bulkhead Station No. 171 to No.
b. From Lido Isle Bridge to U.S. Pierhead Station No. 574.
9.
126.
From U.S. Bulkhead Station No. 125 to No.
10. From U.S. Bulkhead Station No. 226 to No.
128A.
11. From Marine Avenue Bridge to U.S. Bulkhead Station No. 101.
E. Piers and floats are prohibited in the following areas of Newport Harbor: 1. From U.S. Pierhead Station No. 563 to No.
564, on the north side of the channel south of Bay Island.
2. From the beach area along the northerly side of Lido Isle between the prolongation of the easterly line of Lot 847 across the public walkway and the westerly line of Lot 493, except for the Lido Isle Community Association pier and float.
3. From the beach area along the southerly side of Lido Isle between the easterly line of Lot 919 and the westerly line of Lot 457, except for Lido Isle Community Association piers and floats.
4. From U.S. Pierhead Station No. 535B to U.S.
Bulkhead Station No. 137.
5. From Harbor Island Bridge to U.S. Bulkhead Station No. 141.
F. The Public Works Director, Community Development Director and/or Harbormaster, as applicable, may approve improvements that do not require approval by the Harbor Commission or may refer such decisions to the Harbor Commission for approval under subsection (G)(2) of this section.
G. The Harbor Commission may approve or conditionally approve bayward extensions of piers
ion or may refer such decisions to the Harbor Commission for approval under subsection (G)(2) of this section.
G. The Harbor Commission may approve or conditionally approve bayward extensions of piers and floats in the following areas only after conducting a public hearing in accordance with Section 17.05.140 and making the findings specified herein.
The Harbor Commission's decision shall be on a case-by-case basis and prior approvals of deviations shall not have any precedential value. The person requesting the deviation shall bear the responsibility to establish evidence in support of the findings.
1. For piers and floats in the areas set forth in subsection (A) of this section, upon making the following findings in lieu of the findings in Section 17.05.140(D)(1): a. Special circumstances applicable to the subject property exist, such as location, shape, size, surrounding topography or other physical features; b. Because of those special circumstances, strict compliance with the specified criteria would deny (Newport Beach 3-24) 636 17.35.040 the property of privileges enjoyed by other properties in the vicinity; C. The bayward extension will not provide the subject property with special privileges inconsistent with limitations on properties in the vicinity; and d. There will be no negative impacts to adjacent property owners, harbor views, navigation, or future dredging.
2. For piers and floats in the areas set forth in subsections (B) and (D) of this section or in an area of Newport Harbor not specifically listed in this section, upon making the general findings in Section 17.05.140(D)(1) and, under Section 17.05.140(D)(1)(f), finding that there will be no negative impacts to adjacent property owners, harbor views, navigation, or future dredging.
l findings in Section 17.05.140(D)(1) and, under Section 17.05.140(D)(1)(f), finding that there will be no negative impacts to adjacent property owners, harbor views, navigation, or future dredging.
3. For existing piers and floats in the areas set forth in subsection (C) of this section, upon making the general findings in Section 17.05.140(D)(1) and, under Section 17.05.140(D)(1)(f), finding that the proposed pier or float complies with Section 17.35.060 and that there will be no negative impacts to adjacent property owners, harbor views, navigation, or future dredging. (Ord. 2024-1 § 1, 2024; Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-5 § 1, 2018: Ord. 2008-2 § 1 (part), 2008) 17.35.040 Other Structures.
A. Race Committee Platforms. Race committee platforms and instruction platforms may be constructed bayward of the bulkhead line at recognized yacht clubs and recognized sailing schools. All work shall require issuance of a harbor development permit.
B. Floating Dry Docks. Permits for floating dry docks may be approved by the Public Works Director. An application for a floating dry dock permit shall be filed with the Public Works Department in accordance with Section 17.60.020 and shall be approved if: 1. The Public Works Director makes the findings set forth in Section 17.05.140(D)(1); 2. The location of the floating dry dock is in waters bayward of commercial, manufacturing or unclassified zones; and 3. A harbor development permit has previously been approved.
4. Permits for floating dry docks are issued for one location only. A new permit must be obtained to move a floating dry dock from one location to another location within the harbor. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.35.050 Bulkheads.
permit must be obtained to move a floating dry dock from one location to another location within the harbor. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.35.050 Bulkheads.
A. All bulkheads in residential districts shall be installed on the established bulkhead line or at a location behind the bulkhead line that would preserve the design profile of the harbor. Any retaining or ornamental wall installed landward of the bulkhead line shall be considered a bulkhead if it also serves to contain the waters of the harbor and shall be processed in the same manner as if it were on the bulkhead line. The establishment of bulkhead lines does not necessarily allow the property owner to build to the limits of the bulkhead line, due to the potential environmental considerations established by the State of California and/or the Federal government.
The Community Development Director may approve bulkheads located between U.S. Bulkhead Station Nos. 112 and 109, not to exceed the bayward side of the "Vacated East Bay Avenue." For the addresses at 2209, 2223, 2227, 2231 and 2233 Bayside Drive, approval of a bulkhead at these properties shall not exceed a point bayward of the average high tide line established at a point forty (40) feet landward of the face of the bulkhead at the property at 2137 Bayside Drive, and then on a straight line from that point to the baywardmost point of the bulkhead at the property at 2301 Bayside Drive.
B. Bulkheads shall be at the existing height established for the area and shall be connected to adjacent bulkheads. In cases where no adjacent bulkhead or bulkheads exist, a wing wall or wing walls shall be constructed from the bulkhead landward adequate to contain the fill behind the bulkhead.
djacent bulkheads. In cases where no adjacent bulkhead or bulkheads exist, a wing wall or wing walls shall be constructed from the bulkhead landward adequate to contain the fill behind the bulkhead.
C. The height and design of all bulkheads and wing walls shall be subject to the design criteria and the design and construction standards of the Community Development Department.
D. All bulkhead construction permits shall be subject to a detailed construction drawing being approved by the Community Development Depart636-1 (Newport Beach 3-24) 17.35.060 ment. Drawings and substantially structural calculations shall be signed by a civil or structural engineer.
E. The bulkhead shall not be used to support any structure on the abutting upland property unless the bulkhead has been properly designed to carry the additional loads.
F. In areas where there is existing development and it is of direct benefit to the City to have a bulkhead constructed, the City may contribute one-third of the cost of constructing a bulkhead across street ends.
G. Bulkheads shall be designed and sited to protect the character of the existing shoreline profiles and avoid encroachment onto public tidelands.
H. Maintenance or replacement of existing bulkheads is permitted when expansion or encroachment into coastal waters is limited to the minimum extent necessary to repair, maintain, or replace an existing bulkhead and the backfill is not used to create new usable residential land areas. (Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2013-11 §§ 155, 156, 2013; Ord. 2008-2 § 1 (part), 2008) 17.35.060 Balboa Island—Noncommercial Piers.
A. No new noncommercial piers on Balboa Island shall be approved unless determined by the Harbor Commission to be in the public interest,
§ 1 (part), 2008) 17.35.060 Balboa Island—Noncommercial Piers.
A. No new noncommercial piers on Balboa Island shall be approved unless determined by the Harbor Commission to be in the public interest, which finding shall be a prerequisite to the issuance of a harbor development permit pursuant to Chapter 17.50. New noncommercial piers, if approved, shall be constructed in strict conformance with this section and Chapter 17.50 and the design criteria. Piers presently permitted may be maintained and repaired upon securing a permit in accordance with Chapter 17.50. Any revision of an existing pier or float shall be in strict conformance with this section and shall not be approved if the addition or revision would, in comparison to the existing structure, further restrict or impair the public's use of the bay or beach in the vicinity of the pier or floats.
B. The alteration, reconstruction or replacement of any existing permitted noncommercial pier on Balboa Island, or any portion thereof, shall be limited to the following: 1. The overall square footage of the noncommercial pier, as proposed for alteration, reconstruction or replacement shall be equal to or less than the square footage of the permitted noncommercial pier; 2. The noncommercial pier, as proposed for alteration, reconstruction or replacement, shall not extend beyond the City permit line (the U.S. pierhead line) or such other bayward extension of the permit area that is permitted by Section 17.35.030; and 3. The noncommercial pier, as proposed for alteration, reconstruction or replacement shall be wholly within the original permitted area as specified in the existing permit on file with the City.
C. Whenever any application for a harbor development permit to install a new noncommercial pier
wholly within the original permitted area as specified in the existing permit on file with the City.
C. Whenever any application for a harbor development permit to install a new noncommercial pier on Balboa Island is submitted, a public hearing shall be held by the Harbor Commission in accordance with the procedures set forth in Section 17.05.140.
(Ord. 2024-1 § 2, 2024; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.35.070 Areas with Special Harbor Permit Regulations.
A. Promontory Bay. The following conditions are to be placed on each harbor development permit when approved: 1. The permittee shall be responsible for maintaining the area delineated on the harbor development permit free and clear from floating rubbish, debris or litter at all times; and 2. The permittee shall be responsible for all maintenance dredging, in accordance with the design profile for Promontory Bay, for the area between the bulkhead line and pierhead line as delineated by the harbor development permit.
B. Grand Canal. There shall be no permits issued for onshore moorings or pier platforms fronting on alleys, avenues or other public easements terminating on the Grand Canal. There shall be no new permits issued for onshore moorings or pier platforms bayward of those lots at the extreme south end and north end of Grand Canal. The following conditions are to be in effect and placed on each harbor development permit for the Grand Canal: 1. The permittee shall be allowed either one pier platform, or in lieu thereof, two shore mooring type appurtenances per lot. Pier platforms and shore (Newport Beach 3-24) 636-2 17.35.080 moorings shall be constructed according to the design criteria adopted by the City.
2. All vessels (maximum length eighteen (18)
per lot. Pier platforms and shore (Newport Beach 3-24) 636-2 17.35.080 moorings shall be constructed according to the design criteria adopted by the City.
2. All vessels (maximum length eighteen (18) feet) moored in the Grand Canal shall be tied off to pier platform structures or onshore moorings. Floating platforms or slips will not be allowed. Vessels tied to the bulkhead or by alternate methods not approved by the Harbor Department shall be prohibited.
3. The permittee shall be allowed no more than one vessel per onshore mooring.
4. Any onshore mooring approved for the Grand Canal shall display a permit number issued by the Harbor Department.
5. Each vessel tied to any pier platform in the Grand Canal shall be anchored from the stern in such a method as to prevent the vessel from swinging into adjoining vessels or across bayward prolongations of private property lines. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.35.080 Parking Requirements.
Parking shall be provided pursuant to Titles 20 and 21. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2013-11 § 157, 2013: Ord. 2008-2 § 1 (part), 2008) 17.35.090 Signs.
No sign permitted on the tidelands shall exceed four square feet in total area except signs permitted pursuant to a lease with the City or under a marine activities permit issued pursuant to Chapter 17.10.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) Sections: Chapter 17.40 LIVE-ABOARDS Issuance of Permit.
Term/Renewal.
Conditions/Regulations.
Use of Pump-Out FacilitiesDisposal of Trash.
Compliance with Law.
17.40.010 Purpose.
17.40.020 Live-Aboards Prohibited.
17.40.030 Permits Required.
17.40.040 Application for Live-Aboard Permit.
17.40.050 17.40.060 17.40.070 17.40.080 17.40.090 17.40.100
ce with Law.
17.40.010 Purpose.
17.40.020 Live-Aboards Prohibited.
17.40.030 Permits Required.
17.40.040 Application for Live-Aboard Permit.
17.40.050 17.40.060 17.40.070 17.40.080 17.40.090 17.40.100 Discharge Servicing and 17.40.110 Limitation on Number of 17.40.120 Transfer Prohibited.
17.40.130 Termination of Permit.
Records.
Permits.
Prior legislation: Ord. 2015-9.
17.40.010 Purpose.
The City Council of the City of Newport Beach finds and declares as follows: This chapter will promote the public health, safety and welfare by regulating the number of persons living aboard vessels on offshore moorings and ensuring, to the extent possible, that the residential use of a vessel in Newport Harbor does not result in the discharge of human waste or other waste; activities that are disruptive or impede other parties' use and/or enjoyment of Newport Harbor; or otherwise adversely impact the health, safety and welfare of Newport Harbor and those that visit, work around, or live on or near, the bay. (Ord. 2020-27 § 4, 2020: Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 636-3 (Newport Beach 3-24) 17.40.020 17.40.020 Live-Aboards Prohibited.
Live-aboards shall not be permitted at piers that are bayward of residentially zoned areas. No person shall live aboard any vessel on an onshore mooring.
(Ord. 2020-27 § 5, 2020: Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2010-26 § 4, 2010: Ord. 2008-2 § 1 (part), 2008) 17.40.030 Permits Required.
No person shall live aboard any vessel in Newport Harbor without first having obtained a live-aboard permit from the Harbormaster. No live-aboard permit shall be issued except to a person holding a valid mooring permit issued pursuant to Chapter 17.60 or a valid rental agreement from a commercial marina.
from the Harbormaster. No live-aboard permit shall be issued except to a person holding a valid mooring permit issued pursuant to Chapter 17.60 or a valid rental agreement from a commercial marina.
No permit shall be issued to any live-aboard which is not intended to serve as the principal residence of the permittee. For purposes of this section, “principal residence" shall mean: (A) with respect to a mooring permittee, to live aboard for not less than two hundred forty-three (243) days in any calendar year; or (B) with respect to the tenant of a commercial marina with a valid rental agreement, to live aboard for a period not less than one hundred eighty (180) days in any three hundred sixty-five (365) day period. Notwithstanding the foregoing, a sub-permittee of an off-shore mooring under Section 17.60.040 who is in good standing may live aboard, subject to and upon compliance with the requirements set forth in Section 17.40.070(A). The ability of a sub-permittee to live aboard may be revoked at the discretion of the Harbormaster. The decision of the Harbormaster shall be final and nonappealable. (Ord. 2022-9 § 5, 2022; Ord. 2020-27 § 6, 2020: Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2018-17 § 32, 2018: Ord. 20082 § 1 (part), 2008) 17.40.040 Application for Live-Aboard Permit.
An application for a live-aboard permit shall be filed with the Harbormaster upon forms provided by the City and shall contain the following information: A. The name of the permittee and the name(s) of all individuals to be living aboard the vessel; B. All pertinent information relative to the vessel, including, but not necessarily limited to, the name of the vessel, the registration number of the vessel assigned by the Department of Motor Vehi-
. All pertinent information relative to the vessel, including, but not necessarily limited to, the name of the vessel, the registration number of the vessel assigned by the Department of Motor Vehicles or the United States Coast Guard, the make and model of the vessel, and the length of the vessel; C. The make, model, and holding tank capacity of the marine sanitation device installed in the vessel; D. The address and phone number, emergency contact information and email address where the permittee or other adult living aboard can be contacted during regular work hours or when not occupying the vessel; and E. Other information the Harbormaster reasonably believes is necessary or helpful to the efficient administration of the provisions of this chapter.
All applications shall be accompanied by a fee established by resolution of the City Council, but the fee shall not exceed the cost to the City of administering this chapter. The submittal of an application for live-aboard shall be deemed consent by the owner of the vessel to any inspection necessary to confirm the accuracy of the information in the application. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2018-17 §§ 33, 34, 2018; Ord. 2008-2 § 1 (part), 2008) 17.40.050 Issuance of Permit.
Upon receipt of an application for a live-aboard permit, the Harbormaster shall investigate the information contained in the application along with other information on record available to the City. The Harbormaster shall deny the application if: A. The vessel which will serve as the principal residence is not equipped with a fully operational marine sanitation device and holding tank with a capacity of no less than ten (10) gallons which is necessary to ensure no discharge of human waste into Newport Harbor;
pped with a fully operational marine sanitation device and holding tank with a capacity of no less than ten (10) gallons which is necessary to ensure no discharge of human waste into Newport Harbor; B. Approval of the application would result in live-aboard permits in excess of the limitations provided by this chapter; C. The applicant does not have a valid mooring permit as required by Section 17.60.040 or a valid rental agreement from a commercial marina; D. Issuance of the permit, given the specific circumstances of the application, would significantly impact persons residing, working or visiting Newport Harbor; (Newport Beach 3-24) 636-4 17.40.060 E. The vessel is incapable of safely maneuvering under its own power, whether by sail or engine, from its mooring, dock or berthing place, to the open waters of the Pacific Ocean and back to the mooring, dock or berthing place; or F. In the case of a renewal, the applicant was in violation of this title during the prior permit term.
(Ord. 2020-27 § 7, 2020: Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 35, 2018; Ord. 2008-2 § 1 (part), 2008) 17.40.060 Term/Renewal.
A. Permits issued pursuant to this chapter shall be valid for a term of twelve (12) months. Applications for the renewal of any permit shall be submitted at least sixty (60) days before expiration of the permit, on forms supplied by the City, shall include the fee established by resolution of the City Council and shall specify any changes to the information provided on the original application for a permit.
B. The application for renewal shall be denied if the permittee does not comply with any of the requirements specified in Section 17.40.050, the permittee has failed to comply with any provision of this
he application for renewal shall be denied if the permittee does not comply with any of the requirements specified in Section 17.40.050, the permittee has failed to comply with any provision of this title during the term of the previously issued permit, or the permittee has failed to use the vessel as permittee's principal residence during the previous term of the permit.
C. The issuance of a live-aboard permit to a mooring permittee is not transferrable and does not create any tenancy between the City and the permittee or other persons living aboard, nor does it create any property right to the mooring site. (Ord. 2023-22 § 760, 2023; Ord. 2020-27 § 8, 2020: Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 § 158, 2013; Ord. 2008-2 § 1 (part), 2008) 17.40.070 Conditions/Regulations.
A. The Harbormaster may impose such conditions on the permit as are reasonably necessary to ensure that the activities of the permittee comply with the provisions of this chapter. Such conditions shall include but are not limited to: 1. All vessels subject to a live-aboard permit shall have an operable marine sanitation device and holding tank pre-approved by the Harbormaster.
2. The live-aboard permittee shall maintain a log, which shall be updated by the end of each calendar month and kept on the vessel subject to the liveaboard permit, which shows the days/nights the liveaboard resided on the boat.
3. By obtaining a live-aboard permit, the permittee specifically authorizes the Harbormaster to board the subject vessel at any time to inspect the marine sanitation device and holding tank and install a dye tablet to determine whether there is any discharge from the same.
B. The Harbormaster shall have the power to promulgate rules and regulations to ensure that the
e and holding tank and install a dye tablet to determine whether there is any discharge from the same.
B. The Harbormaster shall have the power to promulgate rules and regulations to ensure that the purposes of this chapter are satisfied. Each permittee shall comply with these rules and regulations. Compliance shall be considered a condition to each liveaboard permit. (Ord. 2023-22 § 761, 2023; Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 36, 2018: Ord. 2008-2 § 1 (part), 2008) 17.40.080 Use of Pump-Out Facilities— Disposal of Trash.
Permittees shall use pump-out facilities on a regular basis or otherwise discharge human waste in a legal manner. The permittees and others living aboard pursuant to a permit shall not deposit any garbage or trash in Newport Harbor or on property surrounding Newport Harbor except in trash receptacles owned and maintained by the City or its contractors.
Disposal of oversized items, e-waste, oils, fuels, chemicals, or other such liquids, not appropriate for disposal in trash receptacles owned and maintained by the City or its contractors, shall be properly hauled off and properly disposed of by the permittee.
Use of City-owned trash receptacles must comply with any recycling initiative or other such waste material separation program instituted by the City.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.40.090 Compliance with Law.
The permittee, and others authorized to live aboard the permitted vessel, shall comply with all applicable State and Federal laws, the provisions of this Code, and all conditions set forth in the permit.
Failure to comply with these laws, ordinances, or 636-5 (Newport Beach 3-24) 17.40.100 policies shall constitute grounds for revocation of the
of this Code, and all conditions set forth in the permit.
Failure to comply with these laws, ordinances, or 636-5 (Newport Beach 3-24) 17.40.100 policies shall constitute grounds for revocation of the permit. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2008-2 § 1 (part), 2008) 17.40.100 Discharge Servicing and Records.
Each live-aboard permittee is required to contract with an authorized commercial pump-out service at a minimum of twice a month in any month the vessel is occupied by the live-aboard permittee. Each permittee shall maintain a log and any supporting materials from the commercial pump-out service provider including, but not limited to, company-issued service records and invoices. The log and supporting material shall contain the date, time, and location waste was discharged from the vessel and deposited with the commercial service provider. The log and supporting material shall be made available for inspection by the Harbormaster at all reasonable hours and upon request. In addition, the log and supporting material shall be submitted to the Harbormaster with the renewal application. Exceptions to the frequency and use of a commercial service provider may be permitted by the Harbormaster with prior approval. Failure to comply shall result in nonrenewal or revocation of the live-aboard permit and/or revocation of the mooring permit. (Ord. 20205 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 37, 2018: Ord. 2008-2 § 1 (part), 2008) 17.40.110 Limitation on Number of Permits.
The number of live-aboard permits issued to permittees holding valid offshore mooring permits shall not exceed seven percent of the number of offshore mooring permits issued by the City pursuant to Chapter 17.60. (Ord. 2020-27 § 9, 2020: Ord. 2020-
ittees holding valid offshore mooring permits shall not exceed seven percent of the number of offshore mooring permits issued by the City pursuant to Chapter 17.60. (Ord. 2020-27 § 9, 2020: Ord. 20205 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 38, 2018; Ord. 2008-2 § 1 (part), 2008) 17.40.120 Transfer Prohibited.
No person shall transfer, assign, sell or convey a live-aboard permit. Any attempt to transfer, sell, convey or assign a live-aboard permit shall be a violation of this chapter and grounds for revocation of the permit. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.40.130 Termination of Permit.
Any live-aboard permit issued pursuant to this chapter shall be deemed terminated upon revocation of the mooring permit or lease issued pursuant to Chapter 17.60. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) (Newport Beach 3-24) 636-6 17.45.010 Sections: 17.45.010 17.45.020 17.45.030 17.45.010 Chapter 17.45 SANITATION Piers, Docks and Floats.
Required Pump-Out Facilities.
Waste and Refuse.
Piers, Docks and Floats.
A. A permit for a pier, dock or float shall not be issued until the rough plumbing for the dwelling unit or the required sanitation facilities serving such pier, dock or float has been installed and approved by the Community Development Department. The use of a pier, dock or float will not be allowed until any required sanitation facilities are completed and in operation.
B. All public or private commercially operated shore-connected boat marinas shall have a minimum of two restroom facilities for each twenty (20) berthing spaces available in the marina. The walking distance from the farthest boat berth to the restroom facility should be minimized to the extent possible,
room facilities for each twenty (20) berthing spaces available in the marina. The walking distance from the farthest boat berth to the restroom facility should be minimized to the extent possible, and shall not exceed a maximum of one thousand (1,000) feet in overall walking distance.
C. Permission may be granted to install and operate sewage pumping facilities for boats moored to shore-connected structures provided such installations are first approved by the Public Works Department and the Community Development Department.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 §§ 160, 161, 2013; Ord. 2008-2 § 1 (part), 2008) 17.45.020 Required Pump-Out Facilities.
A. All sailing clubs and marinas with a capacity of fifty (50) or more vessels shall install a vessel waste pump-out system solely for the use of vessels associated with that activity. The pump-out facility shall be installed on dock space under the control of the club or marina with convenient access to all vessels owned, leased or chartered by the club or marina. The pump-out facility shall have a capacity commensurate with the capacity of the holding tanks of the vessel or vessels of the club or marina.
B. All pump-out facilities required by this chapter shall be installed pursuant to permit issued by the Public Works Department. Application for permit shall be made on forms prepared, and furnished, by the Public Works Department. No fee shall be charged for the issuance of the pump-out facility permit or any other permit required for the issuance of the pump-out facility permit prior to installation.
C. The application for permit shall be accompanied by appropriate plans and specifications setting forth in detail the work to be done.
D. The application, plans and specifications
to installation.
C. The application for permit shall be accompanied by appropriate plans and specifications setting forth in detail the work to be done.
D. The application, plans and specifications required by this chapter shall be reviewed by the Public Works Department to determine if the proposed work meets all requirements of this chapter and other provisions of this Code. The Public Works Department shall issue the permit if the proposed pump-out station complies with all applicable ordinances, rules and regulations. A separate permit will be required from the Building Official prior to installation of the pump-out facility.
E. Maintenance. Permittee shall maintain the pump-out facility in good condition and repair at all times. (Ord. 2022-9 § 6, 2022; Ord. 2020-5 § 1 (Exh.
1) (part), 2020: Ord. 2013-11 §§ 162—164, 2013; Ord. 2009-2 §§ 6-8, 2009; Ord. 2008-2 § 1 (part), 2008) 17.45.030 Waste and Refuse.
A. Discharge of Treated or Untreated Human or Animal Excreta. No person shall discharge, permit or allow any other person on a vessel under his or her control or command to discharge any treated or untreated human or animal excreta from any marine sanitation device on a vessel into the waters of Newport Harbor or the Pacific Ocean. In accordance with California Harbors and Navigation Code Section 782, any vessel in the waters of Newport Harbor or on the waters of the Pacific Ocean within the jurisdiction of the City, with a marine sanitation device, is subject, at any time, to boarding by the Harbormaster to inspect the operation and condition of the same and shall be subject to the use of a dye tablet to determine whether or not the marine sanitation system is discharging overboard. Violations are subject
pect the operation and condition of the same and shall be subject to the use of a dye tablet to determine whether or not the marine sanitation system is discharging overboard. Violations are subject to all available remedies, including immediate removal from Newport Harbor.
636-7 (Newport Beach 3-24) 17.45.030 B. Vessel Holding Tank Requirements.
1. Vessel Wastes. No person shall own or operate a vessel equipped with any marine sanitation device for human body wastes in the waters of Newport Harbor or the Pacific Ocean unless it complies with all applicable Federal, State, County and City standards.
2. Marina Pump-Out Facilities. The owner and operator of every commercial marina with a capacity of fifty (50) or more vessels shall provide a permanent holding tank pump-out facility or equivalent services which are operable and available for use at all times and which are capable of servicing all vessels berthed, docked, or moored at the marina.
C. Refuse in Navigable Waters. No person shall throw, discharge, deposit or leave or cause, suffer or permit to be thrown, discharged, deposited or left, either from the shore or from any pier or vessel or from any factory or elsewhere, any refuse, debris, garbage, litter, timber or other waste matter of any description into the navigable waters of Newport Harbor or on the shore of Newport Harbor or any navigable water within the boundaries of the City where the same may be washed into Newport Harbor or such navigable water, either by tides, or by floods or otherwise.
D. Refuse and Vessels on Shoreline. No person shall place or allow abandoned vessels or boats, materials, garbage, refuse, debris, litter, timber or other waste matter of any description to remain on or upon the shorelines of the Pacific Ocean or on the
lace or allow abandoned vessels or boats, materials, garbage, refuse, debris, litter, timber or other waste matter of any description to remain on or upon the shorelines of the Pacific Ocean or on the shorelines of Newport Harbor within the City. The City may remove the same with or without notice, and the cost thereof may be recovered from any person owning the same, or placing or causing it to be placed on the shoreline.
E. Refuse Marinas and Piers. Any owner or operator of a marina or any owner or permit holder who maintains a pier shall keep the area in and around such marina or pier located on the shorelines of Newport Harbor within the City reasonably free and clear from beached or floating refuse, debris or litter at all times.
F. Discharge of Flammable Materials. No person shall pump or discharge from any vessel or tank into the waters of Newport Harbor, oil, spirits, or any flammable liquid, or deposit any rubbish, refuse matter or articles of any similarly offensive character therein or upon any pier or street leading to such facility.
G. Dead Animals. No person shall throw, place or leave any dead animal or putrefying matter in the waters of Newport Harbor, or on or along the shore thereof or the shore of any tidewater within the City.
H. Signs Concerning Sanitation Regulations.
The owner or operator of any commercial boat docking facility or marina located on the waters of Newport Bay shall install and maintain at his or her expense in conspicuous locations on the premises thereof standard signs to inform the public of the regulations prohibiting the discharge of toilets or marine sanitation devices on any vessel into the waters of Newport Bay and other provisions of this title which relate to harbor sanitation. Uniform standards and
ohibiting the discharge of toilets or marine sanitation devices on any vessel into the waters of Newport Bay and other provisions of this title which relate to harbor sanitation. Uniform standards and specifications for the design and general locations of such signs shall be prescribed by the Harbor Commission. (Ord. 2023-22 § 762, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 §§ 165–167, 2013; Ord. 2009-2 §§ 9, 10, 2009; Ord. 2008-2 § 1 (part), 2008) (Newport Beach 3-24) 636-8 17.50.010 Chapter 17.50 HARBOR DEVELOPMENT PERMITS Sections: 17.50.010 Permits General.
Applications.
Processing of Application.
Rendering of Decision.
17.50.020 17.50.030 17.50.040 17.50.050 Permits Conditions.
17.50.060 Bond Requirements.
17.50.070 17.50.080 17.50.090 17.50.100 17.50.110 17.50.010 Transfer of Permit.
Expiration, Extension, Violation and Revocation.
Structure Without Permit Declared a NuisanceAbatement.
Securing of Structures.
Appeal(s) or Call(s) for Review.
Permits General.
A. New Construction. Except as provided in subsection (C) of this section, no person shall build, cause to be built or perform any new construction 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, or do any filling or excavating in such waters or the Pacific Ocean, without first obtaining a harbor development permit and approval in concept, if required by another agency, from the City.
B. Maintenance. Except as provided in subsection (C) of this section, no person shall build, cause to be built or perform any maintenance construction 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, or do any filling or exca-
or perform any maintenance construction 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, or do any filling or excavating in such waters or the Pacific Ocean, without first obtaining a harbor development permit from the City. Notwithstanding the foregoing, painting, replacement of rub-rails, minor replacement work, and work considered cosmetic in nature shall not require a permit.
C. County of Orange. The County of Orange may do construction work or fill or dredge within Newport Harbor, or cause the same to be done, without a harbor development permit so long as such work is done pursuant to a site plan on lands owned by the County or pursuant to a request therefor by the City Council.
D. Variances. A variance provides a process for Harbor Commission consideration of requests to waive or modify this title, the design criteria and other applicable standards and policies otherwise applicable to the property when, because of special circumstances applicable to the property, including location, shape, size, surrounding topography or other physical features, the strict application of this title, the design criteria and other applicable standards and policies otherwise applicable to the property deny the property owner privileges enjoyed by other property owners in the vicinity.
E. Dredging. A separate permit will be required by the Public Works Director for dredging (see Chapter 17.55, Dredging Permits). (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 41, 2018; Ord.
2008-2 § 1 (part), 2008) 17.50.020 Applications.
A. Application. Application for an approval in concept, harbor development permit, or variance shall be filed with the Community Development
2018; Ord.
2008-2 § 1 (part), 2008) 17.50.020 Applications.
A. Application. Application for an approval in concept, harbor development permit, or variance shall be filed with the Community Development Department in writing on forms prescribed by the Community Development Department.
B. Review Authority. Depending upon the nature of the project, the Community Development Department or other appropriate department may act as review authority responsible for reviewing and making decisions on each type of application. Upon completing an initial review of the application, the Community Development Department shall inform the applicant of the department serving as review authority of the application and decision.
C. Required Materials. Applications shall be accompanied by all plans, maps, and other materials required by the prescribed forms, unless specifically waived by the review authority. The review authority may request additional materials deemed necessary to support the application. Plans accompanying the application must comply with Chapter 15.02. If the applicant is submitting a request for “Alternate Material, Design and Methods of Construction" that deviate from the standard design criteria, the appli636-9 (Newport Beach 3-24) 17.50.030 cation shall include all relevant information or material requested by the department.
D. Required Signatures. The application 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.
E. Fees. Applications shall be accompanied by a fee as established by resolution of the City Council.
gent if written authorization from the owner of record is filed concurrently with the application.
E. Fees. Applications shall be accompanied by a fee as established by resolution of the City Council.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 42, 2018; Ord. 2013-11 § 168, 2013: Ord. 2008-2 § 1 (part), 2008) 17.50.030 Processing of Application.
A. City Review. The application and plans and specifications shall be reviewed by the review authority to determine whether the proposed development meets all the requirements of this title, the design criteria, and any standards and policies adopted by the City Council or required by State or Federal regulatory agencies for such development, construction or work.
B. Approval by Other Agencies. If approval by other agencies is required prior to the review authority taking action on an application for an approval in concept or harbor development permit, the applicant shall obtain and submit proof the applicant has obtained the approvals prior to the review authority issuing the approval in concept or harbor development permit. The following is a nonexhaustive list of other agency approvals that may be required.
1. Coastal Commission. All development in areas where the Coastal Commission retains coastal development permit authority shall require the City to issue an approval in concept that indicates the proposed development conforms in concept to all applicable provisions of this title and the design criteria prior to the applicant applying for a coastal development permit. Additionally, the City may require proof of prior approval of a coastal development permit by the Coastal Commission, when applicable, before the issuance of a harbor development permit.
2. U.S. Army Corps of Engineers and Santa Ana
proof of prior approval of a coastal development permit by the Coastal Commission, when applicable, before the issuance of a harbor development permit.
2. U.S. Army Corps of Engineers and Santa Ana Regional Water Quality Control Board. Maintenance construction and new construction may require approval by the U.S. Army Corps of Engineers and Santa Ana Regional Water Quality Control Board prior to the issuance of an approval in concept or harbor development permit. When required, proof of prior approval of the U.S. Corps of Engineers or the Santa Ana Regional Water Quality Control Board shall be required before the issuance of an approval in concept or harbor development permit.
3. County of Orange. Maintenance construction and new construction may require approval of the County of Orange, when work extends over County tidelands, prior to the issuance of an approval in concept or harbor development permit. When required, proof of prior approval of the County of Orange shall be required before the issuance of an approval in concept or harbor development permit.
C. Insurance. Prior to the issuance of a harbor development permit, the applicant shall show proof of insurance coverage as required by the Longshore and Harbor Workers' Compensation Act. (Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 §§ 43 45, 2018; Ord. 2015-9 § 30, 2015; Ord.
2013-11 §§ 169, 170, 2013; Ord. 2008-2 § 1 (part), 2008) 17.50.040 Rendering of Decision.
A. Approval.
1.
a.
Approval by City Staff.
Except as provided in subsection (A)(2) of this section, the review authority shall approve and issue an approval in concept and/or harbor development permit if a public hearing is not expressly required, and the application conforms to the provi-
ection, the review authority shall approve and issue an approval in concept and/or harbor development permit if a public hearing is not expressly required, and the application conforms to the provisions of this title, the design criteria and all applicable standards and policies otherwise applicable to the property.
b. Before issuing an approval in concept or harbor development permit for: i.
Any development on oceanfront beaches; ii. Development of a nonstandard structure; or iii. Development of a structure for a use that is not in keeping with the surrounding area; the review authority shall notify all real property owners within three hundred (300) feet of the proposed development, as shown on the last equalized assessment rolls, of the pending application. Notice will be sent at least ten (10) days prior to a decision.
(Newport Beach 3-24) 636-10 17.50.050 C. An approval in concept only indicates the proposed development conforms in concept to all applicable provisions of this title and does not provide approval for any applicable land use and property development regulation not covered by this title.
2. Approval by Harbor Commission. The application for a harbor development permit, approval in concept, or variance shall be referred to the Harbor Commission for a public hearing, as set forth in Section 17.05.140, to determine if a harbor development permit, approval in concept, or variance shall be issued, denied, or conditionally approved if: a. The applicant is requesting a permit pursuant to Section 17.35.020(F) or 17.35.060; b. The application is likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor, or property owners or long-term lessees
.060; b. The application is likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor, or property owners or long-term lessees located within a three hundred (300) foot radius of the area subject to the proposed permit; C. The development is designed or sited so as to obstruct public access to coastal resources or, in the case of new construction, as that term is defined, includes replacement of an existing structure that would, in comparison to the existing structure, restrict or impair the public's use of the bay or beach in the vicinity of the existing structure; or d. In the case of a variance, the application does not conform to the provisions of this title, the design criteria and/or other applicable standards and policies approved by the City Council because of special circumstances applicable to the property, including location, shape, size, surrounding topography or other physical features that, if applied, deny the property owner privileges enjoyed by other property owners in the vicinity.
B. Notice of Decision. Notice of the decision shall be posted on the City website within one day of the date of the decision. The review authority shall provide notice of the decision to the applicant and publish notice of the decision on the City's website for fourteen (14) days. If no appeal or call for review of the decision is filed within the fourteen (14) days, the decision is final. No permit shall be issued until the appeal period or call for review, in accordance with Chapter 15.80 or 17.65, expires. (Ord. 2023-22 § 763, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 46, 2018; Ord. 2017-8 § 4, 2017; Ord. 2013-11 § 171, 2013; Ord. 2008-2 § 1 (part), 2008) 17.50.050
0 or 17.65, expires. (Ord. 2023-22 § 763, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 46, 2018; Ord. 2017-8 § 4, 2017; Ord. 2013-11 § 171, 2013; Ord. 2008-2 § 1 (part), 2008) 17.50.050 Permits Conditions.
A. In approving an application as provided in this chapter, the permit shall be issued to the owner or long-term lessee of the abutting upland property and include conditions in the permit which are deemed necessary to protect commerce, navigation or fishing, or the use, operation or development of Newport Harbor.
B. When appropriate where projects involve construction or development on or near the waterway, eelgrass (Zostera marina) and Caulerpa taxifolia protocol surveys shall be required as a condition of City approval of projects in Newport Bay. The Southern California Caulerpa Action Team (SCCAT) shall be immediately notified if Caulerpa taxifolia is found.
C. It is understood and agreed by the permittee that the doing of any work under the permit shall constitute an acceptance of all the applicable provisions of this Code.
D. Inspection shall be done by the City for conformity with the California Building Code, design criteria, the approved plans and conditions of approval.
E. The permittee shall be responsible for all liability for personal injury or property damage which may arise out of or in any way relate to the work permitted. In the event any claim is made against the City or any department, officer, or employee thereof, which may arise from or in any way relate to such work, permittee shall defend, indemnify and hold them and each of them, harmless from such claim.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 47, 2018; Ord. 2017-8 § 5, 2017; Ord. 2013-11 §§ 172, 173, 2013; Ord. 2008-2 § 1 (part), 2008)
d them and each of them, harmless from such claim.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 47, 2018; Ord. 2017-8 § 5, 2017; Ord. 2013-11 §§ 172, 173, 2013; Ord. 2008-2 § 1 (part), 2008) 17.50.060 Bond Requirements.
If the nature of the proposed development is such that if left incomplete it will create a hazard to human life or endanger adjoining property, a cash bond or surety bond satisfactory to the City Attorney in the sum of one hundred fifty (150) percent of the estimated cost of the work will be required to guarantee 636-11 (Newport Beach 3-24) 17.50.070 the faithful performance of the proposed development. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2008-2 § 1 (part), 2008) 17.50.070 Transfer of Permit.
Permits shall only be issued to and held by the owner or long-term lessee of the abutting upland property. The permittee shall not transfer a permit without prior written approval of the Community Development Director and payment of fees as established by resolution of the City Council. No person who as an abutting upland owner or lessee of real property was granted a permit under the provisions of this chapter for a pier or similar structure shall retain any right of use in such pier, or similar structure, after having divested himself or herself of the ownership or leasehold interest in such real property.
Upon such divesting, the ownership interest in such pier, float or similar structure shall remain with the person to whom the permit was granted, but the right of use thereof shall vest in the City until such time as a permit for such pier, float or structure is granted to another person. Except where rights of ownership or use have heretofore been judicially decreed, no person may heretofore or hereafter gain any rights of
such pier, float or structure is granted to another person. Except where rights of ownership or use have heretofore been judicially decreed, no person may heretofore or hereafter gain any rights of ownership or use of any such pier, float or similar structure by any purported transfer made without such prior written approval of the City. The Community Development Director is authorized to approve transfers of permits. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 48, 2018: Ord. 2008-2 § 1 (part), 2008) 17.50.080 Expiration, Extension, Violation and Revocation.
A. Expiration. All permits issued pursuant to this chapter shall expire unless the development contemplated shall have been completed within the time frames set forth in Chapter 15.02.
B. Violation of Terms. Any permit granted in accordance with the terms of this chapter may be revoked if any of the conditions or terms of such permit are violated, or if any law or ordinance is violated in connection therewith.
C. Revocation. Procedures for revocation shall be as prescribed by Chapter 17.70. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.50.090 Structure Without Permit Declared Abatement.
a Nuisance Except for structures owned by the City or another public agency, every structure maintained in or over the waters of Newport Harbor without a current valid permit existing therefor when required by this chapter, or maintained in a manner or for a purpose other than or different from that provided in the permit, shall constitute a nuisance and shall be immediately abated and may be removed. If upon written notice to remove any such structure the owner thereof fails, refuses or neglects to do so within a reasonable time specified in the notice, being not less than five nor
may be removed. If upon written notice to remove any such structure the owner thereof fails, refuses or neglects to do so within a reasonable time specified in the notice, being not less than five nor more than thirty (30) days after such notice, the City shall abate or remove it and the cost thereof may be recovered from the owner of such structure in a civil action. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2008-2 § 1 (part), 2008) 17.50.100 Securing of Structures.
If, based upon an inspection by the City or other facts, the Harbormaster determines that a sea lion has boarded a permitted structure and/or any vessel or other appurtenances attached to the structure, the Harbormaster shall issue a notice of violation and the permittee shall take any and all necessary action to employ and maintain appropriate measures to deter sea lions from boarding the structure and/or any vessel or other appurtenances attached to the structure within seven days of the notice of violation. If the Harbormaster determines that appropriate deterrent measures have not been taken within seven days of the notice of violation, the Harbormaster may take enforcement action in accordance with this Code and the permittee shall take any and all necessary action to employ and maintain appropriate sea lion deterrent measures. "Appropriate deterrent measures" shall be defined as the latest methodology permitted by the National Marine Fisheries Service to minimize sea lion boarding of a permitted structure and/or any vessel or other appurtenances attached to the structure. (Ord. 2023-22 § 764, 2023; Ord. 20205 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 49, 2018: Ord. 2010-5 § 3, 2010: Ord. 2009-1 § 2, 1-27-2009; Ord. 2008-2 § 1 (part), 2008) (Newport Beach 3-24) 636-12 17.50.110 17.50.110
2023; Ord. 20205 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 49, 2018: Ord. 2010-5 § 3, 2010: Ord. 2009-1 § 2, 1-27-2009; Ord. 2008-2 § 1 (part), 2008) (Newport Beach 3-24) 636-12 17.50.110 17.50.110 Appeal(s) or Call(s) for Review.
A. The Building Official's decision on use of alternate materials in accordance with the "Alternate Material, Design and Methods of Construction” may be appealed in accordance with Chapter 15.80. If the Building Official's decision is appealed, the Building and Fire Board of Appeals shall consider the matter first, prior to any other appeal or call for review provided for in subsection (B) of this section.
B. Except as provided in subsection (A) of this section, all other appeals or calls for review related to this chapter shall be made in accordance with Chapter 17.65. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2015-9 § 31, 2015: Ord. 2008-2 § 1 (part), 2008) Sections: 17.55.010 17.55.020 Chapter 17.55 DREDGING PERMITS Permits.
Permit Required.
Application for Dredging 17.55.030 Limits on Development.
17.55.040 Limits on Uses.
17.55.050 17.55.010 Approval of Dredging Permit.
Permit Required.
A. Dredging bayward of residential and commercial property shall be the responsibility of the harbor permittee for the area delineated by the bayward prolongations of upland side property lines and the U.S. project line. All such dredging will require a dredging permit from the Public Works Department and other agencies with jurisdictional authority and may be subject to engineering approval by the Public Works Department.
B. Dredging outside the established harbor lines will require prior approval by the Public Works Department and the U.S. Army Corps of Engineers.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17
.
B. Dredging outside the established harbor lines will require prior approval by the Public Works Department and the U.S. Army Corps of Engineers.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 50, 2018: Ord. 2008-2 § 1 (part), 2008) 17.55.020 Application for Dredging Permits.
A. Required Forms. Applications for dredging permits shall be filed in the office of the Public Works Department in writing on forms prescribed by the Public Works Director.
B. Required Materials. Applications shall be accompanied by all plans, maps, and other materials required by the prescribed forms, unless specifically waived by the Public Works Director. Applications shall include the following: 1. Eelgrass (Zostera marina) and Caulerpa taxifolia protocol surveys; 2. Grain size analysis; 3. Identification of the dredge disposal site and dredge quantities; and 4. Any other materials the Public Works Director deems necessary to support the application.
636-13 (Newport Beach 3-24) 17.55.030 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 shall be accompanied by a fee as established by resolution of the City Council.
(Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 §§ 51, 52, 2018; Ord. 2008-2 § 1 (part), 2008) 17.55.030 Limits on Development.
Development involving the diking, filling, or dredging of open coastal waters, wetlands, or estuaries shall only be permitted under the following circumstances: A. Only if there is no feasible, less environmen-
volving the diking, filling, or dredging of open coastal waters, wetlands, or estuaries shall only be permitted under the following circumstances: A. Only if there is no feasible, less environmentally damaging alternative.
B. If there is no feasible, less environmentally damaging alternative, mitigation measures shall be provided to minimize adverse environmental effects.
C. Dredged materials suitable for beneficial reuse shall be transported for such purposes to appropriate areas and placed in a manner that minimizes adverse effects on the environment. The permittee shall be encouraged to work with the City in making sure materials are available for harbor beach replenishment.
D. Diking, filling or dredging projects shall sustain the functional capacity of the wetland or estuary.
To establish that the functional capacity is being maintained, the applicant must demonstrate all of the following: 1. The project does not alter presently occurring plant and animal populations in the ecosystem in a manner that would impair the long-term stability of the ecosystem; i.e., natural species diversity, abundance, and composition are essentially unchanged as a result of the project; 2. The project does not harm or destroy a species or habitat that is rare or endangered; 3. The project does not harm a species or habitat that is essential to the natural biological functioning of the wetland or estuary; and 4. The project does not significantly reduce consumptive (e.g., fishing, aquaculture and hunting) or nonconsumptive (e.g., water quality and research opportunity) values of the wetland or estuarine ecosystem.
E. Dredging and dredged material disposal shall avoid significant disruption to marine and wildlife habitats and water circulation. (Ord. 2020-5 § 1
ty) values of the wetland or estuarine ecosystem.
E. Dredging and dredged material disposal shall avoid significant disruption to marine and wildlife habitats and water circulation. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.55.040 Limits on Uses.
Development involving diking, filling, or dredging of open coastal waters, wetlands, and estuaries shall be limited to uses consistent with California Public Resources Code Section 30233 (Coastal Act) and the certified Local Coastal Program. (Ord. 202322 § 765, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-11 § 174, 2013: Ord. 2008-2 § 1 (part), 2008) 17.55.050 Approval of Dredging Permit.
The Public Works Director shall issue the harbor dredging permit if the application complies with the limitations set forth in this chapter and he or she makes the findings set forth in Section 17.05.140(D)(1). (Ord. 2020-5 § 1 (part), 2020) (Newport Beach 3-24) 636-14 17.60.010 Chapter 17.60 HARBOR PERMITS AND LEASES Sections: 17.60.010 Public Trust Lands-General.
17.60.015 Application for Harbormaster Permits.
17.60.020 17.60.030 17.60.040 17.60.045 17.60.050 Application for Pier/Mooring Permits or the Lease of Public Trust Lands.
Pier Permits for Noncommercial Piers.
Mooring Permits.
Short-Term Mooring Licenses.
Houseboats.
17.60.060 Public Trust Lands.
17.60.010 Public Trust Lands-General.
A. Applicability. 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. The City manages these lands through a series of permits, franchises and leases. This chapter applies to permits
e presently filled or reclaimed and which were subject to the public trust at any time. The City manages these lands through a series of permits, franchises and leases. This chapter applies to permits or leases for public trust lands used for commercial purposes by a person, other than the City, pier permits for noncommercial piers, and mooring permits.
B. Limits on Uses. Except as provided in subsection (C) of this section, public trust lands are subject to the Common Law Public Trust, which limits uses to navigation, fishing, commerce, public access, water-oriented recreation, open space and environmental protection.
C. Exceptions. State legislation has modified public trust restrictions for the historic tidelands in Beacon Bay, the Balboa Bay Club, and Harbor Island as provided in Section 17.05.080(B). (Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 53, 2018: Ord. 2013-1 § 7, 2013: Ord. 2008-2 § 1 (part), 2008) 17.60.015 Application for Harbormaster Permits.
A. Required Forms. Except for applications for marine activities permits filed under Chapter 17.10, applications for permits which pertain to Newport Harbor under the provisions of this title which are to be issued by the Harbormaster shall be filed with the Harbormaster, in writing, on forms prescribed by the Harbormaster.
B. Required Materials. Applications shall be accompanied by all materials required by the prescribed forms, unless specifically waived by the Harbormaster. The Harbormaster may request additional materials deemed necessary to support the application.
C. Required Signatures. Application for permits issued by the Harbormaster shall be submitted and signed by the owner, lessee, or agent of the owner of the property affected or by an authorized agent if
Required Signatures. Application for permits issued by the Harbormaster shall be submitted and signed by the owner, lessee, or agent of the owner of the property affected 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. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020) 17.60.020 Application for Pier/Mooring Permits or the Lease of Public Trust Lands.
A. Required Forms. Except for permits to be filed with the Harbormaster, applications for permits or leases which pertain to Newport Harbor under the provisions of this chapter shall be filed in the Public Works Department, in writing, on forms prescribed by the Public Works Director.
B. Required Materials. Applications shall be accompanied by all plans, maps, and other materials required by the prescribed forms, unless specifically waived by the Public Works Director. The Public Works Director may request additional materials deemed necessary to support the application.
C. Required Signatures. Applications for permits or leases issued by the Public Works Director 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.
636-15 (Newport Beach 3-24) 17.60.030 D. Fees. Applications and renewals shall be accompanied by a fee as established by resolution of the City Council.
E. Tidelands Users. Users of public tidelands, including commercial and noncommercial users, shall be subject to rental or lease charges reflective
ee as established by resolution of the City Council.
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. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 §§ 54, 55, 2018; Ord. 2013-1 § 8, 2013; Ord. 2008-2 § 1 (part), 2008) 17.60.030 Pier Permits for Noncommercial Piers.
A. Noncommercial Pier Permits. Upon the request of the abutting upland residential property owner, or lessee or the authorized agent of the owner or lessee and in accordance with all applicable laws including, but not limited to, Sections 17.35.020(A) and (B), a residential pier permit shall be issued for up to ten (10) years. The City shall extend the term of any residential pier permit for up to ten (10) years upon: 1. Permit expiration and the request of the owner or lessee, or the authorized agent of the owner or lessee; or 2. Upon sale of the abutting upland property and the request of the new owner or lessee, or the authorized agent of the owner or lessee. The maximum term of any permit issued hereunder, with extensions, shall be fifty (50) years. After fifty (50) years, the abutting upland residential property owner, or lessee or authorized agent of the owner shall be required to apply for a new residential pier permit.
B. Rental Fees. 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 the applicable pier permit rental fee for such portions of the pier that extend into public tidelands, as established by City Council resolution.
C. Transfer of Noncommercial Pier Permits.
to the City the applicable pier permit rental fee for such portions of the pier that extend into public tidelands, as established by City Council resolution.
C. Transfer of Noncommercial Pier Permits.
1. Permits for noncommercial piers are issued subject to the condition that any improvements constructed shall not be sold in whole or part, leased, or transferred without the prior 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 Public Works Department.
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 Public Works Director 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 a 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 in whole or in part, by the permittee to a third party or parties. Such rental/lease shall not be deemed a transfer under this section.
6. The provisions of this section shall not apply to piers, docks or other structures located in Promontory Bay and in other waters over privately owned land. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2018-17 §§ 56, 57, 2018; Ord. 2014-8 § 1, 2014;
piers, docks or other structures located in Promontory Bay and in other waters over privately owned land. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2018-17 §§ 56, 57, 2018; Ord. 2014-8 § 1, 2014; Ord. 2013-27 § 3, 2013: Ord. 2013-1 § 9, 2013: Ord.
2008-2 § 1 (part), 2008) 17.60.040 Mooring Permits.
A. Permit Required. No person shall place, erect, construct, maintain, use or tie to a mooring in the waters of Newport Harbor over City-owned or controlled tidelands (i.e., an offshore mooring) or in the nearshore perimeter of Newport Harbor perpendicular to the shoreline (i.e., an onshore mooring) without first having obtained a mooring permit from the Harbormaster or having otherwise complied with this section. A mooring permit is in the nature of license for the temporary use of a specific location within Newport Harbor.
B. Issuance of Permit Conditions. The Harbormaster, in furtherance of the tideland grants to the City, may issue a mooring permit or mooring subpermit to allow the mooring permittee or mooring (Newport Beach 3-24) 636-16 17.60.040 sub-permittee to temporarily use a portion of the waters of Newport Harbor for the mooring of a vessel if the Harbormaster makes the findings set forth in Section 17.05.140(D)(1). A mooring permittee may hold up to two mooring permits at any time. A mooring permittee that held or continues to hold more than two mooring permits prior to May 11, 2017, may continue to hold the mooring permits until the permits are sold, revoked, or otherwise transferred under this chapter.
1. Exceptions.
a. The Balboa Yacht Club and the Newport Harbor Yacht Club (collectively, "yacht clubs”) currently hold permits for single point moorings placed within certain mooring area boundaries established
s.
a. The Balboa Yacht Club and the Newport Harbor Yacht Club (collectively, "yacht clubs”) currently hold permits for single point moorings placed within certain mooring area boundaries established by the City, as noted in subsection (B)(3)(g) of this section. In addition, the Lido Isle Community Association ("LICA") has permits for onshore moorings on Lido Isle. These organizations shall hold their respective permits under the yacht club, or respective organization name, for the moorings identified by the City as under their respective control at the time of enactment of the ordinance codified in this section. The yacht clubs and LICA shall be solely responsible for managing moorings under their control and shall be permitted to assign moorings under their control to yacht club members and members of LICA, respectively. The yacht clubs and LICA shall keep accurate records of the name and address of the club members and community association members to which each mooring has been assigned and the corresponding length of each vessel. The yacht clubs and LICA may not sell or otherwise transfer the moorings under their control to a third party that is not a member of the yacht club or LICA. Mooring records and 24/7 emergency contact information shall be provided annually to the Harbormaster by the yacht clubs and LICA on or before February 1st.
b. Mooring of a Tender. A single vessel no longer than fourteen (14) feet in overall length to serve as access to and from the assigned vessel may be secured to the assigned vessel or may be secured to the offshore mooring in the absence of the assigned vessel. The vessel must be secured in such a manner so as not to intrude into the fairway or obstruct neighboring permittees. Notwithstanding the single
offshore mooring in the absence of the assigned vessel. The vessel must be secured in such a manner so as not to intrude into the fairway or obstruct neighboring permittees. Notwithstanding the single vessel restriction, permitted live-aboards may secure up to two vessels no longer than fourteen (14) feet in overall length to the assigned vessel, to serve as access to and from the assigned live-aboard vessel.
C.
Multiple Vessel Mooring System Program.
The Harbormaster may approve a multiple vessel mooring system in the single anchor mooring areas of Newport Harbor. An application and applicable fee, established by resolution of the City Council, for a multiple vessel mooring system shall be submitted in writing to the Harbormaster, who shall evaluate the application based upon standards established and the application shall be approved if the Harbormaster makes the findings under the applicable standards and those set forth in Section 17.05.140(D)(1).
2. Permit Requirements. A mooring permit may be issued to a maximum of two persons ("mooring permittee(s)") who shall be individually and collectively responsible for all activities related to the mooring permit. The mooring permit shall specify the assigned mooring location, the mooring length, and assigned vessel information. Mooring permittee(s) are subject to and shall fully comply with the following conditions: a. Identify on the permit the full legal name(s), current address(es), current telephone number(s) and current email address(es), if one exists, of the mooring permittee(s); b. Agree to be responsible for permit rent, fees, maintenance and repair of mooring equipment; c. The permit for joint ownership moorings shall provide that all parties shall have equal rights
tee(s); b. Agree to be responsible for permit rent, fees, maintenance and repair of mooring equipment; c. The permit for joint ownership moorings shall provide that all parties shall have equal rights under the permit and shall be held jointly responsible for compliance with all rules, regulations, and conditions set forth in the mooring permit; d. Grant permission to the City to temporarily assign the mooring to another vessel when it is unoccupied through the issuance of a mooring sub-permit; e.
Agree to defend and indemnify the City and any other government entity with jurisdiction against any claims or losses arising out of, or related to the use of, the mooring permit except where the claim or loss arises from the sub-permittee's damage of the mooring, or out of the negligence and/or misconduct of a person assigned the mooring as a mooring subpermittee under subsections (G) and/or (H) of this section; 636-17 (Newport Beach 3-24) 17.60.040 f. Provide proof of insurance for the assigned vessel naming the City as an additional insured to the satisfaction of the Risk Manager; g. Provide registration or other proof of controlling possessory right in the assigned vessel, all to the satisfaction of the Harbormaster; h. Agree to pay fair market value rent, as established by resolution of the City Council, on a rent schedule established by the Harbormaster, which shall be similar to the schedule used to collect rent from other tidelands users in Newport Harbor; i. Agree that the mooring permit does not provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State of California; j. Agree to move the vessel from the mooring to another location when deemed necessary by the Pub-
tidelands, which are held in trust by the City and owned by the people of the State of California; j. Agree to move the vessel from the mooring to another location when deemed necessary by the Public Works Director and/or Harbormaster because the vessel has drifted from its assigned mooring location or to address safety or navigational concerns, and also to authorize the City or its designee to move the vessel upon the mooring permittee's failure to do so, at the permittee's expense; k. Agree to allow the Harbormaster, or his designee, to board the permittee's vessel at any time to inspect the condition and operability of the marine sanitation device(s) and/or insert dye tablets to determine whether said devices are discharging overboard in accordance with applicable laws; and 1.
Agree that if the permittee's maximum mooring length is shorter than the established length of its mooring row by five feet or more then the permittee is subject to relocation within the same mooring field for the purpose of accommodating mooring extension requests. The H and J fields shall be considered as one field for the purpose of relocations. The costs of relocation, including the moving of mooring equipment, shall be borne by the mooring permittee who requested the mooring length extension.
Example: Permittee A has a mooring length of thirty-five (35) feet, a vessel LOA of thirty (30) feet, and is in a thirty-five (35) foot row. Permittee B has a mooring length of thirty (30) feet, a vessel LOA of thirty (30) feet, and is in a thirty-five (35) foot row.
Permittee C has a mooring length of thirty-six (36) feet, a vessel LOA of thirty (30) feet, and is in a forty (40) foot row. Only Permittee B is subject to relocation.
Qualifications. A 3. Permittee/Transferee
has a mooring length of thirty-six (36) feet, a vessel LOA of thirty (30) feet, and is in a forty (40) foot row. Only Permittee B is subject to relocation.
Qualifications. A 3. Permittee/Transferee mooring permit may be held only by natural persons unless the mooring permit is transferable, in which case it may be held by, or transferred to, only the following: a. A natural person(s) including, but not limited to, an immediate family member, which shall mean the mooring permittee's spouse and heirs at law to the second degree of consanguinity; b. An executor or administrator carrying out the terms of a will or administering a probated estate that holds a mooring permit, but only for the period of time prior to distribution of the estate; C. An inter vivos trust, family trust, or other similar type of trust estate holding a mooring permit, so long as all trustors are natural persons and the primary mooring permittee shall be the trustee of the trust; d. A marine contractor, or marine support service provider, holding a mooring permit used to provide current or ongoing harbor infrastructure and marine or fishing services (such as maintenance or dredging); e.
Balboa Island Yacht Club for the purposes of youth education in boating and marine activities; Kerckhoff Marine Laboratories for the purpose of marine and oceanographic research; and American Legion Post 291 for the purpose of serving veterans and their families and supplying them with affordable access to boating and harbor activities; or similar marine educational entities; or f. The Balboa Yacht Club, Newport Harbor Yacht Club (collectively "yacht clubs") and the Lido Isle Community Association-only for those moorings assigned by the City within certain established
s; or f. The Balboa Yacht Club, Newport Harbor Yacht Club (collectively "yacht clubs") and the Lido Isle Community Association-only for those moorings assigned by the City within certain established mooring areas or locations, prior to January 13, 2011. These designated mooring areas may not be expanded. The boundaries of all mooring areas in Newport Harbor are graphically depicted by National Oceanographic and Atmospheric Administration (NOAA) Chart Number 18754. Yacht clubs shall be entitled to a maximum number of moorings identified in NOAA Chart Number 18754 that are located within the yacht club's established mooring (Newport Beach 3-24) 636-18 17.60.040 fields and at a minimum the current number of moorings assigned to them as of January 13, 2011.
C. Plans and Specifications Required. No mooring permit shall be issued for placing, erecting, constructing or maintaining a mooring or buoy unless such mooring or buoy is constructed: 1. In accordance with standard plans and specifications approved by the Harbormaster and at a location approved by the Harbormaster; or 2. In accordance with other plans and specifications for such mooring or buoy which have been submitted by the applicant, showing the construction of such proposed mooring or buoy together with the location thereof, and which meet the requirements established in this chapter and which have been approved by the Harbormaster.
D. Late Fees. A late charge shall be added to all payments due but not received by the City by the due date in accordance with Section 17.05.120.
E. Transfer of Permit. Mooring permits are nontransferable, with the exception of mooring permits that were issued prior to the effective date of Ordinance No. 2023-8 (July 13, 2023), which shall con-
ransfer of Permit. Mooring permits are nontransferable, with the exception of mooring permits that were issued prior to the effective date of Ordinance No. 2023-8 (July 13, 2023), which shall continue to be transferable unless surrendered or revoked. A mooring permit that is transferable may only be transferred one time in any twelve (12) month period, unless transferred to a member of the permittee's immediate family.
F. Procedures for Transfers. Permits shall not be transferred without the prior written approval of the Harbormaster. The Harbormaster may approve the transfer of a mooring permit under the procedures set out below: 1. The mooring permittee(s) (or, if the permittee is deceased or incapacitated, the transferee) shall submit to the Harbormaster: a. A completed mooring transfer form (on the form provided by the Harbormaster); and b. Documentation that the proposed new mooring permittee (transferee) qualifies as a mooring permittee under subsection (B)(3) of this section.
2. If transferee intends to purchase an assigned vessel but does not have title on the assigned vessel owned by the mooring permittee and transferor at the time of transfer, then: a.
Within sixty (60) days of a transfer, transferee shall submit to the Harbormaster a copy of a California Department of Motor Vehicles registration or other current registration (or, in lieu thereof, U.S. Coast Guard documentation of ownership) documenting transferee's ownership of the assigned vessel or, in the case of an onshore mooring, a photograph of the assigned vessel if it is not subject to vessel registration laws. The Harbormaster shall inspect the vessel at its office for compliance with Section 17.25.020(H) before the assignment is approved; or
assigned vessel if it is not subject to vessel registration laws. The Harbormaster shall inspect the vessel at its office for compliance with Section 17.25.020(H) before the assignment is approved; or b. If such documentation is not received by the Harbormaster within the sixty (60) day period, then the vessel or the mooring may be impounded, and the mooring may be deemed vacant and assigned pursuant to subsections (G) and (H) of this section.
3. If transferee intends to moor a vessel other than the assigned vessel and does not have title to the vessel that will be moored at the time of transfer, then: a.
Within sixty (60) days of an approved transfer, the transferee shall notify the Harbormaster that the assigned vessel has been removed from the mooring and before a new vessel may be placed on the mooring shall submit to the Harbormaster a copy of a California Department of Motor Vehicles registration or other current registration (or, in lieu thereof, U.S. Coast Guard documentation of ownership) documenting transferee's ownership of the new assigned vessel, or in the case of an onshore mooring, a photograph of the new assigned vessel if it is not subject to vessel registration laws. The Harbormaster shall inspect the vessel at its office for compliance with Section 17.25.020(H) before the assignment is approved; or b. If the documentation is not received within sixty (60) days of a transfer, the mooring may be deemed vacant by the Harbormaster and the mooring may be assigned pursuant to subsections (G) and (H) of this section. The mooring may remain vacant until such time the permittee notifies the Harbormaster of their intent to assign their vessel to the mooring.
4. The transfer request shall be denied unless
his section. The mooring may remain vacant until such time the permittee notifies the Harbormaster of their intent to assign their vessel to the mooring.
4. The transfer request shall be denied unless mooring permit rent, including late payment fees, is paid current; required mooring inspections are current; registration or documentation and insurance are provided; required maintenance and repairs are complete and there are no derelict or unauthorized ves636-19 (Newport Beach 3-24) 17.60.040 sel(s) on the mooring; and the vessel is of appropriate length with the appropriate weights and chains.
5. The mooring permittee and transferee shall provide a written agreement to defend and indemnify the City of Newport Beach in any dispute with a third party over transferee's right to be the mooring permittee or in any dispute with a third party over the mooring permittee's right to transfer the permit.
6. Transfer Approval. Upon confirmation of compliance with this subsection, the Harbormaster must find all of the following conditions to approve the transfer of a mooring permit: a. The mooring permittee no longer owns the assigned vessel or has retained ownership of the assigned vessel and has permanently vacated the mooring; b. The transferee has met all the qualifications and conditions for issuance of a permit in subsection (B) of this section; C. The transferor or transferee has reported to the Harbormaster the price paid for the mooring permit, and has paid to the City the required transfer fee; and d. The transferor represents that the person did not discriminate against any transferee or prospective transferee because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age
gainst any transferee or prospective transferee because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law.
7. The Harbormaster may approve a one-forone exchange of moorings between two mooring permittees, subject to compliance with this subsection without any transfer fee imposed by the City.
8. The Harbormaster may approve the changing of an assigned vessel on the permit, subject to the requirements of subsection (B) of this section, without any transfer fee imposed by the City.
9. Following an approved transfer, the Harbormaster shall list the transfer price of the mooring permit on a publicly available website hosted by the City, or on a third party's website under contract with the City to host information regarding mooring permit transfers.
G. City's Authority to Assign Moorings through Use of Sub-Permits. With the exception of the Balboa Yacht Club, the Newport Harbor Yacht Club, and the Lido Isle Community Association's designated moorings, mooring permittee may not rent, assign, or transfer the use of the mooring to any other person. With the exception of moorings issued to mooring permittees described in subsection (B)(3)(g) of this section, the Harbormaster shall have the authority to assign vacant moorings to sub-permittees pursuant to the following provisions: 1.
Deemed Vacant Moorings. The Harbormaster may assign deemed vacant moorings through the issuance of sub-permits at his or her own discretion.
Sub-permits may be renewed upon availability. The mooring permittee may reclaim its mooring upon three days' prior written notice to the Harbormaster of its intent to return the assigned vessel to the moor-
rmits may be renewed upon availability. The mooring permittee may reclaim its mooring upon three days' prior written notice to the Harbormaster of its intent to return the assigned vessel to the mooring.
A “deemed vacant mooring” shall be defined as a mooring upon which: a. An assigned vessel has not been attached for thirty (30) consecutive days or more; or b. A vessel, other than an assigned vessel or approved sub-permittee vessel approved in accordance with subsection (H) of this section, has been attached for thirty (30) days or more; or c.
Required documentation for an assigned vessel has not been provided for a transfer request pursuant to subsection (F) of this section.
2. Noticed Vacant Moorings. The Harbormaster may assign noticed vacant moorings through the issuance of a mooring sub-permit for any period of time, up to the reoccupation date on the mooring permittee's written notice, or the twenty-four (24) hour written notice per subsection (G)(2)(b) of this section. If the mooring continues to be vacant for thirty (30) days past the reoccupation date indicated on mooring permittee's notice, and there is no further written notice from mooring permittee, the mooring shall become a deemed vacant mooring.
a.
Mooring permittee may provide written notice to the Harbormaster of its intent to vacate its mooring for fifteen (15) days or more. These moorings shall be "noticed vacant moorings.” Written notice shall include the date the mooring permittee intends to vacate his/her mooring, and the date he/she intends to reoccupy the mooring with the assigned vessel.
(Newport Beach 3-24) 636-20 17.60.040 b. If a mooring permittee provides written notice, the mooring permittee may reclaim the assigned mooring on the reoccupation date indicated
the assigned vessel.
(Newport Beach 3-24) 636-20 17.60.040 b. If a mooring permittee provides written notice, the mooring permittee may reclaim the assigned mooring on the reoccupation date indicated in his/her written notice or, if the mooring permittee returns prior to or after the reoccupation date, upon twenty-four (24) hours' written notice to the Harbormaster.
H. Procedures for Mooring Sub-Permit Issuance. Issuance of a mooring sub-permit shall be subject to the following conditions: 1. Provision of a written representation of the mooring sub-permittee's vessel length which shall be satisfactory to the Harbormaster; 2. The mooring sub-permittee agrees to be responsible for any damage to mooring equipment; to defend and indemnify the City of Newport Beach and the mooring permittee against any claims or losses arising out of, or related to, the mooring rental; to provide proof of insurance as may be determined by the City's Risk Manager; to provide registration or other proof of ownership; to provide an equipment damage deposit, all to the satisfaction of the Harbormaster; and authorize the City to move the vessel on the mooring to another location when deemed necessary by the Public Works Director and/or Harbormaster; 3. The repair of any damage to the mooring equipment shall be paid by the mooring sub-permittee. If the mooring is damaged by a vessel assigned by the City, or the City's agent, the City shall arrange for the repair of the mooring with a qualified vendor and provide notice to the permittee of the occurrence and the arranged repair date. Should the sub-permittee fail to pay for the damage for any reason, the City will pay for the required repairs to the mooring, and then seek reimbursement from the sub-permittee.
ranged repair date. Should the sub-permittee fail to pay for the damage for any reason, the City will pay for the required repairs to the mooring, and then seek reimbursement from the sub-permittee.
Also, the City shall make available a mooring without charge for the returning vessel of the mooring permittee until such time as their permitted mooring is repaired; 4. The mooring sub-permittee shall provide approved mooring lines which shall be removed at the end of the rental period; 5. A mooring sub-permit may be up to fifteen (15) days and may terminate at any time for any reason, and may be renewed based on availability. Upon return of the assigned vessel to the mooring, the Harbormaster will attempt to reassign the sub-permittee to another mooring. Mooring sub-permittees have no right of renewal or substitute moorings upon return of the assigned vessel, or upon termination of a mooring sub-permit for any reason. Mooring subpermittees accept an indefinite term at their own risk.
The decision by the Harbormaster to terminate a subpermit shall be final and nonappealable; 6. The mooring sub-permit rent will be based on a rate established by resolution of the City Council; and 7. Mooring sub-permits are offered to the public on a first-come, first-served basis. City owned and operated moorings may be reserved in advance.
I. Mooring Permit Transfer Nonrefundable Fee.
The City shall charge the mooring permittee for the right to transfer a mooring permit under subsection (E) of this section in an amount equal to seventy-five (75) percent of the annual mooring rent as established by City Council resolution. This transfer fee represents a one-time nonrefundable transfer fee for the use of a mooring. A mooring permit transfer fee shall not be required if:
g rent as established by City Council resolution. This transfer fee represents a one-time nonrefundable transfer fee for the use of a mooring. A mooring permit transfer fee shall not be required if: 1. The transfer is from the mooring permittee to the same mooring permittee as trustor of an inter vivos trust, living trust or other similar estate planning tool; 2. The transfer is made under subsections (F)(7) and (8) of this section; or 3. The transfer is to immediate family.
J.
Surrendered Mooring Equipment. If the mooring permittee sells, transfers, or otherwise no longer owns the assigned vessel and does not intend to apply for, or does not receive, approval to transfer the permit to another, the permittee may provide written notice to the Harbormaster of his or her intent to surrender the mooring permit; otherwise the provisions of subsection (G) of this section regarding a vacant mooring shall apply.
Once a mooring permit is surrendered, the mooring permittee shall remove the assigned vessel and/or the mooring equipment thirty (30) days after written notice of surrender of the permit, or, upon failure to remove the mooring equipment, title shall vest in the City and the City shall compensate the mooring permittee the fair value for the mooring 636-21 (Newport Beach 3-24) 17.60.040 equipment, less rent or fees owed, as provided in subsection (L) of this section.
K. Revocation of Permit.
1. The grounds and procedure for revocation of a mooring permit are set forth in Section 17.70.020.
2. Upon revocation of the mooring permit, it shall be the duty of the mooring permittee to immediately remove the mooring equipment and any moored vessel. If not removed within thirty (30) days of revocation of the permit, the mooring equip-
t shall be the duty of the mooring permittee to immediately remove the mooring equipment and any moored vessel. If not removed within thirty (30) days of revocation of the permit, the mooring equipment shall vest in the City and may be auctioned by the City to another person or may be removed by the Harbormaster and the cost of mooring equipment removal shall be paid by the mooring permittee. Any moored vessel or equipment not removed within thirty (30) days may be impounded by the City and disposed of in the manner provided by law. Cityincurred costs of removal of mooring equipment or any vessel moored thereto may be charged against the permittee and collected in any court of competent jurisdiction or recovered by the City from the proceeds of sale of the vessel or mooring equipment.
3. During any revocation proceeding, if the mooring is unoccupied, it may be temporarily assigned as a mooring for guest vessels by the Harbormaster.
L. Moorings Reverting Back to City. Should a mooring revert back to the City for any reason, whether through abandonment, surrender, failure to provide documents pursuant to subsection (F) of this section, or for any other reason other than as set forth in subsection (K) of this section, the following shall apply: 1. The mooring permittee shall be entitled to recover all of the mooring permittee's mooring equipment within thirty (30) days of reversion; 2. If the mooring permittee does not recover his or her mooring equipment, the mooring permittee shall be entitled to payment from the City of the fair value of the mooring equipment as depreciated by use in an amount to be determined by the Harbormaster and as set in the City's master fee resolution, after any and all past due rent and fees, if applicable, have been satisfied; and
depreciated by use in an amount to be determined by the Harbormaster and as set in the City's master fee resolution, after any and all past due rent and fees, if applicable, have been satisfied; and 3. The mooring equipment may be publicly auctioned by the City, or the City's designated representative, or the mooring equipment may be used for other City purposes.
M. Request to Extend Mooring Length.
1. General. Mooring permittees shall not moor vessels that exceed their permitted maximum mooring length. If an offshore mooring permittee wishes to moor a vessel that requires an extension in mooring length, they may request an extension up to the established length of their mooring row. A request for an extension that would exceed the established length of their mooring row shall require the permittee to relocate to a larger mooring row. In no case shall mooring lengths exceed the established mooring row lengths.
2. Application.
a. Filing and Review of Request. An offshore mooring permittee shall file a written request for extension of mooring length with the Harbor Department on a form prescribed by the Harbormaster, together with the filing fee required by the City's fee schedule adopted by resolution of the City Council.
b. Application Requirements. An application for extension of mooring length shall include the following information in addition to such other information as may be required by the Harbormaster: i. The full identification of the applicant and the vessel for which the extension of mooring length is sought, certifying that the applicant and the assigned vessel have complied with (or in the event the vessel identification is unknown, applicant will certify that such unidentified vessel prior to occupying the
tifying that the applicant and the assigned vessel have complied with (or in the event the vessel identification is unknown, applicant will certify that such unidentified vessel prior to occupying the mooring space will comply with) all of the applicable United States Coast Guard license, inspection, and certification requirements, and certifying that the applicant has read and is otherwise familiar with all of the applicable rules and regulations promulgated by the City, including, but not limited to, the provisions of this title; ii. Such plans and specifications as may be required by the Harbormaster for such mooring to accommodate the proposed longer vessel; and iii. Detailed information regarding the vessel including make, model, year, LOA, beam, dimension, vessel ID, and if the vessel identification is not known at the time of making an application, the LOA and adjusted LOA (including bowsprits, swim steps, or stern-mounted dinghies) of the proposed vessel (Newport Beach 3-24) 636-22 17.60.040 for which the applicant seeks approval. The LOA as published by the manufacturer of a particular vessel shall be used to determine the required mooring size of a particular vessel, and the size of the specification for the chains, weights, and tackle necessary to secure a vessel on a particular mooring for a permittee. Adjusted LOA shall be used to determine the maximum vessel length that can fit in any particular slip, side-tie, or mooring row.
3. Action on Extension Request. For extension requests that require relocation to a larger mooring, a mooring of appropriate size must be available within the same mooring field. The H and J fields shall be considered as one field for the purpose of relocations. As used herein, an available mooring
a mooring of appropriate size must be available within the same mooring field. The H and J fields shall be considered as one field for the purpose of relocations. As used herein, an available mooring includes one that is occupied by a permittee whose permitted maximum mooring length is shorter than the established length of its mooring row by five feet or more. The Harbormaster may approve the extension request only after making the findings set forth in Section 17.05.140(D)(1) and making the following findings: a.
There have been no changes in the conditions or circumstances of the existing offshore mooring permit so that there would have been grounds for denial of the original offshore mooring permit or grounds for revocation thereof at the time an application for extension of mooring length is filed; b. The proposed extension of mooring length will not: i. Impede or obstruct the fairways or channels or prevent or obstruct the passage of other vessels between the rows; ii. Impede, obstruct or prevent other mooring permittees from safely navigating in and out of adjacent moorings or moorings in other rows connected by the same fairway to the row of the permittee's vessel; iii. Result in vessel(s) encroaching into the fairway or extending beyond the outer boundaries of the mooring area or row; or iv. Violate the established length of the row or mooring area in which the vessel will be moored; C. The applicant and the assigned vessel have complied with all of the appropriate United States Coast Guard license, inspection, and certification requirements for the assigned vessel and all of the applicable rules and regulations promulgated by the City, including, but not limited to, the provisions of this title.
Example of relocation to an available mooring.
the assigned vessel and all of the applicable rules and regulations promulgated by the City, including, but not limited to, the provisions of this title.
Example of relocation to an available mooring.
Permittee A wishes to upgrade their vessel “Atlantis" (forty (40) foot LOA), which is in a forty (40) foot row, with “Atlantis II” (forty-two (42) foot LOA). A will need to relocate to a mooring in a longer row since the mooring length cannot be extended at its current location. Permittee B's vessel "Barnacle" (forty-one (41) foot LOA) is in a forty-five (45) foot row. Permittee C's vessel “Calypso" (forty (40) foot LOA) is in forty-five (45) foot row. Permittee D's vessel “Doldrums” (forty (40) foot LOA) is in a forty-five (45) foot row. B has a permitted mooring length of forty-one (41) feet; C's permitted mooring length is forty (40) feet; and D's permitted mooring length is forty-one (41). All four moorings are in the same mooring field. C's mooring is the only available mooring to which A can relocate.
4. Conditions of Approval. If the Harbormaster approves a request for extension of mooring length, such approval shall be conditional and contingent upon the following requirements: a. The mooring permittee must occupy the approved mooring with their vessel within twelve (12) months following the date of approval; b. Transferable mooring permits shall not be sold or transferred for a period of twelve (12) months following the date of occupancy of the approved mooring. The sale or transfer of said permit shall comply with the requirements of subsections (B)(3), (E) and (F) of this section; and C. The requestor shall cover all costs associated with modifying the length of their mooring, or in the case of a relocation moving their vessel to the avail-
(B)(3), (E) and (F) of this section; and C. The requestor shall cover all costs associated with modifying the length of their mooring, or in the case of a relocation moving their vessel to the available mooring and moving the displaced vessel from the available mooring. The costs shall include, but not be limited to, the moving of mooring anchors and tackle and resizing of mooring tackle to meet applicable mooring standards (e.g., chain size).
5. Noncompliance with subsection (M)(4)(a) or (b) of this section shall result in rescission of the approval to extend mooring length. Within thirty (30) days of the rescission, the permittee who requested the extension shall at its sole expense return the mooring to its prior maximum length or in 636-23 (Newport Beach 3-24) 17.60.045 the case of a relocation return their vessel and the displaced vessel to their prior assigned mooring locations or other mooring locations as deemed appropriate by the Harbormaster. Violation of subsection (M)(4)(b) of this section shall be grounds for revocation of the mooring permit. (Ord. 2023-22 §767, 2023; Ord. 2023-8 §§ 6-11, 2023; Ord.
2022-9 §§ 7, 8, 2022; Ord. 2022-4 § 2, 2022; Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 58, 2018: Ord. 2017-7 § 3, 2017: Ord. 2013-11 § 175, 2013; Ord. 2010-26 § 5, 2010: Ord. 2008-2 § 1 (part), 2008) 17.60.045 A. General.
Short-Term Mooring Licenses.
1. If a short-term mooring license is issued pursuant to this section, a person shall have the right to use or tie to an offshore mooring or onshore mooring in the waters of Newport Harbor. A mooring license shall be nontransferable and shall not provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State.
t Harbor. A mooring license shall be nontransferable and shall not provide any ownership interest in the underlying tidelands, which are held in trust by the City and owned by the people of the State.
2. The provisions and regulations in this title pertaining to “permittees” and “permits” generally shall also be applicable to licensees and mooring licenses except when this section expressly provides otherwise, or such application would conflict with this section.
B. Term. Mooring licenses shall be valid for one month and may be renewed, provided the licensee has paid in full the license fee, any late fees and is not in violation of any provision of the license or this title.
C. License Fee-Late Fee. A licensee shall pay a license fee equivalent to the monthly fair market value rent of the mooring, as established by resolution of the City Council. Failure to pay the license fee by the due date shall be grounds for termination of the license by the Harbormaster. If the Harbormaster, in the Harbormaster's sole discretion, elects to not terminate a license for failure to pay by the due date, licensee shall pay a late fee in the amount established by resolution of the City Council. Failure of a licensee to pay the license fee and late fee within ten (10) days of the date due shall result in immediate termination of the license and the termination shall not be appealable to the Harbor Commission.
D. Eligibility Criteria.
1. Mooring licenses may be held only by natural persons. No more than two persons may be listed on a mooring license.
2. A person may hold up to two mooring licenses, but they cannot be for the same type of mooring (e.g., both onshore or both offshore).
3. Onshore mooring permittees shall be ineligible
oring license.
2. A person may hold up to two mooring licenses, but they cannot be for the same type of mooring (e.g., both onshore or both offshore).
3. Onshore mooring permittees shall be ineligible for onshore mooring licenses and offshore mooring permittees shall be ineligible for offshore mooring licenses. Mooring permittees holding more than one mooring permit shall not be eligible for any mooring license.
4. The person or persons listed on the mooring license must have at least a fifty (50) percent ownership interest in the vessel assigned to the mooring.
The minimum ownership interest requirement may be satisfied by the combined interests of the two persons. For vessels that are not held in an individual capacity, such as in trust or by a limited liability company, evidence of the required minimum ownership interest shall be provided to the satisfaction of the Harbormaster.
E. Application for Mooring License. Application for a mooring license shall be filed with the Harbormaster, on forms approved by the Harbormaster, and shall include the following in addition to such other information the Harbormaster may require: 1. Applicant(s)' full legal name, current address, current telephone number and current email address; 2. Vessel registration or other proof of ownership required by the Harbormaster; and 3. Insurance, which types and amounts shall be determined by the Risk Manager.
F. Issuance of Mooring License. The Harbormaster may issue mooring licenses subject to the conditions set forth in this subsection.
1. Each person listed on a mooring license shall be individually and collectively responsible for all activities pursuant to the mooring license and compliance with all applicable rules, regulations, and conditions.
sted on a mooring license shall be individually and collectively responsible for all activities pursuant to the mooring license and compliance with all applicable rules, regulations, and conditions.
2. A licensee may not allow vessels other than the assigned vessel and tender to use the mooring.
(Newport Beach 3-24) 636-24 17.60.045 3. A licensee shall ensure mooring spreader lines remain visible on the surface at all times by the use of floats or other devices or methods and shall keep the lines clean of algae and other marine growth.
Except for spreader lines, the City shall be responsible for the maintenance, repair, and replacement of mooring system components, including, but not limited to, chains, shackles, anchors, weights, lines, and buoys.
4. Live-aboards shall be prohibited.
5. The City may temporarily assign a mooring that is vacant or unoccupied to another vessel through the issuance of a mooring sub-permit in accordance with Section 17.60.040(H).
6. A licensee shall move the vessel from the mooring to another location when deemed necessary by the Public Works Director and/or Harbormaster.
Upon the licensee's failure to do so, the City or a contractor retained by the City may move the assigned vessel at the licensee's expense.
7. A licensee shall be subject to relocation or reassignment to another mooring pursuant to Section 17.60.040(B)(2)(1).
8. The Harbormaster may board the assigned vessel at any time to inspect the condition and operability of the marine sanitation device(s) and/or insert dye tablets to determine whether said devices are discharging overboard.
9. A licensee shall defend and indemnify the City and any other government entity with jurisdiction against any claims or losses arising out of, or related
er said devices are discharging overboard.
9. A licensee shall defend and indemnify the City and any other government entity with jurisdiction against any claims or losses arising out of, or related to the use of, the mooring license except where the claim or loss arises from a sub-permittee's damage of the mooring, or out of the negligence and/or misconduct of a person assigned the mooring as a mooring sub-permittee under Section 17.60.040(H).
10. A licensee shall notify the City within five days of any change in the information that was provided in their mooring license application including, but not limited to, a change in ownership interest in the assigned vessel.
G. Extended Vessel Absence. Vacancy or absence from the mooring by the assigned vessel for at least twenty-five (25) consecutive days shall be deemed abandonment of the mooring and shall result in automatic termination of the mooring license. Termination of license based on abandonment shall not be appealable to the Harbor Commission. The following situations shall not constitute a mooring being deemed abandoned: 1. The absence or vacancy from the mooring, which shall not exceed six months, with the prior written approval of the Harbormaster.
2. The licensee is in the process of changing the assigned vessel, provided that (a) written notice of the intent to remove and replace the assigned vessel is given to the Harbormaster prior to removal of the vessel, (b) all required information and documentation for the new vessel, including proof of ownership or registration, is submitted to the Harbormaster within ninety (90) days of the date of the written notice, and (c) the vessel is made available for inspection by the Harbormaster for compliance with Section 17.25.020(H).
bmitted to the Harbormaster within ninety (90) days of the date of the written notice, and (c) the vessel is made available for inspection by the Harbormaster for compliance with Section 17.25.020(H).
H. Mooring of a Tender. A single tender, which serves as access to and from shore to the assigned vessel, may be secured to the assigned vessel or to the offshore mooring in the absence of the assigned vessel. The tender must be secured in such a manner so as not to intrude into the fairway or obstruct other vessels.
I. Termination.
1. The Harbormaster may terminate a mooring license for the licensee's failure to correct any violation of this section or any applicable provision of this title within the timeframe set forth in a notice of violation issued by the Harbormaster.
2. Upon a determination that grounds for termination of a mooring license exist, the Harbormaster shall serve written notice of the termination in accordance with Section 1.05.030 to the licensee stating the grounds for the action, the effective date of the decision, and the right of the licensee to appeal the decision to the Harbor Commission. The licensee shall have fourteen (14) days from the date on which notice is deemed served to request a hearing or else the decision of the Harbormaster shall be final. Termination of a license for failure to pay any fees or based on the abandonment of a mooring shall not be appealable to the Harbor Commission.
3. Upon termination of the mooring license, the licensee shall immediately remove their vessel(s) from the mooring. The City may impound any vessel not removed within ten (10) days of the termination 636-25 (Newport Beach 3-24) 17.60.050 date and thereafter dispose of it in the manner provided by law. City-incurred costs for removal of the
ssel not removed within ten (10) days of the termination 636-25 (Newport Beach 3-24) 17.60.050 date and thereafter dispose of it in the manner provided by law. City-incurred costs for removal of the vessel may be charged against the licensee and collected in any court of competent jurisdiction or recovered by the City from the proceeds of sale of the vessel.
4. If a timely appeal is filed, the process for revocation of mooring permits set forth in Section 17.70.020 shall be followed. (Ord. 2023-17 § 2, 2023) 17.60.050 Houseboats.
A. Moorage Restrictions. No person shall moor or dock a houseboat on the waters of Newport Harbor.
B. No person shall use or occupy or permit the use or occupancy of a houseboat for living quarters either permanently or on a temporary basis on the waters of Newport Harbor. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.60.060 Public Trust Lands.
A. Leases/Permits. In the event public trust lands are used for commercial purposes by an entity other than the City, such as for example, a commercial marina or commercial pier, then that entity shall enter into a lease or permit with the City.
1. Leases shall provide lessees with a leasehold interest in the property for a period of at least five years, not to exceed a period of time as limited by the City Charter or applicable State law.
2. Permits shall provide permittees with an interest in the property for a period of ten (10) years or less, to be determined in the sole and absolute discretion of the City.
3. The City Manager is authorized to enter into leases or permits authorized by this section on behalf of the City in a form approved by the City Council pursuant to Resolution 2012-91 for large commercial marinas and Resolution 2012-97 for commercial
s or permits authorized by this section on behalf of the City in a form approved by the City Council pursuant to Resolution 2012-91 for large commercial marinas and Resolution 2012-97 for commercial use of tidelands (as the same may be subsequently amended from time to time by the City Council) or in such form as is substantially similar thereto; provided, however, that the City Manager may instead refer the matter to the City Council for consideration and approval. Furthermore, the City Manager is authorized to implement such leases or permits on behalf of the City and to issue interpretations, waive provisions, and enter into amendments thereof.
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 coastaldependent 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 an authorized appraiser, survey, or other appropriate valuation method, of the uses authorized in the lease or permit as established by the City Council.
E. Commercial uses provided under this title are exempt from any provision requiring involvement of the owner or long-term lessee of an abutting upland property. This section's sole purpose is to allow a person to apply for a commercial pier permit or lease in front of or encroaching upon abutting upland property not owned or leased by the person applying for the permit.
F. All persons that receive a commercial permit or lease, whether it is a new permit or lease or a transferred permit or lease, from the City to use public trust lands shall, to the fullest extent permitted by law, indemnify, hold harmless and defend (with
whether it is a new permit or lease or a transferred permit or lease, from the City to use public trust lands shall, to the fullest extent permitted by law, indemnify, hold harmless and defend (with counsel approved by the City, which approval shall not be unreasonably withheld) the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever (individually, a “claim” or collectively, "claims”), which may arise from or in any manner relate (directly or indirectly) to the permit or lease including, but not limited to, the issuance of any permit or lease, the transfer of any permit or lease, the entry into any permit or lease, permittee's or lessee's occupancy or use, or occupancy or use by permittee's or lessee's guests, invitees, sublessees, or licensees of the public trust lands, or improvements including, but not limited to, any use involving petroleum-based products, hazardous materials, hazardous waste and/or other hazardous substances as defined by City, County, State or Federal laws and regulations. The permittee's or lessee's (Newport Beach 3-24) 636-26 17.65.010 obligations under this indemnity shall not extend to the degree any claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such claims. This indemnification provision and any other indemnification provided elsewhere in an individual permit or lease shall survive the termination of said permit or lease and
h respect to such claims. This indemnification provision and any other indemnification provided elsewhere in an individual permit or lease shall survive the termination of said permit or lease and shall survive for the entire time that any third party can make a claim.
This indemnity obligation shall apply independent of whether it is explicitly placed within a particular commercial permit or lease. (Ord. 2023-22 § 767, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2013-27 §§ 4, 5, 2013; Ord. 2013-15 § 1, 2013; Ord. 2013-1 § 10, 2013: Ord. 2008-2 § 1 (part), 2008) Chapter 17.65 APPEALS OR CALLS FOR REVIEW Sections: 17.65.010 Authorization.
Initiation.
17.65.020 Time Limits.
17.65.030 17.65.040 17.65.050 17.65.010 Procedures.
Judicial Review of City Decision.
Authorization.
The purpose of this chapter is to provide procedures for the appeal or call for review of the decisions of the Public Works Director, the Community Development Director, Risk Manager, Harbormaster and Harbor Commission under this title.
A. Decisions of the Public Works Director, Community Development Director, Risk Manager, and/or Harbormaster resulting from his or her administration of this title may be appealed to the Harbor Commission by any interested person, except as otherwise provided herein.
B. Decisions of the Harbor Commission may be appealed to the City Council by any interested person.
C. A member of the Harbor Commission, acting in their official capacity, may call for review, to the Harbor Commission, decisions resulting from the Public Works Director, Community Development Director and/or Harbormaster's administration of this title, except as otherwise provided herein. The purpose of the call for review is to bring the matter in front of the entire body for review.
ment Director and/or Harbormaster's administration of this title, except as otherwise provided herein. The purpose of the call for review is to bring the matter in front of the entire body for review.
D. A member of the City Council, acting in their official capacity, may call for review, to the City Council, decisions of the Harbor Commission. The purpose of the call for review is to bring the matter in front of the entire body for review. (Ord. 2022-9 § 9, 2022; Ord. 2021-3 § 3, 2021; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 62, 2018: Ord.
2015-9 § 32, 2015: Ord. 2008-2 § 1 (part), 2008) 17.65.020 Time Limits.
Appeals or calls for review shall be initiated within fourteen (14) days of the decision. (Ord.
2023-22 § 768, 2023; Ord. 2020-5 § 1 (Exh. 1) 636-27 (Newport Beach 3-24) 17.65.030 (part), 2020: Ord. 2015-9 § 33, 2015: Ord. 2008-2 § 1 (part), 2008) 17.65.030 Initiation.
A. Filing of Appeals and Calls for Review.
Appeals or calls for review shall be made in writing to the City Clerk on forms provided by the City Clerk. The appeal shall state the facts and basis for the appeal. A call for review initiated by a member of the Harbor Commission or City Council, in their official capacity, shall be for the purpose of bringing the matter in front of the entire body for review.
B. Fee. Appeals shall be accompanied by a fee as established by resolution of the City Council. A call for review is exempt from the payment of a filing fee under Section 3.36.030, or any successor provision.
C. Effect on Decisions. Except where this title authorizes the revocation of a permit by the Harbormaster, decisions that are appealed or called for review shall not become effective until the appeal or review is resolved. (Ord. 2020-5 § 1 (Exh. 1) (part),
the revocation of a permit by the Harbormaster, decisions that are appealed or called for review shall not become effective until the appeal or review is resolved. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 63, 2018; Ord. 2015-9 § 34, 2015: Ord. 2008-2 § 1 (part), 2008) 17.65.040 Procedures.
A. Hearing Date. An appeal or call for review shall be scheduled for a hearing before the reviewing body within forty-five (45) days of the filing of the appeal or call for review, or the decision by the Building and Fire Code Board of Appeals if they are to hear an appeal first, unless both appellant and the reviewing authority consent to a later date.
B. Notice and Public Hearing. An appeal or call for review hearing shall be a public hearing. Notice of the hearing shall be provided and the hearing shall be conducted in compliance with Section 17.05.140.
C. Plans and Materials. At an appeal or call for review hearing, the reviewing body shall consider the application, plans and project-related materials that were the subject of the original decision.
D. Hearing.
1. At the hearing, the reviewing body shall review the record of the decision and hear testimony of the appellant, and any other interested party. An appeal or call for review shall be de novo.
2. The failure of the appellant or his or her authorized representative to appear at the hearing shall constitute a failure to exhaust his or her administrative remedies.
3. The hearing need not be conducted in accordance with the technical rules of evidence and any relevant evidence may be considered.
4. The appellate (or reviewing) body may continue the hearing from time to time and/or request additional information prior to issuing a written decision.
E. Required Findings. At an appeal or review
The appellate (or reviewing) body may continue the hearing from time to time and/or request additional information prior to issuing a written decision.
E. Required Findings. At an appeal or review hearing, the reviewing body shall make the findings prescribed in Section 17.05.140(D)(1) or state why it cannot make the findings when affirming, modifying or reversing the original decision.
F. Decision and Notice. After considering all of the testimony and evidence presented at the hearing, the reviewing body shall issue a written decision within a reasonable time. The written decision shall state the specific reasons for the decision and shall be served on the appellant in accordance with Section 1.05.030. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2018-17 § 64, 2018; Ord. 2015-9 § 35, 2015: Ord. 2008-2 § 1 (part), 2008) 17.65.050 Judicial Review of City Decision.
A person shall not seek judicial review of a City decision on any matter until all appeals or calls for review, if applicable, to the Harbor Commission and City Council have been first exhausted in compliance with this chapter. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2015-9 § 36, 2015) (Newport Beach 3-24) 636-28 17.70.010 Chapter 17.70 ENFORCEMENT Declaration of NuisanceAbatement.
Suspension of Marine Activities Permit.
Grounds for Revocation of Permit.
Sections: 17.70.010 17.70.015 17.70.020 17.70.030 17.70.040 Abandoned Vessels or Structures.
17.70.050 Citations Other Remedies.
17.70.010 Impound of Vessels or Structures.
Declaration of Nuisance Abatement.
Any building, structure, or vessel set up, erected, constructed, altered, enlarged, converted, moved or maintained in or over the waters of Newport Harbor or the Pacific Ocean contrary to the provisions of this
ng, structure, or vessel set up, erected, constructed, altered, enlarged, converted, moved or maintained in or over the waters of Newport Harbor or the Pacific Ocean contrary to the provisions of this Code, and any use of any land, water, building or premises established, conducted, operated or maintained contrary to the provisions of this Code, shall be and the same is declared to be unlawful and a public nuisance; and the City Attorney may commence action or proceedings for the abatement and removal and enjoinment thereof in the manner provided by law, and may take such other steps and apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building, structure, or vessel and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining, or using any such building contrary to the provisions of this Code. Pursuant to California Government Code Section 38773, all expenses incurred by the City in connection with any action to abate a public nuisance will be chargeable to the person(s) creating, causing, committing, or maintaining the public nuisance. (Ord. 2023-22 § 769, 2023; Ord.
2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008) 17.70.015 Suspension of Marine Activities Permit.
In addition to any fine or penalty that may be imposed pursuant to any provision of this Code, a marine activities permit issued pursuant to Chapter 17.10 (Marine Activities Permit) may be suspended as provided in this section.
A. Suspensions. If any person violates any condition of the marine activities permit two or more times in any twelve (12) month period or any other provision of this Code, State or Federal law, two or more times in any twelve (12) month period, and the
of the marine activities permit two or more times in any twelve (12) month period or any other provision of this Code, State or Federal law, two or more times in any twelve (12) month period, and the violation relates in any way to a condition of the marine activities permit, the permit may be suspended for a period of up to six months in accordance with subsection (B) of this section.
B. Procedure for Suspension. Permits shall be suspended in the manner provided herein.
1. The Harbormaster shall investigate whenever he or she has reason to believe that a marine activities permit holder has submitted an application that contains false information or committed a violation of a permit condition, this Code, or State or Federal law related to a marine activities permit. Such investigation may include, but is not limited to, on-site or vessel inspections. Should the investigation reveal substantial evidence to support a finding that warrants a suspension of the marine activities permit, the Harbormaster shall issue written notice of intention to suspend the permit. The written notice shall be served on the owner in accordance with Section 1.05.030, directing the permittee to appear at the date, time and place for a hearing on the suspension of the marine activities permit. The notice shall specify the facts which, in the opinion of the Harbormaster, constitute substantial evidence to establish grounds for imposition of the suspension, and specify the proposed time the marine activities shall be suspended. At least fourteen (14) days' notice of such hearing shall be given in accordance with Section 1.05.030 to the permittee shown on such permit, setting out the date, time and place of hearing.
2. The hearing shall be conducted according to
such hearing shall be given in accordance with Section 1.05.030 to the permittee shown on such permit, setting out the date, time and place of hearing.
2. The hearing shall be conducted according to the rules normally applicable to administrative hearings. At the hearing, a Hearing Officer will preside over the hearing, take evidence and then submit proposed findings and recommendations to the City 636-29 (Newport Beach 3-24) 17.70.020 Manager. The City Manager shall suspend the marine activities permit only upon a finding that a violation has been proven by a preponderance of the evidence, and that the suspension is consistent with the provisions of this section. If the City Manager determines there are grounds for suspension of a marine activities permit, he/she shall provide written notice of the suspension to the permittee shown on such permit, stating the grounds for the action, the length of suspension, and the effective date of the decision. The notice of decision shall be served in accordance with Section 1.05.030 within thirty (30) days of the City Manager receiving recommendations from the hearing officer. The decision of the City Manager shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.
3. If a marine activities permit is suspended, it shall be the marine activities permit holder's responsibility to suspend all activities related to the commercial activities during the term of the suspension.
4. After any suspension, the owner may apply for reinstatement of the marine activities permit, as provided for in Section 17.10.030, provided the owner has paid the City all amounts owed the City in accordance with this chapter and this Code. (Ord.
reinstatement of the marine activities permit, as provided for in Section 17.10.030, provided the owner has paid the City all amounts owed the City in accordance with this chapter and this Code. (Ord.
2023-22 § 770, 2023; Ord. 2021-3 § 4, 2021) 17.70.020 Grounds for Revocation of Permit.
A. Grounds for Revocation.
1. General Grounds for Revocation. Except as provided in subsections (A)(2) through (4) of this section, in addition to any specific grounds for revocation of a permit provided for herein, any permit heretofore or hereafter granted for any structure, work, use or activity under and pursuant to this title may be revoked upon any of the following grounds: a. The development work, structure, use or activity has become detrimental to commerce, navigation or fishing; b. The development work, structure, use or activity is detrimental to the use, operation or development of Newport Harbor or the Pacific Ocean; C. The development work, structure, use or activity has become a source of pollution of Newport Harbor or the Pacific Ocean; d. The development work, structure, use or activity does not comply with the permit or does not meet the standards adopted for such development work or structure; e. The permittee has failed for a period of sixty (60) days to pay any rent or fee heretofore or hereafter imposed for the occupancy or use of tidelands, filled tidelands or submerged lands; f.
The development work or structure has fallen into a state of disrepair; g. 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; h. The permittee has breached or failed to comply with the terms or conditions contained in the permit or upon which the permit was granted or
pace is to be devoted to a more necessary public use; h. The permittee has breached or failed to comply with the terms or conditions contained in the permit or upon which the permit was granted or provided false or misleading information on an application for a permit or renewal thereof; i. The development work, structure, use or activity violates the terms of the tidelands trust grants to the City; or j.
There has been a violation of any provision of this title, State or Federal law.
2. Grounds for Revocation of a Live-Aboard Permit. In addition to the grounds for revocation set forth in subsection (A)(1) of this section, any permit granted pursuant to Chapter 17.40 may be revoked upon a determination that: a.
Permittee has violated, or failed to comply with, any of the provisions or requirements of Chapter 17.40 or this title; b. Permittee has discharged raw or treated sewage into the bay or otherwise violated the provisions of Section 17.40.100; c.
Permittee has failed to pay any fee required to be paid pursuant to the provisions of Chapter 17.40 and/or resolution of the City Council; or d. Permittee, or any person on the vessel, has engaged in conduct which has unreasonably interfered with the health, safety, welfare, or peace of any person.
3. Grounds for Revocation of Mooring Permit.
A mooring permit may be revoked upon any of the grounds set forth in subsection (A)(1) of this section or for any of the following: a. The moored vessel or the mooring equipment has been determined to violate the applicable moor(Newport Beach 3-24) 636-30 17.70.020 ing regulations in Section 17.25.020, or any successor section, and the mooring permittee or subpermittee has not made the necessary corrections or repairs within the time required by the Harbormaster;
ulations in Section 17.25.020, or any successor section, and the mooring permittee or subpermittee has not made the necessary corrections or repairs within the time required by the Harbormaster; b. The mooring permittee or person authorized by the mooring permittee has failed or refused to allow an inspection of the vessel to determine if it is safe, seaworthy and operable, a public nuisance, or in compliance with applicable marine sanitation device requirements including placement of a dye tablet in the marine sanitation device; c. A person has lived aboard a vessel assigned to a mooring without a live-aboard permit, unless otherwise noted in Section 17.60.040(H); or d. The mooring permittee has sublet their mooring in violation of this title.
4. Grounds for Revocation of a Marine Activities Permit. A marine activities permit may be revoked upon any of the grounds set forth in subsection (A)(1) of this section or for any of the following: a. If any person violates any condition of the marine activities permit within six months of having a previously suspended marine activities permit reinstated, and the violation relates in any way to a condition of the marine activities permit; b. If any person violates any condition of the marine activities permit three or more times in any twelve (12) month period or any other provision of this Code, State or Federal law, three or more times in any twelve (12) month period, and the violation relates in any way to a condition of the marine activities permit.
B. Notice and Hearing.
1. General Notice and Hearing Procedures.
Except as provided in this title or subsections (B)(2) and (3) of this section, any revocation shall require a public hearing before the Harbor Commission at
1. General Notice and Hearing Procedures.
Except as provided in this title or subsections (B)(2) and (3) of this section, any revocation shall require a public hearing before the Harbor Commission at which the permittee has an opportunity to be heard.
a. At least fourteen (14) days' notice of such hearing shall be given in accordance with Section 1.05.030 to the permittee shown on such permit, setting out the date, time and place of hearing, and specifying the facts which constitute the grounds for revocation.
b. The Harbor Commission shall preside over the hearing. The Harbor Commission may continue a hearing from time to time and request additional information from city staff or the permittee before rendering its decision. The permittee's nonappearance at the hearing shall constitute a failure to exhaust his or her administrative remedies.
C. At the hearing, the permittee shall be given the opportunity to testify and present evidence and shall raise any and all legal and factual issues concerning the determination under this section. The hearing need not be conducted in accordance with the technical rules of evidence and any relevant evidence may be admitted.
2.
Procedure for Revocation of Live-Aboard Permits. If the Harbormaster determines there are grounds for revocation of a live-aboard permit as provided in subsection (A)(2) of this section, he or she shall provide written notice of revocation with service of the notice in accordance with Section 1.05.030, stating the grounds for the action, the effective date of the decision and the right of the permittee to appeal the decision to the Harbor Commission. The permittee shall have fourteen (14) days from the date on which notice is deemed served to request a hearing.
ion and the right of the permittee to appeal the decision to the Harbor Commission. The permittee shall have fourteen (14) days from the date on which notice is deemed served to request a hearing.
If the permittee does not request a hearing within fourteen (14) days of the date the notice is deemed served, the decision of the Harbormaster shall be final.
3. Procedure for Revocation of Mooring Permits. If the Harbormaster determines there are grounds for revocation of a mooring permit as provided in subsection (A)(3) of this section, he/she shall provide written notice of the revocation with service of the notice in accordance with Section 1.05.030 to the permittee shown on such permit, stating the grounds for the action, the effective date of the decision and the right of the permittee to appeal the decision to the Harbor Commission. The permittee shall have fourteen (14) days from the date on which notice is deemed served to request a hearing.
If the permittee does not request a hearing within fourteen (14) days of the date the notice is deemed served, the decision of the Harbormaster shall be final.
636-31 (Newport Beach 3-24) 17.70.030 C. Decision and Notice. Within a reasonable time of the conclusion of any revocation hearing before the Harbor Commission, the Harbor Commission shall render a decision. The City Clerk shall notify the permittee or applicant of the decision of the Harbor Commission and serve the notice in accordance with Section 1.05.030.
D. Effective Date. Except as provided in subsections (B)(2) and (3) of this section, the decision to revoke a permit shall become final once the time period for an appeal or call for review has expired.
(Ord. 2023-22 § 780, 2023; Ord. 2021-3 §§ 5, 6, 2021; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
revoke a permit shall become final once the time period for an appeal or call for review has expired.
(Ord. 2023-22 § 780, 2023; Ord. 2021-3 §§ 5, 6, 2021; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord.
2015-9 §§ 37, 38, 2015; Ord. 2013-1 § 12, 2013; Ord. 2008-2 § 1 (part), 2008) 17.70.030 Impound of Vessels or Structures.
The Harbormaster may authorize the impound of a vessel or structure located in or over the waters of Newport Harbor or the Pacific Ocean under any of the following circumstances: A. Unless otherwise permitted under this title, the vessel or structure is attached to a mooring that is not the vessel or structure identified on the mooring permit.
B. An unpermitted vessel or structure is attached to a public mooring, dock, or slip.
C. A vessel or structure is in violation of the anchorage or berthing requirements of this title.
D. The vessel or structure is left unattended and is moored, docked, beached, or made fast to land in a position that obstructs the normal movement of traffic or in a condition that creates a hazard to other vessels using the waterway, to public safety, or to the property of another.
E. The vessel or structure interferes with, or otherwise poses a danger to, navigation or to the public health, safety, or welfare.
F. The vessel or structure poses a threat to adjacent wetlands, levees, sensitive habitat, any protected wildlife species, or water quality.
G. A vessel or structure is found or operated upon a waterway with a registration expiration date in excess of one year before the date on which it is found or operated on the waterway.
H. The vessel or mooring permittee does not have proper insurance or owes a debt to the City.
I. Federal or State law permits the City or any peace officer, lifeguard, or marine safety officer
terway.
H. The vessel or mooring permittee does not have proper insurance or owes a debt to the City.
I. Federal or State law permits the City or any peace officer, lifeguard, or marine safety officer employed by the City to remove, and, if necessary, store a vessel removed from a public waterway.
The City may charge or bring action in the courts of this state to recover any costs pursuant to impounding a vessel or structure. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020) 17.70.040 Abandoned Vessels or Structures.
Any vessel or structure that has been impounded pursuant to Section 17.70.030 that has not been claimed by the owner, or has been claimed by the owner and the owner has not paid the impound fees owed to the City for a period in excess of thirty (30) days, shall be deemed abandoned and may be disposed of by the City in any manner prescribed by law. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020) 17.70.050 Citations Other Remedies.
A. The owner of a vessel deemed abandoned under Section 17.70.040 may be issued an administrative citation and assessed an administrative fine of one thousand dollars ($1,000.00).
B. Notwithstanding the specific enforcement remedies referenced herein, the City may undertake other enforcement action as provided in this Code, State or Federal law to enforce the provisions of this title. (Ord. 2022-9 § 10, 2022; Ord. 2020-5 § 1 (Exh.
1) (part), 2020) (Newport Beach 3-24) 636-32 City of Newport Beach Harbor Code (Title 17; 70 pgs.)
Mooring Specific Regulations: 9 pgs.
(Liveaboards have an additional 4 pgs.)
City of Newport Beach Moored Vessel Inspection Form: 2 pgs.
City of Newport Beach - Harbor Department - Vessel Inspection Form
ring Specific Regulations: 9 pgs.
(Liveaboards have an additional 4 pgs.)
City of Newport Beach Moored Vessel Inspection Form: 2 pgs.
City of Newport Beach - Harbor Department - Vessel Inspection Form To be completed by City of Newport Beach Harbor Department staff. See the back of this form for a brief explanation of the required tem Mooring Permittee: Vessel Name: CF/DOC #: Filing and R mooring lengths J. Surrende assigned ves the permittee permit other the reoccupa reoccupation value for the satisfactory 1. The mo 3. Permitt mooring per Department documentati onshore mo Harbormast assignment mooring per harbor activ The Bal Community areas or loc through t g. Prov satisfacti 17.60.040 Mooring Permits.
A. Permit Required. No person shall place, erect, construct, maintain, use or tie to a mooring in the waters of Newport Harbor over City-owned or controlled tidelands (ie, an offshore mooring) or in the nearshore perimeter of Newport Harbor perpendicular to the shoreline (ie, an onshore mooring) without first having obtained a mooring permit from the Harbormaster or having otherwise complied with this section. A mooring permit is in the nature of license for the temporary use of a specific location within Newport Harbor.
B. Issuance of Permit-Conditions. The Harbormaster, in furtherance of the tideland grants to the City, may issue a mooring permit or mooring sub-permit to allow the mooring permittee or mooring sub-permittee to temporarily use a portion of the waters of Newport Harbor for the mooring of a vessel if the Harbormaster makes the findings set forth in Section 17.05.140(D)(1). A mooring permittee may hold up to two mooring permits at any time. A mooring permittee that held or continues to hold more than two mooring permits prior to
ings set forth in Section 17.05.140(D)(1). A mooring permittee may hold up to two mooring permits at any time. A mooring permittee that held or continues to hold more than two mooring permits prior to May 11, 2017, may continue to hold the mooring permits until the permits are sold, revoked, or otherwise transferred under this chapter.
1. Exceptions.
The Balboa Yacht Club and the Newport Harbor Yacht Club (collectively, "yacht clubs") currently hold permits for single point moorings placed within certain mooring area boundaries established by the City, as noted in subsection (B)(3)(g) of this section. In addition, the Lido Isle Community Association ("LICA") has permits for onshore moorings on Lido Isle. These organizations shall hold their respective permits under the yacht club, or respective organization name, for the moorings identified by the City as under their respective control at the time of enactment of the ordinance codified in this section. The yacht clubs and LICA shall be solely responsible for managing moorings under their control and shall be permitted to assign moorings under their control to yacht club members and members of LICA, respectively. The yacht clubs and LICA shall keep accurate records of the name and address of the club members and community association members to which each mooring has been assigned and the corresponding length of each vessel. The yacht clubs and LICA may not sell or otherwise transfer the moorings under their control to a third party that is not a member of the yacht club or LICA. Mooring records and 24/7 emergency contact information shall be provided annually to the Harbormaster by the yacht clubs and LICA on or before February 1st.
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formation shall be provided annually to the Harbormaster by the yacht clubs and LICA on or before February 1st.
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o re by the Harbe 2. In acco k. Agre a. An assigned vessel and t Seth in Section thirty (30) da substitute mo mooring ma the applican reason. Moor vessel to the revocation There have l b. A vessel, ot terminate a s 2012: O subsection (H) e 4. The trat 3,2017: 6. The moc b. The propose current; requ required ma D. Late F accordance 3. The mo 7. Mooring mooring, an impede a of the mooring E. Transfe by the me 5. The mo issued prior M. Reques pedes transferable moorings or mo 1. General "Calypso" LOA) mooring le the same approval sh a Them following t and carnifying to Sach plans a the proposed inc Deiled in and if the vessel weeks approval 1 1. The gro 2. Upon re remove the the permit, th may be remo permittee. A and disposed vessel moore or recovered 3. During mooring for related to, the to provide re satisfaction of when deeme 3. The repa mooring is d the mooring repair date a mooring w 9. Following a publicly availab information reg Club, the Newp through aban that there would thereof at the tim 2. If the me entitled to pa to be determi rent and fees If an offshore moorings ma 1 Mooring transfer a mo the annual m nonrefundab 1. The tran Required de subsection (F) a 2. Noticed Vai mooring sub-pai notice, or the tw continues to be 1 and there is no f current regis transferee's new assigne of Newport dispute with Resultin mooring 6. Transfe request an ev exceed the e of the follov in Violate the row. In no ca living trust o a Mooring pe fifteen (15) days a. The mo 2. The tran and has pert and which Harbormast time in any F. Proced Harbormast below: h. Agre establish users in 1 condition devices a 1. Agre row by fi purpose the purpe Example thirty-fiv and is in thirty (30
n and has pert and which Harbormast time in any F. Proced Harbormast below: h. Agre establish users in 1 condition devices a 1. Agre row by fi purpose the purpe Example thirty-fiv and is in thirty (30 b. Mooring of a Tender. A single vessel no longer than fourteen (14) feet in overall length to serve as access to and from the assigned vessel may be secured to the assigned vessel or may be secured to the offshore mooring in the absence of the assigned vessel. The vessel must be secured in such a manner so as not to intrude into the fairway or obstruct neighboring permittees. Notwithstanding the single vessel restriction, permitted live-aboards may secure up to two vessels no longer than fourteen (14) feet in overall length to the assigned vessel, to serve as access to and from the assigned live-aboard vessel.
c. Multiple Vessel Mooring System Program. The Harbormaster may approve a multiple vessel mooring system in the single anchor mooring areas of Newport Harbor. An application and applicable fee, established by resolution of the City Council, for a multiple vessel mooring system shall be submitted in writing to the Harbormaster, who shall evaluate the application based upon standards established and the application shall be approved if the Harbormaster makes the findings under the applicable standards and those set forth in Section 17.05.140(D)(1).
2. Permit Requirements. A mooring permit may be issued to a maximum of two persons ("mooring permittee(s)") who shall be individually and collectively responsible for all activities related to the mooring permit. The mooring permit shall specify the assigned mooring location, the mooring length, and assigned vessel information. Mooring permittee(s) are subject to and shall fully comply with the following conditions:
oring permit shall specify the assigned mooring location, the mooring length, and assigned vessel information. Mooring permittee(s) are subject to and shall fully comply with the following conditions: BRIEF EXPLANATION OF IN 1.DEMONSTRATED OPERABILIT NBMC requirements NUMBERING. The boat's regi characters must be plain, vertic space or hyphen must separate AB or FL-4234-AB) 3. REGISTRATION/DOCUMENTA numbers must be permanently: must be displayed on the exteri 4. PERSONAL FLOTATION DEVICE good service-able condition. A properly fitted PFDs designed fo one Type IV (throwable) device "immediately available." PFDs s wom. An impact rating is recom 5. VISUAL DISTRESS SIGNALS: Re 1) three day and three night py (auto SOS light) or 3) a combine distress signals when operating waters should have some mean by considering conditions under 6. FIRE EXTINGUISHERS Fire ext bottom hulls not completely se compartments that contain flan propelled by outboard motors a applies. NOTE: Fire extinguisher 7. VENTILATION: Boats with gas system. Those built prior to that after August 1, 1978 must meet either natural or powered venti BACKFIRE FLAME ARRESTERA approved backfire flame contro Mooring Number: Vessel Inspection Categories Demonstrated Vessel Operability 2. Display of Numbers (includes Tenders) Registration/Documentation 4. Personal Flotation Devices (PFD) 5. Visual Distress Signals (VDS) 6. Fire Extinguishers 7. Ventilation (gas powered) 8. Backfire Flame Control (gas powered) 9. Sound Producing Devices/Bell 10. Navigation Lights 11. Pollution Placard 12. MARPOL Trash Placard 13. Marine Sanitation Devices (Dye Tab Test) 14. Overall Vessel Condition 13. Deck Free of Hazards 16. Clean Bilge/Operable Bilge Pump 17. Backup Dewatering Device 18. Marine Radio
ARPOL Trash Placard 13. Marine Sanitation Devices (Dye Tab Test) 14. Overall Vessel Condition 13. Deck Free of Hazards 16. Clean Bilge/Operable Bilge Pump 17. Backup Dewatering Device 18. Marine Radio 19. Mooring Line Req./ Anchor & Line 20. First Aid Kits Vessel Length: Sail [ ] Power [ ] "Vessel length cannot exceed max mooring length YES NO N/A [ ] Notes: [ ] [] [] 11 [] [] [] [11] [1 [] [] [] [] [] [1 I] 11 [] 11 11 11 [11] [1 [] [] [1 I] II [1 [] [I [1 [] 11 [] Harbor Related Discussion Items 1. Dinghy/Use of Public Docks [] I certify that I have examined this vessel and find it meets the requirements established by the City of Newport Beach Harbor Dept SOUND PRODUCING DEVICES producing device (whistle, hom required to have a bell (see Nav 2. Disposal of Trash/ No Public Dumping [] Inspection completed by: Regular Checks on Vessel Condition [ ] 10. NAVIGATION LIGHTS: All reduced visibility. Boats 16 feet anchor light capable of being it 4. Monitoring of Weather/Wind [ ] Signature: Date 5. Public Pump Out Locations [ ] 11. POLLUTION PLACARD: Boe 6. Sea Lion Deterrents [ ] Permittee Signature: 12. MARPOL TRASH PLACABR 7. Reporting Incidents/Observations [ ] Date: trash placard Oceangoing boat 13.
MARINE SANITATION DEV be capable of being sealed. Dye OVERALL CONDITION OF demonstration of operable bilge 17. BACKUP DEWATERING DE Additional Comments: This is not an official boarding for law enforcement purposes. Some vessel deficiencies may require correction in order to moor vessel in Newport Harbor (ref. The 17 NBMC). There is no sumption of liability of any kind for advice given or opinions expressed in somnection to this impection
ay require correction in order to moor vessel in Newport Harbor (ref. The 17 NBMC). There is no sumption of liability of any kind for advice given or opinions expressed in somnection to this impection i am consenting to this vessel inspection with full knowledge that it is provided to me as a condition of mooning permit in Newport Harbor.
understand and agree that my receipt of this vmsel inspection shall not constitute or be comtrued as a warranty or guarantee as to either the Qualifications, knowledge, or skills of the operator; the seaworthiness of the vessel, or the serviceability or adequacy of any equipment on board 14 15.
DECK FREE OF HAZARDS 16.
CLEAN BILGE/OPERABLE system.
18.
MABINE RADIO-Review c 19.
MOORING LINE REQUIRE Vessel Inspection started by: DATE: 20 FIRST AID KITS-Confirm v Vessel Inspection Completed [ ] Follow up email sent [ ] Dates: Vessel Inspection in Progress [ ] Vessel Inspection FAIL [ ] Additional Info/ Notes: Some Conditions: City may assign mooring to another vessel when it is unoccupied; Must provide proof of insurance for assigned vessel naming City as an additional insured to the satisfaction of the Risk Manager; Must provide registration or other proof of right in the assigned vessel; Agree to move the vessel from the mooring to another location when deemed necessary... and authorize the City or its designee to move the vessel upon the mooring permittee's failure to do so, at the permittee's expense; Agree to allow the Harbormaster, or his designee, to board the permittee's vessel at any time without judicial oversight…..; Agree that if the permittee's maximum mooring length is shorter than the established length of its mooring
, or his designee, to board the permittee's vessel at any time without judicial oversight…..; Agree that if the permittee's maximum mooring length is shorter than the established length of its mooring row by five feet or more, permittee is subject to relocation;….. Agree that the City shall charge mooring permittee for the right to transfer a mooring permit in an amount equal to seventy-five (75) percent of the annual mooring rent; liveaboards may not live aboard for less than two hundred forty-three (243) days in any calendar year; The live-aboard permittee shall maintain a log, which shall be updated by the end of each calendar month and kept on the vessel subject to the liveaboard permit, which shows the days/nights the liveaboard resided on the boat; Compliance shall be considered a condition to each live aboard permit; A pump out log and supporting material shall be made available for inspection by the Harbormaster at all reasonable hours and upon request. The decision of the Harbormaster shall be final and nonappealable.
City of Newport Beach Harbor Code (Title 17) Regulating Residential Piers: 1 Page City of Newport Beach Residential Pier Vessel Inspection Form: 0 Pages 17.60.030 Pier Permits for Noncommercial Piers.
A. Noncommercial Pier Permits. Upon the request of the abutting upland residential property owner, or lessee or the authorized agent of the owner or lessee and in accordance with all applicable laws including, but not limited to, Sections 17.35.020(A) and (B), a residential pier permit shall be issued for up to ten (10) years. The City shall extend the term of any residential pier permit for up to ten (10) years upon: 1. Permit expiration and the request of the owner or lessee, or the authorized agent of the owner or lessee; or
City shall extend the term of any residential pier permit for up to ten (10) years upon: 1. Permit expiration and the request of the owner or lessee, or the authorized agent of the owner or lessee; or 2. Upon sale of the abutting upland property and the request of the new owner or lessee, or the authorized agent of the owner or lessee. The maximum term of any permit issued hereunder, with extensions, shall be fifty (50) years. After fifty (50) years, the abutting upland residential property owner, or lessee or authorized agent of the owner shall be required to apply for a new residential pier permit.
B. Rental Fees. 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 the applicable pier permit rental fee for such portions of the pier that extend into public tidelands, as established by City Council resolution.
C. Transfer of Noncommercial Pier Permits.
1. Permits for noncommercial piers are issued subject to the condition that any improvements constructed shall not be sold in whole or part, leased, or transferred without the prior 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 Public Works Department. 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 Public Works Director is authorized to approve transfers to the new owners or long-term lessee of the abutting upland residential property.
ion of the City Council.
3. Along with the City Manager, the Public Works Director 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 a 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 in whole or in part, by the permittee to a third party or parties.
Such rental/lease shall not be deemed a transfer under this section 6. The provisions of this section shall not apply to piers, docks or other structures located in Promontory Bay and in other waters over privately owned land (Ord. 2020-5 § 1 (Exh. 1) (part). 2020: Ord. 2018-17 §§ 56, 57, 2018; Ord. 2014-8 § 1, 2014; Ord. 2013-27 § 3, 2013: Ord. 2013-1 § 9, 2013: Ord. 2008-2 § 1 (part). 2008) From: What Happened Date: Wed, Oct 16, 2024 at 11:37 AM Subject: Docks To: Hi does the city collect information on boats at docks at houses?
insurance, owner, registration, etc?
thnx From: Infelise, Madison Date: Wed, Oct 16, 2024 at 11:51 AM Subject: RE: Docks To: What Happened From: What Happened Date: Sat, Oct 19, 2024 at 2:59 PM Subject: Re: Docks To: Infelise, Madison Hello, Thank you for your email. We do not collect vessel information for vessels on private docks.
Let me know if you have any questions.
Thank you, OF CITY NEWPORT BEACH CALIFORNIA Madison Infelise Permit Technician Harbor Department Main Line: 949.718.3429 Front Office: 949.270.8159 1600 W Balboa Blvd Newport Beach, CA 92663
uestions.
Thank you, OF CITY NEWPORT BEACH CALIFORNIA Madison Infelise Permit Technician Harbor Department Main Line: 949.718.3429 Front Office: 949.270.8159 1600 W Balboa Blvd Newport Beach, CA 92663 Will I need to add the city to my insurance policy for my boat I put at a house dock? someone said I might.
From: Infelise, Madison Date: Mon, Oct 21, 2024 at 6:47 AM Subject: RE: Docks To: What Happened No, you do not need to add the city to your insurance policy on your private dock.
Lee us know if you have any other questions.
Have a great week, CITY OF NE ORT BEACH CALIFORNIA Madison Infelise Permit Technician Harbor Department Main Line: 949.718.3429 Front Office: 949.270.8159 1600 W Balboa Blvd Newport Beach, CA 92663 From: What Happened Date: Mon, Oct 21, 2024 at 12:37 PM Subject: Re: Docks To: Infelise, Madison From: Infelise, Madison Date: Mon, Oct 21, 2024 at 12:39 PM Subject: RE: Docks To: What Happened What kind of inspection process will I have to pass to place a boat at a house dock? I'm sorry, learning as I go.
There is no inspection to place a vessel on your private dock.
CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT 14 Agenda Item No.
June 22, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Chris Miller, Harbor Resources Manager SUBJECT: Approval of a Five Year Agreement with the County of Orange for Mooring Management Services in Newport Harbor ISSUE: Should the City Council approve the Cooperative Agreement with the County of Orange for mooring management in Newport Harbor for five years?
RECOMMENDATION: 1. Approve and authorize the Mayor and City Clerk to execute a Cooperative Agreement with the County of Orange for mooring management in Newport Harbor for five years, and; 2. Approve Budget Amendment #BA
pprove and authorize the Mayor and City Clerk to execute a Cooperative Agreement with the County of Orange for mooring management in Newport Harbor for five years, and; 2. Approve Budget Amendment #BA for FY 2009/10 for the attached Cooperative Agreement for $180,000 from Unappropriated Reserves (Tidelands) to account #2371-8080 (Professional and Technical Services).
DISCUSSION: The waters of Newport Harbor are divided as either City or County Tidelands granted by the State of California. The City of Newport Beach has 1,229 moorings over its Tidelands and there are approximately 25 moorings over County Tidelands. Moorings are permitted through the City or County respectively, subject to an annual permit fee.
In 1981, the City and County entered into a Joint Powers Agreement for the administration and management of moorings in Newport Harbor. Under these Agreements, the last of which expired in December 2008, the City paid the County to have the Sheriff's Harbor Patrol manage the moorings, including performing regular inspections and handling of the guest moorings. These agreements were generally renewed as Amendments every five years. The City's payment for calendar year 2009 was $110,000.
Approval of Mooring Contract with County June 22, 2010 Page 2 In 2009, the City of Newport Beach openly solicited bids for mooring management from both the private and public sectors. While several proposals were received and considered, the City Council directed staff to negotiate a contract with the County for mooring management on May 11, 2010. A copy of the May staff report is attached.
TERMS OF AGREEMENT: The Agreement provides for the continued management of the moorings by the Harbor Patrol based upon the following annual payments by the City for the initial five-year term
tached.
TERMS OF AGREEMENT: The Agreement provides for the continued management of the moorings by the Harbor Patrol based upon the following annual payments by the City for the initial five-year term of the Agreement based on a fiscal year from July to June: FY2010-11 $180,000 FY2011-12 $207,500 FY2012-13 $235,000 FY2013-14 $262,500 FY2014-15 $290,000 During the past month, staff and representatives from the County and Harbor Patrol negotiated the terms and conditions included in the attached Agreement. The most significant terms and conditions include: • The Orange County Sheriff's Harbor Patrol will perform mooring management services in accordance with Exhibit A (Scope of Services) of the Agreement.
This Scope of Services is more detailed than past mooring management agreements. Some highlights of this revised scope are: O ○ Enforcement of NBMC as they relate to moorings, including issuing Notices of Violation and Administrative Citations as designee of the City's Harbor Resources Manger.
Assist the City in processing mooring permit revocations and participating in any appeal hearings.
Assist the City in identifying any live-aboard violations.
Establish a procedure for vessel holding tank (dye tablet) and y-valve closure inspection for guest mooring renters who may rent on a short or long term basis (greater than 30 days).
Continue a cooperative approach to dealing with the sea lion issues including relocating vessels and use of the water cannon.
The City will invoice and collect all Mooring Permit Fees over City and County Tidelands; 100% of the Mooring Permit Fees collected by the City for moorings over County Tidelands will be remitted to the County. County will be responsible for collecting all County Mooring Permit fees that are in arrears over 90 days.
Fees collected by the City for moorings over County Tidelands will be remitted to the County. County will be responsible for collecting all County Mooring Permit fees that are in arrears over 90 days.
The County will establish Guest Mooring Fees over County Tidelands, and the City will adopt these fees for City guest moorings in the City's fee schedule.
Approval of Mooring Contract with County June 22, 2010 • Page 3 The County will collect all Guest Mooring Fees over County and City Tidelands; 100% of the Guest Mooring Fees collected by the County for moorings on City Tidelands will be remitted to the City every quarter.
ENVIRONMENTAL REVIEW: The City Council's approval of this Agenda Item does not require environmental review.
PUBLIC NOTICE: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item).
FUNDING AVAILABILITY: This Agreement will commence on July 1, 2010. A Budget Amendment for 2009/10 is requested for $180,000 from Unappropriated Reserves (Tidelands) to account #23718080 (Professional and Technical Services).
Submitted by: стомил Chris Miller Harbor Resources Manager Attachments: 1. May 11, 2010 City Council Staff Report 2. Cooperative Agreement between County of Orange and City of Newport Beach for Mooring Management Approval of Mooring Contract with County June 22, 2010 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Page 4 Agenda Item No.
May 11, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Chris Miller, Harbor Resources Manager SUBJECT: Vendor Selection for Contract Negotiations for Mooring Management Services ISSUE: Should the City Council select a vendor and direct staff to negotiate a five-year contract to
sources Manager SUBJECT: Vendor Selection for Contract Negotiations for Mooring Management Services ISSUE: Should the City Council select a vendor and direct staff to negotiate a five-year contract to provide mooring management services in Newport Harbor?
RECOMMENDATION: Direct staff to negotiate a five-year contract with the Orange County Sheriff's Harbor Patrol to provide mooring management services.
DISCUSSION: Background The purpose of the Mooring Management Services Agreement is to establish and define the responsibilities of the City and a mooring management services provider in conjunction with the mooring of vessels over City Tidelands. Currently, the City permits approximately 1,229 public moorings (consisting of 439 onshore moorings and 790 offshore moorings) with the County permitting approximately 25 offshore moorings over County Tidelands. On February 21, 1989, the City and County entered into a Joint Powers Agreement for mooring management services by the Sheriff's Department Harbor Patrol, and this agreement was subsequently amended several times until it expired on December 31, 2008, when the rate was approximately $110,000 per year. In 2009, the agreement was extended through the calendar year at $110,000.
However, in mid 2009, the County submitted a proposal for a new five-year contract for $264,000 representing an increase of $154,000. Because of this significant increase in cost, and because the City had not explored the market for mooring management services, the City determined that it was appropriate to solicit proposals from both public and private entities. To allow time for a competitive proposal process, on January 12, 2010, the City Council authorized an interim agreement with the County for $24,166.67 (proposed rate in the table below, per
entities. To allow time for a competitive proposal process, on January 12, 2010, the City Council authorized an interim agreement with the County for $24,166.67 (proposed rate in the table below, per month) for four months.
Proposal Process and Analysis A Request for Proposals (RFP) was issued in October 2009 to seek the most cost-effective and efficient management option available. The RFP was sent to approximately five mooring Approval of Mooring Contract with County June 22, 2010 Page 5 vendors in Southern California and was posted on the City's website. In summary, the scope of services requested is as follows: 1. Near waterfront office, easily accessible by land/water.
2. Qualified office staff 8 hours a day, 7 days a week year round (as opposed to 24/7 service currently provided by Harbor Patrol).
3. Qualified on-the-water staff for at least 40 hours per week.
4. Administration and implementation of mooring rules per Title 17, as well as rules delineated by local practice.
5. Recommendations on mooring permit revocations.
6. Provision of public access to available moorings for guest use.
7. Weekly mooring inspections for compliance with seaworthiness, operability and nuisance requirements.
8. Written communications to permittees for biannual mooring overhaul.
9. Maintenance of the wait list.
10. Implementation of mooring transfers.
11. Updates to billing information. (Bills will still be generated through the City.)
12. Maintenance of an impound area for abandoned / found vessels.
13. Assistance to mooring permittees in maintaining safe vessel mooring during inclement weather.
14. Annual survey of mooring fees.
The deadline for submitting proposals was November 12, 2009. Prior to this deadline, the City
permittees in maintaining safe vessel mooring during inclement weather.
14. Annual survey of mooring fees.
The deadline for submitting proposals was November 12, 2009. Prior to this deadline, the City received six proposals. (This includes a proposal from the Harbor Patrol who was advised by County Counsel that they could not officially respond to the RFP. Rather, the Harbor Patrol could submit an offer to enter into a new Joint Powers Agreement.) A review committee was assembled to evaluate the proposals. They included: Chris Miller Shannon Levin Glen Everroad Evelyn Tseng Seanne Carney Don Lawrenz Megan Delaney Harbor Resources Manager Harbor Resources Supervisor Revenue Manager (Retired) Revenue Manager, Acting Fiscal Specialist (Billing) Harbor Commissioner Newport Mooring Association A cost summary of the six proposals is outlined below; however, cost was not the sole criterion for selection as background, experience and technical expertise were heavily weighted as well.
Contractor Yearly Rate 5 Year Rate BellPort Group $180,000 $900,000 Beauchamp Reality, Inc.
$237,296 $1,186,480 Vessel Assist $238,000 $1,190,000 Harbor Patrol $290,000 $1,450,000 Marina Business Associates $300,000 $1,500,000 Atlas Engineering $393,680* Adjusted for annual cost $1,741,520 Approval of Mooring Contract with County June 22, 2010 Page 6 (Note: All revenue generated from mooring rentals approximately $25,000 to $30,000 per year at current rates would be reimbursed to the City by the chosen contractor. These revenues are not reflected in the numbers above.)
On December 16, 2009, the review committee conducted oral interviews with the three most qualified contractors: BellPort Group, Harbor Patrol and Vessel Assist. On February 23, 2010,
numbers above.)
On December 16, 2009, the review committee conducted oral interviews with the three most qualified contractors: BellPort Group, Harbor Patrol and Vessel Assist. On February 23, 2010, Harbor Resources announced that staff intended to recommend to City Council that they approve an agreement with BellPort Group. Staff had found that BellPort Group was the most responsive to the City's RFP, and proposed the best price for the requested services. Staff was poised to finalize a mooring agreement by the end of April 2010 due to the budget impacts of continuing the interim agreement with the County.
On March 4, 2010, the Harbor Commission's Mooring Master Plan Subcommittee recommended that more time be given to the decision making process so the City Council and staff could evaluate the proposals with plenty of public input. The subcommittee favored the Harbor Patrol's ability to provide immediate 24 hour service as well as added security in the mooring fields. In addition, it was the general consensus at the Newport Mooring Association meeting on May 3, 2010 (attended by 100 people) that the Harbor Patrol was the better option for the same reasons as above.
On March 23, 2010, the Harbor Patrol provided an unsolicited letter to the City offering the following: 1. To reduce the current interim contract amount to $15,000/month for March through June for a total 6 month price of $108,333. (January and February billed at $24,166.67, March through June billed at $15,000. Current Harbor Resources budget has $110,000 for mooring services based on previous year's rates.)
2. To phase in the increase in costs for Harbor Patrol mooring management over five years: a. Year 1 - $180,000 b. Year 2 $207,500 c. Year 3 $235,000 d. Year 4 - $262,500 e. Year 5 $290,000
rates.)
2. To phase in the increase in costs for Harbor Patrol mooring management over five years: a. Year 1 - $180,000 b. Year 2 $207,500 c. Year 3 $235,000 d. Year 4 - $262,500 e. Year 5 $290,000 f. Total cost for 5 years, 24/7 service - $1,175,000 To be fair to the other two qualified bidders, the City issued a letter and asked if they would care to resubmit a proposal. In addition, the City asked that they also provide a separate proposal for 24 hour service so a direct comparison could be made to the existing and proposed Harbor Patrol's services.
Likewise, the City issued a letter to the Harbor Patrol and accepted their offer for the reduced rate for the interim services, and also requested a separate proposal for mooring management services 8 hours a day so a direct comparison could be made to the proposals submitted by the other private contractors. The deadline for responses from these three qualified vendors was April 23, 2010.
Responses to City's Request Approval of Mooring Contract with County June 22, 2010 Page 7 Vessel Assist was non-responsive.
BellPort Group responded that their previous proposal included 24 hour on-call service within a 90 minute time frame, but if 24 hour service were requested, it might be an additional $70,000 per year ($350,000 for 5 years). However, BellPort chose to not officially submit a separate bid because their research indicated many other mooring administrators in California did not offer 24 hour service, so it would be “both unnecessary and wasteful to taxpayers." BellPort will continue to honor their original proposal as outlined in the attachments. If the cost for 24 hour service were added to BellPort's proposal, the total cost over five years would be approximately $1,250,000.
ue to honor their original proposal as outlined in the attachments. If the cost for 24 hour service were added to BellPort's proposal, the total cost over five years would be approximately $1,250,000.
The Harbor Patrol responded that their original proposal was based on an activity cost (i.e. time it takes to perform a function) rather than based on having staff available 24/7. They stressed that moorings are rented on a 24 hour basis and that service is needed all day/night. They recommended the City increase the transient mooring rental rate to help bridge the gap in costs for services. Therefore, the Harbor Patrol did not offer a revised proposal for 8 hour service.
For Council's consideration, attached are the proposals and follow up correspondence from BellPort Group and Harbor Patrol.
Analysis The Harbor Patrol has extensive experience managing the City's moorings and they provide immediate round the clock service 7 days a week. Their facility is located at the entrance to the harbor, and is readily visible to visiting boaters. In addition, because they are a law enforcement agency, they provide security by closely monitoring the mooring fields and those boaters that rent moorings.
Bellport Group has an established on-the-water facility located on the Lido Peninsula which is near the end of the harbor and arguably less convenient to the visiting boater who may be unfamiliar with the harbor. BellPort has seasoned personnel, in-depth knowledge of Newport Harbor, and proven ability to manage boats through their marinas and shipyard.
The principal difference between the proposals from the Harbor Patrol and BellPort Group is the provision of immediate service 24/7 and the added security Harbor Patrol provides. Staff
s and shipyard.
The principal difference between the proposals from the Harbor Patrol and BellPort Group is the provision of immediate service 24/7 and the added security Harbor Patrol provides. Staff agrees that moorings are rented on a 24 hour basis, and having service at all hours is desirable to maintain a service-friendly harbor. In addition, mooring permittees often return from their weekend trips 'after hours' and sometimes find a renter on their mooring. If this happens, the Harbor Patrol responds quickly to relocate the renter to another vacant mooring and alleviates the problem. Also, security is another advantage that is an added benefit to the harbor.
Although the City's RFP did not request immediate service 24/7, input from mooring permittees indicates that this is a service they value and one on which they depend. Comparing the Harbor Patrol's revised proposal (including immediate service 24/7) with BellPort Group's proposal (without immediate service 24/7) shows that the cost of this service is approximately $55,000 per year or $275,000 over five years. Staff believes this is a reasonable cost, especially when the added harbor security and decades of experience of the Harbor Patrol are taken into consideration.
Approval of Mooring Contract with County June 22, 2010 Page 8 Staff notes that mooring management services benefit mooring permittees almost exclusively, rather than the general public. Therefore, we suggest that the full cost of mooring management be considered in the update of mooring permit fees.
Next Steps Following City Council's direction to negotiate the terms of the contract for mooring management, staff will enter into a two week negotiation period with the selected vendor.
permit fees.
Next Steps Following City Council's direction to negotiate the terms of the contract for mooring management, staff will enter into a two week negotiation period with the selected vendor.
Following the negotiation period, staff will return to the City Council in June for the final approval of the agreement and execution of the contract. The targeted start date for this contract will be July 1, 2010.
ALTERNATIVES: Direct staff to negotiate a three-year contract (three-year initial contract with one (1) optional two-year extension) with BellPort Group to provide mooring management services.
ENVIRONMENTAL REVIEW: This action is not subject to the California Environmental Quality Act ("CEQA”) because it is an administrative activity of the City and therefore not a “project” as defined by Section 15378 of the CEQA Guidelines.
PUBLIC NOTICE: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meetings at which the City Council considers the item).
Submitted by: Chris Miller Harbor Resources Manager Attachments: Harbor Patrol Proposal BellPort Group Proposal Agreement No. OCP10-010 Newport Harbor (Mooring Management) COOPERATIVE AGREEMENT BETWEEN COUNTY OF ORANGE AND CITY OF NEWPORT BEACH.
FOR MOORING MANAGEMENT SERVICES IN NEWPORT HARBOR THIS COOPERATIVE AGREEMENT ("Agreement"), dated 2010, is entered into by and between the County of Orange, a political subdivision of the State of California (hereinafter "County") and the City of Newport Beach, a California municipal corporation (hereinafter "City"). The County and City may individually be referred to herein as a "Party" or collectively as the "Parties."
RECITALS WHEREAS, since the early 1980's, City and County have entered into a series of
ity"). The County and City may individually be referred to herein as a "Party" or collectively as the "Parties."
RECITALS WHEREAS, since the early 1980's, City and County have entered into a series of agreements ("Joint Powers Agreements”) for Mooring Administration in Newport Harbor; and WHEREAS, the purpose of these agreements was to establish and define the obligations of City and County in conjunction with the anchorage and mooring of vessels on City and County tidelands in Newport Harbor (“Mooring Management Services” or “Services”); and WHEREAS, the most recent of these agreements, Agreement No. D89-035 entitled Joint Powers Agreement expired December 31, 2008; and WHEREAS, the Joint Powers Agreement has continued on a month-to-month holdover basis since its expiration; and WHEREAS, City issued a Request for Proposals ("RFP") in October 2009 to seek the most cost effective and efficient Mooring Management Services, for which County responded with an offer to enter a Joint Powers Agreement; and WHEREAS, it is in the mutual interest of City and County to continue to work cooperatively on the management of moorings on City and County tidelands in Newport Harbor; and WHEREAS, City and County both desire to continue to work cooperatively to identify service enhancements and efficiencies in the management of moorings in Newport Harbor; NOW, THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the Parties agree as follows: PRIOR AGREEMENTS 1.
City and County acknowledge that this Agreement replaces and supplants earlier agreements between the Parties related to mooring administration, including that certain Agreement No. D89-035 dated February 21, 1989, as amended, entitled Joint Powers
replaces and supplants earlier agreements between the Parties related to mooring administration, including that certain Agreement No. D89-035 dated February 21, 1989, as amended, entitled Joint Powers Agreement.
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TERM This Agreement shall remain in force and effect for five (5) years, commencing July 1, 2010 and ending June 30, 2015. This Agreement may be renewed for up to twenty (20) years, for periods of no more than five (5) years each, by mutual written agreement of the Parties. When considering renewal, the Parties agree to evaluate the Scope of Services, cost of providing services and any changes in mooring management that may be desired. If both Parties desire to renew this Agreement, they agree to begin review of the Scope of Services and Compensation one (1) year prior to the expiration date.
MOORING MANAGEMENT SERVICES County, through its Sheriff's Department, shall perform Mooring Management Services as outlined in Exhibit A Scope of Services, attached hereto and by reference made a part hereof. In addition to the Services identified in Exhibit A, City and County agree to work cooperatively to identify service enhancements and efficiencies in the management of moorings in Newport Harbor. The Parties acknowledge that City is revising its mooring transfer regulations, and the Parties agree to work together to develop a system to implement the new regulations. Any adjustment to compensation resulting from changes to mooring transfer regulations shall require an amendment to this Agreement.
FEES FOR ANNUAL MOORING PERMITS A. Establishment of Mooring Permit Fees. City shall establish Mooring Permit Fees for moorings over City and County tidelands in Newport Harbor in accordance with Title 17 of the Newport Beach Municipal Code.
lishment of Mooring Permit Fees. City shall establish Mooring Permit Fees for moorings over City and County tidelands in Newport Harbor in accordance with Title 17 of the Newport Beach Municipal Code.
B. Collection of Mooring Permit Fees. City shall collect all Mooring Permit Fees for moorings over City and County tidelands in Newport Harbor. County shall be responsible for collecting delinquent annual Mooring Permit Fees over County tidelands, which fees are more than ninety (90) days in arrears.
C. Disbursement of Mooring Permit Fees. City shall remit to County one hundred percent (100%) of the Mooring Permit Fees collected by City for moorings over County tidelands annually on or before March 31 of each year during the term hereof.
FEES FOR GUEST MOORINGS A. Establishment of Guest Mooring Fees. County shall establish fees for transient guest use of moorings over County tidelands in Newport Harbor as part of the OC Parks Fee Schedule. County shall recommend fees for transient guest use of moorings over City Tidelands in Newport Harbor as part of the OC Parks Fes Schedule.
City shall adopt fees for transient guest use of moorings over City Tidelands and include such fees in its adopted fee schedule.
B. Collection of Guest Mooring Fees. County shall collect all Guest Mooring Fees for moorings over City and County tidelands in Newport Harbor in accordance with County payment policies as identified in the County of Orange Accounting Manual.
2 6.
C. Disbursement of Guest Mooring Fees. County shall remit to City one hundred percent (100%) of the Guest Mooring Fees collected by County for moorings over City Tidelands quarterly in arrears, on or before the end of the month following each quarter
l remit to City one hundred percent (100%) of the Guest Mooring Fees collected by County for moorings over City Tidelands quarterly in arrears, on or before the end of the month following each quarter during the term hereof. However, County may deduct actual fees charged to County for payment via credit cards from card issuers.
COMPENSATION City shall pay County annually, July through June, in accordance with the following cost schedule. County shall invoice the City one-twelfth (1/12) of the applicable Mooring Management costs on a monthly basis. Invoices shall be issued on or before the first day of each service month. The payment due date shall be thirty (30) days after the beginning of each service month.
Fiscal Year Cost FY 2010-11 $180,000 FY 2011-12 $207,500 FY 2012-13 $235,000 FY 2013-14 $262,500 FY 2014-15 7.
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$290,000 The compensation amounts above do not include special analysis of mooring information that City may request of County. Additional costs for such analysis may be approved by the Parties' Project Managers (as defined in Section 7), and do not require an amendment to this Agreement, up to Three Thousand Dollars and no/100 ($3,000.00).
PROJECT MANAGERS City and County shall designate Project Managers, who shall coordinate all services provided under this Agreement and shall have the authority to act for City and County under this Agreement. City designates its Harbor Resources Manager as its Project Manager ("City Project Manager"), and County designates its Sheriff's Department Marine Operations Bureau Commander as its Project Manager ("County Project Manager").
INDEMNIFICATION A. County. Neither City nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by
ct Manager").
INDEMNIFICATION A. County. Neither City nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by County under or in connection with any work or activity under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, County shall fully indemnify and hold City harmless from any liability arising out of the performance of the Agreement or injury of such nature that it would be actionable if inflicted by a private person, (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by County under or in connection with any work or activity under this Agreement.
B. City. Neither County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by City under or in connection with any work or activity under this Agreement. It is 3 9.
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understood and agreed that, pursuant to Government Code Section 895.4, City shall fully indemnify and hold County harmless from any liability arising out of the performance of the agreement or injury of such nature that it would be actionable if inflicted by a private person (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by City under or in connection with any work or activity under this Agreement AMENDMENTS This Agreement is the sole and only agreement between the Parties regarding the subject matter hereof, and other agreements on this subject matter either oral or written are void. Any amendments to this Agreement shall be in writing and shall be properly
the Parties regarding the subject matter hereof, and other agreements on this subject matter either oral or written are void. Any amendments to this Agreement shall be in writing and shall be properly executed by both Parties and approved as to form by County's County Counsel and City's City Attorney.
TERMINATION Either Party may terminate this Agreement by notifying the other Party in writing not less than ninety (90) days prior to the desired date of termination. The Parties agree that any termination of this Agreement should be effective on the last day of any fiscal year, unless extenuating circumstances require a different date. Should termination of this Agreement occur at any date other than the last day of a fiscal year, the Parties agree that each Party shall remit to the other all fees and payments as provided in Paragraphs 4, 5 and 6, prorated for that portion of the year in which the Agreement remained in effect.
NOTICES Notices and correspondence in connection with this Agreement shall be addressed as set forth below or as either Party may hereinafter designate by written notice to the other. All notices, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided.
To County: To City: County of Orange OC Parks 13042 Old Myford Road Irvine, CA 92602-2304 Attn: Director OC Parks With a copy to: Orange County Sheriff's Department Marine Operations Bureau Attn: Lieutenant 1901 Bayside Drive Corona Del Mar, CA 92625 City of Newport Beach Attn: City Manager 3300 Newport Boulevard P.O. Box 1768 4 Newport Beach, CA 92658
Department Marine Operations Bureau Attn: Lieutenant 1901 Bayside Drive Corona Del Mar, CA 92625 City of Newport Beach Attn: City Manager 3300 Newport Boulevard P.O. Box 1768 4 Newport Beach, CA 92658 With a copy to: City of Newport Beach Attn: Harbor Resources Manager 829 Harbor Island Dr.
Newport Beach, CA 92660 12.
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SEVERABILITY If any portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
ATTORNEY'S FEES If any legal action is necessary to enforce any provision of this Agreement or for damages by reason for an alleged breach of any provisions of this Agreement, the Parties agree that attorney's fees shall not be recoverable by the prevailing party.
COUNTERPARTS This Agreement may be signed in counterparts, each of which shall constitute an original.
50 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the date and year first above written.
City APPROVED AS TO FORM OFFICE OF THE CITY ATTORNEY этийн David Hunt City Attorney For the City of Newport Beach Attest: City of Newport Beach, a California municipal corporation By: Keith Curry Mayor City Clerk Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. Sec. 25103, Resolution 79-1535 Attest: County County of Orange, a political subdivision of the State of California By: Chair of the Board of Supervisors Darlene J. Bloom Clerk of the Board of Supervisors Orange County, California APPROVED AS TO FORM: County Counsel Orange County, California By: Attachments: Exhibit A: Scope of Services 00 Exhibit A Scope of Services A.
Facilities and Equipment
rvisors Orange County, California APPROVED AS TO FORM: County Counsel Orange County, California By: Attachments: Exhibit A: Scope of Services 00 Exhibit A Scope of Services A.
Facilities and Equipment 1. Utilize Harbor Patrol's office located at 1901 Bayside Drive, Newport Beach, 92625.
2. Provide sufficient signage at Harbor Patrol's dock identifying it as a temporary public side tie for mooring rental check in.
3. Provide at least one vessel for mooring administration duties.
4. Provide auction location at Harbor Patrol's facility.
5. Maintain an impound area for abandoned, found, and impounded vessels including, but not limited to, Harbor Patrol facility and available City and County moorings.
B.
Staffing 1. Provide sufficient qualified and trained office staff 24/7 to provide administration and guest mooring check in.
2. Provide sufficient qualified field staff 24/7 for on-the-water public services including but not limited to on-the-water inspection, administration, and guest mooring check-in.
Required services may vary seasonally.
C.
Administration 1. Document current mooring locations and coordinate with City staff to record locations.
Create a visual mooring field mapping system.
2. Maintain mooring and permittee information, including information on the availability of moorings for transient guest rental, in a management database and establish a mailing system for inspections and auctions. Make information available to City electronically, to the extent allowed by County's computer protocols, or in other format if data cannot be provided electronically. If County is unable to provide City with data in a form that City can use for analysis, City may request that County perform the analysis, which may result in extra costs to City.
ided electronically. If County is unable to provide City with data in a form that City can use for analysis, City may request that County perform the analysis, which may result in extra costs to City.
3. Provide the City with updated billing information.
4. Maximize transient rental revenue and use by providing public access to available vacant moorings for guest use in accordance with established rules and procedures and Newport Beach Municipal Code ("NBMC") Title 17. Assist transient renters with safe vessel mooring as needed.
5. Assist City in the location of current owners of abandoned/found vessels on moorings. If vessel owner is not located, assist City with subsequent auction by processing lien sales and providing access to County approved contractors for the disposal of vessels not sold during lien sales. City shall be responsible for disposal fees.
6. Develop a Letter of Permission procedure for temporary mooring usage by a third party.
D.
Enforcement of Codes, Rules and Procedures 1. Enforce all provisions of NBMC Title 17 as they relate to moorings over City tidelands, as they may be amended from time to time, including issuing Notices of Violation with timelines for correction, issuing City Administrative Citations as designee of City's 7 E.
Harbor Resources Manager and communicating with City regarding City issuance of Administrative Citations.
2. Conduct investigation of code violations and recommend mooring permit revocation to the Harbor Resources Manager when code compliance cannot be achieved with Notices of Violation and Citations. Assist City in the processing of permit revocations by participating in any appeal hearings, and impounding vessels and assisting with lien sale if vessels are not removed by permittees.
nd Citations. Assist City in the processing of permit revocations by participating in any appeal hearings, and impounding vessels and assisting with lien sale if vessels are not removed by permittees.
3. Implement mooring transfers per applicable sections of the Municipal Code and established local procedures and forms.
4. Manage the mooring area permits issued to the Yacht Clubs per the requirements of the Municipal Code.
5. Assist City in identifying violations of live-aboard provisions.
6. Ensure that the rules and procedures issued by the City's Harbor Resources Manager (Attachment 1), as may be amended from time to time, are followed.
7. Report water quality violations to City and/or appropriate agency.
8. Enforce all provisions of Division 2 of Title 2 of the Orange County Codified Ordinances ("Harbor”) and the "Marine" section of the Orange County Parks Fee Schedule adopted by resolution of the Orange County Board of Supervisors as those provisions relate to moorings over both City and County Tidelands.
Inspections 1. Establish routine weekly inspection services to properly monitor mooring equipment and mooring availability per the attached mooring regulations and specifications.
2. Maintain the mailing list and timing for mooring inspections and overhauls which occur every two years. Ensure these inspections and overhauls are completed. Provide written notification of permittee's failure to comply with inspection and overhaul requirements.
3. Provide weekly inspection services of the vessels on the moorings as to their compliance with seaworthiness, operability and nuisance requirements.
4. Provide weekly inspection of all on-shore moorings throughout the harbor including West
the vessels on the moorings as to their compliance with seaworthiness, operability and nuisance requirements.
4. Provide weekly inspection of all on-shore moorings throughout the harbor including West Newport (Newport Island area). Identify grounded and derelict vessels registered to onshore moorings.
5. Establish a procedure for vessel holding tank (dye tablet) and y-valve closure inspection for guest mooring renters who may rent on a short or long term basis (greater than thirty (30) days).
6. Continue the cooperative approach to dealing with the sea lion issues throughout the year, primarily between May to October. This includes communicating with the City's Harbor Resources Division as to which vessels have sea lion use, as well as assisting the City with advisory calls to mooring permittees whose vessels have sea lion use.
Upon request of the Harbor Resources Manager or for vessels at risk from sea lion use, take immediate action including use of water cannon, relocation of vessel, etc., as appropriate.
F.
Services to Mooring Permittees 1. Provide towing services associated with impound, storage and hazardous material mitigation issues.
2. Provide information related to safe and proper mooring position to the local mooring service contractors.
8 3. Provide emergency response to the mooring fields to mitigate dangerous situations in inclement weather.
4. Weather permitting, provide call-ahead service for returning permittees to meet them at their mooring if it has been rented to a transient guest.
0 1.
Attachment 1 Mooring Regulations June 2010 All mooring permittees must provide up-to-date telephone numbers and addresses to the Harbor Patrol.
2.
If a mooring is unoccupied, it may be temporarily assigned as a mooring for guest
ions June 2010 All mooring permittees must provide up-to-date telephone numbers and addresses to the Harbor Patrol.
2.
If a mooring is unoccupied, it may be temporarily assigned as a mooring for guest vessels by the Marine Operations Bureau Commander.
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Vessels on moorings must be registered to the mooring permittee and assigned to the mooring permit by the Marine Operations Bureau Commander.
It is illegal to rent a mooring to anyone. Mooring permittees may loan their moorings to another party only with a letter of permission, submitted prior to the loan vessel going on the mooring, and approved by the Marine Operations Bureau Commander per Newport Beach Municipal Code Section 17.25.020(L). A mooring may be loaned to a party other than the permittee for no more than thirty (30) days in any one hundred eighty (180) day period.
Only one boat is allowed on a mooring at any one time with the exception of a tender as described in Newport Beach Municipal Code Title 17.
6.
Spreader lines must be adequately marked and buoyed at all times.
7.
Living aboard a vessel on a mooring, without a City live aboard permit, is a violation of the Newport Beach Municipal Code.
8.
All offshore mooring buoys and onshore mooring posts must be painted white with the mooring number painted in black, 3" block letters, clearly visible.
9.
Mooring pendants must be kept in good condition at all times.
10.
Boats over 18' in overall length are not allowed on onshore moorings.
11.
No boats with a fixed keel, fixed rudder, or fixed underwater propulsion apparatus or gear are allowed on onshore moorings.
12.
Offshore moorings have been rated for a maximum size and cannot be decreased.
10 Off-shore Mooring Specifications 1. All mooring weights must be metal.
tus or gear are allowed on onshore moorings.
12.
Offshore moorings have been rated for a maximum size and cannot be decreased.
10 Off-shore Mooring Specifications 1. All mooring weights must be metal.
2. All mooring buoys shall be of such type as approved by the City's Harbor Resources Manager, painted in compliance with State regulations, with numbers assigned by the Mooring Manager and painted per the requirements described in the Municipal Code.
3. All vessels must be moored fore and aft except in exposed areas designated as single point areas.
4. All mooring locations must be allocated by the Harbor Resources Manager and all moorings must be inspected before installation.
5. Top and bottom chain must be shackled together to form one continuous length.
Material other than chain may be used only upon approval of the Harbor Resources Manager.
6. The length of chain is to be determined by the Harbor Resources Manager or his designee and is governed by the depth of water in various mooring areas.
7. Minimum Requirements: Length of boat weight of mooring size of bottom chain size of top chain 20 feet 25 500 pounds 650 1/2 inch ½ 1/2 inch ½ 30 750 ½ א ½ 35 1000 5/8 ½ 40 1500 5/8 ½ 45 2000 3/4 الله 엉어엉 50 2000 3/4 ½ 55 2500 3/4 60 3000 3/4 ½ 65 3000 1 ½ 70 3500 1 5/8 75 3500 5/8 80 4000 ㄡˇ 3/4 85 4500 1 3/4 90 5000 1 3/4 95 5000 1 3/4 11 On-shore Mooring Specifications 1. All mooring weights shall be metal.
2. A 4 inch by 4 inch redwood post, painted white, and with numbers assigned painted thereon at all times shall be placed against the seawall and project not more than 12 inches above the sand.
3. As an alternative to a post, on-shore moorings may connect directly to the seawall with an eyebolt.
all times shall be placed against the seawall and project not more than 12 inches above the sand.
3. As an alternative to a post, on-shore moorings may connect directly to the seawall with an eyebolt.
4. Buoy and post / eyebolt shall have a pulley attached with a line of not less than 3/8 inch diameter at all times. Vessel is to be moored securely thereto, bow and stern and must not be left on the beach.
5. Mooring buoy shall be metal or of such type as approved by the Harbor Resources Manager, painted in compliance with State regulations, with numbers assigned by the Mooring Manager and painted per the requirements described in the Municipal Code.
6. Minimum requirements: Length of Boat Weight of Mooring Size of Chain Length of Chain 12 feet 200 pounds 3/8 inches 25 feet 15 feet 250 pounds 3/8 inches 25 feet 18 feet 300 pounds 3/8 inches 25 feet 12 Procedures for Mooring Transfers Whenever a person wishes to cancel his/her mooring permit and have it issued to another person, it is permissible to do so under the following conditions: 1. The mooring equipment and the vessel currently assigned to that mooring must be sold to the same person.
2. The mooring permit can only be put in one (1) person's name. The permit cannot be put into a company name.
3. The seller must provide the buyer with two neatly written or typed letters. The first letter is for cancellation of his/her mooring permit and issuance to the new permittee.
The second letter is a bill of sale, not the bill of sale form provided by the Department of Motor Vehicles. Below are samples of the two letters which must be notarized.
4. The new permittee must re-register the vessel in his/her name with the Department of Motor Vehicles prior to the transfer. The name on the registration must be the same as
which must be notarized.
4. The new permittee must re-register the vessel in his/her name with the Department of Motor Vehicles prior to the transfer. The name on the registration must be the same as will be on the permit.
5. A fee of $1.20 per foot of vessel length for offshore moorings and $0.60 per foot for onshore moorings is charged for the transfer, due and payable at the time of transfer.
6. Anyone wishing to transfer a mooring must make an appointment with the Harbor Patrol by calling (949) 723-1002.
Sample Cancellation Letter for a Mooring Transfer I wish to cancel my mooring permit (Mooring #_ permittee's name).
Previous Mooring Permittee's Signature: Date: _), and have it re-issued to (new Sample Bill of Sale for Mooring Transfer I have sold my vessel, (description: size, type, CF or Documentation numbers), along with mooring equipment on (Mooring#_ to (new permittee's full name).
Previous Mooring Permittee's Signature: Date: 13 L X City of Newport Beach BUDGET AMENDMENT ECT ON BUDGETARY FUND BALANCE: 2009-10 Increase Revenue Estimates Increase Transfer Expenditure Appropriations AND Budget Appropriations NO. BA10BA-055 AMOUNT: $180,000.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations from unappropriated Tidelands fund balance for a cooperative agreement with the County of Orange for morring management in Newport Harbor for five years.
ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account 230 3605 Description Tidelands Fund Balance Debit $180,000.00 Credit *
y of Orange for morring management in Newport Harbor for five years.
ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account 230 3605 Description Tidelands Fund Balance Debit $180,000.00 Credit * REVENUE ESTIMATES (3601) Fund/Division Account Description EXPENDITURE APPROPRIATIONS (3603) Description Division Number 2371 Harbor Resources - Tidelands Account Number 8080 Services, Professional & Technical $180,000.00 Division Number Account Number Division Number Account Number Signed: SR Signed: Насит сател -Jacy mcc Financial Approval: Administrative Services Director Administrative Approval: City Manager Signed: City Council Approval: City Clerk * Automatic System Entry.
6.16.10 Date Date Date 202 STATUTES OF 1978 [Ch. 74 circumstances causing the violation, the Attorney General shall bring an action in the Superior Court in the County of Orange to declare that the grant under which the city holds such tidelands and submerged lands is revoked for gross and willful violation of the provisions of this act or any other provision of law or to compel compliance with the requirements of this act and any other provision of law.
Gmail - Urgent Action Requested: End 5,000% Socioeconomi...
1 of 8 M Gmail Hein Online < Urgent Action Requested: End 5,000% Socioeconomic Rate Disparity in Newport Harbor Enforce 1:1 Dock to Mooring Rate Ratio 10 messages Hein Online Thu, Oct 16, 2025 at 2:39 PM
@slc.ca.gov, Bcc: Anne Stenton < Brandon >, George Hylkema Mike Fleming >, Jennifer Krestan Wade Womack >, Samantha McDonald Jim Mosher Michael "Dr. Richard A. Navarro" >, Christopher >, Jim Palmer >, Nathan Coleman FEA CFD Design Services >, Leonard Grech Pat and Bud C < >, "barbragriffith sclfinance. com" >, Coeli Hylkema "L. Scott Karlin" October 16, 2025 California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 Attn: Honorable Lt. Governor Eleni Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff RE: Request for Enforcement of Fair Rate Ratio in Newport Harbor -
00-South Sacramento, CA 95825 Attn: Honorable Lt. Governor Eleni Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff RE: Request for Enforcement of Fair Rate Ratio in Newport Harbor Dock to Mooring Rate Ratio of 1:1 Dear Honorable Lt. Governor Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff, My name is Hein Austin, and I am writing to formally advocate for the adoption and enforcement of a Dock to Mooring Rate Ratio of 1:1 on the Tidelands in Newport Harbor.
As shown in the attached image (see Attachment A), the docks in question are connected to a public walkway that separates the Tidelands from adjacent upland properties. Importantly, these upland parcels do not abut the Tidelands and therefore do not possess any special or littoral rights. Their proximity does not confer any exclusive privilege or priority access to these public lands.
10/31/25, 9:48 AM Gmail - Urgent Action Requested: End 5,000% Socioeconomi...
This matter is not simply about proximity, but about equity and consistency. Docks and moorings serve identical functions and should be treated as such under the law. Both are: 2 of 8 • Used for recreational boating • Installed and maintained by the permittee • Used to store personal vessels • Occupying the same public water space • • Pay rent for their placement over these public waters Docks have amenities, and are easy to access, while moorings are primitive, with no amenities, and are difficult to access, suggesting that Moorings should pay less than Docks, per square foot.
However, there is currently an alarming discrepancy in the valuation and rate methodology applied. While dock rates (Docks + boats) are calculated at approximately $0.17 per square
s, per square foot.
However, there is currently an alarming discrepancy in the valuation and rate methodology applied. While dock rates (Docks + boats) are calculated at approximately $0.17 per square foot in Newport, the City has adopted a linear-foot-based methodology for moorings, and proposes an effective rate of approximately $8.00 per square foot a nearly 5,000% disparity, or a Dock to Mooring Rate Ratio of ~ 1:47. (see Rate Table in Attachment B) This gross inequity cannot be reconciled with the Granting Statute, which clearly prohibits "discrimination in rates, tolls, and charges for any use of the Tidelands." (See CA Granting Statute) While I understand that the State Lands Commission does not directly set rates imposed by local Trustees, I also understand that the Commission bears the legal and ethical responsibility to ensure that rate structures between identical users remain fair, reasonable, and consistent with the Public Trust Doctrine.
To that end, I respectfully request that Staff and the Commission: 1. Recognize Docks and Moorings as “like for like” uses, and therefore subject to the same valuation principles, applied simultaneously and comprehensively; 2. Recommend the elimination of the current inequitable, and misleading, linear-footrate methodology applied to only moorings in Newport Harbor; 3. Enforce a Dock to Mooring Rate Ratio of 1:1, using the same square-foot-rate methodology consistently across all user types in the Harbor.
This long-standing rate disparity is more than just an accounting issue; it is a matter of fairness, legal compliance, principle, and public trust. The undeniable Truth is water is water -whether under a dock or a boat-and it should be valued equally when used in the same
it is a matter of fairness, legal compliance, principle, and public trust. The undeniable Truth is water is water -whether under a dock or a boat-and it should be valued equally when used in the same manner. Affluent Dock owners and Lower income, working class, Mooring Holders should all pay one and the same rate per square foot.
Thank you for your attention and consideration. I trust the Commission will take appropriate steps to address and resolve this glaring socioeconomic inequity in the spirit of fair and lawful stewardship of our public Tidelands.
Respectfully, Hein Austin 10/31/25, 9:48 AM Gmail - Urgent Action Requested: End 5,000% Socioeconomi...
3 of 8 Enclosure and Footnotes (using rounded numbers): Attachment A - Image of Public Walkway, Docks, and Moorings Attachment B - Mooring Rental Rates/Linear Foot Table (showing Increase Proposal) Shore Rate increases will transition from the current CPI Rate increase system to the Balboa Yacht Basin Marina Slip Rate Increase System (BYB), where Moorings will experience extreme rate increases each year, and rates will go up from the current $29/m ($356/yr), for a shore mooring, to $138.72/m by 2030, or $1664.64/yr ($1664.64/198sqf = $8.4/sqf) (Dock Rates on the other hand will continue to go up in significantly smaller increments, and according to the Consumer Price Index of 2-3%/yr) Tying Mooring Rates increases to the Slip rates at the BYB will further increase the 5000% disparity between the Affluent Dock owners and the Lower income Mooring Holders.
Attachment C - Dock: City's GIS Website showing the Dock pays $692/yr for 1,193 sqf.
YB will further increase the 5000% disparity between the Affluent Dock owners and the Lower income Mooring Holders.
Attachment C - Dock: City's GIS Website showing the Dock pays $692/yr for 1,193 sqf.
Owner pays for Dock structure only, boats not included. An Online Map Calculator shows that if Boats are included the total footprint over the Tideland the actual Dock footprint multiple boats.
= $8/17c 47 (Dock to Mooring Rate Ratio is 1:47) The mooring pays 47x more than the Dock per square foot on the same water.
The CA Granting Statutes of 1978 CA Granting Statute FREE SQUARE FOOT BASED ONLINE Map Calculators, and The Newport Beach Harbor DOCK Permits GIS Website: 1. Official Orange County Online Map Calculator 2. FREE MAP TOOLS Online Map Calculator 3. Newport Harbor GIS MAPS AND Dock Permits (see Harbor Layers and Residentail Pier Permits).
4 attachments 10/31/25, 9:48 AM From: Sent on: To: Darrik Burns Saturday, November 1, 2025 8:18:41 PM Subject: Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email [Some people who received this message don't often get email from https://aka.ms/Learn AboutSenderIdentification ] Attention: This email originated from outside of SLC and should be treated with extra caution.
Learn why this is important at Dear Executive Officer Dumlao and SLC Staff, Newport Beach and the mooring field represent something special to many of us: access to a sliver of paradise that we can't afford to see out of our front windows. For outdoorsmen like myself, Newport Beach is amazing because of its
eld represent something special to many of us: access to a sliver of paradise that we can't afford to see out of our front windows. For outdoorsmen like myself, Newport Beach is amazing because of its beautiful nature, but more importantly its accessibility. In particular, the mooring field offered my friend and I a unique opportunity to venture out into deeper waters by having a reasonably priced place to keep his boat. For people like us, the mooring fields are a godsend ― an opportunity to pull anchor and truly explore places usually reserved for the wealthy. I have fond memories of the first day we set sail and passed the jetty. What was once a symbolic "boundary" everyday folks are allowed to fish within faded on the horizon as we fished deeper waters we so often saw yachts tear across. For people like us, the mooring fields, jetty, and piers are more than structures: they are a ticket to adventure the paradise we often see through mansion gates along our coast.
Thank you for your time, Darrik Burns From: Sent on: To: Subject: Zac Dietrich Friday, October 31, 2025 10:22:41 PM Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Executive Officer Dumlao and SLC Staff, I wanted to email in support of the Newport mooring association along with providing some insight on my experiences with the people in the mooring community and thoughts on the draft report.
LC Staff, I wanted to email in support of the Newport mooring association along with providing some insight on my experiences with the people in the mooring community and thoughts on the draft report.
I started sailing with Michael, Sam, and other members of the community several years ago when we lived nearby in student housing at UC Irvine. At the time, I had an interest to start sailing, but thought it was too expensive for young professionals. Though after adventures to Catalina with members of the mooring community, I realized that there were affordable ways to get out on the water. This culminated in me acquiring a sailboat this year and being able to find a slip to keep it in at San Pedro. The guidance I've received from them has been invaluable to me in learning to sail within average financial means.
That brings me to the few comments I had on the draft report: 1. Addressing the price difference in moorings compared to docks: I was surprised to see the price difference in docks vs moorings in draft report. While I was recently looking for a slip, the moorings in San Diego and San Pedro were about 1/3rd the cost of a slip (only one place in San Pedro has moorings though). Seeing that price difference flipped in Newport Bay therefore stood out as odd, especially considering that moorings are inherently less convenient than docks for accessing vessels. For similar boat lengths, this is the only location I've ever seen where moorings are more expensive than docks.
N1 2. The need for an independent assessor: After noting the price discrepancy, it seems that a good recommendation would be N2 for the city to hire a truly independent assessor that is located outside Southern California. The City's previous assessor
oting the price discrepancy, it seems that a good recommendation would be N2 for the city to hire a truly independent assessor that is located outside Southern California. The City's previous assessor seems to be based near Newport Beach, so providing guidance for something that would impact real estate values in the area could lend itself to unconscious bias in price determinations. Even moreso if the City's assessor has clients or acquaintances that own real estate in Newport Bay.
3. An equitable solution to mooring transfers: Admittedly this one is difficult as the demand / value on moorings has significantly increased, which prices out many potential boaters from the initial cost of a mooring. Based on the precedent from other mooring locations in California and fairness to current residents, I think that keeping the current transfer system in place for the time being is the best solution. In the future though, the SLC could work with current mooring owners and cities to come up with a more equitable solution for allotment, possibly based on a waiting list or weighted lottery similar to how CDFW does drawings for hunting tags. However, it would be imperative to compensate current owners for any changes in the transfer process.
Thanks for all the work you do in keeping the coast assessable to all Californians, and I appreciate your consideration.
N3 Dear Executive Officer Dumlao and SLC Staff, I respectfully ask SLC staff to revisit the Newport Tidelands Draft report in its entirety based on updated information provided to staff over recent weeks. This draft report suggests policy changes that would have major adverse effects on equitable treatment of tidelands users both in Newport Beach and throughout the state.
ed to staff over recent weeks. This draft report suggests policy changes that would have major adverse effects on equitable treatment of tidelands users both in Newport Beach and throughout the state.
As a long time coastal activist, I have been following this issue for some time now, and it seems that much of it comes down to the wealthy residents of Newport Beach attempting to eliminate any type of public land uses by anyone but themselves. Unfortunately, they seem to have the support of the City and the Harbor Commission. Public meetings held by these two entities involving the mooring association and liveaboards provide a very clear picture of how this City operates. Perhaps a better word to describe this City and its commissions is fiefdom.
There exists an extreme wealth discrimination on almost every front in this City, but this issue spotlights some of the City's worst behavior. Based on one of the two attached documents it would appear that the wealthy residents of Newport Beach have the ear of the Newport Beach City Council and the Harbor Commission. Their message is loud and clear: Get rid of liveaboards!
Attached is another document from Benjamin Johnson, SLC counsel, to the City's Real Property and Asset Administrator. One can only speculate as to why counsel felt it was so important to alert City staff to the multiple PRAs they had received related to the appraisal work done by the City related to this controversial issue you are reviewing. Counsel states, "to make sure everyone is on the same page," but it seems rather obvious that this is not a concern when it comes to the involvement of the Newport Mooring Association or the liveaboard community. EO Dumlao, I
sure everyone is on the same page," but it seems rather obvious that this is not a concern when it comes to the involvement of the Newport Mooring Association or the liveaboard community. EO Dumlao, I encourage you and your Commission to inquire with staff as to the what exactly their intention was in alerting the City to the PRAS. The Public Records Act (PRA) is in place so that everyone is able to have the same information for review and consideration when an agency or municipality is unwilling to openly share this information. It is in place to ensure transparency and informed citizenship. Has this been a fair and equitable process? Is everyone entitled to the use of our public tidelands being treated fairly? Does everyone have access to the same information?
Also, please keep in mind that liveaboards comprise some of the only affordable housing in this wealthy community. Affordable housing is a cry that is heard out of Sacramento all the time and it reverberates to our coast constantly. However, the City of Newport Beach and SLC don't seem interested in exploring affordable housing as an important element for discussion. Instead there is an underlying attitude that eviction of the liveaboards from this harbor would be more appropriate, and that higher rates for the mooring community that would force them out of the harbor would be more appropriate.
This is not just speculation after all of the public hearings on these issues and the back and forth with SLC staff and Coastal Commission staff. Discrimination is not acceptable and our laws and statutes support this through a variety of policies that appear to be absent from this review. So please, examine how all of this has happened and change your course as you consider the following comments.
01 02 22
rt this through a variety of policies that appear to be absent from this review. So please, examine how all of this has happened and change your course as you consider the following comments.
01 02 22 1. Historical and Existing Rate Discrimination: The draft SLC staff report on Newport Tidelands does not adequately address the existing extraordinary rate discrimination in Newport Harbor, which is strictly prohibited in the granting statute as well as current State policy. A simple evaluation of existing rates charged per square foot of impact area of boats using moorings vs. boats using piers proves beyond a shadow of a doubt that mooring permit boaters are charged far more (up to 20 times more) than pier permit boaters.
This extreme rate discrimination has occurred for more than a decade. (Please see the NMA Website "SLC Draft Report" page for more information.)
I respectfully ask SLC Staff to recommend that the City address the EXISTING rate discrimination and to refrain from further actions that increase financial harm to mooring permittees.
Please recommend to the City that they use the same square foot methodology for both self-maintained moorings as they do for self-maintained piers.
2.Unreasonable Attack on Legal Mooring Transfers: According to materials obtained by the Newport Mooring Association and stakeholders through public records requests, City staff and advisors appear to have been discussing changes to mooring transferability with State Lands Commission staff over the past two years. Frequently cited as justification for ending the longstanding mooring permit transfer program is an outdated 2006-07 Civilian Grand Jury Report. This is referenced despite the fact that the concerns raised in that report
justification for ending the longstanding mooring permit transfer program is an outdated 2006-07 Civilian Grand Jury Report. This is referenced despite the fact that the concerns raised in that report were subsequently addressed through years of Harbor Commission and City Council deliberations.
Those public processes produced numerous improvements and community benefits, including: 1. Mooring permit holders agreeing to pay a significant increase in permit transfer fees with significant revenues going into the tidelands fund for public benefit 2. Mooring permit holders agreed to make their privately owned and maintained mooring tackle available for general public use via the City run mooring sublet program, with all rents going to the tidelands fund for further public benefit.
3. Mooring holders agreed to not transfer any mooring permit within the first 12 months of acquiring one to avoid any appearance of "flipping" mooring permits.
4. Members of the public being limited to holding two mooring permits Is Staff asking for a major policy change affecting users of tidelands and State lands throughout the State, without a major study or analysis?
Mooring permits have been transferable for nearly a hundred years. Other permits for the use of tidelands and State lands historically have been, and remain, transferable. Both Staff and the Commission are well aware of these facts, yet the Staff report suggests ending the right to transfer a mooring permit in Newport Beach and treating working class mooring permit holders differently than what is allowed in other harbors throughout the state. Other tidelands permits remain transferable both in this harbor and others: 1. Mooring permits are lawfully transferable up and down the coast of California, including in
harbors throughout the state. Other tidelands permits remain transferable both in this harbor and others: 1. Mooring permits are lawfully transferable up and down the coast of California, including in Avalon, Morro Bay, and Monterey. Slip transfers are allowed in Santa Barbara. Permits for the use of other State lands are also transferable in many cases. Why single out working class people with boats on moorings in Newport Beach? This appears to be an inequitable and politically motivated policy change with major implications.
2. Transferability was not a concern when extreme rate increases were initially proposed in January 2024. In fact, in May of 2023 The City Attorney and City Harbormaster both assured mooring permit holders that permits would remain transferable "in perpetuity."
3. Mooring permit holders have relied on past practice, mitigation factors, extremely high fees paid to the City for the right to transfer, and legal opinions expressed in public by the City attorney when lawfully acquiring mooring permits associated with privately maintained mooring tackle under mandated City policy 4. The City's proposal to eliminate permit transferability affects only one category of Tidelands Permit holders-majority lower income, non-resident mooring permittees. Within Newport Harbor, other permit holders of tidelands are allowed to transfer their permits, including for tidelands in front of homes with docks, marina owners, restaurants, etc.
I respectfully ask SLC Staff to acknowledge the facts above and remove from their draft that the transfer of mooring permits is in conflict with state laws or regulations, especially given that SLC Staff have not made this recommendation to other harbors who engage in the same practice.
that the transfer of mooring permits is in conflict with state laws or regulations, especially given that SLC Staff have not made this recommendation to other harbors who engage in the same practice.
3. Legal Guidance and Common Sense do not align with the City's proposed “taking” of mooring permits: Reputable law firm Palmieri, Hennessey, and Leifer (PHL) wrote a letter to the City dated July 9, 2024 regarding the City's plan to convert all mooring permits into licenses [without compensating mooring holders] stating that "The City's plan institutes a taking. More specifically, it is an uncompensated taking not in compliance with the Eminent Domain law or the United States and California Constitutions.....the City intends to increase the mooring rates despite the taking of the mooring permittees' personal property [and legally obtained permit]. This scenario therefore presents a textbook case of an unconstitutional taking pursuant to the Fifth and Fourteenth Amendments' due process clauses as well as the Fifth Amendment's taking clause [“nor shall private property be taken for public use without just compensation"].)" City of Newport Beach. City Council. (2024, July 9). Objections to City's Proposed Actions Regarding Mooring Rates [Letter to City Council]. Retrieved from [URL] p 367-410.
Given these facts and concerns, I respectfully ask SLC Staff to advise the City of Newport Beach not to remove or adversely impact transferability of existing mooring permits while they will continue to allow transferability of other permits in the Harbor.
4. SLC Staff's reliance on a highly controversial and problematic December 2023 mooring rate appraisal: It appears SLC Staff has performed only an informal review of the December 2023 mooring rate
or.
4. SLC Staff's reliance on a highly controversial and problematic December 2023 mooring rate appraisal: It appears SLC Staff has performed only an informal review of the December 2023 mooring rate appraisal that attempts to peg self-maintained mooring rates as a ratio of full service marina slip rates. SLC staff have not provided any formal appraisal review document. The December 2023 Mooring Rate appraisal has been highly controversial because: 1. The appraisal relies on a mooring-to-slip ratio that the appraiser himself stated was "unreliable" in his previous 2016 appraisal.
2. Documentation has been provided to SLC Staff that appears to strongly suggest City officials identified the assigned appraiser well prior to the City even sending out an RFP (bid request) for the mooring appraisal project. The same documentation (City emails) suggest that the appraiser was possibly influenced or steered by City officials in advance of, and during the appraisal. (Please see the NMA website for more information) 3. Unlike other harbors looked at in the report, Newport Beach does not provide access to the moorings. However, the appraisal report did not deduct the cost of obtaining in-water dinghy dock space, which in addition to other reasons, gives the report the appearance of treating mooring holders unfairly. The lack of shoreside access to offshore moorings in Newport is a significant factor that must be accounted (factored in) for in any reliable mooring appraisal.
4. The Newport Mooring Association has provided a thorough appraisal prepared by CBRE, a global leader in commercial real estate appraisals, who confirmed that existing rates were already at fair market in late 2023, and which took into account the lack of access and the cost of obtaining access to moorings.
mercial real estate appraisals, who confirmed that existing rates were already at fair market in late 2023, and which took into account the lack of access and the cost of obtaining access to moorings.
I respectfully ask SLC Staff to no longer deem the City's December 2023 appraisal as reliable given these circumstances and given the major difference between the two appraisals. Please advise the City to order a truly independent appraisal that uses the same methods for the use of tidelands for moorings, homeowner docks, restaurant docks and other uses on Newport Harbor.
5. Lack of Transparency in development of License Conversion (City's Alternative Recommendations): The public was informed of the Harbor Commission's proposal to increase mooring rates up to 500% in January of 2024. From January of 2024 to July of 2024, the public endeavored to engage in the democratic process regarding rate increases that would only compound the already existing rate discrimination. Over the busy 4th of July weekend in 2024, the City unveiled last minute "Alternative Recommendations" that would not only raise rates by up to 500%+, but in addition, would take mooring permits from individuals and convert them into short-term, “City-owned" and managed assets.
1. The City's abrupt pivot—from more than six months of dialogue on fair mooring rates to a proposal resembling mooring confiscation, introduced with less than one business day's notice-appears to advance an agenda of pricing working class boaters out of the harbor.
2. The last minute plan had no analysis or data to show that it would better provide or enhance coastal access. On the contrary, it would transition access away from those who presently have it.
rbor.
2. The last minute plan had no analysis or data to show that it would better provide or enhance coastal access. On the contrary, it would transition access away from those who presently have it.
I respectfully ask SLC Staff to recognize that the City failed to act transparently in its role as trustee of the State's tidelands, and has engaged in discriminatory Tidelands management.
I respectfully ask that the City be required to start over on any changes to the mooring permit system and properly engage the public in a transparent process that is equitable and fair to all tidelands users.
Thank you, Renny Edia Penny Elia Coastal Activist Submitted October 31, 2025 Attached: September 2, 2025 Email on Liveaboards April 26, 2024 Email from Benjamin Johnson, SLC Attorney to Lauren Wooding, City of Newport Beach Real Property and Asset Administrator From: To: Cc: Subject: Date: Attachments: Johnson, Benjamin@SLC Wooding, Lauren Boggiano, Reid@SLC Newport Beach Mooring Rate PRA response April 26, 2024 3:09:22 PM 0092.Fair Market Rent Offshore Moorings Netzer 2023 Appraisal Comments and Questions FINAL.pdf.PDF [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Hi Lauren, I wanted to let you know that State Lands Commission staff provided documents in response to several Public Records Act requests today for documents related to the Mooring Rate increase. One document that was sent was a memorandum documenting SLC staff questions and comments on the appraisal that arose during review of the Netzer appraisal. For context, this memo documents questions and comments that staff had on the appraisal during its review but is not a final staff opinion or position. Staff's letter to the City contained its final
. For context, this memo documents questions and comments that staff had on the appraisal during its review but is not a final staff opinion or position. Staff's letter to the City contained its final position.
To make sure everyone is on the same page, I've attached a copy of that memorandum. If you would like all of the documents that were provided in response to the PRA requests please let me know.
Sincerely, Ben Benjamin Johnson (he/him) Attorney CALIFORNIA STATE LANDS COMMISSION PRIVILEGE AND CONFIDENTIALITY NOTICE. This message and its contents, together with any attachments, are intended only for the use of the individual to whom or entity to which it is addressed and may contain information that is legally privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this communication and any attachments or other use of a transmission received in error is strictly prohibited. If you have received this transmission in error, please notify me immediately at the above telephone number or return the email and delete this message, along with any attachments, from your computer. Thank you.
From: Tom LeBeau To: Cc: Subject: Date: Beer, Ira; Marston, Marie; Scully, Steve; Miller, Robert; Svrcek, Rudy; Williams, Gary; Yahn, Don Blank, Paul; Harp, Aaron FW: Short Term now long term live-aboard.
September 02, 2025 11:04:51 AM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Report phish using the Phish Alert Button above.
Honorable Harbor Commissioners, This email is broken into 2 sections, they are related.
s unless you recognize the sender and know the content is safe.
Report phish using the Phish Alert Button above.
Honorable Harbor Commissioners, This email is broken into 2 sections, they are related.
We respectfully request that HC step in and restrict the Harbormaster's ability to use any vacant moorings to bestow 2 week live-aboard status, then extend those 2 week periods over and over again without limitation. This practice essentially circumvents the existing cap of 51 live-aboard permits.
Further, as part 2 of this email suggests we are seeking to open a conversation with and seeking the legal support/foundation from the City on the very existence of any live-aboard permits in the Harbor.
Thank you for your attention to this matter.
Tom LeBeau From: Tom LeBeau < Date: September 1, 2025 at 5:55:10 PM PDT To: Paul Blank < Subject: Short Term now long term live-aboard.
Paul, The new "2 week but forever" live-aboard one mooring east of A 141 has...
1. A dog aboard that barks.
2. A generator and propane on fore deck.
3. A generator that is very noisy.
4. Overall un-kept look of the deck of the vessel.
We are negatively impacted by this vessel and fail to appreciate the fact that you are essentially extending this mooring user and giving him live-aboard rights every 2 weeks, without what appears to any end in sight. This activity essentially renders permanent live-aboards in our harbor, wherever vacant moorings exist, skirting the cap of 51 live-aboard permits.
While we understand that you feel you have authority under MC T17 through the sub-permitting of any existing vacant mooring to allow mariners to live-aboard for up to 2 weeks. The issue here is simple; in the Harbormasters absolute discretion
authority under MC T17 through the sub-permitting of any existing vacant mooring to allow mariners to live-aboard for up to 2 weeks. The issue here is simple; in the Harbormasters absolute discretion the Harbormaster may extend a 2 week short stay live-aboard to any vessel, every two weeks, for as many consecutive 2 week extension periods as the Harbormaster determines is appropriate. We are are not aware of restrictions on the number of extension the Harbormaster may grant. As mentioned above, this activity undermines the 51 live-aboard permit cap and allows any number of vessels to live aboard on any vacant moorings where City sub-permits can be drawn. We believe that this authority was granted to the Harbormaster in an effort to afford visiting mariners safe harbor for a brief stay. Extending this short term live aboard privilege every consecutive 2 weeks, for months or years does not serve the public interest of the residents of the City, State of California or the stakeholders in this Bay. This must stop!
Again, we are merely asking that you move this sub-permitted vessel to another more suitable location in the Harbor (F Field). That would solve the most immediate problem. We will address the matter further with Harbor Commission thru the MC T17 update headed by HC Don Yahn.
+ On a separate matter but shades of the same story, we have found several compelling augments hope to open up a conversation with the City Attorney with the objective ending the live-aboard practice entirely within any portion of the State Tidelands. Those arguments include: Most recent State Lands Trust Findings (report issued in the last 2 weeks) seeking and directing the City to balance stakeholder rights - le, residential
the State Tidelands. Those arguments include: Most recent State Lands Trust Findings (report issued in the last 2 weeks) seeking and directing the City to balance stakeholder rights - le, residential docks cannot live-aboard, therefore neither should mooring permit holders nor live-aboard be allowed in any public marinas. This would including the existing 51 mooring Permitees who now have the permitted right to permanently live-aboard a vessel on an off shore mooring.
• Recent Case Law on Live-aboard - See Redwood City Houseboat Case.
Lack of Zoning authority within the City of NPB to grant exclusive and private residential use over public state property (essentially renting out pieces of what is an existing state park (ie State Tidelands) for exclusive use camping and private use housing) Recent 9th Circuit repeal by the US Supreme Court addressing camping in State or local parks. That is "the taking of public spaces for private use" such as overnight sleeping - has been determined by the US Supreme Court to be illegal.
• Lack of City/NPB zoning authority to grant residential units above water within the City limits. This is a potential, if proved, serious violation of the Subdivision Map Act.
Lack of environmental review of impacts the 51 existing live aboard might have on the Harbor and the State Tidelands.
• Violation of CEQA; No known Negative Declaration finding has been determined, made by City Planning Staff, omitting the requirement for the preparation of an Environmental Impact Report (EIR) • Lastly, the demonstrated political will of the Newport Beach City Council see the approved language and absolute total restriction on live-aboard attached to the issuance of any new pending City Mooring License Agreements.
political will of the Newport Beach City Council see the approved language and absolute total restriction on live-aboard attached to the issuance of any new pending City Mooring License Agreements.
I have already started the converstaions with several Harbor Commissioners and hope to continue our discussions together with the City Attorney and the City Council.
Thank you for your time.
Regards, Tom LeBeau Sent from my iPad Re: City of Newport Beach - Tidelands Management Review/ Netzer & Associates Appraisal Report of December 26, 2023+: Timelines related to various Netzer Appraisal Reports, and associated interactions with The City, including a curiously timed 180-degree reversal by Netzer on a prior conclusion, have raised serious concern among many.
Addressing materials sourced from various Public Records Requests, which have been presented at local City, and Yacht Club meetings, as well as to, and before the California State Lands and Coastal Commissions: The timing of Newport Beach Harbor Commissioner Scott Cunningham's e-mail of July 22, 2020, as related to the subsequent Mooring Appraisal RFP, is quite concerning. The RFP for the Appraisal wasn't even "Posted" by the City until April of the following year, and was "Awarded on August 3, 2021", after four firms had submitted bids. (Please see Attachments) Harbor Commissioner Cunningham, seemingly knowing nearly a year in advance, that James B. "Jim" Netzer would be the Appraiser selected, and knowing from "two long conversations with Jim" prior to his selection, that the resulting appraisal would deviate substantially from Mr. Netzer's January 6, 2016 Appraisal, tends towards indication of a rigged selection process, and a curated appraisal. Commissioner Cunningham also took it upon himself to e-
iate substantially from Mr. Netzer's January 6, 2016 Appraisal, tends towards indication of a rigged selection process, and a curated appraisal. Commissioner Cunningham also took it upon himself to email the chosen Appraiser online listings of Mooring Permits purportedly for sale. This also looks to me, like effort to unduly influence the Appraisal.
Serious concerns also arise from the fact that in April/May 2022, to alleviate any conflicts of interest, The Harbormaster had entered into an agreement with the City to not participate in discussions related to offshore moorings (Please see Attachments). Public Records requests however, have shown multiple instances of participation in 2023 and 2024. Are we to conclude that the City Attorney; select City staff/personnel; The Harbormaster, et al., all simply forgot about this agreement? Or, that the parties knowingly disregarded it? Is either scenario acceptable to the State?
Although boats on shore moorings in Newport are restricted to no more than 8' wide, and 18' long, communications indicate that Mr. Netzer tells the Harbormaster that he uses a length of 36' long for his calculations. The Harbormaster, subsequent to having entered into the agreement that he ""does not participate in discussions or the development of recommendations related to use or financial arrangements associated with offshore moorings”, responds in kind, with likewise inflated numbers, writing that a boat on a 40' Mooring would P1 (entire letter) typically be 14' wide, and 40' long (Note: Boats with rectangular footprints are very uncommon). The Harbormaster then opines that the actual square footage of Tide/Submerged lands a mooring would encumber, could be 20' x 60',
e: Boats with rectangular footprints are very uncommon). The Harbormaster then opines that the actual square footage of Tide/Submerged lands a mooring would encumber, could be 20' x 60', Other e-mails show the Harbormaster telling the Appraiser to price a 25' Mooring at the 30' rate. Similarly, the Phase-in documents the City provided the State, applied the rate for 20', well-appointed marina slips at the City's Balboa Yacht Basin Marina ($32.23 per lineal foot then - $36.63 now), to 18', challenging to use, Permitted shore moorings.
A pattern of the City and Netzer basing conclusions on calculations using more space than is actually encumbered by moored vessels, in conjunction with applying higher fee rates to lower tier/length permits becomes apparent, and unrealistically inflates the resultant appraised values of moorings, while at the same time the City assesses less than half that rate for Residential Piers, and charges nothing for the spaces the boats located there encumber.
It's important to know too, that at the time the Harbormaster and Netzer's actions were driving up mooring appraisal values, the City intended to exempt from any resultant fee increases, the exclusive, members-only yacht club mooring fields, where the Harbormaster held a mooring permit, and where individual moorings (Single-point) can impact areas more than 600% greater than those at mooring fields permitted to members of the public (Double-point).
(Please see Attachments) Important to understand too, is that boats on single-point moorings are generally fixed, and do not continually encumber the amount of space they are claimed to, and that other Tide/Submerged land users regularly transition through, and use much of that supposed mooring space for their own activities.
ntinually encumber the amount of space they are claimed to, and that other Tide/Submerged land users regularly transition through, and use much of that supposed mooring space for their own activities.
The City, and parties holding Residential Pier/Dock Permits on the other hand, occupy generally fixed spaces, and often proclaim that the spaces they use over public lands are not to be used by anyone else. (Please see Attachments) Another concern is that in early October of 2023, Jim Netzer, acting on behalf of The Newport Aquatic Center (Hereafter NAC), was involved in negotiating from the City, a 3 to 5 decade long, "Amended and Restarted" zero fee ground lease for acres of prime, waterfront sovereign land. The City, under its policy F-7, generously set aside that policies goal "to determine the maximum or open market value of the property", which would have full fair market value be obtained under said lease. Mr. Netzer, along with the Harbormaster's brother, are/were Board Members of the NAC. Mr. Netzer's family members also have close ties with the NAC. (Please refer to Attachments, and “Presentation BYC Meeting 0408-2024" previously provided).
Just a couple of weeks subsequent to the City and NAC entering in to this no fee lease, a Microsoft Teams meeting, captioned "Appraisal Kick-Off Call Offshore Moorings" was arranged. City personnel, including the Harbormaster and Commissioner Cunningham, as well as the Appraiser were to participate.
The timing of the no-cost lease, so closely coinciding with the kick-off for an Appraisal Report that Harbor Commissioner Cunningham said would quote unquote “look much different”, along with Mr. Netzer's reversal of his 2016 position that a slip to mooring ratio is not judged a reliable measure of Fair
or Commissioner Cunningham said would quote unquote “look much different”, along with Mr. Netzer's reversal of his 2016 position that a slip to mooring ratio is not judged a reliable measure of Fair Market Rent, and the involvement of multiple parties with financial interests, who thus, should not have even been involved, raises numerous, serious concerns, quid pro quo being only one. And if events in this timeline do not rise to a level of impropriety, I think that they certainly rise to the level of the appearance of impropriety.
I sense that the California State Lands Commission was formed as a result of, and to remedy serious instances of local policy and decisionmakers selfinterest, and self-dealing in regards to their management of public lands.
(Please see Attachment) How many millions of dollars lost from the Tidelands Fund due to an individual Trustee's "management", over how many years, is State Lands willing to excuse in the modern day? And what levels of a Trustee's discriminatory management, over how many years, is State Lands also willing to excuse in the present?
Given the facts outlined above, and in the Attachments, as well as other facts as are evidenced in the record for these matters, does State Lands continue to contend that the December 26, 2026 Netzer Appraisal can be reasonably relied on, and that there are no red flags with it?
Adam Leveran Adam Leverenz October 31, 2025 On Jul 22, 2020, at 1:48 PM, Cunningham, Scott Removing Jim.
Hi All, > wrote: I've had two long conversations with Jim regarding the 2016 Mooring Appraisal.
The net net is when we are ready (and funded) the appraisal results will look much different than the 2016 numbers.
Note the dates: Scotts email - 7/22/2020 TENTATIVE PROJECT SCHEDULE RFP Published: April 8, 2021
is when we are ready (and funded) the appraisal results will look much different than the 2016 numbers.
Note the dates: Scotts email - 7/22/2020 TENTATIVE PROJECT SCHEDULE RFP Published: April 8, 2021 RFP 21-53 Published - 4/8/2021 73 City of Newport Beach Bid Opportunities Keyword Department Bid Type Due Date From Categories Due Date To Stage Clear Search EWS LOG IN Found 862 bids Posted Project Title Invitation # Due Date Remaining Stage Format 04/08/2021 Tidelands On-Shore & Off-Shore Appraisal Services 21-53 05/20/2021 01:00pm Awarded Electronic 04/27/2021 Landfill Gas (LFG) Control System Operation & Mainte... 21-57 05/18/2021 01:00pm Awarded Electronic 04/20/2021 Business License and Permit Processing Software 21-55 05/18/2021 01:00pm Awarded Electronic 04/28/2021 (4) 2021 Ford F-150 2WD SuperCab Trucks 21-58 05/12/2021 01:00pm Closed Electronic 04/19/2021 On-Call Traffic/Transportation Engineering 21-09 05/10/2021 03:00pm Awarded Electronic 04/15/2021 FY2020-21 Traffic Signal Rehabilitation C-7791-1 05/10/2021 10:00am Closed Electronic 04/13/2021 Establishment of Eligibility List for Referral of Real Est... 21-54 04/01/2021 Armored Transport Services 04/28/2021 01:00pm Closed Electronic 21-52 04/28/2021 01:00pm Awarded Electronic 03/19/2021 UNDERGROUND STORAGE TANKS - TESTING, DESIG... 7223-1 04/20/2021 02:00pm Award Pending Electronic 03/22/2021 Parking Code Consulting Services 21-43 04/13/2021 01:00pm Awarded Electronic 03/19/2021 AS-NEEDED SPORT & RECREATIONAL FIELD LANDS... 7997-1 03/24/2021 As-Needed Athletic and Recreational Field Services 03/25/2021 Dover Shores Traffic Calming Improvements 03/24/2021 (3) 2021 Toyota Tacoma 4x4 Double Cab Vehicles 04/08/2021 02:00pm Awarded Electronic 21-45 04/08/2021 01:00pm Awarded Electronic 7998-1 04/08/2021 10:00am
hores Traffic Calming Improvements 03/24/2021 (3) 2021 Toyota Tacoma 4x4 Double Cab Vehicles 04/08/2021 02:00pm Awarded Electronic 21-45 04/08/2021 01:00pm Awarded Electronic 7998-1 04/08/2021 10:00am Closed Electronic 21-46 04/07/2021 01:00pm Closed Electronic 02/18/2021 UNDERGROUND UTILITY ASSESSMENT DISTRICT N... 7979-1 04/07/2021 10:00am Awarded Electronic 03/10/2021 Generator Maintenance & Repair Services PLANET BIDS Copyright 2024 PlanetBlog LLC 21-41 04/06/2021 01:00pm Awarded Electronic City of Newport Beach < Back to Bid Search Tidelands On-Shore & Off-Shore Appraisal Services 21-53 Bid Information Documents Addenda/Emails Q&A Prospective Bidders Bid Results Awards Showing 4 Bid Results Vendor Lea Associates, Inc.
1631 Pontius Avenue Los Angeles, California 90025 Contact: Robert M. Lea, MAI Phone: 310-477-6595 Netzer & Associates 170 E. Seventeenth Street, Suite 206 Costa Mesa, California 92627 Contact: James Netzer, MAI Phone: 9496316799 R. P. Laurain & Associates, Inc.
3353 Linden Avenue Suite 200 Long Beach, California 90807 Contact: John P Laurain Phone: 5624260477 The Dore Group Inc 1010 University Avenue Suite C207 San Diego, California 92103 Contact: Lance W. Dore Phone: 619-933-5040 ext. 101 PLANET BIDS Copyright 2024 PlanetBin LLC Type Bid Amount Ranking Responsive $0.0000 0 Yes $0.0000 0 Yes $0.0000 0 Yes $0.0000 0 Yes DGS LOG IN Awarded City of Newport Beach < Back to Bid Search Tidelands On-Shore & Off-Shore Appraisal Services 21-53 NEWS LOG IN Awarded Bid Information Documents Awarded on August 3, 2021 Addenda/Emails Q&A Prospective Bidders Bid Results Awards
to Bid Search Tidelands On-Shore & Off-Shore Appraisal Services 21-53 NEWS LOG IN Awarded Bid Information Documents Awarded on August 3, 2021 Addenda/Emails Q&A Prospective Bidders Bid Results Awards Please see the attached Notice of Intent to Award (also uploaded under the 'Addenda & Emails" tab of this RFP page) for additional details regarding the evaluation and award process for RFP 21-53.
The project has been awarded to Netzer & Associates View Item # Complete Project 1 PLANET BIDS Copyright 2024 PlanetBlog LLC Item Code Description UOM Tidelands On-Shore & Off-Shore Appraisal Services Complete Project Qty Harbormaster Update – April 2022 Activities May 11, 2022 Page 5 Initiatives were launched resulting in better data capture and statistics reporting.
Future improvements will include customer satisfaction survey data analysis and calls for service location analysis Participated in the Emergency Operations Response to the following: О Elly oil spill Tsunami warning Three severe weather occurrences Sewage spill into the harbor Out of control stolen boat in the harbor The Harbormaster has disclosed the arrangements made, at his own expense to alleviate any conflict of interest associated with his ongoing use of an offshore mooring permit.
While undergoing the recruitment process, any and all known possible conflicts of interest were disclosed. Prior to the City making an offer of employment, all such possible conflicts were discussed with the City Attorney. Agreements and arrangements satisfactory to all relevant parties were made during that discussion. The Harbormaster was entrusted and empowered to make determinations going forward related to any
ney. Agreements and arrangements satisfactory to all relevant parties were made during that discussion. The Harbormaster was entrusted and empowered to make determinations going forward related to any conflict disclosures. In support of this arrangement, the Harbormaster: does not participate in discussions or the development of recommendations related to use or financial arrangements associated with offshore moorings reminds anyone with an interest that input on recommendations related to offshore mooring permits are made by Real Property Administration staff does not deliberate or vote on any policy related matters before the Harbor Commission is expected to answer questions related to policy implementation and impacts on Harbor Department operations hereby discloses that the offshore mooring permit he enjoys is held in an irrevocable trust the beneficiary of which is the Balboa Yacht Club. The Balboa Yacht Club holds all the offshore mooring permits adjacent to the subject mooring hoping to avoid other conflict of interest concerns also hereby discloses any significant financial interests related to the Balboa Yacht Club including a membership certificate are held in the same irrevocable trust further discloses that all remaining financial interests in either the subject offshore mooring permit or membership in the Balboa Yacht Club are de minimis ENVIRONMENTAL REVIEW: Staff recommends the Harbor Commission 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 From: To: Subject: Date:
sult 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 From: To: Subject: Date: Wooding, Lauren; Blank, Paul Offshore Mooring Appraisal Question December 05, 2023 4:08:15 PM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Lauren & Paul, I am trying to get the draft appraisal completed but I have a question about the size of a "typical" mooring and the square feet of tidelands that it encumbers. On methodology I apply the "land value" to the square footage and convert it to a rental rate. In the onshore mooring appraisal I based the value on an onshore mooring encumbering an area of 288 square feet (36' x 8') based on the "typical" area from the point of attachment (seawall) to the mooring buoy/ball and an 8' beam. What dimensions and square footage should I use for the offshore mooring?
Thanks for your assistance!
Regards, Jim Netzer 67 20 From: Blank, Paul To: Subject: Date: Attachments: RE: DRAFT - Offshore Mooring Appraisal w/ Tiered rates December 27, 2023 10:23:00 AM image001.png From: To: Subject: Date: Attachments: Wooding, Lauren RE: DRAFT APPRAISAL - Offshore Moorings - Fair Market Rent December 20, 2023 5:18:00 PM image001.png Great work!!
Thank you.
Have a great New Year.
CITY NEWPORT From: To: CC: Subject: Date: Attachments: Paul Blank Harbormaster Blank, Paul jamesbnetzer Wooding, Lauren Re: Offshore Mooring Appraisal Question December 05, 2023 4:48:06 PM PastedGraphic-2.png The cool thing about onshore moorings is they are essentially all the same size.
Offshore moorings are of a variety of sizes (25', 30', 35', 40'...90').
ecember 05, 2023 4:48:06 PM PastedGraphic-2.png The cool thing about onshore moorings is they are essentially all the same size.
Offshore moorings are of a variety of sizes (25', 30', 35', 40'...90').
Any dimensions I give you will be subject to critique as "not representative of the variety of sizes, configurations and conditions” actually out there.
That disclaimer out of the way, the biggest population of moorings out there are 40' moorings.
A typical 40' boat on one of those moorings would be 40' long x 14' wide but the mooring takes up much more space than that.
The distance from the boat to each mooring float is approximately 10' - so the space taken up on the surface is approximately 60'. Then there is the placement of the weights on the sea floor. The distance from the float to the weight adds at least 7' and up to as many as 15' to each end of the mooring depending on the depth where the mooring is placed.
If you want to go with just the surface dimensions consumed by the typical mooring on Newport Harbor, go with 60' x 20'.
If you want to go with the dimensions of the entire mooring including what's below the surface, go with 80' x 20'.
Best, Hi Jim, Thanks very much for getting this draft in to me before the end of the year. I will be sharing internally and will be in touch after the new year with any comments or changes before we have you finalize the report and take it out of draft mode.
I hope you have a very Merry Christmas and Happy New Year and get to spend time with your family in the next few weeks!
And I look forward to catching up with you in the new year.
Thank you, Lauren OF EWPORT BE Lauren Wooding Whitlinger Real Property Administrator Community Development Department
in the next few weeks!
And I look forward to catching up with you in the new year.
Thank you, Lauren OF EWPORT BE Lauren Wooding Whitlinger Real Property Administrator Community Development Department wrote: Hi Jim, I'm going through the report and have some additional comments and questions that I'd like to address before we publish this, since I know it will be reviewed very closely.
Do you have time tomorrow morning to review with me?
Thank you, Lauren NEWPORT Lauren Wooding Whitlinger Real Property Administrator NEWPORT Paul Blank Harbormaster 70 70 Howdy Jim: Thanks for taking the meeting this morning.
Upon further inspection of that one 25' mooring in the BYC field, I noticed that an individual holds it and therefore needs a rate set by the City.
I don't think you need to perform some extensive analysis just for that one mooring.
Please just apply the 30' rate you determine to that mooring but definitely add an entry in the report that includes the 25' category.
Sorry for my previous inaccurate or incomplete statement.
Paul Blank EWPOR Harbormaster 72 STATE CALIFORNIA LANDS COMMISSION CALIPORICIA G STATE OF CALIFORNIA Map of the State of California by Surveyor General William M. Eddy.
CALIFORNIA STATE LANDS COMMISSION History of the Commission The office predating the Commission was created in 1849 and known as the Surveyor-General. The Surveyor General, a constitutional officer elected by the people, surveyed and mapped the boundaries of state sovereign land, determined the state's mineral resource potential and determined its agricultural and domestic animal population. The Surveyor General was also the engineer and commissioner of improvements to roads, canals, timber
state's mineral resource potential and determined its agricultural and domestic animal population. The Surveyor General was also the engineer and commissioner of improvements to roads, canals, timber resources, draining of marshes, and irrigation project development. The office was abolished in 1929 and its responsibilities were transferred to the Department of Finance and its Division of State Lands.
In 1937, serious irregularities surfaced regarding the execution of a boundary line agreement in Malibu, settlement of trespass litigation that had been brought against Union Oil, and the issuance of permits for oil drilling in Huntington Beach. The Personnel Board charged and dismissed a Division Chief and Petroleum Production Inspector from state service. The necessity of an independent commission that makes its decisions in public was made apparent by the behavior of these individuals. Because of this malfeasance and the significant controversy surrounding the state's management and development of its oil and gas resources, and because of a desire to create a high level and autonomous board to make its decisions in a public forum, the State Lands Act was established in 1938 and the California State Lands Commission was created. The Commission was created as an independent body consisting of three members.
Since 1938, the Commission has consisted of these same members: the Lieutenant Governor, the State Controller, and the Governor's Director of Finance. The combination of the two principal financial officers of the state with two statewide elected officials ensures that decisions made by the Commission are fiscally sound and in the best interests of the state. Public awareness and participation are assured because Commission actions occur
ected officials ensures that decisions made by the Commission are fiscally sound and in the best interests of the state. Public awareness and participation are assured because Commission actions occur at properly noticed public meetings.
A selection of materials re: Inquiring of The City of Newport Beach, if Yacht Clubs, et al. would be exempted from substantial Mooring Fee Increases.
(12 pgs.)
Notes: After having heard that the Harbormaster had stated during a Yacht Club function, that they would not be subject to the City's desired Mooring fee/rent increases ranging from about 300 to over 500%, numerous efforts were made by others, and then me, seeking documented clarification on the matter. Most inquiries went unanswered.
The Harbormaster is a former Harbor Commissioner; current Yacht Club Member; and current Yacht Club Mooring Permittee. He was heavily involved in formulation of the fee increase plan, even after having entered into agreement with the City in 2022, to not participate. Others involved in the plan, are members of, and/or associated with the Yacht Clubs.
Yacht Club Moorings (Single-point) serve far fewer boats, over a much larger area.
(Please refer to a letter to the California Coastal Commission, dated November 4, 2024, from Adam Leverenz) They benefit from being easier to get on/off, as users only have to grab/release one mooring line; They are more easily approached from multiple directions, making mooring safer; With fewer boats in a larger area, there can be more distance between boats/ neighbors, offering a bit more privacy; The boats moored there transit 360 degrees, offering ever changing Imax style views; They receive sun exposure on all sides, reducing algae growth and cleaning labor/costs; They have ½ the mooring tackle, and logically less
transit 360 degrees, offering ever changing Imax style views; They receive sun exposure on all sides, reducing algae growth and cleaning labor/costs; They have ½ the mooring tackle, and logically less maintenance cost; There is less shock to boat cleats/lines/guides, as the boats are always facing into, and never broadside to wind/weather. They are all around, a more spacious and desirable form of boating access than the double-point moorings permitted to members of the general public.
From: Ad lever Sent: Tuesday, May 7, 2024 2:48 PM Subject: Adjusted Newport Beach Mooring Rents Good day Mr. Blank, I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship? As you've heard me say, this question has been posed a number of times, but a clear answer has seemed elusive.
Thank you, Adam Leverenz From: Blank, Paul < Sent: Tuesday, May 7, 2024 3:01 PM To: Ad lever < >; Wooding, Lauren Subject: RE: Adjusted Newport Beach Mooring Rents Mr. Leverenz: As a mooring permittee, these discussions may affect me financially.
As you have likely observed, I am not participating in the proceedings and therefore do not have any information for you.
I am forwarding your question to Lauren Wooding-Whitlinger, the Real Property Administrator for the City.
You may also wish to address your question to the Harbor Commission Chair, Steve Scully, or the ad hoc
warding your question to Lauren Wooding-Whitlinger, the Real Property Administrator for the City.
You may also wish to address your question to the Harbor Commission Chair, Steve Scully, or the ad hoc committee Chair, Ira Beer.
NEWPOR OF CITY CALIFORNIA BEACH Paul Blank Harbormaster Harbor Department Office: 949-270-8158 1600 W Balboa Blvd Newport Beach, CA 92663 From: Ad lever Sent: Tuesday, May 7, 2024 3:14 PM To: Blank, Paul < Cc: Subject: Re: Adjusted Newport Beach Mooring Rents Mr. Blank, Thank you so much. I do appreciate your reply, and guidance.
Take care, Adam From: Ad lever < Sent: Sunday, May 12, 2024 11:17 AM To: Subject: Fw: Adjusted Newport Beach Mooring Rents Good day, Harbormaster Paul Blank has directed me to Newport Beach Harbor Commission Chair Steve Sculley; ViceChair Ira Beer, and Real Property and Asset Management Program manager Lauren Wooding Whitlinger, in relation to the following inquiry made to him: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship? As you've heard me say, this question has been posed a number of times, but a clear answer has seemed elusive.
Thank you, Adam Leverenz" From: Ad lever <
ngs held/managed under Yacht Club stewardship? As you've heard me say, this question has been posed a number of times, but a clear answer has seemed elusive.
Thank you, Adam Leverenz" From: Ad lever < Sent: Thursday, May 30, 2024 2:32 PM To: Subject: Inquiry Councilwoman Grant, I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
I hope that you have a wonderful trip to Japan. Just prior the last regular Council Meeting, I'd been enjoying the Sister City sculpture.
Thank you, Adam Leverenz From: Ad lever < Sent: Thursday, May 30, 2024 2:32 PM To: Subject: Inquiry Councilwoman Kleiman I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
Thank you, Adam Leverenz From: Ad lever Sent: Thursday, May 30, 2024 2:28 PM To: Subject: Inquiry Councilman Avery, I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
arbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
Thank you, Adam Leverenz From: Ad lever Sent: Thursday, May 30, 2024 2:28 PM To: Subject: Inquiry Councilman Blom, I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
Thank you, Adam Leverenz From: Ad lever Sent: Thursday, May 30, 2024 2:28 PM To: Subject: Inquiry Councilman Stapleton, I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
Thank you, Adam Leverenz From: Ad lever Sent: Thursday, May 30, 2024 2:31 PM To: Subject: Inquiry Councilman Weigand, I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
arbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
I hope that you enjoy your upcoming trip to Japan. Just prior the 05/28/2024 Meeting, I'd been admiring the related sculpture.
Thank you, Adam Leverenz From: Ad lever < Sent: Thursday, May 30, 2024 2:32 PM To: Subject: Inquiry Mayor O'Neill, I would very much appreciate if you could source, or provide a simple "yes" or "no" answer to the following: "I would like to know if the Harbor Commission's recent (04/10/2024) recommendation of adjustment to fees/rates for Mooring Permits, are fees/rates that will be applied to those Moorings held/managed under Yacht Club stewardship?"
As I have noted, a determination on this, has been elusive.
Thank you, Adam Leverenz From: Ad lever Sent: Thursday, June 13, 2024 11:55 AM To: Subject: Thank you Chair Scully, I very much appreciate you approaching me after the Harbor Commission Meeting last evening, to answer my question about applicability of the fee/rent increases for Mooring Permits, under the Recommendation that has been forwarded to Council. Just to assure that I understood correctly, please confirm, that as with Mooring Permits held/administered under Yacht clubs, those under the Lido Island Community Association, are likewise, not subject to the Recommendation?
Again, thank you.
Adam Leverenz From: Scully, Steve < Sent: Thursday, June 13, 2024 12:25 PM To: Ad lever Subject: Re: Thank you Correct Adam.
Steve Scully Newport Beach Harbor Commission Harbormaster Update – April 2022 Activities May 11, 2022 Page 5
Sent: Thursday, June 13, 2024 12:25 PM To: Ad lever Subject: Re: Thank you Correct Adam.
Steve Scully Newport Beach Harbor Commission Harbormaster Update – April 2022 Activities May 11, 2022 Page 5 Initiatives were launched resulting in better data capture and statistics reporting.
Future improvements will include customer satisfaction survey data analysis and calls for service location analysis Participated in the Emergency Operations Response to the following: О Elly oil spill Tsunami warning Three severe weather occurrences Sewage spill into the harbor Out of control stolen boat in the harbor The Harbormaster has disclosed the arrangements made, at his own expense to alleviate any conflict of interest associated with his ongoing use of an offshore mooring permit.
While undergoing the recruitment process, any and all known possible conflicts of interest were disclosed. Prior to the City making an offer of employment, all such possible conflicts were discussed with the City Attorney. Agreements and arrangements satisfactory to all relevant parties were made during that discussion. The Harbormaster was entrusted and empowered to make determinations going forward related to any conflict disclosures. In support of this arrangement, the Harbormaster: does not participate in discussions or the development of recommendations related to use or financial arrangements associated with offshore moorings reminds anyone with an interest that input on recommendations related to offshore mooring permits are made by Real Property Administration staff does not deliberate or vote on any policy related matters before the Harbor Commission is expected to answer questions related to policy implementation and impacts on Harbor Department operations
taff does not deliberate or vote on any policy related matters before the Harbor Commission is expected to answer questions related to policy implementation and impacts on Harbor Department operations hereby discloses that the offshore mooring permit he enjoys is held in an irrevocable trust the beneficiary of which is the Balboa Yacht Club. The Balboa Yacht Club holds all the offshore mooring permits adjacent to the subject mooring hoping to avoid other conflict of interest concerns also hereby discloses any significant financial interests related to the Balboa Yacht Club including a membership certificate are held in the same irrevocable trust further discloses that all remaining financial interests in either the subject offshore mooring permit or membership in the Balboa Yacht Club are de minimis ENVIRONMENTAL REVIEW: Staff recommends the Harbor Commission 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 Approximate "Impact Area" of a 40' double-point V.
a 40' single-point offshore mooring: The most common offshore mooring in Newport Harbor is said to be 40'.
Double-points are claimed to encumber about 1,200 sq. ft., presuming about 10' of space fore and aft.
A 40' single-point offshore mooring, presuming 10' of space fore, and given that vessels on these moorings swing 360 degrees, encumbers a circular area with a radius of about 50': https://www.gigacalculator.com/calculators/area-of-circle-calculator.php GI GIGA calculator GA Calculators Converters Randomizers Articles
egrees, encumbers a circular area with a radius of about 50': https://www.gigacalculator.com/calculators/area-of-circle-calculator.php GI GIGA calculator GA Calculators Converters Randomizers Articles Calculators / Geometry / Area of a Circle Calculator Area of a Circle Calculator Use this calculator to easily calculate the area of a circle, given its radius in any metric: mm, cm, meters, km, inches, feet, yards, miles, etc.
[x] hide illustration radius Circle radius 50 ft Calculate area Calculation results Circle area 7,853.981634 ft² These calculations indicate that a 40' single-point mooring encumbers a 654% greater area than a 40' double-point.
Share calculator: f✔ in Share your result!
fin get direct link Embed this tool: (Numbers used for calculations are sourced from Appraisal Reports; City of Newport Beach materials; Etc.)
South Mooring Company Newport Dredging Co. Inc.
Completed Work Order Name Address Paul A Blank Corona Del Mar, CA 92625 Mooring BYC-134 Phone # Inspected and Overhauled Mooring Inspected and Painted Buoy 2200 lbs. Mooring 5/8" Top Chain 3/4" Bottom Chain Description Mooring Line Condition GOOD Service Date 8/2/2023 Public Comment Attachment F: A partial selection of images, showing various members of the public transitioning through; recreating in; and using the supposed space Mooring Permittees are claimed by the City, to have Private Exclusive Use of, as compared to the level of Private Exclusive Use exercised by the City itself, and select Residential Pier Permitees: 21 pgs.
119.8 0 BARK The following images, show City and Residential piers/docks, which occupy granted sovereign land, but which are posted as if Private Property: Authorized Guests Only No Trespassing For harbor information and is pe
images, show City and Residential piers/docks, which occupy granted sovereign land, but which are posted as if Private Property: Authorized Guests Only No Trespassing For harbor information and is pe Department Contact the Chy of Newport Beach Herber Office 949-270-8159 Deckmaster ce 949 514-7040 VHF Chander Mytus App AUTHORIZED GUESTS ONLY NO TRESPASSING y of part habent (949) 270-8159 VHF Channel 19A MyNB app AUTHORIZED GUESTS ONLY NO TRESPASSING +9 ER 20 PRIVATE DOCK LAS PROPERTY TRESPASSING t STT EDGE PIER WATER PRIVAT LEASE WDOCK EEP OF PRIVATE WASSALL'S PRIVATE BOOK DERIER EDGEWATER FRIVATE WODOCK TACUANS DOC POSTED PRIVATE PROPERTY MUNTING, FISHING, TRAPPING OR TRESPASSONS FOR ANY PURPOSE 19 STRICTLY FORDOREN HOLA FORS WILL BE PROSECUTED PRIVATE BEACH PRIVAT DOCK Netzer 23 23 Possible Conflicts of Interest?
1.Objective and Scope of RFP 21-53 2. Fifty Year, ZERO FEE, Ground Lease 3.Interest Bearing Loan 24 24 FAIR F POLITICAL Is there a conflict of interest?
CALIFORNIA FPPC Fair Political Practices Commission ATE OF CALIFORN The Fundamentals of a Conflict of Interest Code A conflict of interest code must: • Provide reasonable assurance that all foreseeable potential conflict of interest situations will be disclosed or prevented; • Provide to each affected person a clear and specific statement of his or her duties under the conflict of interest code; and Adequately differentiate between designated employees with different powers and responsibilities.
https://www.fppc.ca.gov/learn/rules-on-conflict-of-interest-codes.html 25 25 CITY OF NEWPORT BEACH Search in document a NAC 1 NAC 2 3 4 5 75 M Fit width く View plain text
WPORT BEACH Search in document a NAC 1 NAC 2 3 4 5 75 M Fit width く View plain text Re: Seeking Clarification/Additional Information From: Jon Van Cleave To: Cc: Date: Sunday, October 1, 2017, 5:17 PM PDT RESPONSE #2 Meredith, I have received your additional request and comments.
Due to the current atmosphere surrounding the NAC Board of Directors activities, a response to you will necessarily need to come from a lawyer representing the NAC since it involves an investigation into what occurred and how those facts are interpreted based on the law in this area. There has been push back from other Board members regarding my plan to have Snell and Wilmer respond to you on behalf of the NAC. Therefore, a response will have to wait until the Board can agree on what lawyer will be authorized to prepare the response. This would be the only way to make sure we get the analysis right the first time.
26 What is the NAC?
Newport Aquatic Center 27 22 SANTI POLARIS DR 1229 1334 Property Depiction Newport Aquatic Center 11883 2948 NORTH STARIN North Star Beach POLA Premises Premises Depiction NORTH STAR LN 3.987 acres O 6215 $125 Feet 28 NAC official website - 1/26/24 NAC NEWPORT AQUATIC CENTER CALIFORNIA, USA NAC GIFT CARDS RESOURCES PROGRAMS NAC RACE RESULTS THINGS TO DO CALENDAR CAMPS CONTACT James Netzer - Secretary Principal Netzer and Associates Real Estate Appraisal and Consulting Jim's wife is a member of the NAC Women's Outrigger Team and both his son and daughter were members of the NAC Junior Rowing Team. His daughter went on to be an assistant coach in the Junior Rowing program.
California Secretary of State website. Filing date 1/2/24 Entity Details
aughter were members of the NAC Junior Rowing Team. His daughter went on to be an assistant coach in the Junior Rowing program.
California Secretary of State website. Filing date 1/2/24 Entity Details Corporation Name Entity No.
Formed In Street Address of California Principal Office of Corporation Street Address of California Office Mailing Address of Corporation Mailing Address Attention Officers NEWPORT AQUATIC CENTER 1067402 CALIFORNIA Officer Name Officer Address Position(s) Secretary 29 James Netzer Possible Conflicts of Interest?
1.Objective and Scope of RFP 21-53 30 CITY OF NEWPORT BEACH NEWPORT OF CITY CALIFORNIA BEACH REQUEST FOR PROPOSAL NO. 21-53 ON-SHORE & OFF-SHORE MOORING APPRAISALS AND ON-CALL TIDELANDS APPRAISAL SERVICES 31 RFP No. 21-53 CITY OF NEW BEACH Area Description CALIFORNIA SCOPE OF SERVICES Scope of Services In RFP 21-53, the NAC is listed as apart of the projects' Area Description Newport Harbor is formed by the Balboa Peninsula on the south and the mainland on the north and extends inland to Jamboree Road and the north end of the Upper Newport Bay (Back Bay). The primary focus of this assignment is the Lower Newport Bay, which is generally defined as the water area south of the Coast Highway Bridge near the intersection of Coast Highway and Dover Drive. Traditionally, most of the boating activity within the harbor is concentrated in the Lower Bay as most of the Back Bay is an ecological preserve with limited boating facilities (Newport Dunes, Newport Aquatic Center, UC.I. Rowing base, Bayside Village and Dover Shores). The Balboa Peninsula consists of all the contiguous land east of 45th Street extending to Peninsula Point and the jetty at the mouth of Newport Harbor. The south side of the Peninsula consists of
es). The Balboa Peninsula consists of all the contiguous land east of 45th Street extending to Peninsula Point and the jetty at the mouth of Newport Harbor. The south side of the Peninsula consists of sandy beaches on the Pacific Ocean while the north side of the Peninsula forms the southern perimeter of Newport Harbor.
32 RFP No. 21-53 Objective and Project Scope The purpose of this study is to investigate and provide appropriate analysis to determine the Fee Simple Interest in the City owned on-shore and off-shore moorings, and the resulting Fair Market Rent to charge mooring permittees. Boaters within Newport Harbor have a variety of options to store their boats close-to or on the waters of Newport Harbor.
The City's on-shore and off-shore moorings should be compared to all other options around the harbor, with adjustments made in consideration of the amenities that may be offered at moorings versus other locations. Locations to review for comparison include marinas, yacht clubs, dry docks, on land dinghy storage, the Newport Aquatic Center and the Dunes Waterfront Resort.
RFP 21-53, explicitly states that the NAC is a location to review for comparison 33 33 Lets search the 2023 Netzer Offshore Mooring Appraisal for the words "Newport Aquatic Center" Search Arrange Windows Looking For: newport aquatic center in the current document Results: 1 document(s) with 1 instance(s) Only one instance of the words "Newport aquatic center" were found in the entire appraisal report. And it was the exact copy and paste of the area description found in the RFP 21-53. So they weren't even Netzer's own words.
AREA DESCRIPTION Newport Harbor is the focal point of the incorporated city of Newport Beach, which is located in
the area description found in the RFP 21-53. So they weren't even Netzer's own words.
AREA DESCRIPTION Newport Harbor is the focal point of the incorporated city of Newport Beach, which is located in coastal Orange County approximately 10 miles southwest of the Santa Ana Civic Center. The coastal city was incorporated on September 1, 1906. The U.S. Census Bureau reports an estimated population of 85,239 persons as of April 2020, an increase from 85,186 persons as of the 2010 Census. According to the City Chamber of Commerce, the influx of the tourist population during the summer months increases the population to over 100,000 persons.
Newport Beach is located 85 miles north of San Diego, 14 miles south of Long Beach and 50 miles from downtown Los Angeles. The City's elevation ranges from sea level to 691 feet. With the annexation of Newport Coast, the City is comprised of approximately 25 square miles of land area, approximately 25.5 square miles bay, harbor and ocean waters for a total area of approximately 50.5 square miles. The city has 6.1 miles of ocean frontage and 25.4 miles of harbor frontage.
Newport Harbor is one of the largest pleasure craft harbors on the West Coast and is home to approximately 9,900 boats, 1,230 piers, 2,330 commercial slips and side ties and 1,160 moorings.
Newport Harbor is formed by the Balboa Peninsula on south and the mainland on the north and extends inland to Jamboree Road and the north end of the Upper Newport Bay (Back Bay). The primary focus of this assignment is the Lower Newport Bay, which is generally defined as the water area south of the Coast Highway Bridge near the intersection of Coast Highway and Dover Drive. Traditionally, most of the boating activity within the harbor is concentrated in the Lower 9 December 26, 2023
south of the Coast Highway Bridge near the intersection of Coast Highway and Dover Drive. Traditionally, most of the boating activity within the harbor is concentrated in the Lower 9 December 26, 2023 NETZER & ASSOCIATES Newport Harbor Offshore Moorings Newport Beach, California Bay as most of the Back Bay is an ecological preserve with limited boating facilities (Newport Dunes, Newport Aquatic Center, U.C.I. Rowing base, Bayside Village and Dover Shores). The Balboa Peninsula consists of all the contiguous land east of 45th Street extending to Peninsula Point and the jetty at the mouth of Newport Harbor. The south side of the Peninsula consists of sandy beaches on the Pacific Ocean while the north side of the Peninsula forms the southern perimeter of Newport Harbor.
APPRAISAL REPORT FAIR MARKET RENT OFFSHORE MOORINGS NEWPORT BEACH, CALIFORNIA DATE OF VALUE DECEMBER 26, 2023 PREPARED FOR LAUREN WOODING WHITLINGER REAL PROPERTY ADMINISTRATOR MMUNITY DEVELOPMENT DEPARTMENT CITY OF NEWPORT BEACH 100 CIVIC CENTER DRIVE NEWPORT BEACH, CALIFORNIA 92660 PREPARED BY NETZER & ASSOCIATES 70 E. SEVENTEENTH STREET, SUITE 206 COSTA MESA, CALIFORNIA 92627 FILE NO. 2023-025 34 Possible Conflicts of Interest?
2. Fifty Year, ZERO FEE, Ground Lease 35 NAC Board Meeting Minutes - 1/18/16 MINUTES OF A SPECIAL MEETING OF THE BOARD OF DIRECTORS OF THE NEWPORT AQUATIC CENTER, INC., a California non-profit Corporation Date: January 18, 2016 Time: 6:30 pm Place: Conference Room at the NAC Board Members Present: Dr. William A. Grant, II Jon Van Cleave Greg Collins Dave Girling Susan Skinner Jim Netzer Linda Hay Bruce Ibbetson 36 NEWPORT AQUATIC CENTER MINUTES OF BOARD OF DIRECTORS MEETING 2-16-16 NAC Board Meeting Minutes Meeting was called to order at 6:43 pm by Bill Grant.
usan Skinner Jim Netzer Linda Hay Bruce Ibbetson 36 NEWPORT AQUATIC CENTER MINUTES OF BOARD OF DIRECTORS MEETING 2-16-16 NAC Board Meeting Minutes Meeting was called to order at 6:43 pm by Bill Grant.
Quorum met, Susan Skinner is on her way.
Roll Call Bruce Ibbetson Jim Netzer Greg Collins Jim is added to the Finance Committee Jon Van Cleave Bill Grant Dave Girling via speaker phone Susan Skinner - 7:34 arrived Since the State rules are that the Members of the Finance Committee and the Audit Committee must not overlap, all agree that Dave is therefore removed from the Finance Committee and Jim is added as a member of the Finance Committee.
37 32 NAC Board Meeting Minutes February Meeting NEWPORT AQUATIC CENTER MINUTES OF BOARD OF DIRECTORS MEETING 2-16-16 Meeting was called to order at 6:43 pm by Bill Grant.
Quorum met, Susan Skinner is on her way.
Roll Call Bruce Ibbetson Jim Netzer Greg Collins Jon Van Cleave Bill Grant Dave Girling via speaker phone Susan Skinner - 7:34 arrived Jim is added to the Finance Committee Jim is also the Chair of Facilities Management Since the State rules are that the Members of the Finance Committee and the Audit Committee must not overlap, all agree that Dave is therefore removed from the Finance Committee and Jim is added as a member of the Finance Committee.
Facilities Management - chair: Jim current members: Jim, Greg, Bruce Jim will add to the Facilities Mission Statement that "non-board members" added to the Committee require approval by the Board.
Jim is providing updates on the NAC soon to Be expiring Ground Lease with the City of Newport Beach Jim's update on ground lease... Draft ready for review the end of this week, then to planning and attorney, a couple of weeks and then back...~30 days.
38 NEWPORT AQUATIC CENTER
City of Newport Beach Jim's update on ground lease... Draft ready for review the end of this week, then to planning and attorney, a couple of weeks and then back...~30 days.
38 NEWPORT AQUATIC CENTER BOARD OF DIRECTORS MEETING on 3-15-16 LOCATION: NAC MEETING AGENDA Facilities Management - chair: Jim 6:30 pm Call Meeting to Order Meeting was called to order at 6:43 Quorum met.
Roll Call Bruce Ibbetson Jim Netzer Greg Collins Jon Van Cleave Bill Grant Dave Girling YaYa Hav current members: Jim, Greg, Bruce Bill Netzer reported on parking lot progress. Stripe the handicap spaces and install signs. Slurry will be scheduled based on weather. 79 regular spaces, 4 handicap spaces.
As the months go by, Jim Netzer continues to Provide updates to the progress of renewing the no-fee ground lease with the city.
Question was raised on speed bump by the stop sign. Billy would like to reinstall the speed bump close to stop sign, but it might be city property. Contact Shawn at the city to see what the recommendation would be as far as speed bump placement.
Ground Lease has been drafted and in approval process with the City. Lease is for 55 years. Still up in the air for how to submit for council approval.
39 NEWPORT AQUATIC CENTER BOARD OF DIRECTORS MEETING on 4-20-16 LOCATION: NAC MEETING AGENDA Next month, another update. Who is Lauren Wooding?
6:30 pm Call Meeting to Order Roll Call Meeting was called to order at 7:10 pm by Bill Grant.
Quorum met.
Roll Call Bill Grant Bruce Ibbetson Greg Collins Jim Netzer Jon Van Cleave Linda Hay (YaYa) Susan Skinner - Call In Facilities Management - chair: Jim current members: Jim, Greg, Bruce Jim gave update from Lauren Wooding on lease. Tom, a contact of Jim's, will take a look at the extension to review.
Google Lauren Wooding a
es Management - chair: Jim current members: Jim, Greg, Bruce Jim gave update from Lauren Wooding on lease. Tom, a contact of Jim's, will take a look at the extension to review.
Google Lauren Wooding a All Images News Videos Shopping More Tools About 537,000 results (0.23 seconds) LinkedIn in https://www.linkedin.com > lauren-wooding-whitlinger-4... : Lauren Wooding Whitlinger - Real Property Administrator Irvine, California, United States Real Property Administrator City of Newport Beach 17 years of experience in asphalt and concrete repair, high tide damage prevention, and beach maintenance. Anaheim, CA.
40 40 NEWPORT AQUATIC CENTER BOARD OF DIRECTORS MEETING on 5-17-16 LOCATION: NAC 6:30 pm Call Meeting to Order Roll Call Meeting was called to order at 7:13 pm by Bill Grant.
Quorum met.
Roll Call Bill Grant Bruce Ibbetson Greg Collins Jim Netzer Jon Van Cleave Linda Hay (YaYa) Susan Skinner Another month goes by and another update from Jim Netzer Facilities Management - chair: Jim current members: Jim, Greg, Bruce Jim reviewed letter from city. Sean said once the proposed lease reaches the City Attorney, doesn't take that long. Sean and Laura will be at the meeting. Will be on Consent Calendar. If it gets pulled, it would go to a Study Session first.
41 NEWPORT AQUATIC CENTER BOARD OF DIRECTORS MEETING on 8-16-16 LOCATION: NAC 6:30 pm Call Meeting to Order Roll Call Meeting was called to order at 7:13 pm by Bill Grant.
Quorum met.
Roll Call Bill Grant Greg Collins Jim Netzer Jon Van Cleave Donna Warwick Steve Patterson YaYa Hay (call in) Next update, Jim says that it has made the stage where the City Attorney reviews it.
Who was the City Attorney at that time?
Same City Attorney we have today. Surely, he knew Netzer was a NAC Board Member.
Jim says that it has made the stage where the City Attorney reviews it.
Who was the City Attorney at that time?
Same City Attorney we have today. Surely, he knew Netzer was a NAC Board Member.
Google newport beach city attorney City of Newport Beach (.gov) https://www.newportbeachca.gov> management-team: Aaron Harp | City of Newport Beach Aaron Harp was appointed city attorney for Newport Beach in 2011, having previously served as its assistant city attorney from 2005 to 2009.
Facilities Management - chair: Jim current members: Jim, Greg, Bruce Jim reported that the ground lease has been approved by the County and it is now being reviewed by the City Attorney.
42 NEWPORT AQUATIC CENTER BOARD OF DIRECTORS MEETING on 10-18-16 LOCATION: NAC MEETING MINUTES Call Meeting to Order Meeting was called to order at 6:40 pm by Bill Grant.
Quorum was met.
Roll Call: Bill Grant, Bruce Ibbetson, Greg Collins, Donna Warwick, Jim Netzer, Jon Van Cleave, Steve Patterson, Susan Skinner, YaYa Hay The ground lease has now made it through the City Attorney.
Facilities Management - Jim Report submitted Facilities Management via e-mail for BoD review. The Re-draft of the Ground Lease has made it through the City Attorney's office. Have been getting complaints about parking after hours in the public parking lot. See Jim's e-mailed report. Jim is working with Laura Detwieler on the "sea to mountain" bill. Bill designed to create more open space and passive use of land. Doesn't look like it will change any of the current uses relating to the NAC.
43 NEWPORT AQUATIC CENTER BOARD OF DIRECTORS MEETING on 11-22-16 LOCATION: NAC MEETING MINUTES Call Meeting to Order Meeting was called to order at 6:44 pm by Bill Grant.
Quorum was met.
Roll Call Bill Grant Bruce Ibbetson Donna Warwick Jim Netzer
ETING on 11-22-16 LOCATION: NAC MEETING MINUTES Call Meeting to Order Meeting was called to order at 6:44 pm by Bill Grant.
Quorum was met.
Roll Call Bill Grant Bruce Ibbetson Donna Warwick Jim Netzer Jon Van Cleave Steve Patterson Susan Skinner YaYa Hay Interesting items to note while reviewing the Board of Director Meeting Minutes.
Netzer clearly knows the going ons of the harbor.
In this meeting minute, Netzer appears to know that the contractor working on the Bay Club is looking for somewhere to put sand.
Note: This is early stage discussion only. Dredging (RPG54) blanket permit.
Contractor that is doing major projects (like Bay Club) is looking for a site to deposit good sand. Have a conversation to 'have a new beach' with the reclaimed dredging sand. Jim Netzer working on this project.
44 Newport Aquatic Center Board of Directors Meeting Minutes 1/17/2017 All Directors in attendance.
In this meeting minute, Netzer appears to know that the City is getting flack from environmental groups about the location that the City is proposing to put the new trash water wheel.
It looks like there might be a quid-pro-quo?
Facility Management Sign that faces the parking lot that says "Respect our neighbors, drive the speed limit, thank you from NAC" City is still working on the bollard by the entrance gate to close off the entrance but not the exit Water Wheel - proposing one in NB, getting flack from environmentalist because they want to put it up by Jamboree о 0 о Jim is going to meeting about maybe getting it by NAC instead and get a new dock My Recycler - 14 year old from CdM, Jim meeting with him to get recycling bins at NAC Met with member about possibly increasing boat storage 45 45 Newport Aquatic Center - Minutes of Board of Directors Meeting 2/28/2017
ar old from CdM, Jim meeting with him to get recycling bins at NAC Met with member about possibly increasing boat storage 45 45 Newport Aquatic Center - Minutes of Board of Directors Meeting 2/28/2017 Attendance: Billy, Kirsten, Steve, Greg, Bruce, Donna, Bill Grant, JVC, Malia, Pat Facilities Management Boat Storage Increase when and by how much?
0 It will be on the individual's anniversary date Steve and Jim are drafting the explanation letter JVC - In state of CA, any contract over $500 needs to be in writing Boat storage agreement is not as clear as it should be The amount of spots in the boathouse were updated on Jim's analysis Malia will get 2016 actuals for boat storage income and will pinpoint the last increase VOTE: 100% increase on anniversary of member's contract and April 1, 2017 start date (March 15th invoices are sent), Steve and Jim will market This is of interest. Is Jim involved with the setting of rates for boat storage at the NAC? Would this be an option for the public to store boats in the harbor? Isn't the objective of the appraisal to be used to adjust rates for boat storage on offshore moorings in the same harbor?
If the NAC is an option for boat storage and offshore moorings are an option for boat storage? Makes you wonder, wouldn't these two things be in conflict with each other?
46 Newport Aquatic Center - Minutes of Board of Directors Meeting DATE: 3/28/2017 TIME: 7:00 pm ATTENDEES Members Present: Bill, Greg, Kirsten, Susan, Jim, Bruce, Donna, Steve Members Not Present: Jon Staff: Billy, Malia FACILITIES MANAGEMENT Ground Lease-should have something in 2-3 weeks Bollard will be put in May 8-9 Recycling they are picking up every weekend, will try to get a couple more bins • Property assessment report - Greg, Jim and Bruce will meet
ave something in 2-3 weeks Bollard will be put in May 8-9 Recycling they are picking up every weekend, will try to get a couple more bins • Property assessment report - Greg, Jim and Bruce will meet Great news! Looks like they may be weeks away from getting the ground lease 47 NEWS Oh no. What's this?
Daily Pilot 00 Orange County Register Search Schism over finances and leadership makes for troubled waters at Newport Aquatic Center Newport Aquatic Center faces questions of financial mismanagement Scott M. Reid Menu PUBLISHED: October 5, 2018 at 5:22 p.m. | UPDATED: November 16, 2018 at 4:38 p.m.
Olympics, Sports BY HILLARY DAVIS STAFF WRITER SEPT. 25, 2018 6:05 PM PT NEWPORT ACAK GREE 48 428 Let's take a pause on this possible conflict for a moment..
49 Possible Conflicts of Interest?
3.Interest Bearing Loan 50 50 CITY OF NEWPORT CALIFORNIA BEACH CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3131 949 644-3139 FAX newportbeachca.gov/cityattorney City Attorney, Aaron Harp, writes a certified letter to the Board of Directors at the NAC expressing concern over allegations.
Sent via U.S. Mail Board of Directors Newport Aquatic Center One Whitecliffs Drive Newport Beach, California 92660 Re: February 14, 2019 February 14, 2019 Management of the Newport Aquatic Center To the Board of Directors: I write to you on behalf of the City of Newport Beach ("City") to express the City's concern regarding the allegations made by community members regarding the management of the Newport Aquatic Center ("NAC"). While numerous allegations have been made, one of the most important issues for the City relates to the governance of the NAC.
Although the City does not manage the programs offered by the NAC, ensuring
ile numerous allegations have been made, one of the most important issues for the City relates to the governance of the NAC.
Although the City does not manage the programs offered by the NAC, ensuring limited public resources are being appropriately managed is a critical issue for the City. To ensure effective management, the City first analyzes whether the entity managing a public asset for public use is complying with the documents governing its operations.
As you know, there have been allegations the NAC does not have the requisite number of Directors set forth in the NAC's By-Laws dated August 20, 2014 ("ByLaws"), and the Facilities Management Plan ("FMP") dated January 16, 1998.
Specifically, according to the By-Laws, the NAC Board of Directors". shall consist of at least 8 but not more than 20 Directors until changed by amendment to these By-Laws." Similarly, the FMP provides in pertinent part that "[t]he Aquatic Center Board of Directors is composed of nine (9) members."
Based on the info of Directors has ti Sincerely, FMP. Having the the City hereby r Directors; and (2) correcting this det Aam C. Han Aaron C. Harp City Attorney To the Board of Directors: I write to you on behalf of the City of Newport Beach ("City") to express the City's concern regarding the allegations made by community members regarding the management of the Newport Aquatic Center ("NAC"). While numerous allegations have been made, one of the most important issues for the City relates to the governance of the NAC.
As you know, the NAC's lease ("Ground Lease") with the City for the use of the property ("Property") will expire on October 27, 2023. When the City Council considers whether to enter into a new lease, or extend the term of the Ground
ound Lease") with the City for the use of the property ("Property") will expire on October 27, 2023. When the City Council considers whether to enter into a new lease, or extend the term of the Ground Lease, the City Council will consider: (1) the process utilized by the NAC to select the Board of Directors members; and (2) whether the governance and operational structure of the NAC is consistent with best practices for non-profits.
• Allegation that NAC Board of Directors issued loans, or delivered money, to the NAC, in exchange for interest from the NAC; Allegation that Executive Director Whitford made personal use of funds derived from a loan to the NAC, issued by NAC Board Member Jim Netzer; 51 NAC Response Letter to Aaron Harp NAC NEWPORT AQUATIC CENTER CALIFORNIA, USA CITY OF NEWPORT BEACH RECEIVED BY W MAR 18 2019 OFFICE OF THE CITY ATTORNEY March 15, 2019 b.
The Loan by Mr. Netzer.
In early 2015 Mr. Whitford was concerned about the reliability of the white truck used to trailer boats to the regattas and indicated that the NAC needed a new truck. During this time period the bathroom/locker room renovation was in full swing and with all of the required change orders, the NAC cash flow was being affected. As a result, Mr. Netzer offered to make a 3-year loan to the NAC that was secured by a Promissory Note so that a reliable truck could be purchased without having to apply for an auto loan and make principal and interest payments.
This arrangement was discussed at the April 21, 2015 Board meeting and approved. According, the loan was made. At each of the three annual dates when payments were due, Mr. Netzer donated the interest payment to the NAC. The loan was repaid in October 2018.
d meeting and approved. According, the loan was made. At each of the three annual dates when payments were due, Mr. Netzer donated the interest payment to the NAC. The loan was repaid in October 2018.
The loan was a valid transaction and is no longer reflected on the books and records of the NAC.
Mr. Aaron Harp City Attorney 100 Civic Center Drive Newport Beach. California 92660 Dear Mr. Harp: This letter is in response to your letter dated February 14, 2019.
We also decided to not bombard you with all of the documentation that supports our positions. If there is any particular matter that you would like to see, please identify it for us.
On behalf of the NAC, we desire to perpetuate the long history of its relationship with the City and in accordance with the mission formed in 1982 to serve the public - all of the public and not some segment of it. We remain ready, willing and able to meet with such City officials to lay the groundwork for the next 25 years because that is what the public deserves.
William a Man Kon Dr. William Grant, President Billy Whitford, Executive Director 52 52 CITY OF NEW CALIFORNIA BEACH SENT VIA CERTIFIED U.S. MAIL RETURN RECEIPT REQUESTED Board of Directors Newport Aquatic Center One Whitecliffs Drive Newport Beach, California 92660 April 19, 2019 CITY OF NEWFORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3131949 644-3139 FAX newportbeachca.gov/cityattorney RE: Newport Aquatic Center Ground Lease - Notice of Default To the Board of Directors: As you are aware, the City of Newport Beach ("City") is deeply concerned regarding the management of the Newport Aquatic Center. In our letter dated February 14, 2019, the City Attorney's Office asked the Board of Directors for the Newport Aquatic Center, Inc.
ly concerned regarding the management of the Newport Aquatic Center. In our letter dated February 14, 2019, the City Attorney's Office asked the Board of Directors for the Newport Aquatic Center, Inc.
("NAC") to respond to the allegations of mismanagement. Our office has now reviewed the March 15, 2019 correspondence from the NAC ("NAC Letter"), which responds to these allegations, as well as information provided by third parties.
Unfortunately, the NAC Letter has not relieved the City of its concerns regarding the management of the Newport Aquatic Center. In fact, based on all of the information available, it is our opinion the NAC has violated the terms of the ground lease between the City and the NAC ("Ground Lease"). Based thereon, the City is formally putting the NAC on notice it is in default of the terms of the Ground Lease. As set forth below, the NAC must immediately correct the violations or the City will be forced to take action, which could include termination of the Ground Lease.
Furthermore, the City is troubled by the fact that the NAC is unwilling to immediately take steps to comply with City Council Policy F-7. As you are aware, the City recently modified Council Policy F-7 to require non-profits, such as the NAC, who lease City property, at less than the market rate, to provide for election of directors in an open, democratic, and transparent process.
In the NAC Letter, the NAC contends that Council Policy F-7 does not apply to the NAC.
Our office has reviewed the NAC Letter and we disagree with your analysis regarding the applicability of Council Policy F-7 to any renewal or extension of the Ground Lease.
Newport Aquatic Center Ground Lease - Notice of Default April 19, 2019 Page: 2
ree with your analysis regarding the applicability of Council Policy F-7 to any renewal or extension of the Ground Lease.
Newport Aquatic Center Ground Lease - Notice of Default April 19, 2019 Page: 2 However, debating whether Council Policy F-7 is applicable to the NAC is somewhat pointless given that the City does not have to renew or extend the Ground Lease. Based thereon, you are hereby advised that the City will not be entering into negotiations with the NAC to renew or extend the Ground Lease.
Notice of Default Pursuant to Section 23 of the Ground Lease, the City is hereby putting the NAC on notice that the NAC is in default in the performance of material covenants and conditions of the Ground Lease, as set forth below. Failure to immediately comply with all terms and conditions of the Ground Lease will force the City to take action, which could include termination of the Ground Lease.
Prohibited Business Activities As you are aware, Section 15 of the Ground Lease states that "no business" shall be conducted on the Property in violation of the terms of the Ground Lease. Section 14 of the Ground Lease states that NAC is "prohibited from using, or permitting others to use, the facility in any manner which is not authorized by, or inconsistent with, the approved [Facilities Management Plan1" Furthermore Sontinn 14 of the Ground Lease provides that "failure of [N this paragraph after written notice ease."
Respectfully, by [City] shall be CITY ATTORNEY'S OFFICE A C. H Aaron C. Harp City Attorney CC: City of Newport Beach City Council Members Carol Jacobs, Assistant City Manager David B. Dimitruk, Esq.
53 Could this be nothing?
If he simply disclosed that he was a Board of Director for a facility named in the Objective and Scope of the RFP, or if he disclosed that he
Manager David B. Dimitruk, Esq.
53 Could this be nothing?
If he simply disclosed that he was a Board of Director for a facility named in the Objective and Scope of the RFP, or if he disclosed that he made an interest-bearing loan to a facility named in the Objective and Scope of the RFP, and/or he disclosed that he had negotiated a ZERO FEE lease agreement with the City's Real Property Administrator, Lauren Wooding-Whitlinger, whom he prepared the Appraisal for, then maybe this would be nothing. But did he?
Let's look. Maybe he mentioned it in the Appraisal document? Maybe he mentioned it in his services agreement? Maybe in his form 700's?
54 0-8339-1 ON-CALL PROFESSIONAL SERVICES AGREEMENT WITH JAMES B. NETZER DBA NETZER & ASSOCIATES FOR PROPERTY APPRAISAL SERVICES THIS ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 23rd day of December, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and JAMES B. NETZER A SOLE PROPRIETOR DOING BUSINESS AS ("DBA") NETZER & ASSOCIATES, ("Consultant"), whose address is 170 E. Seventeenth Street, # 206, Costa Mesa, California 92627, and is made with reference to the following: COU 2016-On-Call Professional Appraisal Agreement Signed by Jim Netzer and City Attorney Aaron Harp IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below.
24.
CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the “Act”), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work
to the provisions of the California Political Reform Act of 1974 (the “Act”), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section.
APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: 12/20/16 (fer) By: Aaron C. Harp City Attorney haw 12-20.16 ATTEST: Date: 1.4.17 By: Leilani Brown City Clerk CITY OF NE NEWPORT BEACH CITY OF NEWPORT BEACH, a California municipal corporation Date: 12-20-16 Brands Kimberly Brandt, AICP Community Development Department Director CONSULTANT: James B. Netzer, a sole proprietor doing business as ("DBA") Netzer & Associates Date: 12/25/2016 By: James B. Netzer, MAI Sole Proprietor [END OF SIGNATURES] 55 2016 Off-shore Appraisal APPRAISAL REPORT FAIR MARKET RENT OFF-SHORE & ON-SHORE MOORINGS NEWPORT BEACH, CALIFORNIA DATE OF VALUE JANUARY 6, 2016 In the scope of experience, he mentions he has some kind of experience with conflict-of-interest analysis Scope of Experience During the period in which Mr. Netzer has been engaged as a real estate appraiser and analyst, he has been involved in most aspects of the field having completed assignments for multiple purposes, including: estate planning; bankruptcy; conflict-of-interest analysis (Political Reform Act of 1974);
has been involved in most aspects of the field having completed assignments for multiple purposes, including: estate planning; bankruptcy; conflict-of-interest analysis (Political Reform Act of 1974); construction defects litigation; soil subsidence; dissolution of marriage; ground lease re-valuation; leasehold & sub-leasehold valuation; property tax appeals; lease and ground lease arbitration; easement/access/encroachment/title disputes (based on Overholtzer v. Northern Counties Title); soils contamination litigation; mortgage lending; construction financing; portfolio valuation; market and feasibility analysis; fractional interest valuation; and, due diligence.
Further in the document, he certifies that he has no conflict of interest Newport Harbor Moorings Newport Beach, California January 6, 2016 CERTIFICATION NETZER & ASSOCIATES PREPARED FOR CHRIS MILLER HARBOR MANAGER CITY OF NEWPORT BEACH, HARBOR DEPARTMENT 829 HARBOR ISLAND DRIVE NEWPORT BEACH, CALIFORNIA 92660 PREPARED BY NETZER & ASSOCIATES 170 E. SEVENTEENTH STREET, SUITE 206 COSTA MESA, CALIFORNIA 92627 FILE NO. 2015-024 To the best of my knowledge and belief, I certify that: The statements of fact contained in this report are true and correct.
The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are my personal, unbiased professional analyses, opinions and conclusions.
I have no present or prospective interest in the property that is the subject of this report, and have no personal interest or bias with respect to the parties involved.
I have performed no services, as an appraiser or in any other capacity, regarding the property that is the subject of this report within the three-year period
ias with respect to the parties involved.
I have performed no services, as an appraiser or in any other capacity, regarding the property that is the subject of this report within the three-year period immediately preceding acceptance of the this assignment.
I have no bias with respect to the property that is the subject of this report or to the parties involved in the assignment.
56 2023 Off-shore Appraisal Doesn't mention the NAC, No-Fee 50 Year Ground Lease "no interest or bias" APPRAISAL REPORT FAIR MARKET RENT OFFSHORE MOORINGS NEWPORT BEACH, CALIFORNIA DATE OF VALUE DECEMBER 26, 2023 PREPARED FOR LAUREN WOODING WHITLINGER REAL PROPERTY ADMINISTRATOR COMMUNITY DEVELOPMENT DEPARTMENT CITY OF NEWPORT BEACH 100 CIVIC CENTER DRIVE NEWPORT BEACH, CALIFORNIA 92660 PREPARED BY NETZER & ASSOCIATES 170 E. SEVENTEENTH STREET, SUITE 206 COSTA MESA, CALIFORNIA 92627 FILE NO. 2023-025 Newport Harbor Offshore Moorings Newport Beach, California December 26, 2023 CERTIFICATION NETZER & ASSOCIATES To the best of my knowledge and belief, I certify that: The statements of fact contained in this report are true and correct.
The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are my personal, unbiased professional analyses, opinions and conclusions.
I have no present or prospective interest in the property that is the subject of this report, and have no personal interest or bias with respect to the parties involved.
I performed an appraisal of the "onshore" moorings in December 2021 and an appraisal of the "City owned offshore moorings" in 2023. I have provided no other services, as an appraiser or in any other capacity, regarding the property that is the
oorings in December 2021 and an appraisal of the "City owned offshore moorings" in 2023. I have provided no other services, as an appraiser or in any other capacity, regarding the property that is the subject of this report within the three-year period immediately preceding acceptance of this assignment, I have no bias with respect to the property that is the subject of this report or to the parties involved in the assignment.
My engagement in this assignment was not contingent upon developing or reporting predetermined results.
My compensation is not contingent upon the reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value estimate, the attainment of a stipulated result, or the occurrence of a subsequent event.
The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute, which include the Uniform Standards of Professional Appraisal Practice.
The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives.
I have made a personal inspection of a representative sampling of the properties that are the subject of this report 57 Newport Harbor Offshore Moorings Newport Beach, California December 26, 2023 NETZER & ASSOCIATES CERTIFICATION To the best of my knowledge and belief, I certify that: The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute, which
and conclusions were developed, and this report has been prepared, in conformity with the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute, which include the Uniform Standards of Professional Appraisal Practice.
Let's look deeper into this Appraisal Institute and Code of Professional Ethics and Standards 58 Code of Professional Ethics and Explanatory Comments Appraisal Institute TM ER 3-6 In Valuation Practice it is unethical to provide a service if a Valuer has any direct or indirect, current, or prospective personal interest in the subject or outcome of the service or with respect to the parties involved in the service, unless: (a) prior to agreeing to provide the service, the Valuer carefully considers the facts and reasonably concludes that he or she would remain unbiased and reasonable persons, under the same circumstances, would reach the same conclusion; (b) such personal interest is disclosed to the client prior to the Valuer agreeing to provide the service; and (c) such personal interest is disclosed in each Report or other communication provided to the client resulting from such service.
59 051700175 NEH-0175 CALIFORNIA FORM 700 FAIR POLITICAL PRACTICES COMMISSION STATEMENT OF ECONOMIC INTERESTS COVER PAGE A Dublin Daumant 051700175-NPH-0175 Date ineal Filing Receivac Py On C E-Filed 02/01/2024 CALIFORNIA FORM 700 FAIR POLITICAL PRACTICES COMMISSION Please NAME O Net 1. Off A PUBLIC DOCUMENT Age Please C NAME OF Please type or print in ink Div Retz NAME OF 1. Off Netpe STATEMENT OF ECONOMIC INTERESTS COVER PAGE A Public Document COVER PAGE Date initial Filing Received Fingowy E-Filed DOY18/200 163127 Age 1. Offi 051700175-NFH-0175 CALIFORNIA FORM 700 FAIR POLITICAL PRACTICES COMMISSION A PUBLIC DOCUMENT
PAGE A Public Document COVER PAGE Date initial Filing Received Fingowy E-Filed DOY18/200 163127 Age 1. Offi 051700175-NFH-0175 CALIFORNIA FORM 700 FAIR POLITICAL PRACTICES COMMISSION A PUBLIC DOCUMENT CALIFORNIA FORM 700 FAIR POLITICAL PRACTICES COMMISSION A PUBLIC DOCUMENT Please type or print in ink STATEMENT OF ECONOMIC INTERESTS COVER DAGE 14343 Fan 190137185 Date Initial Fling Received STATEMENT OF ECONOMIC INTERESTS COVER PAGE FIRST Age CL Dive Agen 2. Ju dad CLE Divis Please ty Con NAME OF F E 3. Ty Age 2. Ju Agen 2. Jur Netzer 1. Offic Agend NAME OF FILER (LAST) city Netzer, James B.
Divisio ☑ 1. Office, Agency, or Court Con 3. Ty 3. Typ 20 Agency Name (Do not use acronyms City of Newport Beach Agend Division, Board, Department. District, if applicable 2. Juri 4. Sc Sc St D M C Consultant CDD Netzer & Associates If filing for multiple positions, list below or on an attachment (Do not use acronyms) Agency: 2. Jurisdiction of Office (Check at least one box) -or☑ 4. Sch Sc 4. Sch 3. Typ State A Sch Multi-County.
City of Newport Beach 5. Vei MA B DAY -or☐ A -or☑ ☐ C ( ☑ The 5. Ver 4. Sche her 5. Veri B Sche I c MAIL (Bu Fang Of Usa Ony E-Fed 03/05/2020 CITY OF NEWPORT CITY OF CALIFORNIA NEWPORT BEACH Date Initial Filing Received Dal Us Ony GOVERNMENT I AM A...
HOW DO I...
TRENDING STATEMENT OF ECONOMIC INTERESTS (SEI) FORM 700 Go to Search for E-Filed Transaction Data Search for Filed Statements E-Fied 02/05/2019 09:49:57 Filing D 177078406 Filing Date (MIDOLE Filer Name Filed Statement Type Position Netzer, James 3/1/2024 Annual Your Position CDD - Netzer & Associates View CDD - Netzer & Netzer, James 2/16/2023 Annual View Associates Position CDD - Netzer & Netzer, James 3/8/2021 Annual View Associates Judge or Court Commissioner (Statewide Jurisdiction)
Associates View CDD - Netzer & Netzer, James 2/16/2023 Annual View Associates Position CDD - Netzer & Netzer, James 3/8/2021 Annual View Associates Judge or Court Commissioner (Statewide Jurisdiction) County of Netzer, James 3/5/2020 Annual Other Leaving Office Date Left.
Netzer, James 2/25/2019 Annual (Check one circle) CDD - Netzer & Associates CDD-Netzer & Associates View View through O The period covered is January 1, 2018, through the date of leaving office Netzer, James 2/26/2018 Annual View O The period covered is.
of leaving office through the date View Paper Efiled Amds Amds 3. Type of Statement (Check at least one box) Annual The period covered is January 1, 2018, through December 31, 2018 The period covered is.
December 31, 2018 Assuming Office: Date assumed Candidate: Date of Election 4. Schedule Summary (must complete) Schedules attached MALIN Blow -orand office sought, different than Part 1 Total number of pages including this cover page: Schedule A-1- Investments- schedule attached Schedule A-2- Investments-schedule attached Schedule B-Real Property-schedule attached None - No reportable interests on any schedule Schedule C-Income, Loans, & Business Positions-schedule attached Schedule D Income-Gifts-schedule attached Schedule E-Income - Gifts - Travel Payments-schedule attached All form 700 submissions list "NONE - No reportable interest of any schedule" 60 DAY Dat 1 DAYT I ha -orher I hav here Ice N I cer Dat Date 5. Verif Wait. What happened to the lease renewal?
61 54 NEWPORT CALIFORNIA TO: FROM: BEACH CITY OF NEWPORT BEACH City Council Staff Report October 10, 2023 Agenda Item No. 12 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Sean Levin, Recreation and Senior Services Director - 949-6443151,
CITY OF NEWPORT BEACH City Council Staff Report October 10, 2023 Agenda Item No. 12 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Sean Levin, Recreation and Senior Services Director - 949-6443151, PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator, PHONE: TITLE: Joint Powers Agreement with County of Orange, and an Amended and Restated Ground Lease with Newport Aquatic Center, Inc. for North Star Beach Located at 1 Whitecliffs Drive Just 13 days before the existing 50 year lease was about to expire. Lauren Wooding Whitlinger prepares this staff report to Council and the Mayor.
History RECOMMENDATIONS: c) Authorize the City Manager and City Clerk to execute the Amended and Restated Ground Lease between the City of Newport Beach and Newport Aquatic Center, Inc., for continued use of the property known as North Star Beach located at 1 Whitecliffs Drive, in a form substantially similar to the amendment attached to the staff report; and City of Newport Beach d) Approve a waiver of City Council Policy F-7 - Income and Other Property based on the findings contained in this staff report and the Lease, that conducting an open bid process or changing the tenant would result in excessive vacancy, and the use of the property provides an essential or unique service to the community and is of a public benefit, and might not otherwise be provided where an open bid or full fair market value of the property be required, and based on the unique services provided by tenant, its board members are appointed through a process that ensures board members maintain the requisite experience and contributions to the tenant's operations.
Amended and Restated Ground Lease The proposed terms of the Lease are summarized below:
ocess that ensures board members maintain the requisite experience and contributions to the tenant's operations.
Amended and Restated Ground Lease The proposed terms of the Lease are summarized below: 1. The initial term is 30 years, with two, 10-year extension options, for a total possible term of 50 years, unless terminated earlier as provided by the Lease.
NAC approached the City in 2016 requesting a new lease for the Premises in consideration of its recent renovation to the restroom and locker rooms, and in anticipation of further renovations to the facility and the fleet of vessels. After negotiating a new lease and JPA, the documents were submitted to the County Board of Supervisors and the JPA was approved by the County on November 20, 2018. Additional negotiations between the City and NAC delayed bringing the new agreements forward until this time.
62 62 NEWS Daily Pilot Newport Beach City Council approves extension of ground lease for Aquatic Center NAC Paddlers get ready to head out into the water at the Newport Aquatic Center in March 2023. The city of Newport Beach, through a joint powers agreement with the county, recently approved an extended land lease for the center. (Don Leach/ Staff Photographer) The agenda item to approve the new lease was originally folded into the council's consent calendar but was pulled by Councilman Brad Avery for discussion.
The terms of the amended contract provide an initial 30-year term with two 10-year extension options for a total possible term of 50 years. It maintains past points of agreement, such as being a no-fee lease for the continued operations of the center at no cost to the city, being held to a city-approved facilities management plan and
ars. It maintains past points of agreement, such as being a no-fee lease for the continued operations of the center at no cost to the city, being held to a city-approved facilities management plan and abiding by all entitlements and permits issued by the city, county, state and federal agencies.
The city's real property manager Lauren Wooding Whitlinger said the newlyapproved agreement requires the Newport Aquatic Center to spend 3% of its gross revenues on repairs, maintenance and refurbishments to the facility. It also requires inspections, includes internal control language, and specifically defines the period of time that the center will have to ameliorate any identified issues.
Council members spoke highly of the Newport Aquatic Center, though Avery noted he pulled the item so the council could more fully discuss the nonprofit's way forward.
Avery said he was in favor of the new agreement and described it as "far more robust" than the existing document but did raise concerns about some of the legal troubles the Newport Aquatic Center faced in 2018 and 2019, including allegations of financial misconduct, harassment and retaliation. Court records indicate deliberations in some of those lawsuits continued until early 2023.
"I have no idea what has transpired in those, but it just, to me, when you see that, it makes you wonder what was going on there," Avery said.
63 63 The Newport Aquatic Center will continue to operate at its current location for at least a 30-year term, thanks to approval given Tuesday by the Newport Beach City Council to extend its existing ground lease.
On Wednesday, Chris Blank, president of the Newport Aquatic Center's board of directors, said officials there were "very pleased" with the extended agreement.
BY LILLY NGUYEN | STAFF WRITER
und lease.
On Wednesday, Chris Blank, president of the Newport Aquatic Center's board of directors, said officials there were "very pleased" with the extended agreement.
BY LILLY NGUYEN | STAFF WRITER OCT. 11, 2023 6:06 PM PT Was the appraisal independent?
The Harbor Commission repeatedly states they requisitioned an independent professional appraisal 64 CITY OF CALIFORNIA BEACH Newport Beach Harbor Commission Appraisal Report Review of Fair Market Rent for Offshore Moorings Was the appraisal independent?
The Harbor Commission repeatedly states they requisitioned an independent professional appraisal January 10, 2024 Presented By: Ira Beer, Harbor Commissioner NEWPORT CITY BEACH Fair Market Rate Considerations CALIFORNIA Harbor Commission Subcommittee Fair Market Rates Considerations: • The long history of below-market rental rates for mooring permits in Newport Harbor • What is relative to the rates charged for other uses of City tidelands What is relative to the rates charged for slips in Newport Harbor The extensive analysis presented in the recent offshore and onshore independent professional appraisals 65 From: To: Cc: Subject: Date: Attachments: Scott Cunningham Jim Netzer Wooding, Lauren 45" Newport Offshore Mooring in D Field - boats - by owner - marine sale - craigslist September 20, 2023 1:03:50 PM 45" Newport Offshore Mooring in D Field - boats - by owner - marine sale - craigslist.png [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Nice tidy profit… From: To: CC: Subject: Date: Hi Jim, Cunningham, Scott Jim Netzer Wooding, Lauren Fwd: alert: Newport Mooring June 09, 2022 10:17:32 AM Scott Cunningham Begin forwarded message: From: CL Scarch Date: June 9, 2022 at 9:36:41 AM PDT To:
m, Cunningham, Scott Jim Netzer Wooding, Lauren Fwd: alert: Newport Mooring June 09, 2022 10:17:32 AM Scott Cunningham Begin forwarded message: From: CL Scarch Date: June 9, 2022 at 9:36:41 AM PDT To: Subject: alert: Newport Mooring 1 new result for search terms: Newport Mooring, sort: relevant, as of 2022-06-09 09:36:37 AM PDT Probably going to move forward with offshore appraisal towards end of Summer but wanted you to keep this for your records. Check out last sentence.
Newport Mooring - $48.000 (Newport Beach) View all the results.
Unsubscribe from this alert.
Thanks, Scott Commissioner Cunningham is seen here sending emails of craigslist ads, which shows the purported listings of craigslist ads for offshore moorings for sale 99 66 From: To: Subject: Date: Wooding, Lauren; Blank, Paul Offshore Mooring Appraisal Question December 05, 2023 4:08:15 PM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Lauren & Paul, I am trying to get the draft appraisal completed but I have a question about the size of a "typical" mooring and the square feet of tidelands that it encumbers. On methodology I apply the "land value" to the square footage and convert it to a rental rate. In the onshore mooring appraisal I based the value on an onshore mooring encumbering an area of 288 square feet (36' x 8') based on the "typical" area from the point of attachment (seawall) to the mooring buoy/ball and an 8' beam. What dimensions and square footage should I use for the offshore mooring?
Thanks for your assistance!
Regards, Jim Netzer 67 20 From: To: Subject: Date: Attachments: Wooding, Lauren Offshore Mooring Phase-In January 17, 2024 2:41:46 PM Offshore Mooring Phase In.pdf
mooring?
Thanks for your assistance!
Regards, Jim Netzer 67 20 From: To: Subject: Date: Attachments: Wooding, Lauren Offshore Mooring Phase-In January 17, 2024 2:41:46 PM Offshore Mooring Phase In.pdf [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Lauren, The phase in we discussed is attached. Let me know if have any comments or questions.
Regards, Jim Netzer 68 From: To: Cc: Subject: Date: Scully, Steve Beer, Ira; Cunningham, Scott; Blank, Paul Re: DRAFT Offshore Mooring Appraisal w/ Tiered rates December 27, 2023 2:37:13 PM From: To: Cc: Subject: Date: Attachments: Beer, Ira Scully, Steve; Cunningham, Scott; Blank, Paul Re: DRAFT- Offshore Mooring Appraisal w/ Tiered rates December 27, 2023 2:50:07 PM image001.png Jim, just some housekeeping - the "Table of Contents" needs some formatting work to all be symmetrical.
Additionally you have your page number 2 in this draft twice. Just a FYI.
I like the table with the broken out rates better than just one rate.
Thank for the quick turn.
Regards, Steve Scully Newport Beach Harbor Commission Agreed, unless there are any other comments from Paul or Scott, please move fwd with the final report as you see fit. Thank you and have a Happy New Year!
Best regards, To: Cc: NEWPORT BEACH Ira Beer Harbor Commissioner [email protected] (949) 702-6900 From: Subject: Date: Attachments: Wooding, Lauren Beer, Ira Blank, Paul; Scully, Steve; Cunningham, Scott RE: DRAFT-Offshore Mooring Appraisal w/ Tiered rates January 04, 2024 12:28:00 PM image001.png Ira, I'll wait for your comments or for you to give me the go-ahead to finalize.
Hi Ira, Jim and I met this morning to review some additional comments I had to the report. I should have
M image001.png Ira, I'll wait for your comments or for you to give me the go-ahead to finalize.
Hi Ira, Jim and I met this morning to review some additional comments I had to the report. I should have the final draft from him tomorrow to attach to the staff report and will share with the subcommittee at that time.
Let me know if you need anything else in the meantime.
Thank you!
Lauren Regards, Jim Netzer James B. Netzer, MAI Netzer & Associates CITY OF NEWPORT CALIFORNIA BEACH Lauren Wooding Whitlinger Real Property Administrator Community Development Department 100 Civic Center Drive Newport Beach, CA 92660 69 69 From: Blank, Paul To: Subject: Date: Attachments: RE: DRAFT - Offshore Mooring Appraisal w/ Tiered rates December 27, 2023 10:23:00 AM image001.png From: To: Subject: Date: Attachments: Wooding, Lauren RE: DRAFT APPRAISAL - Offshore Moorings - Fair Market Rent December 20, 2023 5:18:00 PM image001.png Great work!!
Thank you.
Have a great New Year.
CITY NEWPORT From: To: CC: Subject: Date: Attachments: Paul Blank Harbormaster Blank, Paul jamesbnetzer Wooding, Lauren Re: Offshore Mooring Appraisal Question December 05, 2023 4:48:06 PM PastedGraphic-2.png The cool thing about onshore moorings is they are essentially all the same size.
Offshore moorings are of a variety of sizes (25', 30', 35', 40'...90').
Any dimensions I give you will be subject to critique as "not representative of the variety of sizes, configurations and conditions” actually out there.
That disclaimer out of the way, the biggest population of moorings out there are 40' moorings.
A typical 40' boat on one of those moorings would be 40' long x 14' wide but the mooring takes up much more space than that.
of the way, the biggest population of moorings out there are 40' moorings.
A typical 40' boat on one of those moorings would be 40' long x 14' wide but the mooring takes up much more space than that.
The distance from the boat to each mooring float is approximately 10' - so the space taken up on the surface is approximately 60'. Then there is the placement of the weights on the sea floor. The distance from the float to the weight adds at least 7' and up to as many as 15' to each end of the mooring depending on the depth where the mooring is placed.
If you want to go with just the surface dimensions consumed by the typical mooring on Newport Harbor, go with 60' x 20'.
If you want to go with the dimensions of the entire mooring including what's below the surface, go with 80' x 20'.
Best, Hi Jim, Thanks very much for getting this draft in to me before the end of the year. I will be sharing internally and will be in touch after the new year with any comments or changes before we have you finalize the report and take it out of draft mode.
I hope you have a very Merry Christmas and Happy New Year and get to spend time with your family in the next few weeks!
And I look forward to catching up with you in the new year.
Thank you, Lauren OF EWPORT BE Lauren Wooding Whitlinger Real Property Administrator Community Development Department wrote: Hi Jim, I'm going through the report and have some additional comments and questions that I'd like to address before we publish this, since I know it will be reviewed very closely.
Do you have time tomorrow morning to review with me?
Thank you, Lauren NEWPORT Lauren Wooding Whitlinger Real Property Administrator NEWPORT Paul Blank Harbormaster 70 70
ill be reviewed very closely.
Do you have time tomorrow morning to review with me?
Thank you, Lauren NEWPORT Lauren Wooding Whitlinger Real Property Administrator NEWPORT Paul Blank Harbormaster 70 70 -Original Message----From: Wooding, Lauren To: James Netzer Sent: Mon, Jan 31, 2022 10:35 am Subject: FW: Shore Mooring Rental Rate Increase Hi Jim, Thanks for answering all of the questions I submitted to you. I am reviewing them with Paul and will let you know if we have any further questions.
In the meantime, can you review the email below and let me know when you have some time to chat. I think this should be considered in our valuation, but I think it is mostly a matter of administrative capacity. I want to get your take on it before I discuss further with Paul.
Thank you, Lauren ORT BR NEWPORT OF LAUREN WOODING WHITLINGER Community Development Department 71 14 Howdy Jim: Thanks for taking the meeting this morning.
Upon further inspection of that one 25' mooring in the BYC field, I noticed that an individual holds it and therefore needs a rate set by the City.
I don't think you need to perform some extensive analysis just for that one mooring.
Please just apply the 30' rate you determine to that mooring but definitely add an entry in the report that includes the 25' category.
Sorry for my previous inaccurate or incomplete statement.
Paul Blank EWPOR Harbormaster 72 On Jul 22, 2020, at 1:48 PM, Cunningham, Scott Removing Jim.
Hi All, wrote: I've had two long conversations with Jim regarding the 2016 Mooring Appraisal.
The net net is when we are ready (and funded) the appraisal results will look much different than the 2016 numbers.
Note the dates: Scotts email - 7/22/2020 TENTATIVE PROJECT SCHEDULE RFP Published: April 8, 2021 RFP 21-53 Published - 4/8/2021 73
the appraisal results will look much different than the 2016 numbers.
Note the dates: Scotts email - 7/22/2020 TENTATIVE PROJECT SCHEDULE RFP Published: April 8, 2021 RFP 21-53 Published - 4/8/2021 73 Code of Professional Ethics and Explanatory Comments Appraisal Institute™ ER 3-3 In Valuation Practice it is unethical to provide a service that is contingent upon reporting a predetermined analysis, opinion or conclusion.
74 14 On March 2nd, 2024 Paul Blank emails a concerned resident stating he has to recuse himself from the matter due to a conflict of interest determined by the City Attorney and City Manager.
Blank was involved in this appraisal since the beginning. Is this too little too late?
From: "Blank, Paul"< Date: March 2, 2024 at 3:36:07 PM PST To: Subject: RE: CBRE appraisal.
The City Manager and City Attorney have determined I have a conflict of interest related to this matter and can no longer contribute to the discussion or proceedings.
Aloha, NEWPORT Paul Blank Harbormaster Harbor 75 75 Subject: Location: Start: End: Appraisal Kick-Off Call - Off-shore Moorings Microsoft Teams Meeting Thu 10/26/2023 2:00 PM Thu 10/26/2023 3:00 PM (none) Recurrence: Meeting Status: Meeting organizer Organizer: Required Attendees: Wooding, Lauren James Netzer; Beer, Ira; Scully, Steve; Scott Cunningham; Blank, Paul Microsoft Teams meeting 76 16 .
Conclusion Why didn't Netzer make any disclosures of his affiliation with "parties involved" in the Harbor?
Why did the City choose Netzer as the appraiser? Surely, the City Attorney knew about the loan? Surely, the City Real Property Administrator knew about the NAC lease agreement. So why would they choose Netzer when there were three other proposals submitted to RFP 21-53
orney knew about the loan? Surely, the City Real Property Administrator knew about the NAC lease agreement. So why would they choose Netzer when there were three other proposals submitted to RFP 21-53 Other Proposers: Lea Associates, R. P. Laurain, The Doré Group Why did the Harbor Commission repeatedly state this was an INDEPENDENT appraisal?
Why did the Staff, Harbormaster, and Harbor Commissioners attempt influence and steer the Appraiser and final Appraisal?
77 From: Sent on: To: Subject: Ad lever Friday, October 31, 2025 10:24:44 PM Newport Tidelands Management Review Attachments: Transcript - California Coastal Commission - Oct. 9, 2024, 9 AM.pdf (479.89 KB), CSLC 10-17-2024 Meeting Transcript Excerpts and Slides - Leverenz merged.pdf (381.65 KB), e-mails leverenz johnson.pdf (260.38 KB), e-mails Leverenz - Blackmon.pdf (113.09 KB) Categories: Granted Lands Public Email Attention: This email originated from outside of SLC and should be treated with extra caution.
Good Halloween afternoon x 2, Please find those attached (4 PDFs), for inclusion within the record for these matters, and for dissemination among policy and decisionmakers.
Thank you, Adam Leverenz California Coastal Commission Recording Name: [California Coastal Commission - Oct. 9, 2024, 9 AM] Transcript Prepared By: D DITTO (720) 287-3710 1355 S. Colorado Blvd.
Suite C515 Denver, CO 80222 DUNS Number: 037801851 CAGE Code: 6C7D5 Tax ID #: 27-2983097 Hart: 2 3 So we'll move on to Item 6F. Thank you, Madame Chair, and for this item I would like to welcome Jennifer Lucchesi, who is the Executive OcOfficer of the Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 State Lands Commission, uh, to today's hearing in this
like to welcome Jennifer Lucchesi, who is the Executive OcOfficer of the Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 State Lands Commission, uh, to today's hearing in this item. I have asked Jennifer to join us today to share the role and perspective of the State Land's Commission, as it relates to the Newport Harbor mooring rates issue. As you will recall, the City of Newport Beach is considering an increase in the rates it charges for mooring leases within Newport Harbor, as well as changes to how those leases are managed.
We have received a lot of public comment on this issue, and the Commission has raised concerns, uh, about the consideration and implementation of those proposed changes, especially as it relates to the equity of proposed mooring rate, um, mooring rates across all leaseholders within Newport Bay. For the past several months, uh, staff has coordinated closely with staff from the State Lands Commission, um, and we were collectively pleased that the City, uh, opted to pause its consideration of mooring rate increases and rule changes while the State Lands Commission conducts a review of the City's management of its granted public trust lands. So now I'd like to turn it over to Jennifer to give us a little bit more detailed 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 1 discussion of the roles and responsibilities of the Lucchesi: Oh, it's wonderful to see you all, the Chair Hart, 2 State Lands Commission.
Thank you.
3 Hart: Lucchesi: Thank you.
Welcome, and thank you so much for coming in person.
5 Lucchesi: Of course.
6 Hart: It's really -it's really nice to see you.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 24 25 25
: Thank you.
Welcome, and thank you so much for coming in person.
5 Lucchesi: Of course.
6 Hart: It's really -it's really nice to see you.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 24 25 25 Commissioners, it's always an honor and a pleasure to be able to speak with you, especially in person, and good morning, Dr. Hucklebridge and your incredible staff. Um, so as, uh, Dr. Hucklebridge was saying, I'll provide an overview, some background on the Newport mooring rates rates issue, uh, provide, um, -a background on our role in jurisdiction and overseeing the City's management of its tidelands, and then talk about the work that we're doing and our next steps, and of course be available to answer any questions that you have. So, um, the legislature, uh, granted the State's Tide and Submerged Lands in Newport Bay to the City of Newport Beach, to manage on behalf of the State. The City's legislative granting statutes, the Common Law Public Trust Doctrine, and the California Constitution, require the City to manage its granted lands for the benefit of the statewide public, not for purely private or local 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 2 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 interests. State trustees are obligated to administer these lands fairly and equitably, without And as, um, Dr.
discriminating among users and rates.
Hucklebridge mentioned, this has been an issue that has been ongoing for many years, but really came to a head in January of this year, when the City of Newport Beach released an appraisal to reassess its offshore mooring rates in Newport Bay to reflect fair market value, a requirement for the City's management of its
ry of this year, when the City of Newport Beach released an appraisal to reassess its offshore mooring rates in Newport Bay to reflect fair market value, a requirement for the City's management of its public trust lands. The appraisal served as the basis for the proposed rate increases, and could result in mooring holders seeing rate hikes of up to 400%. The proposed mooring rates, uh, increase also highlighted discrepancies between the methodology and rate of mooring permits compared to the residential pier leases in Newport Bay. And there was, um, uh, obviously a lot of public concern relating to, um, discrepancy and the approaches, uh, for the rental increases. So the Commission oversees the City's management of these lands to insure compliance with its granting statutes, its fiduciary duties, which are outlined in the Public Resources Code, and the Common Law Public Trust Doctrine. The City's role as trustee of Newport Bay's tidelands, requires that it manage these lands for the benefit of the statewide public.
the 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 3 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 As the trustee responsible for managing these granted lands, the City does have the authority to set rents and rates for the use of its granted lands, and the responsibility to insure that all users are treated equitably and charged fair market rates. Rates below fair market value could be considered an unConstitutional gift of public property, which is a violation of the California Constitution. And subsidizing private individuals or groups at the expense of public funds and assets could violate the City's fiduciary duties to manage public trust lands
violation of the California Constitution. And subsidizing private individuals or groups at the expense of public funds and assets could violate the City's fiduciary duties to manage public trust lands for the benefit of the people of California, not for private gain. This is the lens upon which we enter um, the State Lands Commission enters into our oversight role.
into our, As Dr. Hucklebridge mentioned, the City agreed to pause any further action on their rental rates for mooring permits or the residential pier leases, while the State Lands Commission conducts a management review of the City's management of its granted tidelands.
We are evaluating the City's policies on pier and mooring rates, the frequency and basis of rate adjustments, and the terms of leases and permits, including any modifications made in response to previous concerns raised, including the 2006-2007 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 Grand Jury Report, which identified the rental rates in Newport Bay Harbor as being a concern for potential violation of their fiduciary duties. The review will cover all user categories to insure equity, addressing both pier lease rates and mooring rates at the same time. We believe this is the best way to guarantee that all rates are fair, reflecting a balanced consideration of the users and impacts across Newport Bay. We have requested detailed records from the City, including historical data on rates, leases, and permit forms, City Council decisions, and appraisals related to the residential piers and moorings. The City provided this information in early September, and we are now reviewing all the documents. The findings
s, City Council decisions, and appraisals related to the residential piers and moorings. The City provided this information in early September, and we are now reviewing all the documents. The findings of our review will inform our assessment of the City's compliance with its legal and policy obligations.
13 14 15 16 17 18 um, 19 20 21 22 23 24 22 25 25 We are also coordinating very closely with Coastal staff, in their role in enforcing the Coastal Act, and in conclusion, I do want to thank the City for their cooperation and forthcoming with all the documents and information that we have requested, and importantly, I also want to express my sincere gratitude to the public and to users of Newport Bay, who have also been very engaged with us, providing, um, additional information and data, as well as their own analysis.
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 5 10 1 2 3 Sti 5 сл 6 7 They're spending a lot of time, their own time, personal time, helping us understand the impacts of, of its tidelands on um, Newport Bay's management of -their own lives, um, and use of the bay. So I really want to express my gratitude for their time and energy in working with us. And with that, um, I will take any questions that you have, now or in the future, on this issue.
Great, thanks so much. Before I open for public comment, I was just wondering, uh, for the public, is what's the best way to contact you on this there issue, or is there a website, or what's informational?
Lucchesi: Yeah. Yeah, the best way is to reach out directly to me. Um, we have, uh, my email address is on our 8 9 Hart: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Hart: 25 website, and members of the public have been very, um,
t way is to reach out directly to me. Um, we have, uh, my email address is on our 8 9 Hart: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Hart: 25 website, and members of the public have been very, um, good about emailing me and our team, um, providing information and asking various questions and that sort of thing. But the best way is just to go on our website, either find my email address, or our Chief Counsel's, um, or even our, um, Affairs, and we can, uh, we'll be very responsive and follow up with them.
Chief of External Great, and the State Lands Commission also has public hearings?
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 3 +1 5 сл 6 Lucchesi: Yes, yes, SO we have, um, similarly, we have, um, uh, public meetings every two months, and a lot of, um, members of the public and users of Newport Bay have been, um, participating in our public meetings as well, very similar to yours, but that's another way that they can, um, uh, talk directly with our Commissioners and express their concerns.
That's great, thank you so much, Jennifer. I'm sure there will be questions.
Lucchesi: Yeah.
7 8 Hart: 9 10 11 Hart: 12 13 Man: 14 15 16 Hart: 17 18 19 20 21 22 23 24 22 25 25 Leverenz: But I'll open it up now for public comment, before bringing you back to the Commission.
Okay. Uh, we have seven speakers. Uh, two in the room, we're starting with Adam Leverenz, and then Peter Kass (ph).
All right. The speakers will have two minutes.
Uh, good morning, Commissioners and staff again, and I thank you so very much, both State Lands and Coastal for recognizing what's, uh, going on in Newport, and that it needs some oversight.
Um, as was mentioned, the City decided to pause. I will note that they
you so very much, both State Lands and Coastal for recognizing what's, uh, going on in Newport, and that it needs some oversight.
Um, as was mentioned, the City decided to pause. I will note that they decided to pause after two letters of concern from the State Lands Commission, and one letter of concern from the Coastal Commission. Um, I've I've been heavily -involved in this since January, and they're very 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 8 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 determined to get what they want, which is to the detriment of a lot of, uh, people of lesser means that have access to the harbor and coast through mooring rentals. Their local coastal program, uh, defines that moorings are to be maintained as a low-cost access point for people who can't afford to reside in the area, and in fact most mooring permittees don't Um, live in Newport Beach and can't vote there, and are generally not listened to it seems at Council.
the, uh, responsibility to set fair rates, I think that's what really got people's attention, and we slowshowed a slide back in April I believe, in Long Beach. A boat on a residential pier pays a mere fraction of what a mooring permittee pays, and looking through the City's fee schedule for their commercial rates, medium commercial marinas, small commercial marinas, shipyards, uh, boat rental facilities, sport fishing charters, restaurant guest slips, vessel charters, and fuel docks all pay lower rates than offshore mooring permittees or onshore mooring permittees.
These are for profit permits, and yet they pay a fraction of what offshore mooring permittees pay. The, uh, 2006-2007 Grand Jury Report
than offshore mooring permittees or onshore mooring permittees.
These are for profit permits, and yet they pay a fraction of what offshore mooring permittees pay. The, uh, 2006-2007 Grand Jury Report was mentioned. You know 18 years ago, and in the engagement letter State Lands sent the City, they 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 の 1 2 3 +1 OT requested official minutes and transcripts of all City Council Meetings in which the City dealt with any of this. Rather than provide transcripts, the City has provided copies of meeting minutes, and public comment may I have an extension for 30 seconds? No?
-Okay. Go ahead.
Uh, public comment is sanitized and cut down, SO there's a lot of information missing. Also the State Lands asked for all staff reports, memoranda, and other material considered or prepared by the City.
The City only provided City Council related materials.
There are Harbor Commission reports from 2009, Harbor Commission Meetings from 2009, Harbor Commission Staff Report from 2022; all these things are highly 5 6 Hart: 7 Leverenz: 8 9 10 11 12 13 14 15 16 17 18 19 20 Man: Thank you.
21 22 23 Kass: 24 25 25 relevant, but the City has not provided those, and I want to make sure that everything's in there. the volume of materials is overwhelming I imagine for you folks as well as us, but we want this to be complete and thorough.
Thank you.
Uh, Peter Kass, and then our, uh, Zoom speakers, we'll start with Jennifer Krestin (ph), Wade Wolmack (ph), and Hein Austin (ph).
My name is Peter Kass, and I just want to thank you guys for looking at this matter, uh, more details, and also thank you for requesting the information from the
de Wolmack (ph), and Hein Austin (ph).
My name is Peter Kass, and I just want to thank you guys for looking at this matter, uh, more details, and also thank you for requesting the information from the 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 10 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 just City. Uh, I just want to let you guys know that we we own our mooring equipment, we we do the -the maintenance on our mooring, and, uh, we just want to we're just looking for fairness, that's all we're looking for, and, uh, uh, also a look at the price discrimination between what we pay as a mooring permitting, as as also the residential, they pay much less. And a 400%, uh, increase is is huge and and compared to what the residential is paying, like so our difference is gonna be much higher after that 400%, uh, increase on the rate. And, uh, yeah, I we just want to be able to take my son, or 13 take my family on a boating, and -and have it 14 15 -have it resolved, you know, instead of going back and forth. We we're looking for stability. We're 16 looking for something to be like it's done -it's 17 18 19 20 Man: 21 22 23 Krestin: 24 Man: 25 been going on for almost a couple months, six months, eight months now, I'm just Thank you so much.
Thank you.
Now moving to Zoom speakers, Jennifer Krestin, followed by Wade Wolmack and Hein Austin.
Jennifer Krestin?
Hi. Um, I believe I have a video, a short video?
Oh, yes, we're bringing it up. Give us a second.
BEGIN RECORDING just speaking for that.
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 11 Sunny: Hi, my name is Sunny (ph), I'm a barista in Newport, 2
ng for that.
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 11 Sunny: Hi, my name is Sunny (ph), I'm a barista in Newport, 2 and we're here in front of our, um, mooring.
It's a 3 +1 a boat that we use to just have fun with our family, and, um So we can't hear the volume, obviously.
5 OT Hart: 6 Sunny: -it gives us access to the coast.
7 Hart: Why don't we stop it and see?
8 Sunny: And I'd like to state -to thank the 9 END RECORDING 10 BEGIN RECORDING 11 Sunny: 12 Hi, my name is Sunny, I'm a barista in Newport, and we're here in front of our, um, mooring.
It's a a 13 14 15 16 17 18 19 20 21 22 Man: 23 24 25 boat that we use to just have fun with our family, and, um, it gives us access to the coast. And I'd to thank the Coastal Commission and like to state State Lands Commission for working so hard to keep, um, these accessible, and we, um, hope to just continue to enjoy this boat and this mooring with our children for the years to come.
END RECORDING Krestin: Krestin: Okay, thank you. Can you hear me?
Yes, we can hear you.
Okay, thank you. Um, thank you for being here for us and for everyone else who lives in California on the water. Um, Sunny is just one of the many working 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 12 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 Hart: 17 Krestin: 18 19 20 21 22 23 22 24 25 25 Hart: class boat owners who, like me, want to remain able to enjoy the harbor with their families and friends. As you saw in the video, Sunny's boat is on a mooring, for which her family has made a significant financial investment. The mooring tackle alone cost in excess
harbor with their families and friends. As you saw in the video, Sunny's boat is on a mooring, for which her family has made a significant financial investment. The mooring tackle alone cost in excess of $7000, and requiring replacement every two years.
Unlike waterfront homeowners with docks, who can walk out to their boat, Sunny and her children must either swim, which is not a good idea, or use a dinghy, paddleboard, etcetera. They have no other option for access. And while some waterfront homeowners have expressed their disdain for and dislike of the appearance of moored boats in the harbor, Newport Harbor moorings have existed for decades, and provide a significant addition to Go ahead and complete your comment.
-to the City's income from Newport Harbor that's much greater than that from residential and commercial docks. And while the length of moored boats is limited to the size of the mooring, there are boats on private docks in Newport Harbor that extend into the harbor several feet beyond the end of their dock, pay nothing for the tidelands they cover, and are a hazard to navigation.
Thank you.
Thank you.
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 13 Next, Wade Wolmack, Hein Austin, and then Richard Navarro (ph). Wade Wolmack.
Man: Thank you.
2 3 Wolmack: +1 OT 5 Man: 6 Wolmack: Hi, can you hear me? And can you put up my slide please.
Yes, Can you hear me?
we can hear you.
Great, thank you. Good morning, Chair Hart and Honorable Commissioners. My name is Wade Womack, I'm a boater in Newport Beach. Thank you for protecting affordable boating access for boaters on a budget, and thank you for looking closely at the disparity in tideland rates in Newport. And thank you to SLC
ater in Newport Beach. Thank you for protecting affordable boating access for boaters on a budget, and thank you for looking closely at the disparity in tideland rates in Newport. And thank you to SLC staff, for making sure tideland users are treated equally. Here's a slide of a father showing his daughter how to tie their small boat on a mooring.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 fees, it's a highly regulated process.
24 25 24 fees benefit the Tideland Fund as well. The Grand 25 Jury Report from 18 years ago is a false flag.
In a These moorings have historically been inexpensive because the permitholder owns the tackle and maintains the tackle. It costs the City nothing, and to add on to Mr. Leverenz' point, the transferability issue was addressed. A Grand Jury Report is a false flag from 2006. These moorings are available for sublet to the public. That generates $300,000 per year for public benefit and public use. There's significant transfer The transfer 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 minute I'd like to show a video, and in case the volume's too low, um 2 3 slide please?
-actually can we go to next Please remember 2022, City staff Sti 5 сл 14 recommended shore mooring rates go up 1000%, it's there in writing.
Clearly they wanted the price of 6 moorings and the little guy out of the harbor -guy 7 8 9 10 11 Pham: 12 and gal. Uh, my video please. In case the volume's low, uh, the speaker's main points are 400% to 500% is ridiculous.
BEGIN RECORDING Hello everyone, my name is Lon Pham (ph). I'm a former, um, Ameri13 END RECORDING 14 Wolmack: 15 16 17 The fees are ridiculous, increased recommendations, they conflict with the government principle to not
veryone, my name is Lon Pham (ph). I'm a former, um, Ameri13 END RECORDING 14 Wolmack: 15 16 17 The fees are ridiculous, increased recommendations, they conflict with the government principle to not overcharge. It's a 30-second video please.
play my video, Chair?
Can you 18 Hart: I'm not 19 20 no, he said turn the volume up.
know, one of the things we used before is that closedcaption function, which might be helpful. But why Um, you 21 22 don't we just play the video and turn the volume up as high as you can?
23 BEGIN RECORDING 24 Pham: Hello everyone, my name is Lon Pham. I'm a former, 25 um, American -I'm a former, uh, Vice President of 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 15 the American Society of Mechanical Engineering, and 1 2 also a retired (inaudible 3 Sti 5 сл 6 7 8 9 10 01:37:52) Education -I Trustee. Uh, I have the mooring over here for over 25 year, and, you know, it's ridiculous when the City want to increase for 500% so that they can just cover for, uh, their General Fund. I think it is believe this is, uh, against, uh, the principle of our American government, which only allow the government to charge for a service, will not allow the government to charge for a service anymore than it cost them to provide a service.
END RECORDING All right, thank you. Next, Hein Austin, followed by Richard Navarro, and then George Hilcama (ph). Hein Austin?
11 12 13 Man: 14 15 16 Austin: 17 Man: Yes, we can hear you.
Good morning, can you hear me?
18 Austin: 19 20 21 22 23 24 22 25 25 Good morning, Commissioners. My name is Hein Austin, and I'm advocating for equitability in Newport Harbor.
Did you know that the -the City of Newport Beach
me?
18 Austin: 19 20 21 22 23 24 22 25 25 Good morning, Commissioners. My name is Hein Austin, and I'm advocating for equitability in Newport Harbor.
Did you know that the -the City of Newport Beach created a huge harbor budget problem, and the City wants the moorings to pay, while giving the affluent dock owners a break? For example, Notation A shows in 2016, the Orange County Sheriffs offered to continue to manage the harbor, along with 1200 moorings for 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 16 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 around $300,000 per year. The City Council and the affluent dock owners on the Harbor Commission decided -from the to take over the management of the SherSheriffs under the pretense they can do it better and cheaper. Today the Harbor Department budget for the same harbor and the same number of moorings, is $2.7 million and counting. One of the fundamental problems behind the in-equitability in Newport Harbor is this out of control Harbor Budget the City created. То solve this problem, the City created a scheme called the new Mooring License Program to commercialize people's mooring permits. The City will say anything to make the Coastal Commission to believe it cares about affordable coastal access and fair market value, but the City's actions prove to be opposite. Here's how. The generated demand for this new scheme, the City created an artificial mooring scarcity problem in the harbor. There are about 100 vacant moorings on any given day available in the harbor to be used as guest moorings. Notation B shows that in 2010, guest mooring rates were at $5 per night. Thousands of
harbor. There are about 100 vacant moorings on any given day available in the harbor to be used as guest moorings. Notation B shows that in 2010, guest mooring rates were at $5 per night. Thousands of lower income boaters along the coast used to have affordable access to the coastal waters until the Harbor Department raised the prices incrementally to $57 a night. In addition to paying $57 a night, 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 17 1 2 3 Sti 5 сл 6 7 8 9 10 11 boaters also must pay $25 a day to launch a boat at the only boat landing in Newport Harbor, for a total of $82 for guest moorage. Thanks to the City, most finally, thanks to the City, most lower income boaters The City's can no longer afford guest moorage.
alternative solution by design is for boaters to line -are up for the new City Mooring License Program Lottery, so that the City can say see, there is a high demand for our 16 mooring licenses. The moorings are funded 100% by the law-abiding, low-income mooring permittees, and I want to thank you guys, uh, for protecting low low cost coastal access.
Thank you Navarro: Richard Navarro, and then George Hilcama.
Richard Navarro?
12 13 so much.
14 Man: Thank you.
15 16 17 18 19 20 21 22 23 24 22 25 25 Hello, thank you. My name is Richard Navarro, and, uh, my testimony is intended to provide you with some context for the review of the City of Newport Beach, and also to show the constructive role of the Newport Mooring Association, when invited to the table. Next slide. So the Newport next slide please there.
The Newport Mooring Association joined the Harbor Commission's Mooring Masterplan Subcommittee, and met for three years to arrive at a proposal to address the
. So the Newport next slide please there.
The Newport Mooring Association joined the Harbor Commission's Mooring Masterplan Subcommittee, and met for three years to arrive at a proposal to address the Grand Jury's findings for a revised transfer process 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 18 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 that is fair and equitable to all parties involved.
Rather than adopting the Subcommittee's report, the City Council instead voted to raise mooring rates, and terminated transferability. It also gave residential dock permittees the ability to rent piers, and to transfer their permits. Next slide, please. The Mooring Masterplan Subcommittee was then, uh, reconvened once again, to address Coast Guard concerns with the mooring fields, and to revisit the transferability issue, which ended loopholes and increased fees, but this time the City adopted their plan. Next slide. Um, the City adopts the Mooring Reconfiguration Plan, which the NMA has has opposed, and it introduces a Mooring Licensing Program, with no public input. Next slide. The City abandons its two-year effort to raise mooring rates by and instead 300% to 500%, and instead adds a new adds a new mooring permit, converting them to Cityowned mooring licenses, with a 360% rate increase, all with no public input. At the same time, the City increases residential permit rates by a whopping one cent per square foot. What do I hope you get from my presentation? The City has not been a good custodian of the State tidelands. The City's responsibility as managers of State tidelands is to all California
as not been a good custodian of the State tidelands. The City's responsibility as managers of State tidelands is to all California 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 19 1 2 3 Sti 5 сл residents, and it's been irresponsible in this regard.
The City has demonstrated a pattern of harassment towards mooring permit holders, while privileging residential dock permittees.
Therefore, very quickly, I recommend that the City of Newport Beach be found not to be fair and equitable custodians of the Newport Harbor, that the management and review be open to public input and participation, and finally, that the City be required to give the Newport Mooring Association a seat at the table. Thank you very much.
Thank you.
Uh, our last speaker, George Hilcama. I seem to be having trouble promoting you as a panelist, so I'm allowing you to speak as an attendee. You should be able to unmute. Uh, George Hilcama? And then, uh, we just have one other person, uh, Seimone Jurjis, who is the City Assistant Manager for Newport, uh, on the line, available for questions.
6 7 8 9 10 11 Man: 12 13 14 15 16 17 18 Hart: 19 20 Man: No, I -21 22 Woman: 23 Man: Okay.
24 Hart: 25 Woman: All right, as the speaker whose slides are showing is not able to I don't think they're gonna speak, no. Or now they're just -George Hilcama is not available.
You're available for questions.
Oh, I'm sorry, I didn't catch that.
George -George Hilcama is unavailable.
We're sorry, 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 3 20 we're so thrilled with everything that's going on, but he's unavailable to speak right at the moment.
you.
Thank +1 Hart:
otranscripts.com 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 3 20 we're so thrilled with everything that's going on, but he's unavailable to speak right at the moment.
you.
Thank +1 Hart: Okay. So does that complete the, uh -сл 5 Man: Oh, yes, no more speakers.
6 Hart: 7 8 9 All right, great. So I'll bring it back to the Commission for any questions, either to Executive Officer Lou Casey (ph) or anyone else. Michelle Lowenberg?
Lowenberg: So I guess my first question is when they talk about comparables, and they did a study of rents, what do 10 11 12 we have 13 14 15 -can we get access to those comparables, and do we know that they can really justify them? I mean I know in the commercial world, no one puts the lowers comparable in when they're showing them. Of course you want to get the highest rent. So I think we need to be very careful and be very analytical, and, you know, have some critical thinking here on what comparables are they using, and are they actually comparables?
16 17 18 19 20 21 Lucchesi: Yeah.
22 23 24 you know.
Lowenberg: Because it can really distort a picture, quite easily, by leaving off the bottom, and tweaking it So are you comfortable with with the -25 25 analysis that's been done on that?
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 21 1 2 Lucchesi: That is something we are looking into a second time as well. We have appraisers on staff, and we manage, um, 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 4 million acres of State property throughout the State, um, and have over 4000 leases, ranging from piers and mooring, buoys, um, like in the California side of Lake Tahoe, all the way out, um, to, uh,
million acres of State property throughout the State, um, and have over 4000 leases, ranging from piers and mooring, buoys, um, like in the California side of Lake Tahoe, all the way out, um, to, uh, marine oil terminals and offshore, uh, oil and gas leases. So we have, um, the expertise and the professionals on staff to do a deep dive on the land management operations of the City, including reviewing their appraisal. As a note, appraising tide and submerged lands, lands under water, are incredibly challenging. There are no direct comparables. You can't sell tidelands, that's Constitutionally prohibited. So there are different methodologies, um, that we employ on our own, um, lands, um, when we're negotiating leases and securing the lease agreements and rents, uh, to help get at what that fair market rental value is, given the challenges associated with appraising tide and submerged lands. So, it's a long way of saying -21 22 Lowenberg: 23 Lucchesi: 24 25 25 Yeah.
we are looktaking a deep dive into the, um, Cit's appraisals, both the current and past, um, and looking at the methodologies associated with that.
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 22 1 Lowenberg: Okay. I I have two follow up questions.
2 3 +1 сл 5 Do you ever make a distinction between sort of the commercial let's call it public/private side, in that it's one thing if it's a commercial venture side and the Lucchesi: Mm-hm.
that's got income and revenue behind it. For me when someone's either living on it's a different 6 Lowenberg: -7 8 their boat, or it's a recreational use, um, it just, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 you know, enhances someone's life or the public's
g on it's a different 6 Lowenberg: -7 8 their boat, or it's a recreational use, um, it just, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 you know, enhances someone's life or the public's life. Is there a distinction there? Because in my mind there really is a distinction.
Lucchesi: Certainly. We have a variety of different, um, rent methodology tools and formulas in our regulations to account for just that, from, uh, both recreational type uses, like docks and piers, to more commercial or industrial uses. In addition to that, uh, we also use what we call a public benefit. So in a contract, uh, there has to be consideration, and that consideration can include and most often does, monetary consideration, but in a, um, uh, lease where the authorized use provides a public benefit, open space, parks, wetlands, or any other kind of public benefit, then what we employ is reducing that fair market rental rate to account for that public benefit, or eliminating the monetary consideration altogether.
So 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 23 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 that is also a tool that's available to our grantees to use as well. I think some of the challenges, just to be very honest, um, and we've expressed this to, uh, the users of Newport Bay, is residential use is not a public trust consistent use, but we are also very well aware of the affordability and, um, homeless crisis going on. And we're humans too, and so we're trying to figure out what the best way to balance all of these competing policy priorities are, um, in a way that, um, does not undermine, uh, the ability of individuals, um, to thrive and to carry on with their lives.
ut what the best way to balance all of these competing policy priorities are, um, in a way that, um, does not undermine, uh, the ability of individuals, um, to thrive and to carry on with their lives.
Lowenberg: I mean we would be appalled if someone walked in and said well, my rent just went from $400 to, you know 13 14 15 Lucchesi: Mm-hm.
16 Lowenberg: $2000, you know, $8000, whatever it might be.
17 Lucchesi: Yeah.
18 Lowenberg: And I don't 19 20 I think there's part of me that wants to look at this in a similar way, especially for people that have had these for a long time.
21 Lucchesi: Mm-hm.
22 Lowenberg: And if there's a way it's it's it's it's 23 24 not the boat owners' fault that now this City is catching up, quote, unquote, to what market is.
25 25 That's -they didn't do anything wrong.
They've paid 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 their rent, they've lived up to their obligation, and I just find it a little, um, wrong in a moral way 3 Lucchesi: Mm-hm.
+1 OT 5 6 Lowenberg: to say to somebody you've done everything you've done, but now, all of a sudden, you know, we're gonna what are these people gonna do with their kick you -24 7 boats?
8 Lucchesi: Right.
9 10 Lowenberg: I mean people are living there, and we'd be appalled if this were housing.
11 Lucchesi Mm-hm.
12 13 14 Lowenberg: So, I just go back to there's got to be a more equitable way to either stagger it in, grandfather people in, um, figure out something.
15 Lucchesi: Yeah.
16 Lowenberg: So -17 18 Lowenberg: 19 -20 21 22 23 24 25 25 Lucchesi: No, certainly, and there are We would we all stand ready I think, you know, to to help negotiate this, work something out or something.
erg: So -17 18 Lowenberg: 19 -20 21 22 23 24 25 25 Lucchesi: No, certainly, and there are We would we all stand ready I think, you know, to to help negotiate this, work something out or something.
Lucchesi: Thank you. Thank you, I think, um, everything that you have articulated is, um, all the factors and considerations we're taking into account as well. I think, you know, the challenging part is these are public tidelands, and, um, when we start moving into 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 the private exclusive use, um, to the, uh, exception 2 3 Sti 5 сл 6 7 Lowenberg: of the statewide public or the regional public, those are the considerations that we have to take into account when we're looking at both, um, the terms of and the rent associated any particular lease or with it. Um, and I think what's really appalling in this situation is that incredible discrepancy, um, between the pier rates and the mooring rates, and 8 9 10 Lucchesi: -11 12 13 14 15 16 17 Mm-hm.
-I can also, um, acknowledge, or I I acknowledge that the amount of tidelands that are being utilized by those private recreation or residential piers and the vessels that are attached to those piers, is significantly larger than the moorings and the boats associated with those moorings. So, um, there is some, um, real definite, um, inequity going on here.
Lowenberg: Great, thank you.
18 Lucchesi: Mm-hm.
19 Hart: 20 21 22 23 24 24 25 25 Can I just -just because it's relevant to that, Commission Aguirre mentioned that she actually worked on your environmental justice policy, and I was just wondering, as a just to conclude your remarks in response to Commissioner Lowenberg, if you could talk
n Aguirre mentioned that she actually worked on your environmental justice policy, and I was just wondering, as a just to conclude your remarks in response to Commissioner Lowenberg, if you could talk about what the relevance is of your environmental justice policy, how you're applying that to this 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 25 situation.
26 2 3 Sti 5 сл Lucchesi: That is a great question.
Um, So we are looking at the City's management of its tidelands through, um, not only the lens of the legal frameworks that they have to, um, manage these lands through, but also, um, through the lens of our environmental justice policy, and looking at the access elements, public access, increased, um, access to the tidelands, so we are certainly taking that into consideration.
Great, thank you. Uh, so we have Commissioner Cummings and Commissioner Wilson both wishing to speak. Commissioner Cummings?
Cummings: Yeah, I just want to start by thanking the public for Newport Beach for bringing this to our attention.
6 7 8 9 10 Hart: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 I mean there's sometimes when these types of injustices happen, and it's hard to know who to go and talk to, and whose attention and who can actually help, and so I'm just really glad that they reached out to us SO that we could really start looking deeper into this, and really find a way to help address these and -་ concerns, cause it really is something I think that we're all really deeply concerned with in terms of the way Newport Beach is approaching these folks, um, who are, um, you know, have lower rates or actually as it turns out, higher rates than the private docks, but
ly deeply concerned with in terms of the way Newport Beach is approaching these folks, um, who are, um, you know, have lower rates or actually as it turns out, higher rates than the private docks, but 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 27 1 2 3 Sti 5 сл really, you know, um, it's definitely, uh, been a social inequity situation that needs to be addressed.
Um, I guess I guess I'd like to understand when what's the time line for when this will come, either before, um, State Lands, or like we'll be able to get an update, and everyone will get to know like what's the final conclusion of this, 'cause it sounds like ' it's underway, but it might take some time to kind of analyze all the documents and really get down into the details.
Lucchesi: Yeah, so we had, um, uh, originally, uh, set the end of this year to finish our assessment. However, as, um, as you noted, uh, Commissioner, there are a lot of documents that we're going through, and we're right in the middle of that, and we may have to we'll likely 6 7 8 it's -9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 25 25 have to follow up with the City to request additional documents, additional information.
So I could foresee this, given where we are at the end of the year already, um, going into early next year. Uh, our, uh, practice would be to finish our assessment, um, share that out for public comment, and then bring it to our Commission either as an action item or an informational item after receiving public comment, uh, working with the City, um, on any recommendations that we have, um, and bringing that to our Commission for
ng public comment, uh, working with the City, um, on any recommendations that we have, um, and bringing that to our Commission for 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 28 1 their consideration.
2 3 Sti 5 сл 6 7 8 9 10 11 So I think during that period of time, once we release the assessment and work through it with all the stakeholders, that's a time that, um, we can come back to you, um, with a presentation on what the findings were. And of course, we, um, uh, from the beginning, plan to work closely with your staff, so that they are aware throughout the process of how things are evolving.
Cummings: Yeah, that leads me to my next question, and maybe this might be for Director Hucklebridge, but I'm just also wondering, I guess we're wondering what the Commission's jurisdiction is in this context and in this situation?
So that's actually, uh, a kind of challenging question. Uh, we're still trying to, uh, assess that out. I think where we are now is is working with 12 13 14 Hucklebridge: 15 16 17 18 19 20 21 22 22 23 24 25 Cummings: -the City, figuring out exactly how we want to approach it, but also waiting to see what the outcome of the State Lands, um, investigation is, and, uh, or analysis, uh, so it's not a very satisfying answer for you, but I think we will be engaged very closely with State Lands. I appreciate the offer to come back to the Commission, um, and present findings, and at that point we'll have a clearer answer.
Thanks. And then I guess the last, um, comment I 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 29 1 have is -2 3 +1 OT 5 that I've been thinking about in this
, comment I 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 29 1 have is -2 3 +1 OT 5 that I've been thinking about in this context is that it's really interesting that the City controls the rates on these moorings, um, and yet they're -it sounds like they're fully maintained by the individuals who are utilizing them.
6 Lucchesi: Mm-hm.
7 8 9 10 Cummings: So while it seems like it's a public use, it's also privately maintained and purchased and owned. So it also strikes me as, you know, what are they actually charging these individuals for, and does it make sense for them to be charging these high rates, when they have no you know, they do no maintenance, they don't provide the -the mooring gear, and so I hope that that's taken into account too when we're talking 11 12 13 14 15 about rates, because it's like the charging market 16 rate for what, you know, in that in this context.
17 And so I think that the -the amount of peomoney 18 that a private individual's investing into what's 19 supposed to be a public use, I think it's also I 20 21 22 23 value of the rent. The 24 24 25 25 think that needs to be taken into account as well.
Lucchesi: Certainly. I think, um, that is definitely, uh, something that we're looking into in terms of the, um, in terms of charging for -occupation, so those, um, tackles the infrastructure, does occupy tidelands.
And we -the mooring 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 30 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Cummings: 24 Hart: 25 Wilson: operate, um, we are a land management agency, and, um, so we're different than the Coastal Commission being
2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Cummings: 24 Hart: 25 Wilson: operate, um, we are a land management agency, and, um, so we're different than the Coastal Commission being regulatory, right. So what that means is we act as a um, landlord/tenant type of landlord, um, tenant situation. So we have a physical infrastructure that's occupying State tidelands, and the, uh, public, the statewide public, um, should be compensated for that occupation. So for example, in the leases that we manage and issue, I'll just take for example, the California side of Lake Tahoe. We have about 1000 leases, um, on the California side of Lake Tahoe.
Some of it's marinas. Many of them, the vast majority, are individual piers, and two mooring buoys.
And so, uh, we have different rates for the moorings -on the piers, um, and the versus the piers. In mooring buoys, we also charge for an impact area. So when the boat is tied up to either the pier or the mooring buoy and the occupation of the land that's taken based on that. In all honesty, our mooring, uh, buoy rates are much lower than the residential pier rates, uh, but it is for the compensation of the occupation of state tidelands, so Yeah. Thank you.
Commissioner Wilson?
So I want to thank you for being here on this, and, 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 3 Sti 5 сл 31 um, as someone who was a Harbor District Commissioner for 10 years, and, uh, we were public trust manager for a big part of Humboldt Bay, I can tell you that as local government, um, there's a lot of perspective and pressure that, uh, and that is, uh, can very much skew that conversation at the local governance level, or, um,
boldt Bay, I can tell you that as local government, um, there's a lot of perspective and pressure that, uh, and that is, uh, can very much skew that conversation at the local governance level, or, um, because there's not a lot of training or uh, information given to local electeds about public trust responsibility.
and oftentimes the lens is just very localized, and not really understanding that the public trust resources are for all of the people in California -6 7 8 9 10 Lucchesi: Mm-hm.
11 Wilson: And, um, 12 13 14 15 Lucchesi: Right.
16 Wilson: -17 18 19 20 21 22 22 23 to be managed. And so I just really appreciate, to being um, the Commission as a backstop to being able to offer that guidance, I guess you'd say, to local jurisdictions when, uh, things have, uh, evolved over a long Commissioners or local decision makers, or, -cause as you can as either um, um, electeds, the rotate over time, staff rotates over time, agreements are made, and that's why you're looking for all that history.
24 25 Lucchesi: Yeah.
1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 32 1 Wilson: And so, um, it -and it's not in a statewide context 2 3 Sti 5 сл 6 7 often, even though it's supposed to be managed that way. And so I I just want to appreciate the work that you guys are gonna be doing to to rectify whatever the situation is here, but also as reminder to other local jurisdictions that have tideland trust responsibilities, that that's real, and maybe I just hoping one like if you --I'm one day that maybe we have a little if someone's elected, uh, as a decision maker in a agency that has a local tideland trust responsibility, that they're given some sort of
one like if you --I'm one day that maybe we have a little if someone's elected, uh, as a decision maker in a agency that has a local tideland trust responsibility, that they're given some sort of information or some sort of training to understand that responsibility, ' cause I certainly wasn't, and it some real under-you know, some real, uh, education, uh, to get to that place, so I just want to thank you for the effort on this.
8 9 10 11 12 13 14 took some 15 16 17 18 Hart: 19 Kunkel: 20 21 22 23 24 24 25 25 Lucchesi: Thank you.
That's a great point. Yes, Commissioner Kunkel?
Thank you, Chair Hart. I just wanted to express my gratitude for you being here, coming here to us, and for you and your staff putting together this management review. I know that it's, um, a large taking on, and specifically to the thank you to the public, um, for bringing this to the Coastal Commission's attention, for showing up at our State 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 33 1 2 3 Sti 5 сл 6 7 8 9 10 11 12 13 14 Kunkel: 15 Hart: 16 17 18 19 20 21 22 23 24 22 25 25 Lands Commission Meetings as well, I think it's a testament just to showing that that we hear you, -and that your voice matters, so please continue to to let us know, um, what's going on. Um, most of my questions were answered. Uh, I just -I wanted to state, uh, restate the Controller's concern for disparities, um, between the dock owners and the mooring owners, thank you so much for for looking into that, um, and then you addressed, uh, a question I had about the time line, and I just wanted to insure that while you're conducting your management review, any increases are paused; is that correct?
Lucchesi: That's correct.
dressed, uh, a question I had about the time line, and I just wanted to insure that while you're conducting your management review, any increases are paused; is that correct?
Lucchesi: That's correct.
Okay. Thank you so much. That's all I have.
All right, great. I think that concludes all of our questions, and I think that you've heard a lot of expression of gratitude for all of the work you're doing on this, and particularly to come back to the Commission and give us an update on your findings, and where things stand. So thank you so much again for coming in person, and for your work on this, and I think it's pretty clear what the concerns are of the Commission. I mean there was expressed so articulately, of course, by my colleagues, you very much.
so thank 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 Lucchesi: Thank you. Very nice to see you all.
Nice to see you too.
2 Hart: 3 S+1 34 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 1 2 3 TRANSCRIBER'S CERTIFICATE 4 5 сл 6 I, Kimela Biers, do hereby certify that I have listened to the recording of the foregoing; further that the foregoing transcript, Pages 1 through 34, was reduced to typewritten form from a digital recording of the proceedings 7 held October 9, 2024 in this matter; and that the foregoing is an accurate record of the proceedings as above transcribed in Simila Press 8 9 this matter on the date set forth.
10 DATED this 22nd day of September, 2025.
11 12 13 14 15 16 17 18 19 20 21 Kimela Biers Ditto Transcripts 1355 S. Colorado Blvd.
Suite C515 Denver, CO 80222 Tel: 720-287-3710 Fax: 720-952-9897 DUNS Number: 037801851 CAGE Code: 6C7D5 Tax ID #: 27-2983097
15 16 17 18 19 20 21 Kimela Biers Ditto Transcripts 1355 S. Colorado Blvd.
Suite C515 Denver, CO 80222 Tel: 720-287-3710 Fax: 720-952-9897 DUNS Number: 037801851 CAGE Code: 6C7D5 Tax ID #: 27-2983097 22 23 1355 S. Colorado Blvd., Suite C515, Denver, CO 80222 35 MEETING STATE OF CALIFORNIA STATE LANDS COMMISSION ZOOM PLATFORM CITY OF IMPERIAL BEACH COUNCIL CHAMBERS 825 IMPERIAL BEACH BOULEVARD IMPERIAL BEACH, CALIFORNIA THURSDAY, OCTOBER 17, 2024 12:00 P.M.
JAMES F. PETERS, CSR CERTIFIED SHORTHAND REPORTER LICENSE NUMBER 10063 J&K COURT REPORTING, LLC 1 speakers and the interpreters. Lastly, please remember to 2 return the interpretation equipment. Thank you all SO 3 4 LO 5 6 7 8 の 10 much for listening and cooperating.
EXECUTIVE OFFICER LUCCHESI: Madam Chair, that concludes our hybrid meeting instructions and we are ready to move to the general public comment period.
CHAIR COHEN: All right. Thank you very much.
So our next order of business is the public If anyone would like to address the comment period.
Commission on any matter not on today's agenda, staff will 11 call on those who are here in person first. You will have 12 three minutes to provide your comments. We will move on to those joining us virtually next.
13 14 15 Michelle, please call the first person who would 16 like to make a public comment.
PUBLIC LAND MANAGER PELKA: Our first public 17 commenter is Adam Leverenz. After Adam, we will have John 18 Heatherington.
Adam, please make your way to the podium and begin your comment.
19 20 21 22 slides I submitted.
ADAM LEVERENZ: Good afternoon, I have a couple I hope they can be called up as I get 23 started.
24 Adam Leverenz.
25 (Slide presentation).
J&K COURT REPORTING, LLC 1 2 3
20 21 22 slides I submitted.
ADAM LEVERENZ: Good afternoon, I have a couple I hope they can be called up as I get 23 started.
24 Adam Leverenz.
25 (Slide presentation).
J&K COURT REPORTING, LLC 1 2 3 ADAM LEVERENZ: First off, I would like to thank Executive Officer Lucchesi and staff for the time and effort that went into preparation for an update to the 4 Coastal Commission, North Mission Bay last week, regarding 5 issues in Newport Beach related to rates for moorings and 6 pier permits. There's an immense amount of materials involved in this. I think we can all agree on that.
7 8 9 10 11 12 13 14 15 16 17 And one of those things that I would like to bring to note I've got up on the screen before you, this is a City of Newport Beach City Council staff report from February 10th of 2015. It advises lowering rates for residential piers, also referred to as docks, and reducing the area over which fees were assessed on those residential piers. The bottom two paragraphs summarize that City staff discussed the City's proposals to reduce the pier rate and State Lands was not opposed to that.
However, State Lands Commission staff stated that it's 18 their policy to include the interior "U" shape, which I 19 believe Ms. Lucchesi has referred to as the impact area in 20 21 22 23 calculating fees.
The City concludes saying, "Ultimately, the decision to include or exclude the interior "U" shape of a slip is left to the discretion of the City Council. As to 24 whether the State Lands Commission will deem our actions, especially relating to the water in the "U", as contrary 25 J&K COURT REPORTING, LLC 10 1 2 3 4 5 6 7 8 16 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to our responsibilities under the Tidelands Trust, that is unknown."
e water in the "U", as contrary 25 J&K COURT REPORTING, LLC 10 1 2 3 4 5 6 7 8 16 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to our responsibilities under the Tidelands Trust, that is unknown."
It's over nine years later and it's known now that for the past nine years, boats on residential piers haven't paid any fees in Newport Beach. The fees are assessed only on the footprint of the dock. If I could have you call up the next slide, please.
[SLIDE CHANGE] ADAM LEVERENZ: And as the fees stand now, in 2015, they were set at $0.50 a square foot per year. They are now up to $0.57 a square foot per year, and again only assessed on the physical footprint of the dock. It's pretty common knowledge that lots of spaces at these piers is sublet to other parties. When that is done, they're supposed to report to the city and be charged a commercial marina rate, which is on the right-hand chart, which is $0.96 a square foot per year, so $0.39 per square foot more.
small Public records request, the chart on the left, is the number of pier holders that report to the city as subletting their docks. There are 21 on there that subject themselves to the higher fees. That's ridiculous.
I haven't determined the numbers yet, but I've spoken to number of people that sublet. Their addresses aren't on this chart. And there's for rent signs all over. There's а J&K COURT REPORTING, LLC 11 1 websites that promote this.
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 And my contention is that the way the City has managed this, for at least the last nine plus years, has resulted in the tidelands fund being deprived of millions of dollars, and I just want to make that clear.
Thank you.
CHAIR COHEN: Thank you very much.
Next speaker, please, Michelle.
e plus years, has resulted in the tidelands fund being deprived of millions of dollars, and I just want to make that clear.
Thank you.
CHAIR COHEN: Thank you very much.
Next speaker, please, Michelle.
PUBLIC LAND MANAGER PELKA: Our next speaker is After John, we will have Susan Simon.
John Heatherington.
John, please begin your comment.
JOHN HEATHERINGTON: Good afternoon. I'm John Heatherington, a volunteer for the Environmental Center of San Diego. I'm here today to talk about De Anza Point and the northeast corner of Mission Bay Park. De Anza Point has been closed to the public for well over 50 years. And for much of that time, San Diegans have been working to reopen it.
In 1965, a local ordinance was passed designating all of Mission Bay Park for park and recreation use only.
21 In 1978, the Mission Bay Park Master Plan mandated that a 22 23 plan must be put in place to open De Anza Point to the public by the end of the 50-year lease in 2003. In the 24 absence of such a plan, the whole leasehold reverse to These provisions for De Anza Point 25 Park and Recreation.
J&K COURT REPORTING, LLC TO: FROM: February 10, 2015 Agenda Item No. 16 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL David A. Webb, Public Works DirectorPREPARED BY: PHONE: Chris Miller, Harbor Resources Manager TITLE: Residential Piers: Adjusting the Rental Calculation and Approving a Revised Model Permit Template ABSTRACT: At the January 27, 2015 Study Session, the City Council directed staff to return with a revised residential pier permit reflecting language protecting private property rights, a revised fair market value rental fee, an adjusted pier footprint, and to contact staff at the State Lands Commission ("SLC") regarding the City Council's proposed changes.
RECOMMENDATION:
ty rights, a revised fair market value rental fee, an adjusted pier footprint, and to contact staff at the State Lands Commission ("SLC") regarding the City Council's proposed changes.
RECOMMENDATION: Adopt Resolution No. 2015-10, A Resolution of the City Council of the City of Newport Beach Adjusting the Rental Calculation and Approving a Revised Model Permit Template for Residential Piers Located Upon Tidelands, which revises the residential pier permit to protect residential piers from unlawful seizure, adjusts the rental fee to reflect a revised fair market value of $0.50/SF, and reduces the pier footprint to exclude the interior U-shape of a slip.
Following the Study Session, staff discussed the City Council's proposed changes to the residential pier program with SLC staff. SLC staff was generally not opposed to the revisions to the residential pier permit and the use of the Rasmuson appraisal of $0.50 sf. However, SLC staff stated that is the SLC's practice to include the interior U-shape of a slip within the pier footprint, as doing so reflects what they see as a private use of public property (i.e. few if any visitors will consider the interior of the U- if vacant - to be usable public space).
Ultimately, the decision to include or exclude the interior U-shape of a slip is left to the discretion of the City Council. As to whether the SLC will deem our actions (especially relating to the water in the U) as contrary to our responsibilities under the Tidelands Trust, that is unknown.
CITY OF NEWPORT BEACH NEWPORT BEACH City Council Staff Report Agenda Item No. 3 July 9, 2024 August 8, 2024 Page 2 RECOMMENDATIONS: b) Adopt Resolution No. 2024-44, A Resolution of the City of Newport Beach, California,
CH NEWPORT BEACH City Council Staff Report Agenda Item No. 3 July 9, 2024 August 8, 2024 Page 2 RECOMMENDATIONS: b) Adopt Resolution No. 2024-44, A Resolution of the City of Newport Beach, California, Revising Certain Rents Within the Schedule of Rents, Fine and Fees.
PUBLIC WORKS - HARBOR RESOURCES 1 Piers a) Residential $0.56 $0.55 $0.57 per sq ft.
The following rates are effective March 1, 2023 through February 28, 2025: Commercial Use Category* Annual Rental Rate (Per SF) 3/1/23 2/29/24 Annual Rental Rate (Per SF) 3/1/24 - 2/28/25 Location Street $307 EDGEWATER Street Ty Y AVE Post Dir▾ E Large Commercial Marinas $1.42 $1.46 415 EDGEWATER PL $1.08 $1.11 Medium Commercial Marinas 700 BAY AVE 1420 BAY AVE 1436 BAY AVE 3312 VIA LIDO 33 HARBOR ISLAND 135 BAY FRONT 223 BAY FRONT E 3 3 3 NW W $0.93 $0.96 W Small Commercial Marinas $0.45 $0.46 Shipyards HOA Marinas/Docks for Nonmembers' Use > 30,000 SF $1.42 $1.46 301 BAY FRONT E $1.08 $1.11 305 BAY FRONT E <13,000 SF $0.93 $0.96 1810 BAY FRONT S S Yacht Club Guest Slips $0.45 $0.46 4 BAY ISLAND 119 VIA LIDO SOUD 2806 LAFAYETTE AVE Free Public Access Docks (not associated with a restaurant) Vessel Rental Facility (Boat Rentals) EA $ $ 2912 LAFAYETTE AVE 1304 BAY FRONT 1400 BAY FRONT S S S 1602 BAY FRONT SS 308 RIALTO 100 BAY FRONT S All Others $0.93 $0.96 Sport Fishing Charters $0.93 $0.96 Restaurants' Guest Slips $0.45 $0.46 Vessel Charters $0.93 $0.96 Fuel Docks * $0.93 $0.96 $0.93 $0.96 From: Ad lever Sent: Friday, October 17, 2025 2:33 PM
Subject: Re: Newport Tidelands Management Review Mr. Blackmon, Thank you for acknowledgement of receipt of my letter of October 9/10 2025, in which I noted remarks of the State Lands and Coastal Commissions, observing that it's "an opportune time", to address mooring rates, and residential pier rates "simultaneously", "comprehensively", and "at the same time". Looking at the present rate structure the City of Newport Beach assesses various users of the same Tidelands, I might also think that rates for commercial, for-profit permits should be addressed now as well. I hope that it's clearly recognized, that in Newport, permit holders with the lowest tier of coastal access, appear to pay higher rates and transfer fees, sometimes multiples higher, than all but two types of other users, those two permit types, for the occupation 30,000 sq. ft. or more of Tidelands. Something's amiss here.
I also wanted to thank you for detailing some State positions during the CSLC meeting of August 21, 2025, Agenda Item #66, as related to the review of management of Tidelands by the City of Newport Beach. I had intended
ank you for detailing some State positions during the CSLC meeting of August 21, 2025, Agenda Item #66, as related to the review of management of Tidelands by the City of Newport Beach. I had intended thank you closer to the meeting, but time got away from me.
When the final draft is presented to Commissioners, possibly in December as I understand it, will it be in the form of an action item for them? And to be clear, I do not feel December would be appropriate to conclude on moorings, given the City's residential pier appraisal timelines.
Take care, Adam Leverenz Sent: Friday, October 10, 2025 9:36 AM To: adlever Subject: RE: Newport Tidelands Management Review Thanks, Adam! Received.
Seth E. Blackmon, Chief Counsel | California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825 OFFICE: +1.916.574.0393 MOBILE: +1.916.298.7009 E-MAIL: [email protected] CONFIDENTIALITY NOTICE The information contained in this message and any attached documents may contain confidential and/or legally privileged information. It is solely
-MAIL: [email protected] CONFIDENTIALITY NOTICE The information contained in this message and any attached documents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.
From: Ad lever < Sent: Thursday, October 9, 2025 4:57 PM Subject: Newport Tidelands Management Review Attention: This email originated from outside of SLC and should be treated with extra caution.
Good day all, Please find that attached.
Thank you, Adam Leverenz From: Ad lever < Sent: Friday, September 19, 2025 4:02 PM Subject: Thank you Mr. Blackmon, I wanted to thank you for detailing some State positions during the meeting of August 12, 2025, Agenda Item #66, as related to the CSLC's review of management of Tidelands by the City of Newport Beach.
wanted to thank you for detailing some State positions during the meeting of August 12, 2025, Agenda Item #66, as related to the CSLC's review of management of Tidelands by the City of Newport Beach.
I had intended thank you closer to the meeting, but time got away from me.
When the final draft is presented to Commissioners, possibly in December as I undestand it, will it be in the form of an action item?
Take care, Adam Leverenz From: Ad lever < Sent: Wednesday, September 10, 2025 11:20 AM Subject: Thank you Mr. Blackmon, I wanted to thank you for detailing some State positions during the meeting of August 12, 2025, Agenda Item #66, as related to the CSLC's review of management of Tidelands by the City of Newport Beach.
I had intended thank you closer to the meeting, but time got away from me.
When the final draft is presented to Commissioners, possibly in December as I undestand it, will it be in the form of an action item?
Take care, Adam Leverenz From: Ad lever Sent: Wednesday, August 27, 2025 11:31 AM Subject: Thank you Mr. Blackmon, I wanted to thank you for detailing some State positions during the meeting of August 12, 2025, Agenda Item #66, as related to the CSLC's review of management of Tidelands by the City of Newport Beach.
I had intended thank you closer to the meeting, but time got away from me.
When the final draft is presented to Commissioners, possibly in December as I undestand it, will it be in the form of an action item?
Take care, Adam Leverenz From: Ad lever Sent: Wednesday, October 22, 2025 3:04 PM
item?
Take care, Adam Leverenz From: Ad lever Sent: Wednesday, October 22, 2025 3:04 PM Subject: Re: Newport Beach Tidelands Management Review Ben, Thank you. I long have, and continue to advocate for the use of facts, and analysis based upon them. A "factual context" as you say. Please recall my inquiries to the California State Lands Commission on, or about August 7, 2024: "I am more formally seeking records, as have been requested under the attached correspondence., i.e: "Please provide the definition, and/or Statute/Code/Case Law/etc. reference(s) being used to define "illegal private profiteering" in this instance, so that all can know the specifics, and Class of the alleged offense(s)?"
"...what level of capital gain(s)" is being used to delineate "illegal private profiteering"?
Also, please provide Staff/Executive Director/Chief Counsel/et al. analysis/communications used/considered, in making the determination(s) in the July 22, 2024 State Land Commission letter to the City of Newport Beach, that "illegal private profiteering from mooring transfers" has occurred."
I have been unable to locate within Staff Report 66 for the CSLC meeting of August 21, 2025, or its attached "DRAFT Report on the City of Newport Beach's Public Trust Lands Management", any factual basis to indicate that the mooring transfer policies and practices in Newport Beach, as were refined and corrected over a period of multiple years subsequent to 2007, are not now proper, and that they do not now "fairly" or "adequately" compensate for mooring permit transfers between members of the public,
rrected over a period of multiple years subsequent to 2007, are not now proper, and that they do not now "fairly" or "adequately" compensate for mooring permit transfers between members of the public, as Codified and regulated by the City, with compensation to the City in the amount of 75% of annual rent.
And while I do appreciate you having told me that: "As a clarification, staff's letter was aimed at the City's laws and policies that allowed mooring permit holders to sell the permits, and not at the individuals that transferred or sold mooring permits in compliance with City law."
I find it very troubling that based upon your own words, the City had apparently done something wrong in relation to Tidelands Permit transferability, yet State Lands now thinks it appropriate that "the individuals that transferred or sold mooring permits in compliance with City law" be severely penalized? In comparison to other users of the same State resource, these parties have already been overcharged by the City for at least a decade. While at the same time, the City knowingly and willfully gifted use of public lands to a favored group, which did, and does include local policy and decisionmakers. And again, I have seen no factual evidence to support the contention that anything improper has occurred in relation to mooring permit transfers, after Newport Beach Harbor Code Title 17 was changed to address 2006-2007 concerns.
I have also been unable to locate in Staff Report 66, or the associated Draft, any facts or analysis comparing Newport's transfer fees or policies for Residential or Commercial Piers, to those for mooring permits. I'm sure that I don't need to remind you of the granting statute's no discrimination clause.
ring Newport's transfer fees or policies for Residential or Commercial Piers, to those for mooring permits. I'm sure that I don't need to remind you of the granting statute's no discrimination clause.
It appears that State Lands is falling into the City's trap of targeting only one group of Tidelands Permitholders for removal of transferability, and is doing so lacking relative "facts"; analysis", or "factual context". I encourage State Lands to not aid the City in its desire to further discriminate against those who are predominately non-residents, less affluent, and find maintaining their coastal access, more and more of a challenge under the City of Newport Beach's unique and unjust Tidelands management style. I hope that you would agree, that the use by State Lands of facts, analysis, and factual basis now, and comparisons between users, would reduce the exposure that would come from a continuation of "working closely with the City", and jumping onboard with their unsupported innuendos, and an accompanying lack of facts and/or data.
Regards, Adam Leverenz Sent: Wednesday, October 22, 2025 11:47 AM To: adlever < Subject: RE: Newport Beach Tidelands Management Review Hi Adam, Analyzing whether a grantee is appropriately compensated is a fact-specific analysis, and staff cannot evaluate whether a hypothetical fee fairly compensates the grantee, or whether a particular formula is appropriate, without that factual context.
Sincerely, Ben Benjamin Johnson (he/him) Senior Attorney CALIFORNIA STATE LANDS COMMISSION Legal Division 100 Howe Avenue, Suite 100-South Sacramento CA 95825 916.562.0020 [email protected]
Sincerely, Ben Benjamin Johnson (he/him) Senior Attorney CALIFORNIA STATE LANDS COMMISSION Legal Division 100 Howe Avenue, Suite 100-South Sacramento CA 95825 916.562.0020 [email protected] PRIVILEGE AND CONFIDENTIALITY NOTICE. This message and its contents, together with any attachments, are intended only for the use of the individual to whom or entity to which it is addressed and may contain information that is legally privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this communication and any attachments or other use of a transmission received in error is strictly prohibited. If you have received this transmission in error, please notify me immediately at the above telephone number or return the email and delete this message, along with any attachments, from your computer. Thank you.
From: Ad lever Sent: Thursday, October 16, 2025 12:01 PM Subject: Fw: Newport Beach Tidelands Management Review Attention: This email originated from outside of SLC and should be treated with extra caution.
Ben, thank you for the responses.
In instances where other trustees currently apply transfer fees which are “a small percentage of the average transfer price”, in the opinion of State lands, does that meet the standard of trust funds being fairly compensated?
And does State Lands object to allowing trustees to use formulas like 75% of annual permit rent, in
in the opinion of State lands, does that meet the standard of trust funds being fairly compensated?
And does State Lands object to allowing trustees to use formulas like 75% of annual permit rent, in effort to intentionally not tie the fee to market value or sales price, thus avoiding speculation and maintaining a consistent City revenue model as permit demand rises and falls?
State Lands has indicated that it has very little control over what trustees do as far as rates and fees, so it would seem to me, that the two in practice scenarios identified above (And others), would not be objected to by State Lands, considering the high level of autonomy Trustees are given. Am I mistaken on that?
And I am sorry that my separate e-mails to you and Jeff, and others, contributed to inefficiency. This was done in effort to try and obtain as quick of a response as I could, seeking to timely engage. As I've noted, the City of Newport Beach and their consultants have been quite adept at manipulating State level Staff. One only has to look at what occurred at Coastal on February 5th of this year, to see one severe instance of that.
I apologize.
Adam Leverenz Sent: Tuesday, September 30, 2025 2:35 PM To: Ad lever < Subject: RE: Newport Beach Tidelands Management Review Hi Adam, There is not an established standard that applies to all situations. The staff report is referring to obligations under the City's fiduciary duties. In this case, staff considered that the fee is unrelated to the transfer price, does not scale or otherwise change to reflect changes in a transfer price, and is a small
r the City's fiduciary duties. In this case, staff considered that the fee is unrelated to the transfer price, does not scale or otherwise change to reflect changes in a transfer price, and is a small percentage of the average transfer price. There is also not necessarily an amount where a fee would be fair compensation for a transfer sale; it may also be that any sale that results in a private party receiving money for transferring a City permit is not permissible under the City's fiduciary duties. We did not discuss that hypothetical in the report.
In the future, if you are going to ask Jeff and me the same question, please send one email addressed to both of us rather than two separate emails. That will make it easier for us to efficiently respond.
Ben Benjamin Johnson (he/him) Senior Attorney CALIFORNIA STATE LANDS COMMISSION Legal Division 100 Howe Avenue, Suite 100-South Sacramento CA 95825 916.562.0020 [email protected] PRIVILEGE AND CONFIDENTIALITY NOTICE. This message and its contents, together with any attachments, are intended only for the use of the individual to whom or entity to which it is addressed and may contain information that is legally privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this communication and any attachments or other use of a transmission received in error is strictly prohibited. If you have received this transmission in error, please notify me immediately at the above telephone number or return the email and delete this message, along with any attachments, from your computer. Thank you.
From: Ad lever Sent: Thursday, September 25, 2025 10:48 AM
diately at the above telephone number or return the email and delete this message, along with any attachments, from your computer. Thank you.
From: Ad lever Sent: Thursday, September 25, 2025 10:48 AM Subject: Newport Beach Tidelands Management Review Attention: This email originated from outside of SLC and should be treated with extra caution.
Good day Ben, Please let me know what numerical standards/benchmarks/ranges/etc., that the State Lands Commission uses to determine/define if trust funds are being "fairly compensated"?
From the CSLC 08/2025 Staff Report: "The transfer program creates the potential for private parties to financially benefit from a private market for use of the City's granted lands - without the City's trust funds being fairly compensated."
Thanks, and take care, Adam Leverenz From: Sent on: To: Subject: mark Friday, October 31, 2025 5:26:58 PM Newport Beach Mooring Permit Holder Categories: Granted Lands Public Email Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Commission Staff, Thank you for taking the time to listen to members of the public that will be directly affected by the rule and rate changes that are being proposed.
The main reason I write you today is based on Draft Report 66 (see highlighted paragraph on attached pic). There is one paragraph on page 32 of your 35 page report, where staff clearly states that the current mooring permit holders stand to lose the money we have spent to obtain our permits, by no fault of our own. But by simply following the rules which were
rt, where staff clearly states that the current mooring permit holders stand to lose the money we have spent to obtain our permits, by no fault of our own. But by simply following the rules which were already in place. Page 32 reads as follows: "The city should end its program of allowing private mooring permit sales. Many current mooring permit holders purchased their moorings with the expectation that they would have the option to sell them in the future to recoup the purchase cost. The city could consider ways to phase out transfers which recognize that the current mooring permit holders were only following the city's established rules when they purchased their moorings. Commission Staff is not taking a position on whether compensation should be provided to the current mooring permit holders."
Staff correctly recognizes the fact that we as mooring permit holders stand to lose the many thousands of dollars we have spent to obtain a mooring permit, but by no fault of our own. Staff also recognizes that we were just following the rules which were already in place.
Seeing that Commission Staff is the main driving force behind changing the current system from permits to licenses, I am imploring staff to take a firm and loud position that current permit holders should NOT stand to lose the thousands of dollars we have all spent while simply following the rules which have been in place for decades. We need you to take the position that we should be compensated for our initial buy in. Especially being aware that the new rule changes will effectively eliminate any chance to recoup that same money in the future. Commission Staff has a duty and obligation to protect and support all Tideland users, and by choosing to NOT take a position(see last sentence in quoted paragraph
recoup that same money in the future. Commission Staff has a duty and obligation to protect and support all Tideland users, and by choosing to NOT take a position(see last sentence in quoted paragraph above) on whether we should be compensated, it appears that you are knowingly failing to protect us from severe financial loss.
I personally welcome the transition from permits to licenses, what I don't welcome is me being financially punished for following the rules.
Thank you for your time.
Sincerely, Mark Mathewson Newport Beach Mooring Permit Holder Q1 From: Sent on: To: Subject: Brian Miller Friday, October 31, 2025 10:28:00 PM Public Comment on Current Newport Liveaboard Situation Categories: Granted Lands Public Email Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Executive Officer Dumlao and SLC Staff, I am writing to you today to express my support for the current mooring permittees and liveaboards of Newport harbor.
One of my closest friends has a mooring in the harbor and it has been an amazing source of adventure for all of us. During my time in grad school at UCI, my friend's boat was a major source of relaxation that helped me get through the stressful moments of my PhD. All of this wouldn't have been possible without low-cost, affordable mooring permits that allow everyday citizens to participate in California's beautiful coastline. Please do not take that away from the good people who live in the Newport mooring.
Thank you for your time.
Best, Brian Miller, PhD Weiss Research Group Department of Chemistry University of California, Irvine From: Sent on: To:
from the good people who live in the Newport mooring.
Thank you for your time.
Best, Brian Miller, PhD Weiss Research Group Department of Chemistry University of California, Irvine From: Sent on: To: Subject: Denise Rosa-Schroder Friday, October 31, 2025 12:33:47 AM Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
I love the fact that my son has a mooring in Newport Beach. This safe location reassures me that he has a place to return to after his voyages. That brings me a comforting feeling. Without this mooring he never would have discovered this whole new world revealed to us by the sea. I've watched his passion for the ocean grow to levels of obsession, thanks to his sailboat and mooring.
In fact, I sailed for the first time in my file with him when I turned 60. The feeling of freedom, was incredible. The boat took us to places I didn't imagine existed (Baja) and would have missed, if traveling by land.
His boat is also his home as a legal liveaboard. Please don't take it away from him or the other wonderful people that call the moorings 'Home'.
Thank you very much.
Best regards.
Denise Rosa-Schroder From: Sent on: To: Subject: Wade Womack Friday, October 31, 2025 10:07:54 PM Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email
0:07:54 PM Public Comment on Draft Report on the City of Newport Beach's Public Trust Lands Management Categories: Granted Lands Public Email Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Executive Officer Dumlao and SLC Staff, Are you aware that Newport Beach city staff recommended an outrageous mooring rate increase of over 1,000 % for onshore moorings in January of 2022 based on another flawed appraisal by James Netzer? As you should be aware, James Netzer is the same appraiser used again in this controversial and unjustified rate increase of roughly 500%. In 2022, mooring permit holders were forced to drop everything and contest an absurd rate increase recommendation that appeared to be structured to price onshore mooring permit holders out of the harbor, while other harbor users enjoyed far lower rates for the same use of the same water.
I encourage SLC staff to review and comment on the 2022 shore mooring rate recommendation in the current draft report.
This will help show yourself and SLC Commissioners the pattern of conduct of city staff that has clearly been targeting and harassing the mooring permit holders over several years. All while the city fails to review other permit rates for similar users in the harbor.
To ignore the pattern of conduct is to turn a blind eye to the clear poor conduct that is occurring.
I concur with the following remarks below my signature line.
Sincerely, Wade Womack I am a tidelands user in Newport Harbor and respectfully ask SLC Staff to revisit the Newport Tidelands Draft report in its entirety based on updated information provided to Staff over recent weeks. This draft report suggests policy changes that
espectfully ask SLC Staff to revisit the Newport Tidelands Draft report in its entirety based on updated information provided to Staff over recent weeks. This draft report suggests policy changes that would have major adverse effects on equitable treatment of tidelands users both in Newport and throughout the state. My primary concerns include: 1. Historical and Existing Rate Discrimination: The draft SLC staff report on Newport Tidelands does not adequately address the existing extraordinary rate discrimination in Newport Harbor, which is strictly prohibited in the granting statute as well as current State policy. A simple evaluation of existing rates charged per square foot of impact area of boats using moorings vs. boats using piers proves beyond a shadow of a doubt that mooring permit boaters are charged far more (up to 20 times more) than pier permit boaters. This extreme rate discrimination has occurred for more than a decade. (Please see the NMA Website "SLC Draft Report" page for more information.)
I respectfully ask SLC Staff to recommend that the City address the EXISTING rate discrimination and to refrain from further actions that increase financial harm to mooring permittees.
Please recommend to the City that they use the same square foot methodology for both self-maintained moorings as they do for self-maintained piers.
2. Unreasonable Attack on Legal Mooring Transfers: According to materials obtained by the Newport Mooring Association and stakeholders through public records requests, City staff and advisors appear to have been discussing changes to mooring transferability with State Lands Commission staff over the past two years. Frequently cited as justification for ending the longstanding mooring permit transfer program
n discussing changes to mooring transferability with State Lands Commission staff over the past two years. Frequently cited as justification for ending the longstanding mooring permit transfer program is an outdated 2006-07 Civilian Grand Jury Report. This is referenced despite the fact that the concerns raised in that R1 report were subsequently addressed through years of Harbor Commission and City Council deliberations. Those public processes produced numerous improvements and community benefits, including: 1. Mooring permit holders agreeing to pay a significant increase in permit transfer fees with significant revenues going into the tidelands fund for public benefit 2. Mooring permit holders agreed to make their privately owned and maintained mooring tackle available for general public use via the City run mooring sublet program, with all rents going to the tidelands fund for further public benefit.
3. Mooring holders agreed to not transfer any mooring permit within the first 12 months of acquiring one to avoid any appearance of "flipping" mooring permits.
4. Members of the public being limited to holding two mooring permits Is Staff asking for a major policy change affecting users of tidelands and State lands throughout the State, without a major study or analysis?
Mooring permits have been transferable for nearly a hundred years. Other permits for the use of tidelands and State lands historically have been, and remain, transferable. Both Staff and the Commission are well aware of these facts, yet the Staff report suggests ending the right to transfer a mooring permit in Newport Beach and treating working class mooring permit holders differently than what is allowed in other harbors throughout the state. Other tidelands permits remain transferable
a mooring permit in Newport Beach and treating working class mooring permit holders differently than what is allowed in other harbors throughout the state. Other tidelands permits remain transferable both in this harbor and others: 1. Mooring permits are lawfully transferable up and down the coast of California, including in Avalon, Morro Bay, and Monterey. Slip transfers are allowed in Santa Barbara. Permits for the use of other State lands are also transferable in many cases. Why single out working class people with boats on moorings in Newport Beach? This appears to be an inequitable and politically motivated policy change with major implications.
2. Transferability was not a concern when extreme rate increases were initially proposed in January 2024. In fact, in May of 2023 The City Attorney and City Harbormaster both assured mooring permit holders that permits would remain transferable "in perpetuity."
3. Mooring permit holders have relied on past practice, mitigation factors, extremely high fees paid to the City for the right to transfer, and legal opinions expressed in public by the City attorney when lawfully acquiring mooring permits associated with privately maintained mooring tackle under mandated City policy 4. The City's proposal to eliminate permit transferability affects only one category of Tidelands Permit holders-majority lower income, non-resident mooring permittees. Within Newport Harbor, other permit holders of tidelands are allowed to transfer their permits, including for tidelands in front of homes with docks, marina owners, restaurants, etc.
I respectfully ask SLC Staff to acknowledge the facts above and remove from their draft that the transfer of mooring permits
or tidelands in front of homes with docks, marina owners, restaurants, etc.
I respectfully ask SLC Staff to acknowledge the facts above and remove from their draft that the transfer of mooring permits is in conflict with state laws or regulations, especially given that SLC Staff have not made this recommendation to other harbors who engage in the same practice.
3. Legal Guidance and Common Sense do not align with the City's proposed “taking" of mooring permits: Reputable law firm Palmieri, Hennessey, and Leifer (PHL) wrote a letter to the City dated July 9, 2024 regarding the City's plan to convert all mooring permits into licenses [without compensating mooring holders] stating that "The City's plan institutes a taking. More specifically, it is an uncompensated taking not in compliance with the Eminent Domain law or the United States and California Constitutions.....the City intends to increase the mooring rates despite the taking of the mooring permittees' personal property [and legally obtained permit]. This scenario therefore presents a textbook case of an unconstitutional taking pursuant to the Fifth and Fourteenth Amendments' due process clauses as well as the Fifth Amendment's taking clause ["nor shall private property be taken for public use without just compensation"].)" City of Newport Beach. City Council. (2024, July 9). Objections to City's Proposed Actions Regarding Mooring Rates [Letter to City Council]. Retrieved from [URL] p 367-410.
Given these facts and concerns, I respectfully ask SLC Staff to advise the City of Newport Beach not to remove or adversely impact transferability of existing mooring permits while they will continue to allow transferability of other permits in the Harbor.
taff to advise the City of Newport Beach not to remove or adversely impact transferability of existing mooring permits while they will continue to allow transferability of other permits in the Harbor.
4. SLC Staff's reliance on a highly controversial and problematic December 2023 mooring rate appraisal: It appears SLC Staff has performed only an informal review of the December 2023 mooring rate appraisal that attempts to peg self-maintained mooring rates as a ratio of full service marina slip rates. SLC staff have not provided any formal appraisal review document. The December 2023 Mooring Rate appraisal has been highly controversial because: 1. The appraisal relies on a mooring-to-slip ratio that the appraiser himself stated was "unreliable" in his previous 2016 appraisal.
2. Documentation has been provided to SLC Staff that appears to strongly suggest City officials identified the assigned appraiser well prior to the City even sending out an RFP (bid request) for the mooring appraisal project. The same documentation (City emails) suggest that the appraiser was possibly influenced or steered by City officials in advance of, and during the appraisal. (Please see the NMA website for more information) 3. Unlike other harbors looked at in the report, Newport Beach does not provide access to the moorings. However, the appraisal report did not deduct the cost of obtaining in-water dinghy dock space, which in addition to other reasons, gives the report the appearance of treating mooring holders unfairly. The lack of shoreside access to offshore moorings in Newport is a significant factor that must be accounted (factored in) for in any reliable mooring appraisal.
e of treating mooring holders unfairly. The lack of shoreside access to offshore moorings in Newport is a significant factor that must be accounted (factored in) for in any reliable mooring appraisal.
4. The Newport Mooring Association has provided a thorough appraisal prepared by CBRE, a global leader in commercial real estate appraisals, who confirmed that existing rates were already at fair market in late 2023, and which took into account the lack of access and the cost of obtaining access to moorings.
I respectfully ask SLC Staff to no longer deem the City's December 2023 appraisal as reliable given these circumstances and given the major difference between the two appraisals. Please advise the City to order a truly independent appraisal that uses the same methods for the use of tidelands for moorings, homeowner docks, restaurant docks and other uses on Newport Harbor.
5. Lack of Transparency in development of License Conversion (City's Alternative Recommendations): The public was informed of the Harbor Commission's proposal to increase mooring rates up to 500% in January of 2024.
From January of 2024 to July of 2024, the public endeavored to engage in the democratic process regarding rate increases that would only compound the already existing rate discrimination. Over the busy 4th of July weekend in 2024, the City unveiled last minute "Alternative Recommendations" that would not only raise rates by up to 500%+, but in addition, would take mooring permits from individuals and convert them into short-term, "City-owned" and managed assets.
1. The City's abrupt pivot-from more than six months of dialogue on fair mooring rates to a proposal resembling mooring
m individuals and convert them into short-term, "City-owned" and managed assets.
1. The City's abrupt pivot-from more than six months of dialogue on fair mooring rates to a proposal resembling mooring confiscation, introduced with less than one business day's notice-appears to advance an agenda of pricing working class boaters out of the harbor.
2. The last minute plan had no analysis or data to show that it would better provide or enhance coastal access. On the contrary, it would transition access away from those who presently have it.
I respectfully ask SLC Staff to recognize that the City failed to act transparently in its role as trustee of the State's tidelands, and has engaged in discriminatory Tidelands management.
I respectfully ask that the City be required to start over on any changes to the mooring permit system and properly engage the public in a transparent process that is equitable and fair to all tidelands users.
Thank you, Sent from my iPhone From: Joel Spano Sent on: Monday, November 3, 2025 3:28:19 PM Subject: Public comment on Draft report Newport beach Public land trust Some people who received this message don't often get email from Learn why this is important Attention: This email originated from outside of SLC and should be treated with extra caution.
Dear Executive Officer Dumlao and SLC staff, I am writing to share my wonderful experiences at the Newport mooring field with hopes you will stop the City of Newport from further actions that will increase the cost to mooring field permit holders.
The mooring ball in Newport Harbor was the first major purchase my son, Michael made while attending UC Irvine. He
ort from further actions that will increase the cost to mooring field permit holders.
The mooring ball in Newport Harbor was the first major purchase my son, Michael made while attending UC Irvine. He lived very frugally and managed to save most of his student stipend and with a little help from me he purchased a mooring spot in Newport harbor. I'll never forget the smile on his face when he took possession of this spot. Since then, I have enjoyed many trips to Newport to visit my son. My first visit occurred in May 2021. My son was excited to take me sailing on his new to him CF 37, a vintage fiberglass sailboat built by Dennis Choate from Long Beach. Dennis is a long-time sailing enthusiast and still provides componentry to the sailing community. This vessel was one of only ten built over forty years ago. It needed work but it had good "bones” and became the focal point for many trips from Rochester N.Y. to Newport. The walks down Balboa Boulevard to get breakfast at Charlies Chili and a doughnut at Seaside Bakery bring back fond memories and became a staple for every visit.
The father son bonding during these trips was priceless. We would spend hours together performing routine maintenance and I would listen to him talk about the trips he had planned for the boat. I knew from the moment I stepped on the vessel, and we headed to Catalina for the first time this would be one of many.
Michaels passion for the sea allowed me to live vicariously through his adventures. He's taken several trips to San Diago, Ensenada Mexico and further south to the sea of Cortez. He even captained a vessel across the Atlantic to Portugal. Upon his return to New Port there was always a welcoming committee and small party hosted by the live aboards in the mooring
sea of Cortez. He even captained a vessel across the Atlantic to Portugal. Upon his return to New Port there was always a welcoming committee and small party hosted by the live aboards in the mooring field. It gave me great comfort knowing there were people /friends that would watch out for him when I returned to NY.
The mooring field in Newport remains one of the last vestiges of affordability for the sailing community. I see the folks on Lido Island and Balboa Islands, they have private piers and guaranteed access to the harbor, so I implore you to intervene and be part of something larger than the all-mighty buck. I'm asking you to ensure the city of Newport adopts the same square foot methodology for self-maintained moorings as they do for self-maintained piers. Your intervention can help ensure continued affordability for middle class folks like me and prevent the Newport mooring community from being priced out of the market.
Sincerely Joel Spano From: Sent on: To: CC: Subject: Hein Online Friday, November 7, 2025 1:10:44 AM
SHOULD MOORINGS PAY LESS THAN DOCKS? - Both Lt. Gov. Eleni Kounalakis and State Lands Executive Officer Jennifer Lucchesi have indicated yes.
Attachments: Attachment B PUBLIC COMMENTS - HEIN AUSTIN - Unpublished Opinion - Court of Appeal 090120(2872503.1).pdf (194.78 KB), Attachment C p4 -- PUBLIC COMMENTS - HEIN AUSTIN City.SJ.final.notice.motion.May 24, 2018(2644833.1).pdf (2.85 MB), Attachment D - Public Comments Hein Austin - Dock at 710 South Bay Front EXCLUDING BOATS .png (121.85 KB), ATTACHMENT E PUBLIC COMMENTS - HEIN AUSTIN - CITY RATE INCREASE PROPOSAL Item No. 6.pdf (456.53 (782.37 KB), Attachment A Docks v Moorings Hein Austin SLC Nov 2025.pdf (421.85 KB) -Follow up: Start date: Follow up Friday, November 7, 2025 12:00:00 AM Due date: Friday, November 7, 2025 12:00:00 AM
2.37 KB), Attachment A Docks v Moorings Hein Austin SLC Nov 2025.pdf (421.85 KB) -Follow up: Start date: Follow up Friday, November 7, 2025 12:00:00 AM Due date: Friday, November 7, 2025 12:00:00 AM Attention: This email originated from outside of SLC and should be treated with extra caution.
October 16, 2025 (Updated with new information) California State Lands Commission 100 Howe Avenue, Suite 100-South Sacramento, CA 95825 Attn: Honorable Lt. Governor Eleni Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff RE: Request for Enforcement of Fair Rate Ratio Harbor - Dock to Mooring Rate Ratio of 1:15 in Newport Dear Honorable Lt. Governor Kounalakis, Dr. Matthew Dumlao, Commissioners, Alternates, and Staff, My name is Hein Austin, and I am writing to formally advocate for the adoption and enforcement of a Dock to Mooring Rate Ratio of 1:1 on the Tidelands in Newport Harbor, wherein the lower tier, utility lacking, and difficult to access moorings pay no higher fees than the Residential Piers.
According to the imagery in Attachment A, the docks in question are connected to a public walkway that clearly separates the Tidelands from adjacent upland properties. Importantly, these upland parcels do not abut the Tidelands and do not appear to hold title to any portion of the tidelands, and therefore do not possess any special or littoral rights. The City of Newport Beach persuaded the Courts that their proximity to the tidelands does not confer any exclusive privilege or special priority access to these public lands. (see Attachment B - Riddle v. Valley p17, and Attachment C – Riddle v. The City p4, 14, and 15) This means that Moorings and Docks without title to the Tidelands have equal access and equal legal standing on the Public Tidelands.
Valley p17, and Attachment C – Riddle v. The City p4, 14, and 15) This means that Moorings and Docks without title to the Tidelands have equal access and equal legal standing on the Public Tidelands.
Further more, this matter is not simply about proximity, but about equity and consistency. Docks and moorings serve identical functions and should be treated as such under the law. Both are: .
• • Used for recreational boating Installed and maintained by the permittee • Used to store personal vessels • Occupying the same public water space • Pay rent for their placement over these public waters Docks have amenities, and are easy to access, while moorings are primitive, with no amenities, and are difficult to access, suggesting that Moorings should pay less than Docks; per square foot. -Both Lt.
Gov. Eleni Kounalakis and SLC Executive Officer Jennifer Lucchesi have opined that Moorings should incur lower fees than Docks. (see VIDEO 1 - SLC - 1:39:00, and VIDEO 2 – CCC – 1:59:19) In Newport Beach however, there is currently an alarming discrepancy in the valuation and rate methodology being applied. While dock rates (Docks + boats) are calculated at approximately $0.17 per square foot, the City has adopted a linear-foot-based methodology for moorings, and proposes an effective rate of over $11.50 per square foot- a nearly 7,000% disparity, or a Dock to Shore Mooring Rate Ratio of ~ 1:64. (see Attachments D and E, and the supporting foot notes below) This gross inequity cannot be reconciled with the Granting Statute, which clearly prohibits "discrimination in rates, tolls, and charges for any use and services on the Tidelands." (See CA Granting Statute p199) While I understand that the State Lands Commission does not directly set rates
s "discrimination in rates, tolls, and charges for any use and services on the Tidelands." (See CA Granting Statute p199) While I understand that the State Lands Commission does not directly set rates imposed by local Trustees, I also understand that the Commission bears the legal and ethical responsibility to ensure that rate structures between identical users remain fair, reasonable, and consistent with the Public Trust Doctrine.
To that end, I respectfully request that Staff and the Commission: 1. Recognize Residential Docks and Moorings as “like for like”, recreational, waterspace only uses, and therefore subject to the same valuation principles, to be applied simultaneously and comprehensively; 2. Recommend a uniform square foot methodology applied to both moorings and docks in Newport Harbor, free from bias; 3. Enforce a Dock to Mooring Rate Ratio of 1:1, using the same square-foot-rate methodology, at the same time, consistently across all non-commercial user types in the Harbor, wherein the lower tier, utility lacking, and difficult to access moorings pay no higher fees than the Residential Piers.
This long-standing rate disparity is more than just an accounting issue; it is a matter of fairness, legal compliance, principle, and public trust. (see Attachment F p2) The undeniable Truth is water is water—whether under a dock or a boat—and it should be valued equally, and free from baseless bias, when used in the same manner. Affluent Dock owners and lower income, working class (and majority non-resident) Mooring Holders should all pay similar rates per square foot, consistent with their level of convenience.
Thank you for your attention and consideration. I trust the Commission will take appropriate steps to
Holders should all pay similar rates per square foot, consistent with their level of convenience.
Thank you for your attention and consideration. I trust the Commission will take appropriate steps to address and resolve this glaring socioeconomic inequity in the spirit of fair and lawful stewardship of, and access to our public Tidelands.
Respectfully, Hein Austin HeinA.p Enclosure and Footnotes (using rounded numbers): Attachment A – Image of Public Walkway, Docks, and Moorings Attachment B and C: Court Case in which the City persuaded the State that unless a dock holds title to a portion of the tidelands, the dock has no littoral rights.
Attachment D - Dock: City's GIS Website showing the Dock pays $692/yr for 1,193 sqf. Owner pays for Dock structure only, boats not included. An Online Map Calculator shows that if Boats are included the total footprint over the Tideland the actual Dock footprint increase from 1193sqf to ~4000sqf.
($692/4000 = 17c/sqf) The Dock pays .17c/sqf/yr to park multiple boats.
$8/17c = 47 (Dock to Mooring Rate Ratio is 1:47) The mooring pays 47x more than the Dock per square foot on the same water.
Attachment E-Mooring Rental Rates/Linear Foot Table (showing Increase Proposal) Shore Mooring Rate increases will transition from the current CPI based Rate increase system to the Balboa Yacht Basin Marina Slip Rate Increase System (BYB), where Moorings will experience extreme rate increases each year, and rates will go up from the current $29/m ($356/yr), for a shore mooring, to $138.72/m by 2030, or $1664.64/yr ($1664.64/144sqf = $11.56/sqf) (Residential Dock Rates on the other hand will
ach year, and rates will go up from the current $29/m ($356/yr), for a shore mooring, to $138.72/m by 2030, or $1664.64/yr ($1664.64/144sqf = $11.56/sqf) (Residential Dock Rates on the other hand will continue to go up in significantly smaller increments, and according to the Consumer Price Index of around ~2%/yr) Tying Mooring Rates increases to the Slip rates at the BYB will further increase the 7000% disparity between the Affluent Dock owners and the Lower‐tier Mooring Holders.
~ Attachment F: Legal Council Palmieri, Hennessey, and Leifer, detailing inequities on behalf of mooring permit holders.
The CA Granting Statutes of 1978 CA Granting Statute p199 FREE SQUARE FOOT BASED ONLINE Map Calculators, and The Newport Beach Harbor DOCK Permits GIS Website: 1. Official Orange County Online Map Calculator 2. FREE MAP TOOLS Online Map Calculator 3. Newport Harbor GIS MAPS AND Dock Permits (see Harbor Layers and Residentail Pier Permits).
SOCIOECONOMIC RATE DISCRIMINATION BETWEEN DOCKS AND MOORINGS Nearest Address to Notation C: 710 South Bay Front Newport Beach, CA Public Pedestrian Walkway, and Seawall, Separating Upland Residential Parcels and the Tidelands Three Identical Users: All Recreational, Self Installed, Self Maintained, Boat storage, Using the Same Water S Bay Front HOMES WITH NO SPEC S Bay Front ACCESSIO THE TIDELAND 802 804 806 808 810 706 710 800 S Bay Front S Bay Front S Bay Front RIGHTS TO Sapphire Ave 900 904 902 906 908 PUBLIC WALKWAY & SEAWALL C DOCK A SHORE MOORING - 18x8ft RATE 4000 sqf/$690/yr = 17c/sqf/yr A SHORE MOORING ~ ~ 144 sqf $1664/yr ~ $11.50/sqf/New Rate Transferability Ends Cannot Rent B B OFF-SHORE MOORING - 40ft OFFSHORE MOORING
c/sqf/yr A SHORE MOORING ~ ~ 144 sqf $1664/yr ~ $11.50/sqf/New Rate Transferability Ends Cannot Rent B B OFF-SHORE MOORING - 40ft OFFSHORE MOORING ~1200 sqf ~ $7200/yr ~ $7/sqf/New Rate Transferability Ends Cannot Rent C PRIVATE DOCK ~ $690/yr ~ 17c/sqf/yr Transferable/Renewable 50 YRS Can Rent to 3rd Parties SBay Front 0.002 Hectares 192.909 Feet Keyboard shortcuts Map data 02025 magery 92025 Airbus 5m 0.011 Hectares 1192.776 Feet SBay Frant Stay Keyboard shortcuts Map data 2025 magery 2025 Arbus 15m 0.036 Hectares 3912.766 Feet WEBSITES REFERENCED: USING FREE MAP TOOLS, NEWPORT BEACH GIS WEBSITE Filed 9/1/20 Riddle v. Vallely CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SUSAN [BIDART] RIDDLE, as Trustee, etc., Plaintiff and Appellant, V.
JOHN VALLELY et al., Defendants and Respondents.
G057397 (Super. Ct. No. 30-2015-00808124) OPINION Appeal from a judgment of the Superior Court of Orange County, Layne H.
Melzer, Judge. Affirmed.
Claremont Land Group, Geralyn L. Skapik, Mark C. Allen III and Blair J.
Berkley for Plaintiff and Appellant.
Respondents.
Law Office of Harry S. Carmack and Harry S. Carmack for Defendants and * * * This is a dispute between neighboring property owners on Balboa Island in
Berkley for Plaintiff and Appellant.
Respondents.
Law Office of Harry S. Carmack and Harry S. Carmack for Defendants and * * * This is a dispute between neighboring property owners on Balboa Island in the City of Newport Beach (the City). The City leased the tidelands in front of the properties to one of the property owners, who operates a commercial pier that extends in front of both properties. The other property owner asserts the City improperly issued the lease and complains the pier “encroaches” in front of her property, foreclosing her access to the harbor. She brought a complaint and petition for writ of mandate against her neighbor and the City, asserting claims for inverse condemnation, declaratory relief, and violations of due process, the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.), the City Charter, and City Council Resolution No. 2012-97 regarding commercial tidelands leases. The trial court granted the City's motion for summary adjudication (MSA) on her inverse condemnation claim, and following a bench trial, it entered judgment for defendants on the remaining claims. For the reasons discussed below, we affirm.
FACTS Plaintiff Susan [Bidart] Riddle, as trustee of the Leonard A. Bidart Family Trust under Trust Agreement Dated August 15, 2001, has owned the real property located on Balboa Island in the City of Newport Beach since at 1993. Defendant John Vallely and his wife, Karen Vallely, as co-trustees of the John Stephen Vallely Trust, own the neighboring real property located at The Vallely family has owned and lived in that property for over 80 years.
Both properties overlook the water, but they are separated from Newport Bay by an eight-foot-wide City-owned public walkway. The City holds title to the
d and lived in that property for over 80 years.
Both properties overlook the water, but they are separated from Newport Bay by an eight-foot-wide City-owned public walkway. The City holds title to the tidelands in Newport Bay in trust from the State of California.
Vallely and his wife operate a commercial business, Vallely Boat Rentals (a sole proprietorship), in those tidelands. The pier, dock, and floats have existed in their current configuration since the late 1930s, when Vallely's father added the dock and 2 floats under permits issued by the City and the Army Corps of Engineers. Vallely has managed his family's business since 1976.
Although the Vallely pier was already there when Riddle purchased her property in 1993, Riddle now objects to the pier's existence because it "encroaches” in front of her property, blocks her access to the harbor, and prevents her from applying for a permit to build her own pier.
After Vallely's mother died in 2012, Vallely applied to have the permit for the pier, which the City had issued to his parents' family trust, transferred to his own family trust. The City denied his transfer application because at the time, the Newport Beach Municipal Code (NBMC') required a new pier permit application under the circumstances. (See NBMC § 17.35.020(F) [“In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by ownership of the abutting upland property owned by the permittee or upon the death of the permittee . . .”].)
Vallely filed a petition for writ of mandate to require the City to transfer his parents' permit to him. The trial court denied his petition, noting the relevant provisions
of the permittee . . .”].)
Vallely filed a petition for writ of mandate to require the City to transfer his parents' permit to him. The trial court denied his petition, noting the relevant provisions of the NBMC were “confusing” and “riddled with uncertainty.” Vallely appealed.
While his appeal was pending, in December 2013, the City adopted Ordinance No. 2013-27, which amended NBMC Chapter 17.60 and subsection 17.35.030(B)(2) regarding leases and permits for piers in the tidelands.
Among other things, the ordinance amended NBMC section 17.60.060(E) to “allow a person to apply for a commercial pier permit or lease in front of or encroaching upon 1 The NBMC has undergone various revisions in recent years. This opinion utilizes the 2015 version, which was introduced as an exhibit at trial and which controlled during the events in question.
3 abutting upland property not owned or leased by the person applying for the permit."
(Italics added.) The amended code section also exempted commercial pier leases and permits “from any provision requiring involvement of the owner or long-term lessee of an abutting upland property."
After these legislative changes took effect, Vallely learned he could operate his commercial pier business under a tidelands lease and thus did not need to pursue a permit transfer via his pending appeal. Vallely's litigation counsel and the assistant city attorney negotiated a lease in which Vallely Boat Rentals leased the tidelands in front of the Vallely and Riddle properties from the City for a 50-year period. Subject to revisions which we discuss below, the lease resembled the model commercial tidelands lease template that the City Council had approved and adopted in late 2012 in Resolution No.
ear period. Subject to revisions which we discuss below, the lease resembled the model commercial tidelands lease template that the City Council had approved and adopted in late 2012 in Resolution No.
2012-97. The City Manager signed the Vallely lease on behalf of the City, and Vallely signed on behalf of Vallely Boat Rentals. The lease was issued without a public hearing or any formal notice to Riddle.
One day after the lease's effective date, Vallely dismissed his appeal in the permit transfer litigation. The City Manager and the assistant city attorney concede the lease was designed to resolve the litigation and moot Vallely's appeal. There is no evidence the City Council approved any sort of formal settlement with Vallely.
Riddle takes issue with both the Vallely lease and the way it was issued.
She contends the lease damages her littoral rights in the tidelands, including her right to access the harbor and her right to build her own pier. She contends the City Manager lacked the authority to issue the Vallely lease, and she asserts the lease does not comply with local law regarding commercial tidelands leases. Riddle further complains the City Council secretly settled Vallely's pier permit transfer litigation by issuing the lease, without giving her notice of the lease or an opportunity to be heard, and without following the requirements of the Brown Act.
4 Riddle sued the City and Vallely (collectively, Defendants) to invalidate the lease. In her operative Third Amended Verified Petition for Writ of Mandate and Complaint, Riddle asserted five claims: (1) declaratory relief that the lease is invalid; (2) petition for a writ of mandate invalidating the lease as a violation of the City Charter
it of Mandate and Complaint, Riddle asserted five claims: (1) declaratory relief that the lease is invalid; (2) petition for a writ of mandate invalidating the lease as a violation of the City Charter and Resolution No. 2012-97 concerning commercial tidelands leases; (3) petition for a writ of mandate invalidating the lease as a violation of Riddle's due process rights; (4) violation of the Brown Act (against the City only); and (5) inverse condemnation (against the City only).
The City filed an MSA on Riddle's inverse condemnation claim, asserting Riddle has no property right in the leased tidelands and thus cannot show a taking occurred. The trial court agreed and granted summary adjudication for the City.
2 Trial then commenced on the remaining four causes of action. After trial, the trial court issued a detailed 14-page statement of decision ruling in Defendants' favor, and it entered judgment for Defendants on all five causes of action. Riddle appealed.
DISCUSSION 1.
Inverse Condemnation Riddle first contends the trial court erred in granting summary adjudication for the City on her inverse condemnation claim. According to Riddle, a triable issue of fact exists as to whether the Vallely lease harmed her littoral property rights. We review the grant of summary adjudication de novo, applying the same standards we apply in reviewing an order granting a motion for summary judgment, and considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1471-1472.)
2 The City also sought summary adjudication on Riddle's fourth cause of action, but the trial court denied that portion of its motion.
5
Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1471-1472.)
2 The City also sought summary adjudication on Riddle's fourth cause of action, but the trial court denied that portion of its motion.
5 To bring a successful inverse condemnation claim, a plaintiff “must prove that a public entity has taken or damaged [her] property for a public use." (Pacific Bell v.
City of San Diego (2000) 81 Cal.App.4th 596, 602.) That is, she “must show there was an invasion or appropriation (a "taking" or "damaging") of some valuable property right which the property owner possesses by a public entity and the invasion or appropriation directly and specially affected the property owner to [her] injury."" (City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221.)
Riddle contends the City damaged her property rights by allowing the pier on Vallely's leased premises to “encroach” in front of her property and foreclose her access to the harbor. The City holds title to the tidelands where the offending pier and floats are located, but Riddle insists she owns the "full complement of littoral property rights" in those tidelands, including the right to build a pier out to the line of navigability and the right of access from every part of her frontage across the foreshore. According to Riddle, these rights were harmed by the issuance of the Vallely lease. We cannot agree.
Littoral rights are water rights enjoyed by landowners whose property "border[s]," is "adjacent to,” or “abut[s]” a natural lake, pond, sea, or ocean. (See State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 63, fn.1; Kendall v. Walker (2009) 181 Cal.App.4th 584, 593; Tusher v. Gabrielsen (1998) 68 Cal.App.4th
a, or ocean. (See State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 63, fn.1; Kendall v. Walker (2009) 181 Cal.App.4th 584, 593; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 146-147; see also L.A. Athletic Club v. Santa Monica (1944) 63 Cal.App.2d 795, 799 [properties that “no longer bordered upon the sea” were not littoral properties].) "A littoral owner has been held to have the right to build a pier out to the line of navigability; a right to accretion; [fn. omitted] a right to navigation (the latter right being held in common with the general public) [citation]; and a right of access from every part of his frontage across the foreshore [citation].” (Marks v. Whitney (1971) 6 Cal.3d 251, 263 (Marks).)
Riddle's property neither borders nor abuts the tidelands. As Riddle conceded in her declaration and separate statement opposing the City's MSA, and during 6 oral argument, there is an eight-foot-wide City-owned public walkway that runs between her property and Newport Bay. Riddle's property therefore carries no ordinary littoral rights in the tidelands.
Riddle insists, however, that the NBMC affords her the “equivalent” of littoral property rights, including the right to construct a residential noncommercial pier.
We again disagree. According to the NBMC, the owner of an abutting upland residential property which by definition includes properties on Balboa Island that are separated from the harbor by a City-owned public walkway, like Riddle's-may obtain a residential pier permit if the Harbor Commission determines it is in the public interest.
(See NBMC §§ 17.01.030(A), 17.35.020(A)(1), 17.35.020(A)(8), 17.35.060, 17.60.030.)
Therefore, Riddle, as the owner of an abutting uplands property, has the right only to apply for a pier permit.*
st.
(See NBMC §§ 17.01.030(A), 17.35.020(A)(1), 17.35.020(A)(8), 17.35.060, 17.60.030.)
Therefore, Riddle, as the owner of an abutting uplands property, has the right only to apply for a pier permit.* 3 In any event, we need not resolve the question of Riddle's littoral rights because even if she did have such rights, those rights are subservient to the City's exercise of its powers to create and regulate the public harbor. The state, which holds all navigable waterways in trust for the benefit of the people of California, granted the City title in trust to the tidelands in Newport Bay in 1919. In 1978, through legislation known as the Beacon Bay Bill, the state renewed its grant to the City of all right, title, and interest in the tidelands and submerged lands, whether filled or unfilled, bordering upon or under the Pacific Ocean or Newport Bay that were within the City's corporate limits as of July 25, 1919, for the purpose of establishing, improving, and conducting a public harbor, and for constructing wharves, docks, piers, slips, quays, ways, and streets, among other uses. The Beacon Bay Bill further specifies the City may lease portions of the tidelands for up to 50 years for any purpose consistent with the trust. (See Stats. 1997, 3 Riddle has never applied for residential pier permit, nor has the Harbor Commission ever determined whether such a pier would be in the public interest.
7 ch. 317, §§ 1-2, pp. 2248-2254; Stats. 1978, ch. 74, §§ 1-16, pp. 198-207; cf. Civ. Code, § 718 [tidelands granted to any city by the state may be leased for a period not to exceed 66 years unless the grant from the state specifies the term for which said lands may be leased].)
The fact that the City holds title to the tidelands severely limits whatever
or a period not to exceed 66 years unless the grant from the state specifies the term for which said lands may be leased].)
The fact that the City holds title to the tidelands severely limits whatever littoral rights Riddle may claim. Although a “littoral owner has a right in the foreshore adjacent to [her] property separate and distinct from that of the general public,” that right is "burdened with a servitude in favor of the state [or its grantee] in the exercise of its trust powers over navigable waters." (Marks, supra, 6 Cal.3d at pp. 262-263; see Colberg, Inc. v. State of California ex rel. Dept. of Pub. Wks. (1967) 67 Cal.2d 408, 422 [littoral property owner's “right to have access to those navigable waters. . . is burdened with a servitude in favor of the state which comes into operation when the state properly exercises its power to control, regulate, and utilize such waters"].)
As a result, "the littoral rights of an upland owner who does not own title to the submerged land or tide land in front of his property are, under the law in this state, subject to being terminated at will by any disposition which the state may choose to make of such submerged lands or tide lands." (City of Newport Beach v. Fager (1940) 39 Cal.App.2d 23, 31 (Fager), italics added.) Thus, such an owner cannot maintain a claim against the state or its grantee for “depriv[ing her] of [her] property rights without due process and without compensation." (Ibid.) A littoral owner is “deprived of no property right since [her] right of access over the intervening tide lands to navigable water was a qualified right at all times subordinate to the paramount right of the state in which title to such tide lands was vested. No right of action exists in favor of a littoral
nds to navigable water was a qualified right at all times subordinate to the paramount right of the state in which title to such tide lands was vested. No right of action exists in favor of a littoral owner whose right of access over the tide lands to navigable waters has been cut off by the disposition which the state has made of such tide lands.” (Ibid.) "Although it is true that as against a stranger a littoral owner of upland bordering upon navigable waters may not be deprived of his right of access to such waters, no such right exists in favor of such 8 littoral owner as against the state or its grantee in the exercise of a lawful use or purpose.” (Id. at p. 28, italics added.)4 Under these authorities, even if Riddle has littoral rights to access or build a pier in the tidelands (an issue we need not decide), those rights are subservient to the City's powers to manage the tidelands in trust. The City's issuance of the Vallely lease was a valid exercise of those powers. As noted, under the Beacon Bay Bill, the City holds title to the tidelands in trust for the purpose of establishing and conducting a public harbor and for constructing docks and piers, among other purposes. The Beacon Bay Bill also expressly allows the City to lease the tidelands for terms not exceeding 50 years for purposes consistent with the trust. The Vallely lease is consistent with the trust's purposes, and it is for a term that does not exceed 50 years; thus it is a valid exercise of the City's powers. Consequently, any littoral rights Riddle may have in the tidelands were terminated by the City's issuance of the Vallely lease. (See Fager, supra, 39 Cal.App.2d at p. 31 [littoral rights are “subject to being terminated at will by any disposition which the state may choose"].)
nated by the City's issuance of the Vallely lease. (See Fager, supra, 39 Cal.App.2d at p. 31 [littoral rights are “subject to being terminated at will by any disposition which the state may choose"].)
For these reasons, Riddle cannot show the issuance of the lease amounted to a taking of a valuable property right. The trial court therefore properly granted summary adjudication for the City on Riddle's inverse condemnation claim.
2.
Writ of Mandate Invalidating the Lease We next consider the trial court's denial of Riddle's petition for a writ of mandate invalidating the Vallely lease as a violation of the City Charter and Resolution No. 2012-97. In this cause of action, Riddle asserted the City Council never authorized the City Manager to issue the Vallely lease, and the City Manager exceeded the scope of 4 Riddle attempts to distinguish Fager on the grounds that it was a sea-wall case in which the city was required to completely extinguish littoral property rights to make harbor improvements for the public benefit. This seems to us a distinction without a difference.
9 his authority in doing so. The trial court rejected these contentions and entered judgment for Defendants.
In a mandamus proceeding, the trial court “must determine whether the agency's action was arbitrary, capricious, or without evidentiary support, and/or whether it failed to conform to the law. The trial court may not substitute its judgment for that of the agency or force the agency to exercise its discretion in a certain way." (Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist. (2008) 168 Cal.App.4th 535, 542.) “In reviewing a judgment on a petition for writ of mandate, "[w]e review the trial court's findings of fact for substantial evidence, and review its
ion Control Dist. (2008) 168 Cal.App.4th 535, 542.) “In reviewing a judgment on a petition for writ of mandate, "[w]e review the trial court's findings of fact for substantial evidence, and review its legal conclusions, including its interpretation of statutory provisions, under a de novo standard of review."""" (Small Property Owners of San Francisco Institute v. City and County of San Francisco (2018) 22 Cal.App. 5th 77, 84.) Applying those standards here, we find no error in the trial court's denial of Riddle's writ petition.
5 To start, the City Manager had the authority to issue a commercial tidelands lease to Vallely. The City Charter permits the City Council to designate a city employee to enter into written contracts on its behalf. Consistent with that provision, in late 2012, the City Council adopted Resolution No. 2012-97, in which it approved and adopted a model lease template and a model permit template for commercial tidelands uses. In section 5 of the resolution, the City Council expressly "authorize[d] the City Manager or his/her designee to enter into the attached lease/permit, in a form that is substantially similar to the attached” templates. Attachment 1 to the resolution is a 38-page model lease agreement, and attachment 2 is a 6-page model commercial tidelands permit. As these provisions make clear, the City Council delegated to the City Manager the power to 5 Section 421 of the City Charter requires all contracts binding the City to "be made in writing, approved by the City Council or [an] employee designated by the City Council and signed on behalf of the City by the Mayor or by such other employee as shall be designated by the City Council." (Italics added.)
10 enter into commercial pier leases so long as they are "substantially similar" to the
of the City by the Mayor or by such other employee as shall be designated by the City Council." (Italics added.)
10 enter into commercial pier leases so long as they are "substantially similar" to the approved lease template.
Riddle contends the Vallely lease is not “substantially similar” to the model lease template adopted in Resolution No. 2012-97, and the City Manager therefore exceeded his authority in issuing the lease. The trial court rejected this argument: “The lease template contains approximately 166 individual provisions. In connection with their negotiations, the City and Vallely made approximately 15 modifications (largely eliminating certain language deemed unnecessary) while adding just a single provision.
None of these modifications have anything to do with the Riddle Property; they do not countermand existing provisions of the Harbor Code; nor do they undermine the City's fundamental police power to protect the public health, safety and welfare which remains safeguarded in the approved lease and the existing legislative structure for commercial uses in the Newport harbor. [¶] [] While the actual lease varies from the template such variations are to be expected the template must be adapted to accommodate a wide variety of commercial uses in Newport Harbor―shipyards, fuel docks, cruise docks, restaurant docks, marinas, etc. . . . In this context, the lease is 'substantially similar to the template."
Substantial evidence—most notably, the redlined comparison of the model lease template to the Vallely lease-supports the trial court's findings. We find no major revisions, additions, or deletions that render the Vallely lease not "substantially similar” to the model lease in violation of Resolution No. 2012-97. The phrase "substantially 11
s. We find no major revisions, additions, or deletions that render the Vallely lease not "substantially similar” to the model lease in violation of Resolution No. 2012-97. The phrase "substantially 11 similar" does not mean “identical." Indeed, in some contexts, the phrase can contemplate notable dissimilarities.° 6 According to Riddle, the “[m]ost concerning” revision was the deletion of paragraph 20 from the template concerning "surrender" of the pier premises at the end of the lease term. Riddle contends the deletion of this language will allow Vallely to remain in possession of the City's tidelands indefinitely. This argument misconstrues the Vallely lease language, which unambiguously states the lease term will be 50 years commencing on March 12, 2015 and terminating on March 11, 2065, unless sooner terminated.
Riddle further contends the deletion of recitals D and E from the model lease agreement shows the Vallely lease was not substantially similar to the model lease.
We are not persuaded. Recitals D and E state the lease was entered into pursuant to a resolution and the City previously issued a pier permit to the lessee. Neither is of particular significance here.
Riddle insists the City Council, in approving the template, deemed every provision in the model lease necessary. Thus, she contends, the City Attorney could not negotiate away provisions without consulting the City Council, and the City Manager could not execute the lease without the City Council's approval. Again, we disagree. In section 5 of the resolution, the City Council expressly authorized the City Manager to enter into leases that are “substantially similar” to the template. Nowhere does the 6 For example, in the copyright context, a plaintiff may establish that the
xpressly authorized the City Manager to enter into leases that are “substantially similar” to the template. Nowhere does the 6 For example, in the copyright context, a plaintiff may establish that the defendant copied her work by showing the defendant had access to the copyrighted work and the two works are “substantially similar”—that is, that the two works share an objective similarity of ideas and expression, and an ordinary, reasonable person would find their total concept and feel to be substantially similar. (Williams v. Gaye (9th Cir.
2018) 895 F.3d 1106, 1119 [upholding decision that Pharrell Williams and Robin Thicke's song “Blurred Lines” infringed copyright in Marvin Gaye's song "Got To Give It Up"].)
12 resolution require the City Manager or his designee to seek the City Council's approval of the modified lease, as Riddle suggests.
Riddle insists the lease could not have been entered into pursuant to Resolution No. 2012-97 because the resolution only allows the conversion of existing permits to leases, and because Vallely Boat Rentals did not have an existing pier permit in place when the lease was issued in March 2015. Not so. Section 2 of the resolution does state the model lease template “satisfies the requirement of NBMC Section 17.60.060(A) covering the conversion of existing permits to leases” (italics added), but the resolution does not require a permit to be in place for a lease to issue. In fact, recital E in the model lease specifically contemplates that a prior permit will have expired before the lease's effective date: “The City previously issued City Pier Permit Number (‘Permit') for the Premises; City Pier Permit Number which shall expire February 28, 2013 after which time the City has stated such Permit will not be renewed
previously issued City Pier Permit Number (‘Permit') for the Premises; City Pier Permit Number which shall expire February 28, 2013 after which time the City has stated such Permit will not be renewed and Lessee or any other party has no continuing rights in such Permit after such date.”
Further, NBMC section 17.60.060(A) expressly allows commercial tideland users to pursue either a lease or a permit: “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." Thus, neither Vallely nor his sole proprietorship needed to have a permit in place for the lease to issue.
و We conclude Riddle did not establish the City Manager's issuance of the lease was arbitrary, capricious, without evidentiary support, or in violation of the law.
The trial court properly denied Riddle's petition for writ of mandate.
7 The City issued permits to Vallely Marina, not Vallely Boat Rentals, for the period of March 1, 2013 to February 28, 2015. The Vallely lease took effect on March 12, 2015, about two weeks after the second permit expired.
13 3.
Declaratory Relief Invalidating the Lease 8 We next consider Riddle's declaratory relief cause of action, in which she sought a declaration that the Vallely lease is void and invalid. The trial court denied Riddle any relief, reasoning that “declaratory relief is not an available vehicle for challenging the [administrative] decision of the City Manager to approve the Vallely lease." The correctness of this ruling presents a question of law, which we review de novo.
“It is settled that an action for declaratory relief is not appropriate to review an administrative decision.” (State of California v. Superior Court (1974) 12 Cal.3d 237,
aw, which we review de novo.
“It is settled that an action for declaratory relief is not appropriate to review an administrative decision.” (State of California v. Superior Court (1974) 12 Cal.3d 237, 249.) "A declaratory relief action is an appropriate method for obtaining a declaration that a statute or regulation is facially unconstitutional,” but administrative mandamus is ""the proper and sole remedy" where a local agency's administrative decision is at issue.
(Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155 [collecting cases].)
The City Manager's approval and execution of the lease and the City's issuance of the lease were both administrative decisions involving the lease procedures outlined in the NBMC and Resolution No. 2012-97. Accordingly, Riddle cannot challenge the validity of the lease by way of a claim for declaratory relief. The trial court thus properly entered judgment for Defendants on this cause of action.
4.
Due Process Riddle's third cause of action claims she suffered a violation of her due process rights. In her operative complaint, Riddle alleged she has vested littoral property 8 Defendants assert Riddle abandoned any challenge to the trial court's ruling on her declaratory relief cause of action because her opening brief fails to address the court's ruling. While this is true, her brief does present various arguments why the Vallely lease should be “declared void." We therefore exercise our discretion to consider this cause of action.
14 rights to access the water adjacent to her property, and the City's issuance of the Vallely lease deprived her of her right to seek a permit for a residential dock without notice or an opportunity to be heard. After reviewing her due process claim de novo (In re Jonathan
uance of the Vallely lease deprived her of her right to seek a permit for a residential dock without notice or an opportunity to be heard. After reviewing her due process claim de novo (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241), we conclude no notice of the lease was required, and we find no due violation.
process We begin by observing the statewide legislative protocol regarding city leases did not require the City to give Riddle notice of the Vallely lease. California law allows cities to lease property they own or control for up to 55 years without providing notice or opportunity to be heard. (Govt. Code, § 37380, subd. (a).) Although this same section imposes notice and public hearing requirements on leases longer than that period (id., subd. (b)(3)), those requirements do not apply to charter cities, such as Newport Beach. (Id., subd. (b); see also Civ. Code, § 719, subds. (c), (e), (f) [public hearing requirements for leases of city property do not apply to charter cities, nor to general law cities' leases of tidelands].)
Nor did local law require the City to give Riddle notice of the lease. The NBMC section on commercial leases of tidelands that encroach upon an abutting upland property expressly dispenses with any notice obligation, stating that "[c]ommercial uses . . . are exempt from any provision requiring involvement of the owner . . . of an abutting upland property." (NBMC § 17.60.060(E).)
Riddle relies on NBMC section 17.35.020(F), which requires notice be given to an abutting upland property owner before the City issues a new permit for a pier that will encroach in front of that person's property: “In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit
ues a new permit for a pier that will encroach in front of that person's property: “In areas where existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: [¶] [] 3. Any change of existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee; [¶] . [] Before the Harbor Commission acts on the new permit, the owner of the abutting upland property, in front of which the harbor facility 15 encroaches, shall be notified in writing of the meeting in which the new permit will be considered." (Italics added.) This code section is inapplicable here, however, because it applies to pier permits, not leases. Unlike permits for encroaching piers, commercial leases for encroaching piers are exempt from notice requirements. (See NBMC § 17.60.060(E).)
Riddle insists NBMC section 17.35.020(F)'s notice requirements apply to both permits and leases. In support, she relies on the recitals to Ordinance No. 2013-27, which amended section 17.60.060(E) and other NBMC sections on leases and permits for tideland piers. According to these recitals, in enacting the ordinance, the City desired to "codify[] the Harbor Resources Manager's interpretation of Subsection 17.60.060(E), which allows commercial piers to encroach in front of adjacent property but does not relieve a person from compliance with Subsection 17.35.020(F)." (Italics added.) Thus, Riddle contends section 17.60.060(E) should not be read as eliminating the section 17.35.020(F) notice obligation.
Again, we are not persuaded. Notwithstanding that recital, there is no language in the actual NBMC code sections, section 17.35.020(F) and 17.60.060(E),
ing the section 17.35.020(F) notice obligation.
Again, we are not persuaded. Notwithstanding that recital, there is no language in the actual NBMC code sections, section 17.35.020(F) and 17.60.060(E), suggesting that section 17.35.020(F)'s notice requirements apply to commercial tidelands leases. To the contrary, section 17.60.060 expressly states commercial tidelands leases “are exempt from any provision requiring involvement of the owner or long-term lessee of an abutting upland property." (§ 17.60.060(E), italics added.)" 9 9 As the trial court observed in its statement of decision: "The City's municipal code is not a model of clarity but read together these provisions seem to draw a distinction between residential piers and commercial piers with the former species alone requiring notice to abutting upland owners of the meeting where a new permit may issue regarding the encroachment. Commercial piers in contrast may be approved by the City Manager alone by permit or lease and do not require 'involvement' of the upland abutting land owner nor any sort of public ‘meeting' for which notice might be applicable.
Regardless there is no requirement that the city provide any notice before it approves a commercial pier lease in the tidelands.” (Original bold removed.)
16 Riddle contends constitutional due process principles required the City to provide her notice and an opportunity to object to the lease. But “only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements." (Horn v.
County of Ventura (1979) 24 Cal.3d 605, 612.) The City's issuance of the lease was legislative in nature. (See Mike Moore's 24-Hour Towing v. City of San Diego (1996)
d by such requirements." (Horn v.
County of Ventura (1979) 24 Cal.3d 605, 612.) The City's issuance of the lease was legislative in nature. (See Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303 [“public entity's ‘award of a contract, and all of the acts leading up to the award, are legislative in character””].) It was thus not subject to due process principles.
Further, even if the issuance of the lease were adjudicatory rather than legislative, notice was not required here because, as we have already explained, the lease did not implicate a significant property right. (See Horn, supra, 24 Cal.3d at p. 616 ["constitutional notice and hearing requirements are triggered only by governmental action which results in ‘significant' or 'substantial' deprivations of property, not by agency decisions having only a de minimis effect on land”].) Even assuming that Riddle has littoral rights in the tidelands near her property, those rights are at best "qualified right[s,] at all times subordinate to the paramount right of the state” and its grantees.
(Fager, supra, 39 Cal.App.2d at p. 31, italics added.) For this reason, an “upland owner who does not own title to the submerged land or tide land in front of [her] property" cannot maintain a due process claim against the State or its grantee because her littoral rights, “under the law in this state, [are] subject to being terminated at will by any disposition which the state may choose to make of such submerged lands or tide lands."
(Ibid.)
We therefore conclude the City was not required to give formal notice to Riddle or conduct a public hearing before entering into the Vallely lease. Judgment for Defendants on Riddle's due process claim was proper.
17 5.
The Brown Act Claim
required to give formal notice to Riddle or conduct a public hearing before entering into the Vallely lease. Judgment for Defendants on Riddle's due process claim was proper.
17 5.
The Brown Act Claim Finally, we consider Riddle's fourth cause of action for violation of the Brown Act, which requires the “legislative body of a local agency" to conduct open and public meetings except as otherwise provided. (Govt. Code, § 54950 et seq.) Riddle sought a declaration that the City violated the Brown Act by not publicly reporting the issuance of the lease to Vallely or the City's settlement of Vallely's appeal concerning his permit transfer request. The trial court found no Brown Act violation. The parties agree that we review the ruling, which presents a pure question of law, de novo.
We can find no Brown Act violation. The City Council was not required to approve or discuss the City Manager's issuance of the lease at a public meeting. The solitary act of an individual public official—in this instance, the City Manager-is not an act by a legislative body subject to the Brown Act. (Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1514 ["it is collective decisionmaking by a legislative body, not the solitary decisionmaking of an individual public official, which is subject to the Brown Act"]; see Govt. Code, § 54952 [defining “legislative body"].)
Riddle asserts the Brown Act required the City Council to publicly report the issuance of the lease because it was issued in exchange for the dismissal of Vallely's appeal and thus amounted to a "Secret Settlement Agreement," which the City Council surreptitiously approved. But the trial court found “zero evidence that the City Council (in some secret meeting or otherwise serially) approved any sort of formal settlement
," which the City Council surreptitiously approved. But the trial court found “zero evidence that the City Council (in some secret meeting or otherwise serially) approved any sort of formal settlement with Vallely. Instead, the evidence demonstrated this ‘resolution' of the Vallely litigation was handled at the staff level—without the involvement of the Council."10 Riddle cites 10 As the trial court explained, “[t]he only City Council Meeting where the Vallely permit-transfer litigation was discussed was on January 27, 2015 [when the litigation was still pending]. [Citation.] There was no evidence that any settlement was approved by the City at this meeting (or any meeting) and the City credibly denied ever reaching a ‘settlement' with Vallely. The lease agreement was negotiated after this closed session and not signed until 3/11/15. While the lease may have resolved the then 18 nothing in the record to undermine these findings. She asks us to infer from the “suspect" timing of the lease issuance and the dismissal that the City Council was involved in the settlement, asserting it is “axiomatic” that the City Council directed the city attorney to settle the Vallely litigation during a closed session. This is pure conjecture and runs contrary to the evidence cited by the trial court in its statement of decision.
Riddle also suggests the Brown Act requires all settlement agreements resolving city litigation to be reported in open sessions of the City Council. Not so. The Brown Act allows a local agency's legislative body to hold closed sessions to confer with legal counsel regarding pending litigation, provided the legislative body later publicly reports a settlement of the pending litigation after the settlement is final. (Govt. Code,
sions to confer with legal counsel regarding pending litigation, provided the legislative body later publicly reports a settlement of the pending litigation after the settlement is final. (Govt. Code, §§ 54956.9, subd. (a)), 54957.1, subd. (a)(3).) But no such closed session occurred here, so no public reporting was required. Simply put, the fact that the lease mooted or resolved the Vallely appeal did not require the City Council to take up the resolution of the Vallely appeal during either an open session or closed session.
For these reasons, we conclude the trial court properly entered judgment for the City on Riddle's Brown Act cause of action.
pending litigation, as Vallely immediately dismissed his appeal upon receipt of the lease, this does not mean that the City Council authorized any ‘settlement' of the litigation."
The court also found "nothing sinister” in the settlement of Vallely's appeal. The court explained: "As Vallely testified, during the course of his litigation against the City he became aware that the City's rules and procedures for approving commercial piers had changed. Rather than continuing his unsuccessful fight with the City over an effort to compel a transfer of his parents' pier permit, he pursued the alternative of his own longterm lease. Contrary to Plaintiff's assertion, there was no evidence that the legislative amendments creating this opportunity had anything to do with ‘settling' with Vallely.
Instead, these changes were in the works even before Vallely filed his lawsuit and were implemented before any adverse judicial decision on his writ petition. A dismissal of his lawsuit naturally and understandably followed the approval of the lease.”
19 DISPOSITION The judgment is affirmed. Defendants shall recover their costs on appeal.
his writ petition. A dismissal of his lawsuit naturally and understandably followed the approval of the lease.”
19 DISPOSITION The judgment is affirmed. Defendants shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
WE CONCUR: MOORE, ACTING P. J.
ARONSON, J.
GOETHALS, J.
20 20 1 Harry S. Carmack, State Bar No. 135569 2 3 4 Law Office of Harry S. Carmack 5 Attorney for: Defendant City of Newport Beach 6 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER 11 12 13 SUSAN [BIDART] RIDDLE, as Trustee of ) Case No. 30-2015-00808124-CU-WM-CJC the LEONARD A. BIDART FAMILY TRUST UNDER TRUST AGREEMENT DATED AUGUST 15, 2001, Petitioner/Plaintiff, CITY OF NEWPORT BEACH; JOHN VALLELY and DOES 1-50, 14 VS.
15 16 17 18 19 20 21 22 23 24 Respondents/Defendants.
Assigned For All Purposes To: Hon. Peter Wilson Department C15 DEFENDANT CITY OF NEWPORT BEACH'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; SEPARATE STATEMENT OF UNDISPUTED FACTS; DECLARATIONS OF HARRY S. CARMACK, JOHN VALLELY, CHRIS MILLER, AND LEILANI I. BROWN IN SUPPORT; REQUEST FOR JUDICIAL NOTICE; ) PROPOSED ORDER [Filed concurrently with City of Newport Beach's Motion for Summary Adjudication of Issues and John Vallely's Motion for Summary Judgment] Hearing Date: Time: Dept.: Reservation: August 16, 2018 2:00 p.m.
C15 72812069 25 26 27 22 28 Complaint Filed: September 4, 2015 Trial Date: November 5, 2018 1 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on August 16, 2018, at 2:00 p.m., or as soon thereafter as the
ewport Beach's Notice of Motion and Motion for Summary Judgment 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on August 16, 2018, at 2:00 p.m., or as soon thereafter as the 3 matter may be heard in Department C15 of the above-entitled court, located at 700 Civic Center Drive 4 West, Santa Ana, CA 92701, respondent/defendant City of Newport Beach (the “City”), will and hereby 5 does move the court pursuant to California Code of Civil Procedure section 437c for an order granting 6 Summary Judgment on petitioner/plaintiff Susan [Bidart] Riddle's ("Riddle's" or "Riddle") Third 7 Amended Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 22 23 24 24 25 25 26 26 Under C.C.P. §§ 526, 1085, 1086; and In the Alternative for Regulatory Taking (the "TAPC”), in favor of the City, and against Riddle.
The Motion for Summary Judgment is brought upon the following grounds: 1. Riddle's Fifth Cause of Action for inverse condemnation fails as a matter of law because Riddle has no damaged or taken property interest or property right in the leasehold estate leased to Vallely by the City as the leasehold estate is comprised exclusively of tidelands held in trust and managed by the City pursuant to a legislative grant from the State of California.
2. The Court lacks jurisdiction over the Fifth Cause of Action for Inverse Condemnation because Riddle failed to exhaust her administrative remedies under Newport Beach Municipal Code section 17.60.080 before seeking judicial relief.
3. Riddle failed to assert the Fifth Cause of Action for Inverse Condemnation within the time period set forth in the applicable statute of limitations.
ction 17.60.080 before seeking judicial relief.
3. Riddle failed to assert the Fifth Cause of Action for Inverse Condemnation within the time period set forth in the applicable statute of limitations.
4. The Court lacks jurisdiction over the Fourth Cause of Action for violation of the Brown Act because Riddle failed to exhaust the administrative remedies in Government Code Sections 54960.1 and/or 54960.2 of the Brown Act before seeking judicial relief.
5. Riddle lacks standing to sue on the First, Second, and Third Causes of Action of the TAPC because she is not the real party in interest with respect to the claims sued upon.
6. The Court lacks jurisdiction over the First, Second, and Third Causes of Action of the TAPC because Riddle failed to exhaust the administrative remedies available to her under Newport Beach Municipal Code section 17.60.080 before seeking judicial relief.
27 28 /// 2 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 7. The Court lacks jurisdiction over the First, Second, Third and Fourth Causes of Action of the 2 TAPC because Riddle failed to present a claim to the City pursuant to the Government Claims Act.
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 21 22 22 23 (Calif. Govt. Code §§ 900, et seq.)
8. The Court lacks jurisdiction to hear the Second Cause of Action of the TAPC because Riddle has not complied with the California Rules of Court. (Calif. Rules of Court, rule 3.1103.)
9. The City has complete defenses to First, Second, Third, Fourth and Fifth Causes of Action of the TAPC.
10. Riddle cannot establish at least one of the necessary elements of each of the claims of the First, Second, Third, Fourth and Fifth Causes of Action of the TAPC.
Fifth Causes of Action of the TAPC.
10. Riddle cannot establish at least one of the necessary elements of each of the claims of the First, Second, Third, Fourth and Fifth Causes of Action of the TAPC.
The City respectfully submits that it is entitled to an order granting summary judgment as a matter of law, since (1) it is undisputed Riddle cannot establish a property interest or property right in the leasehold estate (i.e. tidelands held in trust by the City through a legislative grant from the State of California); (2) there are no triable issues of fact as to the lack of the Court's jurisdiction; (3) there are no triable issues of fact as to Riddle's lack of standing; (4) there are complete defenses to each cause of action; and (5) Riddle cannot establish each element of her causes of action, one reason being that many of her factual allegations are indisputably false.
This Motion for Summary Judgment is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities in support filed herewith; the Declarations of Harry S. Carmack, John Vallely, Chris Miller and Leilani I. Brown, and all exhibits attached thereto, filed herewith; the Separate Statement of Undisputed Material Facts filed herewith; the Request for Judicial Notice made pursuant to California Evidence Code sections 451 and 452 filed herewith; the records and files of the Court in this action; and such further evidence and argument as may be presented prior to or at the time of hearing on the motion.
24 25 Dated: May 25, 2018 26 26 27 /Harry S. Carmack/ HARRY S. CARMACK Attorney for Respondent/Defendant City of Newport Beach 28 3 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 TABLE OF CONTENTS 2 3 TABLE OF CONTENTS Page: i.
4 TABLE OF AUTHORITIES
ondent/Defendant City of Newport Beach 28 3 Defendant City of Newport Beach's Notice of Motion and Motion for Summary Judgment 1 TABLE OF CONTENTS 2 3 TABLE OF CONTENTS Page: i.
4 TABLE OF AUTHORITIES iii.
5 MEMORNADUM OF POINTS AND AUTHORITIES IN SUPPORT OF CITY OF NEWPORT BEACH'S MOTION FOR SUMMARY JUDGMENT.
1 6 7 I. INTRODUCTION.
1 8 II. THE CITY MAY MOVE FOR SUMMARY JUDGMENT.
3 9 10 A. Summary Judgment.
B. The Purpose Of Summary Judgment.
11 HII. RIDDLE'S FIFTH CAUSE OF ACTION FOR INVERSE CONDEMNATION FAILS AS A MATTER OF LAW.
12 13 33 3 4 14 A. Riddle Has No Property Right In The Leasehold Premises, Which Are Exclusively Tidelands Held In Trust By The City Pursuant To A Legislative Grant From The State Of California.
4 15 1. Statement of Facts.
4 16 2. No Real Property Interest of Riddle was Taken or Damaged.
4 17 5 18 19 20 20 223 21 22 23 24 25 26 3. Riddle is not a Littoral Property Owner.
4. Any Right of Riddle to Access the Tidelands is Subservient to the City's Superior Right to Administer the Tidelands.
B. The Court Lacks Jurisdiction Over The Inverse Condemnation Cause of Action Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To NBMC Section 17.60.080.
1. Statement of Facts.
2. Riddle Failed to Exhaust Her Administrative Remedies.
C. Riddle Failed To Allege The Fifth Cause Of Action For Inverse Condemnation Within The Time Required By The Applicable Statute Of Limitations.
1. Statement of Facts.
27 28 2. Riddle's Inverse Condemnation Claim is Untimely and Barred by the Statute of Limitations, which is Three Years (Damages) or Five Years (Taking).
i Table of Contents 6 8 8 9 12 12 12 1 TABLE OF CONTENTS (cont.)
2 Page: 3 D. Conclusion.
13 4 IV.
RIDDLE'S FOURTH CAUSE OF ACTION FOR VIOLATION OF THE BROWN ACT FAILS AS A MATTER OF LAW.
14
(Taking).
i Table of Contents 6 8 8 9 12 12 12 1 TABLE OF CONTENTS (cont.)
2 Page: 3 D. Conclusion.
13 4 IV.
RIDDLE'S FOURTH CAUSE OF ACTION FOR VIOLATION OF THE BROWN ACT FAILS AS A MATTER OF LAW.
14 10 5 9 7 8 9 10 11 12 12 13 V.
14 A. The Court Lacks Jurisdiction Over The Fourth Cause Of Action For Violation Of The Brown Act Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To Government Code Sections 54960.1 And 54960.2.
1. Riddle Failed to Exhaust the Administrative Remedies Set Forth In the Brown Act.
14 2. The City Did Not Violate the Brown Act.
B. Conclusion.
RIDDLE'S FIRST, SECOND AND THIRD CAUSES OF ACTION FAIL AS A MATTER OF LAW AND RIDDLE IS LEGALLY BARRED FROM SEEKING DAMAGES.
14 15 17 17 15 16 A. Because Riddle Has No Rights Or Duties Under The Vallely Lease, She Is Not Entitled To Declaratory Relif Or The Issuance Of A Writ Of Mandate, And Her Due Process Rights Have Not Been Violated.
17 17 18 1. Declaratory Relief.
2. Writ of Mandate.
17 18 19 3. Due Process.
18 20 20 B. Riddle Failed To Exhaust Her Administrative Remedies Under NBMC Section 17.60.080.
19 21 22 22 23 224 VI.
25 C. Riddle Did Not File A Claim For Damages As Required By The Government Claims Act.
CONCLUSION.
DECLARATION OF HARRY S. CARMACK 26 DECLARATION OF JOHN VALLELY 27 DECLARATION OF CHRIS MILLER 28 DECLARATION OF LEILANI I. BROWN ii Table of Contents 20 20 20 1 369 1 2 Cases: 3 Aguilar v. Atlantic Richfield Co.
TABLE OF AUTHORITIES Page: 4 (2001) 25 Cal.4th 826 5 Anderson v. Metalclad Insulation Corp.
(1999) 72 Cal.App.4th 284 3 6 3 7 Baker v. Burbank-Glendale-Pasadena Airport Auth.
8 (1985) 39 Cal.3d 862 12 9 Beaty v. Imperial Irrigation Dist.
10 (1986) 186 Cal.App.3d 897 5 11 Beck Development Co., Inc. v. Southern Pacific Transportation Co.
12
nk-Glendale-Pasadena Airport Auth.
8 (1985) 39 Cal.3d 862 12 9 Beaty v. Imperial Irrigation Dist.
10 (1986) 186 Cal.App.3d 897 5 11 Beck Development Co., Inc. v. Southern Pacific Transportation Co.
12 (1996) 44 Cal.App.4th 1160 13 13 Bleeck v. State Bd. Of Optometry 14 (1971) 18 Cal.App.3d 415 9 15 Boorstein v. CBS Interactive, Inc.
16 (2013) 222 Cal.App.4th 456 17 Bostrom v. County of San Bernardino 17 18 19 20 20 (1995) 35 Cal.App.4th 1654 Carsten v. Psychology Examining Com.
(1980) 27 Cal.3d 793 City of Newport Beach v. Fager, et al.
(1940) 39 Cal.App.2d 23 21 22 23 City of Oakland v. Buteau, et al.
24 24 3 17,18 6,7 6 25 25 26 26 27 (1934) 219 Cal. 745 City of Oakland v. E.K. Wood Lumber Co.
(1930) 211 Cal. 16 City of Stockton, et al. v. Sup. Ct.
28 (2007) 42 Cal.4th 730 iii Table of Contents 7 20 20 TABLE OF AUTHORITIES (cont.)
Page: 1 2 Cases: 3 County of Lake v. Smith 4 (1991) 228 Cal.App.3d 214 5 6 7 Henry Dalton & Sons Co, v. City of Oakland (1914) 168 Cal. 463 Horn v. County of Ventura 5 6 8 (1979) 24 Cal.3d 605, 612.)
19 9 Koyer v. Miner 10 (1916) 172 Cal. 448 7 11 Lewis v. Sup. Ct.
12 (1937) 21 Cal.App.2d 340 9 13 |Lopez v. Civil Service Comm'n of City & County of San Francisco 14 (1991) 232 Cal.App.3d 307 9 15 Lyles, et al. v. State of California, et al.
16 (2007) 153 Cal.App.4th 281 13 17 18 19 20 20 21 Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294 Miramar Co. v. City of Santa Barbara (1943) 23 Cal.2d 170 Pacific Coast S. S. Co. v. Kimball (1896) 114 Cal. 414 22 23 People v. Monstad 24 (1930) 209 Cal. 658 25 R.R. Hensler v. City of Glendale 26 46 27 27 28 = | /// (1994) 8. Cal.4th 1 iv Table of Contents 10,11 8 7 7 10,11 1 TABLE OF AUTHORITIES (cont.)
2 Cases: Page: 3
v. Monstad 24 (1930) 209 Cal. 658 25 R.R. Hensler v. City of Glendale 26 46 27 27 28 = | /// (1994) 8. Cal.4th 1 iv Table of Contents 10,11 8 7 7 10,11 1 TABLE OF AUTHORITIES (cont.)
2 Cases: Page: 3 Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeal Board 4 (1973) 8 Cal.3d 792 5 San Diego Gas & Electric Co. v. Superior Court 6 (1996) 13 Cal.4th 893 7 State of California v. Sup. Ct. (Bodde) 8 (2004) 32 Cal.4th 1234, at 1239 9 Wilkinson v. Norcal Mutual Ins. Co.
(1979) 98 Cal.App.3d 307 10 11 12 Statutes: 13 California Civil Code, section 830 14 California Code of Civil Procedure, section 312 15 California Code of Civil Procedure, section 367 16 California Code of Civil Procedure, section 437c 9 5 20 9 Page: 5 13 17 California Code of Civil Procedure, section 1060 18 California Code of Civil Procedure, section 1061 17 53⑉5 17 17 19 California Code of Civil Procedure, section 1086 18 20 California Rules of Court, rule 3.1100, et seq.
18 21 California Rules of Court, rule 3.1300 18 22 Chapter 17 of the State of California Statutes of 1997 4,5,6,10,19 23 California Government Code, section 905 20 24 California Government Code, section 911.2 25 California Government Code, section 915 222 26 California Government Code, section 54957.1 27 California Government Code, section 54960.1 28 California Government Code, section 54960.2 20 20 16,17 14,15 14,15 V Table of Contents 1 TABLE OF AUTHORITIES (cont.)
2 City of Newport Beach Authorities: 3 Newport Beach City Council Ordinance No. 2013-27 4 5 6 7 8 Newport Beach City Council Resolution No. 2012-91 Newport Beach City Council Resolution No. 2012-97 Newport Beach Municipal Code, section 17.05.090 Newport Beach Municipal Code, section 17.35.020 Newport Beach Municipal Code, section 17.35.060
012-91 Newport Beach City Council Resolution No. 2012-97 Newport Beach Municipal Code, section 17.05.090 Newport Beach Municipal Code, section 17.35.020 Newport Beach Municipal Code, section 17.35.060 9 Newport Beach Municipal Code, section 17.60.060 10 Newport Beach Municipal Code, section 17.60.080 11 Newport Beach Municipal Code, section 17.65.050 Page: 5 11 11 7 11 11 10,11,16 9,10,11,12,19 8 7 12 Newport Beach Municipal Code, section 21.48.035 13 14 Other Authorities: Page: 15 Asimov, Strumwasser, Bolz and Tuleja, Administrative Law, Calif. Practice Guide, 9 16 (The Rutter Group 2018) 17 Schwing, California Affirmative Defenses, (2010 Ed.)
9 18 Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2017 Update) 3,4 19 20 20 221 22 22 23 24 24 25 26 25 26 27 27 28 vi Table of Contents 2 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CITY OF NEWPORT 3 I.
4 10 5 6 7 BEACH'S MOTION FOR SUMMARY JUDGMENT.
INTRODUCTION.
Petitioner/plaintiff Susan [Bidart] Riddle's ("Riddle") First, Second, Third, Fourth, and Fifth Causes of Action each fail as a matter of law and as shown below the City of Newport Beach's ("City") motion for summary judgment should be granted. Since 1939, John Vallely and his family have owned and operated a private commercial marina (“Vallely Marina”) bayward of the Vallely home located at 8 508 S. Bay Front Avenue, Balboa Island, City of Newport Beach ("Vallely Property"). The Vallely 9 10 11 12 13 14 15 16 17 18 19 Marina was constructed and permitted by the U.S. Army Corps of Engineers, and subsequently permitted by the City. The Vallely Marina exists exclusively on tidelands owned by the State of California and held in trust by the City pursuant to a State legislative grant, and is operated under a lease
tted by the City. The Vallely Marina exists exclusively on tidelands owned by the State of California and held in trust by the City pursuant to a State legislative grant, and is operated under a lease dated May 12, 2015 (“Vallely Lease"). The Vallely Marina operates commercially as Vallely Boat Rentals. (Separate Statement of Undisputed Material Facts "SSUMF" #'s 2, 14-18.)
The Vallely Marina and the Vallely Property are separated by S. Bay Front Avenue, which is public right-of-way owned by the City. The Vallely Lease is expressly allowed by the State legislative grant to the City and is consistent with the Newport Beach Municipal Code (“NBMC”) requirements enacted in furtherance thereof; namely, that in the event tidelands are used by an entity other than the City, that entity shall enter into a lease or permit with the City. (SSUMF #'s 4-7, 8-11, 21-27, 40.)
Riddle owns the property at ("Riddle Property"), which is 20 adjacent to the Vallely Property. The Riddle Property and the tidelands of Newport Bay are separated 21 22 23 24 24 25 by S. Bay Front Avenue, which is public right-of-way owned by the City. Riddle acquired the Riddle Property in 1993. The configuration of the pier, dock and floats that comprise the Vallely Marina has not changed in 79 years, which includes the entire time period Riddle has owned the Riddle Property.
(SSUMF #'s 1, 3, 4-7, 17, 29.)
Riddle filed the Third Amended Verified Petition and Complaint ("TAPC") on September 12, 26 2017, amending for the third time her original complaint filed on September 4, 2015. Riddle's TAPC is 27 28 comprised of five causes of action against the City, with three jointly against Vallely. The TAPC seeks to invalidate the Vallely Lease (declaratory relief), challenges the procedure allowing for the execution 1
f five causes of action against the City, with three jointly against Vallely. The TAPC seeks to invalidate the Vallely Lease (declaratory relief), challenges the procedure allowing for the execution 1 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 24 25 26 27 28 of the Vallely Lease (under the City Charter and City Council resolutions, due process, and the Brown Act), and claims the Vallely Lease constitutes inverse condemnation as a taking of a property interest of Riddle for which just compensation is owed. The TAPC seeks compensatory damages on all causes of action.
This motion will discuss numerous grounds for granting summary judgment. First, Riddle has no property right in the tidelands occupied by the Vallely Marina. City right-of-way separates the Riddle Property from the tidelands, and Riddle is not a party to, or beneficiary of, the Vallely Lease. As a result, Riddle neither has a contractual interest in the tidelands or a right therein as a littoral property owner. Importantly, the City has the statutory authority from the State of California to execute the Vallely Lease, and any interest of Riddle in the tidelands is subservient to the City's statutory right to manage the tidelands. Thus, execution of the Vallely Lease is not inverse condemnation because no property right of Riddle has been taken or damaged. In any event, Riddle failed to exhaust her administrative remedies on her inverse condemnation cause of action and is barred by the statute of limitations from bringing the inverse condemnation cause of action.
Riddle failed to exhaust her administrative remedies on all other causes of action. As to the
action and is barred by the statute of limitations from bringing the inverse condemnation cause of action.
Riddle failed to exhaust her administrative remedies on all other causes of action. As to the Vallely Lease, the NBMC requires that Riddle file an administrative appeal challenging the execution of the Vallely Lease prior to filing this lawsuit. Riddle failed to file an administrative appeal of any City actions, and does not allege otherwise. Similarly, Riddle alleges the City violated the Brown Act, but she did not exhaust her administrative remedies under the Brown Act (through a written demand to cure and correct the action delivered to the City Council or a cease and desist letter to the City Clerk) prior to filing this lawsuit.
No actual controversy exists regarding the Vallely Lease, and Riddle lacks standing to challenge the Vallely Lease because she has no beneficial interest in the tidelands or the Vallely Lease. The City's legislative actions allowing for the leasing of tidelands do not trigger Riddle's due process rights.
Finally, Riddle is not entitled to the compensatory damages she seeks for each cause of action in the TAPC because she failed to file a claim with the City as required by the Government Claims Act.
Riddle is not legally entitled to any of the relief she seeks under the TAPC. Summary judgment is the appropriate vehicle to put a stop to this action. The Court may take judicial notice of the Vallely 2 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 Lease (an exhibit to the TAPC) and the statutes, codes, ordinances and resolutions that contradict the TAPC.
A.
II. THE CITY MAY MOVE FOR SUMMARY JUDGMENT.
Summary Judgment.
mmary Judgment 1 2 3 4 5 6 Lease (an exhibit to the TAPC) and the statutes, codes, ordinances and resolutions that contradict the TAPC.
A.
II. THE CITY MAY MOVE FOR SUMMARY JUDGMENT.
Summary Judgment.
A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
7 8 (Calif. Code Civ. Proc. § 437c(c).) There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in 9 accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Code of Civil Procedure section 437c provides: 10 11 12 13 14 15 16 "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Calif. Code Civ. Proc. § 437c(p)(2).)
To show a complete defense, a defendant must present admissible evidence of each essential 17 18
ial fact exists as to the cause of action or a defense thereto." (Calif. Code Civ. Proc. § 437c(p)(2).)
To show a complete defense, a defendant must present admissible evidence of each essential 17 18 element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad 19 Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) A defendant moving for summary judgment need 20 address only the issues raised by the complaint; summary judgment cannot be denied on grounds not raised by the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 166322 1664.)
21 23 B.
24 24 The Purpose Of Summary Judgment.
Summary judgment motions enable a court to determine that the opposing party's pleadings lack 25 evidentiary support and limit or terminate the action. (Weil & Brown, Civ. Pro. Before Trial (The Rutter| 26 Group 2017 Update), Chapter 10 Summary Judgment and Summary Adjudication, § 10.1, citing 27 28 (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 843.) The summary judgment procedure enables the court to look behind the pleadings to determine whether the party against whom the motion 3 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 is directed has evidence to back up the claims pleaded. (emphasis original.) (Weil & Brown, supra, at § 2 10.1.)
3 III.
4 A.
5 6 7 8 9 10 RIDDLE'S FIFTH CAUSE OF ACTION FOR INVERSE CONDEMNATION FAILS AS A MATTER OF LAW.
Riddle Has No Property Right In The Leasehold Premises, Which Are Exclusively Tidelands Held In Trust By The City Pursuant To A Legislative Grant From The State Of California.
Underlying Riddle's cause of action for inverse condemnation is the false premise that Riddle
lusively Tidelands Held In Trust By The City Pursuant To A Legislative Grant From The State Of California.
Underlying Riddle's cause of action for inverse condemnation is the false premise that Riddle has a property interest or property right in the “Premises” described by the Vallely Lease.
1. Statement of Facts.
The Vallely Lease is a lease exclusively of tidelands held in trust by the City pursuant to a 11 legislative grant from the State of California found at Chapter 74 of the Statutes of 1978, as amended 12 13 14 ("Beacon Bay Bill”). (TAPC, Exh. 1, Exhs. F & G; SSUMF #'s 8-11, 22-27.) Pursuant to the Beacon Bay Bill, the City is granted and holds in trust, all right, title and interest to the tidelands and submerged lands, whether filled or unfilled, bordering upon or under the Pacific Ocean or Newport Bay. (SSUMF #'s 8-11.) The leasehold "Premises” is exclusively on tidelands. (SSUMF #'s 22-27). The Vallely Lease defines the "Tidelands" as those lands granted to the City by the State of California, including 17 submerged lands (whether filled or unfilled). (TAPC, Exh. 1, Exh. A, p. 2.)
15 16 18 The Riddle Property adjoins S. Bay Front Avenue, which separates the Riddle Property and the 19 tidelands. S. Bay Front Avenue adjoins the tidelands of Newport Bay at the bulkhead that defines the line of high tide. (SSUMF #'s 4-7; RJN, Exh. C.) S. Bay Front Avenue is City right-of-way. (RJN, Exh.
21 D.) Thus, it is City right-of-way that is abutting the tidelands, not Riddle's property.
20 20 22 22 23 24 24 25 26 27 2. No Real Property Interest of Riddle was Taken or Damaged.
To succeed on an inverse condemnation case, Riddle must allege and prove that (i) she had an
ddle's property.
20 20 22 22 23 24 24 25 26 27 2. No Real Property Interest of Riddle was Taken or Damaged.
To succeed on an inverse condemnation case, Riddle must allege and prove that (i) she had an interest in certain real property, (ii) the City was engaged in some activity for public use or benefit, (iii) her real property was taken or damaged, suffering diminution in value, and (iv) the City's activity was | the proximate cause of the physical damage or taking. The property owner must first clear the hurdle of establishing that the public entity has, in fact, taken [or damaged] his or her property before he or she 28 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 can reach the issue of just compensation. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 2 Cal.4th 893, 939-940.) (citing Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 903.)
3 4 Riddle has no property interest or rights in the leasehold estate, i.e., the Premises, conveyed by the Vallely Lease. The Premises are exclusively tidelands. (TAPC, Exh. 1, at Exh. A, p. 2; SSUMF #'s 5 22-27.) The Beacon Bay Bill provides that the City of Newport Beach hold title to the tidelands and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 21 22 23 24 24 25 26 26 24 27 28 submerged lands in Newport Harbor in trust. (SSUMF # 8, RJN, Exh. E.) The Beacon Bay Bill explains: "There is hereby granted to the City of Newport Beach and its successors all of the right, title, and interest of the State of California held by the state by virtue of its sovereignty in and to all that portion of the tidelands and submerged lands, whether filled or unfilled, bordering upon and under the Pacific Ocean or Newport Bay in the County of Orange,
irtue of its sovereignty in and to all that portion of the tidelands and submerged lands, whether filled or unfilled, bordering upon and under the Pacific Ocean or Newport Bay in the County of Orange, which were within the corporate limits of the City of Newport Beach, a municipal corporation, on July 25, 1919; the same to be forever held by the city and its successors in trust for the uses and purposes and upon the following express conditions ……..” (RJN, Exh. B, Beacon Bay Bill, §*1.)
" Riddle fails to identify what “Private Property" rights, vested or otherwise, she claims have been taken and damaged by the NBMC or the Vallely Lease (TAPC, p. 19, lns. 1-3, ¶ 93). The complained of NBMC provision is identified as the Newport Beach City Council's adoption of Ordinance No. 2013-27 on December 10, 2013, whereby the City Council enacted legislation clarifying existing NBMC language requiring the issuance of new permits to pier permittees upon the death of a permittee or transfer of ownership of the permittee's real property. (Id., at p. 17, Ins. 12-13.)
3. Riddle is not a Littoral Property Owner.
"Littoral rights" concern lands abutting static water like an ocean, bay, sea or lake, rather than a flowing river or stream (riparian). (See, e.g., County of Lake v. Smith (1991) 228 Cal.App.3d 214, 219.)
Riddle claims "...the littoral owners nonetheless have a property right in their continued access to the adjacent waters." (TAPC, p. 11, Ins. 10-11, ¶43.) However, the Riddle Property does not border or adjoin the tidelands and Riddle is therefore not a littoral property owner with littoral rights. The Court may take judicial notice of the certified tract map of Balboa Island. (RJN, Exh. C.) S. Bay Front Avenue
tidelands and Riddle is therefore not a littoral property owner with littoral rights. The Court may take judicial notice of the certified tract map of Balboa Island. (RJN, Exh. C.) S. Bay Front Avenue separates the Riddle Property and Newport Bay, and is City owned right-of-way. S. Bay Front Avenue adjoins the tidelands at the bulkhead. (SSUMF #'s 4-7; RJN, Exh. C.)
California Civil Code section 830 confirms, "[e]xcept where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide water, takes to ordinary 5 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 high-water mark..." Here, the Riddle Property does not abut the tidelands as it is separated from the 2 tidelands by S. Bay Front Avenue. Further, even if Riddle were a littoral owner of property abutting the 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 14 25 26 26 27 28 tidelands, which she is not, her rights are subservient to the rights granted to the City through the Beacon Bay Bill, as expressly stated in the text of the Beacon Bay Bill itself. (RJN, Exh. E.)
4. Any Right of Riddle to Access the Tidelands is Subservient to the City's Superior Right to Administer the Tidelands.
Riddle, even if she were a littoral property owner, does not have a property right against the City or Vallely in the continued access to adjacent waters. The correct rule is stated as follows: "We are satisfied that the correct rule is that the littoral owner of uplands upon a navigable bay has no right of access to the waters of the bay over intervening tidelands, whether filled or unfilled, which have been granted by the state to a city in trust for the purpose of improving such navigable bay in furtherance of
the waters of the bay over intervening tidelands, whether filled or unfilled, which have been granted by the state to a city in trust for the purpose of improving such navigable bay in furtherance of commerce and navigation. [] Although it is true that as against a stranger a littoral owner of upland bordering upon navigable waters may not be deprived of his right of access to such waters, no such right exists in favor of such littoral owner as against the state or its grantee in the exercise of a lawful use or purpose. (City of Newport Beach v.
Fager, et al. (1940) 39 Cal.App.2d 23, 28) (citations omitted) (see also Henry Dalton & Sons Co, v. City of Oakland (1914) 168 Cal. 463, 467-468; City of Oakland v. Buteau, et al. (1934) 219 Cal. 745, 754 ["[T]he littoral owner of land on a navigable bay has no right of access to deep water over intervening tide lands which the state has granted to a city in trust for the purpose of improving its harbor in aid of commerce and navigation."]" [citation omitted].) (emphasis added.)
This "correct rule” stated in Fager, i.e., that a littoral owner has no right of access against the state or its grantee in the exercise of a lawful use or purpose, applies to Riddle's alleged right of access.
While it is true the lease of a private commercial dock is not a public landfill project as in Fager, or a public sea wall project as in Henry Dalton, the Vallely Lease is nonetheless authorized by the Beacon Bay Bill. (RJN, Exh. E.)
The Beacon Bay Bill specifically provides for the construction, maintenance and operation of docks, piers and slips necessary or convenient for the promotion or accommodation of navigation and commerce. (RJN, Exh. E, Beacon Bay Bill § 1(a)(1).) The Beacon Bay Bill specifically provides that
f docks, piers and slips necessary or convenient for the promotion or accommodation of navigation and commerce. (RJN, Exh. E, Beacon Bay Bill § 1(a)(1).) The Beacon Bay Bill specifically provides that the City may lease the tidelands, or any part thereof, for terms not exceeding 50 years for purposes consistent with the trust upon which the lands are held by the state and with the uses specified in the Beacon Bay Bill. (Id., Beacon Bay Bill § 1(b).) The Beacon Bay Bill does not limit the City's ability to lease tidelands to only public projects for purposes of general navigation and commercial.
Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 The California Supreme Court has long held that cities may lease tidelands to private individuals for public purposes. (Pacific Coast S. S. Co. v. Kimball (1896) 114 Cal. 414, 416 (lease of waterfront to 3 railroad for erection and use of private wharf); Koyer v. Miner (1916) 172 Cal. 448, 452-453 (franchise 4 granted to operate a private electric railroad over adjoining tideland); City of Oakland v. E.K. Wood 10 5 6 7 Lumber Co. (1930) 211 Cal. 16, 23 (lease to private lumber company for landing and wharf); People v.
Monstad (1930) 209 Cal. 658, 662 (lease of tidelands and submerged lands for construction, maintenance and operation of a private wharf) ["The law is well settled that the power to lease, which 8 exists by virtue of the above statutes, includes the power to lease to an individual, firm, or corporation for the purpose of erecting a private wharf or pier."].)
9 10 11 12 13 14 15 16 17 18 Fager further holds that any right of access claimed by Riddle is terminated by the Vallely Lease: “the littoral rights of an upland owner who does not own title to the submerged land or tideland
7 18 Fager further holds that any right of access claimed by Riddle is terminated by the Vallely Lease: “the littoral rights of an upland owner who does not own title to the submerged land or tideland in front of his property are, under the law in this state, subject to being terminated at will by any disposition which the state may choose to make of such submerged or tidelands.” (Fager, supra, 39 Cal.App.2d 23 at 31) (citations omitted.)) The Vallely Lease provides that the Premises will be used solely and exclusively for the operation of a marina or boat berthing facility and associated ancillary uses. (TAPC, Exh. 1, p. 4, ¶6.)
The lease of tidelands for the purpose of a private commercial marina is a lawful purpose benefiting commerce and navigation consistent with the specifically enumerated purposes set forth in the Beacon Bay Bill. The Vallely Marina provides boat owners and their guests access to Newport Bay, and thereby 20 promotes navigation and commerce within Newport Harbor.
19 21 22 224 23 24 25 25 26 26 27 The Vallely Marina is consistent with the NBMC. NBMC Section 21.48.035(B)(4) provides: "B. Where applicable, development in Newport Harbor shall: 4. Protect, and where feasible, enhance and expand marinas and dry boat storage facilities.” (RJN, Exh. S.)
Further, NBMC Sections 17.05.090(C)(4) & (6), Local Coastal Programs, states: "C. Where applicable, development in Newport Harbor shall: ...4. Protect, and where feasible, enhance and expand marinas and dry dock facilities...6. Protect, and where feasible, enhance and expand dinghy docks, guest docks at public facilities, yacht clubs and at privately owned marinas, restaurants and other appropriate locations.” (RJN, Exh.
G.)
28 Ill 7
and where feasible, enhance and expand dinghy docks, guest docks at public facilities, yacht clubs and at privately owned marinas, restaurants and other appropriate locations.” (RJN, Exh.
G.)
28 Ill 7 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 The Supreme Court of California has held “[t]he right of the public to use navigable 2 waters, however, is not limited to any particular type of craft. Pleasure yachts and fishing 3 4 5 boats are used for navigation and the state, or city as its representative, can provide harborage for them as well as for merchant vessels and steamers." (Miramar Co. v. City of Santa Barbara (1943) 23 Cal.2d 170, 175.)
6 B.
7 8 10 11 12 13 14 15 16 17 18 1192 20 20 12 21 22 22 25 23 24 25 25 26 26 27 28 The Court Lacks Jurisdiction Over The Inverse Condemnation Cause Of Action Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To NBMC Section 17.60.080.
1. Statement of Facts.
The Fifth Cause of Action in the TAPC alleges that execution of the Vallely Lease resulted in a taking or damage to Riddle private property rights for which she is owed just compensation. (TAPC, p.
18, Ins. 23-27, p. 19, ln. 16.) However, the Vallely Lease's “Premises” is entirely tidelands, held by the City in trust. (SSUMF #'s 8, 22-27; TAPC, Exh. 1, Exhs. F & G.) The Beacon Bay Bill provides for leases of tidelands by the City for a period not to exceed fifty years. (SSUMF # 11, RJN, Exh. E.) As discussed above, the Vallely Lease is for uses statutorily authorized by the Beacon Bay Bill and NBMC, which include the lease of tidelands for uses such as the Vallely Marina. (See, Division III, Section A, supra.)
The Vallely Lease was executed as of March 12, 2015. (TAPC, Exh. 1; SSUMF #21.) Riddle
which include the lease of tidelands for uses such as the Vallely Marina. (See, Division III, Section A, supra.)
The Vallely Lease was executed as of March 12, 2015. (TAPC, Exh. 1; SSUMF #21.) Riddle knew of the execution of the Vallely Lease at least by September 4, 2015 - the day Riddle filed this lawsuit. (SSUMF # 49.)
The Vallely Lease is a public record posted on the City's website with the City's other public agreements. (SSUMF #61.) Riddle was provided a copy of the Vallely Lease by the City on November 10, 2015, in response to a request by Riddle under the Public Records Act. (SSUMF #'s 77-78.)
NBMC Title 17, Harbor Code, applies to Newport Harbor and all tidelands under the jurisdiction of the City. It sets forth the administrative processes for appeal of City decisions regarding Newport Harbor, including decisions pertaining to permits and leases. Specifically, NBMC section 17.65.050, Judicial Review of a City Decision, requires the exhaustion of all administrative appeals before judicial review. (RJN, Exh. CC.) NBMC section 17.60.080, Appeals, sets forth the administrative appeal 8 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 process involving any permit or lease for lands in Newport Harbor held in trust by the City. (SSUMF #'s 2 |41-42; RJN, Exh. P.) An appeal under NBMC section 17.60.080 must be initiated within twenty-one 3 (21) days of the decision under appeal by submitting a written appeal to the City's Harbor Resources 4 Manager and paying any applicable fee. (Id., # 42; RJN, Exh. P.) Riddle did not file an appeal, of the 5 issuance of the Vallely Lease or otherwise, which must be done to exhaust her administrative remedies.
6 (SSUMF #43.)
7 8 9 10 11 12 13 14 2. Riddle Failed to Exhaust Her Administrative Remedies.
he 5 issuance of the Vallely Lease or otherwise, which must be done to exhaust her administrative remedies.
6 (SSUMF #43.)
7 8 9 10 11 12 13 14 2. Riddle Failed to Exhaust Her Administrative Remedies.
If an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy exhausted before judicial relief for that remedy is available. (Schwing, California Affirmative Defenses, (2010 Ed.), Chapter 16 Exhaustion of Administrative Remedies, §16.1, p. 1004, citing Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeal Board (1973), 8 Cal.3d 792, 794.)
An administrative claim or "cause of action" is within the special jurisdiction of the administrative agency, and courts may act only to review the final administrative decision. Allowing a suit prior to such final determination constitutes interference with the subject matter jurisdiction of another tribunal. Accordingly, exhaustion of an administrative remedy is a jurisdictional element in 17 California. (Schwing, supra, at § 16.1, p. 1006.)
15 16 18 19 20 20 21 Lack of jurisdiction of an action can be raised at any time, including appeal. (Lewis v. Sup. Ct.
(1937) 21 Cal.App.2d 340, 343.) It is a proper subject for summary judgment. (Wilkinson v. Norcal Mutual Ins. Co. (1979) 98 Cal.App.3d 307, 317-318.)
The exhaustion of remedies requirement applies to all forms of mandate, even if the petitioner challenges ministerial rather than quasi-judicial functions. (Asimow, Strumwasser, Bolz and Tuleja, 23 Administrative Law, Calif. Practice Guide, (The Rutter Group 2018), Chapter 15 Timing of Judicial 22 22 24 24 25 25 26 26 22 27 Review-When Judicial Review Is Premature, § 15:60, citing Lopez v. Civil Service Comm'n of City &
. Practice Guide, (The Rutter Group 2018), Chapter 15 Timing of Judicial 22 22 24 24 25 25 26 26 22 27 Review-When Judicial Review Is Premature, § 15:60, citing Lopez v. Civil Service Comm'n of City & County of San Francisco (1991) 232 Cal.App.3d 307, 314-315.) The exhaustion rule applies to actions for declaratory relief. (Id., Asimow, et al., Administrative Law, at §15:61, citing Bleeck v. State Bd. Of Optometry (1971) 18 Cal.App.3d 415, 432.)
28 /// 9 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 Riddle filed the TAPC on September 12, 2017, alleging the Vallely Lease was not issued pursuant to Title 17 of the NBMC, Harbor Code. (TAPC, p. 17, Ins. 26-28, 183.) The TAPC further 3 alleges that the enactment of an amendment to the Harbor Code on December 10, 2013 (presumably, 4 5 | NBMC section 17.60.060(E)), together with the issuance of the Vallely Lease, is a taking and damaging of her private property rights. (TAPC, p. 19, Ins. 1-3, 193.) Riddle has no property rights in the tidelands 6 of Newport Harbor; therefore, the enactment of NBMC section 17.60.060 and the issuance of the 7 8 10 Vallely Lease do not take or damage any property rights of Riddle. (See, Division III, Section A, supra.)
Nevertheless, the Court lacks jurisdiction to hear the Fifth Cause of Action because the 9 California Supreme Court has held that the doctrine of exhaustion of administrative remedies applies to 11 12 13 14 15 16 17 18 19 12 20 20 21 22 22 23 24 24 25 26 26 27 28 inverse condemnation actions, and Riddle did not file an administrative appeal, of the issuance of the Vallely Lease or otherwise, pursuant to NBMC section 17.60.080. (SSUMF # 43.)
The rule that applies to exhaustion of administrative remedies in inverse condemnation claims is
l, of the issuance of the Vallely Lease or otherwise, pursuant to NBMC section 17.60.080. (SSUMF # 43.)
The rule that applies to exhaustion of administrative remedies in inverse condemnation claims is set forth in the case of R. R. Hensler v. City of Glendale (1994) 8 Cal.4th 1.) R.R. Hensler upheld the trial court's ruling sustaining a demurrer to the inverse condemnation claim because the plaintiff failed to first exhaust administrative remedies. R.R. Hensler states the rule as follows: "The impact of a law or regulation on the owner's right to use or develop the property cannot be assessed until an administrative agency applies the ordinance or regulation to the property and a final administrative decision has been reached with regard to the availability of a variance or other means by which to exempt property from the challenged restriction. A final administrative decision includes exhaustion of any available review mechanism.” (R. R. Hensler v. City of Glendale, supra, 8 Cal.4th 1, at 12.) (Emphasis added.)
The City's issuance of a lease of the tidelands is a legislative act: "A public entity's 'award of a contract, and all of the acts leading up to the award, are legislative in character.' ... Thus, both the award of the contracts and the decision to reject the protest should be considered legislative actions………….. [¶] [o]nce exercised, legislative discretion is, absent special circumstances, not subject to judicial control and supervision. [] Any decision made in the exercise of that [legislative] authority would involve the use of discretion. As a consequence, the steps to be undertaken, the method selected, and the decision reached in the course thereof, in the absence of fraudulent or
ative] authority would involve the use of discretion. As a consequence, the steps to be undertaken, the method selected, and the decision reached in the course thereof, in the absence of fraudulent or arbitrary action, would not be interfered with by the courts. []" (Mike Moore's 24-Hour Towing v. City of San Diego, et al. (1996) 45 Cal.App.4th 1294, 1303-1305) (Internal quotes and citations omitted.).)
In issuing a tidelands lease, the City applies the authority granted to the City pursuant to (1) the Beacon Bay Bill, i.e., as amended by Chapter 317 of the State of California Statutes 1997 (RJN, Exh.
10 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 E); (2) the provisions of the NBMC, Harbor Code, Chapter 17.60 Harbor Permits and Leases, section 2 17.60.060 Public Trust Lands, subsection 17.60.060(A) (RJN, Exh. O); (3) the provisions of Newport 3 Beach City Council Resolution No. 2012-91 (RJN, Exh. M), allowing marinas to operate on the 4 tidelands under either a permit or lease; and, (4) the provisions of City Council Resolution No. 2012-97 5 6 7 8 9 10 11 12 13 (RJN, Exh. N), authorizing the City Manager to exercise discretion and authorizing the City Manager to execute tidelands leases.
Riddle alleges the Vallely Lease violated the mandates set forth in these authorities.' (See TAPC, p. 18, Ins. 13-15.) Riddle alleges the Vallely Lease was not a lease issued under NBMC Chapter [sic] 17. (Id., at p. 18, Ins. 17-18.) Riddle alleges the enactment of a Harbor Code amendment, presumably NBMC section 17.60.060(E), contributed to the taking of her property. (Id., p. 19, Ins. 1-3.) The alleged inverse condemnation, therefore, is the letting of the Vallely Lease.
de amendment, presumably NBMC section 17.60.060(E), contributed to the taking of her property. (Id., p. 19, Ins. 1-3.) The alleged inverse condemnation, therefore, is the letting of the Vallely Lease.
The enactment of the NBMC Title 17 Harbor Code; the implementation of NBMC Chapter 17.35| Harbor Development Regulations; the implementation of Chapter 17.60 Harbor Permits and Leases and 14 section 17.60.060 Public Trust Lands; the implementation of NBMC section 17.60.060 under Newport 15 Beach City Council Resolution Nos. 2012-91 and 2012-97; and, the issuance of the Vallely Lease, are 16 legislative acts not subject to interference from the courts. (Mike Moore's 24-Hour Towing v. City of San Diego, et al., supra,) 45 Cal.App.4th 1294, at 1303-1305.)
17 18 19 20 20 21 22 22 23 Riddle's inverse condemnation action challenges these legislative acts without first obtaining a final administrative decision by filing an appeal pursuant to NBMC section 17.60.080. (SSUMF # 43.)
Riddle was required as a matter of law to exhaust any review mechanism prior to filing this lawsuit. (R.
R. Hensler v. City of Glendale, supra, 8 Cal.4th 1, at 12.)
Riddle is not exempt from the requirement that she exhaust her administrative remedies pursuant to California Government Code section 905.1, which exempts inverse condemnation actions from the 24 25 26 1 Although unclear from the TAPC, Riddle may also be challenging the enactment of NBMC section 17.35.060(A), Balboa Island-Noncommercial Piers, which prohibits the approval of noncommercial (residential) piers on Balboa Island unless determined to be in the public interest (RJN, Exh. T), and the enactment of NBMC section 17.35.020(B) Setbacks, which
rohibits the approval of noncommercial (residential) piers on Balboa Island unless determined to be in the public interest (RJN, Exh. T), and the enactment of NBMC section 17.35.020(B) Setbacks, which 27 allows piers and slips of commercial properties to extend beyond prolongation of the property line with the City's prior approval (RJN, Exh. R). The Vallely Lease does not violate either of these sections as the Riddle Property is residential, and the Vallely Property is commercial.
28 25 11 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 requirement to file a government claim. R.R. Hensler, an inverse condemnation case, holds otherwise.
The Government Claims Act is separate and distinct from the doctrine of exhaustion of administrative 3 remedies. Riddle did not exhaust her administrative remedies to challenge the issuance of the Vallely 4 Lease, as required by NBMC section 17.60.080.
5 C.
6 7 8 Riddle Failed To Allege The Fifth Cause Of Action For Inverse Condemnation Within The Time Required By The Applicable Statute of Limitations.
1. Statement of Facts.
The Vallely Marina was constructed pursuant to permits issued by the U.S. Army Corp of 9 Engineers and the City, and its location and configuration has remained unchanged since 1939. (SSUMF| 10 11 12 13 14 15 16 17 18 19 20 20 2 21 22 22 23 24 24 25 26 27 #'s 17-18.) Riddle purchased the Riddle Property in 1993, and the location and configuration of the Vallely Marina is the same today as when Riddle purchased the Riddle Property. (RJN, Exh. A; SSUMF #'s 1, 17.)
On August 11, 2004, Riddle's then attorney, Christopher K. Barnette, sent a letter to Vivian Vallely, John Vallely's mother, expressing concerns regarding the Vallely Marina ("Barnette Letter").
17.)
On August 11, 2004, Riddle's then attorney, Christopher K. Barnette, sent a letter to Vivian Vallely, John Vallely's mother, expressing concerns regarding the Vallely Marina ("Barnette Letter").
(Vallely Decl., p. 3, Ins. 11-14, Exh. H.) The Barnette Letter claimed the Vallely Marina extended well in front of the Riddle Property, violated numerous City policies, encroached into Riddle's sight lines, and caused significant damage to the Riddle Property. (Id., Exh. H.) The Vallely Lease retains exactly the same location and configuration of the Vallely Marina as existed on the date of the Barnette letter.
(Decl. Vallely, p. 1, Ins. 9-11; SSUMF # 17.)
2. Riddle's Inverse Condemnation Claim is Untimely and Barred by the Statute of Limitations, which is Three Years (Damages) or Five Years (Taking).
California Code of Civil Procedure section 338(j) requires that an action for "physical damage to private property" under California Constitution Article 1, section 19, be brought within three years.
Section 338(j) addresses only "physical damage," and does not address "takings." An inverse condemnation based on a governmental agency's "taking" of private property must be brought within five years after the entity takes possession of the property. (Baker v. Burbank-Glendale-Pasadena | Airport Auth. (1985) 39 Cal.3d 862, 867.)
28 12 Memorandum of Points and Authorities in Support of Motion for Summary Judgment An inverse condemnation action accrues when the damage to the property occurs, or if not 2 immediate, when the damage manifests itself. (Lyles, et al. v. State of California, et al. (2007) 153 3 Cal.App.4th 281, 286.) The statute of limitations does not “reaccrue” or start anew every time the 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20
s, et al. v. State of California, et al. (2007) 153 3 Cal.App.4th 281, 286.) The statute of limitations does not “reaccrue” or start anew every time the 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 ownership of a property changes hands. (Beck Development Co., Inc. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.) (Citation omitted.) California Code of Civil Procedure section 312 provides: "Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation period is prescribed by statute." (Calif. Code Civ. Proc. § 312.)
Any alleged damage to or taking of the Riddle Property occurred in 1939. (SSUMF # 17; Vallely Decl., Exh. A.) The alleged injury and damage were immediate upon the completion of construction of the pier, dock and floats. Any claim for inverse condemnation belonged to the owner of the Riddle Property at that time. The time to commence an action for inverse condemnation expired in 1944.
Riddle did not acquire the benefit of a new statute of limitations when she purchased the Riddle Property, and even if she did, more than five years have elapsed since her purchase of the Riddle Property in 1993. It is undisputed Riddle was aware of the location and configuration of the Vallely Marina when she purchased the Riddle Property, and as of the Barnette letter from August 11, 2004.
The City denies Riddle has any property interest or right taken by the Vallely Lease. Even if it did, the Vallely Lease does not damage or take the Riddle Property in any manner different from any damage or taking that could have been alleged in 1939. The Vallely Lease does not change the location
id, the Vallely Lease does not damage or take the Riddle Property in any manner different from any damage or taking that could have been alleged in 1939. The Vallely Lease does not change the location or configuration of the Vallely Marina, as it existed when constructed in 1939, as it existed when Riddle 21 purchased the Riddle Property in 1993, or as it existed in 2004 when the Barnette letter was sent on 22 23 24 24 25 25 26 26 22 behalf of Riddle. The statute of limitations under any theory therefore expired in 2009, barring Riddle's Fifth Cause of Action for Inverse Condemnation as a matter of law.
D.
Conclusion.
As a matter of law, Riddle has no property interest or littoral rights in the leasehold Premises, and therefore has suffered no taking or damage to a property right in the tidelands. The Court has no 27 jurisdiction over the inverse condemnation cause of action due to Riddle's failure to exhaust her 28 13 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 administrative remedies or to commence the claim within the statute of limitations. Any right of Riddle to access across the tidelands is subservient to the City's lawful administration of the tidelands.
IV.
RIDDLE'S FOURTH CAUSE OF ACTION FOR VIOLATION OF THE BROWN ACT FAILS AS A MATTER OF LAW.
The Court Lacks Jurisdiction Over The Fourth Cause Of Action For Violation Of The Brown Act Because Riddle Failed To Exhaust Her Administrative Remedies Pursuant To Government Code Sections 54960.1 and 54960.2.
5 A.
6 7 1. Riddle Failed to Exhaust the Administrative Remedies set forth in the Brown Act.
Riddle's Fourth Cause of Action seeks declaratory relief for violation of the Brown Act. (TAPC, 8 9 10 11 12 13 14 15 16 17 18 19 20 20
Exhaust the Administrative Remedies set forth in the Brown Act.
Riddle's Fourth Cause of Action seeks declaratory relief for violation of the Brown Act. (TAPC, 8 9 10 11 12 13 14 15 16 17 18 19 20 20 p. 12, Ins. 15-16, p. 20, Ins. 11-13.) However, Riddle is barred from pursuing the cause of action due to her failure to exhaust the administrative remedies and requirements of the Brown Act.
If an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy must be exhausted before judicial relief respecting that remedy is available. (See generally Section III.B.2.a, supra.)
Government Code sections 54960.1 and 54960.2 provide the administrative processes for seeking redress of alleged violations of the Brown Act. They are statutory prerequisites mandating that legal challenges must be initiated within either ninety (90) days (section 54960.1) or nine (9) months (section 54960.2) of an alleged violation of the Brown Act. (RJN, Exhs. AA, BB; SSUMF #'s 63-69.)
First, to file an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by the Newport Beach City Council violated certain provisions of the Brown Act and is therefore null and void if not cured, California Government Code section 54960.1 21 requires a written demand to "cure or correct” the action alleged to have been taken in violation of the Brown Act within ninety (90) days of the date the action was taken (or thirty [30] days for certain alleged actions) clearly describing the challenged action and the nature of the alleged violation.
22 23 24 25 26 26 27 28 Second, to file an action to determine the applicability of the Brown Act to a past action of the
arly describing the challenged action and the nature of the alleged violation.
22 23 24 25 26 26 27 28 Second, to file an action to determine the applicability of the Brown Act to a past action of the Newport Beach City Council, California Government Code section 54960.2 requires a "cease and desist" letter to be submitted to the City Clerk within nine (9) months of the alleged violation.
Neither Government Code section 54960.1 nor Section 54960.2 provides for an extension of the time to comply due to a claimant's delayed discovery of an item lawfully placed on a public agenda 14 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 freely accessible to the public and acted upon during a meeting of the City Council. After the alleged discovery of the alleged “secret settlement agreement" that Riddle claims violated the Brown Act, 3 Riddle did not comply with either section 54960.1 or section 54960.2. Riddle did not submit either a 4 written demand to "cure or correct” or a cease and desist letter to the City Clerk within nine (9) months, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 20 21 22 22 23 23 or at any time. (SSUMF #'s 67, 69.) The Court may not legislate exceptions to the explicit unambiguous requirements of the statute.
Riddle argues that a letter from her attorney, Geralyn L. Skapik, to Harry S. Carmack, outside litigation counsel for the City in this action, dated April 21, 2017, constitutes a cease and desist letter pursuant to California Government Code section 54960.2. (See generally, TAPC, pp. 12-14.) Any review of this letter will conclude that it is a request to stipulate to an amendment to Riddle's First Amended Complaint to add causes of action for violation of the Brown Act and inverse condemnation.
view of this letter will conclude that it is a request to stipulate to an amendment to Riddle's First Amended Complaint to add causes of action for violation of the Brown Act and inverse condemnation.
(Carmack Decl., Exh. A.) It is not a “cease and desist” letter or a written demand to cure or correct.
The letter does not describe the past action of the City Council and nature of the alleged violation (for instance, what section of the Brown Act was allegedly violated?), as required by the Brown Act. (Cal.
Govt. Code § 54960.2.) Furthermore, the letter is addressed to opposing counsel for the City in a lawsuit on file for almost nineteen (19) months before the date of the letter, and is not addressed to the City Clerk as required by statute.
Riddle did not exhaust her administrative remedies in compliance with the Brown Act and therefore, as a matter of law, the Court lacks jurisdiction over the Fourth Cause of Action.
2. The City did not Violate the Brown Act.
Riddle alleges that a resolution of the permit litigation preceding execution of the Vallely Lease should have been announced in open session by the City Council, that the terms and conditions resolving the litigation should have been specifically before the City Council or presented at a City Council meeting for consideration and approval, and should have been disclosed to the public 25 (presumably as a separate item on a City Council agenda). (TAPC, p. 16, Ins. 2-6.) None of these actions were legally required. There was no "secret settlement agreement."
24 24 26 27 28 The NBMC gives Vallely the option of occupying tidelands under either a permit or lease. (RJN, Exh. O; NBMC § 17.60.060.) Section 17.60.060 was adopted by legislative action of the Newport 15
26 27 28 The NBMC gives Vallely the option of occupying tidelands under either a permit or lease. (RJN, Exh. O; NBMC § 17.60.060.) Section 17.60.060 was adopted by legislative action of the Newport 15 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 Beach City Council on December 10, 2013, as part of the City's establishment of fair market rents under 2 the Beacon Bay Bill. (SSUMF # 19; Miller Decl., p. 1, Ins. 17-23.) All commercial users of the 3 tidelands were given the opportunity to choose between a lease and a permit. (Miller Decl., Exh. A.)
4 5 6 7 8 9 10 11 12 13 14 15 16 17 Prior to the amendment of NBMC section 17.60.060, commercial users of tidelands were issued annual permits. The amendment to NBMC section 17.60.060 affected Vallely in the same manner as the other approximate 60 commercial users of the tidelands, all of whom are subject to the lease/permit requirement of the NBMC.
Vallely operated pursuant to permits for approximately 76 years, until March of 2015, when Vallely chose to exercise the option to lease the tidelands pursuant to NBMC section 17.60.060, resulting in the Vallely Lease. (Vallely Decl., p. 1, Ins. 12-17, Ins. 22-25.)
Vallely's annual pier permit expired on February 28, 2015. Through his attorney, Vallely notified the City that he chose to operate pursuant to a lease, which was his option, on February 4, 2015.
(Carmack Decl., p. 2, lns. 14-18.) The Vallely Lease was executed on March 12, 2015, and complies with all requirements of the Beacon Bay Bill. The Vallely Lease is a public record. A memorandum of the Vallely Lease was recorded with the Orange County Recorder's Office. (RJN, Exh. Q.).)
No legislative approval of the Vallely Lease was required. The City Council had expressly
ord. A memorandum of the Vallely Lease was recorded with the Orange County Recorder's Office. (RJN, Exh. Q.).)
No legislative approval of the Vallely Lease was required. The City Council had expressly delegated authority to execute leases of tidelands, including the Vallely Lease, to the City Manager.
18 (SSUMF # 36.) The alleged “secret settlement agreement," is nothing more than a label fabricated by Riddle to allege a nonexistent Brown Act violation.
19 20 20 21 22 23 Riddle cites Government Code section 54957.1 as the basis of her allegation. (TAPC, p. 12, lns.
13-14.) Government Code section 54957.1 applies to closed sessions of a legislative body of a local agency. It does not require closed sessions, but rather requires public reporting of any action taken in closed session only when certain requirements are satisfied. Government Code section 54957.1(d) 24 provides that nothing in that section shall be construed to require that a legislative body approve actions not otherwise subject to legislative body approval. (RJN, Exh. Y.)
25 26 26 27 28 By Newport Beach City Council Resolutions Nos. 2012-91 and 2012-97, the City Council authorized the City Manager to execute leases of tidelands in Newport Bay. (RJN, Exhs. M, N.)
Because of this express authorization from the City Council, the subsequent execution of a tidelands 16 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 lease is valid without the need to additional legislative body approval. Therefore, Government Code 2 section 54957.1 does not require the Newport Beach City Council to meet in either closed session or 3 open session to approve the issuance of a tidelands lease, let alone require that approval be made in 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 22 23 24 25
meet in either closed session or 3 open session to approve the issuance of a tidelands lease, let alone require that approval be made in 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 22 23 24 25 25 26 27 28 closed session subject to the reporting out requirements of Government Code section 54957.1.
B.
Conclusion.
As a matter of law, Riddle failed to exhaust her administrative remedies for alleging a Brown Act violation, either by written demand to cure or correct or a cease and desist letter.
A.
V.
RIDDLE'S FIRST, SECOND, AND THIRD CAUSES OF ACTION FAIL AS A MATTER OF LAW AND RIDDLE IS LEGALLY BARRED FROM SEEKING DAMAGES.
Because Riddle Has No Rights Or Duties Under The Vallely Lease, She Is Not Entitled To Declaratory Relief Or The Issuance Of A Writ Of Mandate, And Her Due Process Rights Have Not Been Violated.
The City incorporates Section III.A, supra, as if set forth in full immediately below.
1. Declaratory Relief.
Riddle seeks a declaration of the rights and duties of the parties with respect to the Vallely Lease.
|(TAPC, p. 8, Ins. 5-6.) Declaratory relief is authorized by California Code of Civil Procedure section 1060, and governed by sections 1060-1062.3. California Code of Civil Procedure section 1061 states: "the court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances."
(Calif. Code Civ. Proc. § 1061.)
To state a claim for declaratory relief there must be an actual controversy relating to the rights and duties of the parties. Here, no actual controversy exists. Riddle is neither a party to the Vallely Lease or a littoral property owner with rights in the tidelands that supersede the City's rights under the
of the parties. Here, no actual controversy exists. Riddle is neither a party to the Vallely Lease or a littoral property owner with rights in the tidelands that supersede the City's rights under the Beacon Bay Bill. (RJN, Exh. E.)
Further, Riddle lacks standing to bring the First Cause of Action. A plaintiff must be the real party in interest with respect to the claim sued upon. (Calif. Code Civ. Proc. § 367.) For standing, a party must be beneficially interested in the controversy; that is, he or she must have 'some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.' (Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456, 466, citing Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796.) Riddle lacks any 17 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 2 1 special interest or right in the tidelands. Riddle has no rights and duties under the Vallely Lease, yet 3 4 10 5 6 7 00 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Riddle improperly seeks a declaration that the Vallely Lease is void and lacks standing to bring the First Cause of Action.
2. Writ of Mandate.
Riddle seeks a writ of mandamus compelling the City to declare the Vallely Lease invalid.
(TAPC, p. 10, Ins. 22-23.)
California Code of Civil Procedure section 1086 reads: "the writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested." (Calif. Code Civ. Proc. § 1086.)
Further, California Rules of Court, rule 3.1103, requires that a writ of mandate comply with the
sued upon the verified petition of the party beneficially interested." (Calif. Code Civ. Proc. § 1086.)
Further, California Rules of Court, rule 3.1103, requires that a writ of mandate comply with the law and motion procedures set forth in Rules 3.1100, et seq. Law and motion rules require Riddle to file a notice of hearing on the motion, a motion and a memorandum of points and authorities in support of the motion in order to seek a writ of mandate. (Calif. Rules of Court, rule 3.1112.) The procedure must follow Code of Civil Procedure section 1005. (Calif. Rules of Court, rule 3.1300(a).) A motion is deemed to have been brought before the court upon due service and filing of a notice of motion. (Calif.
Code Civ. Proc. §1005.5.)
Riddle has no beneficial interest in the Vallely Lease, and therefore lacks standing to bring the Second Cause of Action. (Carsten v. Psychology Examining Comm., supra, 27 Cal.3d 793, at 796.)
Riddle cannot establish the existence of property interest or property right in the tidelands, and has never served and/or filed a notice of motion or motion for a writ of mandate or a memorandum of points and authorities. (Carmack Decl., p. 2, Ins. 9-10.) For these reasons, her Second Cause of Action fails as a matter of law.
3. Due Process.
Riddle seeks an order setting aside the Vallely Lease for an alleged due process violation, and an 25 injunction permanently enjoining the City from issuing more leases or permits without complying with 26 26 due process. (TAPC, p. 11, lns. 19-23.) Riddle alleges the City took actions without notice or opportunity to be heard by her or the public at large. (Id., Ins. 12-18.)
27 28 | /// 18 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7
without notice or opportunity to be heard by her or the public at large. (Id., Ins. 12-18.)
27 28 | /// 18 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 4 5 6 7 Riddle has no "vested right” in the leasehold Premises or in access to the tidelands. Due process notice and hearing are not required when there is no deprivation of property: “we emphasize, however, that constitutional notice and hearing requirements are triggered only by governmental action which results in 'significant' or 'substantial' deprivations of property, not by agency decisions having only a de minimus effect on land.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 616.)
The request to the Court for an injunction requiring notice and hearing before the City issues any more permits or leases is not within the Court's power to grant. "Only those governmental decisions 8 which are adjudicative in nature are subject to procedural due process principles. Legislative action is 9 not burdened by such requirements.” (Horn, supra, 24 Cal.3d 605, at 612.) (citation omitted) (emphasis 10 original).) The issuance of leases and permits in the tidelands is authorized by the Beacon Bay Bill and 11 NBMC. The procedures regarding the issuance of leases and permits in the tidelands is governed by the 12 13 14 15 16 17 18 19 20 21 22 24 NBMC and legislative acts of the Newport Beach City Council, enacted after notice and opportunity to be heard. For these reasons, Riddle's due process rights were not violated as a matter of law.
B.
Riddle Failed To Exhaust Her Administrative Remedies Under NBMC Section 17.60.080.
The City incorporates Section III.B, supra, as if set forth in full immediately below.
iolated as a matter of law.
B.
Riddle Failed To Exhaust Her Administrative Remedies Under NBMC Section 17.60.080.
The City incorporates Section III.B, supra, as if set forth in full immediately below.
The City Council has enacted legislation, i.e., NBMC, Title 17, Harbor Code, Chapter 17.60, Harbor Permits and Leases, section 17.60.080, Appeals, that provides an administrative remedy for appeals involving permits and leases issued in Newport Harbor. (RJN, Exh. P; SSUMF #'s 41, 42.)
The Vallely Lease is a lease of tidelands of Newport Harbor. (SSUMF #'s 22-27.) Riddle did not seek administrative relief as required by NBMC section 17.60.080. (SSUMF #42.) Riddle did not submit a written appeal to the Harbor Resource Manager, which is required for Riddle to exhaust her administrative remedies. (SSUMF #43.) Riddle has been aware of the existence of the Vallely Lease 23 (effective March 12, 2015) since at least September of 2015. (SSUMF #49.) Riddle failed to initiate an appeal within twenty-one (21) days of the execution of the Vallely Lease, and failed to initiate an appeal within twenty-one (21) days of her undisputed discovery of the Vallely Lease. (SSUMF # 43.)
25 25 26 26 27 22 As a matter of law, the Court lacks jurisdiction over the First, Second, and Third Causes of Action due to Riddle's failure to exhaust her administrative remedies.
28 /// 19 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1192 20 20 21 22 22 23 24 24 C.
Riddle Did Not File A Claim For Damages As Required By The Government Claims Act.
The First, Second, Third and Fourth Causes of Action of the TAPC each seek either actual or compensatory damages. (TAPC, p. 16, In. 27 through p. 17, In. 1; p. 21, Ins. 1-2.) The TAPC fails to
ms Act.
The First, Second, Third and Fourth Causes of Action of the TAPC each seek either actual or compensatory damages. (TAPC, p. 16, In. 27 through p. 17, In. 1; p. 21, Ins. 1-2.) The TAPC fails to allege compliance with the Government Claims Act. (Calif. Govt. Code §§ 900, et seq.)
Government Code section 905 reads: "there shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against public entities except any of the following..." (Calif. Govt. Code § 905.)
Subsections (a) through (o) of section 905 contain the exceptions to the claim requirement, none of which apply to the first three causes of action.
Any claim relating to a cause of action for injury to personal property must be presented not later than six months after the accrual of the cause of action, and that all claims relating to any other cause of action shall be presented not later than one year after the accrual of the cause of action. (Calif. Govt.
Code §911.2.) A claim shall be presented to the public agency by delivery to the clerk, secretary or auditor, or by mailing the claim to the city clerk, secretary or auditor at the public agency's principal office. (Calif. Govt. Code §915(a).)
Failure to present a claim to a public entity bars a plaintiff from filing a lawsuit seeking damages against that entity. (City of Stockton, et al. v. Sup. Ct. (2007) 42 Cal.4th 730, 738, citing State of California v. Sup. Ct. (Bodde) (2004) 32 Cal.4th 1234, at 1239.)
Riddle never submitted a claim as required by the Government Claims Act. As a result, Riddle is statutorily barred from her First, Second, Third, and Fourth Causes of Action seeking damages.
V.
CONCLUSION.
e never submitted a claim as required by the Government Claims Act. As a result, Riddle is statutorily barred from her First, Second, Third, and Fourth Causes of Action seeking damages.
V.
CONCLUSION.
For these reasons, Riddle's First, Second, Third, Fourth, and Fifth Causes of Action each fail as a matter of law. The City respectfully requests that this motion for summary judgment be granted.
Dated: May 25, 2018 Respectfully submitted by: 25 25 26 26 27 22 28 /Harry S. Carmack/ HARRY S. CARMACK Attorney for Respondent/Defendant City of Newport Beach 20 Memorandum of Points and Authorities in Support of Motion for Summary Judgment 1 2 3 DECLARATION OF HARRY S. CARMACK I, Harry S. Carmack, declare as follows: 1.
I have personal knowledge of the matters set forth in this declaration, and if 4 5 6 7 8 9 called upon, could and would competently testify thereto.
2.
I am an attorney licensed to practice in the State of California. I am the attorney in this action for the respondents/defendants City of Newport Beach (the "City") and John Vallely ("Vallely").
3. Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibits A, B, C, D and Q are true and correct copies of the recorded 10 documents certified by the Office of the County Recorder of Orange County.
11 12 13 14 15 16 4. Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibit E, is a true and correct copy of Chapter 317 of the State of California Statutes of 1997.
5.
Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibit E, is a true and correct copy of Chapter 317 of the State of California Statutes of 1997.
5.
Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed 17 concurrently herewith, as Exhibit F, G, I, K, L, O, P, R, S, T, V and W are true and correct copies of the 18 Newport Beach Municipal Code sections 17.05.030, 17.05.090, 17.01.030, 17.05.040, 17.05.050, 17.60.060, 17.60.080, 17.35.020, 20.18.010, 17.35.060, 21.48.035 and 17.65.050.
192 20 20 21 222 22 23 24 24 6.
Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed concurrently herewith, as Exhibit H, M and N, are true and correct copies of Newport Beach City Council Ordinance No. 2013-27, and Newport Beach City Council Resolution Nos. 2012-91 and 201297.
7.
25 25 26 26 27 28 Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, Judgment, filed concurrently herewith, as Exhibits J and X, are true and correct copies of Newport Beach City Charter sections 421 and 405.
1 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 2 8. Attached to the Request for Judicial Notice in Support of the Motions for Summary Judgment of the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed 3 concurrently herewith, as Exhibit U, is a true and correct copy of California Rules of 4 5 6 Court, Rule 3.1103.
the City and Vallely, and the City's Motion for Summary Adjudication of Issues, filed 3 concurrently herewith, as Exhibit U, is a true and correct copy of California Rules of 4 5 6 Court, Rule 3.1103.
9.
Attached to the Request for Judicial Notice in Support of the Motion for Summary Judgment of the City, and the City's Motion for Summary Adjudication of Issues, filed concurrently 7 herewith, as Exhibits Z, AA, BB, and CC are true and correct copies of Government Code sections 8 54957.1, 54960, 54960.1, and 54960.2.
9 10. Attached to the Request for Judicial Notice in Support of the Motion for Summary 10 Judgment of Vallely and the City, and the City's Motion for Summary Adjudication of Issues, filed 11 concurrently herewith, as Exhibit Y is this Court's Minute Order, entered December 19, 2017.
11.
12 13 14 15 16 17 18 Riddle has never served or filed a notice of motion or motion for a writ of traditional mandate, and Riddle has never served and/or filed a memorandum of points and authorities.
Attached hereto as Exhibit A is a true and correct copy of a letter from Geralyn Skapik to Harry S. Carmack, dated April 21, 2017.
12.
13.
14.
The initial complaint in this action was filed on September 4, 2015.
On February 4, 2015, I notified Deputy City Attorney Michael Torres that Vallely opted to occupy the tidelands pursuant to a tidelands lease. Agreement to the proposed lease was reached on 19 February 19, 2015. There was a brief delay while the insurance requirements of Exhibit D to the lease 20 21 2015.
22 were completed. The City then drafted the lease for signature, executed by the parties as of March 12, 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is
completed. The City then drafted the lease for signature, executed by the parties as of March 12, 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17th day of May, 2018, at Costa Mesa, California.
24 25 /Harry S. Carmack/ 26 27 28 HARRY S. CARMACK 2 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment Exhibit A Writer: Geralyn L. Skapik Mark C. Allen CLAREMONT LAND GROUP VIA EMAIL & FIRST CLASS MAIL Email: Harry S. Carmack, Esq.
LAW OFFICE OF HARRY S. CARMACK Attorneys April 21, 2017 File No.: CLG.043 Re: Susan [Bidart] Riddle v. City of Newport Beach Orange County Superior Court Case No.: 30-2015-00808124-CU-WM-CJC Dear Mr. Carmack: This letter requests that your clients stipulate to an amendment of the complaint or, alternatively, the City of Newport Beach ("City") accept an order and remand, holding the Lease to be invalid, as improperly entered into by the City. I explain our thinking below.
While I know you are familiar with the background, I will provide a brief summary of what we see as the relevant facts to provide context for the remainder of my comments. On May 21, 2013, Vallely, as trustee of a family trust, appealed the Harbor Division's denial of a request to transfer the permit at 508510 Bayfront previously issued to Mr. Vallely's parents. On June 28, 2013, the City denied the appeal.
On September 23, 2013, Vallely, as trustee, filed an action against the City seeking to overturn the denial. On December 10, 2013, the City amended its Harbor Code to allow commercial tideland leases to abut upland property not owned by the holder of the leasehold. Vallely lost the case against the City
ial. On December 10, 2013, the City amended its Harbor Code to allow commercial tideland leases to abut upland property not owned by the holder of the leasehold. Vallely lost the case against the City in the trial court and appealed. The appeal was dismissed and the Lease was entered into on or about March 12, 2014. The instant action followed.
The City and Vallely have contended and represented to the court that there was nothing untoward about the transaction. The argument was that the entry into the Lease was simply a ministerial action by the City Manager and that the change in the code allowing Vallely to block any access by Riddle was simply a neutral change made by the City. We have now determined based on the just-finished depositions and documents we finally pried out of the defendants that virtually all of these representations are and were false.
Harry S. Carmack, Esq.
Re: Susan [Bidart] Riddle v. City of Newport Beach April 21, 2017 Page 2 • .
• It is untrue that the change in the Harbor code was neutral. In fact, it was "special legislation" that benefited Vallely and only Vallely.
It is untrue that the Lease was a ministerial act. The City Manager and your client testified that it was negotiated as a settlement of the litigation.
It is untrue that the City has made similar accommodations for others. The Vallely Lease is much more favorable to the lessee than any other lease the City has executed.
This leads me to the need to amend the complaint. First, these facts clearly show the City and Vallely entered into secret negotiations and then a secret settlement. This clearly violated the open meeting
leads me to the need to amend the complaint. First, these facts clearly show the City and Vallely entered into secret negotiations and then a secret settlement. This clearly violated the open meeting requirements of the Brown Act. Under the City Charter, settlements are vested in the City Council (See Sec. 405) and have not been (and indeed, could not be) delegated to an employee, Second, it is now clear that the City and Vallely combined to attempt to block Riddle from developing her property so that Vallely could have his docks. Since the City's actions benefited only Vallely and there has been no showing (or even contention) of a public purpose, what we are left with is naked trampling on Riddle's right in order for the City to help another private party. This is a classic case of inverse condemnation for which Riddle is entitled to damages.
We intend to amend our complaint to add, at a minimum, violation of the Brown Act and damages for inverse condemnation. As you know, amendment of a complaint can only be denied in very rare situations, none of which even arguably exist here. Therefore, we ask that you stipulate to the amendment, subject, of course, to your review of the amended complaint. In the absence of conditional assent we will seek our remedy with the court forthwith.
Please let me know your thoughts as soon as possible. Given the upcoming trial date, I will need to have your decision by COB April 26, 2017. Please feel free to call with any questions or concerns.
/GLS CC: Very truly yours, CLAREMONT LAND GROUP Днавер удпарл GERALYN L. SKAPIK Aaron Harp, City Attorney, City of Newport Beach (Via Email & First Class Mail) 1 2 3 4 DECLARATION OF JOHN VALLELY
SKAPIK Aaron Harp, City Attorney, City of Newport Beach (Via Email & First Class Mail) 1 2 3 4 DECLARATION OF JOHN VALLELY I, John Vallely, declare as follows: 1.
1 have personal knowledge of the matters set forth in this declaration, and if called upon, could and would competently testify thereto.
5 2.
I am the co-trustee of the John Stephen Vallely Trust. My wife, Karen Vallely, is the 6 other co-trustee.
3.
The John Stephen Vallely Trust owns the real property located at (the "Vallely Property") The Vallely Property is on Balboa Island.
7 I 9 4.
Bayward of the Vallely Property are a pier, dock and floats that have existed in their 10 current configuration since my father constructed the dock and floats in 1938 and 1939 (the "Vallely 11 Marina").
12 13 14 15 5. The Vallely Marina was constructed pursuant to permits issued by the Army Corp of Engineers and the City of Newport Beach (the "City"). A true and correct copy of the Army Corp of Engineers pier permit, issued in 1939, is attached hereto as Exhibit A. A true and correct copy of the City pier permit, initially issued in 1966, is attached hereto as Exhibit B. A true and correct copy of the 16 pier permit issued by the City for March 1, 2014 to February 28, 2015, the last year the Vallely Marina operated under a permit vs. a lease, is attached as Exhibit C.
17 18 19 200 6. The Vallely Marina has always been operated as a sole proprietorship, licensed annually with the City as "Vallely Boat Rentals." A true and correct copy of the City business license held by Vallely Boat Rentals is attached hereto as Exhibit D.
21 22 22 23 24 7.
I have managed the business of the Vallely Marina since 1976.
8.
." A true and correct copy of the City business license held by Vallely Boat Rentals is attached hereto as Exhibit D.
21 22 22 23 24 7.
I have managed the business of the Vallely Marina since 1976.
8.
On March 12, 2015, I exercised the option, provided under the Newport Beach Municipal Code section 17.60.060, to convert the Vallely Marina pier permit to a lease. A true and correct copy of the lease is attached to Riddle's Third Amended Petition/Complaint as Exhibit 1. (the 25 "Vallely Lease.") 26 27 28 9. At the time of the execution of the Vallely Lease, I had already appealed to the Fourth District Court of Appeals to reverse a superior court denial of a writ of mandate seeking to order the City to transfer the existing pier permit from my deceased parents' family trust to my family trust.
3 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 10.
At the time I filed an application for a pier permit transfer in 2013, the City had not 2 adopted Newport Beach Municipal Code (NBMC”) section 17.60.060, offering the option to lease 3 4 5 6 7 tidelands for commercial uses.
11.
I had no involvement whatsoever in the City's enactment of NBMC section 17.60.060 or its amendments.
12. I was not aware of the option to lease tidelands, as provided in NBMC section 17.60.060, until after filing the appellant's opening brief for the appeal of the denial of the writ of mandate seeking 8 to transfer my parents' pier permit from their family trust to my family trust. The brief was filed on 9 November 25, 2014.
10 11 12 13 14 15 16 17 18 19 20 21 22 22 25 23 24 24 25 25 26 27 28 13.
I was also not aware until then that commercial uses could be operated by entities other than the upland property owner, as provided in NBMC section 17.60.060(E).
22 22 25 23 24 24 25 25 26 27 28 13.
I was also not aware until then that commercial uses could be operated by entities other than the upland property owner, as provided in NBMC section 17.60.060(E).
14. In February of 2015, I learned Vallely Boat Rentals could continue to operate the Vallely Marina under a tidelands lease, without the need to transfer a pier permit from my parents' family trust to my family trust.
15.
With this knowledge I made the decision in February of 2015 to operate Vallely Boat Rentals under a tidelands lease.
16. I dismissed the appeal because I exercised my right under NBMC section 17.60.060 to operate Vallely Boat Rentals pursuant to a tidelands lease. The appeal of the denial of the writ seeking an order to transfer the pier permit became moot when I made this decision. A true and correct copy of the dismissal of the appeal is attached hereto as Exhibit E.
17. Contrary to the allegations of Riddle's complaint, the leasehold “Premises” do not include the pier, dock and floats that comprise the Vallely Marina. (TAPC, p. 3, Ins. 20-25.) The definition of the leasehold "Premises” in the Vallely Lease does not include the pier, dock and floats.
My family has always owned the pier, dock and floats that comprise the Vallely Marina, and my family has always paid real property taxes on the Vallely Marina as an improvement to the Vallely Property.
Contrary to the allegations of Riddle's complaint, neither myself, nor anyone associated with the Vallely Marina, has ever claimed a vested property right in the tidelands. (TAPC, p. 3, Ins. 2627.) I have always known the tidelands are owned in trust by the City.
18.
4 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 19.
idelands. (TAPC, p. 3, Ins. 2627.) I have always known the tidelands are owned in trust by the City.
18.
4 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment 1 19.
Contrary to the allegations of Riddle's complaint, I have never appeared in front of the 2 Harbor Commission for a permit transfer. (TAPC, p. 4, Ins. 12-13.) The denial of the pier permit 3 4 transfer application by the City was by the Harbor Resources Manager, with the administrative appeal to a hearing officer, not the Harbor Commission.
5 20.
Contrary to the allegations of Riddle's complaint, the Vallely Marina does not 6 completely block Riddle's access to Newport Harbor. Attorney Christopher K. Barnette, representing 7 Riddle, sent a letter to the Harbor Commission, dated March 11, 2013, with attached Exhibits A to C.
8 9 10 11 12 13 14 15 Exhibit B to the Barnette letter of March 11, 2013, at pages 7 and 9, contains accurate pictures of the Vallely pier and public pier at Opal Street as of that date, as they have always been, and as they exist today. A true and correct copy of the Barnette letter of March 11, 2013, is attached hereto as Exhibit F.
21. Attached hereto as Exhibit G is a true and correct copy of a letter, dated August 11, 2004, addressed to Vivian Vallely, from Christopher K. Barnette, Riddle's attorney. As the person who managed the Vallely Marina, this letter has been kept in my files since it was forwarded to me by Vivian Vallely, my mother, at the time it was received.
22. Attached hereto as Exhibit H is a true and correct copy of a letter, dated May 30, 2012, addressed to Duncan Forgey of California Prudential Realty, from Christopher K. Barnette, Riddle's
eceived.
22. Attached hereto as Exhibit H is a true and correct copy of a letter, dated May 30, 2012, addressed to Duncan Forgey of California Prudential Realty, from Christopher K. Barnette, Riddle's 17 attorney. Duncan Forgey was my real estate agent at the time, and was engaged to attempt to sell the 16 18 19 20 20 21 Vallely Property before my decision to purchase the property by buying my sister's one-half interest.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17th day of May, 2018, at Newport Beach, California.
22 23 224 24 25 26 26 27 28 /John Vallely/ JOHN VALLELY 5 Notice of Motion and Motion of Respondent/Defendant John Vallely for Summary Judgment Exhibit A WAR DEPARTMENT NOTE. It is to be understood that this instrument does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. IT MERELY EXPRESSES THE ASSENT OF THE FEDERAL GOVERNMENT SO FAR AS CONCERNS THE PUBLIC RIGHTS OF NAVIGATION. (See Cummings v. Chicago, 188 U. S., 410.)
PERMIT 3-8360 Office, Division Engineer, South Pacific Division, 414 Customhouse, United States-Engineer-Office¬San Francisco Calif.
APR 27 1999 19 36.
Mr. Roland F. Vallely, Balboa, Calif.
Dear Sir: Referring to written request dated February 24, 1936, for permit to install floats, anchor piles and ramp in Newport Bay, Calif., I have to inform you that, upon the recommendation of the Chief of Engineers,
ng to written request dated February 24, 1936, for permit to install floats, anchor piles and ramp in Newport Bay, Calif., I have to inform you that, upon the recommendation of the Chief of Engineers, and under the provisions of Section 10 of the Act of Congress approved March 3, 1899, entitled "An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes," you are hereby authorized by the Secretary of War, (Here describe the proposed structure or work.)
to install two wooden landing floats, ramp and 3 anchor piles channelward of U. S. Pierhead line, in front of existing pier, westerly of Agate Avenue, Balboa Island, in Newport Bay, (Here to be named the river, harbor, or waterway concerned.)
at Newport Beach, Calif., (Here to be named the nearest well-known locality-preferably a town or city-and the distance in miles and tonths from some definite point in the sauno, stating whether above or below or giving direction by points of compass.)
in accordance with the plans shown on the drawing attached hereto, marked "Proposed (Or drawings; give file number or other definite identification marks.)
Landing Float and Anchor Piles at Newport Beach, California. Application by R. F. Vallely, February, 1936."
subject to the following conditions: applicat (a) That the work shall be subject to the supervision and approval of the District Engineer, Engineer Department at Large, in charge of the locality, who may temporarily suspend the work at any time, if in his judgment, the interests of navigation so require.
(b) That any material dredged in the prosecution of the work herein authorized shall be removed evenly, and no
suspend the work at any time, if in his judgment, the interests of navigation so require.
(b) That any material dredged in the prosecution of the work herein authorized shall be removed evenly, and no large refuse piles, ridges across the bed of the waterway, or deep holes that may have a tendency to cause injury to navigable channels or to the banks of the waterway shall be left. If any pipe, wire, or cable hereby authorized is laid in a trench, the formation of permanent ridges across the bed of the waterway shall be avoided and the back filling shall be so done as not to increase the cost of future dredging for navigation. Any material to be deposited or dumped under this authorization, either in the waterway or on shore above high-water mark, shall be deposited or dumped at the locality shown on the drawing hereto attached, and, if so prescribed thereon, within or behind a good and substantial bulkhead or bulkheads, such as will prevent escape of the material into the waterway. If the material is to be deposited in the harbor of New York, or in its adjacent or tributary waters, or in Long Island Sound, a permit therefor must be previously obtained from the Supervisor of New York Harbor, Army Building, New York City.
(c) That there shall be no unreasonable interference with navigation by the work herein authorized.
(d) That if inspections or any other operations by the United States are necessary in the interests of navigation, all expenses connected therewith shall be borne by the permittee.
(e) That no attempt shall be made by the permittee or the owner to forbid the full and free use by the public of all navigable waters at or adjacent to the work or structure
be borne by the permittee.
(e) That no attempt shall be made by the permittee or the owner to forbid the full and free use by the public of all navigable waters at or adjacent to the work or structure (f) That if future operations by the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owners shall, without expense to the United States, and to such extent and in such time and manner as the Secretary of War may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable capacity of the watercourse. No claim shall be made against the United States on account of any such removal or alteration.
(g) That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the Bureau of Lighthouses, Department of Commerce, shall be installed and maintained by and at the expense of the owner.
(h) That the permittee shall notify the said district engineer at what time the work will be commenced, and as far in advance of the time of commencement as the said district engineer may specify, and shall also notify him promptly, in
the said district engineer at what time the work will be commenced, and as far in advance of the time of commencement as the said district engineer may specify, and shall also notify him promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week, resumption of work, and its completion.
day 1939, this permit, if not previously revoked or specifically extended, shall cease and be null of That if the structure or work herein authorized is not completed on or before Becember and void.
_ the 31st (J) That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the Government for the conservation or improvement of navigation, and no claim or right to compensation shall accrue from any such damage.
By authority of the Secretary of War: WAR DEPARTMENT Form No. 96 Revised April 28, 1922 3-8360 GEMENT PRINTING OFFICE T. H. Jackson, Colonel, Corps of Engineers, Division Engineer.
Bulkhead Line -83'Pier Anchor Piles 11753' Ramp Line M.N.T.EL 5.2 Float LIDO ISLE NEWPORT CENTRAL BAL BO SLAND BAY PROFILE -20° SCALE IN FEET HORIZONTAL VERTICAL.
0 10 20 Sta. No. 158 PEARL Agate AVE.
PACIFIC -33°55' OCEAN 12 Scale in Miles LAND AND JETTY VICINITY SKETCH NEWPORT BAY Traced from Map of Real Estate, Rivers & Harbors, US Engineer's Off Los Angeles, California. File No 815 A Soundings are expressed in feet and denote depths below mean lower low water RE SUBDIVISION OF SECTION ONE 2 BALBOA ISLAND M.B. 6P.30 3 4 5 BLOCK 7 U.S. BULKHEAR 183' 100' U.S. PIERHEAD LINE 7 Anchor U.S. PROJEC Anchor Pile Bay 25 13 50 Scale in Feet 08.
53 Existing Anchor Pile AGATE AVE.
Toto PROPOSED LANDING FLOAT AND ANCHOR PILES
3 4 5 BLOCK 7 U.S. BULKHEAR 183' 100' U.S. PIERHEAD LINE 7 Anchor U.S. PROJEC Anchor Pile Bay 25 13 50 Scale in Feet 08.
53 Existing Anchor Pile AGATE AVE.
Toto PROPOSED LANDING FLOAT AND ANCHOR PILES NEWPORT BEACH, CALIFORNI Application by R.F. Vallely Hey Apr February, 1936.
Exhibit B CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT HARBOR PERMIT ROLAND F. AND VIVIAN VALLELY NAME OF APPLICANT 508 SOUTH BAY FRONT MAILING ADDRESS BALBOA ISLAND, CALIFORNIA IN COMPLIANCE WITH YOUR APPLICATION OF DECEMBER 27 , 196 6 AND SUBJECT TO ALL TERMS, CONDITIONS AND RESTRICTIONS WRITTEN BELOW OR PRINTED AS GENERAL, OR SPECIAL PROVISIONS ON ANY PART OF THIS FORM, PERMISSION IS HEREBY GRANTED TO MAINTAIN AN EXISTING PIER AND FLOAT BAYWARD OF 508 AND 519-BOUTH BAY FRONT, BALBOA ISLAND.
THIS PERMIT IS ISSUED IN ACCORDANCE WITH CITY COUNCIL INSTRUCTIONS PER COUNCIL MINUTES dated 12-27-66.
ALL WORK TO BE IN ACCORDANCE WITH THE STANDARD SPECIFICATIONS OF THE CITY OF NEWPORT BEACH AND DRAWINGS ATTACHED OR REFERENCED THERETO: THIS PERMIT SHALI BE VOID UNLESS THE WORK HERE IN CONTEMPLATED SHALL HAVE BEEN COMPLETED BEFORE DECEMBER 27 19 68.
APPROVED BY CITY ENGINEER AUTHORIZED BY THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, MEETING HELD ON THE 27TH DAY OF DECENSER AT A 1966 La L CITY CLERK NO.
A-1484 Exhibit C CERTIFIED AS A TURE AND CORRECT COPY City Clerk of the City of Newport Beach BEACH (1) Commercial Marina Permit Date 11.9.15 Commercial Marina Permittee: This Permit is issued on March 1, 2014 to Vallely Marina ("Permittee”) to operate a commercial marina located upon City of Newport Beach ("City") tidelands, as more particularly described in Attachment 1 and depicted in Attachment 2 ("Premises"). Both Attachment 1 and Attachment 2 are
ommercial marina located upon City of Newport Beach ("City") tidelands, as more particularly described in Attachment 1 and depicted in Attachment 2 ("Premises"). Both Attachment 1 and Attachment 2 are incorporated by reference into this Permit. By acceptance of this Permit, the Permittee agrees to be bound by the terms contained in this Permit.
(2) Term: This Permit shall be valid for a period of twelve (12) calendar months beginning on March 1, 2014, and expiring on February 28, 2015, unless terminated earlier as provided herein.
(3) Rent: Rent shall be calculated pursuant to Resolution No. 2012-98, or any successor/amended resolution. Resolution No. 2012-98 and any successor/amended resolution are automatically incorporated by reference into this Permit, without any further action by the parties, when adopted by the Newport Beach City Council.
(4) (A) (B) (C) Periodic Payment of Rent: One-twelfth (1/12) of annual rent for a particular year shall be payable on the first (1st) day of each month during the term.
Place for Payment of Rent: All payments of rent shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time to time designate in writing to the Permittee. If requested by City, the Permittee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at the Permittee's cost). The Permittee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal.
ittee's cost). The Permittee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal.
Late Charges: A ten percent (10%) late charge, or the maximum rate allowable under State law, shall be added to all payments due but not received by City with fifteen (15) calendar days following the due date. In addition, all unpaid amounts shall accrue at a delinquency rate of one and a half percent (1½%) per month or any portion of a month until paid in full.
Utilities and Taxes: The Permittee is solely responsible for obtaining all utilities and paying all taxes, fees and assessments for the Premises or improvements located thereon.
(5) Possessory Interest Tax Notice: The City hereby gives notice to the Permittee, pursuant to Revenue and Tax Code Section 107.6 that this Permit may create a possessory interest that is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of the Permittee. The Permittee NEWPORT CALIFORNIA 1 shall advise in writing any sublessee, licensee, concessionaire or third party using the Premises of the requirements of Section 107.6.
(6) Compliance With Applicable Laws: The Permittee is required at its sole expense to comply with all applicable City, County, State and Federal laws and regulations.
(7) Maintenance: The Permittee assumes full responsibility for operation and maintenance and repair of the Premises and associated improvements throughout the term of this Permit at its sole cost, and without expense to the City.
(8) Transfer/Assignment: This Permit may not be transferred or assigned by the Permittee without the City's prior written consent. Transfer/assignment without the
ost, and without expense to the City.
(8) Transfer/Assignment: This Permit may not be transferred or assigned by the Permittee without the City's prior written consent. Transfer/assignment without the City's prior written consent is null and void.
(9) Termination: This Permit may be terminated for cause (e.g., failure to abide by the terms of this Permit, etc.) by the City with no less than seven (7) calendar days prior written notice to the Permittee. In the event of termination under this section, the City shall owe no compensation to the Permittee and the Permittee shall remove all improvements from the Premises within ninety (90) calendar days. The Permittee shall continue to pay rent to the City during the period in which the improvements are removed. Alternatively, the Permittee, with the City's prior written consent, may quitclaim all fixtures, equipment, and improvements on the Premises to the City.
Notwithstanding any other provision of this Permit as permitted by California Public Resources Code Section 6312, or any successor statute, the parties agree that upon expiration or earlier termination of this Permit the City shall have no liability or obligation to pay compensation for any improvements made to the Premises.
(10) Inspection: Upon seventy-two (72) hours notice, the City may enter the Premises, and all improvements thereon, including a right of reasonable access to the Premises across the Permittee's owned or occupied lands adjacent to the Premises, to inspect the Premises for compliance with the terms of this Permit.
(11) Indemnification: To the fullest extent permitted by law, Permittee shall indemnify, defend (with counsel selected by the City) and hold harmless the City, its
iance with the terms of this Permit.
(11) Indemnification: To the fullest extent permitted by law, Permittee shall indemnify, defend (with counsel selected by the City) and hold harmless the City, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever (individually, a "Claim" or collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to this Permit including, but not limited to, Permittee's occupancy and use, or Permittee's guests, invitees, sublessees, or licensees occupancy and use, of the Premises, or improvements including, but not limited to, any use involving petroleum based products, hazardous materials, hazardous waste and/or other hazardous substances as defined by City, County, State or Federal laws and regulations. The Permittee's obligations in this section shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of the City, subject to any immunities which may apply to the City with respect to such 2 Claims. This indemnification provision and any other indemnification provided elsewhere in this Permit shall survive the termination of this Permit and shall survive for the entire time that any third party can make a Claim.
(12) Insurance: The Permittee shall maintain insurance for the Premises during the term of this Permit, issued by a company authorized to transact business in California with a rating of A- (or higher) and Financial Size Category Class VII (or larger), in at
the Premises during the term of this Permit, issued by a company authorized to transact business in California with a rating of A- (or higher) and Financial Size Category Class VII (or larger), in at least the following amounts: (i) workers' compensation insurance providing statutory benefits and employer's liability insurance in an amount not less the $1 million; (ii) commercial general liability insurance in an amount not less than $2 million per occurrence and $4 million general aggregate for bodily injury, personal injury, and property damage; (iii) contractor's pollution liability insurance, in an amount of no less than $3 million, for contractors or subcontractors performing construction work providing coverage for liability arising out of a sudden, accidental and gradual pollution; and (iv) Pollution legal liability, of no less than $1 million, applicable to bodily injury; property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed; cleanup costs; and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims; all in connection with any loss arising from the Premises. The City (i.e., its elected or appointed officers, officials, employees, agents and volunteers) shall be named as an additional insured on all insurance policies required by this section.
(13) No Damages: The Permittee acknowledges the City would not have issued this Permit if it were to be liable for damages under, or relating to, this Permit. The parties agree that declaratory relief, injunctive relief, mandate and specific performance shall be the Permittee's sole and exclusive judicial remedies.
(14) Uplands Support: The location of the parking spaces serving the Premises as
ief, injunctive relief, mandate and specific performance shall be the Permittee's sole and exclusive judicial remedies.
(14) Uplands Support: The location of the parking spaces serving the Premises as required by NBMC Section 20.40.040, or any successor statute, shall be depicted on Attachment 2.
3 Attachment 1 Description of Premises 25 Feet 50 Bulkhead/Pierhead Lines 410 AGATE AVE 500502 501 PILERHEAD 14.
TT 508.
3,159 sf 510 510 1/2 111 1/2 111 201 OPAL AVE 108 BAY FRONT ALLEY 514 516 Vallely - 508 Bay Front S 116 118 114 A 114 518 A 518 B 320 1522 TOPAZ AVE BAY 526 524 Permit# CP25605081 Effective 2013 (Per Resolution 2012-98) 528 Standard Marina Rate (Small): (3,159 sq. ft. x Current Rate) Attachment 2 Depiction of Premises & Uplands Support 5 Newport Beach GIS NEWPORT CITY OF CALIFORNIA BEACH 050 052 37 50 052 15 504 508 BAYFRONTS 0 20 40 Feet 050 052 14 510 510 1/2 050 052 13 _ BAY FRON OPAL AVE (512) ALLEYS Amusin 050 052 33 050 051 21 Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use.
Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 8/14/2014 Exhibit D RV160 NEWPORT OF CITY CALIFORNIA CITY OF NEWPORT BEACH VALLELY BOAT RENTAL PO BOX 39 BALBOA ISLAND, CA 92662 ACCOUNT NUMBER: BT30043417 EXPIRATION DATE: 05/31/2018 INSTRUCTIONS AND CONDITIONS Welcome to the City of Newport Beach, and thank you for your business tax payment. This business tax certificate is evidence that the named business has paid a tax to conduct the business activity designated, within the City of Newport Beach, until the expiration date
s tax payment. This business tax certificate is evidence that the named business has paid a tax to conduct the business activity designated, within the City of Newport Beach, until the expiration date shown. Please notify the Revenue Division immediately if any of the information on the certificate changes.
This certificate is valid only at the address indicated and must be displayed in a conspicuous location. If your business is not conducted at a permanent location, Municipal Code requires that any representative, while transacting business within the city, carry this certificate.
This business tax certificate does not authorize the named business to conduct any activities regulated by the City of Newport Beach or other agencies. Authorization for such activities must be obtained from the appropriate departments prior to application for business tax, including land use authorization from the City's Community Development Department. Certificates are not transferable to any other party or person and are not pro-rated. Refunds are not provided once the certificate has been issued.
Your business tax certificate is valid until the expiration date, and must be renewed annually prior to that date. Changes in type of ownership (i.e. from a sole proprietorship to a partnership or LLC), nature of business, or ownership void the current certificate and require filing of and payment for a new application. Additional certificates are required if additional types of business activity are initiated at the same address, or additional locations of the same business are established (Municipal Code sections 5.04 through 5.08).
For your convenience, the Revenue Division will mail a courtesy renewal notice, prior to the expiration date, to the mailing address of record.
established (Municipal Code sections 5.04 through 5.08).
For your convenience, the Revenue Division will mail a courtesy renewal notice, prior to the expiration date, to the mailing address of record.
Non-receipt of the notice does not alleviate the requirement to renew. Penalties are imposed for late renewal at a rate of 25% per month to a maximum of 50% of the base tax.
The Revenue Division is available to answer any questions regarding business tax certificate and requirements. Call (949) 644-3141; e-mail us at: [email protected], or visit us on the internet at www.newportbeachca.gov and view the Municipal Code online.
DISPLAY CONSPICUOUSLY AT PLACE OF BUSINESS FOR WHICH ISSUED.
THIS TAX PAYMENT EXPIRES: SERVICE ADDRESS: CITY OF NEWPORT BEACH BUSINESS TAX CERTIFICATE 05/31/2018 NEWPOR VALLELY BOAT RENTAL 508 BAY FRONT S NEWPORT BEACH, CA 92662 BUSINESS CATEGORY: MISC AMUSEMENT & RECREATION SV SELLERS PERMIT: ACH ACCOUNT NUMBER: BT30043417 OWNER/PRINCIPAL NAME: JOHN VALLELY OWNERSHIP TYPE: SOLE PROPRIETORSHIP TAX INCLUDES PAYMENT FOR: 0 EMPLOYEES DATE OF ISSUE: NO SELLERS PERMIT ALIFORNIA PRINT DATE: 05/20/2013 06/01/2017 Exhibit E COURT OF APPEAL - STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE JOHN STEPHEN VALLELY, Plaintiff and Appellant, COURT OF APPEAL-4TH DIST DIV 3 FILED MAR 13 2015 V.
CITY OF NEWPORT BEACH, Deputy Clerk Defendant and Respondent.
G050539 Orange County No. 30-2013-00677168 Appellant having filed a request for dismissal in this court, the appeal is DISMISSED. The remittitur shall issue forthwith. (Cal. Rules of Court, rule 8.244(c)(2).)
O'Leary, P.J.
Presiding Justice CC: See attached list Exhibit F LAW OFFICES OF CHRISTOPHER BARNETTE March 11, 2013 VIA FEDEX Harbor Commission City of Newport Beach
Rules of Court, rule 8.244(c)(2).)
O'Leary, P.J.
Presiding Justice CC: See attached list Exhibit F LAW OFFICES OF CHRISTOPHER BARNETTE March 11, 2013 VIA FEDEX Harbor Commission City of Newport Beach c/o Chris Miller, Harbor Resources Manager Re: Permit Application for Commercial Pier at Hon. Commissioners: I represent the owners of the property at| | Newport Beach, California. I am writing on their behalf to oppose the permit application for a commercial pier located at | on Balboa Island.
The pier in its present configuration and use is an illegal structure, in violation of numerous provisions of the Newport Beach Municipal Code ("NMBC"). Although the pier was allowed to stand as a non-conforming use for many years, the owner of the upland property associated with the pier is in escrow to sell that property. As such, the existing permit by its terms is expiring, and the new owner will be required to obtain an entirely new permit. For a new permit to be issued in circumstances such as these, the new permittee is required to bring the pier and use into compliance with the law.
Present Configuration and Use of Pier The pier in question is bayward of a residence located at An aerial photo showing the location of the pier in relation to the property (labeled the "Vallely House") and my client's property (labeled the “Bidart/Riddle House") is attached for the Commission's convenience as Exhibit "A." The pier extends perpendicularly from the bulkhead in front of the 1 Although a permit to maintain the pier is clearly required under sections 17.10.050 and/or 17.60.020 of the Newport Beach Municipal Code, the Harbor Resources Manager has indicated that no application for a permit has been made. As such, without an application pending, the
17.10.050 and/or 17.60.020 of the Newport Beach Municipal Code, the Harbor Resources Manager has indicated that no application for a permit has been made. As such, without an application pending, the Harbor Commission has neither the obligation, nor the jurisdiction, to undertake any action at this time. In addition, adequate notice was not given to my clients or surrounding properties.
Accordingly, my clients object to any action taken by the Harbor Commission.
Harbor Commission City of Newport Beach March 11, 2013 Page 2 of 10 Vallely residence, and is built on the property line of the residences (without setback). Near and at the end of the pier are two horizontal pier extensions that were built to accommodate multiple boats.
The horizontal pier extensions encroach across the entirety of my clients' upland 510 S. Bayfront property.
A photo taken from directly in front of my client's property is below. The pier on the left is a public pier that extends from the center of Opal Avenue. The pier on the right is the pier in question. The sandy area in the photo is directly in front of my clients' property.
Additional photos of the pier are attached as Exhibit "B."
Harbor Commission City of Newport Beach March 11, 2013 Page 3 of 10 The current owner has been renting the slips on the pier, and currently six boats are tying up at the pier. There is no off-street parking available for the slip renters, nor are there any bathroom facilities. The property has been marketed as having a “mini-marina,” allowing the owner to rent out ties for six boats for income. (MLS Listing attached as Exhibit "C.") Newport Beach Municipal Code Requirements The pier in its present form is an illegal structure. The pier encroaches in front of another upland
boats for income. (MLS Listing attached as Exhibit "C.") Newport Beach Municipal Code Requirements The pier in its present form is an illegal structure. The pier encroaches in front of another upland property, violates Newport Beach setback requirements, does not have any offsite parking as required by the Code, nor does it have an restroom facilities as required by the Code.
Setbacks.
Section 17.35.020.B.1 of the NMBC provides: "All piers and slips for residential properties shall be set back a minimum of five feet from the prolongation of the property line.” Piers associated with commercial properties: “... may extend to, but not past, the prolongation of the property line." NMBC Sec. 17.35.020.B.2. The 508 S. Bayfront property is improved with and has been used as a residence, but apparently is zoned for commercial use.
The pier extensions here not only extend past the property line, but across the entirety of the neighboring upland property. There is no question that it violates the setback requirements.
Off-Street Parking.
Section 17.35.080 of the NMBC requires parking be provided for piers as provided in Chapter 20 of the Newport Beach Municipal Code. Similarly, section 17.10.050.E of the code, which governs use of piers for commercial purposes, requires parking be provided under the requirements of the same chapter.
Section 20.40.040 of the Code requires .75 off-street parking spaces for every slip in a private marina. Accordingly, for the six slips here, 4.50 off-street parking spaces are required under that section and, because fractional spaces are to be rounded up (NBMC Sec. 20.40.030.E.1), the proposed permit holder here will be required to provide five off-street parking spaces. The current use has no off-street parking.
Restroom Facilities.
to be rounded up (NBMC Sec. 20.40.030.E.1), the proposed permit holder here will be required to provide five off-street parking spaces. The current use has no off-street parking.
Restroom Facilities.
Section 17.45.010.B requires all private commercially operated shore-connected marinas have a minimum of two restroom facilities, one for men and one for women, for each 20 berthing spaces. The pier at present has no accessible restroom facilities.
Harbor Commission City of Newport Beach March 11, 2013 Page 4 of 10 Permit Requirements Section 17.60.010 of the Newport Beach Municipal Code notes that the City manages tidelands through a series of permits, franchises and leases. Section 17.60.020 provides that applications for permits which pertain to the harbor are to be filed with the Harbor Resources Division, in writing, on forms prescribed by the Harbor Resources Manager.
Section 17.10.020.F further requires that no person shall engage in, or conduct, any commercial activity on Newport Harbor without a Marine Activities Permit. Under section 17.01.030.C.12 "commercial" activity includes pier rentals. Section 17.10.050 provides that a Marine Activities Permit cannot be approved if off-street parking does not meet the requirements of Chapter 20 of the Code, or if the commercial activity would otherwise violate the City Code. Moreover, any Marine Activities Permits actually issued impose as standard conditions the requirement of adequate off-street parking (Sec. 17.10.070.B.1) and compliance with City ordinances (17.10.070.B.11). Accordingly, no Marine Activities Permit can be issued here unless the pier is brought into compliance with the Newport Beach Municipal Code, and adequate off-street parking and restroom facilities are provided for its use.
Activities Permit can be issued here unless the pier is brought into compliance with the Newport Beach Municipal Code, and adequate off-street parking and restroom facilities are provided for its use.
Although no permit application is actually pending here, it is unquestioned that a new permit will be required for the pier in question. Section 17.35.020.F provides that where ". . . existing piers and floats encroach in front of abutting upland property owned by others, a new permit approved by the Harbor Commission shall be required upon: ..3. Any change of the of the existing ownership of the abutting upland property owned by the permittee or upon the death of the permittee."
The existing pier encroaches over neighboring upland property. As such, a new permit is required to maintain and use the existing pier.
Significantly, nowhere in the code is the Harbor Resources Manager or the Harbor Commission provided discretionary authority to issue permits for structures or activities that violate the Code, as the pier does in this instance. In other words, the permit here cannot be issued unless the pier is brought in compliance with the Code. Because the existing structure and use are unlawful, a permit may no be issued for use in its present form.
Conclusion It is undisputed that the pier at 508 S. Bayfront in its present configuration and use violates the law. My client is mindful of the fact that the City previously allowed use of the structure in its present form because its prior permit holder obtained the pier permit many years ago, and the City adopted the view that it was grandfathered as a non-conforming use. That permit, however, has expired or is expiring and any right to maintain an illegal use is terminating.
Harbor Commission City of Newport Beach
iew that it was grandfathered as a non-conforming use. That permit, however, has expired or is expiring and any right to maintain an illegal use is terminating.
Harbor Commission City of Newport Beach March 11, 2013 Page 5 of 10 The Newport Beach Municipal Code does not grant the Harbor Commission discretion to permit structures and uses that entail blanket violations of the Code. The Harbor Commission is certainly entitled to issue a permit for structures and uses that do comply with Code.
Accordingly, if the permit applicant here were to bring the structure into compliance, and otherwise complies with use requirements in the Code, a permit may be permissible. If used as a residential pier, it would need to be moved to comply with the setback requirements. If used as a commercial pier, then it would need to be modified to comply with the setback requirements and, among other things, the applicant would need to provide adequate off-street parking and restroom facilities. Because the pier does not comply with any of these requirements, however, any permit application must be denied.
Moreover, even if a permit were allowed for a structure that violated the Code, there is no justification for issuance of such a permit here. Among other things, this is not a circumstance where unique conditions apply to the property, where compliance with the Code would deprive the property owner of privileges enjoyed by other properties in the vicinity, and where issuance of a permit is necessary to preserve substantial property rights. Because the permit terminates upon a change of ownership, the new owner will have no ownership rights or justifiable use expectations with respect to the pier. Furthermore, granting of the permit will effectively
permit terminates upon a change of ownership, the new owner will have no ownership rights or justifiable use expectations with respect to the pier. Furthermore, granting of the permit will effectively constitute a grant of a special privilege inconsistent with the limitations on other properties in the area. As such, any such request should be denied.
Thank you.
Sincerely, Coco Christopher Barnette Attachments CC: Susan Riddle (via email) Leonard Bidart (via email) Harbor Commission City of Newport Beach March 11, 2013 Page 6 of 10 EXHIBIT A Valliely House Vallely Pior Bidart Riddle House Harbor Commission City of Newport Beach March 11, 2013 Page 7 of 10 EXHIBIT B View from Inside Riddle/Bidart House Harbor Commission City of Newport Beach March 11, 2013 Page 8 of 10 View of Pier in question from Public Pier on Opal Avenue Harbor Commission City of Newport Beach March 11, 2013 Page 9 of 10 OPAL View showing distance between Subject Pier and Public Pier Harbor Commission City of Newport Beach March 11, 2013 Page 10 of 10 EXHIBIT C Agent Full Report Email 5/3/12 9:55 AM JAKE KLOHS SFR Residential Detached RES Active Thu, May 3, 2012 09:54 AM Newport Beach (NB) Ref: 1 Price $4,599,000 Lower Newport Bay Balboa Island (N9) Orange County (OR) Zip 92662TGNO 919C1 XSTS Park Ave and Opal Aerial Map U12001752 Media: 30 Bed 3 Baths 2 View Bay View, City Lights View, Harbor View, Marina View, View, Water View ASqFt 0 Other Builder Tract Balboa Island - Main Island (BALM) Model (C) Style Cottage Stories Split Level Floor HOA Dues $ 0 + $0 Land Lse/Yr $ ALotSize YrBit 1912 Assessor Dim Land Fee Acres 2,632 Assessor Prkng Assigned Parking, Garage Attached Tot Prkg 2 Garage, # Rem cars 2 A # Uncovered Spaces Cprt # Garages RV Acc Range $: No
d Lse/Yr $ ALotSize YrBit 1912 Assessor Dim Land Fee Acres 2,632 Assessor Prkng Assigned Parking, Garage Attached Tot Prkg 2 Garage, # Rem cars 2 A # Uncovered Spaces Cprt # Garages RV Acc Range $: No This timeless home sits in the heart of Balboa Island. Perfectly situated with a direct view of the venerable ferry boats and the majestically lighted Balboa Pavilion. A three bedroom and two bath classic home in great living condition. NEVER BEFORE ON THE MARKET! Home to one of Newport's pioneer families with a large two car garage, boatman's basement and a small sandy beach. The property is a hybrid, in that, it is commercially zoned with a single family residence. Use it as a primary residence, a classic Balboa Island second home, a short or long term rental property or a business. Furnishings are available. Out front is a 'mini marina' unavailable elsewhere in Newport Harbor allowing the owner to rent out ties for six boats, this income is allowable, or use the oversized dock configeration for personal use for a boat up to fifty feet plus four or more smaller boats. One-of-a-kind opportunity!
Directions Balboa Island......Marine Avenue to Park Avenue, right on Park to Opal Avenue.....park and walk to South Bayfront.... three doors from Ferry Special Conditions: Standard Sale or Lease/None Bedrooms Main Floor Master Bedroom Kitchen Total Baths 2 Baths Desc Rooms Living Rm Dining Formal Dining Rm Full Baths 2 3/4 Baths 0 1/2 Baths 0 1/4 Baths 0 Other Basement - Unfinished Pool No Pool Spa No Spa TV Cable TV Firepl Living Room/Brick/Uses Both Gas & Wood Appliances Other Dock Private Amenities Water Heater High or Mid-Rise Amenities Security Heating Forced Air Interior/Exterior/StructuralCooling Ceiling Fan(s), No Air Conditioning
es Both Gas & Wood Appliances Other Dock Private Amenities Water Heater High or Mid-Rise Amenities Security Heating Forced Air Interior/Exterior/StructuralCooling Ceiling Fan(s), No Air Conditioning Interior Misc Built-In Bookcases, Cathedral-Vaulted Ceilings, Window Shutters, Wood Ceilings, Wood Product Walls Disability Access None Entry Location Ground Level w/steps Roof Composition Patio Patio, Porch - Front Cond As Is, Restored Common Walls Exterior Construction Stucco/Brick, Wood Floors Carpet - Partial Plumbing Sprinklers Doors/Windows Wood Frame Windows -Lot/Community/Association Lot/Block/Tract APNO 050 052 14 Zoning Com 5/9/99 City Inspection Required No Mello Roos No Sewer In Street Paid Lot Bay Front, Water Front Water District/Public Legal Coastal Commission Restrictions, In Flood Zone HS Dist Newport Mesa Unified Water District Newport Beach Elemen Yard School District Junior Corona del High Sch Corona Mar del Mar Units Amenities Builder's Name HOA 190 HOA1 Fees Frequency HOA $0 Other Association Fees HOA Phone Total HOA Dues 0 Land Fee Land Lse/Yr $ HOA2 Fees Frequency Terms Cash, Cash To New Loan Instr Appointment Only Builder's Name Distance to Beach (miles) Financial Information Private Transfer Taxes No Total HOA Dues Frequency None Tax Year Total Property Tax $ "Showing Instructions Occupant Agent / Agent Total Assessed Value $ Phone to Show 949-548-4800 Page 1 of 2 Agent Full Report Email Comp 2.5% Add! Comp Dual/Var No LockBox No Key Safe, No Key Safe List Type Exclusive Right To Sell or Lease/Full Service Tours/Open Houses Consider Lease No Possession Gate Code Misc Sign on Property -List Office/Agent Info
l/Var No LockBox No Key Safe, No Key Safe List Type Exclusive Right To Sell or Lease/Full Service Tours/Open Houses Consider Lease No Possession Gate Code Misc Sign on Property -List Office/Agent Info Cell 5/3/12 9:55 AM List Office Prudential California Realty (U7143) Office 949-723-70800fcFax 949-675-2156 AgtFax 949-675-2156 Res LA Direct List Agent Duncan Forgey (u11813) DRE# 00866951 Pager Primary 949-548-4800 LA Toll Free Agt E-Mail Yes Co List Office Co/LA OfcFax Agt WSite www.DuncanForgey.com Priv Rmks BROKER PREVIEW THURSDAY 5/3 11-2PM...OPEN SAT & SUN 5/5 & 5/6 1-4PM...This home is one of a kind. Easy to show call Duncan 949-548-4800 or Madelynn 949-933-9130. Property is zoned commercial so it opens up possibilities that residential lots do not have. Questions feel free to call. DO NOT MISS THIS OPPORTUNITY TO SHOW AND SELL ONE OF NEWPORT BEACH'S MOST IMPORTANT BAYFRONTS. Buyer and buyer's agent to verify all information. Thanks for your interest.
Price Excl Price Includes Phone to Show Type Agent Phone to Show Name Agent Show Phone 949-548-4800 List Agent Contact Priority: L/A Preferred Phone, L/A Toll Free Phone, L/A Direct Phone, L/A Cell Phone, L/A E-mail, L/A Office Phone Recip Listing No List Date 5/1/2012 Org Price $4,599,000 Date Added 5/1/2012 Prev Price $ -Listing Activity Tran Date 5/3/2012 Cur List Prc $4,599,000 DOM 2 CDOM 2 Off Market LP/SqFt $0.00 Comp 2.5% The accuracy of all information, regardless of source, including but not limited to square footages and lot sizes, is deemed reliable but not guaranteed and should be personally verified through personal inspection by and/or with the appropriate professionals.
ed and should be personally verified through personal inspection by and/or with the appropriate professionals.
http://socallistings.marketlinx.com/Search Detail/Scripts/PrtAgtFulE...L.asp?emailGUID-f9919d82-4ee6-4450-b3f5-8285407fbale&Agentid=U12691 Page 2 of 2 Miller, Chris From: Sent: To: Cc: Subject: Rich Kredel Monday, March 11, 2013 5:37 PM Miller, Chris; Levin, Shannon Fwd: Dock permit application on Balboa Island > March 10, 2013 > > > Mr. Chris Miller > 829 Harbor Island Dr.
> > Newport Beach, CA 508 So. Bay Front, Balboa Island as a result of the recent sale of the residence.
use. The residential property was advertised for sale as a 'Mini Marina'. The commercial zoning that exists on this block adjacent to the Balboa Ferry creates negative parking impact for the nearby residential streets.
the parking impact from all day or multi day boat trips from this location on Balboa Island is problematic. It negatively impacts Balboa island in general and our neighborhood specifically.
As homeowners here we know the island is public and anyone can come here, park their car, walk, ride the ferry, etc. But why issue long term permits which you know will further impact the residents' and the
eowners here we know the island is public and anyone can come here, park their car, walk, ride the ferry, etc. But why issue long term permits which you know will further impact the residents' and the public's ability to park and enjoy this island.
residential construction in the city. Hopefully, the city and the Harbor Commission are looking at parking impacts from rented docks as well.
> 1 Exhibit G FROM VIVIAN VALLELY FAX NO. :949-673-9517 Aug. 12 2004 06:01PM P1 LUCE FORWARD ATTORNEYS AT LAW FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP CHRISTOPHER K. BARNETTE, PARTNER August 11, 2004 Vivian Vallely Re: Pier at Balboa Island, California Dear Ms. Vallely: This firm represents Susan Bidart, who owns the home adjacent to your property at 510 South Bayfront on Balboa Island. Ms. Bidart has retained me to address concerns with the pier that extends from your property into the bay. As you are aware, the pier not only extends beyond the allowable pier headline, but begins at the edge of Mrs. Bidart's property and extends well in front of the Bidart Property. In doing so, the pier violates numerous City Council policies regarding use and configuration of piers extending from properties on Balboa Island.
Obviously, the pier in its current configuration encroaches well into the sightlines of Mrs.
Bidart's property and is causing significant damage to the property. We would like to explore
alboa Island.
Obviously, the pier in its current configuration encroaches well into the sightlines of Mrs.
Bidart's property and is causing significant damage to the property. We would like to explore with you alternative arrangements to mitigate the significant harm being caused by the pier, yet while allowing you to maintain a pier from your property. We are willing to meet with you in person at a mutually convenient time within the next several weeks to discuss these alternatives.
If we are unable to meet by September 3, 2004, however, we will begin pursuing alternative recourse to address this problem. Please contact me at your earliest convenience to discuss arrangements. I look forward to hearing from you.
Very truly yours, نيمة Сега чинь Christopher K. Barnette of LUCE, FORWARD, HAMILTON & SCRIPPS LLP CKB:hmk CC: Susan Bidart 1989115.1 326111 CARMEL VALLEY/DEL MAR ” LOS ANGELES " NEW YORK SAN DIEGO SAN FRANCISCO + WEST LOS ANGELES Exhibit H LAW OFFICES OF CHRISTOPHER BARNETTE May 30, 2012 Duncan Forgey Re: Dear Mr. Forgey: Newport Beach, California I represent the owner of the property at , which is adjacent to the abovereferenced property you have listed for sale (the "Vallely Property"). I am writing to express concern regarding statements you have made in the listing materials for the property.
As you are aware, the Vallely Property includes a pier in front of the property. Your listing advertises that the property includes a “mini marina'... allowing the owner to rent out ties for six boats... or use the oversized dock configuration for personal use...." In fact, and as set forth below, the pier in front of the Vallely Property does not comply with the City of Newport
ties for six boats... or use the oversized dock configuration for personal use...." In fact, and as set forth below, the pier in front of the Vallely Property does not comply with the City of Newport Beach Municipal Code, and any buyer of the property (in addition to the current owners) will need to bring the pier into compliance with the Code. That change will necessarily substantially reduce the size of the pier.
Newport Beach Municipal Code section 17.35.020.B provides that all piers for residential properties must be set back a minimum of five feet from the upland property line, and piers for commercial properties may not extend beyond the property line. The Vallely pier extends well over the property line, and indeed extends over the length of my clients' upland property.
Accordingly, regardless whether the Vallely Property is governed by the residential setback or the commercial setback, the pier is in violation of the code.
Section 17.35.020.F.3 of the Code further provides where existing piers encroach in front of abutting upland property owners, a new permit must be approved by the Harbor Commission upon any change of the existing ownership of the abutting upland property or death of the permittee. As a consequence of Mrs. Vallely's recent death, the existing permit for the Vallely pier is no longer valid and a new permit will be necessary.
Mr. Duncan Forgey Re: 508 S. Bayfront May 30, 2012 Page 2 of 2 Moreover, to obtain a new permit, the requesting party will need to ensure that the pier complies with the long-standing setback requirements of the municipal code-i.e., it will need to remove those portions of the pier that falls outside the setback requirements.
Although the current "dock configuration" of the Vallely pier may have been grandfathered
ipal code-i.e., it will need to remove those portions of the pier that falls outside the setback requirements.
Although the current "dock configuration" of the Vallely pier may have been grandfathered under Mrs. Vallely's permit, the Newport Beach Municipal Code is clear that under these circumstances a new permit will be required, and that conformance of the pier with the existing municipal code is necessary. Accordingly, we believe that your listing materials for the Vallely Property are misleading at best. We do not want to faced with a new property owner who has incorrect expectations about what is and what is not allowed with the use of the Vallely pier, nor I expect do you.
We ask that you please correct the listing materials immediately. If I can provide any further information, please do not hesitate to contact me.
Sincerely, Ст Christopher Barnette CC: client (via email) 2 3 DECLARATION OF CHRIS MILLER I, Christopher Miller, declare as follows: 2.
I have personal knowledge of the matters set forth in this declaration, and if 4 S called upon, could and would competently testify thereto.
3.
6 I am employed by the City of Newport Beach as the Newport Beach Harbor Resources Manager.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4. I have been employed by the City of Newport Beach in the Harbor Resources Division since 2003, and have been Harbor Resources Manager since 2008.
5. My duties as Harbor Resources Manager include administering the harbor related policies adopted by the City Council and the Harbor Commission, maintaining files and records of all pier permits issued, and recommending to the City Manager appropriate changes and modifications to harbor-related policies. My duties also include conducting regular inspections of both public and
all pier permits issued, and recommending to the City Manager appropriate changes and modifications to harbor-related policies. My duties also include conducting regular inspections of both public and private facilities and structures located 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, and to recommend action to the City Manager to ensure compliance with Newport Beach Municipal Code ("NBMC"), Title 17 Harbor Code.
These duties are set forth in NBMC section 17.05.060.
6. In late 2012, the Newport Beach City Council approved City Council Resolution Nos.
2012-91, 2012-92, 2012-96 and 2012-98, establishing the fair market value rental rates for commercial uses upon tidelands throughout Newport Harbor, and establishing the mechanism by which tidelands could be used by private operators, i.e., either a permit or a lease.
7. On May 2, 2013, I sent a letter to all commercial users of the tidelands informing all commercial users that they had a choice to enter into either an annual permit for use of the tidelands, or a longer term lease agreement. A true and correct copy of that letter is attached hereto as Exhibit A.
8.
I have inspected and am familiar with the location and configuration of the pier, dock and floats that comprise the Vallely Marina, located bayward of the Vallely property at 508 South Bay 25 26 Front, Newport Beach, CA (the "Vallely Property").
27 } /// 28/ 6 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 9.
2 Riddle property at I have inspected and am familiar with the location of the Vallely Marina in relation to the Newport Beach, CA (the "Riddle Property"), and in 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
iddle property at I have inspected and am familiar with the location of the Vallely Marina in relation to the Newport Beach, CA (the "Riddle Property"), and in 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 relation to the tidelands bayward of the Vallely Property and Riddle Property.
10. I have inspected and am familiar with the location of the bulkhead that separates the tidelands of Newport Bay and South Bay Front Avenue.
11. South Bay Front Avenue abuts the tidelands at the bulkhead in front of both the Vallely Property and the Riddle Property. The Riddle Property does not border on the tidelands, but rather borders on South Bay Front Avenue.
12.
13.
South Bay Front Avenue is a City right-of-way.
The Vallely Marina does not foreclose access to Newport Harbor from the tidelands abutting South Bay Avenue bayward of the Riddle Property.
14. Access to Newport Harbor from the tidelands bayward of the Riddle Property is available between the floats of the Vallely Marina and the City's pier at Opal Street. Boats berthed at the Vallely Marina use this access.
15.
One of my duties as Harbor Resources Manager is to receive appeals of any City actions involving permits or leases. An appeal must be accompanied by the fee established by the City Council.
This duty and requirement is set forth at NBMC section 17.60.080.
16. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an 19 appeal to myself or to the Harbor Resources Division.
20 20 17. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an 21 appeal to myself or the Harbor Resources Division concerning the Vallely Lease for the Vallely Marina.
22 23 18.
Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an
an 21 appeal to myself or the Harbor Resources Division concerning the Vallely Lease for the Vallely Marina.
22 23 18.
Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an appeal to myself or the Harbor Resources Division concerning the adoption of any City resolution or 24 City ordinance, including Newport Beach City Council Resolution No. 2012-97 and Newport Beach 25 26 46 27 28 Ordinance No. 2013-27.
19.
There are approximately 60 commercial users of tidelands of Newport Harbor. I am familiar with the location and configuration of all commercial uses in Newport Harbor.
7 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 2 20.
Use Water).
21.
3 4 5 6 7 & 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The Vallely Marina is a commercial use. The Vallely Property is zoned MU-W (Mixed Commercial uses other than the Vallely Marina, i.e., other commercial piers in Newport Harbor, extend past the prolongation of the property lines of the abutting upland property. Two examples, also zoned MU-W, are located at There are other such examples throughout Newport Harbor.
22. NBMC section 17.50.010 requires a Harbor Construction Permit to construct a pier in Newport Harbor. NBMC section 17.50.020 requires that an application to construct a pier must be filed with both the Community Development Department and the Harbor Resources Division.
23. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an application to the Harbor Resources Division to construct a pier bayward of the Riddle Property.
24.
NBMC section 17.35.060, enacted in 2008, provides that no new noncommercial piers on Balboa Island shall be approved unless determined by the Harbor Resources Division and harbor
Riddle Property.
24.
NBMC section 17.35.060, enacted in 2008, provides that no new noncommercial piers on Balboa Island shall be approved unless determined by the Harbor Resources Division and harbor Commission to be in the public interest.
25.
NBMC Title 17 Harbor Code, including section 17.35.060, codified the prior Harbor Permit Policies for Newport Harbor. I am aware the same restriction on noncommercial piers on Balboa Island was a prior Harbor Permit Policy in effect since at least 1966.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 24 th day of May, 2018, at Newport Beach, California.
Car Miler CHRIS MILLER 23 24 25 26 27 28 蠶 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues Exhibit A CITY OF NEWPORT CALIFORNIA May 2, 2013 BEACH CITY OF NEWPORT BEACH Public Works Department Harbor Resources Division Re: Commercial Uses upon Tidelands Permit & Lease Issuance Dear Commercial Marina Neighbor, Thank you for your patience through our recent process of establishing fair market value rent of tidelands in Newport Harbor. Pursuant to the City of Newport Beach's tidelands trust, known as the Beacon Bay Bill (Chapter 74 of the State of California Statutes of 1978), the City is obligated by State law to charge fair market value for rent of certain tide and submerged lands. Establishing the market value rental rates and creating a program to fairly implement these rates has been challenging, and your cooperation and support are truly appreciated.
City Council Resolutions (including 2012-91, 2012-92, 2012-96, and 2012-98) approved in late 2012
ly implement these rates has been challenging, and your cooperation and support are truly appreciated.
City Council Resolutions (including 2012-91, 2012-92, 2012-96, and 2012-98) approved in late 2012 establish the fair market value rental rates of the various types of commercial uses located upon tidelands throughout the harbor, and the mechanism by which the lands can be used by private operators: an annual permit or lease agreement.
In preparation of implementing these new annual permit and lease agreements, the enclosed exhibit has been created - your 2013 Commercial Pier Exhibit for the tidelands associated with your marina. The exhibit was developed using aerial photographs and our Geographic Information System (GIS) which was tested using field measurements, and it was found that the GIS-developed maps slightly underestimate actual square footage. We have proposed staying with that underestimation, as it benefits you. Where piers are over private waterways, County tidelands, or where a recorded easement allows the dock system, no charge is proposed for that portion of the water footprint (and should be excluded and reflected in the diagram).
Effective March 1, 2013, it is your choice to enter into either an annual permit for use of the tidelands associated with your marina, or a longer term lease agreement. Please find examples of both documents on the City's website at www.newportbeachca.gov/HarborRenters Regardless of the type of agreement you select, your rent has been calculated based on the square feet of public tidelands area used by your marina. The rent calculation is shown in the below examples: Example A - Large Commercial Marina Fair Market 2013 (greater than 15,000 SF) Permit Area: 20,000 SF of tidelands 2013 rate based on historical rate ($0.36/SF)
culation is shown in the below examples: Example A - Large Commercial Marina Fair Market 2013 (greater than 15,000 SF) Permit Area: 20,000 SF of tidelands 2013 rate based on historical rate ($0.36/SF) $0.36/SF x 20,000 SF = $7,200.00 annual rental rate Example B - Small Commercial Marina Fair Market 2013 (15,000 SF or less) Permit Area: 10,000 SF of tidelands 2013 rate is 75% of Large Commercial rate (75% of $0.36 = $0.27) City Hall 100 Civic Center Drive Post Office Box 1768 Newport Beach, California 92658-8915. www.newportbeachca.gov (949) 644-3001 Commercial Uses Upon Tidelands Letter Page 2 $0.27/SF x 10,000 SF = $2,700.00 annual rental rate Effective March 1, 2014 the Commercial Marina rates will be calculated by one of two methodologies, equivalent rent or the rent alternative (the greater of base rent or a percentage of gross marina revenue).
• • • Equivalent Rent. Equivalent rent is calculated as an aggregate of established marinas resulting in an established percentage; or Rent Alternative. The Rent Alternative is a base rent of 75% of the established equivalent rent plus 16% of gross marina revenue to the extent it exceeds the base rent payment.
Rates will be phased in over a five year period from 2014-2018 I respectfully ask for your assistance in this process by doing the following: 1. Review the enclosed diagram to confirm the square footage of tidelands area accurately depicts your property lines, pier footprint, and commercial use(s) identified on those docks (i.e.
correctly reflects areas used for charter, vessel rental facility, public slip rental, HOA not rented to public, etc...).
2. If the diagram does not correctly reflect the size and use(s) included in your marina, please contact the City's Harbor Resources Division: Chris Miller at
ental, HOA not rented to public, etc...).
2. If the diagram does not correctly reflect the size and use(s) included in your marina, please contact the City's Harbor Resources Division: Chris Miller at Shannon Levin at 3. Review the annual permit and lease agreement forms on our website http://www.newportbeachca.gov/index.aspx?page=2228 and decide which form works best for your business. Complete the Request for Commercial Tidelands Permit Form or the Request for Tidelands Lease Agreement Form (also found on the website), and submit it to the City according to the instructions on the form.
4. Review our website for more information. This has been a long process, and there is a lot of misinformation out there. Find out about how the City developed the Resolutions that were approved, along with the basics of the rental charges, on the City's website at www.newportbeachca.gov/HarborRenters Thank you again for your patience with this process and these changes; we hope to make the implementation process as simple and fast as possible, and we appreciate your cooperation with the above steps.
Respectfully, Chris Milter Chris Miller Harbor Resources Manager Enclosure: 2013 Commercial Pier Exhibit 510 510 1/2 1516 618 518 B Vallely - 508 Bay Front S Standard Marina Rate (final)) OF CITY NEWPORT CALIFORNIA May 2, 2013 BEACH CITY OF NEWPORT BEACH Public Works Department Harbor Resources Division Re: Commercial Uses upon Tidelands Permit & Lease Issuance Dear Commercial Marina Neighbor, Thank you for your patience through our recent process of establishing fair market value rent of tidelands in Newport Harbor. Pursuant to the City of Newport Beach's tidelands trust, known as the Beacon Bay Bill (Chapter 74 of the State of California Statutes of 1978), the City is obligated by
of tidelands in Newport Harbor. Pursuant to the City of Newport Beach's tidelands trust, known as the Beacon Bay Bill (Chapter 74 of the State of California Statutes of 1978), the City is obligated by State law to charge fair market value for rent of certain tide and submerged lands. Establishing the market value rental rates and creating a program to fairly implement these rates has been challenging, and your cooperation and support are truly appreciated.
City Council Resolutions (including 2012-91, 2012-92, 2012-96, and 2012-98) approved in late 2012 establish the fair market value rental rates of the various types of commercial uses located upon tidelands throughout the harbor, and the mechanism by which the lands can be used by private operators: an annual permit or lease agreement.
In preparation of implementing these new annual permit and lease agreements, the enclosed exhibit has been created - your 2013 Commercial Pier Exhibit for the tidelands associated with your marina. The exhibit was developed using aerial photographs and our Geographic Information System (GIS) which was tested using field measurements, and it was found that the GIS-developed maps slightly underestimate actual square footage. We have proposed staying with that underestimation, as it benefits you. Where piers are over private waterways, County tidelands, or where a recorded easement allows the dock system, no charge is proposed for that portion of the water footprint (and should be excluded and reflected in the diagram).
Effective March 1, 2013, it is your choice to enter into either an annual permit for use of the tidelands associated with your marina, or a longer term lease agreement. Please find examples of both documents on the City's website at www.newportbeachca.gov/HarborRenters
nual permit for use of the tidelands associated with your marina, or a longer term lease agreement. Please find examples of both documents on the City's website at www.newportbeachca.gov/HarborRenters Regardless of the type of agreement you select, your rent has been calculated based on the square feet of public tidelands area used by your marina. The rent calculation is shown in the below examples: Example A - Large Commercial Marina Fair Market 2013 (greater than 15,000 SF) Permit Area: 20,000 SF of tidelands 2013 rate based on historical rate ($0.36/SF) $0.36/SF x 20,000 SF = $7,200.00 annual rental rate Example B - Small Commercial Marina Fair Market 2013 (15,000 SF or less) Permit Area: 10,000 SF of tidelands 2013 rate is 75% of Large Commercial rate (75% of $0.36 = $0.27) City Hall 100 Civic Center Drive Post Office Box 1768 Newport Beach, California 92658-8915 www.newportbeachca.gov (949) 644-3001 Commercial Uses Upon Tidelands Letter Page 2 $0.27/SF x 10,000 SF = $2,700.00 annual rental rate Effective March 1, 2014 the Commercial Marina rates will be calculated by one of two methodologies, equivalent rent or the rent alternative (the greater of base rent or a percentage of gross marina revenue).
• • • Equivalent Rent. Equivalent rent is calculated as an aggregate of established marinas resulting in an established percentage; or Rent Alternative. The Rent Alternative is a base rent of 75% of the established equivalent rent plus 16% of gross marina revenue to the extent it exceeds the base rent payment.
Rates will be phased in over a five year period from 2014-2018 I respectfully ask for your assistance in this process by doing the following: 1. Review the enclosed diagram to confirm the square footage of tidelands area accurately
five year period from 2014-2018 I respectfully ask for your assistance in this process by doing the following: 1. Review the enclosed diagram to confirm the square footage of tidelands area accurately depicts your property lines, pier footprint, and commercial use(s) identified on those docks (i.e.
correctly reflects areas used for charter, vessel rental facility, public slip rental, HOA not rented to public, etc...).
2. If the diagram does not correctly reflect the size and use(s) included in your marina, please contact the City's Harbor Resources Division: Chris Miller at [email protected] or (949) 644-3043 Shannon Levin at [email protected] or (949) 644-3041 3. Review the annual permit and lease agreement forms on our website http://www.newportbeachca.gov/index.aspx?page=2228 and decide which form works best for your business. Complete the Request for Commercial Tidelands Permit Form or the Request for Tidelands Lease Agreement Form (also found on the website), and submit it to the City according to the instructions on the form.
4. Review our website for more information. This has been a long process, and there is a lot of misinformation out there. Find out about how the City developed the Resolutions that were approved, along with the basics of the rental charges, on the City's website at www.newportbeachca.gov/HarborRenters Thank you again for your patience with this process and these changes; we hope to make the implementation process as simple and fast as possible, and we appreciate your cooperation with the above steps.
Respectfully, Chris Milter Chris Miller Harbor Resources Manager Enclosure: 2013 Commercial Pier Exhibit 490 508 510 2/1019 Vallely - 508 Bay Front S 516 618 518 B 1 DECLARATION OF LEILANI I. BROWN 2
Respectfully, Chris Milter Chris Miller Harbor Resources Manager Enclosure: 2013 Commercial Pier Exhibit 490 508 510 2/1019 Vallely - 508 Bay Front S 516 618 518 B 1 DECLARATION OF LEILANI I. BROWN 2 I, Leilani I. Brown, declare as follows: 1.
3 4 called upon, 2.
5 6 3.
I have personal knowledge of the matters set forth in this declaration, and if could and would competently testify thereto.
I am employed by the City of Newport Beach (the "City") as the City Clerk.
I have been employed by the City since December 15, 1997, and have been the Newport 7 Beach City Clerk since November 22, 2008.
00 8 9 4.
My duties as City Clerk are set out in Section 603 of the Newport Beach City Charter.
5.
I attend all meetings of the City Council unless excused and am responsible for the 10 recording and maintaining of a full and true record of all of the proceedings of the City Council. I 11 maintain separate books, in which are recorded respectively all ordinances and resolutions, with the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certificate of the Clerk annexed to each thereof stating the same to be the original or a correct copy, and as to an ordinance requiring publication, stating that the same has been published or posted in accordance with this Charter. I keep all books properly indexed and open to public inspection when not in actual use. I maintain separate books, in which a record is made of all written contracts and official bonds.
6. The City provided proper notice of the City Council meeting wherein the City enacted Newport Beach City Council Ordinance No. 2013-27. (RJN, Exh. H.) This ordinance ordained the amendment of Newport Beach Municipal Code section 17.60.060(E). Specifically, this item was placed
enacted Newport Beach City Council Ordinance No. 2013-27. (RJN, Exh. H.) This ordinance ordained the amendment of Newport Beach Municipal Code section 17.60.060(E). Specifically, this item was placed on the agenda of the meeting of the City Council, which was posted as required by law and freely accessible to the public at least seventy-two (72) hours in advance of the meeting at which the City Council considered the item.
7. In late 2012, the Newport Beach City Council approved City Council Resolution Nos.
2012-91, 2012-92, 2012-96 and 2012-98, establishing the fair market value rental rates for commercial uses upon tidelands throughout Newport Harbor, and establishing the mechanism by which tidelands 26 27 could be used by private operators, i.e., either a permit or a lease. These items were properly placed on the agenda, and posted as required by law.
28 9 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 2 3 4 5 6 7 8. As part of my duties as City Clerk, I receive, maintain and enter into the public record all leases of tidelands in Newport Harbor. Leases are available on the City of Newport Beach website at 9. The tidelands lease between the City and Vallely Boat Rentals, dated March 12, 2015 (the "Vallely Lease"), is kept by the City and was entered into the public record on March 12, 2015.
10.
One of my duties as City Clerk is to receive any written demands directed to the Newport Beach City Council to cure or correct pursuant to Government Code section 54960.1, and/or to receive 8 cease and desist letters directed to myself or the Newport Beach secretary or CEO pursuant to 9 10 11 12 13 14 15 16 17 18 19 20 21
ect pursuant to Government Code section 54960.1, and/or to receive 8 cease and desist letters directed to myself or the Newport Beach secretary or CEO pursuant to 9 10 11 12 13 14 15 16 17 18 19 20 21 Government Code section 54960.2.
11. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented a written demand to cure and correct to the Newport Beach City Council.
12. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented a cease and desist letter to myself or the Newport Beach City Manager.
13. Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented an appeal to myself or the Harbor Resources Division concerning the adoption of any City resolution or City ordinance, including Newport Beach City Council Resolution No. 2012-97 and Newport Beach Ordinance No. 2013-27.
14. By letter addressed to me dated September 23, 2015, attorney Geralyn L. Skapik made a request to the City of Newport Beach for public records under Government Code section 6250, et seq.
(the "Public Records Request") 15.
The City of Newport Beach responded to the Public Records Request by producing the 22 requested documents on November 10, 2015.
23 24 [!!!
25 26 27 22 28 ミミミ 10 Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 2 3 4 5 6 7 16.
Among the documents produced pursuant to the Public Records Request was the lease between the City and Vallely Boat Rentals, dated March 12, 2015.
17.
Neither Susan Riddle, nor anyone representing Susan Riddle, has ever presented a claim for money or damages to the City of Newport Beach under the Government Claims Act..
I declare under penalty of perjury under the laws of the State of California that the foregoing is
presented a claim for money or damages to the City of Newport Beach under the Government Claims Act..
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 25th day of May, 2018, at Newport Beach, California.
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEILANI I. BROWN CITY OF NE CALIFORNIA BEACH Declaration in Support of City of Newport Beach's Motions for Summary Judgment and Summary Adjudication of Issues 1 2 3 4 5 6 PROOF OF SERVICE I am a resident of the County of Orange, State of California, and am over the age of eighteen years and not a party to the within action. My business address is: 474 E. 17th St., Suite 201, Costa Mesa, California 92627 7 8 10 11 12 13 14 15 On May 25, 2018, I served the DEFENDANT CITY OF NEWPORT BEACH'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS; DECLARATIONS OF HARRY S. CARMACK, JOHN VALLELY, CHRIS MILLER, AND LEILANI I.
BROWN IN SUPPORT; REQUEST FOR JUDICIAL NOTICE; PROPOSED ORDER on all parties by placing a copy thereof with UPS Ground for overnight delivery, prepaid, at Costa Mesa, CA 92627, addressed as follows, and by email addressed as follows: Geralyn L. Skapik, Esq.
CLAREMONT LAND GROUP 5861 Pine Avenue, Suite A-1 Chino Hills, CA 91709 16 [email protected] 17 18 19 20 20 21 22 23 24 24 25 26 I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct.
Executed on May 25, 2018, at Costa Mesa, California.
27 28 /Harry S. Carmack/ HARRY S. CARMACK Map Viewer Newport Beach - GIS Layers bay front, newport beach No layers match your search query.
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5, 2018, at Costa Mesa, California.
27 28 /Harry S. Carmack/ HARRY S. CARMACK Map Viewer Newport Beach - GIS Layers bay front, newport beach No layers match your search query.
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Filter +1 Residential Pier Permit Address: 710 BAY FRONT S Permit Area Total Square Footage: 1,193 Pier is not shared by more than one resident. Fee is based on total square footage.
Permit Fee Current Year: $692.00 Pier Permit Exhibit Add to Results View Additional Details 704 1/2 706 BAY FRONT S 1,193 Sq Ft 710 710 1/2 DIAMOND AVE Y OF CITY NEWPORT BEACH CALIFORNIA Notes: No increase in rates until January 1, 2025.
Six Proportionate increases over almost 6 years.
BYB (Balboa Yacht Basin) rates are based on the City adopted Marina Index of 5 marinas in Newport Harbor per the Netzer appraisal.
Rate Comparisons Designated Mooring Lengths Current Mooring Rates Mooring Rental Rate Phased-in Recommendation BYB Average Slip Rental Rate Increase Is Phased-in Through FYE 2030 Price Per Linear Foot Per Month Effective Effective LOA Feet $/LF $ per LF $/LF Jan 1, 2025 July 1, 2025 Effective July 1, 2026 Effective July 1, 2027 Effective July 1, 2028 Effective July 1, 2029 $ per LF FYE 2025 FYE 2026 FYE 2027 FYE 2028 FYE 2029 FYE 2030 18 32.23 1.67 2.27 2.88 4.08 5.29 6.50 7.71 25 32.38 3.34 3.74 4.19 5.08 5.98 6.87 7.77 January 1, 2025 and July 1, 2025 increases are about one-tenth the difference between current rates and the adjusted FMV.
30 39.60 3.34 3.91 4.53 5.78 7.02 8.26 9.50 35 42.59 3.34 3.98 4.68 6.06 7.45 8.84 10.22 40 50.09 3.34 4.16 5.04 6.78 8.53 10.28 12.02 Each fiscal year beginning July 1, the annual 45 51.27 3.34 4.19 5.09 6.90 8.70 10.50 12.30 adjustment is about one-fifth the difference between 50 60.59 3.34 4.42 5.54 7.79 10.04 12.29 14.54
28 12.02 Each fiscal year beginning July 1, the annual 45 51.27 3.34 4.19 5.09 6.90 8.70 10.50 12.30 adjustment is about one-fifth the difference between 50 60.59 3.34 4.42 5.54 7.79 10.04 12.29 14.54 current rates and the adjusted FMV.
60 70.65 3.34 4.66 6.02 8.76 11.49 14.22 16.96 Each year the increase will be adjusted based on 24% of the annual adjustment percentage per the City Marina Index for slip rentals.
Each year the rates will be adjusted based on the FYE 2030 rates equaling 24% of the current Marina Index rates. An adjustment will be applied each year to the Effective Rates for FYE 2030, and the net increase or decrease will be divided and applied equally to the prior remaining years. For example, if there was an adjustment that resulted in a $1.00 increase to the FYE 2030 rates and there remained four scheduled increases until FYE 2030, then the increase would result in $0.25 per linear foot added to the above rate 70 74.08 3.34 4.74 6.19 9.09 11.98 14.88 17.78 Designated Mooring Lengths/Feet BYB Average Slip Rental Rate Current Price Per Mooring LOA Per Month Mooring Rates Jan 1, 2025 $/Month $/Month FYE 2025 July 1, 2025 FYE 2026 July 1, 2026 FYE 2027 July 1, 2027 FYE 2028 July 1, 2028 FYE 2029 July 1, 2029 FYE 2030 18 580.14 30.06 40.93 51.79 73.52 95.25 116.98 138.72 25 809.50 83.50 93.46 104.75 127.00 149.50 171.75 194.25 30 1,188.00 100.20 117.34 135.90 173.40 210.60 247.80 285.00 35 1,490.65 116.90 139.41 163.80 212.10 260.75 309.40 357.70 40 2,003.60 133.60 166.52 201.60 271.20 341.20 411.20 480.80 45 2,307.15 150.30 188.62 229.05 310.50 391.50 472.50 553.50 50 3,029.50 167.00 220.76 277.00 389.50 502.00 614.50 727.00 schedule for each year until FYE 2030.
18' LOA Mooring is for onshore mooring rates 60 4,239.00 200.40 279.41 361.20 525.60 689.40
0 553.50 50 3,029.50 167.00 220.76 277.00 389.50 502.00 614.50 727.00 schedule for each year until FYE 2030.
18' LOA Mooring is for onshore mooring rates 60 4,239.00 200.40 279.41 361.20 525.60 689.40 853.20 1,017.60 70 5,185.83 233.80 331.72 433.30 636.30 838.60 1,041.60 1,244.60 PALMIERI HENNESSEY LEIFER, LLP July 9, 2024 Michael H. Leifer Direct Dial: (949) 851-7294 E-mail: [email protected] File No.: 41508-000 VIA E-MAIL Mr. Joe Stapleton District 1 - Mayor Pro Tem Newport Beach City Council 100 Civic Center Drive Newport Beach, California 92660 Email: [email protected] Mr. Erik Weigand District 3 Councilmember Newport Beach City Council 100 Civic Center Drive Newport Beach, California 92660 Email: [email protected] Mr. Noah Blom District 5 Councilmember Newport Beach City Council 100 Civic Center Drive Newport Beach, California 92660 Email: [email protected] Mr. Will O'Neill District 7 - Mayor, 2020 Mayor Newport Beach City Council 100 Civic Center Drive Newport Beach, California 92660 Email: [email protected] Mr. Brad Avery District 2 Councilmember Newport Beach City Council 100 Civic Center Drive Newport Beach, California Email: [email protected] Ms. Robyn Grant District 4 Councilmember Newport Beach City Council 100 Civic Center Drive Newport Beach, California 92660 Email: [email protected] Ms. Lauren Kleiman District 6 Councilmember 100 Civic Center Drive Newport Beach, California 92660 Email: [email protected] Ms. Grace K. Leung, City Manager City of Newport Beach 100 Civic Center Drive, Second Floor, Bay E Newport Beach, California 92660 Email: [email protected] Re: Objections to City's Proposed Actions Regarding Mooring Rates Dear Newport Beach City Council:
nter Drive, Second Floor, Bay E Newport Beach, California 92660 Email: [email protected] Re: Objections to City's Proposed Actions Regarding Mooring Rates Dear Newport Beach City Council: We are hereby submitting objections to the City of Newport Beach's (the "City") expressed intention to adopt the Harbor Commission's recommendation or the “alternative."
The City's recent posting of the agenda and staff report is unclear, deficient, and contradictory in material aspects. The general thrust of the City's agenda packet is that the City intends to act unlawfully toward offshore boat docking in the harbor—commonly referred to as offshore PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 2 moorings. The City's proposed acts concerning offshore moorings also reflect the City's improper conduct as to other activities relating to the harbor.
The City has a duty to comply with its legal obligations as pertains to the City's tidelands (including but not limited to the City's obligation to fulfill its fiduciary duties by, among other things, assessing tideland user fees in a fair and non-discriminatory manner). City staff and officials are furthermore obliged to comply with legal requirements imposed by statute and by common law to refrain from violating conflict of interest laws. Moreover, the City has due process and other obligations as relates to tideland users, including permittees. Aspects of the proposed City actions constitute improper takings of property. And, despite the City's assertions to the contrary, the City's proposed action(s) are not exempt from CEQA because they will directly or indirectly impact the environment.
I.
THE CITY'S ACTIONS ARE DISCRIMINATORY AND VIOLATE THE PROHIBITIONS OF THE BEACON BAY BILL
roposed action(s) are not exempt from CEQA because they will directly or indirectly impact the environment.
I.
THE CITY'S ACTIONS ARE DISCRIMINATORY AND VIOLATE THE PROHIBITIONS OF THE BEACON BAY BILL The City admits that it is bound by the provisions of the Beacon Bay Bill. The Beacon Bay Bill expressly prohibits the City from discriminating “in rates, tolls, or charges...for any use or service..." with respect to the City's management, conduct, operation and control of the tidelands. The Beacon Bay Bill states, in pertinent part: "(d) In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the City or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith. [emphasis added]."
Section 17.60.040 of the Newport Beach Municipal Code (which governs mooring permit requirements) states that the mooring fees are to be based “...on a rent schedule established by the Harbormaster, which shall be similar to the schedule used to collect rent from other tidelands users in Newport Harbor.” (NBMC § 17.60.040(h) [emphasis added].)
The City's proposed rate increase would result in not only one type, but at least three types, of discrimination concerning tidelands users: (1) price or term discrimination; (2) use discrimination; and (3) political or socioeconomic discrimination.
A. PRICE DISCRIMINATION The evidence of discrimination concerning price and/or terms is overwhelming. A boat can be docked to a mooring. It can also be docked to a pier. As conceded by the City staff PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 3 report, they are both forms of docking over tidelands.¹ Docking to a pier is a clearly superior
. As conceded by the City staff PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 3 report, they are both forms of docking over tidelands.¹ Docking to a pier is a clearly superior form of boat storage on the tidelands. Yet, the City charges much less for this vastly superior boat storage option. The average dock permittee pays approximately $12-$30/month while the average mooring permittee pays approximately $133-$138/month for a 40' mooring. Indeed, the April 9, 2024 letter recently sent by the California State Lands Commission Staff to the City ("SLC staff letter”) echoes the objections that have already been raised by existing and potential mooring permittees. The SLC staff remarked in its letter: “Staff also observes a significant disparity between the City's residential pier rates and mooring rates.” “Disparity" is tantamount to "discrimination” in this context.
Monthly Rate Dock v Mooring 5600 5500 5400 5300 $200 $100 $12 $138 $481 Dock (190 sq ft) Existing 40' Mooring Proposed 40' Mooring Rate The City has set the mooring and dock rates at different times, making different arguments, and reflecting different economic conditions. Non-discriminatory conduct and fairness dictate that tidelands uses be appraised in the same economic time periods using the same (or nearly the same) date of value. Did the City do so? No. The City has instead strategically picked and chosen the valuation of and the setting of charges for docking in different economic periods for supposed different groups of users who dock boats in the same tidelands. The City's approach has resulted in improper “disparities”—in other words, discrimination. In addition, the City now intends to cause further disparities between those who
boats in the same tidelands. The City's approach has resulted in improper “disparities”—in other words, discrimination. In addition, the City now intends to cause further disparities between those who have a permit to dock their boats offshore as compared to those who dock their boats on a pier.
1 In its staff report, the City recognizes the obvious: Docking a boat is docking, regardless of whether the boat is docked to a floating metal ball in the channel or to a pier. (See, City's RFP No. 21-53 characterizing a mooring as a type of “boat storage.") PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 4 The resulting disparate impact on certain tideland users (i.e., dock rates as compared to offshore mooring rates) is “use” discrimination. The City is playing a shell game where it is selectively picking and choosing different criteria at different time points to rig the discriminatory results.
The City's discriminatory conduct is further manifested in its treatment of individual mooring permittees as opposed to its treatment of certain favored mooring groups. While the majority of mooring permittees are individuals, there are two yacht clubs (the Balboa Yacht Club and the Newport Harbor Yacht Club) as well the Lido Island Community Association who provide moorings to their members or residents. The City discriminates concerning terms of use.
For example, unlike the individual mooring permittees, these organizations are allowed to sublease their moorings to members.² Despite the City's attempts to conceal this information from the public, a public records request recently uncovered a June 13, 2024 email in which the City's Harbor Commissioner confirmed that the Lido Island Community Association, the Balboa Yacht Club and the Newport
c, a public records request recently uncovered a June 13, 2024 email in which the City's Harbor Commissioner confirmed that the Lido Island Community Association, the Balboa Yacht Club and the Newport Harbor Yacht Club will be exempted from the anticipated rate hikes. This clear evidence of discrimination runs squarely afoul of Beacon Bay Act's prohibition against discrimination “in rates, tolls, or charges...for any use or service..." of the tidelands. As proposed, the yacht clubs and Lido Island Community Association will receive discriminatory advantageous treatment by the City.
The City's decision to discriminate in favor of dock owners and other groups via rate and terms is unlawful. The SLC staff warned the City in a recent letter that: “Charging less than fair market rates for the use and occupation of granted sovereign land may constitute an unconstitutional gift of public funds and a violation of the City's fiduciary duties...." The City uses this threat as a sword in its proposed action with moorings. It also hypocritically uses its position as tidelands manager as a shield when convenient to justify its discriminatory favoritism. The City cannot have it both ways.
B.
USE DISCRIMINATION Starting with some fundamentals, the dock “owners" are tideland users just as offshore mooring permittees are tideland users. They both dock boats by tying them over the submerged tidelands. The tidelands are owned by the State and not the City, as the City merely acts as a trustee for the public over these tidelands.
2 It is estimated that the Balboa Yacht Club obtains approximately $400,000 to half a million dollars annually, and the Newport Harbor Yacht Club generates approximately $400,0000 to $600,000 annually in profits from their moorings.
PALMIERI HENNESSEY LEIFER, LLP
ely $400,000 to half a million dollars annually, and the Newport Harbor Yacht Club generates approximately $400,0000 to $600,000 annually in profits from their moorings.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 5 A docking on a pier is a far superior form of boat storage as compared to docking offshore to a mooring in the bay. There are intrinsic benefits that are incidental to ownership and value of the adjacent above-ground fee land with a dock on a pier. Such a dock benefits the adjacent land and home and vice versa. It is also easier to dock a boat to a dock on a pier than it is to dock a boat to an offshore mooring. The dock owner merely needs to walk across his dock to enter the docked boat, as opposed to the mooring permittee who must traverse open water to access his or her boat. Additionally, a dock adjacent to a bayfront home has readily available access to restrooms, fresh water and electricity.
Not only does the City inexplicably charge much less for docks, but the mooring permittees are also subject to certain significant use restrictions that are not imposed on dock owners. A mooring consists of little more than an anchor to the submerged tidelands and a line to the mooring ball or balls. Thus, mooring permittees cannot construct piers and wooden docks in the bay. And, unlike the dock owner (who pays much less with many less restrictions and many more benefits), the mooring permittee is prohibited from leasing to a third party It should also be noted that the costs incurred by the City in administering moorings are low since the mooring permittee is required to bear the majority of those costs (e.g., buoys and related equipment). This disparity is exacerbated when comparing the superiority of dock
g moorings are low since the mooring permittee is required to bear the majority of those costs (e.g., buoys and related equipment). This disparity is exacerbated when comparing the superiority of dock tidelands usage in comparison to tidelands usage involving docking to moorings.
far less: Notwithstanding the vast benefits enjoyed by dock tidelands usage, dock permittees pay Boat Storage Dock Permit Mooring Permit ELECTRA CUTE $11/mo $480/mo PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 6 A mooring user who docks to a metal ball in the harbor is using and getting much less but will pay astronomically more. The City has apparently concluded that a vastly inferior type of boat storage (i.e., a mooring), should command more money than a vastly superior form of boat storage (i.e., a dock).
66 ...
The City's indefensible position begins from the City's instruction to its real estate appraiser that submerged, undevelopable tidelands should be (in fact must be) compared to and predicated upon the value of bayfront residential land in Newport Beach. The City's appraiser utilized this approach.³ Establishing mooring rates based on the value of Newport bayfront real estate is untenable for many reasons. A mooring permit, as configured by the City, is not a property right. The SLC staff agrees that such an approach is incorrect. The SLC has explicitly warned the City that: staff disagrees that residential land values should be used as a basis for valuing the offshore moorings, because the moorings' use is not connected with the residential use." (4/9/24 letter from SLC to City.). Yet, obviously docks situated in front of bayfront homes are frequently physically connected to the residential use. The City cannot
ected with the residential use." (4/9/24 letter from SLC to City.). Yet, obviously docks situated in front of bayfront homes are frequently physically connected to the residential use. The City cannot assess the "fair market value” of the offshore moorings based on the value of such real property especially when the offshore mooring is unconnected with the residential use. The City sanctions a valuation predicate which is prohibited and discriminatory. Value cannot be based on a use which the mooring permittees cannot make. California law prohibits such a valuation.
(See, e.g., Wu v. Interstate Consolidated Industries (1991) 226 Cal. App. 3d 1511; Humphries Investments, Inc. v. Walsh (1988) 202 Cal.App.3d 766.)
The City has not, and cannot, justify its inequitable disparity in boat storage treatment, fees or fee increases.
C.
POLITICAL AND SOCIOECONOMIC DISCRIMINATION The City appears to concede that the majority of the mooring permits are currently held by individuals who lack voting rights in Newport Beach. It is our understanding that only approximately 42% of the mooring permits are held by residents of the City who are afforded voting rights (and of that population, the number must be divided by the seven districts). The City Council has succinctly, and accurately, remarked, “the mooring people do not vote."
The pie chart below illustrates the discrepancy between mooring permit holders based on the city of residency.
3 The appraiser also made clear that his appraisal cannot be used and is invalid without considering this approach.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 7 58% Mooring Permit Holder City of Residence District 1 District 2 Current Representatives Joe Stapleton (Population 12,003) Brad Avery (Population 12,253)
LLP Newport Beach City Council Members Page 7 58% Mooring Permit Holder City of Residence District 1 District 2 Current Representatives Joe Stapleton (Population 12,003) Brad Avery (Population 12,253) City Council Districts District 3 Erik Weigand City of Newport Beach (Population 12,467) Effective April 21, 2022 Adopted by Ordinance No. 2022-7 District 4 Robyn Grant 42% District 5 2 District 6 (Population 11,910) Noah Blom (Population 12,358 Lauren Kleiman (Population 11,989 OTHER CITY NEWPORT BEACH Newport Beach residents are in the upper echelon of wealth and income levels, and only a select few members of the public are able to afford the prices commanded by the Newport Beach real estate market. Many of the mooring permittees are not Newport Beach residents.
The large majority of dock owners live or appear to live, vote or could arrange to vote, in the City of Newport Beach.
Historically, moorings offer a more affordable option for members of the public living outside of the City limits who wish to enjoy recreational boating and access to the coast. The City is maintaining and creating barriers to the public's ability to access and utilize the Stateowned tidelands. The City cannot discriminate against nonresidents. It cannot discriminate against perceived non-Newport Beach socioeconomic echelons.
Allowing this type of politically or socioeconomic based discrimination is not only inequitable but also runs afoul of the Beacon Bay Bill, the tenets of the California Coastal Commission Act and other applicable laws (See, e.g., Coastal Act § 30001, stating “The Legislature hereby finds and declares...the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people....” [emphasis added]; see also,
g “The Legislature hereby finds and declares...the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people....” [emphasis added]; see also, City's General Plan R 8.6, R 9, R 9.1, et seq. confirming that the City is required to ensure that coastal access is accessible to the public regardless of socioeconomic status; Illinois Central PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 8 Railroad v. Illinois (1892) 146 U.S. 387, 452-453 [municipalities hold tidelands and submerged lands in trust for the benefit of the public at large].)+ II.
THE CITY'S APPRAISAL IS UNRELIABLE.
An appraisal analysis which concludes that a rate for an inferior mooring should be greater than the fee charged for a dock is, to put it charitably, flawed and unreliable. In fact, it is absurd. Yet, this is precisely the scenario posed by the City's appraiser. The nonsensical conclusion reached by Mr. James Netzer should have caused the City to immediately recognize that the analysis was seriously flawed.
There are a myriad of other problems with Mr. Netzer's 2023 mooring appraisal. The defects in the City-directed report, include, but are not limited to, the following: Use of Inappropriate Comparables: Using sales of bayfront residential property as "comparables" for undevelopable submerged tidelands is ludicrous. This approach irreparably taints the entire appraisal analysis. At the very minimum, it shows that the City and the appraiser are biased.
Impact of Incorporating Non-Comparables in Appraisal: Mr. Netzer's appraisal report concedes that his valuation conclusions are predicated the valuation methodologies which he chose to employ. (See, 2023 Appraisal Report, stating:
mparables in Appraisal: Mr. Netzer's appraisal report concedes that his valuation conclusions are predicated the valuation methodologies which he chose to employ. (See, 2023 Appraisal Report, stating: "The reconciliation process involves a thorough review of the valuation process and supporting data used in each of the valuation approaches." [emphasis added].)
All three of Mr. Netzer's appraisal approaches are tainted by his use of noncomparable real property and renders the entire appraisal report unreliable.
Inconsistent City Conduct as to Valuation Approaches: In 2015, the City rejected the ratio analysis as a valid means of determining dock rates. Yet, the City has now reversed course and contends that the same ratio analysis should apply to moorings. The City cannot have it both ways – it cannot cherry-pick which methodologies it wants to apply in order to predetermine the discriminatory end result. This is particularly true where, as here, the City has already conceded that docking to a mooring and docking to a dock both constitute docking over the tidelands. Both to be treated as methods of boat storage.
4 It should furthermore be noted that Harbors and Navigation Code § 40 requires that, “Facilities in harbors and connecting waterways established under the provisions of this division shall be open to all on equal and reasonable terms.” (Emphasis added.) The City has imposed unequal and unreasonable terms.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 9 • Use of Inapplicable Rate of Return: Mr. Netzer's appraisal report utilizes a rate of return which is applicable to income generating investments in commercial real estate improved properties, but which is inapplicable to tidelands usage.
r. Netzer's appraisal report utilizes a rate of return which is applicable to income generating investments in commercial real estate improved properties, but which is inapplicable to tidelands usage.
(See, 2023 Netzer Appraisal, p. 26.) There is also evidence that the City's appraiser was directed to undertake such approach by City staff and/or Harbor Commission personnel.
Failure to Take Into Account Mooring Permittees' Capital Investment: The appraisal fails to take into account the capital investment (estimated at $40,000 to $60,000) made by a mooring permittee. Nor does the appraisal address biannual mooring maintenance fees. The City and its appraiser fail to take into consideration the mooring permittees' investment in their boat which they presumably have nowhere else to store. A boat owner who has no real storage options becomes a boat seller a seller in distress.
Failure to Consider Termination Provision (Among Other Terms): The City and its appraiser ignore the City's termination rights. The mooring permit allows the City to terminate the mooring permittee's rights if the mooring is subleased without the written permission of the Harbormaster. (NBMC § 17.25.020(L); Mooring Permit, page 2, § 6.) In fact, the appraiser wrongfully considered illegal subleasing as a basis for his conclusion.
Disregard of Historical Tideland User Rates: The appraisal conveniently ignores relevant past history as pertains to tideland user rates set by the City pursuant to its asserted obligations to do so. More specifically and stunningly, the City in 2015 set fair market rent and terms for docks. The dock is the superior, vastly superior, type of boat storage. It is the top of the market for tideland users. Here,
ically and stunningly, the City in 2015 set fair market rent and terms for docks. The dock is the superior, vastly superior, type of boat storage. It is the top of the market for tideland users. Here, the City directed its appraiser to turn the market upside down. The City is not excused from ignoring that absurd result.
III. THE CITY'S APPRAISAL PROCESS HAS BEEN TAINTED BY THE CITY'S AND ITS APPRAISER'S IRREPARABLE CONFLICTS OF INTEREST A.
THE POLITICAL REFORM ACT AND THE NEWPORT HARBOR COMMISSION'S RULES OF PROCEDURE PROHIBIT INDIVIDUALS WITH A CONFLICT OF INTEREST FROM PARTICIPATING IN THE PROCESS.
The Political Reform Act ("PRA”) prohibits City commissioners, employees, and consultants from influencing or participating in City decisions in which they have a material financial interest. (Gov. Code, §§ 82041, 82048, 87100; 2 Cal. Code Regs., tit. 2, § 18700.)
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 10 This includes but is not limited to any decision affecting business interests or real property worth at least $2,000. (Gov. Code, § 87103.) The PRA further prohibits City commissioners, employees, and consultants from influencing or participating in City decisions materially affecting any business entity in which the disqualified individual is an officer, director, partner, trustee, manager, or employee. (Gov. Code, §§ 82033, 82035, 87103.) A decision made in violation of these prohibitions can be enjoined from taking effect. (Gov. Code, § 91003.)
Additionally, Section VIII.C. of the Newport Harbor Commission's Rules of Procedure expressly requires "[a]ny Commissioner who is disqualified from voting on a particular matter by reason of a conflict of interest shall publicly state or have the Chair state this determination
cedure expressly requires "[a]ny Commissioner who is disqualified from voting on a particular matter by reason of a conflict of interest shall publicly state or have the Chair state this determination and the nature of such disqualification in open meeting.” Section VIII.C. further provides that "[a] Commissioner who is disqualified by reason of a conflict of interest in any matter shall not remain in the council chambers during the debate and vote on such matter and shall request permission of the Chair to depart until the item is closed."
B.
THE CITY'S APPRAISER HAS HAD A MATERIAL CONFLICT OF INTEREST.
The City's valuation process has been tainted with numerous conflicts of interest. The City's selected appraiser is an officer and board member of the Newport Aquatic Center ("NAC"), which has a substantial financial interest at stake—its existence is dependent upon use of the tidelands. The NAC maintains a sizeable dock and fleet of small watercraft in Newport Harbor. The NAC was also expressly listed as a location for review comparison in the City's RFP for the mooring appraisal. The NAC also leases the land for its facility from the City.
Records show that the City's appraiser was directly involved on behalf of the NAC in lease negotiations with the City while he was simultaneously performing the City's mooring appraisal. In a June 26, 2023 email, Chris Blank (NAC President and brother of Harbormaster Paul Blank), informed the City that the City's appraiser would be attending a meeting on behalf of the NAC to discuss the NAC's ground lease with the City. The City went on to grant the NAC a generous, no-fee 30-year lease extension (with two additional 10-year extension options) less than three months before NAC's representative/City Appraiser provided the appraisal as
to grant the NAC a generous, no-fee 30-year lease extension (with two additional 10-year extension options) less than three months before NAC's representative/City Appraiser provided the appraisal as directed by the City.
Yet, the City's appraiser purported to certify in his appraisal that “I have no present or prospective interest in the property that is the subject of this report and have no personal interest or bias with respect to the parties involved” and that “I have no bias with respect to the property that is the subject of this report or to the parties involved in the assignment.” That was not the case. Any one of the conflicts above disqualified the City's appraiser.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 11 C. THE CITY ALLOWED HARBORMASTER PAUL BLANK TO PARITICPATE IN THE RATE VALUATION PROCESS DESPITE HIS ADMITTED CONFLICT OF INTEREST.
Harbormaster Paul Blank was conflicted the moment the City hired him in May 2021.
During a Harbor Commission meeting in 2022, Mr. Blank represented that he is a mooring permittee who "does not participate in discussions or the development of recommendations related to use or financial arrangements associated with offshore moorings.” Mr. Blank further represented that this was disclosed and discussed with the City Attorney before he was hired: STORT BE CITY OF NEWPORT BEACH Harbor Commission Staff Report TO: HARBOR COMMISSION FROM: Paul Blank, Harbormaster pblank@newportbeachca gov (949) 270-8158 TITLE: Harbormaster Update - April 2022 Activities May 11, 2022 Agenda Item No. 65 Harbormaster Update - April 2022 Activities May 11, 2022 Page 5 Initiatives were launched resulting in better data capture and statistics reporting.
ril 2022 Activities May 11, 2022 Agenda Item No. 65 Harbormaster Update - April 2022 Activities May 11, 2022 Page 5 Initiatives were launched resulting in better data capture and statistics reporting.
Future improvements will include customer satisfaction survey data analysis and calls for service location analysis Participated in the Emergency Operations Response to the following: ° Elly oil spill ° о о Tsunami warning Three severe weather occurrences Sewage spill into the harbor ° Out of control stolen boat in the harbor The Harbormaster has disclosed the arrangements made, at his own expense to alleviate any conflict of interest associated with his ongoing use of an offshore mooring permit.
While undergoing the recruitment process, any and all known possible conflicts of interest were disclosed. Prior to the City making an offer of employment, all such possible conflicts were discussed with the City Attorney. Agreements and arrangements satisfactory to all relevant parties were made during that discussion. The Harbormaster was entrusted and empowered to make determinations going forward related to any conflict disclosures. In support of this arrangement, the Harbormaster: does not participate in discussions or the development of recommendations related to use or financial arrangements associated with offshore moorings reminds anyone with an interest that input on recommendations related to offshore mooring permits are made by Real Property Administration staff does not deliberate or vote on any policy related matters before the Harbor Commission is expected to answer questions related to policy implementation and impacts on Harbor Department operations hereby discloses that the offshore mooring permit he enjoys is held in an irrevocable
ssion is expected to answer questions related to policy implementation and impacts on Harbor Department operations hereby discloses that the offshore mooring permit he enjoys is held in an irrevocable trust the beneficiary of which is the Balboa Yacht Club. The Balboa Yacht Club holds all the offshore mooring permits adjacent to the subject mooring hoping to avoid other conflict of interest concerns also hereby discloses any significant financial interests related to the Balboa Yacht Club including a membership certificate are held in the same irrevocable trust further discloses that all remaining financial interests in either the subject offshore mooring permit or membership in the Balboa Yacht Club are de minimis PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 12 First, “agreements and arrangements satisfactory to all relevant parties during that discussion" concerning the City's hiring of the Harbormaster, does not in any way satisfy the public interest in avoiding the appearance of impropriety and conflict. Moreover, despite these representations, the City and the Harbormaster improperly involved the Harbormaster in the mooring valuation process for over two years. As proposed by the valuation process, the City intended to increase revenues enormously for itself. Public records show that Mr. Blank submitted numerous staff reports to the Harbor Commission on mooring rental rates between 2022 and 2024. This includes reports in January, February, and March 2022—while Mr. Blank was serving as Centennial Commodore of the dock owner and mooring field operator Balboa Yacht Club.
Email correspondence also shows Mr. Blank was directly involved in influencing the
2—while Mr. Blank was serving as Centennial Commodore of the dock owner and mooring field operator Balboa Yacht Club.
Email correspondence also shows Mr. Blank was directly involved in influencing the City appraiser's analysis of mooring rates. In one 2023 email, Mr. Blank instructed Mr. Netzer to "[p]lease just apply the 30' rate you determine to that mooring but definitely add an entry in the report that includes the 25' category." Although Mr. Blank belatedly claimed to have recused himself in March 2024, he and the City allowed his admittedly improper participation for two-plus years. Such participation irreparably tainted the process.
D.
THE CITY FURTHER ALLOWED OTHER INDIVIDUALS WITH MATERIAL CONFLICTS OF INTEREST TO ENGAGE IN THE PROCESS.
The conflicts do not stop there. Harbor Commissioner Rudy Svrcek owns a dock and boat in Newport Harbor. The Deputy City Attorney previously advised Mr. Svrcek to recuse himself from discussions and from voting on mooring realignment due to his dock permit being within 500-1000 feet of a mooring field. Harbor Commissioner Scott Cunningham owns a bayfront home and boat in Beacon Bay, which maintains a community dock—a tidelands user.
Yet, Commissioners Svrcek and Cunningham failed to recuse themselves from participating in the City's mooring valuation and rental review process. Moreover, Commissioner Cunningham acknowledged in a July 2020 email that he already had "two long conversations" with Mr. Netzer about his appraisal and that the “net net when we are ready" “and funded” is the “appraisal results will look much different than the 2016 numbers.” How did Commissioner Cunningham know what the “net net” would be when the City's appraiser had yet
we are ready" “and funded” is the “appraisal results will look much different than the 2016 numbers.” How did Commissioner Cunningham know what the “net net” would be when the City's appraiser had yet to perform the appraisal? Why was Commissioner Cunningham talking to the appraiser about appraisal results in July 2020 when the appraisal RFP did not even go out until 2021?
It is incumbent on the City to comply with its own rules, the PRA and the Harbor Commission's Rules of Procedure. The City failed to do so.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 13 IV. THE CITY'S CONDUCT CONTRAVENES FEDERAL ANTITRUST LAWS The United States Supreme Court has repeatedly confirmed that a city is not immune from antitrust laws. (See, City of Lafayette v. Louisiana Power & Light Co. (1978) 435 U.S. 389 [rejecting the City of Lafayette's argument that antitrust laws protect only against conduct by private businesses and do not apply to municipalities].) The well-established antitrust rules prohibiting illegal conduct such as collusive price-fixing, bid rigging and the like therefore apply to the City here. (United States v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150, 223 [stating, “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity ... is illegal per se ...."].
Following the Socony case, courts have broadly defined price fixing as an instance where the defendants have in any way agreed on a course of conduct affecting prices (See, e.g., Arizona v.
Maricopa County Medical Society (1982) 457 U.S. 332; Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 658-659.)
There is reason to believe that the City (through its staff and consultants) and certain
Maricopa County Medical Society (1982) 457 U.S. 332; Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 658-659.)
There is reason to believe that the City (through its staff and consultants) and certain entities in San Diego may have been working in concert with one another in connection with mooring rates. Mr. Netzer's appraisal cites to a tentative proposal for mooring rate increases by the San Diego Unified Port District pursuant to which the San Diego Port District apparently provisionally agreed to a mooring ratio of 50% of slip fees. Mr. Netzer uses this provisional San Diego data to support his “mooring to slip” methodology and appraisal conclusion.
It is believed that at the time that Mr. Netzer referenced and disclosed the terms of the tentative mooring rate hikes being contemplated in San Diego, those terms were a part of certain confidential negotiations which were not made public. This, of course, begs the question of how such confidential information was available to the City's appraiser in advance of the information being made available to the public. Additionally, there is the concern that negotiations about rates, rather than agreements upon rates, influenced a rate determination by an appraiser for the City.
We also note that Mr. Netzer's appraisal claims that the SLC approved the rates being proposed in San Diego. This is untrue, as corroborated by the SLC. The SLC remarked in its April 9, 2024 letter to the City: 5 In addition to potential price-fixing concerns, federal antitrust laws are further triggered by the City's monopoly over the tideland user fees and its unfair business practices with respect to the mooring permittees.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 14
d by the City's monopoly over the tideland user fees and its unfair business practices with respect to the mooring permittees.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 14 Second, the appraisal references proposed mooring rate increases by the San Diego Unified Port District, another trustee of sovereign land, and states that they were approved by the State Lands Commission. Just like in Newport Bay, the State Lands Commission does not have review or approval authority over the San Diego Unified Port District's mooring rates and therefore did not approve the Port's mooring rate increases.
Please advise whether Mr. Netzer and/or his company have been involved with appraisal of mooring rates in San Diego, including but not limited to the rates being considered or actually charged by the San Diego Port District. If he had no such involvement, the City should readily agree to confirming the same in writing.
V.
THE CITY'S LAST-MINUTE PROPOSED "ALTERNATIVE” SCHEME IS PLAGUED BY FUNDAMENTAL DEFECTS.
A. THE "ALTERNATIVE” SCHEME IS YET ANOTHER EXAMPLE OF THE CITY'S GAME-PLAYING AND LACK OF TRANSPARENCY.
The above issues, along with the myriad defects plaguing the City's conduct and 2023 appraisal report authored by Mr. James Netzer, have been presented to the City on a number of occasions. To date, the City has been unable to provide legitimate or logical answers to these issues. Public record requests have been met with claims that certain documents are either not publicly available or do not exist.
It is difficult, if not impossible, to accurately track down the City's ever-changing positions prior to its decision to act. For example: In 2015, the City rejected the very same
ble or do not exist.
It is difficult, if not impossible, to accurately track down the City's ever-changing positions prior to its decision to act. For example: In 2015, the City rejected the very same appraiser's ratio valuation analysis. Yet, in 2023, the City embraced the ratio valuation analysis that it had already rejected. California law makes clear that, "California public policy will not permit a litigant 'to blow hot and cold' by taking the benefits of a doctrine when it suits his purpose and then repudiating the same facts when it is no longer profitable or to his advantage to do so." (Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 525.)
Now, rather than addressing the relevant issues head-on, the City intends to sweep the objections raised by the mooring permittees under the rug by proposing, at the eleventh hour, an "alternative" scenario for mooring permittees. This proposed "alternative" utilizes the 2023 appraisal as a threat (without ever responding to the questions and objections asserted by the mooring permittees). Perhaps not surprisingly, the City's newest "alternative" scheme was conveniently posted during the July 4th holiday period in an effort to reduce public participation and opposition of the mooring permittees, potential mooring permittees and members of the public. The City apparently deliberated concerning this “alternative” plan during closed session meetings but chose to conceal its existence until just days before the upcoming public meeting.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 15 Thus, rather than abiding by a linear and well-considered process which would ensure that the mooring permittees are treated in a transparent and non-discriminatory manner, the City
il Members Page 15 Thus, rather than abiding by a linear and well-considered process which would ensure that the mooring permittees are treated in a transparent and non-discriminatory manner, the City has instead jumped all over the place, careening from one position to another without any logic or accountability. Not only that, but the City has apparently transacted secretive deals with private yacht clubs which were not offered to the individual mooring permit holders. The City's conduct in this regard calls to mind a game of "whack-a-mole" as opposed to the fair and equitable process that the Beacon Bay Act guarantees.
Stated another way, the City is a moving target. The City's treatment of the mooring permittees throughout this entire process has been not only unfair but is also irreconcilable with the fiduciary duties owed by the City to the mooring permittees.
B.
THE STAFF REPORT IS REPLETE WITH VAGUE AND INCONSISTENT STATEMENTS REGARDING THE PROPOSED "ALTERNATIVE” PLAN; MOREOVER, THE STAFF REPORT FAILS TO PROVIDE THE MOORING PERMITTEES WITH ADEQUATE INFORMATION ABOUT NEWLY PROPOSED SCHEME.
The July 9, 2024 Staff Report (the "Staff Report") raises even more issues about the City's treatment of the mooring permittees. It contains only skeletal and vague information and fails to provide the mooring permittees with sufficient time or information to fully evaluate the City's newest positions. In addition, the Staff Report is replete with problems in and of itself.
These include, but are not limited to, the following: Lack of Analysis: The Staff Report does not identify what analysis, if any, was undertaken by the City in connection with its shift to the alternative proposal. The mooring permittees have submitted a public records request to obtain all documents
ntify what analysis, if any, was undertaken by the City in connection with its shift to the alternative proposal. The mooring permittees have submitted a public records request to obtain all documents involved in or relied upon by the City in the creation of the alternative plan since the City has not provided any of that information to them.
Lack of Information Provided to Mooring Permittees: As referenced above, the City's last-minute pivot to the proposed alternative plan is troubling for many reasons - not the least of which is that the Staff Report provides only negligible and vague information as to how the City proposes to implement the alternative plan. The Staff Report includes sweeping generalizations without identifying specifics. How are the mooring permittees supposed to provide a reasoned response to a vaguely described alternative proposal which was sprung on them at the last minute over a holiday weekend? The City's tactics are unfair, especially since the City, according to itself, is the sole arbiter of what information it chooses to release to the mooring permittees and when, if ever, it chooses to release that information.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 16 Retaliatory Motive: Given the timing of the City's alternative plan, it would appear that the alternative plan was not motivated any genuine desire to address the objections raised by the mooring permittees but was instead drafted in an effort to retaliate against the mooring permittees. The alternative plan is draconian and punitive toward mooring permittees (e.g., If you do not agree with the rent rate increase, then the City will take your moorings and charge you even more rent in doing so).
ative plan is draconian and punitive toward mooring permittees (e.g., If you do not agree with the rent rate increase, then the City will take your moorings and charge you even more rent in doing so).
City's Admission That Docks and Moorings Are Both Types of Boat Storage: The Staff Report acknowledges that, “... staff interprets that charging different rates for the same type of use that does not have a different value (e.g., a resident versus non-resident rate for the same mooring), would be a discrimination in rates and is prohibited by SLC.”
(Staff Report, p. 2.) The Staff Report further concedes that offshore moorings are a type of boat docking. (See, Staff Report, p. 1, ¶ 1 [“The City of Newport Beach manages the tidelands in Newport Harbor, which includes parts of the harbor used for docking boats (called mooring fields)...." (emphasis added)].) This underscores the key point that dock owners and mooring permittees are similarly situated in that they are both docking boats over the tidelands. There is no legitimate justification for the vastly superior docking situation to be charged far less and while having far greater rights.
Private Yacht Clubs and Exclusive Community Given Favorable Treatment: The alternative plan calls for private yacht clubs and an exclusive community to receive discriminatory favorable treatment. The purpose of the Beacon Bay Bill and other Coastal Commission legislation is to ensure the ability of the public to use the tidelands.
(See, e.g., Coastal Act § 30001 [“The Legislature hereby finds and declares…the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people…] [emphasis added].) The City turns the Beacon Bay Bill
reby finds and declares…the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people…] [emphasis added].) The City turns the Beacon Bay Bill upside down by favoring yacht clubs and exclusive neighborhoods over the public.
Creation of More Classes Results in Additional Discrimination: From the vague information provided to date, it appears that the “alternative” scheme creates even more City-created "classes” of tideland boat dockers (e.g., dock owners, onshore moorings, offshore moorings, private yacht club mooring holders, new mooring permittees, city licensed mooring holders, etc.). The City simply creates new labels when it wants to discriminate. Doing so, however, does not alleviate or excuse the inherent discrimination.
Historical Treatment of Other Tidelands Users: It is our understanding that, to date, the City has never required any other tidelands boat dockers to involuntarily forfeit their user rights in the manner that is being proposed under the alternative plan. Thus, this is yet another example of the City treating similarly situated tidelands boat dockers in a discriminatory manner.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 17 Continued Omission of Any Response to the Mooring Permittees' Previously Raised Objections: The Staff Report fails to even attempt to respond to the objections previously raised by the existing and/or potential future mooring permittees. The City once again continues to ignore the valid points raised by these individuals.
Gift of Public Funds: Furthermore, the Staff Report again evades any discussion about its determination of dock fees vis-à-vis mooring permit fees. The City claims that it must
d by these individuals.
Gift of Public Funds: Furthermore, the Staff Report again evades any discussion about its determination of dock fees vis-à-vis mooring permit fees. The City claims that it must increase the mooring permittees' rates by an exorbitant amount because it would otherwise be considered an unconstitutional gift of public funds. Why is the City unconcerned about charging dock owners reduced rates with greater rights over the tidelands? Applying the City's logic, wouldn't the situation with the dock owners' superior and broader use of the granted sovereign land for much less money over a much longer period constitute a past and ongoing gift of public funds in violation of the City's fiduciary duties as a trustee of State-owned land? If the treatment of the dock owners was not and is not a gift of public funds or gift of public land, then it cannot be disputed that charging the mooring users less than the dock owners is likewise not a gift of public land or funds.
C.
THE "ALTERNATIVE” PLAN VIOLATES THE MOORING PERMITTEES' CONSTITUTIONAL RIGHTS.
Under the City's alternative plan, the mooring permits would automatically convert to a City-owned moorings which would be subject to the short-term license provisions of the Newport Beach Municipal Code. The City would concurrently assume ownership of the mooring equipment that is currently owned by the mooring permittees, such as the mooring chains, mooring balls and weights.
The City's plan institutes a taking. More specifically, it is an uncompensated taking not in compliance with the Eminent Domain law or the United States and California Constitutions.
Nothing in the alternative plan calls for the City to pay just compensation to the mooring
sated taking not in compliance with the Eminent Domain law or the United States and California Constitutions.
Nothing in the alternative plan calls for the City to pay just compensation to the mooring permittees even though the City will acquire ownership of the mooring equipment (which is currently owned and maintained by the mooring permittees) upon conversion of the permit into a license. To the contrary, the City intends to increase the mooring rates despite the taking of the mooring permittees' personal property. This scenario therefore presents a textbook case of an unconstitutional taking pursuant to the Fifth and Fourteenth Amendments' due process clauses as 6 The conversion would take place upon the occurrence of certain conditions; however, all mooring permits owned by individuals will transform into a City license in no more than eight years regardless of what might transpire. The private yacht clubs are to be treated under a different set of rules.
PALMIERI HENNESSEY LEIFER, LLP Newport Beach City Council Members Page 18 well as the Fifth Amendment's taking clause ["nor shall private property be taken for public use without just compensation"].)
D.
THE CITY'SPROJECT TRIGGERS CEQA ANALYSIS The City's proposed project is not exempt from CEQA. The City's plans to make changes to the harbor, (including “re-aligning” mooring fields in the harbor), the precipitous rate increases and other threatened "alternative" schemes will trigger mooring permittees to respond by, among other things, removing their chains, mooring balls, weights and other associated hardware. The removal of mooring equipment by permittees and reinstallation of the mooring equipment by the City or others constitutes a project which would necessarily impact the sea bed
r associated hardware. The removal of mooring equipment by permittees and reinstallation of the mooring equipment by the City or others constitutes a project which would necessarily impact the sea bed and potentially stir up harmful toxins. CEQA review is therefore necessary.
VI.
CONCLUSION Please be advised that this letter contains a summary of the arguments and objections to the proposed mooring rate increase/alternative scheme and does not constitute an exhaustive list of arguments and objections. The existing and potential mooring permittees therefore reserve all rights to revise and/or supplement their arguments and objections as appropriate. Moreover, the existing and potential mooring permittees hereby incorporate by reference the following: (a) all public records produced by the City; (b) all documents sought by the mooring permittees pursuant to a public records request but not produced by the City; (c) all documents which relate or refer to disputes involving the City concerning boat storage from 2010 to the present; (d) all documents which relate or refer to the City's tideland usage; and (e) all objections, comments, arguments and positions asserted by others concerning rates for tideland usage.
We trust that you will seriously consider these objections to the proposed treatment of the mooring permittees in relation to dock permittees and others boat dockers in the harbor that receive (or stand to receive) much more favorable treatment by the City. It is genuinely hoped that the City will comply with its obligations imposed by the Beacon Bay Act as well as the legal obligations imposed by state and federal law.
Very truly yours, Michael H. Leifer MHL:tb Newport Bay Management - Response to Comments Exhibit D Master Responses
he Beacon Bay Act as well as the legal obligations imposed by state and federal law.
Very truly yours, Michael H. Leifer MHL:tb Newport Bay Management - Response to Comments Exhibit D Master Responses ● Master Response 1 (Residential Pier and Mooring Rates and Methodologies) Many public comments stated that the discrepancy between rates for mooring permits and residential pier permits is unfair. Staff agrees that the mooring permit and residential pier permit rates have been inequitably managed by the City. While the City has reappraised its mooring permit rates, its rent for residential pier permits appear significantly below fair market rent, both because the rates have not been reappraised and because the City does not include an impact area – the area expected to be occupied by docked boats - for its rent calculations. Therefore, in the Report, staff recommends that the City comprehensively review its residential pier permit program, immediately reappraise its residential pier permit rates, review its omission of impact area, and set a regular schedule to reappraise both the residential pier permits and the mooring permits moving forward.
Many public comments stated that the mooring permits and piers should be charged the same rates, and that not charging the same rates violated the rate discrimination prohibition in the City's grant. Staff does not agree that the City's charging different rates for residential pier permits and mooring permits is rate discrimination as used in the granting statute. Section 1, subdivision (d) of the granting statute states, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or
s, “In the management, conduct, operation, and control of the lands or any improvements, betterments, or structures thereon, the city or its successors shall make no discrimination in rates, tolls, or charges for any use or service in connection therewith." Staff interprets this provision as prohibiting different rates for different users of the same use; for example, charging a different rate between residents and non-residents for the same use (e.g. use of a mooring buoy).
Staff does not agree that residential piers and mooring permits are the same use.
Residential piers and moorings involve different infrastructures. If any use of tidelands or submerged lands for boat docking must, as a matter of law, be charged at identical rates, that would also impact rates charged for commercial and industrial uses, like commercial marinas. But permits or leases for these uses are often charged rent through different methodologies, such as through a percentage of income. Additionally, the Commission often charges different rates for piers and mooring buoys, such as in Lake Tahoe. That's not to say the rates cannot be the same, or similar - it could be that appraisals for each use reach the same concluded value, and in that case the City could charge identical rates. But staff does not conclude that the "rates, tolls, and charges" must be the same, as a matter of law, for residential piers and mooring permits in Newport Bay.
Newport Bay Management – Response to Comments • Master Response 2 (Appraisals) Many comments included criticism of the City's Netzer Appraisal, which staff reviewed in early 2024, and urged staff to “reject” the appraisal and endorse the appraisal prepared by CBRE for the Newport Mooring Association (NMA) instead.
the City's Netzer Appraisal, which staff reviewed in early 2024, and urged staff to “reject” the appraisal and endorse the appraisal prepared by CBRE for the Newport Mooring Association (NMA) instead.
The Commission does not set the rates on granted lands and only reviews them to see if the rates are consistent with the grant. Additionally, the grant does not mandate a particular appraisal approach for setting rates.
Staff reviewed the City's appraisal and determined that relying on it does not violate the grant. By this, staff means that the methodologies and analyses within the appraisal are reasonable and do not violate established appraisal practices. This is not to say that other appraisals with different conclusions could not be reasonable. Each appraisal is based on an appraiser's personal experience and expert opinion, and thus different appraisals often arrive at different conclusions. Even if staff determined that a different appraisal (e.g. the CBRE appraisal contracted by the NMA) is also reasonable, that does not mean that the City is compelled to use it. Further, the Commission could not require that the City do what the Commission would have done, it can only require that the City act consistently with its grant.
Therefore, staff does not include additional comments on the Netzer appraisal or CBRE appraisal in the Report.
• Master Response 3 (Grand Jury Report and the City's 2017 Revisions) Some comments stated that the Report should not rely on the 2006-2007 Grand Jury Report, both because the Grand Jury Report was flawed and because its concerns were addressed by the City in 2017 after collaboration with the NMA.
Staff refer to the 2006-07 Grand Jury Report because it provides a useful summary of issues
ort was flawed and because its concerns were addressed by the City in 2017 after collaboration with the NMA.
Staff refer to the 2006-07 Grand Jury Report because it provides a useful summary of issues involved in the private mooring transfers, and because it provides evidence that the City was on notice of potential legal issues with the transfer program. Staff does not rely on the Grand Jury Report's conclusions to make their own conclusions and recommendations.
Additionally, whether the City did, or did not, attempt to address the Grand Jury Report's concerns does not affect staff's analysis of the current mooring transfer program.
Regarding the collaboration between the City and the NMA, the Introduction to the Report explains that “this report is focused on a review of the City's actions and staff reports, and does not go into detail regarding the public participation process connected to the City's actions, such as Harbor Commission outreach meetings or public comments [...] this Newport Bay Management - Response to Comments report focuses on whether the City is exercising its discretion within the limits created by the California Constitution, the Public Trust Doctrine, and the City's grant statutes."
The Report notes that in 2010, and in response to the Grand Jury Report, the City voted to phase out mooring permit transfers by 2020. Staff are aware that in 2017 the City adopted revisions to the mooring permit program after collaboration with the NMA and other mooring holders and discusses the 2017 modifications beginning at page 23. These revisions included removing the transfer restrictions that would have gone into effect in 2020.
Staff concluded that the allowance of private transfers still appears to violate the City's
ge 23. These revisions included removing the transfer restrictions that would have gone into effect in 2020.
Staff concluded that the allowance of private transfers still appears to violate the City's grant statute and other legal duties. Staff also concluded that the City did not adequately explain how the changes are consistent with the City's obligations under its grant. Staff do not agree that the changes address the concerns about the private transfer program.
Master Response 4 (Current Mooring Permit Program as Affordable Access) Many comments stated that the City's current mooring permit program provides low-cost access to Newport Bay and so should be preserved in its current form. Staff understands that raising mooring permit rates will pose difficulties for some current mooring permittees, and in its letters to the City stated that it would support a phased approach to raising rates to fair market values or other ways that could soften the impact to current mooring permittees. But staff does not agree that the current mooring permit program provides lowcost access to the Bay. The current program has lower rates, but it also requires that any new permittee purchase a permit from a private party on the transfer market, with a 40-foot mooring permit selling for an average of between $40,000 and $60,000. Even if a purchaser could recoup that cost by selling it themselves, the requirement of a $40,000 up-front payment means that most people could not afford a permit.
Additionally, the City has never claimed that it operates its mooring permit program to provide subsidized, low-cost access for boaters. If the City wishes to do so, staff will be happy to assist with navigating the legal issues involved to ensure the program would be
g permit program to provide subsidized, low-cost access for boaters. If the City wishes to do so, staff will be happy to assist with navigating the legal issues involved to ensure the program would be consistent with the City's grant and the California Constitution. At a high level, staff would want to explore how the City would determine who is eligible for the subsidized rates, the length of terms for the permits, and other issues to make sure that the program provides broad public access instead of subsidized rates for a select group.
Newport Bay Management - Response to Comments Master Response 5 (Compensation from Mooring Permits) Some comments stated that the transfer fee along with the mooring permit rent provide significant revenue to the City's Tidelands Fund when compared to other uses in Newport Bay and therefore the current program should be preserved.
First, revenue generation does not justify or excuse a legal violation.
Second, comparing overall revenue generation between uses in Newport Bay does not show that a particular use's revenue is appropriate. For example, commenters pointed out that mooring permits provide more revenue than residential piers overall, concluding that current mooring permit rates are sufficient. But the Report determined that the residential piers are likely being charged at below market rates and using inappropriate rental calculation areas, so the revenue from residential piers is likely too low. Additionally, as discussed in Master Response #1, staff does not agree that mooring permits and residential piers permits must be charged the same rates, so comparison between total revenue of the two uses does not provide evidence on the appropriateness of either rate.
that mooring permits and residential piers permits must be charged the same rates, so comparison between total revenue of the two uses does not provide evidence on the appropriateness of either rate.
Regarding the transfer fee, staff does not agree that the permit transfer fee results in significant revenues for the Tidelands fund, considering the sale price of the mooring permits. The transfer fee is 75 percent of the mooring permit's annual rent, which averages about $1,200 for a 40-foot mooring. In 2024, the City received $72,678 in revenue from mooring permit transfer fees, while $2,536,200 was paid to private parties for mooring permits transferred on the private market, according to City records.
In comparison, the average mooring permit transfer price is $1,000 to $1,500 per linear foot according to the NMA's FAQ page on its website (accessed November 17, 2025), meaning that a sale of a 40-foot mooring permit would be between $40,000 to $60,000. The City's website (accessed November 17, 2025) reports that, in 2024, the total price paid for private moorings sales was $2,536,200. The average rent fee is less than 3 percent of the average transfer price, and the total revenue for the tidelands fund is about 2 percent of the total sale price of the mooring permits.
Master Response 6 (Profit from Mooring Permit Transfers) Some comments disputed whether individuals profited from private mooring sales, citing the transfer fee, tackle maintenance costs, and that sales were often for the price paid for the mooring. The NMA's comment letter estimated costs as $1,200 for a transfer permit, $6,000 per decade in maintenance. But this would not equal the transfer average sale price of $40,000 to $60,000 unless the permit is held for between 66 and 100 years - much more
r a transfer permit, $6,000 per decade in maintenance. But this would not equal the transfer average sale price of $40,000 to $60,000 unless the permit is held for between 66 and 100 years - much more than the 15-year average span a person holds a permit. (See email from Lauren Wooden Newport Bay Management - Response to Comments Whitlinger, October 7, 2025.) It is true that permittees are, in many cases, recouping some or all the cost that they paid to purchase the mooring permit. But that must mean that, at some point, individuals are profiting from the mooring transfers, because these purchase prices are set by the individuals. Someone must have been the first person to charge for a mooring transfer, and that person profited. And this also means that there is the potential for other private persons to profit from the transfers.
And it appears that sales prices are continuing to increase. According to City staff, "The Harbor Department recently analyzed the transfers we have kept record of, since taking over management of the permits from the County in 2017. To date, there have been 878 total mooring transfers since 2017. From the 730 arms-length mooring transfers, there are 113 139 moorings that have traded two, three, or more times since 2017, for a total of 252 transfer transactions.
Across those 252 transaction records, there were 139 transactions that resulted in a profit/loss/neutral value where we were able to determine the sellers have collected $715,275.77 in net profit. And the average profit margin across all of those 139 transactions, taking into account profit/loss/neutral value, is 52%." (Email from Lauren Wooding Whitlinger, November 19, 2025.)
Staff also does not agree that there must be a net profit to implicate the concerns
, taking into account profit/loss/neutral value, is 52%." (Email from Lauren Wooding Whitlinger, November 19, 2025.)
Staff also does not agree that there must be a net profit to implicate the concerns contained in the Report. Defraying costs that would otherwise be borne by the permittee is also a profit.
To summarize: the maintenance costs alone are unlikely to equal or exceed the transfer fee; it is impossible that every seller only recouped the cost that they paid to another private party for the transfer; there is indication that prices are increasing at least over moorings that have been transferred at least two times since 2017; and even without a net profit, there may still be profiting from a sale. Staff does not agree that there is no profit generated from the sale of mooring permits.
Finally, the City allowing third parties to impose costs that it cannot impose itself violates the City's grant statute and fiduciary duties to the state. In other words, if the City were to require an additional $40,000 payment for a mooring, staff would object that the payment violates the grant as being unsupported by an appraisal and unconnected to the use itself.
This is true even if the payment is considered a deposit that would be returned when the permit is relinquished: there would be no basis for the City to require that deposit. The City cannot allow private parties to create profit by imposing costs it could not impose itself.
Newport Bay Management – Response to Comments Master Response 7 (Liveaboards) The Report does not discuss the legal issues surrounding liveaboards. In general, liveaboard use is inconsistent with the Public Trust Doctrine, although in its own leases there are some cases where the State Lands Commission allows a limited number of
ding liveaboards. In general, liveaboard use is inconsistent with the Public Trust Doctrine, although in its own leases there are some cases where the State Lands Commission allows a limited number of liveaboards when the use supports another Public Trust-consistent use, such as providing security services in a marina. Staff has not objected to the City's current liveaboard program.
Even if liveaboard use was consistent with the Public Trust Doctrine, the City, as the State's trustee, has discretion to choose between competing Public Trust uses. In other words, even if the use was entirely consistent with the Public Trust Doctrine, the City could decide, in its discretion, to not allow liveaboard use in favor of increasing the amount of recreational-use moorings. Elimination of the liveaboard program does not violate the City's grant or the Public Trust Doctrine. Therefore, staff does not agree that this Report should be revised to discuss the City's proposed elimination of the liveaboard program.
Newport Bay Management – Response to Comments Form Comment • A1: See Master Response 1 (Residential Pier and Mooring Rates).
• A2: See Master Response 1 (Residential Pier and Mooring Rates).
A3: See Master Response 1 (Residential Pier and Mooring Rates). Even if the City were required to charge the same rates for residential pier and mooring permits, that would not require a particular rate methodology.
• A4: See Master Response 3 (Grand Jury Report and the City's 2017 Revisions).
A5: See Master Response 3 (Grand Jury Report and the City's 2017 Revisions ● A6: See Master Response 5 (Compensation from Mooring Permits).
• A7: Staff supports this program but does not believe that it justifies the issues with • • •
ury Report and the City's 2017 Revisions ● A6: See Master Response 5 (Compensation from Mooring Permits).
• A7: Staff supports this program but does not believe that it justifies the issues with • • • the transfer program noted in the report. The sublet program could exist independent of the transfer program.
A8: The 12-month bar on transfers attempts to limit a problem created by the transfer program and does not excuse or justify it. It recognizes one of the harms created by the program: that private individuals could use the City's mooring permits to generate revenue based on the speculative value of the permit.
A9: This also seems intended to help limit the problems of speculation on mooring permits, but like the 12-month transfer bar, is also a recognition that the transfer program could be used to generate revenue based on the speculative value of the permit.
A10: The Report and its recommendations are specific to the City of Newport Beach's tidelands management. If other grantees have similar circumstances, then this report could also be used to guide their analysis.
A11: The report focusses on current management of Newport Bay, and not historical practices. It could be that when the mooring permit transfer program was first adopted it did not create the legal issues identified in the report. For example, if the demand for moorings was low enough that there were vacant mooring permits available from the City, then a private transfer sale market may not have developed.
It is the combination of the City's transfer program; the scarcity of available mooring permits; and the effectively indefinite term of the mooring permits themselves that create the current issue.
A12: See Response A10.
A13: Commission staff commented that they agreed with the City's efforts to
and the effectively indefinite term of the mooring permits themselves that create the current issue.
A12: See Response A10.
A13: Commission staff commented that they agreed with the City's efforts to eliminate the private transfer market in its August 2024 letter to the City. The Report reviewed the City's actions and not individual statements by City officials, which are also not binding on Commission staff.
Newport Bay Management – Response to Comments • • A14: See Responses A17 (mooring permittee reliance), A6 (fees), A7-9 (mitigation factors), A11-13 (past practices), and A13 (opinions from City officials).
A15: The issues caused by the City's mooring permit transfer program are due to the combination of the City's transfer program; the scarcity of available mooring permits; and the effectively indefinite terms of the mooring permits. These issues are not necessarily present in other forms of leases and permits. If they are, the City can use this Report for guidance on how to address those situations.
A16: Considering the responses above, staff is not removing the transfer section from the Report.
A17: Whether the City's elimination of its mooring permit transfer program is an uncompensated taking is outside the scope of this Report. Even if a court determined that elimination of the transfer program is an uncompensated taking, staff does not agree this requires the City to maintain the current transfer program; it would require the City to compensate the mooring permit holders for its elimination.
. A18: See Response A15 (other transfers), A17 (uncompensated takings).
A19: See Master Response 2 (Appraisals).
• A20: Staff agrees that the City's alternate proposal to mooring rate permit increases,
A18: See Response A15 (other transfers), A17 (uncompensated takings).
A19: See Master Response 2 (Appraisals).
• A20: Staff agrees that the City's alternate proposal to mooring rate permit increases, presented in July 2024, was abrupt. This is one of the reasons that staff asked the City to pause its second reading of the ordinance.
A21: Staff does not agree that the City engaged in legal violations related to its presentation of the July 2024 alternate proposal. See Response A1 (discrimination).
A22: Staff anticipates that the City will review this Report and respond with either additional information or changes to its programs to address the issues identified by staff. Staff also supports a transparent and equitable process.
NMA Letter • B1: Staff's recommendation is that the City reappraise its residential pier rates, and that new appraisal will determine fair market rates for the residential piers. Staff agrees with the comments on the impact area, which are also noted in the Report. If the new appraisal wishes to consider the Commission's benchmark methodology, staff is available to answer any questions they may have.
• B2: No response necessary.
B3: We are aware of these actions, and have concluded that, despite them, the allowance of private sale and transfers of mooring permits still appears to violate the City's grant statute and other legal duties. See Master Response 3 (Grand Jury Report and the City's 2017 Revisions).
Newport Bay Management – Response to Comments • B4: Staff reviewed the substance of the appraisal, and not allegations of Brown Act • • • • • or public contracting law violations. These allegations are outside the scope of the Report.
B5: See Master Response 4 (Current Mooring Permit Program as Affordable Access).
ons of Brown Act • • • • • or public contracting law violations. These allegations are outside the scope of the Report.
B5: See Master Response 4 (Current Mooring Permit Program as Affordable Access).
Staff does not agree that the Report's recommendations on rates "disproportionately” impacts mooring permittees. The Report recommends that residential piers, like mooring permits, should be charged fair market rates based on appraisals.
B6: See Master Response 2 (Appraisals).
B7: The sentence following the language quoted in the comment is: "While this would be an extreme example, and staff has not seen any indication this has happened, the point is that the City's system allows for private parties to make those decisions, which is potentially an impermissible transfer of power over the sovereign land." Staff used the potential transfers based on residency status or belief system as a hypothetical example of the problems created by indefinite private control of moorings, and the Report does not accuse any mooring permit holder of engaging in that behavior. Staff appreciates the clarification that those forms of discrimination are prohibited in the City's transfer documents and will remove the hypothetical example from the Report.
B8: Staff does not agree that the only distinction between a residential pier and a mooring permit is that a mooring permittee does not have to be a resident. See Master Response 1 (Residential Pier and Mooring Rates).
B9: See Master Response 3 (Grand Jury Report and the City's 2017 Revisions).
B10: See Responses A4-9.
• B11: See Master Response 5 (Compensation from Mooring Permits).
• B12: Comparison of total revenues from moorings permits compared to total revenues of other harbor users does not prove that mooring permit fees and rent
ponse 5 (Compensation from Mooring Permits).
• B12: Comparison of total revenues from moorings permits compared to total revenues of other harbor users does not prove that mooring permit fees and rent are, or are not, appropriate.
• B13: See Master Response 1 (Residential Pier and Mooring Rates and • • Methodologies).
B14: Staff agrees that residential pier rates appear too low. See Master Response 1 (Residential Pier and Mooring Rates and Methodologies), Response B1.
B15: See Master Response 1 (Residential Pier and Mooring Rates and Methodologies). There are different ways to assess fair market rents for different uses, such as square-footage rates, rates based on generated income, and others.
Staff does not agree that every use of Tidelands must be charged at the same rates and through the same methodologies.
Newport Bay Management – Response to Comments • B16: See Response A15 (transfer of other users) • B17: See Response A10 (other grantees) • B18: See Master Responses 1 (Residential Pier and Mooring Rates and Methodologies), 5 (Compensation from Mooring Permits), 6 (Profit from Transfers).
B19: See Master Response 6 (Profit from Transfers).
B20: Timeline noted. Staff agrees that the July 2024 Alternative proposal was sudden, which is why staff requested, and the City agreed, to pause its adoption while we reviewed the City's history of tidelands management.
B21: See Master Response 4 (Current Mooring Permit Program as Affordable Access), Response B21.
B22: The Report recommends that the City immediately reappraise and revise the residential pier rates, which will resolve the discrepancy between moorings being charged fair market rates and piers being charged less than fair market rates. On the
iately reappraise and revise the residential pier rates, which will resolve the discrepancy between moorings being charged fair market rates and piers being charged less than fair market rates. On the affordability topic. See Master Response 4 (Current Mooring Permit Program as Affordable Access).
• B23: Staff supports open processes and equitable solutions that are consistent with the legal framework that the City must manage its granted lands within.
B24: The Report recommends that mooring permits and residential piers be appraised at the same time if possible, and if not, on the same schedule. As stated in other responses, staff does not agree that moorings and residential piers must, as a legal requirement, be based on the methodologies.
B25: See Master Response 2 (Appraisals).
• B26: See Master Response 3 (Grand Jury Report and the City's 2017 Revisions). Staff has reviewed and considered all information provided in public comments.
City Letter • • C1: The Report states, "The City is responsible for managing its legislatively granted lands and has discretion to determine how it manages the granted lands, as long as it stays within its grant statutes, the Public Trust Doctrine, and the California Constitution." Additional clarification was added to the Report at page 5, in the subsection describing the State Lands Commission's role.
C2: Staff will be happy to assist the City in developing a definition for the “impact area" for Newport Harbor. Staff is also comfortable with phasing-in rate increases.
C3: Confirmation of this approach was added to the Report on page 21, under "Recommendation."
C4: Staff is comfortable with the City implementing a reasonable sunset date for ending the private sale of mooring permits.
Newport Bay Management – Response to Comments
e 21, under "Recommendation."
C4: Staff is comfortable with the City implementing a reasonable sunset date for ending the private sale of mooring permits.
Newport Bay Management – Response to Comments C5: Staff is comfortable with the City adopting a reasonable phasing-in period for both the mooring permit program and the residential pier permit program if necessary to prevent undue hardship.
Comment from Sawyer Jones • D1: See Master Response 2 (Appraisals).
Comments from Samantha McDonald • E1: See Master Response 7 (Liveaboards).
E2: The Draft Report did not explicitly address Yacht Clubs. The Report is focused on the City's residential pier permits and mooring permits, and staff decided that the Yacht Club leases were outside of this scope. As noted in the comment, the City's Yacht Club leases may raise concerns like those listed in the Report. The Yacht Club leases also may have distinguishing characteristics, such as the leases are for terms of years, and the method of the lease's rent calculation. In the Introduction, the Report states, “There are other topics that have been raised in public comments that are not discussed in this report, or which could be addressed more comprehensively. However, staff believe that the analysis and recommendations in this report will provide guidance for how the City should investigate additional issues related to its granted lands management even if such issues are not directly or comprehensively discussed in this report." The Yacht Club leases are one of those topics that are not addressed in the Report, and staff expect the City to use the analysis in the Report as a guide for additional issues related to the City's Yacht Club leases.
E3: See Master Response Master Responses 5 (Compensation from Mooring Permits).
ect the City to use the analysis in the Report as a guide for additional issues related to the City's Yacht Club leases.
E3: See Master Response Master Responses 5 (Compensation from Mooring Permits).
• E4: Staff added a new section to the Report discussing residential pier subleasing.
• E5: See Master Response 6 (Profit from Mooring Permit Transfers).
• E6: See Response E4.
• • E7: See Response E2 (Yacht Clubs), E4 (Pier Subleasing), and the discussion in the Report on Mooring Permit Transfers.
E8: The Report and its recommendations are specific to the City of Newport Beach's tidelands management. If other grantees have similar circumstances, then this report could also be used to guide their analysis.
E9: The scope of the Report is described in the Background section of the Report, which refers to the letter sent by Commission staff to City staff on August 12, 2024.
The Report's scope does not include every aspect of the license program. Staff Newport Bay Management – Response to Comments notes that the quoted provision from the Newport Beach Municipal Code does not include the subsequent sentence and subsections, which include exceptions to the termination for abandonment. These exceptions include an absence of up to 6 months with pre-approval from the Harbormaster. See Newport Beach Municipal Code, Section 17.60.045, subdivisions G(1) and (2).
• E10: Staff made the suggested edits to the Report.
Comment from Ivan Skobstov • F1: Comment noted. As discussed in Master Response 2 (Appraisals), Commission staff cannot mandate a particular methodology, and only reviews City appraisals to determine if they are within the bounds of the law. This comment could be provided to the City for its consideration.
Comment from Hein Austin •
icular methodology, and only reviews City appraisals to determine if they are within the bounds of the law. This comment could be provided to the City for its consideration.
Comment from Hein Austin • G1: See Master Response 1 (Residential Pier and Mooring Rates and Methodologies) G2: See the "Mooring Permit Transfers” section of the Report for staff's analysis.
Comment from Hein Austin H1: In some areas of Newport Bay residential piers abut a public walkway instead of directly connecting to a private residence, which is on the other side of the walkway.
The Municipal Code specifies that the application for a permit or lease to use the public trust lands must be signed by the "owner, lessee, or agent of the property affected." (Section 17.60). For pier noncommercial pier permits the language specifies the request must be from the “abutting upland residential property owner, or lessee or the authorized agent of the owner or lessee," and then further clarifies more rules when the upland property is sold or transferred. (Section 17.60.030(A).)
The City's municipal code defines the Abutting Upland(s) Property in Section 17.01.030(A) as "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 harbor structure 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."
City staff also explained that there would be practical issues with issuing residential pier leases to persons other than the abutting property owner, even if there is a public walkway next to the pier. Without a connection to the abutting property, there
issues with issuing residential pier leases to persons other than the abutting property owner, even if there is a public walkway next to the pier. Without a connection to the abutting property, there Newport Bay Management - Response to Comments • is a lack of public parking, restrooms, storage, and utility connections. There would also be concerns about noise and other disruptions to the abutting property if the pier was leased to a third party.
H2: See Master Response 1 (Residential Pier and Mooring Rates and Methodologies) Comment from Thomas LeBeau • 11: See Master Response 7 (Liveaboards).
Comment from Natalie Fogarty • J1: See Master Response 1 (Residential Pier and Mooring Rates and Methodologies) and 2 (Appraisals) Comment from Peter Kaz • K1: See Master Response 2 (Appraisals).
• K2: See Master Response 7 (Liveaboards).
K3: See Master Response 6 (Profit from Mooring Permit Transfers).
Comment from Mark Womble L1: See Master Response 2 (Appraisals).
• L2: The State Lands Commission provides ongoing oversight of granted lands and • .
will continue to monitor the City as it works to resolve the issues identified in the Report.
L3: See Master Response 1 (Residential Pier and Mooring Rates and Methodologies).
L4: See Master Response 2 (Appraisals).
L5: See the "Mooring Permit Transfers" section of the Report for staff's analysis.
• L6: See Master Response 7 (Liveaboards).
Comment from Rudy Alvarez • M1: See Master Response 1 (Residential Pier and Mooring Rates and Methodologies).
M2: See the "Mooring Permit Transfers" section of the Report for staff's analysis.
Comment from Morgan Coburn This comment describes the value of the Newport Bay mooring fields. Comment noted; no responses required.
Newport Bay Management - Response to Comments Comment from Adam Leverenz
nt from Morgan Coburn This comment describes the value of the Newport Bay mooring fields. Comment noted; no responses required.
Newport Bay Management - Response to Comments Comment from Adam Leverenz • This comment is a proposed resolution. Comment noted; no responses required.
Comment from Adam Leverenz This comment is excerpts from transcripts, the City of Newport Beach Municipal Code, emails, and other documents. Comment noted; no response required.
Comment from Hein Austin • This comment provides four proposed remedies for alleged discrimination against mooring permit holders by the City of Newport Beach. Comment noted; no response required.
Comment from Darrik Burns This comment describes the value of the Newport Bay mooring fields. Comment noted; no response required.
Comment from Zac Dietrich • N1: Staff agrees that residential piers' value appears too low and must be reappraised by the City.
• N2: See Master Response 2 (Appraisals).
N3: Comments noted. Whether compensation is required for current owners for any change in the transfer process is a separate legal issue and outside the scope of the Report.
Comment from Penny Elia • 01: The referenced email was sent to City staff after Commission staff provided additional documents regarding its appraisal review in a Public Records Act response, which may have contained additional comments on the appraisal that were not included in the letter sent to the City.
• 02: See Master Response 7 (Liveaboards).
• The remainder of the comment is copied from the Form Comment.
Comment from Adam Leverenz • P1: See Master Response 2 (Appraisals). Staff reviewed the substance of the appraisal and determined it was reasonable.
Newport Bay Management – Response to Comments Comment from Adam Leverenz
erenz • P1: See Master Response 2 (Appraisals). Staff reviewed the substance of the appraisal and determined it was reasonable.
Newport Bay Management – Response to Comments Comment from Adam Leverenz • This comment was four documents "record for these matters, and for dissemination among policy and decisionmakers.” Comment noted; no response required.
Comment from Mark Mathewson • Q1: Whether the City's elimination of its mooring permit transfer program is an uncompensated taking is a separate legal issue, and outside the scope of this Report.
Comment from Brian Miller This comment describes the value of the Newport Bay mooring fields. Comment noted; no responses required.
Comment from Denise Rosa-Schroder • This comment describes the value of the Newport Bay mooring fields. Comment noted; no responses required.
Comment from Wade Womack • R1: See Master Response 2 (Appraisals).
Comment from Joel Spano • This comment describes the value of the Newport Bay mooring fields. Comment noted; no responses required.
Comment from Hein Austin This comment was sent almost a week after the deadline for public comments and is an update to the comment sent on October 16, 2025. It adds copies of case law and legal pleadings from a dispute over the extent of a private party's littoral rights.
The caselaw confirms that the City, as grantee, has authority to manage the granted lands and that there is no private littoral right to a pier on state property. Staff reviewed the additional materials, and no additional response is required.