Chapter 17.05
GENERAL PROVISIONS
Sections:
17.05.040 Administrative Authority.
17.05.050 Duties of the City Manager.
17.05.055 Duties of the Harbormaster.
17.05.060 Duties of the Public Works Director.
17.05.062 Duties of the Community Development Director.
17.05.065 Duties of the Harbor Commission.
17.05.070 Establishment of Channels, Turning Basins, Etc.
17.05.090 Local Coastal Program.
17.05.100 Coordination with Resource Agencies.
17.05.110 Rules for Interpretation.
17.05.130 Permits Nontransferable.
17.05.010 Title.
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 § 1 (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 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 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 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 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 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)
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 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 harbor-related administrative matters.
D. Advise the City Council on proposed harbor-related 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, in-bay 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.
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, water-oriented 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 landscaping 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 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 haul-out 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 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 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 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:
a. Hearing Information.
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 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 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 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 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 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 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)