Chapter 17.10
MARINE ACTIVITIES PERMIT

Sections:

17.10.010    Findings and Purpose.

17.10.020    Permit for Commercial Activities in Newport Harbor Required.

17.10.025    Exemptions.

17.10.030    Application for Permit.

17.10.040    Filing Fee.

17.10.050    Issuance of Permit.

17.10.060    Power to Impose Conditions—Hold Harmless.

17.10.070    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.    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 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 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, 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 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 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;

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;

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 activity will be compatible with the predominantly recreational character of Newport Harbor, the rights of other persons using Newport Harbor, the interests of residents and property owners whose properties abut or are in close proximity to Newport Harbor, and the interests of the general public. Any such permit shall contain a provision stating that the permittee shall defend, indemnify and hold the City, the County of Orange, and the 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 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 be controlled so as not to disturb a person of normal sensitivity at a point one hundred (100) feet from the hull of the vessel;

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 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.    All required insurance naming the City of Newport Beach as an additional insured 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. (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, commercial services or any other types of operations on the waters of Newport Harbor shall at all times maintain and provide to the City proof of insurance covering its operation, naming the City as an additional insured with such policy limits and coverage as established by the City Risk Manager. The Risk Manager shall issue a written notice of determination of the policy limits and coverage, which shall be served in accordance with Section 1.08.080. Proof of insurance must clearly identify the activities and/or vessels covered. (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 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. 2008-2 § 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 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 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 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 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)