Chapter 17.50
HARBOR DEVELOPMENT PERMITS
Sections:
17.50.030 Processing of Application.
17.50.040 Rendering of Decision.
17.50.080 Expiration, Extension, Violation and Revocation.
17.50.090 Structure Without Permit Declared a Nuisance—Abatement.
17.50.100 Securing of Structures.
17.50.110 Appeal(s) or Call(s) for Review.
17.50.010 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 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 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 application 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. (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 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. Approval by City Staff.
a. 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 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.
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 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 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)
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 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 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 a Nuisance—Abatement.
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 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. 2020-5 § 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)
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)