Suit haunts dock fee meeting

At the first of two open houses designed to help dock owners navigate Newport Beach's new residential pier permitting process last week, a handful of residents sat scattered throughout the old City Council Chambers — not a huge turnout compared to the hundreds that showed up for hearings on the same subject just a few months ago.

And while the tone of the Feb. 14 discussion wasn't exactly chipper, largely absent was the bitter anger that characterized the fight between Newport Beach harbor stakeholders and the City Council over fee increases for the use of public tidelands.

Absent, that is, until Stop the Dock Tax Chairman Bob McCaffrey stood up to announce a lawsuit aimed at halting the increases on residential piers, which are set to be phased in through 2017.

"What we're discussing here today will be moot," he said.

The lawsuit, which was filed last week in Orange County Superior Court, alleges that the council violated the state's open-meetings law, the Ralph M. Brown Act, by acting on suggestions developed by an "ad hoc committee on updating harbor charges," which rose to the level of a standing committee.

That three-person committee, the suit argues, continued meeting long after its March 2011 expiration date without prior public notice and changed the committee's membership without telling residents — all in violation of the Brown Act.

"Subsequent to the creation of this committee, the city has tripled mooring fees [and] voted to increase rents for harbor users operating businesses on public tidelands, and the committee recommended that the city charge the private dock owners a tax for their private dock," a court document says. "However, the committee has never published an agenda, meeting date or minutes for those meetings."

The Brown Act requires that most meetings of elected officials be announced in advance and be open to the public.

Assistant City Attorney Michael Torres said Tuesday that while he hadn't had the opportunity to review the complaint in detail, generally the city stood by the position it took in the face of letters warning of the lawsuit: "We didn't violate the Brown Act."

In a Feb. 8 response to a January letter from attorney and state Republican Party Vice Chairman Steve Baric, City Attorney Aaron Harp wrote that the committee was actually an "informal working group" that did not include a council quorum.

Therefore, he contended, it was not subject to the Brown Act.

While the complaint, filed on behalf of Stop the Dock Tax and the Newport Beach Dockowners Assn., notes that there are exceptions to the Brown Act for groups that are composed of less than a quorum, it alleges that it became a council standing committee, and that "Standing committees comprised of less than a quorum of the governing body are covered by the Brown Act."

According to the complaint, standing committees are defined as having "a continuing subject matter," or have meetings fixed by formal action of the legislative body in question. The harbor charges committee met both of those requirements, the suit argues.

Nevertheless, the full council also held several lengthy public meetings before voting in December to increase residential pier fees from a flat $100 per year to 52.5 cents per square foot annually.

That, said Irvine-based attorney Michael Martello, means that even if the court were to find that there had been Brown Act violations, the council could still "reenact" the fee.

Martello, a former longtime city attorney who volunteers for the nonprofit Institute for Local Government, added that the Brown Act is "not meant to be a 'gotcha' statute."

Rather, he said, it's more like a minimum set of standards meant to prevent much more egregious transparency violations.

For example, he said, he's seen complaints about cities that have formed ad hoc committees to discuss executive salaries, "and they're working for years with a consultant, and then all of a sudden it shows up on the consent agenda they're giving everybody a 10% raise.

"And then you're like, 'Wait a minute.'"

In the Newport dock fee case, Martello said, "there was nothing secret about this."

"If anything," he added. "This was the most publicized, talked about issue in Newport."

Uphill battle or not, McCaffrey said Tuesday, Stop the Dock Tax is still collecting donations to fight what he's repeatedly called a "money grab" on the part of the city.

A boycott of the Newport Beach Christmas Parade protesting the increases came and went. The lawsuit was the next step.

If that fails to stop the increases, he said, "Our intention is to go for a forensic audit of the tidelands [fund]."

"We think a lot of things that are charged to the tidelands should not be so," he said.

Such an audit would have to come at the expense of interested dock owners. The city, McCaffrey said, has refused to foot half the bill.

At the second open house Tuesday evening, another 25 or so residents discussed the finer points of implementing the increases.

Staff members pulled up aerial views of piers on a projector screen using the city's online Geographic Information System and explained the how dock owners' rents would be calculated.

Some pointed out water along their piers where they couldn't fit a boat. Would they be charged for that area? And others asked, how will billing work for neighbors who share a pier?

None questioned the validity of the city's actions in raising the fees.

But McCaffrey again sat in the audience.

Before he left, he passed out fliers alerting residents to the lawsuit.

"Our attorney feels we have a very strong case and the city attorney claims we have no case," it reads. "What else is new? The judge will decide."

Twitter: @jillcowan

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