Newport challenges claims by dock fee opponents [updated]

Newport Beach officials shot back Wednesday at a group suing the city over dock fee increases, saying that they had yet to see evidence of a request for a temporary restraining order that would prevent the city from collecting those fees.

The officials contend that the group failure to follow through on a threat to file means that it has no legal footing to stop the collection.

Stop the Dock Tax and the Newport Beach Dock Owners Assn. used a recent mailer to publicize its request for a restraining order that would prevent the city from collecting the fees until a lawsuit challenging the new rates works its way through the courts.

"A [temporary restraining order] is only issued if it can be shown there is a likelihood of success the [Newport Beach Dock Owners Assn.] will prevail on the merits of its underlying claim," Mayor Keith Curry said in a statement. "Here, the city complied with the law in all aspects and we believe it is very unlikely the association would be successful in court."

A mailer the association sent to residential pier owners affected by a rent increase — raised from $100 annually to 56.5 cents per square foot per year — for the use of public tidelands encouraged those homeowners not to pay the fees.

The Newport Dock Owners Assn. and the Stop the Dock Tax group said in the letter that it was seeking the restraining order to stop the owners of residential piers over public waters from paying the higher rates because, the groups contended, doing so was akin to entering into a contract.

The city has already begun collecting the fees for this year, along with utility bills for water and recycling.

The group has said that its request for a temporary restraining order was scheduled to be heard in court April 19.

That hearing was then rescheduled to this Friday, according to an email sent by Newport Beach political consultant David Ellis, an Orange County Fair Board member who has worked with the dock owners.

But the city, in a news release, said that no such request had been filed. And, according to the Orange County Superior Court website and a court spokeswoman, the next hearing scheduled in the case is set for May 16.

That hearing, Assistant City Attorney Michael Torres has said, could decide the fate of the lawsuit overall — not just whether the city must stop collecting the fees.

The lawsuit alleges that the city violated state transparency law by acting based on the recommendations of an improperly formed committee. The city filed a court document arguing that its actions did not violate the law, even if all the facts stated in the lawsuit were true.

The association's attorney, Steve Baric, said in an email that the request for a temporary injunction was set to be heard Friday in an "ex parte proceeding," which would not appear on a court docket. He is associated with the California Republican Party.

In the release, City Attorney Aaron Harp reiterated that not paying the fees could result in interest charges and penalties.

He urged residents to "disregard the misinformation circulated by the association" and to "pay the rent due."

Update: Assistant City Attorney Michael Torres said the city received official notice of an ex parte hearing Thursday morning.

Unlike most hearings, which appear on court dockets weeks in advance, he said opposing parties must be notified before 10 a.m. the day before ex parte proceedings are scheduled.

He said the association had been threatening to make the restraining order request for weeks, but until Thursday, the city had not received official notice.

“So it sounds like this time, it’s finally going to go,” he said, adding again that the city believes the request will be rejected.

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