Dock fee opponents drop request to stop collections

After private discussions with an Orange County Superior Court judge, the attorney for the Newport Beach Dock Owners Assn. agreed Friday to drop a request for a temporary restraining order that would have kept the city from collecting contested residential pier rent increases.

In exchange, the city of Newport Beach will notify the court 15 days before taking any action to revoke pier permits for failure to pay.

The hearing with Judge Luis A. Rodriguez was part of the association's lawsuit alleging that the city violated state transparency laws, or Ralph M. Brown Act, in the process to adopt the fee increases.

The increases, which will be phased in over five years from a flat $100 yearly rate to 52.5 cents per square foot per year, are included on regular city utility bills.

Some have already been collected, city officials have said.

Baric argued that the city could cause irreparable harm by continuing to collect the fees because his clients could unintentionally validate illegally levied fees by paying them.

But Attorney William Wynder, who represented the city, said that financial damage is not considered irreparable harm because the city could easily be ordered to return any money that was found to have been improperly collected.

Baric countered that if pier owners decided not to pay the fees, the city could theoretically take steps to revoke the permit, such as removing the pier or issuing the permit to someone else.

Wynder said that such actions were a practical impossibility — especially within the 15 days that a temporary restraining order would be in effect.

Rodriguez echoed the assertion that alleged financial damages didn't make for irreparable harm, but that irreparable harm could be done if the city actively took steps to revoke permits.

Rodriguez did put off ruling on a second request, for a preliminary injunction, until June 28, that would have also halted the collection of the fees. A May 16 hearing for a city response to the lawsuit is still on the docket.

"The city sees it as a win," said City Attorney Aaron Harp, who sat through the hearing. Aside from active permit revocation processes, he added, "the judge didn't foreclose on other options." Late penalties and interest charges, for example, still apply.

Baric said he thought the judge's decision was a "fair result," he said. "Now we can go forward with our case."

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