Register Guest Columnist De-Bunks City’s Dock Tax Legal Theory

CITY INCORRECTLY USING 1978 LAW TO LEVY DOCK TAX 

Register guest columnist Kevin Muldoon is a Newport Beach lawyer and former White House intern for President George W. Bush.  In his column below for the December 21stedition of The Current, Muldoon analyzes the city’s assertion that the “Beacon Bay” bill makes them levy a dock tax on us.

Let’s take a quick trip down memory lane to remind you of the ever-evolving rationale by staff and the city politicians for the Dock Tax.  First, they jumped on the Senate Bill 152 (Pavley) bandwagon saying the new legislation effective on Jan. 1, 2012 required Newport to charge a Dock Tax because it repealed a 1978 law prohibiting the tax.  

Then a funny thing happened.  Local Harbor resident and blogger Danny Sullivan called Senator Pavley’s office to ask if her legislation applied to Newport Harbor – it doesn’t.  Danny reports that Pavely’s office suggested everyone read the bill that plainly states the law covers those areas managed by the State Lands Commission.

Since 1978 Newport Harbor has been managed by our City Council – not the State Lands Commission.  City Hall complains about state oversight – unless it opens the door to raise taxes on us.

Suddenly city staff started to stutter and stammer.  They tried to rewrite history by saying that SB 152 forced the city to levy a Dock Tax.  Nice try.

They quickly changed gears to rely upon the “Beacon Bay” bill to justify the tax.

Kevin Muldoon took the time to read the Beacon Bay bill (you can read it here) and comes to the conclusion (below) that once again city staff is improperly using the legislation to justify the Dock Tax.

Muldoon correctly analyzes the legislation that requires the city to charge “fair market rent” for only the Beacon Bay residential parcels, as called out in Section 6 of the 1978 bill.

City staff and our big-government politicians have decided apply the “fair market rent” provision to the ENTIRE Harbor.

Plain and simple – it’s a money grab that has no basis in law.

The stuttering and stammering continues.

A QUICK NOTE ON THE BOAT PARADE BOYCOTT

This is my first note to you since our call for a boycott of the Boat Parade and Festival of Lights.  For those of you that disagreed with the boycott – I respect your position.  The 40+ boats in this year’s parade were spectacular.

The city spent almost $100,000 of your tax dollars to promote this year’s parade, fireworks included.  (Will the your Dock Tax be used for this in the future?)  Hopefully the merchants, hoteliers, and local businesses that benefit from the residents’ generosity did well.

Those that boycotted the parade helped send a message to our big-government city council that we are willing to stand up for our rights to protest and disagree with their approach to city government.

I want to thank you for your support and continued interest in our effort to bring some fiscal restraint to city government.

IN CONCLUSION

 

In levying the Dock Tax the city council has accomplished one thing – they have angered 1,200 of Newport’s most charitable, civic minded, and influential families.  As they move into the $150 million Taj Mahal, the city should be remember that the residential pier owners of Newport Harbor are not the city council’s piggy bank.

 

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Bob McCaffreyChairman,
Stop The Dock Tax
www.stopthedocktax.com Please check with our web site for the lastest information 

http://epaper.ocregister.com/Olive/ODE/OCWTheCurrentWest/

 

The Current
Date: Dec 21, 2012; Section: News; Page: 7
A dim light on the bay

Newport Beach is a conservative town. Only one councilmember is not a registered Republican , and two councilmember’s were Reagan appointees.

Still, the Ad Hoc Committee on Harbor Charges has been systematically proposing Newport Harbor tax increases (or what proponents call rent increases) on moorings, commercial docks, and residential piers since 2010.

Only council member Leslie Daigle voted no on the controversial “dock tax,” with Councilman Ed Selich recusing himself due to a potential conflict because he owns a residential dock.

This has a lot of Republicans scratching their heads.

Gas-powered leaf blowers were banned by the city. Fair enough, they’re a nuisance. Then the council expanded public areas where smoking was prohibited. Fine, we want to minimize litter in city parks and beaches. But now, a new tax and government agency to enforce it? Something has got to give.

The city staff has led the council to believe that the 1978 Beacon Bay bill and 2011 Pavley bill require the city to charge rent or the state will unilaterally raise taxes by administrative fiat. Yes, you read that correctly: the Dock Tax was passed in anticipation of a potential state action. 

It gets worse. 

According to the Beacon bill, the fair market value rent is to be applied to Beacon Bay residential lots. It makes no reference to rates to be offered in the rest of the bay, and likely mandates the fair market value only for those lots because they are not submerged. 

Even if the state were to interpret the bill in such a way that requires taxes to be raised in the bay, the money would go straight back to the city as the tidelands’ trustee, so we can almost guarantee the state would not do so.

The city has since abandoned its attempt to use the Pavley bill to justify its position because it only ended free private piers throughout California waterways, not the Newport tidelands. The argument that the aforementioned statutes require the city to raise taxes on docks is unfounded.

There is an excellent argument to be made by the city that they are simply doing what the state Constitution requires when there is a private use of public land. However, it was the city’s precedence to allow rent-free leases when the use has a public benefit.

Even if there were no public benefit to be found in the safe harbor provided and erosion prevented by docks, the city did not need to do anything because the Pavley bill did not overturn the exemption in this situation.

As state and federal governments take more of the fruits of our labor, we would expect our local government to resist the natural tendency of government to grow.

Kevin Muldoon is an attorney and resident of Newport Beach.

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KEVIN MULDOON

GUEST COLUMNIST

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