By Bradley Zint
6:41 PM EDT, April 16, 2013
Opponents to a fee increase for Newport Harbor's residential docks are urging affected homeowners to ignore them.
But the city said anyone who doesn't pay could face a 10% penalty.
Stop the Dock Tax and the Newport Beach Dock Owners Assn. plan to send out 1,100 mailers this week advocating that recipients avoid paying the "pier residential" fee included in water, sewer and recycling bills.
The groups want residents to hold off paying while a lawsuit opposing the fees winds its way through the courts.
An Orange County Superior Court judge is scheduled Friday to hear the Dock Owners Assn.'s request for an injunction suspending the fee increase.
The lawsuit alleges that the city of Newport Beach, as it proceeded to institute the tax, moved committee members without public notice and violated the Brown Act, a state law that requires much of the public's business be conducted in open meetings.
City officials, in their own motion asking that the lawsuit be dismissed, contend that the council meetings that ultimately finalized the fee were properly noticed and conducted.
Assistant City Attorney Michael Torres said that he didn't anticipate the association's temporary restraining order having merit in the Santa Ana courtroom.
"Absent a court order, people are required to pay their residential pier fees," Torres said Monday. "We didn't the violate the law. We didn't violate the Brown Act ... we're hoping that the court will agree with us."
City officials said the two committees were exempt from the Brown Act's requirements.Furthermore, city officials say, the panels were not "magically combined" to make some sort of "standing committee," as the Dock Owners Assn.'s lawsuit asserts, and had different members and separate topics.
Bob McCaffrey, chairman of Stop the Dock Tax and the Dock Owners Assn., in the mailer called it an "illegal tax" and "the largest property-tax increase in our city's history."
City spokeswoman Tara Finnigan said McCaffrey's tax assertion in the mailer is factually incorrect, as the fee, by definition, is both not a tax or akin to property taxes.
"It's a rent of the pier over the publicly owned water ... a private use of a public water," Finnigan said.
The mailer also alleges that if the fee were paid, "you have agreed to the terms and conditions of the Dock Tax. It's the city's sneaky way of triggering the Dock Tax and taking away your rights."
Finnigan wrote in an email that if a municipal services agreement is unpaid by its due date, the resident is given a "delinquent" bill reflecting a 10% late charge.
Furthermore, if the resident only pays the bill's other line items, the city's system "just sees that a percentage of the total amount owed was left unpaid. So, their next statement will show that outstanding dollar amount as owed (with the 10% late fee that was added when they got the delinquent bill)."
The City Council approved the fee increase last year for residential docks over public tidelands. It changed the amount from $100 annually to 52.5 cents per square foot per year.
The increase is scheduled to be phased in over five years.
In an interview with the Daily Pilot, McCaffrey said the fee seemed destined to happen.
"It's been a difficult situation because the City Council had four pro-votes even before they took up the issue," he said, adding that he felt the council "didn't listen to any of the dockholders. They just shoved it down their throats, in a very arrogant way.
"A lot of people are very mad about that. I'm one of them."