Marina Ordinance Progress Report 5

"The Dog Ate the Marina Ordinance"

In December of 1999, Marina Staff introduced a set of proposed changes to the Marina Ordinance. The term "Marina Ordinance" generally refers to Berkeley Municipal Codes 6.20 and 6.21, the laws which form the legal basis for administration of the Marina's various rules and policies.

The Marina Ordinance was a regular item on the Waterfront Commission's agenda for the next six months, and at the May 2000 meetings, most of the changes were approved by the Commission. Although a few items relating to fish boat and bait shop rules could not be resolved, The remainder of the ordinance revisions were passed with the expectation that it would be sent to the City Council in a timely manner.

The history of these revisions, with commentary, can be found on the web at

But Council approval was delayed while Marina Staff obtained comments and possible corrections from the City Attorney's office, and then further delayed when Marina staff elected to wait for the newly elected Council to take office. This should have left the path clear for a submission to Council early in 2001.

In February 2001, a copy of the proposed revised Ordinance, along with the City's markups, was made available to some members of the Waterfront Commission. While there were no substantive changes, a number items that the Waterfront Commission had voted to change seemed to have reverted back to the old text in the copy submitted by Marina Staff to the City. One such item was the boundaries of the Special Use Zone prohibiting jetski operation near the Marina. In March 2000 the Commission had voted to change 1200 feet to 1500 feet, and to include the Fishing Pier in the distance-off prohibition.

The Commission had also voted to clarify the definition of vessel length used in determining Marina fees, and part of this clarification involved using the term "extreme length" instead of "length overall," a term of art in naval architecture and yacht design which has a meaning other than what the Marina Staff and the Commission intends it to mean. This change also seems to have reverted to the previous proposal.

With these and a number of other details somewhat at odds with what the Commission had passed, it seemed appropriate to ask for this issue to be on the Commission's agenda, and for a copy of the current proposal to be included in Waterfront Commission packets for review and possible correction, and for possible Commission action that might expedite submission to Council.

So on Tuesday, April 3, more than a week before the April 11 Waterfront Commission meeting, I asked Marina Manager Cliff Marchetti to put this on the Commission's agenda as an action item.

It was no surprise that the small changes indicated by the City's markup had not yet been incorporated into this document. After all, the Marina office is understaffed, and Cliff has had to spend some time uptown dealing with non- marina-related affairs (the "library trees" being the most recent crisis).

What was a surprise, though, was the Marina Manager's reluctance to put this on the agenda, his reluctance to allow it to be an action item, and his reluctance to provide an electronic copy of the document so that I could do the legwork myself and not cost the Marina any precious staffing hours, as I had offered with my inital request for the background document.

Finally, after numerous communications and long meetings on Wednesday April 4 and Friday April 6, we agreed that the marked-up paper copy, with the City's comments whited out, would be xeroxed and distributed in the Commission's packet as hard copy.

The reason they couldn't complete the edits? According to Cliff on April 6, THEY CAN'T FIND THE FILE!

It is eleven months now since this was passed by the Waterfront Commission, and further delay is becoming an embarrassment. Perhaps there would be no reason to be particularly concerned about this, except that there's a very substantive issue at stake:

As currently on the books, the Marina Ordinance reads: "Vessels will be charged according to the length of the vessel or the length of the berth, whichever is greater." (6.20.040). Now, "length of the vessel" to virtually everyone in the commercial and recreational marine industry does not include such projections as bow rails, rudders, booms, stowed anchors, tipped-up outboard motors, and other equipment items. Yet these projections on berthed boats impose exactly the same limits on safe navigation in and out of berthing areas as solid boat hulls. It is the Waterfront Commission's intent, and we believe it is the Marina's intent as well, to charge for "extreme length" as defined by the Commission, which includes all of these projections.

There is other language in the existing Municipal Code (6.20.160) that clarifies this intent, but this part of the Code also restricts "overall length" to only two feet in excess of the nominal berth length. This is probably why the Marina Staff is reluctant to initiate charges for extreme length as defined by the Commission: there are so many boats that now exceed the allowable two foot excess length that the Marina would be in violation of its own rules if it attempted to enforce these charges. The proposed revisions passed by the Commission correct this: excess length will be 10% to 20% of nominal berth length, at the discretion of the Marina Supervisor (Harbormaster). The average unbilled oversize is conservatively estimated at between one and two feet per boat. With about a thousand berths at an average of over $5 per foot, this translates to $5,000 - $10,000 per month, or $60,000 - $120,000 per year.

For every month that the Marina delays, the implementation of these charges will move back another month.

When the Waterfront Commission package arrived on Saturday April 7, it did not contain even the hand-corrected hard copy of the Marina Ordinance proposal. So we delay another month, and lose more revenue. ALL BECAUSE MARINA STAFF CAN'T FIND THE FILE.

The Commission recognizes that there have been some staff changes, and that "office management is hard." We also recognize that they're usually pretty efficient, only having lost one set of minutes (November 29, 2000) in the last year. However, this particular snafu appears to be an unusually expensive one.

One issue that came up in the context of asking for this to be an action item is the question of who sets the agenda for Waterfront Commission meetings.

Turning again to the Berkeley Municipal Code, section 3.36.060 enumerates the duties of the Waterfront Commission. The Commission is charged to:

advise the City Council on all matters relative to waterfront conservation and development and the use thereof by Berkeley residents and other users...

review all existing plans, policies, programs and projects on or affecting the area of the City known as the waterfront...

advise the City Council annually on the rates to be charged for services rendered at the Berkeley Marina...

Now we look at the Brown Act, which requires that all items subject to Commission action be on the agenda and available to the public in advance of the meeting.

If Marina Staff can block an agenda item that falls within the Commission's mandate, then they can effectively prevent or delay the Commission from taking action on that item. Clearly, the only reasonable interpretation of the Brown Act and the Commission enabling legislation, taken together, is that Commissions MUST be free to set their own agenda.

If staff is unable to provide requested background documents, that's one thing. But an extra-legal staff veto of an agenda item - or the downgrading of an action item to a discussion item - is a serious subversion of the intent of the Municipal Code that created the Commission, and there's no good reason for staff to engage in this tactic.

Unless, of course, the dog ate the Marina Ordinance...

Update on Monday, April 9: Marina Ordinance found!

It's chewed up, but still readable. We'll see if copies can get into the hands of the Waterfront Commission in time for action at the April 11 meeting.