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By Lillian Boyd
A judge denied an emergency request to put a halt on slip fee increases that went into effect this month, citing a demonstrated “lack of urgency.”
The complaint, which was filed on behalf of former and current slip renters who had slips as of June 21, sought a temporary restraining order (TRO) against the Dana Point Harbor Partners from imposing the original increases. It also alleges that the increases are a violation of the lease agreement the Harbor Partners have with the County of Orange, the Dana Point Tidelands Grant, and state law. The plaintiffs are referred to in the lawsuit as N. Papageorges, D. Groves and A.J. Montrella.
The lawsuit argues that the new slip fees are not reasonable, nor do they represent market-rate pricing. Leadership with two boater groups, the Dana Point Boaters Association (DPBA), as well as Save Our Slips (SOS), asserts that the methodology is not compliant with the Dana Point Tidelands Trust. Both the DPBA and SOS have funded legal representation for the lawsuit, retaining Dennis Winters with Winters Law Firm. Dennis Winters’ spouse, Victoria Winters, sits on the DPBA Board of Directors.
The defendants’ responding memorandum states that of the 2,409 boaters in the harbor, seven have indicated they would terminate their lease agreement. It also counterargues that the Tidelands Grant contains no language regarding fees and methodology.
On June 21, tenants of the Dana Point Harbor Marina received notice that there would be slip rate increases. While boaters anticipated increases for an ultimate revitalization of the harbor, the jump in price came as a shock to some.
“Our contention is that the Harbor Partners used a formula of their own to determine market rates,” said Wayne Addison, of SOS.
When Dana Point Harbor Partners took over as lessees for the county-owned land in October 2018, it was understood that changes would come to both the marina and landside. The push for a revitalization had begun decades ago and an agreement finally came to fruition: The Partners would invest $330 million into the harbor.
On Oct. 1, boaters with 55- and 60-foot vessels saw the biggest price increase of 96% (or a little more than $1,000 above their current fees). For slip sizes less than 30 feet, tenants have seen an increase of about 26%. For the 25-foot vessel, there is to be about an additional $90.
“Dana Point Boaters Association (DPBA), and most boaters in Dana Point, strongly disagree with the very large slip rate increase announced effective October 1, 2021, the rationale used to justify the increase, and the methodology cited for the increase,” DPBA President Anne Eubanks wrote in a letter to Orange County Board Supervisor Lisa Bartlett.
Bartlett, whose district represents Dana Point, played a prominent role in finalizing the lease agreement with the Harbor Partners in 2018—as the county owners the Harbor, and Bartlett sought to create a public-private partnership for harbor management.
In a letter dated Sept. 21, Bartlett states that while the county is cognizant that Eubanks may not support the slip increases, the fee hike is consistent with the terms of the Tidelands Grant.
“(The slip rate increases) are necessary to support the forthcoming revitalization of Dana Point Harbor…” Bartlett wrote. She added, “Please know that County staff have worked closely with DPHP throughout this process and verified that the proposed rate increase is within the market rates, not only in Orange County, but also for Southern California.”
Bartlett’s letter goes on to state that county staff and counsel have reviewed both the lease with DPHP and the Tidelands Grant and confirmed there is no conflict.
Dana Point Harbor Partners have reportedly provided county officials with a rate comparison that included marinas from San Diego through Los Angeles (the Southern California market to which opponents of the slip increase had referred).
In addition to the lawsuit, boaters have organized two demonstrations, fundraised and spoken at meetings since learning about the increases. Most recently, about a dozen demonstrators gathered near the Ocean Institute on Sept. 29 in light of Dana Point’s State of the City 2021 event—where Bryon Ward, one of the Dana Point Harbor Partners, was a panelist.
A plaintiff pursuing a TRO in civil cases is tasked with detailing either how they will prevail or how they will be irreparably harmed without injunctive relief.
Attorneys representing the defendants—the Harbor Partners and the County of Orange—filed a responding memorandum on Wednesday, Oct. 6, stating that the plaintiffs never actually served the summons or complaint to the defendants, nor had they demonstrated the harm plaintiffs would experience as a result of the increased fees. The memo also argues that the plaintiffs did not meet the burden of proof pertaining to the TRO.
In a minute order dated October 8, the presiding Judge Glenda Sanders stated in her decision that the plaintiffs had not demonstrated in their request that there would be irreparable harm or immediate danger.
“The court’s finding that urgent, ex parte relief is not justified is based in part on the fact that, as plaintiffs themselves state in their moving papers, the proposed slip rate increase was ‘announced June 21, 2021…’ ” Judge Sanders wrote in her ruling.
The increased fees went into effect October 1.
“And yet plaintiffs waited until October 4, 2021 to file this ex parte motion when they could have brought a properly noticed motion in June or July 2021, several months before the proposed increased slip rates were to take effect,” Sanders wrote.
While the court declined to grant emergency relief, Sanders clarified that she was not making a ruling on the overall lawsuit—in which she would consider the merits of after a properly noticed motion is served to all defendants in accordance with civil law procedure.
The lawsuit’s next hearing is set for Friday, Nov. 5.