Case 3:20-cv-06791-JCS Document 7 Filed 09/30/20 Page 1 of 3 UNITED STATES DISTRICT COURT Py hows forthe Northem District of California RECEIVED CT = ROBYN LYNN KELLY } OCT - 6 2020 ) ARN coun ; BOARD OF SUPERVISORS Plaintifis) ) .. ) Civil Action No, 20-cv-6791 JCS RICHARDSON'S BAY REGIONAL AGENCY, ) ‘CURTIS HAVEL ) ) ) Defendans) ) SUMMONS IN A CIVIL ACTION ‘To: (Defendant's name and address) RICHARDSON'S BAY REGIONAL AGENCY 3501 Civic Center Drive, Room 308 San Rafael, CA 94903 SEE ATTACHMENT A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of, the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintif?’s attorney, ‘whose name and address are: BERSCHLER ASSOCIATES, PC ‘Amold |, Berschler 22 Battery Street, Suite 810 San Francisco, CA 94111 Tel. 415 398 1414 Ifyou fail to respond, judament by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. ‘Susan ¥. Soong MWhide J ‘Signature of Clerk or Deputy Clerk Date: 09/30/2020Case 3:20-cv-06791-JCS Document 7 Filed 09/30/20 Page 2 of 3 To (Defendant's name and address) ‘CURTIS HAVEL 3501 Civic Center Drive, Room 308 San Rafael, CA 94903Case 3:20-cv-06791-JCS Document 7 Filed 09/30/20 Page 3 of 3 ‘AO 440 (Rev. 0612) Summons in Chit Action Page 2) No, 20-cv-6791 JCS PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 () ‘This summons for (name of individual and tle, i any) ‘was received by me on (date) F [personally served the summons on the individual at (place) on (date) sor (0 Left the summons at the individual's residence or usual place of abode with (name) a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or 1 T served the summons on (name of individual) = who is designated by law to accept service of process on behalf of (name of organization) oon (date jor 1D I retumed the summons unexecuted because sor OF Other (specif My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: ‘Server's signature Printed name and tte Server's address Additional information regarding attempted service, ete19 20 2a 22 23 24 EF 28 Case 3:20-ev-06791-JCS Document 1 Filed 09/29/20 Page 1 of 24 BERSCHLER ASSOCIATES, PC Amold I. Berschler (SBN 56557] 22 Battery Street, suite 810 San Francisco, CA 94111 Tel. 415 398 1414 Attorneys for ROBYN LYNN KELLY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, ROBYN LYNN KELLY, Case No.: Plaintiff, COMPLAINT FOR DAMAGES RICHARDSON’S BAY REGIONAL AND FOR INJUNCTIVE RELIEF AGENCY, CURTIS HAVEL, [Jury Trial Request] Defendants. Robyn Lynn Kelly complains against the defendants for damages, alleging the following in support. JURISDICTION AND VENUE 1. Original Jurisdiction: Certain of Plaintiff's causes of action arise under 28 U.S.C. §§ 1331 and §§1343(a); et seq. because such are brought to obtain compensatory and punitive damages, injunctive relief and attorney fees, pursuant to 42 U.S.C. §§ 1983 and 1988, for the deprivation under color of state law, of the rights of Plaintiff, a citizen of COMPLAINT FOR DAMAGES AND FOR INIUNCTIVE RELIEF CIVIL No. ~1 12 13 4 15 24 25 26 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 2 of 24 the United States, secured by the U. S. Constitution, Amendments IV, V and XIV, §1. 1367(a), the Honorable 2. Pendent/Supplemental Jurisdiction: pursuant to 28 U.S.C. § Court has jurisdiction over certain of Plaintiff's causes of action that are based upon the laws and the constitution of the State of California. Such causes of action arise out of the| same nucleus of facts, and point to the same party-defendants, as are complained in the original jurisdiction causes of action. Further, Plaintiffs’ causes of action invoking the Court’s original jurisdiction are meritorious, and the harm complained is substantial Wherefore, this Honorable has the discretion to undertake jurisdiction over said pendent causes of action, which jurisdiction Plaintiff now respectfully request the Court to invoke. 3. Intra-district Assignment: Assignment of this action to the SAN FRANCISCO. DISTRICT is appropriate because: a) All of the events or omissions which give rise to the claim occurred in Marin County, California, b) All parties reside in and/or are found generally in Marin County, California, JURY TRIAL REQUEST 4. Plaintiff Robyn Lynn Kelly requests a jury trial in this action, PARTIES: 5. Robyn Lynn Kelly is an adult and otherwise competent to sue. At all relevant times, she was a citizen of the United States, and was domiciled in the State of California. 6. Atall relevant times, Robyn Lynn Kelly owned a pleasure vessel (Hereinafter, “subject vessel”), which was seaworthy or was reasonably fit or capable of being made fit fo be used as a means of transportation by water. (Robyn Lynn Kelly alternatively is referred COMPLAINT FOR DAMAGES AND FOR INIUNCTIVE RELIEF CIVIL No.16 Pe 18 19 20 aa 10. Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 3 of 24 to in this Complaint as “Ms. Kelly.”) Richardson's Bay Regional Agency (hereinafter, alternatively, “RBRA”) ! is a State of California public entity originally formed in 1985 under a joint powers agreement (1985 RBRA Agreement” hereinafter) by Marin County, the Cities of Sausalito, Belvedere, Mill Valley and Tiburon, said joint powers agreement being reconstituted and/or renewed in 2000 (“2000 RBRA Agreement”), pursuant to Article 1, Chapter 5, Division 7, Title I of the California Government Code. (Govt. Code, §§6500; et seq.) Atall relevant times, Curtis Havel (altematively, “Mr. Havel”) was employed by RBRA. as its harbormaster. CALIFORNIA GOVERNMENT CODE ADMINISTRATIVE PROCEDURE Ms, Kelly’s complained of injuries and damages arose out of the wrongful designation and posting of her subject vessel as alleged “marine debris” continuing through its seizure, then destruction in a period commencing on or about November 14, 2019 and extending through on or about December 2, 2019. Plaintiff filed her administrative claim for damages with the RBRA on February 14, 2020. On March 30, 2020, RBRA rejected her claim. Subsequently, on or about August 3, 2020, Ms. Kelly filed her amended administrative claim (a true correct copy is attached as EXHIBIT 1, and incorporated by reference.) RBRA rejected that amended claim, asserting the six-month period in which to file causes of action under the California Government Code in a California state court continued to be September 30, 2020. Richardson’s Bay Regional Agency also is known as Richardson Bay Regional Ageney. COMPLAINT FOR DAMAGES AND FOR INIUNCTIVE RELIEF CIVIL No. ~an 12 33 14 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 4 of 24 GENERAL FACTUAL ALLEGATIONS Evolution of Enforcement Mechanisms Controlling Uses in Ri ison Bay 11. World War II turned a relatively nonindustrial San Francisco Bay, especially Richardson| Bay abutting Marin City, and Richmond into a shipbuilding powerhouse. “In the decade prior to 1940, America’s shipyards launched only 23 ships. In the five years after 1940, American shipyards launched 4,600 ships. San Francisco Bay Area shipbuilders produced almost 45 percent of all the cargo shipping tonnage and 20 percent of warship tonnage built in the entire country during World War II. The war lasted 1,365 days. In that span of time Bay Area shipyards built 1,400 vessels--a ship a day, on average.” An enormous surge of building along the waterfronts of the bay caused in-filled marshes, disrupted tidal lands, excavated hills to build flatlands. > By the late 1950s in- fill of the Bay had become alarming. In 1961 three Berkeley women formed what now is} called the Save The Bay organization, leading to the formation in 1965 of the state commission, San Francisco Bay Conservation & Development Commission (“BCDC”). BCDC’s ongoing primary missions are to preserve marsh, tideland, to encourage recapture and conversion of filled land back to nature, and to improve public access to waters. © 12, In the early 1980s, all of the municipalities surrounding Richardson Bay jointly studied Sce, hitps:!/www.nps.gov/nr/travelwwIbavarea/shipbuilding him. Judicial notice requested “As Charles Wollenberg writes in “Marinship at War: Shipbuilding and Social Change in Wartime ausalito,” by April, earthmoving equipment was tearing down a hill overlooking the northern Sausalito waterfront, edgers were creating a deep-water channel in Richardson Bay, and work had begun on 21 buildings and six hipways. See, hips. /ww.sfehroniclecom/chronile_ vaulVatile/Marin-County-sbi sier-15146163 php Judicial notice requested. “ Created pursuant to the Mcdteer-Petris Act (Gov C $§ 66600 et seq Judicial Notice Requested $ Sec, http:/wur beds ca zoviaboutus/ Judicial notice requested. (COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No, -13. 14. 15. Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 5 of 24 the water quality and uses of Richardson Bay, producing a plan proposing policies for regulating uses in the future, a plan titled Richardson Bay Special Plan (April 1984] (Special Plan”). © Such Special Plan referenced and defined “anchor-out’ vessels. ‘The 1985 RBRA Agreement was the formal adoption of the proposals of policies in the Special Plan. The 1985 RBRA Agreement treated anchor-outs as a problem preferably to be eliminated or ameliorated if the population could not be eradicated. ‘The passage of the Cortese-Knox-Hertzherg Local Government Reorganization Act of 2000 (Govt. Code, §§50000; et seq.) enabled the formation of a subdivision of the State of California known as the Marin Local Agency Formation Commission (Hereinafter, “MLAKCO.”) Further, MLAFCO determined RBRA to be local agency of Marin County whose Sphere of Influence (“SIO”) was to be defined. . Concurrent with the implementation of Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Marin County, the Cities of Sausalito, Belvedere, Mill Valley, and Tiburon entered the 2000 RBRA Agreement, which was essentially a revision of the 1985 RBRA Agreement. Core policies of the 1985 RBRA Agreement were incorporated in the 2000 RBRA Agreement, Included in those core policies was the antipathy toward anchor-outs. Additionally, included was the status of the Harbormaster as a peace officer. . The one of the subjects of regulation under the 2000 RBRA Agreement concemed anchored-out vessels (or “anchor-outs”) upon the Richardson Bay ("subject waters"), among other categories of regulation, "Anchored-out” meaning watercraft that were © See, https:/"bede.ca.gov/planning/reports/RichardsonBaySpecialAreaPlan_Apr1984,pdf Judicial notice Fequested, COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. -u 12 13 14 24 25 26 27 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 6 of 24 ‘moored by anchors to the bay-bed or by line to stationary mooring balls, away from ‘marinas or piers, for extended periods of time, e.g. 30 consecutive days. 17. On July 9, 1987 RBRA enacted Ordinance 87-1, which addressed control over watercraft afloat upon the subject waters, including houseboats, live-a-board vessels, and their moorings, particularly property rights appurtenant to privately owned mooring balls. 7 Ordinance 87-1 provided for due process in matters of anchoring and mooring; specifically providing for written notice to correct a condition, and an appeals process, i an,". .. exception to the determination of the Harbor Master as stated in the notice may file a written appeal of the Harbor Master's decision to the Board of the Richardson Bay Regional Agency or its designee within fifteen (15) days of issuance of the notice.” 18, Attached hereto as EXHIBIT 2 is a true correct copy of Ordinance 87-1. Plaintiff incorporates said exhibit herein by reference as if fully set forth at length. Judicial notice requested. 19, Further due process is provided through a path for injunction against practices of vessel owners to which RBRA took exception. See, EXHIBIT 2, p. 5, §11, Injunctive Relief. 20. On February 5, 1991, RBRA enacted Ordinance 91-3 [sic], which amended Ordinance 87-1, in part, through the device of amending Ordinance 91-1, which itself had flowed back to and amended No. 87-1. The No. 91-3 amendment, in its Section 2, inserted subsection (e) into Ordinance 87-1, §4. This subsection 4(e) gave the Harbormaster the power to enter any vessel this peace officer deemed in violation of RBRA or surrounding municipalities’ codes or regulations. Importantly, No. 91-3, §2, at p. 3 Such objects are hollow metal spheres floating upon the surface, anchored tothe subject water's bed. Th halt has metal loops (“eyes”) to which a vessel’s mooring lines ean be attached. COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. ~~2a 25 26 27 28 2 22, 23. Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 7 of 24 provided that no harbormaster or their deputies may enter or seize any vessel without first obtaining a warrant, if the owner was uncooperative. “Once the Harbor Master or his authorized representative has obtained a proper inspection warrant or other remedy provided by law to secure entry . . .” Ibid. A true correct copy of said Ordinance 91-3 is attached as EXHIBIT 3, and made part hereof as if fully set forth sat length. Judicial notice requested. On June 13, 1991 RBRA enacted Ordinance 91-1 [sic], * which amended Ordinance 87-1, but did not affect the mandate to obtain a warrant, set out in No, 91-3. A true correct copy of said Ordinance 91-1 is attached ass EXHIBIT 4, and made part hereof as if fully set forth sat length. Judicial notice requested On July 29, 1991, RBRA in enacting Ordinance 91-2 [sic], Section 15 ° provided for due process; giving RBRA the power of nuisance remedy (i.e. injunction) in all cases where nuisances existed, “nuisances” being defined in part as: “The keeping, storage, depositing or accumulation on, or attachment to, a vessel, barge or object, for an unreasonable period, of any personal property, including but not limited to abandoned, wrecked, dismantled or inoperative boats...” /d., at p. 1 Ordinance No. 91-2 provided for complex due process procedures, including notice of hearing before the RBRA hearing board, procedures at hearing (recording of testimony, evidence rules, right of vessel inspection), written findings of fact, and the right to appeal to the courts of California. A true correct copy of said Ordinance 91-2 is attached © PlaintiPhas not been able to deter the solution to the apparent anomaly of this ordinance fumbering, considering its dating * PlaintifThas not been able to determine the solution othe apparent anomaly ofthis ordnance numbering, | sonsidering its dating. (COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. —20 au 22 23 24 25 26 27 28 COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. Case 3:20-cv-06791-JCS Document1 Filed 09/29/20 Page 8 of 24 as EXHIBIT 5, and made part hereof by reference as if fully set forth sat length. Judicial notice requested, 24, Atall relevant times after 1991, RBRA codified its various ordinances, including inter alia ordinances 87-1, 91-2, 91-3 into a single code consisting of six titles, Richardson's Bay Regional Agency Code, a true correct copy of which is attached as EXHIBIT 6 and incorporated herein by reference. Judicial notice requested. (Said code hereinafter, “RBRA Code.”) 25. The RBRA Code incorporated the preexisting due process requirements of Ordinance nos. 87-1, 91-2, 91-3, infer alia, the requirement of obtaining a warrant to board and search or seize a vessel. See, RBRA Code, Title 2, Chap. 2.04, Harbor Master [sic], §2.040.010(e). 26, By reason of the foregoing premises and at all relevant times, RBRA had @ policy that no generally occupied floating anchor-outs, which were anchored, could be searched and/or seized without first obtaining a warrant for such, save in instances of emergency. Obtaining a warrant in non-exigent circumstances, was a work rule for its Harbormaster, 27. In addition to the above said ordinances, at all relevant times, RBRA could resort to the law enforcement tools within Harb. & Nav. Code, Div. 3, Chap. 3 Art. 1, Wrecks And ‘Wrecked Property, §§510; et seq. to eliminate publie safety hazards. See, Harb. & Nav. Code, §523(a)(5){"When the vessel interferes with, or otherwise poses a danger to, navigation or to the public health, safety, or welfare.”]; also, see, Harb. & Nav. Code, §523(a)(6)[“When the vessel poses a threat to adjacent wetlands, levies, sensitive habitat, any protected wildlife species, or water quality.”] 28. On information and belief, at all relevant times through year 2015, RBRA employed4 15 16 ri 18 an 22 23 24 25 26 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 9 of 24 California Harbors and Navigation Code, Division 3. Vessels, Chapter 3. Wrecks and Salvage, and its own ordinances to effect its policy of removing anchor-outs from RBRA waters. 29. On January 1, 2016, Harb. & Nav. Code, Div. 3, Chap. 3 Art. 3, Marine Debris, §§550; et. seq. became effective, providing RBRA with another statutory toolset to control the subject waters. 30. Atall relevant times, RBRA Code incorporated the Harb. & Nav. Code, §550(a) definition of vessel 31. Atall relevant times, RBRA Code ignored the definition of “marine debris” found in Harb. & Nay. Code, 550(b). 32. Atall relevant times, when seizing and removing vessels from subject waters, RBRA and Curtis Havel each have searched and/or seized such vessels pursuant to an RBRA custom and practice that used the police powers granted pursuant to Harb. & Nav. Code, §551(a), §551(b), but applied RBRA’s own definition of what property was subject to §551, which definition was much broader and impermissibly vague; including cosmetic appearance and matters not constituting unseaworthiness; viz.: . .. bilges are free of il; no loose debris or materials on deck ... vessel is free of excessive marine growth .”; see, RBRA Code, § 1.040.020 Definitions, at p. 2. 33. Atall relevant times when applying §551(b), both RBRA and Curtis Havel searched and/or seized vessels in subject waters, which vessels did not meet the definition of “marine debris in §550(b). Ad nally, said vessels were not any danger to public safety, and were not obstructing navigation. 34, Robyn Lynn Kelly is informed believes and alleges that RBRA, Curtis Havel and other ‘COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No.35, 36. 37. 38, 39. (COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. ~ Case 3:20-ev-06791-JCS Document 1 Filed 09/29/20 Page 10 of 24 RBRA peace officers will continue to search and seize vessels upon subject waters through the above complained misuse of the police power granted in Harb. & Nav. Code, §551(a), 551(b), pursuant to policy, custom and practice. Plaintiff Kelly further alleges that RBRA’s and Curtis Havel’s above said policy, custor and practice at all relevant times in the past, and for the foreseeable future will unlawfully destroy or otherwise convert vessels owned or occupied by Plaintiff Kelly to her injury and damage. Moreover, Defendants’ complained policies, customs and practices foreseeably will proximately cause injury and damage to other owners or ‘occupiers of anchor-outs in subject waters, which vessels are not subject to Harb. Nav. Code, §§550; et seq. In 1995 William “Bill” Price began employment as RBRA’s Harbor Administrator also termed “Harbor Master” or “Harbormaster.” Atall relevant times, pursuant to RBRA’s policies, written and/or pursuant to its custom. & practice, Mr. Price’s duties included, inter alia, removing and causing to be removed from Richardson Bay anchor-out vessels that he, in his discretion, deemed problematical, including without limitation vessels he decided were unseaworthy, using RBRA’s overbroad vague definition or and/or were allegedly abandoned vessels. Mr. Price, left RBRA employment in July 2019, and Curtis Havel replaced him as Harbormaster. On information and belief, at all relevant times RBRA policy, custom and practice was that when hiring harbormasters it neither insured that such were sufficiently trained to be competent peace officers, including requisite knowledge of laws, nor did RBRA attempt to cause its harbormasters to become so competent after hiring, 10a 12 43 14 15 16 7 18 20 an 22 23 24 25, 26 28 40. 42. al. 43. COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 11 of 24 On information and belief, at all relevant times, Harbormaster Havel was not sufficiently trained to be a competent peace officer, including requisite knowledge of laws, and was incompetent in such duties. Atall relevant times, Defendant Havel adopted and employed the above complained policies, customs and practices that Mr. Price had followed. . On information and belief, in March 2019, RBRA received funding enabling it to expand resources, which RBRA used to pursue ridding anchor-outs more aggressively from subject waters. '" Atall relevant times, Harbormaster Curtis Havel and RBRA implemented RBRA’s overall program to eliminate anchor-outs more vigorously than had Mr. Price, including without limitation a policy, a moving force, to aggressively expand the definition of “marine debris” so broadly as to encompass cosmetic appearance and otherwise violate the scope of police power under §550(b). Said conduct including but not limited to: (1) boarding anchor-out vessels without consent, warrant or exigent circumstances, at least once in 2020, while the owner was aboard then refusing to disembark at the owner’ request, proximately causing a violent confrontation, including battery, between Defendant Havel and the owner. (2) Causing the seizure and destruction of a vessel, not subject to §550(b), and without a warrant, when actually knowing the owner live-aboard was ashore arraigning for a marina berth in 2020, and there were no exigent circumstances. (3) Causing multiple seizures of multiple vessels that were not subject to §550(b), © Seo, htips:/vww marinij,com/2020/01/13/state-prods-marin-authorty-to-abate-anchor-outs). Judicial hhotice requested. aCase 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 12 of 24 and without a warrant, or exigent circumstances at all relevant times. 44, Mr. Havel and RBRA did so violate the scope of police power under §550(b) knowingly and intentionally at all relevant times. 45. Atall relevant times, the United States Army Corp of Engineers (“ACOE”) had a principal set of docks and piers on City of Sausalito’s waterfront. ACOE’s mission was, in part, to remove perceived hazards to navigation from waters over which the United States had co-existent jurisdiction in the San Francisco Bay Area, including Richardson Bay, at all relevant times. 46, Atall relevant times, one particular ACOE dock, known as the “debris dock,” together with its adjacent launching ramp, was a site at which RBRA would cause problematic vessels to be towed, dragged up the ramp by having an excavator bite into the vessel, destroying it, and the remains disposed. RBRA Seizes and Summarily Destroys Pl 's Vessel 47. On or about November 14, 2019, Cutis Havel boarded Robyn Lynn Kelly’s subject vessel without her consent, and without warrant, posted upon its weather-deck structure (“salon”) an alleged 10-day notice pursuant to Harb. & Nay. Code, §551((a)(1)(B), which commanded her to remove the vessel from subject waters. A true correct copy of said notice is attached hereto as EXHIBIT 7, and is incorporated herein by reference as if fully set forth. 48, On or about November 18, 2019, Cutis Havel caused a true correct copy of EXHIBIT 7 & to be mailed, certified, without Ms. Kelly’s name as part of the address, which proximately caused the notice never to be delivered. At all relevant times, Harbormaster Havel knew Ms. Kelly's name. (COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. == a21 12 13 as Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 13 of 24 49. On or about December 2, 2019, Curtis Havel, himself, and with the help of others who were working as RBRA’s agents at Curtis Havel’s direction, caused the subject vessel to| be unfastened from its mooring, towed to the ACOE debris dock and summarily immediately destroyed within ten days of seizure. 50. At all relevant times, the subject vessel did not meet the definition of “marine debris $550(b)., 51. Atall relevant times, the subject vessel did not meet the mandatory criteria in §551(b). 52. Atall relevant times before and on December 2, 2019, Ms. Kelly’s subject vessel was her domicile, containing her clothing, papers, and other personal effects, including, priceless irreplaceable family memorabilia. 53. At all relevant times prior to and on December 2, 2019, Curtis Havel actually knew that Ms. Kelly’s subject vessel was her home, her domicile. 54, Atall relevant times after December 4, 2019, Robyn Lynn Kelly has continuously owned and occupied another vessel as an anchor-out in Richardson Bay, with plans to continue to do so. Injury and Damage 55. By reason of and as legal result of the foregoing premises, the destruction of her vessel- home proximately caused Ms. Kelly injury and damage, for which Defendants are liable’ i) The loss of the reasonable market value of the said vessel. ii) The loss of the reasonable value of use of said vessel. iii) The loss of the reasonable market value of her personal property. 56. By reason of and as legal result of the foregoing premises, the destruction of her vessel- home proximately caused Ms. Kelly injury and damage, for which Defendants are liable; COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. —~ 1318 19 20 aa 22 24 25 26 27 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 14 of 24 i) By causing her to become homeless. ii) By causing her humiliation and suffering. iii) By causing her to retain an attorney, incurring attorney fees. FIRST CAUSE OF ACTION IRBRA, Havel: 42 U.S. §§1983, 1988 — Fourth Amendment Violation] 57. Plaintiff incorporates herein the allegations within above sections Jurisdiction and Venue, Jury Trial Request, Parties, California Government Code Administrative Procedure, and General Factual Allegations as if each were fully set forth at length. 58. The United States Constitution, Amendment IV provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, andl the persons or things to be seized.” Such are civil rights to which Ms. Kelly was entitled at all relevant times. 59, Through the seizure of the subject vessel, the above-referenced defendants wrongfully deprived Plaintiff of her Fourth Amendment civil rights in the following ways: i) Plaintiff was entitled to have the subject vessel be free from seizure unless there was a validly issued warrant therefor. ii) No warrant was obtained to support the seizure; although, said defendants had ample time to secure such. iii) No circumstances of emergency or public health, safety and/or welfare existed to justify a departure from the mandate that a warrant must have been secured before the! seizure, COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. 4Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 15 of 24 iv) Knew, or as a competent peace officer ought to have known, that he had to obtain a ‘warrant because there was no basis not to do so before having the subject vessel towed to the ACOE debris dock. v) Misapplying RBRA’s broad vague definition of what vessels qualified to be seized when implementing its police powers under §551(b). vi) Disobeying RBRA’s work rule policy of obtaining a warrant. vii) RBRA acquiesced in its Harbormaster’s deliberate intentional misapplication of Harb. & Nav. Code, §551 and RBRA Code as above discussed. 60. RBRA’s official policy of failing to abide by the laws under which seizure were effected, Hab. & Nav. Code, §§550; et seq., including mislabeling as alleged “marine debris” seaworthy vessels such as Ms. Kelly’s was a moving force causing the complained violation of Fourth Amendment rights. 61. Defendants’ violation of Ms. Kelly's said rights under the Fourth Amendment of the Constitution of the United States legally caused her to suffer the above said injury and damage, the extent of which now is not precisely known, wherefore, Plaintiff prays for leave to insert such amount when ascertained. 62. By reason of the foregoing Plaintiff is entitled to an award of punitive damages against Curtis Havel, to act as a warning to similarly situated peace officers enforcing Harb. & Nav. Code, §§550: et seq. WHEREFORE, Plaintiff prays damage against each defendant as appears below. SECOND CAUSE OF ACTION IRBRA 42 U.S.C., §§1983, 1988 — Fifth Amendment Violation, Taking] 63. Plaintiff incorporates herein the allegations within above sections Jurisdiction and COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No.20 21 22 23 24 25 26 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 16 of 24 Venue, Jury Trial Request, Parties, California Government Code Administrative Procedure, and General Factual Allegations as if each were fully set forth at length. 64, The United States Constitution, Amendment IV provides, in part, “No person shall be .. deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 65. Ms. Kelly can and now does pursue RBRA, under 42 U.S.C., §1983, for a taking claim under the Fifth Amendment without first having to exhaust state-based remedies. Knick v Tup. of Scot, US._ 1398. Ct. 2162,| 204 L. Ed. 2d 558 (2019), 2019 U.S. LEXIS 4197, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. 8. 172 (1985). The taking’s particulars being: i) Through the seizure of the subject vessel, Defendant RBRA wrongfully directly deprived of her rights under the Fifth Amendment, and s liable in damages pursuant to the doctrine established in Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), in the following ways: ii) RBRA did not attempt to take the subject vessel through eminent domain proceedings. Instead, RBRA misapplied Harb, & Nav. Code, §551 as an inexpensive, quick bypass. iii) RBRA took the complained vessel, and whether it offers to compensate Plaintiff is not relevant to a §1983 action premised upon the Takings Clause of the Fifth Amendment. iv) RBRA did not pay compensation prior to the seizure. [“A bank robber might give the loot back, but he still robbed the bank.” Knick, supra, at 11; “Our holding that uncompensated takings violate the Fifth Amendment will not expose governments to COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. == 16u 12 13 14 24 25 26 2 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 17 of 24 new liability; it will simply allow into federal court takings claims that otherwise would have been brought as inverse condemnation suits in state court, “Id., at 23.] v) RBRA has not compensated Ms. Kelly, and insists no compensation is due. 666. By reason of the foregoing premises and as a legal result thereof, Plaintiff has been specially damaged, in sums according to proof, for which damage, and others as may apply, RBRA is, liable. WHEREFORE, Plaintiff pray for judgement against RBRA as prayed below. ‘THIRD CAUSE OF ACTION IRBRA, Havel: Due Process Violations — U.S. Const., Amend. 14; Cal. Const., Art. 1, §7(a)] 67. Plaintiff incorporates herein the allegations within above sections Jurisdiction and Venue, Jury Trial Request, Parties, California Government Code Administrative Procedure, and General Factual Allegations as if each were fully set forth at length. 68. U.S. Const., Amend. 14, §1 grants to Ms. Kelly the following civil rights: All persons bor or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 69. For RBRA and Harbormaster Havel to comply with due process when exercising police powers under Harb, & Nay, Code, §551(b), the defendants must restrict their action to only “marine debris,” which Harb, & Nav. Code, §550(b) defines: “Marine debris” is a vessel or part of a vessel, including a derelict, wreck, (COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No.14 as 16 7 1a 20 21 22 23 24 25 26 a7 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 18 of 24 hulk, or part of any ship or other watercraft or dilapidated vessel, that is unseaworthy and not reasonably fit or capable of being made fit to be used as a means of transportation by water. 70. Because of RBRA’s and Mr. Havel’s polices, customs and practices as moving forces, RBRA and Mr. Havel applied their own sweeping vague definition to Ms. Kelly’s vessel because of its cosmetic appearance, whereby Defendants violated Harb. & Nav. Code, Div. 3, Ch, 3, Art. 3, Marine Debris; thereby depriving Ms. Kelly of due process all to her injury and damage for which the defendants are liable. 71, For RBRA and Harbormaster Havel to comply with due process when exercising police powers under Harb. & Nav. Code, §551(b), the defendants were required to comply with the post-seizure safe harbor provision of Art. 3, Marine Debris, which provides both that notice of intent to seize be mailed to the vessel owner, and that such notice state: “A notice sent to the owner shall contain the information specified in subparagraph (A), and further state that the marine debris will be removed and disposed of within 10 days if not claimed, and that the marine debris may be claimed and recovered upon the payment of the public agency’s costs. Harb. & Nav. Code, §551(a)(2)(B). 72. Because of RBRA’s and Mr. Havel’s polices, customs and practices as moving forces, RBRA and Mr. Havel violated Ant. 3, Marine Debris when these defendants caused the subject vessel to be destroyed immediately upon being seized, well within ten days of seizing, thereby depriving Ms. Kelly of due process all to her injury and damage for which the defendants are liable. 73, Because of RBRA’s and Mr, Havel’s polices, customs and practices as moving forces, COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No, 18Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 19 of 24 1 RBRA and Mr. Havel violated Art. 3, Marine Debris in that these defendants at all relevant times failed to provide the safe harbor notice to Ms, Kelly, thereby depriving. Ms. Kelly of due process all to her injury and damage for which the defendants are liable. 6 74. Because of RBRA’s and Mr. Havel’s polices, customs and practices as moving forces, when Defendants seized the subject vessel in the manner complained, RBRA and Mr. 8 Havel have violated Ms. Kelly’s California Constitutional right of due process in ° California’s Constitution, Art, 1, §7(a), all to her injury and damage for which the : defendants are liable. 75. Defendants’ violation of Ms. Kelly’s said rights under the Fourteenth Amendment of aS the Constitution of the United States legally caused her to suffer the above said injury “ and damage, the extent of which now is not precisely known, wherefore, Plaintiff prays, a5 te for leave to insert such amount when ascertained. nu 76. Defendants’ violation of Ms. Kelly's said rights under Art. 1, §7(a) of the Constitution 18 of the State of California legally caused her to suffer the above said injury and damage, a the extent of which now is not precisely known, wherefore, Plaintiff prays for leave to ° insert such amount when ascertained. Pa 77. By reason of the foregoing Plaintiff is entitled to an award of punitive damages against 23 Curtis Havel, to act as a waming to similarly situated peace officers enforeing Harb. & a Nav. Code, §§550: et seq. * FOURTH CAUSE OF ACTION : IRBRA, Havel: negligence - Govt. Code] 28 78. Plaintiff incorporates herein the allegations within above sections Jurisdiction and COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. 1910 al 12 18 1s 20 21 22 23 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 20 of 24 Venue, Jury Trial Request, Parties, California Government Code Administrative Procedure, and General Factual Allegations as if each were fully set forth at length. 79. RBRA owed to Ms. Kelly duties of care to apply the Harb. & Nav, Code, §§550; et seq and companion RBRA Code lawfully, which RBRA did not, negligently breaching its duties in the premises. 80. Defendant Havel owed to Ms. Kelly duties of care to apply the Harb. & Nav, Code, {§§550; e seq, and companion RBRA Code lawfully, which he did not, negligently breaching his duties in the premises. 81. By reason of the foregoing premises and as a legal result thereof, Plaintiff has been specially damaged, in sums according to proof, for which damages, and others as may apply, these defendants are liable 82, Defendants’ said negligence legally caused Ms. Kelly to suffer the above said injury and| damage, the extent of which now is not precisely known, wherefore, Plaintiff prays for leave to insert such amount when ascertained. WHEREFORE, Plaintiff pray for judgement against these defendants as prayed below. FIFTH CAUSE OF ACTION IRBRA, Havel: conversion — Govt. Code] 83. Plaintiff incorporates herein the allegations within above sections Jurisdiction and Venue, Jury Trial Request, Parties, California Goverment Code Administrative Procedure, and General Factual Allegations as if each were fully set forth at length. 84. On or about December 2, 2019, these defendants dispossessed Plaintiff of the subject vessel by destroying it and disposing of its salvage all to Plaintif’s damage for which these defendants are liable COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF25 26 27 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 21 of 24 85. Asa proximate result of converting subject vessel, the defendants injured and damaged Plaintiff, for which injuries and damages they are liable, 86. Defendants’ said conversion of the subject vessel legally caused Ms. Kelly to suffer the above said injury and damage, the extent of which now is not precisely known, wherefore, Plaintiff prays for leave to insert such amount when ascertained. WHEREFORE, Plaintiffs pray for damages against these defendants, as prayed below. SIXTH CAUSE OF ACTION IRBRA, Havel — Injunctive relief — Preliminary, Permanent] 87. Plaintiff incorporates herein the allegations within above sections Jurisdiction and Venue, Jury Trial Request, Parties, California Government Code Administrative Procedure, and General Factual Allegations as if each were fully set forth at length. 88. Defendants’ abuse of Harb. & Nav. Code, Div. 3, Chap. 3 Ant. 3, Marine Debris, §§550; et. seq. by ignoring the statutory definition of “marine debris,” substituting in place a vaguely worded standard that allows targeting and destruction of anchor-outs for cosmetic appearances has and most probably will continue in the future to result in immediate and irreparable harm to anchor-outs generally, and threatens to do so to Ms. Kelly in particular. 89, Defendants’ wrongful policies customs and practices have resulted in creating a widespread fear and anger among anchor-outs. At least one violent confrontation between an owner and Mr. Havel already has occurred. A confrontation which could readily have been avoided if Mr. Havel had followed RBRA policy in the RBRA Code by obtaining a warrant before attempting to board the owner's vessel-home. COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF 210 n 12 16 7 18 20 21 22 23 24 25 26 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 22 of 24 90. Many anchor-outs have lost their vessel homes without any reasonable opportunity to take steps to secure housing when such were summarily crushed by the RBRA at Mr. Havel’s direction. As a legal result, these persons and been forced into homelessness, not only suffering the degradation of such, but also becoming subject to ancillary harm, such as exacerbated poor physical health, even more depression than these “pandemic times” cause many persons, the loss of priceless family irreplaceable family memorabilia, and similar. 91, Defendants” wrongful policies customs and practices have resulted in creating a widespread fear and anger among anchor-outs, which has manifested in protests by anchor-outs. |! 92. The policies that Ms. Kelly respectfully prays the Honorable Court enjoin the defendant are: i) To apply the definition of “marine debris” found in §550(b), instead of applying the RBRA Code’s vague overly broad definitions of seaworthy when assessing whether a vessel is subject of §551(b) enforcement. ii) Tonot board targeted vessels in any instance solely to post a notice upon the vessel, without either the owner's permission or a warrant; rather, applying the notice to a portion of the vessel accessible without boarding (e.., its hull at points of weather deck entry, one starboard, one port). iii) To not seize vessels without the owner’s consent or warrant therefor. See, Richardson Bay jurisdictions urged to ditch anchorage agency at \tps:/www marinjj,com/2020/09/20/richardson-bay-jurisdictions-urged-to-ditch-anchorage-ageney/ Judicial notice Feauested. COMPLAINT FOR DAMAGES AND FOR INIUNCTIVE RELIEF CIVIL No. 2220 aa 22 23 24 2s 26 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 23 of 24 iv) To not seize vessels without complying with Harb. & Nav, Code, §§550, 551 V) To not destroy or otherwise convert seized vessels before a 10-day post seizure period| for intact vessels. vi) To not seize vessel in a manner that itself causes such to become unseaworthy. (e.g., using excavators to drag vessels up the ACOE debris dock ramp, as happened to the subject vessel.) 93. By reason of the foregoing premises, Ms. Kelly has and probably will suffer irreparable losses, which the remedies at law are not fully adequate to compensate for such injuries. Further, considering the balance of hardships between the plaintiff and the defendants, a remedy in equity is warranted. Finally, the the public interest would not be disserved by a preliminary or permanent injunction. i) All Robyn Lynn Kelly is asking is that RBRA and Harbormaster Havel follow the law and the RBRA Code section applicable to due process as policy, including use of warrants or application for injunction. WHEREFORE, Plaintiff pray for injunctive relief against the defendants as follows. 1) For preliminary injunction and for permanent injunction of RBRA in its application of police powers pursuant to Harb, & Nav. Code, Div. 3, Chap. 3 Art. 3, Marine Debris, §§550; et. seq. and/or RBRA Code. 2) For general damage and special damage, according to proof, against all defendants, 3) For costs of suit against all defendants. 4) For attorney fees, according to proof, against all defendants as may be allowed by law under respective causes of action. 5) For punitive damages, according to proof, against Defendant Curtis Havel as may be COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No. =~ 2313 4 15 16 23 24 25 26 21 28 Case 3:20-cv-06791-JCS Document 1 Filed 09/29/20 Page 24 of 24 allowed by law under respective causes of action. Dated September 29, 2020 BERSCHLER ASSOCIATES, PC ‘s/ Amold I. Berschler ARNOLD I. BERSCHLER attorney for COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF CIVIL No, ~~Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 1 of 52 BERSCHLER ASSOCIATES, PC Amold I. Berschler [SBN 56557] 22 Battery Street, suite 810 San Francisco, CA 94111 Tel. 415 398 1414 Attorneys for ROBYN LYNN KELLY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, ROBYN LYNN KELLY, Case No.’ Plaintiff, vs. EXHIBITS | through 6 RICHARDSON’S BAY REGIONAL AGENCY, CURTIS HAVEL, [Jury Trial Request] Defendants, " “ uw “ “ wt “ EXHIBITS | through 6 CIVIL No.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 2 of 52 EXHIBIT 1Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 3 of 52 CLAIMS FORM RICHARDSON’S BAY REGIONAL AGENCY NAME OF CLAIMANT: ROBYN LYNN KELLY Address: p.0. Box 740, Sausalito, CA 94966. Phone Number: c/o 415-398-1414, Email: c/o INFO@BERSCHLER.com. Mailing Address for All Notices: c/o Berschler Associates, PC, 22 Battery Street, suite 888, San Francisco, CA 94111 Date of Injury, Damage or Loss: On or about November 14, 2019 and continuing through on or about December 2, 2019, inclusive. Place of Injury, Damage or Loss [exact location]: Richardson Bay and ACOE dock, ramp and facility, Sausalito, CA. General Description of Injury, Damage or Loss and Circumstances That Gave Rise To Claim: Richardson's Bay Regional Agency (RBRA) improperly designated Claimant’s motor vessel as alleged marine debris, as defined under California Harbor & Navigation Code §551; et seq,, ultimately causing it to be seized by law enforcement officers and summarily destroyed, along with Claimant's personal property aboard. RBRA has not compensated for this taking of property. Further, RBRA’s wrongful conduct caused the conversaion and or loss of Claimant’s inflatable Avon skiff and its attached 9.9 h.p. Tohaisu engine. Such wrongful conduct was conducted by and/or at the direction of RBRA’s managing agent, Curtiss Havel, Harbor Master. The wrongful conduet was part of a patter of similar conduct toward other vessels, all conduct being the policy of RBRA both formally, and as custom and practice. Why is the Richardson Bay Regional Agency Responsible for the Alleged Injury, Damage or Loss? Seized property in violation of Fourth Amendment of U.S. Constitution. Taking of property in violation of Fifth Amendment of U.S. Constitution. Conduct allegedly pursuant to California Harbors & Navigation Code, §§550, 551 in violation of Fourteenth Amendment of U.S. Constitution. Parallel lations of California Constitution. Conversion of property, which caused me emotional distress and islocation of my life. Witnesses [Name, Address, Phone, Email]: 1. Wm. McLean, 415.879.6940; POB 524 Sausalito, CA 94966. 2. Terry Hempstead, 415.312.1673; 628.245.6315. 3. Tara Kelly, 415.717.9804; 65 Evergreen Lane, Berkeley, CA 94705 Amount of Claim: One million dollars ($1,000,000.00) due to loss of property, conversion of property, pain and suffering, attorney fees, punitive damage. [Attach supporting bills or basis of computation of amount claimed] patep: "2 | AO CLAIMANT'S SIGNATURE: Yay hy W ROBYN LYNN KELL ARNOLD I. BERSCHLER, attorney for ROBYN LYNN KELLYCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 4 of 52 EXHIBIT 2Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 5 of 52 RICHARDSON BAY REGIONAL AGENCY ORDINANCE NO. _ 87-1 AN ORDINANCE OF THE RICHARDSON BAY REGIONAL AGENCY, STATE OF CALIFORNIA, ESTABLISHING RULES AND REGULATIONS FOR ANCHORING AND MOORING IN RICHARDSON BAY AND BELVEDERE COVE THE RICHARDSON BAY REGIONAL AGENCY ORDAINS AS FOLLOWS: PREAMBLE |. WHEREAS, the County of Marin, and the Cities of Belvedere, Mill Valley, Sausalito and Tiburon have adopted the Richardson Bay Special Area Plan, and |. WHEREAS, the Richardson Bay Special Arec Plan contains policies which direct the formation of a Joint Powers Agency for the purpose of providing for local contral of the anchorage areas of Richardson Bay and Belvedere Cove, and |. WHEREAS, the Richardson Bay Regional Agency wes established by the County and the Cities in July 1985, ond IV. WHEREAS, the Richardson Bay Regional Agency desires to adopt regulations pertaining to the anchoring and mooring of transient vessels in Richardson Bay and Belvedere Cove, to implement the policies contained in the Richardson Sey Special Area Plan, SECTION I, DEFINITIONS a o e f Agency: refers to the Richardson Bay Regional Agency established by Joint Powers Refewtient in duly 1985. Anchoring: attachment of a vessel to the bottom or the shore of Richardson Say or Belvedere Cove, using equipment, lines, rope, chain or cable which is carried onboard the vessel as regular equipment when underway. Anchorage Area: any portion of the Harbor which has been designated by the ‘Agency for the anchoring of vessels. Horbor: the Richardson Bay special anchorage and non-anchorage arecs and the Belvedere Cove non-anchorage area as designated in 33CFR, and as further shown on the map in Exhibit A. Houseboat: a structure in the water, floating or not floating, used for on extended Beriod of time for private residential use ond generally not used for recreational or active navigational use. Live-eboard: 3 vessel having capability for active self-propell ed navigation moored for an extended period of time and used continuously during that time for private residential use and used on some occasions for recreational or commercial purposes. (CW/nab/eneCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 6 of 52 G+ Moored for on extended period of time: lected for 30 days or more in one place. Mooring: a means of fixing a floating vessel to the bottom in one location, Temporarily or permanently, by use of cable, lines, chains, or other equipment remaining attached to the bottom nd not carried dboard such vessel as reguicr equipment when uncer way. i, Non-anchorage area: any portion of the Harber which has been designated by the Agency as an area where vessels may not anchor but wher e mooring of vessels may be allowed pursuant to Section 5 of this ordinance. Person: any person, firm, association, organization, partnership, business trust, ‘erporation or company. k, Vessel: 9 structure designed to be navigable upon water. SECTION 2. APPLICABILITY Provisions of this ordinance and any rules and regulations adopted pursuant to it shall be applicable and shall govern the Harbor as defined above and described in Exhibit A, attaches to this document and by this reference incorporated in it. SECTION 3. EXEMPTIONS The provisions of this ordinance shall have no application to vessels operated by the United States of America, the State of California, or any governmental entity or its agencies or instrumentalities. Further, this ordinance shall have no application to any vessel in an emergency situation as determined at the sole discretion of the Harbor Master or the Harbor Master's designee. SECTION 4, HARBOR MASTER a, Whenever a power is granted to or duty is imposed upon the Harbor Master, the power may be exercised or the duty may be performed by a deputy or assistant of the Harbor Master or by a person authorized pursuant to law by the Agency unless the ordinance expressly provides otherwise >. The Herbor Master, acting under the orders and jurisdiction of the Richardson Bay Regional Agency or its designated representative shall have full authority in the enforcement of all ordinances and regulations affecting the Harbor. c. The Harbor Master shall provide information for users of the harbor on the use of mooring, dinghy landings and shore access ond shall use any authorized VHF channels to provide information to and assist vessels desiring to use the Harber. 4. The Harbor Naster shall maintain a current file of information, with the assistance of marina operators and owners, of the transient berths and marina services which may be available and provide this information upon request. SECTION 5. PERMITS - ANCHORING AND MOORING a. Any vessel may anchor temporarily for a period of less than 72 hours in the ancherage area without a permit. The Harbor Master may require vessels to relocate within the ‘anchorage. CW/nab/ene4 f Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 7 of 52 Any person anchoring @ vessel for more than 72 hours shall obtain an anchoring permit from the Harbor Master. - Owners of private moorings which were authorized prior to the adoption of this ordinance, who can present to the Harbor Master evidence of ownership of the submergec land underlying the moorings or of authorization from the owner or trustee for placement of the moorings, shall not be required to obtain permits but shall register the moorings with the Harbor Master. Any person desiring to install a mooring in the waters of the Harbor after the ‘adoption of this ordinance or to validate a previously existing mooring which does not meet the requirements of Section 5.c must secure a permit from the Harbor Master in adcition to any permits required from other government agencies. A person applying for a mooring permit shall present evidence of ownership or permission of the owner of the submerged land on which the mooring is to be placed. Private moorings shall be used only by the owner or with the owner's permission. 1) The Harbor Master may deny or revoke a mooring permit or cancel the registration of a mooring which preexisted the adoption of this ordinance if the Harbor Master finds that the mooring contributes to traffic congestion, causes dangerous crowding of vessels, contributes to risk of fire, sinking, breakaway or collision damage or if removal of the mooring is necessary to cid in enforcement of any provision of this ordinance 2) If the Harbor Master finds thot removal of a mooring is necessary to relieve crowding of vessels, the Harbor Master shall give preference to moorings which were authorized prior to adoption of the ordinance or which have had permits for the longest period of time 3) If the Harbor Master finds it necessary to invoke Section 5.f.(1), the Harbor Master shall send the permittee o written notice at the address appearing on the ‘application or registration. The notice shall state the reason for the notice and shall state that the permittee must correct the condition for which the notice was issued or remove the mooring within fifteen (15) days of issuance of the notice. If the owner does not correct the condition or remove the mooring, the Harbor Master moy remove it. The cost of removal shall be borne by the owner of the mooring. 4) An owner of a mooring who takes exception to the determination of the Horber Master as stated in the notice may file a written appeal of the Harbor Master's decision to the Board of the Richardson Bay Regional Agency or its designee within fifteen (15) days of issuance of the notice. The decision of the Board or its designee shall be final. When a mooring is sold or transferred, the new owner shall make application to the Herbor Master for a new mooring permit before being permitted to use the mooring. ‘A new mooring installation permit will be issued upon payment of a transfer fee in cddition to the mooring installation fee ond presentation of evidence of sale or transfer. No transfer shall be permitted unless all past due fees cre paid. CW/neb/eneCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 8 of 52 SECTION 6. RESIDENTIAL USE OF HOUSEBOATS OR VESSELS PROHIBITED Living aboard @ houseboat or vessel anchored or moored offshore for more than 30 days in the cnchorage or non-anchorage areas of the Harbor is prohibited. With the permission of and ot the discretion of the Harbor Master, transient vessels may be permitted to anchor or moor for more than 30 days in locations designated by the Harbor Master, provided thot the Harbor Master determines that no permanent residential use is intended and that there are no available berths suitable for the vessel in ony marina in the Harbor. SECTION 7. FEES . Fees for anchoring or mooring a vessel in any part of the Harbor shall be established by the Agency by resolution cfter public hearing. All fees shall be reasonable so that Persons of varying financial means may enjoy the use of the Harbor. b. The Agency shall provide the mode and procedure for collecting all mooring and ‘anchoring fees and the identification by tag or plate or otherwise of all vessels upon which fees are currently paid if such identification will aid enforcement and collection. c. When the owner of any mooring is delinquent in payment of fees for fifteen (15) days or more, the Harbor Master may cancel the permit upon five (5) days written notice to the permittee by first class mail to the address shown on the permit. If the mooring is not removed by the owner within thirty (30) days after cancellation of the permit, it shall be deemed abandoned. SECTION 8 REGULATIONS CONCERNING SPEED AND SAFETY . Within the limits of the anchorage creas; in Seivedere Cove; in the crea of the Harbor west of the Richardson Say Bridge and in the Sausalito Channel, starting at Spinnaker Point in the east, extending to Clipper Yacht Harbor gas dock in the west, bounded on the north by the Channel morkers numbered 4, 6 and 8, and extending southerly to the high water line, no vessel shall exceed a speed limit of five (Smiles per hour. Within the Harbor, due caution must be observed at all times. No person Shall operate c vessel within’ the Harbor in a reckless or negligent manner, nor shall any, person operate any vessel at a speed which will endanger life limb, property, or wildlife b. No person shall operate a vessel in the Harbor at a speed in excess of five (5) miles per hour or at which there is a visible wake under any authority: (1) within two hundred feet (200 ft.) of any person who is swimming or bathing or sailboarding or rowing a boat; or (2) within two hundred feet (200 ft.) of any (a) beach frequented with bathers; (b) swimming float, diving platform or lifeline; or (c) dock, way or landing float to which vessels are made fast or which is used for the embarketion or discharge of passengers. SECTION 9. DISCHARGE OF REFUSE It shell be a violation of this ordinance to discharge or permit to discharge into the waters of the Harbor any refuse, untreated sewage, petroleum or petroleum matter, pint, varnish or any other noxious chemical or foreign matter of any kind. CW/nat/cneCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 9 of 52 SECTION ). PENALTIES Any person violating any of the provisions of this ordinance shall be guilty of on infraction and upon conviction shall be punished dy a fine not exceeding fifty dollars §50.00).. SECTION ||. INJUNCTIVE RELIEF Any violation of this ordinance is hereby declared to be a nuisance. In addition to any other relief provided by this ordinance, the attorney for the Agency may apply to o court of Competent jurisdiction for an injunction to prohibit the continuation of any violation of this ordinance Such application for relief may include seeking o temporary restraining order, preliminary injunction and permanent injunction. SECTION 12. INVALIDATION OF PORTIONS OF THE ORDINANCE If any provision of this ordinance or its application to any person or circumstance is held invalid, the remainder of the ordinance or the application of such provisions to other persons or circumstances shall not be off ected. SECTION 13. PUBLICATION This ordinance shall be published once, not later than 15 days following its adoption in the Marin Independent Journal, a newspaper of general circulation printed ond published in the County a Rar PASSED AND ADOPTED at a regular meeting of the Richardson Bay Regional Agency, State of California, on the Sen day of uly 1987, by the following vote to wit: AYES: Board Members: Aramburu, Farley, Coxhead, Ruedy, Taber NOES: Board Members: None ABSENT: Board Members: None CHAIRMAN OF THE RICHARDSON BAY REGIONAL AGENCY ATTEST: ee Thomas F. Campanella Clerk of the Agency -s- CW/nab/eneCase 3:20-cv-06791-JCS Document 2. Filed 09/29/20 Page 10 of 52 EXHIBIT A Anchorage and Non Anchorage Areas Richardson Bay and Belvedere Cove Richardson Bay Anchorage That portion of Richerdson Bey beginning at a point becring 257° from Peninsula Point ond running southwesterly to the Sausalito shore, said point of beginning being latitude 37°51'38", longitude 1229283"; thence along soid line bearing 2579 from Peninsula Point, southwesterly to latitude 37°51'33%, longitude 12262828"; said point being on the northerly line of the federally maintained channel; thence northwesterly along said channel to latitude 37°52'6", longitude 122°29'29"; thence continuing northwesterly to latitude 37952114", longitude 122°29'37"; thence northeasterly to latitude 37°52'22", longitude 122929125"; thence southeasterly to the point of beginning along a line parail e to and 1,500 feet more or less from the afore-mentioned northeasterly line of the federally maintained channel; and also that portion of Richardson Bay beginning at a point on the Sausalito Shoreline being the intersection of the high tide line and southeasterly right-of-way of B Street; thence northeasterly along said right-of-way and its northeasterly prolongation to a point on the southwesterly line of the federally maintained channel, said point being latitude 37°51'36", longitude 122028'38"; thence northwesterly to latitude 37°51'S3", longitude 122°29'13",' thence WEST to latitude 37°51'53, longitude 12292925"; thence S 45°54" W to ‘the high tide ling thence southeasterly along the Sausalito shore by high tide line to the point of beginning, exclusive of the turning basin, the fairways, the morinas and other private property, a3 defined by the Harbor Master of Richardson Boy. Non-anchorage Area: Alll that portion of Richardson Bay north of a line bearing 257° from Peninsula Point to the shore at Sausalito, except for: |) those areas described above as anchorages; 2) the federally maintained channels; and 3) all channels opproved for private use therein. Section 110.228 San Francisco Bay Anchorage Grounds - (1) Anchorage No. 3, General Anchorage. Non-anchorage Arec: That portion of Belvedere Cove bounded by the shore and a line beginning at latitude 37°52'20", longitude 122°27'02"; thence southwest to latitude 37°51'43" ond longitude 12202725", Special Regulations: There shall be no anchoring in the non-anchorage area with the following exception: the Harbor Master may authorize anchoring incidental to recreational boating activity or emergencies for « period not to exceed 48 hours. CW/nab/eneCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 11 of 52 [Sausalito =_Non-Anchorage -AreAs~- - ~_Anchorage Aree 1 7/0Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 12 of 52 EXHIBIT 3Case 3:20-ev-06791-JCS Document 2 Filed 09/29/20 Page 13 of 52 RICHARDSON BAY REGIONAL AGENCY 91-3 AN ORDINANCE OF THE RICHARDSON BAY REGIONAL AGENCY, STATE OF CALIFORNIA, AMENDING SECTION 3 OF ORDINANCE 91-1 ENTITLED "HARBOR MASTER, SECTION 4, SUBSECTION (E) OF ORDINANCE 91-1 ENTITLED "RIGHT OF ENTRY, SECTION 9 ENTITLED "PENALTIES! SUBSECTION (C) OF ORDINANCE 91-1, SECTION 5 OF ORDINANCE 87- 1 ENTITLED "PERMITS, ANCHORING AND MOORING" AND BY DELETING SECTION 1(G) OF ORDINANCE 87-1 REGARDING THE DEFINITION OF "MOORED FOR AN EXTENDED PERIOD OF TIME. The Richardson Bay Regional Agency does ordain as follows: SECTION 1. Section 3 of Ordinance 91-1, amending Subsection (b) of Section 4 of Ordinance 87-1 entitled "Harbor Master," is amended to read as follows: (b) The Harbor Master and his designee/assistant, acting under the orders and jurisdiction of the Richardson Bay Regional Agency or its designated representative shall have full authority in the enforcement of all ordinances and regulations affecting Richardson Bay,’ including but not limited to, the power to issue infraction citations. The Harbor Master and his designee/assistant shall act as the Agency's Marine Safety Officer. The Harbor Master and his designee/assistant shall have concurrent jurisdiction to issue such citations for violations of member City and County ordinances relative to Richardson Bay. The appropriate Law Enforcement Department of each member City and County is hereby authorized to issue infraction and misdemeanor citations for violations of this and all ordinances of the Richardson Bay Regional Agency. SECTION 2. Section 4 of Ordinance 91-1, adding Section 4(e) to Ordinance 87-1, is amended to read as follows: (e) Right of Entry. Whenever necessary to make an inspection to enforce any of the provisions of the ordinances of the Richardson Bay Regional Agency, or whenever the Ha faster or his authorized representative has reasonable cause to believe that there exists in, or on any vessel/object, or attached thereto, an condition or code violation which makes the same unsafe, dangerous 1Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 14 of 52 gr hazardous, the Harbor Master or his authorized representative ay_enter the vessel/obiect at all reasonable times to inspect the ame or to perfor: due ed upon the Harbor Master by su ordinances; provided that if the vessel/object is occupied, hy shall first present proper credentials and request entry; and if such vessel/object is unoccupied, he shall first make a reasonable effort to locate the owner or other persons having charge or control oi ves: \d@ request entry. If such entr efused, the Harbor Master or his authorized rey ntative, shall have recourse to every remedy provided by law to secure entry. Qnce the Harbor Master or his authorized representative hes gbtained a proper inspection warrant or other remedy provided by law_to secure entry, no owner or occupant or any other persons aving charge, care or control of any vesse ect shall fail or neglect, after proper request is made as herein provided, t: promptly permit entry therein by the Harbor Master or his authorized representative, for the purpose of inspection and examination pursuant to this Ordinance SECTION 3. Section 9 (c) of Ordinance 91-1, amending Section 10 of Ordinance 87-1, entitled "Penalties" is amended to read as follows: (c) Whenever an individual has been convicted of violating the same ordinance three times in a twelve month period, the Agency Attorney may elevate the current violation to a misdemeanor and prosecute it as such. The Agency Board hereby states that the continuing violation of its ordinances is a serious matter that warrants aggressive prosecution. SECTION 4. Section 1(g) of Ordinance 87-1 concerning the definition of vessels "moored for an extended period of time, is hereby deleted. SECTION 5. Section 5 of Ordinance 87-1 entitled "Pernits, Anchoring and Mooring," is amended to read as follows: (a) Any person may temporarily anchor a vessel for a period not more than 72 hours, in any 7 day period, in the designated anchorage areas without a permit. No person may anchor a vessel in the non-designated anchorage areas at any time. The Harbor Master is authorized to require persons to relocate vessels within the designated anchorage areas.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 15 of 52 (b) Any person anchoring a vessel in Richardson Bay for more than 72 hours shall obtain an anchoring permit from the Harbor Master. (c) Private Property. (1) Owners of private moorings which were authorized prior to the adoption of this ordinance, (ie. Ordinance 87-1) who can present to the Harbor Master evidence of ownership of the submerged land underlying the moorings or of authorization from the owner or trustee for placement of the moorings, shall not be required to obtain permits but shall register the moorings with the Harbor Master. (2) Any person desiring to install a mooring in the waters of the harbor after the adoption of this ordinance (ie. Ordinance 87-1) or to validate a previously existing mooring which does not meet the requirements of Section 5(c)(1), must secure a permit from the Harbor Master in addition to any permits required from other government agencies. A person applying for a mooring permit shall present evidence of ownership or permission of the owner of the submerged land on which the mooring is to be placed. (3) Private mooring shall be used only by the owner, or with the owner's permission. (4) Revocation of Private Mooring Permits. aa. The Harbor Master may deny or revoke a mooring permit or cancel the registration of a mooring which preexisted the adoption of this ordinance (Ordinance 87-1) if the Harbor Master finds that the mooring contributes to traffic congestion, causes dangerous crowding of vessels, contributes to risk of fire, sinking, breakaway or collision damage or if removal of the mooring is necessary to aid in enforcement of any provision of this ordinance. bb. If the Harbor Master finds that removal of a mooring is necessary to relieve crowding of vessels, the harbor master shall give preference to moorings which were authorized prior to adoption of the ordinance (ie. Ordinance 87-1) or which have had permits for the longest period of time.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 16 of 52 cc. If the Harbor Master finds it necessary to invoke Section 5(c)(1), the Harbor Master shall send the permittee a written notice at the address appearing on the application or registration. The notice shall state the reason for the notice and shall state that the permittee must correct the condition for which the notice was issued or remove the mooring within fifteen (15) days of issuance of the notice. If the owner does not correct the condition or remove the mooring, the Harbor Master may remove it. The cost of removal shall be borne by the owner of the mooring. dd. An owner of a mooring who takes exception to the determination of the Harbor Master as stated in the notice, may file a written appeal of the Harbor Master's decision to the Board of the Richardson By Regional Agency or its designee within fifteen (15) days of issuance of the notice. The decision of the Board or its designee shall be final. 5. When a mooring is sold or transferred, the new owner shall make application to the Harbor Master fora new mooring Fermit before being permitted to use the mooring. A new mooring installation permit will be issued upon payment of a transfer fee in addition to the mooring installation fee and presentation of evidence of sale or transfer. No transfer shall be permitted unless all past due fees are paid. SECTION 6. This ordinance shall be published once, not later than 15 days following its adoption in the Marin Independent Journal, a newspaper of general circulation printed and published in the County of Marin. SECTION 7. If any part, section, sentence clause or phrase of this ordinance is for any reason held to be invalid or its application to any person or circumstance is held invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance or the application of such provisions to other persons or circumstances. The Agency declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentence, clause or phrase be declared invalid.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 17 of 52 PASSED AND ADOPTED at a meeting of the Richardson Bay Regional Agency on the ‘Sth day of February 1991 by the following vote: Agency Members: Fonarow, Friedman, Ruedy, Chairman Sweeny Agency Members: None Agency Members: Arambury ROBIN SWEENY, CHAIR RICHARDSON BAY REGIONAL AGENCY ATTEST: re FUSON, AGENCY CLERKCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 18 of 52 | ++_Nonasnchorage Arense: - x | | or | we? \ | oe j | 1. | we, | Pr | Tat or “nnCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 19 of 52 EXHIBIT 4Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 20 of 52 RICHARDSON BAY REGIONAL AGENCY ORDINANCE NO, 91-1 AN ORDINANCE OF THE RICHARDSON BAY REGIONAL AGENCY, STATE OF CALIFORNIA, AMENDING ORDINANCE NO. 87-1 BY ADDING SECTIONS 1(1) AND (m), 4(e), 13 "BEACHED VESSELS", AND 14 “TOWING, IMPOUND AND STORAGE” AND AMENDING SUBSECTION (b) OF SECTION 4 ENTITLED "HARBORMASTER", SUBSECTION (a) OF SECTION 5 ENTITLED "PERMITS, ANCHORING AND MOORING”, SECTION 8 "REGULATIONS OF SPEED AND SAFETY", SECTION 9 ENTITLED “DISCHARGE OF REFUSE”, AND SECTION 10 “PENALTIES” The Richardson Bay Regional Agency does ordain as follows: Section 1. The Title and Preamble to Ordinance 87-1 are amended to read as follows: AN ORDINANCE OF THE RICHARDSON BAY REGIONAL AGENCY, STATE OF CALIFORNIA, ESTABLISHING RULES AND REGULATIONS FOR USE, FOR ANCHORING, AND FOR MOORING IN RICHARDSON BAY AND BELVEDERE COVE. IV. WHEREAS, the Richardson Bay Regional Agency desires to adopt regulations pertaining’to the anchoring and mooring of transient vessels in Richardson Bay and Belvedere Cove, to implement the policies contained in the Richardson Bay Special Area Plan. (Rev.5-91) Section 2. Section 1 of Ordinance 87-1, entitled "Definitions" is amended to add subsection (1) Transient Vessels and (m) Personal Water Craft to read as follow: (1) Transient Vessels: a vessel that is not regularly anchored, moored or berthed in Richardson Bay. (m) Personal Water Craft: any motorized vessel which has an internal combustion engine powering a water-jet pump, or a fully covered propeller chamber as its primary source of motor propulsion and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing inside the vessel. This term shall include, but is not limited to, vessels commonly known as "Jet Skis", “Wet Bikes”, "Surf Jets", and "Sea-Doo". Section 3. Subsection (b) of Section 4 of Ordinance 87-1, entitled "Harbormaster” is amended to read as follows: (b) . The Harbormaster and his designee/assistant, acting under the orders and jurisdiction of the Richardson Bay RegionalCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 21 of 52 Agency or its designated representative shall have full authority in the enforcement of all ordinances and regulations affecting Richardson Bay, including, but not limited to, the power to issue infraction citations. The Harbor master and his designee/assistant shall act as the Agency's Marine Safety Officer. The Harbormaster and his designee/assistant shall have concurrent jurisdiction to issue such citations for violations of member City and County ordinances relative to Richardson Bay. The appropriate Law Enforcement Department of each member City and County is hereby authorized to issue misdemeanor citations for violations of this, and any ordinance of the Richardson Bay Regional Agency. Section 4. Subsection (e) is added to Section 4 of Ordinance 87-1 to read as follows: (e) The Harbormaster and his designee/assistant, are authorized to stop and board any vessel for the purpose of inspecting for compliance with laws within their authority, and for the purpose of enforcing such laws in conformity with state and federal laws. Section 5. Subsection (a) of Section 5 of Ordinance 87-1, entitled "Permits, Anchoring and Mooring” is amended to read as follow: (a) Any person may temporarily anchor a vessel for a period not more than 72 hours, in any 7 day period, in the designated anchorage areas without a permit. No person may anchor a vessel in the non-designated anchorage areas at any time. The Harbormaster is authorized to require persons to relocate vessels within the designated anchorage areas. Section 6. Section 6 of Ordinance 87-1, entitled “Residential Use of Houseboats or Vessels Prohibited”, is amended to read as follows: (a) Living aboard a houseboat or vessel anchored or moored in Richardson Bay is prohibited. The Harbormaster may issue a permit to transient vessels to anchor in the designated anchorages for more than 72 hours provided that the Harbormaster determines that no permanent residential use is intended. In such cases, the Harbormaster shall issue a permit valid for 30 days. This permit may be renewed for 2 additional 30 day periods at the Harbormaster's discretion. Section 7. Section 8 of Ordinance 87-1 is amended to read as follows: (a) Within the limits of the anchorage areas; in Belvedere Cove: in the area of the Harbor west of Richardson Bay Bridge; and in the Sausalito Channel, starting at Spinnaker Point in theCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 22 of 52 east, extending to Richardson Bay Bridge west, bounded on the north by. the Starboard Channel markers and extending southerly to the shoreline, no vessel shall exceed a speed limit of five (5) miles per hour. Within the Harbor, due caution must be observed at all times. No person shall operate a vessel within the Harbor in a reckless or negligent manner, or shall any person operate any vessel at a speed which will endanger life, limb, property or wildlife. (b) No person shall operate a vessel within the Harbor north of the Starboard Channel markers at a speed in excess of five (5) miles per hour under the following conditions: (1) within two hundred feet (200 ft.) of any person who is swimming or bathing or sail boarding or rowing a boat; or (2) within two hundred feet (200 ft.) of any (a) beach or lifeline; or (b) swinming float, diving platform or lifeline; or (c) dock, way or landing float to which vessels are made fast, or which is used for embarking or discharging of passengers; or (3) within two hundred feet (200 ft.) of any home. (c) Personal Water Craft are only permitted to operate on Richardson Bay between the hours of 10:00 a.m. and sunset. They may not be operated at any time in the Wildlife Refuse at the northeast end of Richardson Bay. Section 8. Section 9 of Ordinance 87-1, entitled “Discharge of Refuse" is amended to read as folloi Tt shall be a violation of this ordinance to discharge or permit a discharge into the waters of the Harbor any refuse, treated or untreated sewage, petroleum or petroleum matter, paint, varnish or any other noxious chemical or foreign matter of any kind. Section 9. Section 10 of Ordinance 87-1, entitled “Penalties” is amended to read as follows: (a) Any person violating any of the provisions of this ordinance shall be guilty of an infraction unless the offense is otherwise designated a misdemeanor, and upon conviction shall be punished by a fine not exceeding $500.00. Every day the violation continues to exist constitutes a separate offense. (b) Whenever an individual has violated any of the provisions of this or any ordinance of the Richardson Bay Regional Agency, the Agency may require proof of correction of the violation, as an element of bail. (c) Whenever an individual has been convicted three times in a twelve month period of violating any of the provisions of this or any Ordinance of the Richardson Bay Regional Agency, the Agency Attorney may elevate the current violation to a misdemeanor and prosecute it as such. The Agency Board herebyCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 23 of 52 states that the continuing violation of its Ordinance(s) is a serious matter that warrants aggressive prosecution. Section 10. Section 13, entitled "Beached Vessels” is added to Ordinance 87-1 to read as follows: (13) Except in an emergency, it shall be unlawful for the owner or person in control or custody of any vessel to ground or beach the vessel in Richardson Bay tide or submerged lands without express prior permission of the Harbormaster. If a vessel is beached in an emergency or otherwise, the registered or legal owner shall remove the vessel from its beached location within 5 calendar days of its original beaching. Section 11. Section 14, entitled "Towing, Impound and Storage" is added or Ordinance 87-1 to read as follows: (14) Towing, Impound and Storage: The Harbormaster and his designee/assistant are hereby authorized to remove and/or impound any vessel, or other object found in violation of any of the provisions of this ordinance or any ordinance of the Richardson Bay Regional Agency. (a) The registered and legal owners of record, or the agent of any such vessel or object so removed and impounded, shall have the right to secure the release of such vessel or object after furnishing proof of such ownership to the Agency and after payment to the Agency of the reasonable costs and expenses for such removal, impound and/or storage. The Boater's Lien Law of the State of California shall apply to vessels. (b) It is unlawful to move, remove or in any way tamper with an official RBRA impound buoy and/or anchor and any vessel attached and impounded thereto. Any person who violates this section is guilty of a misdemeanor. Section 12. This ordinance shall be published once, not later than 15 days following its adoption in the Marin Independent Journal, a newspaper of general circulation printed and published in the County of Marin. Section 13. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or its application to any person or circumstance is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance or the application of such provisions to other persons or circumstances. The Agency declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereofCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 24 of 52 irrespective of the fact that any one or more sections, subsections, sentence, clause or phrase be declared invalid. PASSED AND ADOPTED at meeting of the Richardson Bay Regional Agency on the _13th day of __ June , 1991 by the following vote: Aramburu, Coxhead, Otter, Ruedy, Chair Sweeny None None Agency Members: Agency Members ABSENT: Agency Members: Lew ROBIN SWEENY, CHAIRPERSON v RICHARDSON BAY REGIONAL AGENCY ATTEST: ‘AGENCY CLERK CAMPANELLA,Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 25 of 52 EXHIBIT 5Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 26 of 52 RICHARDSON BAY REGIONAL AGENCY ORDINANCE NO. 91. AN ORDINANCE OF THE RICHARDSON BAY REGIONAL AGENCY ADDING SECTION 15, ENTITLED "NUISANCE CODE" The Richardson Bay Regional Agency does ordain as follows: Section 1. Section 15 entitled "Nuisance Code" is added to ordinance 87-1 to read as follows Purpose. The Richardson Bay Regional Agency hereby adopts this Nuisance Code for the purpose of providing for the identification and abatement of public nuisances within the Agency's jurisdiction. The provisions of this ordinance are supplementary and complementary to all of the provisions of state law, and any law cognizable at common law or in equity. Nothing herein shall be read, interpreted or construed in any manner so as to limit any existing right or power of the Richardson Bay Regional Agency to abate any and all nuisances. b. Nuisance defined. The Richardson Bay Regional Agency hereby declares that it is a public nuisance for any person owning, leasing, occupying or having charge or possession of any vessel, barge or object within the Agency's jurisdiction to maintain the same in such a manner that any one or more of the conditions or activities described in the following subsections are found to exist: (1). ‘The keeping, storage, depositing or accumulation on, or attachment to, a vessel, barge or object, for an unreasonable period, of any personal property, including but not limited to abandoned, wrecked, dismantled or inoperative boats or boating equipment, engine parts and equipment, appliances, furniture, containers, scrap metal, wood, building materials, junk, rubbish or debris which constitutes a serious threat to the public health and safety. (2) Any dangerous, condition which is detrimental to the health, safety or welfare of the public.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 27 of 52 (3) Any condition in violation of a constituent agency's Building Code, such as to constitute substandard housing as defined therein, in appropriate waters. (4) The overboard discharge of any refuse, treated or untreated sewage, petroleum or petroleum matter, paint, varnish or any other noxious chemical or foreign natter. (5) Any condition in violation of a constituent agency's Fire Protection Ordinance within appropriate waters. (6) Any condition recognized in law or in equity as constituting a nuisance, including but not limited to, any condition that constitutes a nuisance under Civil Code Sections 3479, 3480. (7) Any other condition located on, or use of, a vessel, barge or object which constitutes a threat to the public peace, health or safety. violations and penalties. Any person, firm or corporation, whether owner, agent, lessee, sublessor, sublessee or occupant of any vessel, barge or object, who violates any of the provisions of this Code, is guilty of an infraction for each day the violation continues to exist. d. Commencement of proceeding: Whenever the Harbor Master has inspected or caused to be inspected any vessel, boat, barge or object and believes that the same is in violation of this Code, he may commence proceedings to cause abatement of the nuisance as provided herein. e. Hearing Notice/Notice to Abate. (1) The Harbor Master shall notify the owner, occupant, agent, or other responsible person of the existence of any condition on the vessel, barge or object that constitutes a nuisance and shall direct that such person or persons shall abate the same or appear before the Agency Board at a stated time and place and show cause why such condition should not be abated by the Agency at the person's expense.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 28 of 52 f. Manner of giving Notice. (1) The hearing notice/notice to abate and any amended or supplemental notice shall be served either by personal delivery or by mailing a copy by certified mail, postage prepaid, return receipt requested upon the registered or legal owner or any other person sought to be charged with the responsibility of abatement, at his address as it appears on the latest Department of Motor Vehicles registration form, or as known to the Harbor Master; a copy of the notice shall also be posted on the vessel, barge or object. (2) Proof of service of the hearing/abatement notice shall be certified by written declaration under penalty of perjury executed by the person effecting service, declaring the time, date and manner in which service was made. g. Hearing. Q) Testimony: At the time fixed in the hearing/abatement notice, the Agency Board shall hear testimony offered by the Harbor Master and/or his designee/assistant, by the vessel, barge or object owner or by other persons concerning the condition of the vessel, barge or object, or other relevant facts relative to the matter. (2) Recording: The proceedings at the hearing shall be tape recorded. Either party, at his own expense, may provide a certified shorthand reporter to maintain a record of the proceedings. (3) Preparation of the Record: Preparation of a record of the proceedings shall be governed by the California Code of Civil Procedure Section 1094.6 as presently written or hereinafter amended. (4) Contdnuane The Agency Clerk may, upon request of the owner, or other person sought to be held responsible for the abatement, grant continuances from time to time for good cause shown, or upon his own motion. (5) Oaths: All testifying witnesses shall be sworn by the Agency Clerk. (6) Evidence Rules: The hearing need not be conducted according to technical rules relating to evidence and witnesses. (7) _ Representation of parti Each party may represent themselves, or be represented by any one of their choice.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 29 of 52 (8) Inspection of premises: The agency Board may inspect the subject vessel, barge or object before, during or after the hearing, provided that: aa. Notice of such inspection shall be given to the parties before the inspection is made; bb. The parties are given an opportunity to be present during the inspection; and cc. The Agency Board shall state for the record during © the hearing, or file a written statement after the hearing for inclusion in the hearing record, upon completion of the inspection, the material facts observed and the conclusions drawn therefrom. dd. Each party then shall have an opportunity to rebut or explain the matters so stated by the Board, relative to inspection, either for the record during the hearing or by filing a written statement after the hearing for inclusion in the hearing record. Form and contents of decision: finality of decision. The decision of the Agency Board shall be in writing and shall contain findings of fact and a determination of the issues presented. (1) If the Board determines that Agency staff has shown by a preponderance of evidence that a condition constitutes a public nuisance, the decision shall require the owner to commence abatement of the nuisance not later than fifteen (15) days after the issuance of its decision, and shall state that the abatement must be completed within such time as specified. The decision shall inform the owner that if the nuisance is not abated within the time specified, the nuisance may be abated by the Agency in such manner as may be ordered by the Agency and the expense thereof, made a personal obligation of the owner. (2) The Agency's decision declaring that a condition constitutes a nuisance shall also inform the owner that the time for judicial review is governed by California Code of Civil Procedure Section 1094.6.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 30 of 52 (3) once the Agency Board has adopted its decision, the Harbor Master shall post a copy thereof conspicuously on’ the subject vessel, barge or object, and shall serve a copy on the owner by personal delivery or by mailing a copy by certified mail, return receipt requested upon the owner's address as it appears on the Department of Motor Vehicles registration or as known to the Harbor Master. One copy of the Agency's decision shall also be served on each of the following, if known to the Harbor Master or if disclosed from official public record: the holder of any mortgage or other lien or encumbrance, the owner or holder of any lease of record, and the holder of any other known interest in the subject vessel, barge or object. The Board's decision shall be final when adopted by the Agency. i. Enforcement of Agency's Decision: (1) Generally: once the Agency Board has rendered its final decision pursuant to Section 15 (h) above, no person ordered by the Agency's decision to abate a nuisance shall fail, neglect or refuse to obey such an order. (2) Failure to obey decision: Whenever any person fails, neglects or refuses to obey the Agency's decision pursuant to Section (i)(1) above, the Harbor Master is authorized to institute any appropriate action in order to abate such conditions which the Agency has determined to constitute a public nuisance. (3) Pailure to complete work: Whenever the responsible person fails to abate the declared nuisance within the time so specified in the Agency's final decision, the Harbor Master, in addition to any other remedy herein provided, may cause the nuisance to be abated. (4) Abatement costs: The cost of any such abatement shall be made a personal obligation of the owner thereof. (5) Extension of date for completion: aa. Upon receipt of a written request by the person responsible for abating the declared nuisance, and agreement by such person that he will comply with the Agency's decision if allowed additional time, the Harbor Master may, grant an extension of time, not to exceed an additional ninety days, within which to complete such abatement, provided the Harbor Master determines that such an extension of time will not create or perpetuate a situation imminently dangerous to life or property.Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 31 of 52 bb. The Harbor Master's authority to extend tine is limited to the physical abatement of the nuisance or for such other purposes as may be reasonably required by the circumstances of the case, but such extension shall not, in any way affect or extend the time to appeal the Agency's final decision. (6) Interference with work prohibited No person shall obstruct, impede or interfere with the Harbor Master or his designee/assistant, or any other authorized contractor or representative of the Richardson Bay Regional Agency whenever such a person is engaged in the work of abating any Agency declared nuisance as required herein, or is performing any necessary act preliminary to, or incidental to any such work. j. Summary Abatement (1) Dangerous condition: Whenever the Harbor Master determines that a condition exists on any vessel, barge or object located in Richardson Bay, which is of such a nature as to be imminently dangerous to the public health, safety or welfare, which if not abated according to the procedures articulated herein, would during the pendency of the proceedings, subject the public to potential harm of a serious nature, the same may be abated forthwith without compliance with the provision of this code. (2) approval of agency Attorney: No summary abatement shall be undertaken unless the Agency Attorney has first approved the same. (3) Post abatement notice and opportunity to contest: If the Harbor Master exercises his authority under Subsection 15 (3)(1) above, and summarily abates a nuisance, the owner of the vessel, barge or object shall be given notice of the actual abatement and an opportunity to contest the validity of the summary abatement. (4) Personal obligation: The cost of abatement including all administrative costs of any such action, shall become a personal obligation to the owner as provided herein: except, that if the courts shall decide that action taken hereunder was improper, any such obligation shall be null and void.Case 3:20-cv-06791-JCS Document2 Filed 09/29/20 Page 32 of 52 k. Recovery of Cost of Abatement: (1) Account of expense; filing of report; contents. The Harbor Master shall keep an itemized account of the expense incurred by the Agency in abating nuisances under the provisions of this Code. Upon completion of the work of abatement, the Harbor Master shall prepare and file with the Agency Clerk, a written report specifying the work done, the itemized and total cost of the work, a description of the subject vessel, barge or object and the names and addresses of the owner, lessee, agent or other persons entitled to notice of the forthcoming hearing before the Agency Board. (2) Cost report to be heard by agency: Upon receipt of the Harbor Master's cost report, the Agency Clerk shall fix a time, date and place for the Agency's hearing of the report, and any protests or objections thereto. The Agency Clerk shall cause notice of the hearing to be served by certified mail, return receipt requested, addressed to the persons entitled to notice as specified by the Harbor Master pursuant to subsection 15(k) (1) above. Such notices shall be given at least ten days before the date set for hearing and shall specify the day, hour and place when the Agency will hear and pass upon the Harbor Master's report containing the proposed charge for abatement, together with any objections or protests which may be filed by any person interested in, or affected thereby. PASSED AND ADOPTED at a special meeting of the Richardson Bay Regional Agency, State of California, on the 29th day of July 1991, by the following vote to wit: BOARD MEMBERS RUEDY, ARAMBARU, FRIEDMAN, FONAROW AND CHAIRMAN SWEENY AYE NOES: BOARD MEMBERS, NONE ABSENT: BOARD MEMBERS, NONE acd i “CHATRHAN _ RICHARDSON BAY REGIONAL AGENCY arrest: -//; fy: F ome MICHAEL FUSON CLERK OF AGENCYCase 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 33 of 52 EXHIBIT 6Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 34 of 52 Chapter: 1.04 General Provisions CHAPTER 1.04 GENERAL PROVISIONS Sections: 1.04010 Preamble 104.020 Definitions 1.04.030 Applicability 1.04040 Exemptions 1.04.050 Penalties 1.04.060 —_Injunctive Relief 1.040.010 _Preamble ‘WHEREAS, the County of Marin and the cities of Belvedere, Mill Valley, Sausalito, and Tiburon have adopted the Richardson Bay Special Area Plan; and WHEREAS, the Richardson Bay Special Area Plan contains policies which direct the formation of a Joint Powers Agency for the purpose of providing for local control of the anchorage areas of Richardson Bay and Belvedere Cove; and WHEREAS, the Richardson Bay Regional Agency was established by the County and the Cities in July, 1985; and WHEREAS, the Richardson Bay Regional Agency desires to adopt regulations pertaining to the anchoring and mooring of transient vessels in Richardson Bay and Belvedere Cove to implement the policies contained in the Richardson Bay Special Area Plan. [Ord. 81-1, Amended by Ord. 91-1] NOW, THEREFORE, BE IT ORDAINED: 1.040.020 Definitions: Adequate vessel sanitation facility: An operable marine sanitation device or portable toilet approved by the United States Coast Guard as suitable to prevent direct discharge of human waste into Richardson's Bay. [Ord. 19-1] Agency: Refers to the Richardson Bay Regional Agency established by Joint Powers Agreement in July 1985, and amended July 2018 to reflect the withdrawal of the City of Sausalito from the Agency. [Amended by Ord, 19-1]Case 3:20-cv-06791-JCS Document 2 Filed 09/29/20 Page 35 of 52 Anchoring: Attachment of a vessel to the bottom or the shore of Richardson Bay or Belvedere Cove, using equipment, lines, rope, chain, or cable which is carried onboard the vessel as regular equipment when underway. Anchorage Area: any portion of the harbor which has been designated by the ‘Agency for the anchoring of vessels. Discharge: To spill, leak, pump, pour, emit, empty, dump, deposit, or throw. [Ord. 19-1] Harbor: the Richardson Bay special anchorage and non-anchorage areas and the Belvedere Cove non-anchorage area as designated in 33CFR. Houseboat: a structure in the water that has a pontoon, flat-bottomed hull or similar configuration, and is generally not used for recreational or active navigational use. [Amended by Ord. 19-1] Live-aboard: a vessel having capability for active self-propelled navigation moored for an extended period of time and used continuously during that time for private residential use and used on some occasions for recreational or commercial purposes, ‘Mooring: a means of fixing a floating vessel to the bottom in one location, temporarily or permanently, by use of cable, lines, chains or other equipment, remaining attached to the bottom and not carried aboard such vessel as regular equipment when underway, and through its resistance to drag maintains a vessel within a given radius, [Amended by Ord. 19-1] ‘Non-anchorage Area: Any portion of the harbor which has been designated by the Agency as an area where vessels may not anchor, but where mooring of vessels may be allowed pursuant to Section 5 of this ordinance, ‘Operable: A vessel's ability to maneuver safely under its own power, using only its usual and customary equipment, from any place within the jurisdiction of the Agency to an inspection site authorized by the Harbor Master, and back to its point of origin. (Ord. 19-1] Person: any person, firm, association, organization, partnership, business trust, corporation or company, singular and plural. [Amended by Ord. 19-1] Personal Water Craft: any motorized vessel which has an internal combustion engine powering a water-jet pump, or a fully-covered propeller chamber, as its primary source of motor propulsion and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing inside the vessel. This term shall include, but is not limited to, vessels commonly known as “Jet Skis,” “Wet Bikes,” “Surf Jets”, and “Sea- Doo.” [Ord. 87-1, Amended by Ord. 91-1] ‘Seaworthy: Operational thru hulls, hoses, and sea cocks; bilge pumps are operational and bilges are free of oil; no loose debris or materials on deck; hull, keel, decking, cabin and mast are structurally sound and vessel is free of excessive marine growth, excessive delamination or excessive dry rot that compromises the vessel's