RCL notes for Civic League links:Â Beach Use committee RCL Notes
NOTES OF NOVEMBER 20, 2013 BEACH USE ORDINANCE COMMITTEE
Final Revision B – Provided by the Rye Civic League
Committee members present (counter clockwise around table): Tom Farrelly, Katy Sherman, Del Record, Bill Epperson, Joe Mills, Mike LaBrie, Craig Musselman, Tyler McGill, Police Chief Kevin Walsh (ex officio). Absent: Fire Chief Skip Sullivan.
Members of the public present:Â Peter Crawford, Victor Azzi, Frank Drake, Joey Cresta (Portsmouth Herald), Keith Evelund, Lori Carbajal, Steve Hillman and several young girls present with Mr. Hillman.
Also present:Â Dyana Ledger, stenographer.
Editor’s note: For ease in finding particular sections using the archived video and audio on the Town website, the elapsed time is indicated. Use the slider and the elapsed time indicated at the bottom of the video window to fast forward to the desired section. Videos on the Town website may currently be accessed at www.town.rye.nh.us by clicking on “Town Hall Streaming†at the bottom left of the screen. Follow the link for “Town Hall Live Streaming,†then find the meeting by date under “Previous.â€
Summary
1.             Two Committee members ask to insert public comments omitted from the official minutes of the public hearing, but which are reflected in the Rye Civic League Notes. The stenographer admits that her recording failed.
2.             Tyler McGill of Summer Sessions proposes that current water-based businesses be grandfathered at their current capacities with permits renewed as long as the business is in compliance.
3.             Del Record agrees to the proposal, provided that the Joshua Carroll study is cited as the basis.
4.             Legal opinion by Town Counsel questions the use of the zoning ordinance to prohibit commercial activities, that are not water-based, on the wet sand.
5.             Residents continue to emphasize the lack of data.
The video starts at 6:08:23 p.m. (0:00 elapsed)
Gaps in the minutes due to failure of the recording (1:07 elapsed)
Chairman Mike LaBrie asked whether anyone had any changes or concerns with the minutes. Katy Sherman responded that she did. She referred to Jan Bourne who is listed at the end if the minutes as having spoken. Ms. Sherman stated that Ms. Bourne had related an incident where her grandchildren had been hit by surfboards. The Committee is meeting in part to address these sorts of incidents. Those comments should be in the minutes. In addition, there is a reference to Paul from Myrica Ave. having been run over by a sea kayak. Chairman LaBrie acknowledged that there were people listed, but that their comments had not been included.
Bill Epperson stated that the minutes could not be materially changed. Dyana could be asked to revise them, he said. Dyana Ledger commented that the audio had failed. Editor’s note: Dyana Ledger provides minutes for many of the Town meetings, including, apparently, the public hearing of the Committee on October 9, 2013. Ms. Ledger continued, stating that she had prepared the minutes from notes, and had made a change relating to Mrs. Winebaum that Joe had picked up on. Editor’s note: These are apparent references to Joe Mills and Dominique Winebaum. Mrs. Winebaum, as of November 25, 2013, was still listed in the minutes on the Town website as having spoken at the meeting. However, she had not been present.
           Mr. LaBrie stated that he did not know what the protocol was with regard to adding these comments. Bill Epperson stated that he believed that an affidavit from “her†would be required. Selectman Mills stated that the Committee was aware of the comments. The only person who could not attest to it would be Mr. Drake “after he dropped a bomb and left.â€Â Editor’s note: See the notes of the October 9, 2013 hearing of the Committee. Frank Drake had spoken early at the meeting about the lack of a study, the Committee having exceeded its authority, and how two Committee members should have recused themselves because of the positions that they had taken. He had then left to go to dinner.Â
           Ms. Ledger stated that the point could be reflected in these minutes.
Ms. Sherman then referred to a comment made by Victor Azzi regarding whether the rights to sections of the beach would be exclusive to the permit holders. That is a very important issue, she noted, as the public would like to know the answer to that question. Joe Mills indicated that he had stated at the meeting that whoever was there first would have priority.
Tom Farrelly referred to the Rye Civic League notes and his own notes as sources. He stated that Frank McDermott had brought up the issue of zoning. Tyler had mentioned at an earlier meeting that the zone should be 100 yards, but at this meeting he had said 50 yards. The number of people and the amount of beach taken up is certainly a topic of discussion. He also referred to Paul from Myrica Ave., who had been hit.
Mr. LaBrie stated that these would be reflected in the minutes of the ongoing meeting.
The motion to accept the minutes with the exceptions noted carried unanimously.
Katy Sherman’s compilation of information on coastal towns (7:47 elapsed)
Mr. LaBrie stated that they should address the concerns raised during the October 9, 2013 public meeting and decide whether they should alter anything or forge ahead with what had been done.
Katy Sherman stated that she had consolidated the information that she had collected. There was a lot of information that people had been unable to see. She passed out a document to members of the Committee. She stated that she had spoken to nearby coastal towns and conducted online research.
(10:00 elapsed)
Frank Drake, speaking from the audience, asked a procedural question of whether the public could have copies of the document. Selectman Mills responded “it’s for us. Okay. You had your public hearing, what, a month ago.â€Â Frank Drake that said “It’s not a public document, you’re saying.â€Â Selectman Mills responded, “not yet, it’s got to be accepted by us, the Committee.â€Â Mr. Drake said, “Oh, is that right Michael?â€Â Chairman Mike LaBrie responded, saying that he was not as familiar with procedure as you, Joe and Bill, but he personally had no problem sharing the information. Editor’s note: It appeared that he was referring to Frank Drake, Joe Mills and Bill Epperson. Katy Sherman stated that she was resistant to sharing the information until it had been vetted by the Committee.
Bill Epperson asked whether the information was all publicly available data without opinion or conjecture. Ms. Sherman affirmed. Mr. Epperson then stated that Katy had done a remarkable job polling seacoast and California towns. It looks like our permitting process is in line with what others are doing, he said. If the information is generally public anyway, he doesn’t see why it cannot be made public as soon as the Committee agrees.
Tyler McGill stated that the Committee should go through it first and fact check it. Editor’s note: Tyler McGill is one of the proprietors of Summer Sessions, which is located near Jenness Beach and is the primary provider of surf lessons and surfboard rentals in Rye.
Police Chief Walsh stated that he had checked with the Chief of the Orleans, MA Police Department and had received an e-mail specifying what other towns were doing.
Tyler McGill noted that the document states that York requires that activities end by 9:00 a.m. He knows for a fact that Liquid Dreams runs surf lessons all day every day. Katy Sherman countered that that she had verified her information with the York Director of Parks and also noted that Liquid Dreams has a 10 person maximum per class. Selectman Mills stated that he understood that there is a 14 person limit per class in Hampton.
Discussion regarding next steps (21:12 elapsed)
Mr. McGill summarized what he took away from the public hearing. He stated that some people had issues with surfers and overcrowding. Others had concerns as to whether the original charge, the study, had been done properly, and whether a permit would address the issues. There were people on both sides.  He asked what the next move should be.
Chairman LaBrie stated that there had been discussion about the difference between the warrant article and the charge. The charge does not use the term “study.â€
Editor’s note: See the notes of the October 9, 2013 public hearing. Paragraph one of the charge asks the Committee
“[t]o assess the current and future impact with respect to public safety, the public’s use of Rye beaches and potential Town liability of the various businesses and other organized events such as summer camps; educational field trips; surf camps; races; triathlons; fundraisers; or lessons and/or rentals for activities such as surfing, paddle boarding, kayaking, sailing, kite-surfing, snorkeling or diving taking place at town owned beaches.â€
The Warrant Article asks the Board of Selectmen and the Beach Commission:
“to study the impact of the operation by persons, businesses or non-profit groups or organizations of a business or event, such as a summer camp; educational field trip; surf camp; race; triathlon; fundraiser; or lessons and/or rentals for activities such as surfing, paddle boarding, kayaking, sailing, kite-surfing, snorkeling or diving on any town beachâ€
Mr. LaBrie stated that he did not believe that a written report by the Committee was expected. He personally does not believe that they should get bogged down in fulfilling the study “checkbox.â€Â The understanding of Committee members is what is driving the Committee. Tyler McGill stated that he is fine with pertinent information being revealed prior to the next public hearing.
There was then discussion about Ms. Sherman and Mr. McGill communicating to verify the information. This appeared to have been agreed to.
Selectman Mills asked Mr. McGill whether he was steadfast against a permit.
Mr. McGill responded that he had listened to both sides. There is frustration on both sides. He suggested an olive branch between the sides. As currently presented, the issue appears divisive and there is a question as to whether any ordinance would pass.
Tyler McGill proposes grandfathering at current level of activity (28:02 elapsed)
Mr. LaBrie stated that he believed that Mr. McGill’s concerns had to do with the open ended nature of the proposed permitting process, the absence of stated requirements to continue with his operation and renewal of the permit, and the lack of security for him.
Mr. McGill agreed, adding that there are a lot of subjective elements. There’s a difference between issuing a permit for his business and a permit for a one-time activity. He believes that an objective basis for permitting including covering of the liability issue, CPR certification, instructor qualifications, waiver of Town liability, and provision of Town ordinances is something that he and the other surf shops could get behind.
Chairman LaBrie stated that that was essentially what they have in the documents, but the missing piece is approval or denial of the permit and the criteria for that.
Mr. McGill suggested that existing businesses be grandfathered in at their current capacities. The permit should be easily defined, and denied or accepted based on whether or not the requirements are met. This would create big enough barriers to entry to avoid an overwhelming surge in new people coming to the beaches, and would restrict some current people using the beaches as insurance is so expensive. People would support that for water-based activities.
Beyond that, when talking about volleyball, aerobics and yoga, in other words, when talking about wet and dry sand and zoning regulations, it becomes a bigger task. Those activities seem to be smaller and less frequent, Mr. McGill said.
(32:12 elapsed)
Mr. McGill stated that he would favor a permit, and that it could “contain the current activities to water-based sports as they currently are,“ and would somewhat create a barrier to entry for “Joe Schmoe, some hoo ha to come into Town, because you guys then say… explain to us (1) why we need more or (2) why you create a value add to this area, etc., etc.â€Â The debate would then be whether the current capacity is acceptable, and that would depend upon whom you ask.
There was then discussion about the businesses currently operating in Town. Ms. Sherman stated that there were four surf shops operating in Rye currently: (1) Summer Session, (2) Cinnamon Rainbows, (3) The Shack, and (4) Zapstix in Salisbury. Mr. LaBrie stated that Summer Sessions is the primary one. Mr. McGill stated that he believes that Cinammon Rainbows should be grandfathered, however their impact is small as they hesitate to drive to Rye and find parking. He stated that he is not aware that Zapstix is operating in Rye.
Mike LaBrie stated that his “take aways†from the public meeting, and taking into consideration Attorney Donovan’s letter, leads him to conclude that a distinction should be made between commercial activities that are water-dependent and those that are not. The latter could be controlled through zoning, as it could be argued that they are not allowed uses, he said. The water-dependent activities could be permitted, but provide some security. He read a proposal:
“in the event that the provisions of this permit have been complied with, the permit holder have the option to renew for an additional one year period, subject to the following conditions: (a) there has been no warrant article approved by Town-wide vote which precludes the continuation of the permitted use on land controlled by the Town of Rye; and (b) the permit holder shall have the opportunity to answer and correct allegations of non-compliance which are received in writing from the permitting authority.
Mr. LaBrie argued that it would be like a lease that can be renewed if the lessee is not in default. Selectman Musselman suggested that Mr. LaBrie’s proposal be coupled with a grandfathering aspect for currently active service providers to be issued permits based on their existing scope. Selectman Mills suggested a three-step process involving the Beach Commission, the Police Chief and the Selectmen. Selectman Musselman stated that it was not clear that there would permanently be a Beach Commission. Editor’s note: See 1999 Warrant Article 25. The Town voted 1142-519 to establish the Beach Commission.          Mr. McGill stated that he understood this to mean that, if they wanted to increase their activities by 20 percent they would have to go through the permitting process. He is comfortable with that as he is not looking to expand.
Katy Sherman asked whether the limit per class was 30 or 30 persons pre registered. Mr. McGill responded that there was a higher absolute maximum, as oftentimes there will be additional participants such as someone’s cousin showing up and wanting to participate. Ms. Sherman asked about the space requirements for 35 persons. Mr. LaBrie suggested that they focus on the big picture first.
Mr. LaBrie stated his proposal would buck the polarization. Tom Farrelly essentially ignores the whole reason that they are here. We heard it was 100 yards, then it was 50 yards, then that there are as many as 40 kids in a camp. It was all about how many, how often, how much. This is saying that Summer Sessions would have a monopoly. Mr. LaBrie disagreed, saying that the numbers would be nailed down as part of the permitting process.
Mr. LaBrie stated that there have been a few hiccups with Summer Sessions. The Beach Commission has worked with them and they have responded. His concern is that, given the trend line, a control mechanism is needed.
Tom Farrelly asked how much of the beach would be taken up by commercial activities.
Mike LaBrie stated that the baseline would be one, and anyone else would need to go through the permitting process.
Katy Sherman stated that she is concerned about there being a huge section that the public cannot use anymore. Sawyers Beach on the northern side has almost been carved out for Tyler, with no access for the public. Mike LaBrie stated that it was a small piece of Sawyers Beach, 100 yards. Mr. McGill stated that the absolute maximum that he would use is 100 yards. Selectman Mills asked Chief Walsh how long Sawyers Beach is.
Frank Drake interjected that this sounds like a study. Selectman Mills stated that they were in a work session. “There will be no input from the audience,†he said.
Mr. McGill stated that his camps are benefiting the public, which participates in them. Katy Sherman stated that there was a concern that they are not public as participants need to pay for them.
Del Record provided the figures for the amount of beach. There are 18 miles of coast in New Hampshire, 9 of which are in Rye. There are approximately 3.6 miles of sandy beach in Rye, or 6336 yards. From Straws’ Point to the Beach Club is approximately 2750 yards. The portion that they occupy is small, Mr. McGill said. Mr. LaBrie stated that the surfing was not being done in front of homes, unless it was in front of the Brown Cottages.
Police Chief Walsh warned that once everything is in writing, if it is too complex it would be difficult to enforce. They won’t be pulling out a measuring tape, he said.
Tom Farrelly stated that if there was another outfit like Summer Sessions there could be 2 or 3 100 yard sections of the beach occupied at the same time. Selectman Musselman stated that would be true only if they were approved. Mr. Farrelly asked how the other group could be denied. He asked what the criteria would be. He stated that commercial activity restricts access because there are only so many parking spots.
(110:34 elapsed)
Tyler McGill stated that he would break down what he was doing. Tom Farrelly stated that he never really received information on what Summer Sessions had been doing. At the first meeting he had said there were 25 kids, now he is saying that there are 35. He had heard 50 yards, then he heard it was 100 yards. He honestly doesn’t know what they need. The Zumba combination upset people, Mr. Farrelly said. Editor’s note: At earlier meetings of the Committee there was discussion about the extent to which Summer Sessions is tied in with the woman conducting Zumba lessons. Mr. LaBrie stated that they are addressing all of these things. Mr. Farrelly stated that everyone should be treated the same. Even those conducting activities now should apply for a permit.
Mr. McGill stated that the permitting process as presented to the public did not get a broad amount of support on either side.
Bill Epperson stated that he liked the basis for the permit and the differentiation based on water or sand-based. They should button this up and go down that path.
Del Record stated that if Josh’s study is pointed to as a reason for moving forward with the permitting process, he is on board with what is proposed. We were supposed to do a study. If we point to something that meets what the voters asked them to do, he is on board, Mr. Record stated.   Mr. LaBrie questioned the pertinence of Josh’s study. Mr. Record stated that he had a PhD. Mr. LaBrie responded that he did not care what his credentials are. Katy Sherman noted how many years old the study was. Editor’s note: The study by Joshua Carroll was done in 2010. Mr. McGill stated that the study concluded that the status quo was better than making changes.Â
        There was then discussion as to whether the study was ever provided.  Frank Drake stated that it had been sent by e-mail to a number of people within 12 hours of the Committee’s meeting. Mr. LaBrie stated that they had not received it. Peter Crawford, speaking from the audience, stated that the study is on the website of the Rye Civic League. Mr. Farrelly said that Mr. Carroll had admitted that the study was unrelated to what they were talking about.
In response to a question from a question from Mike LaBrie, Del Record stated that he liked the concept of the proposed ordinance, as revised, if Mr. Carroll’s study is referenced to show that they listened to the charge of the warrant article.
Mr. LaBrie then asked Katy Sherman her view. Ms. Sherman stated that she was willing to try anything in the hope that there would be fewer concerns. She asked about the letter from Mike Donovan. She asked whether activities that are not water-based would be banned entirely.
Selectman Musselman stated that the other issue had not yet been discussed. The choices are to require permits or to prohibit the activities entirely. Selectman Mills suggested that Mr. Donovan come to the next meeting.
(82:24 elapsed)
As Katy Sherman was enumerating the water-based activities as including surfing, kayaking, and paddle boarding, Frank Drake interjected “commercial fishing.â€Â Selectman Mills then raised his voice and said “Frank, don’t make me act, okay. There’s no audience participation and I’ve told you twice now.â€
Tom Farrelly then stated that they were considering grandfathering something and he does not even really know what it constitutes. There was then discussion about whether annual permits would be required for those who are grandfathered and whether they would be required to list their current activities.
Selectman Mills asked about beach use by Cinnamon Rainbows and whether they would be grandfathered. Tyler McGill stated that they should be as they were there before he was. He has a small level of activity, as does The Shack, Mr. McGill asserted. Cinnamon Rainbows typically use the area in front of the Brown Cottages rather than Sawyers Beach because they cannot park at Sawyers as they do not have a Town sticker.
Applicability of zoning ordinance to activities not water-based (89:06 elapsed)
Selectman Musselman then addressed the activities that are not water based. He asked whether everyone had read Attorney Donovan’s opinion. He stated that the three Selectmen had a conversation with Attorney Donovan earlier that week. This document is the second draft. Attorney Donovan acknowledged that the issues are not clear. Attorney Donovan’s view is that Zumba and Yoga on the dry sand may be regulated under the zoning ordinance. However, prohibiting these activities on the wet sand is a gray area as that land is part of the public trust. Zumba last year was primarily in the intertidal zone as it was conducted near the Brown Cottages where there is no beach at high tide. Editor’s note: The intertidal zone is apparently being used synonymously with the “wet sand.â€Â The intertidal zone generally means the area between the mean high tide and the mean low tide.   The Town might not want to spend the tens of thousands of dollars necessary to go to court, Selectman Musselman said.
Mr. LaBrie stated that the same argument could be made as to whether the activity could be subjected to the permitting process. Selectman Musselman stated that Attorney Donovan says that there is a distinction. The rationale is based on the Zetterberg case, which provides a precedent for regulating water-based activities in the intertidal zone under our general police powers. Editor’s note: See State v. Zetterberg, 109 N.H. 126 (1968) in which the conviction of a surfer for violating the Rye surfing ordinance was upheld, notwithstanding that the surfing was occurring in the Atlantic Ocean. There is serious doubt as to whether the Zetterberg case is still good law in light of more recent precedents, including Lakeside Lodge v. Town of New London, 158 N.H. 164 (2008). In addition, Zetterberg sidestepped the issue of whether the Town’s jurisdiction extends into the Atlantic Ocean, or indeed, even beyond the mean high water mark. The opinion assumed, without discussion, that it did. However, N.H. Rev. Stat. Ann. (“RSAâ€) 483-C:1, III states that “[a]ny person may use the public trust coastal shorelands of New Hampshire for all useful and lawful purposes, to include recreational purposes, subject to the provisions of municipal ordinances relative to the ‘reasonable use’ of the public trust shorelands.†This statute was enacted in 1995, long after Zetterberg was decided. This statute appears to permit the enactment of ordinances regulating the intertidal zone, but does not, by its terms, extend beyond that into the Atlantic Ocean.   These issues may soon be legally tested as the trial of a surfer charged with violating the Rye surfing ordinance is scheduled to occur in Portsmouth District Court during December, 2013.
        Selectman Musselman continued, stating that an ordinance would not prohibit the activities, but would merely manage them. The size of the activities and the noise could be limited, as could the authorization to use generators. The best shot might be to issue a permit. There is a compelling argument that the Town needs to do this. We’ve had a lot of people there, he said. People have been blocked from being able to move laterally along the beach.
Tom Farrelly indicated that Mr. Donovan had stated that the Town could not prohibit people from going to the beach and dancing. Mr. Farrelly then referred to cranking the music with a generator, suggesting that that could be prohibited.
Police Chief Walsh warned about getting into peoples’ opinions and trying to go into court based on that.
Bill Epperson stated that the noise was generated by amplified music and generators could be controlled. Mike LaBrie countered that a battery with an inverter or an extension cord could also be used to provide power. Selectman Musselman stated that a permit process could prohibit the use of amplified music or generators. Attorney Donovan is saying that there is the legal authority to require a permit and the legal authority to manage the activities.  He is not comfortable with doing it under the zoning ordinance, Selectman Musselman said.
Selectman Musselman stated that Zumba could become a lot bigger very quickly. Summer Sessions, on the other hand, is not likely to triple in size.
Katy Sherman warned about the proliferation of activities, which are becoming bigger, louder, and more frequent.
Police Chief Walsh warned about a labor intensive process to enforce the permits.
Tom Farrelly stated that Tyler McGill had initially been against barriers to entry being erected against new groups coming in. Based on this prior conversation, he is questioning the grandfathering. He asked whether the Town was opening itself up by having disparate treatment. Mr. LaBrie acknowledged that the Town was potentially doing this, however this is a compromise.
There was further discussion about the collection of fees, and establishing maximums per class, and coach to client ratios.
Selectman Musselman then made a motion to modify the draft documents which was modified several times. The final version, as read back by Dyana Ledger, was that they:
“modify the draft document in place to cover the current water-based activities in Rye, under the initial current scope of those activities, is going to be (sic) permitted on an application and any future expansion of those activities or other service providers coming on board in the future will be treated in equal fashion. Subsequent permit renewals issue: If those service providers are in compliance with permit conditions or unless a subsequent warrant article further regulating those activities is passed. (sic)â€
The motion carried unanimously.
Public comment (127:07 elapsed)
Selectman Musselman stated that there were people that were dying to say something, and he suggested that the meeting be opened up to public comment, as it would be helpful to hear what they have to say. Mr. LaBrie stated that he would like to hear public comment for a ten minute period.
Steve Hillman commented that the first time that the Town says no to somebody doing something not too far removed from what has been approved, the person will come after them legally. That opens up a can of worms. He added that activity on the beach is increasing. The State Park statistics support that.
Frank Drake stated that he is surprised that we do not know the length of the beach. This gets back to the data collection. He referred to Katy Sherman’s work going up and down the coast getting information from various towns and what they have done. But, he does not know what Tyler’s program is. He asked how many kids he put in the water every day last summer. This is fundamental research that he thought was going to be the first part of the Committee’s job. The study needs to be isolated to Rye. What other towns are doing is irrelevant. It’s fine if they get a good idea out of the information regarding other towns, he acknowledged.
Mike LaBrie stated that Tyler’s numbers have been discussed a dozen times. Mr. Drake responded that the data would have spoken to Katy’s and Tom’s serious concerns that they do not know what they are dealing with. Mr. Drake then got up and started to walk out. Selectman Musselman then asked Mr. Drake whether he was going to dinner again, and chuckled. The Committee reacted vociferously.
Lori Carbajal expressed concern that water-borne activities could be construed to include water aerobics which could also be done in a pool. She is concerned that the beach is for recreational use. When commercial activity outside of water-borne activities is allowed, there will be a proliferation of activities. They will not be able to say no to one and yes to the other. Mike LaBrie interjected that now they cannot say no to anyone. This is a good opportunity to put a stop to the proliferation, he said. Mr. LaBrie stated that Town Counsel had told them that could manage it, but they cannot prohibit it.
Keith Evelund stated that he is concerned about policing. People have a hard time parking and the numbers of people coming to the beach is increasing. Every year there is a ten percent increase. t needs to be nailed down to make it easy for the Police Chief. Regulations which are not simple would be a problem. He suggested a period of time without commercial activity. Selectman Musselman stated that they did not have the legal authority to do that. Mr. Evelund suggested that the voters vote to have a moratorium on commercial activity for a period of time. Rushing to make regulations that cannot be enforced is not a good thing, he said.
Adjournment (139:22 elapsed)
There were still hands up in the audience when Selectman Mills made a motion to adjourn, noting that the Committee was over the ten minutes. The motion carried unanimously and the meeting adjourned at 8:28 p.m.
