Beach Use Ordinance August 28, 2013 RCL notes

NOTES OF AUGUST 28, 2013 BEACH USE ORDINANCE COMMITTEE

Revised Final Revision B – Provided by the Rye Civic League

Present from Beach Use Ordinance Committee (counterclockwise around table):  Tom Farrelly, Katy Sherman, Bill Epperson, Del Record, Joe Mills, Mike LaBrie, Tyler McGill, Fire Chief Skip Sullivan, Police Chief Kevin Walsh.  Arrived late, at 6:29 p.m.:  Craig Musselman.

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€

The video starts at 6:06:30 p.m.

(1:35 elapsed).  The meeting was called to order

(5:29 elapsed).  Mike LaBrie read the proposed text of the draft Article 13 to be inserted into the Beach Ordinance.  Katy Sherman stated that she had done a lot of research into the policies of other towns in response to a concern that the Committee had not been studying the issue.  Kevin Walsh stated that, on Cape Cod, a majority of the Towns regulate commercial activity.  Skip Sullivan warned that, if the ordinance was too convoluted, it would “go down in flames†at the Deliberative Session.

(9:30 elapsed).  Tyler McGill asked what he should tell people if they ask to see the study.  He suggested that they use information from the Surfrider Foundation.  The answers vary depending on who is asking the questions.

(12:30 elapsed).  Mike LaBrie states that the proposed ordinance does not address surfing, but rather the use of Town property for commercial gain.  The proposed permit ensures that people are in the right place, with the right insurance.  Tyler McGill stated that there is not enough data to propose this.

(13:30 elapsed).  Tyler McGill states that the Committee has not done what is was supposed to.  The proposed ordinance is based on a small amount of experience.  Katy Sherman disagreed, saying she has talked to hundreds of people on the beach.

(17:30 elapsed).  Katy Sherman stated that the noise, particularly from the Zumba music, is “out of control.† Kevin Walsh stated that it is difficult to establish the boundary lines.  The proposed language suggested by Ms. Sherman would be a challenge to enforce, he says.  Mike LaBrie cautioned that sound meters could not distinguish between the sound from music and from the waves.

(26:30 elapsed).  Katy Sherman read proposed  language adding to the requirement that permitted activities not detract from the safe and enjoyable use of the beach.  Craig Musselman stated that, as the proposed language read, the selectmen would have justification for keeping everyone out.  In response to a comment by Tyler McGill, Katy Sherman stated that she had spent days researching ordinances in Massachusetts, Florida and California.  She is not making this stuff up, she said.  Tyler McGill proposed that a third party should do the research.

(31:10 elapsed).  Tyler McGill asserts that the Rye ordinance would be the first in New Hampshire, Massachusetts or Maine requiring permits for his type of business:  surf lessons and surfboard rentals.  Kevin Walsh disagreed, stating that Harwich and Yarmouth require permits.

(35:30 elapsed).  There was discussion about amplifiers, generators and 10×10 tents (EZ Up’s) erected on the beach.

(43:30 elapsed).  Tyler McGill expressed a concern that, if one person had a complaint about surf lessons, that his business could be construed as adversely affecting the enjoyment of the beach which could be grounds for denial of a permit.  Mike LaBrie stated that it would be up to the Board of Selectmen to weigh that.  Craig Musselman stated that Town Attorney Donovan had reviewed the language and determined that it was OK.  There is no way to preclude all beach users that someone didn’t like.

(51:30 elapsed).  The definition of “entity” was discussed.  It applies to every group of more than two.  The definition of various beaches was then discussed.  A new beach, Seavey Bridge Beach, where there is an informal boat launch, was added, along with others.

(67:30 elapsed).  Katy Sherman suggested that, since Tyler McGill is uncomfortable leaving the issue to the Board of Selectmen, the Beach Commission have a role in granting permits.  Craig Musselman responds that the Board of Selectmen meet every other week, while the Beach Commission meets only in the spring.

(72:30 elapsed).  The fines for violations ($50) were discussed.  Del Record asked about the appeal process.  Craig Musselman stated that there would be one, in court.  Or, if aggrieved a person could come back to the Board of Selectmen.  Tom Farrelly suggested that the fines could be waived for first offenses.  Craig Musselman stated that the fine is $50 per non-compliant lesson.  That could add up quickly, he said.  Kevin Walsh suggested background checks using publicly-available information, such as Facebook, search engines, and the Better Business Bureau.  Craig Musselman stated that this could be done without it being added to the ordinance.  If there is a provision in the ordinance they would have to think about what would be done with the information.  He added that they would not be regulating unfair business practices.

(75:30 elapsed).  Tyler McGill expressed concern about one person coming into the middle of a surf lesson to swim, in order to harass them.  Summer Sessions would be in breach of contract if a surfer gets within 50 feet in that instance.  Mike LaBrie suggested that swimmers might need to stay 50 feet away from permitted surf lessons.

(95:30 elapsed).  Tom Farrelly asked about crowding if two lessons are taking place on a Sunday at high tide.  With 30 people, half of the dry sand would be taken up.  Tyler McGill asked how this could logically be the case as there would only be 12 surf boards.

(106:15 elapsed).  Craig Musselman reported that Town Attorney Donovan had found three different ways in which beach was defined in the ordinance.  Attorney Donovan suggested a separate warrant article to clean this up.  Tyler McGill stated that the 50 foot distance between swimmers and surfers should not apply outside of the swim zone.  Joe Mills asked how the ordinance was going to be enforced, given that there are only two police on duty.  Tom Farrelly stated that people are upset about noisy Zumba lessons, not the surf lessons.

(124:41 elapsed).  After Tyler McGill continues to express concerns about the proposed ordinance, Kevin Walsh states that Mr. McGill has great business practices and is doing a great job, and asked why he was concerned about a problem that doesn’t exist.  Mike LaBrie argued that, if a troublemaker comes into the middle of a surf lesson, people are reasonable and would understand.  This would not result in a permit being pulled.

(130:00 elapsed).  Tyler McGill expressed dissatisfaction that the surfers did not have their own portion of the beach.  Kevin Walsh stated that there used to be exclusive zones for surfers at Locke’s Neck and Bass Beach.  Kevin Walsh then related a recent incident in which a kayaker lost control and ended up on top of a swimmer, who was unable to get up.  He suggested that the 50 feet apply to kayakers as well.

(134:50 elapsed).  Craig Musselman stated that the three selectmen had met with Town counsel regarding their authority to regulate Town, private and State beaches.  The conclusion was that there was a clear indication that they would have full authority in all locations.  However, they were not willing to pay for a written opinion.

(138:00 elapsed).  It was decided that the matter was not ready for a public hearing.

(140:50 elapsed).  As the motion to adjourn was being considered, Steve Hillman in the audience indicated that he had been involved in writing the surf ordinance, and that the 50 feet was a buffer for people at the edges of the swim zone, suggesting that it should not apply once swimmers are outside of the swim zone.