2010 State research report: PCI present 3-31-10
NOTES OF OCTOBER 9, 2013 BEACH USE ORDINANCE COMMITTEE PUBLIC HEARING
Final Revision C – Provided by the Rye Civic League
Present from Beach Use Ordinance Committee (left to right): Fire Chief Skip Sullivan, Police Chief Kevin Walsh (arrived slightly late), Selectman Joe Mills, Tom Farrelly, Mike LaBrie, Del Record, Tyler McGill, Bill Epperson, Katy Sherman, Selectman Craig Musselman.
Opening
The meeting was called to order at approximately 6:32 p.m. Chairman Mike LaBrie opened the meeting by noting that the Committee had formed following the rewording of Warrant Article 15. He asked that comments be limited to Town residents, and that they be restricted to the topic at hand.
Minutes approval
The minutes of the prior meeting were unanimously approved without changes.
Introduction
Mr. LaBrie started by reading the text of Article 15, as amended at the February 2, 2013 Deliberative Session:
“Shall the Town authorize the Board of Selectmen and the Beach Commission, or a committee thereof, 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 beach? The purpose of such study shall be to determine the impact of such businesses or events on public safety and the public’s use and enjoyment of the beach.
Mr. LaBrie omitted the last sentence of the warrant article, which reads:
“The findings should be presented and discussed at a public hearing and any future legislation addressing the above mentioned activities will be presented and discussed in a public hearing.
Editor’s note: This warrant article passed 590-487.
Member Del Record then, noting that the charge for the Committee was different from the Warrant Article, asked to read the charge. The full text of the charge, as it appears on page two of the draft minutes of the Committee for the May 30, 2013 meeting reads:
1. To 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.
2. To propose procedures, regulations, policies and/or requirements for the regulating of these activities if deemed necessary.
3. To conduct at least one public hearing to present their findings and to take into consideration public opinion for their final report.
4. To report back to the Board of Selectmen on how these programs and events affect public safety and the public’s use and enjoyment of our beaches.
If the Board of Selectmen subsequently considers new legislation or a change to current legislation, the Board will hold a public hearing in accordance with this Warrant Article
Mr. Record read only the first numbered paragraph of the charge. Frank Drake, speaking from the audience, then asked whether the charge changed the intent of the warrant article. He referred to a study, and the assessment of the impact on safety and enjoyment as being the only thing that the Committee was voted the authority to do.
Mr. LaBrie again read the last portion of the warrant article. This time, he included the last sentence, which had been omitted from his first reading of the warrant article. However, he referred to what he read as the “charge.”
Frank Drake responded that this was not the Warrant Article. The Committee had no authority to come up with legislation, he said. It’s a study, that is all that was voted, he said. You tried to legislate last year, before doing a study, and got creamed. We all agreed to study it first, he said. I don’t see one factoid in this whole presentation among what was available on the Internet, he said.
Mr. LaBrie stated that a study had been done over the summer, and that recommendations were being made to the Selectmen for legislation.
Fire Chief Skip Sullivan asked that State Representative David Borden be permitted to speak as an exception.
Mr. LaBrie then read the text of the proposed ordinance (to be added as a new Article 13 to the Beach Ordinance). The following text appears on pages 4-7 of the official minutes of the meeting, and was read substantially as set forth below, with minor word additions not affecting the meaning. Mr. LaBrie did not read section (d), which lists the beach definitions. The full proposed ordinance is:
a) The purpose of the Beach Permit program outlined herein shall be to allow management of the time, location, impact and intensity of commercial beach activities to facilitate the safe, enjoyable, and accessible use of public beach resources by all beach users.
b) Any person or entity proposing to conduct a group (more than two people) lesson, event or other activity at the beaches designated in section in 13d, if for a fee or other compensation, or any entity proposing to rent beach equipment as designated in section 13e for use at beaches in Town of Rye, shall first obtain approval of the Board of Selectmen.
c) For the purposes of this section, the word “entity” refers to businesses, whether corporations, partnerships or proprietorships; and organizations such as non-profit corporations, religious institutions and educational institutions.
d) This section shall apply to beach activities, whether in the ocean or on land, in the following beach areas:
1. Wallis Road Extension – the area between Wallis Sands State Park and Concord Point;
2. Foss Beach – the area starting to the east of Washington Road and extending to the Rye Harbor State Park;
3. Cable Road Extension – the area between the inside sand beach corner of Lockes Neck to Jenness Beach State Park;
4. Brown Cottages Beach – the area between Jenness Beach State Park on the north, southerly to the Eel Pond outlet pipes;
5. Sawyers Beach – the area starting at the Eel Pond outlet pipes and extending south to the end of the sand beach just south of the Beach Club parking lot;
6. Philbrick’s Beach – the area from the east of South Road, southerly to the Rye Ledges;
7. Farragut Beach – the sand beach east of the intersection of Central Road and Ocean Boulevard;
8. Bass Beach – the area from the Bass Beach cottages southerly to the North Hampton Town line; and
9. Seavey Beach – the beach/boat landing area on the northwest corner of the Seavey Bridge on Pioneer Road, west of O’Diorne Point State Park.
e) “Designated Beach Equipment” shall mean: surfboards, paddle boards, kayaks or other equipment as designated by the Board of Selectmen.
f) Instructors and leaders of lessons, events or activities subject to the provisions herein shall be certified to perform cardiopulmonary resuscitation (“CPR”), unless waived by the Board of Selectmen. Such instructors or leaders shall be deemed “CPR qualified” for the purposed of this ordinance.
g) Applications for Beach Permits shall be filed with the Board of Selectmen on forms provided by the Town at least thirty days prior to the event or proposed initiation of activities.
h) All applications for Beach Permits shall be accompanied by a signed “Release and Indemnification” form provided by the Town and a certificate of insurance from an insurance company authorized to do business in the State of New Hampshire designating the Town of Rye as an additional insured in the amount of at least $1,000,000.
i) All applications for Beach Permits involving the use of Designated Beach Equipment shall include a “Certification of Participant Release” on a form provided by the town and signed by the Applicant committing the Applicant to obtaining from each individual participant a signed “Release of Town of Rye by Participants” form to be provided by the Town, to be retained by the applicant for a period of at least one year after the date of the lesson, rental or event, and to be provided to the Town of Rye upon demand within that time.
j) Fines – Failure to obtain a Beach Permit for a lesson, event or activity subject to the provisions of this ordinance or to otherwise comply with this ordinance shall be a violation subject to a fine of $50. Each noncompliant lesson, event or other activity shall be considered a separate violation. Failure to obtain a Beach Permit for the rental of Designated Beach Equipment shall subject the violator to a fine of $50 per violation. Each individual rental transaction shall be considered a separate transaction. A second violation in any calendar year shall result in a fine to the business or event coordinator of $50 for each participant in the lessons or event.
Public comment
Chairman LaBrie then asked for comments regarding permitting of activities on Town beaches.
Scott Marion, 71 Washington Rd., stated that he was curious as to whether all applicants would be approved. If not, what would the criteria for approval be, he asked.
Chairman LaBrie responded that they had discussed this, but they wanted to establish a framework. The Board of Selectmen will review the applications. It is difficult to nail down every criterion for all of the various activities, he said. That is why the applications will go before the Board of Selectmen.
Selectman and Member Musselman interjected that the Board of Selectmen would need to be mindful of the purpose in the first paragraph of the ordinance. The purpose is very broad, he acknowledged. He then read this paragraph. The Board of Selectmen should not be expected to stop surfing lessons. However, not everything would be approved. An activity that would draw 2000 people to Jenness Beach at one time would probably not be approved.
Scott Marion suggested that some examples be provided so that people have a more clear understanding.
Frank Drake, 5 South Rd., stated that this was the exact issue that doomed the Warrant Article last year. It was the lack of specificity as to the criteria that the Selectmen would use to accept or deny a permit. No progress has been made on that at all, because there is no study. The charge came from the warrant article of the people, not the rulers. It was to study, not to come back and tell us what needed to be done.
This group has not done its job, he continued. Some had an agenda. There are two members sitting on the Board that should have removed themselves due to a conflict of interest. They are part of a group that wants to do much more in terms of restricting access to the beach. They want to do some good things in terms of policing alcohol. That’s OK, there are laws for that already, he said.
Mr. Drake then related that he had gotten a letter from “you guys,” the Town attorney, saying that he could not sit on a case before the Board of Adjustment. Editor’s note: Mr. Drake is Chairman of the Rye Zoning Board of Adjustment. It was very heavy handed, he added. He said that “you” were afraid that he might side with Mike LaBrie because Mr. Drake had worked with his Mr. LaBrie’s wife, the Building Inspector, on the flood plain ordinance. Any perceived conflict of interest, even attending a barbecue at their house should prevent him from sitting on a case, according to the letter. However, Mr. Drake maintained that the relationship was evidence that should have been presented in the course of a public hearing.
Mr. LaBrie asked Mr. Drake to address the ordinance. Mr. LaBrie stated that arguments could be made on both sides as to any conflict of interest. With regard to criteria, they are looking at managing time, space and volume as much as anything. It’s an issue of getting a handle on who is using the beach.
Mr. Drake asked where the results of the study are. For example, where is the evidence that the Zumba people took too much space on this day, or the surfing lessons congested the waters.
Mr. LaBrie responded that the result of the study was this article. Several audience members reacted. One said that the audience came to hear what the study found. This puts the car before the horse, another audience member said. Two people provided their names and addresses. They were Carol O’Leary, 30 Laurence Ln., and Kelly Mannis, 21 Carbee Dr. Ms. Mannis asked where the data was.
Mr. LaBrie responded that this was not how the meeting was advertised. One may obtain the data by reading the minutes of the meetings and watching the videos. Someone said that it’s a “railroad job.”
Frank Drake asked if anyone remembered any of the data points.
Member Del Record stated that Joshua Carroll had attended one of their meetings. He is a PhD in Natural Resources, Recreation and Tourism. He did a study for the New Hampshire State Parks which is 50-70 pages long. Unfortunately they still do not have it. The bottom line was that people thought it was fine the way it was.
Someone interjected, yay, meeting over. Someone else asked whether the term “railroad job” had been used earlier. There was laughter.
Mr. LaBrie argued that Mr. Carroll’s study did not address the issue before the board. It addressed general beach conflicts, including dogs and other issues. Editor’s note: The RCL has obtained a copy of Mr. Carroll’s study and it is focused largely on conflicts between surfers and swimmers.
John Sherman, 25 West Rd., asked whether other towns had been looked at by the Committee, in terms of commercial activity. If so, what are they doing? Police Chief Kevin Walsh referred to a friend in the Orleans police department on Cape Cod. The majority of towns are facing the same issues. Truro has a group attempting to do clambakes, he said. Harwich has an event permit in place for businesses.
Del Record referred to research that he had done online, and by calling town halls from Wells and Ogunquit down to Salisbury. He has a list if anyone would like to see it. Wellfleet on the tip of Cape Cod has a permit for companies teaching surf lessons. None of the others do. His research, using Google, Bing, Ask, Bloomberg.com, Findlaw.com, Justia, Law.com and the law engine, among others and found no lawsuits against municipalities arising out of an injury occurring during a surf lesson or camp.
Larry Rocha, Perkins Rd., stated that the 2010 data is way out of date. Only in the last 2-3 years has it gone berserk, he said. On a nice day, even in midweek, there are cars all the way up and down the road.
Chairman LaBrie requested that the testimony be limited to the topic at hand.
Kim Gardner, 752 Central Rd. stated that the issue had to be addressed when she lived in Maine. It was addressed at York, Kittery and Kittery Point. Five years ago there was a lot of stress. It’s now under control, with the Police Department, the dogs and the bonfires. These are similar communities to Rye. These communities should be contacted regarding what they have done.
Steven Borne, 431 Wallis Rd., asked what the alternatives might be besides permitting. He stated that he had hoped that this would have come out of the study. He did not see any of that discussion in the video or the notes. He asked what other towns have done.
Max Smith, Alder Ave., stated that he sees nothing in here that deals with safety. In 1967 Jenness Beach was empty because you could not park on Route 1A. Perhaps we should go back to that, he said. His grandchildren have been hit twice by surfers, and they’re good swimmers.
Bill Moll, Gray Ct., referred to two French Canadian surfers not staying 50 feet away. They were unable to understand him.
Member Del Record asked whether he thought a permitting process would change the situation. Mr. Moll responded that it might help, but it’s not a total solution.
Nancy Crosby, Jenness Beach, stated that the surf shop cannot be blamed for the surfers. Maybe rules for where you can surf are needed. The guys doing lessons are away from the crowds and are very orderly. This goes way too far. The surf shop is handling everything very well.
Chairman LaBrie stated that the Warrant Article wasn’t formed to deal just with surfing, but with all of the commercial activities. He referred to cross fit gym sessions, Zumba, multiple surf camps, and rental activities at Wallis Sands and Jenness Beach. There are also large yoga classes being conducted on the beach, he said. There is no overhead for those conducting business on the beaches. They need to find out who these people are and make sure that the proper insurance is in place.
An audience member stated that insurance was fine, but these things go way too far.
Lori Carbajal, 18 Tower Ave., stated that she had moved to Rye due to the serenity. It’s also the best beach that she could surf at. If she had wanted commercial activity she would have moved to Hampton. Surf camps are the best thing for kids and adults when things are not crowded. Commercial activities should be limited to ocean borne activities, not Zumba. Once the word is out there, everyone will be dropping their wares on the beach on the taxpayer dime. More resources will be needed for the police. Currently, there is no oversight.
Frank Drake responded that this was well said. A piece of the ocean cannot be bought to surf on. The ocean is a public trust. Zumba could be one on a field or in a studio, as Ms. Carbajal had suggested. Other activities than water borne should be banned.
Chairman LaBrie asked about multiple camps on Sawyers Beach. At what point would they need to get a handle on this?
Mr. Drake asked how much regulatory authority was vested with the Selectmen to control that. He said that he has seen only Summer Sessions on Sawyers Beach. He asked whether it was within the power of the Selectmen to tell Cinnamon Rainbows that they cannot conduct lessons on Rye beaches. Editor’s note: Cinnamon Rainbows is located in Hampton. From their website, they appear to be a similar business to that conducted by Summer Sessions, which is located in Rye.
Keith Eveland, 82 Liberty Common, stated that he had spoken to Mike Houseman, the Seacoast Parks and Recreation guy responsible for the beach. Mr Houseman stated that all commercial activity at Jenness Beach requires a permit. During the busy summer season, he would probably not allow commercial activity such as surfing. He asked why the Town should allow it if the State does not.
Several people asked about the authority of the Town. Someone said that it is Town property, so the Town can control it. Selectman and Member Musselman stated that, only if there is an ordinance is the regulatory authority in place permitting it to be controlled.
Someone asked why commercial activity was allowed. Rye Beach District zoning prohibits commercial activity, the person said. There was discussion as to whether Sawyers Beach was within the Rye Beach District.
Lori Carbajal stated that the eastern side of Route 1A is all zoned residential from the Beach Club to Straws Point. Selectman and Member Musselman stated that there is an unanswered legal question as to whether the zoning authority goes beyond the high tide line.
Frank McDermott, 30 F St., said that everyone is concerned about the beach. The intent is not that the Board of Selectmen will start denying permits. It’s to get a handle on it. The situation with crowding is getting worse every year. Tyler is the main attraction. Editor’s note: This is an apparent reference to Tyler McGill, one of the co-owners of Summer Sessions. Mr. McDermott stated that he had attended the first meeting and watched videos after that. This is minimal. Denver is having problems with their parks. They charge $200 per event now.
Member Tyler McGill stated that the issues with more people on the beaches would not necessarily be solved by permitting. He operates out of limited space, and his lessons have not grown much since they moved to Jenness Beach. People from Montreal and Boston cannot be prevented from coming. Although Zumba is being regulated it’s going to come down to them (i.e. Summer Sessions).
Mr. McDermott stated that he does not see this as being directed at them, although they are the big game in town right now. If he applies for a permit it’s unlikely he’ll be turned down. The issue is that they don’t want ten surf camps operating at the same time. There shouldn’t be clambakes every night, or weddings on the beach. Several in the audience asked, with respect to the latter, “why not?”
There was discussion about the flags to segregate surfers. Several in the audience stated that it doesn’t work. Someone asked why people should be restricted in terms of where they can use the beach. Member Tyler McGill interjected that only the surfers are restricted, swimmers can swim anywhere. There was audience reaction disagreeing with that.
Selectman and Member Musselman stated that no one thought that this was a panacea. The data is ten citizens of Rye that have discussed and looked at what data is available. What Tyler said was correct. The conflicts between surfers and swimmers do not primarily arise from the lessons. There are other issues, including dogs and the consumption of alcohol. There are ordinances in place for those, but the Town has limited ability to police them due to a lack of staff. Those are issues for a different forum. There is a question of whether there is enough beach devoted to swimmers. Should there be other sections of the beach that are predominantly or solely for surfers? In Los Angeles the swimmers and surfers are separated and they work it out. This will be worked out to, with the Beach Commission and the Board of Selectmen. The rule is in place that you have to stay 50 feet from a swimmer. There was audience reaction that this was “baloney.” Selectman and Member Musselman stated that he understood that, but there is an ordinance, and it can be, and has been, enforced.
Those facilities are in place, however there is nothing in place to deal with commercial activities and that is what is proposed. There has also been an event permit process in place for 20 years and no one has been turned down. The purpose is to manage conflicts.
Steve Hillman, 399 Central Rd. stated that a lot of this discussion wouldn’t be occurring if they had concrete data. They do not know who is using the beach for profit outside of Summer Sessions, other than a few groups here and there. Chairman LaBrie stated that they did have the data, but it was not part of what they are presenting. Mr. Hillman stated that this information is needed so that people can make informed decisions at voting time.
Chairman. LaBrie referred to the meetings. Mr. Hillman stated that he was one of the few citizens who went to the meetings. There was no studying done. There was a lot of paper pushing, and a lot of agendas. Not much was going on besides ordinance writing. This was a committee to study, he said.
Mr. Hillman stated that he hadn’t seen many of the people there that night at the earlier meetings. Several said that they had viewed the meetings online.
Mr. Hillman continued, talking about the flags. The flags are not being used during peak periods. It should be opened up on busy days so there’s a big swim area. When it’s not so busy, or the ocean is 50 degrees, it is closed down. If there’s surf and warm water. We’re talking about 16 weekend days, he said. It’s a small window, but the flags work in every giant megaplex, like Los Angeles. They just have to be utilized properly.
With regard to permitting, the police are having enough trouble now without having to deal with permits.
The craziest thing is rentals, Mr. Hillman continued. Surfboards can be rented at 20 different places within 20 miles. They can be rented in one place and brought to a different one. This cannot be regulated. Is the Chief going to have someone swim out to inquire as to the type of board?
Chairman LaBrie stated that someone was putting out 30-40 “SUP’s.” Editor’s note: This is an apparent reference to stand up paddleboards. These have become increasingly popular in the last couple of years. They are similar in shape to a surfboard, but much larger. They are propelled from place to place by a single paddle, operated by the user who stands on the board. Mr. Hillman asked who the outfit was. Mr. LaBrie could not answer. Mr. Hillman stated that they needed to get the data. It’s being done off of hearsay, taking bits and pieces. There’s not a good base of information.
Chairman LaBrie disagreed, stating that they had been dealing with this all summer, and Committee members have been going to the beach for many years.
Mr. Hillman stated that the permit has to be fair, equitable and enforceable. It has not been demonstrated that these criteria have been met.
Steve Frost, 32 Old Beach Rd. spoke about a 1999 ordinance, section 8b, prohibiting the sale of food and beverages. Selectman and Member Mills stated that that had been put in place because of a kid from Rye Beach who had a hot dog cart. Frank Drake interjected that it was Italian Ice. The last name was Siri. We don’t allow hot dogs in Rye Beach, he said.
Mr. Frost asked if the ordinance did not open up to services being sold on the beach like surfing lessons and Zumba lessons. It opens up a Pandora’s box. Doesn’t a permit process say that businesses on the beach are being endorsed? How about summer camps, soccer camps, and navy seal training? How are you going to stop that? A person in the audience stated that they can’t, because they said they are not going to turn anyone down.
Frank Drake said that there are a lot of other places to do some things. Surfing lessons are the best-regulated kids on the beach. (There was some audience disagreement with that). Mr. Drake continued, stating that the instructor ratio is high 3:1 or 4:1 instructors to kids. He has no problem with banning certain activities, like things sold on the beach. He likes banning activities that can be conducted on land and don’t require the water. These include weight lifting, Zumba and Yoga.
Then a permit could be tailored just for surfing, paddleboards and kayaks, Mr. Drake suggested. But they didn’t do what the warrant article required. The Committee was sucked in by the Selectmen to do what the Selectmen should have been doing. They should have presented the Selectmen a report regarding what was going on on the beach and the Selectmen should have written the ordinance. That is what we elect them to do. Mr. Drake stated that he was very disappointed with the extent of the agendas.
Member Bill Epperson stated that he took offense to diminishing the time that every one of the Committee had put into it. They did everything that they could to make it better for the people on the beach. We don’t know who is on the beach other than “this guy” (apparently referring to Tyler McGill) who has the integrity to come before us. Not everyone will be permitted, Mr. Epperson said. There won’t be two more surf camps at a time when he is doing a lesson. Mr. Epperson complained about criticism of the Committee. The audience applauded.
Mr. Drake stated that Mr. Epperson had missed the point, and left for dinner.
An audience member spoke up to say that the draft article was excellent. Without a permit, the problems will continue. Those pooh poohing are trying to kill the permit as they are against it. What do you have if you do away with rules just because they cannot be enforced?
Scott Marion, 71 Washington Rd. ,stated that it seemed that the complaints are more about surfing than surf camps. It’s like a drunk looking for his keys under a street light because it is the only thing that is shining. Flags work really well. He doesn’t see the surfers between the flags. A solution is being created, but they’re missing the problem. That’s why people keep asking where the data is.
People are saying there cannot be three surf camps at once. Why not? What’s the carrying capacity? Where is the data? Maybe it is 50, maybe it is 10, Mr. Marion said.
While I respect you guys, you work hard for the Town, Mr. Marion said. However, it is not a Supreme Court appointment. You could be voted out. Then, we would be left with an ordinance without your fine judgment. That’s why were asking for more specific criteria, he said.
Lori Carbajal asked about the camps. Member Tyler McGill stated that the camps are mostly kids camps and are Monday to Friday, 9:30, 11:30 and 12-2. Whether the camps are taking away from the beachgoers depends on one’s perspective, he continued. There have been very few, perhaps two complaints in 11 years with regard to his camps. He works with Mike LaBrie and is cognizant of the flags and the lifeguards. The question of capacity depends on who you ask, and whether Summer Sessions is viewed as a problem.
Steve Frost asked whether the volleyball camp that he wants to have on Sawyers Beach would conflict with Tyler’s surf camps. Member Bill Epperson responded “maybe,” stating that that is what the permitting process is for. The ordinance is written so that it is in the discretion of the Selectmen. If he is the incumbent and has been there for three or four years, taking that portion of the beach, and is being a good citizen, why shouldn’t he be given the priority to be there.
Mr. Frost responded, saying that he did not believe that they could discriminate. Mr. Epperson stated that they would be discriminating in favor of something that is a better use of the beach and the water. Mr. Frost stated that they would be asking for a lawsuit. Mr. Epperson responded, stating that they had drafted the document in good faith to make things better. However, those of them that are elected can be voted out of office. That’s OK, as nobody is in it for the money. Mr. Epperson continued, stating that this can be a living document. Perhaps it will be the most horrible thing and it will be gone in three years. But people may see the value in it. But Tyler might come to appreciate it if someone else comes in and tries to encroach on their activities. There was a lot of testimony by people that are outraged at what is going on at the beach.
Member Tyler McGill stated that, whether an activity such as volleyball is for money or not, the impact is the same.
Member Del Record stated that there are approximately 18 miles of ocean shorefront in New Hampshire, of which 9 miles is in Rye. Forty percent is sandy beach, meaning that there is 3.6 miles of that. That’s 6336 yards. From Straw’s Point to the Beach Club area is 8249 feet or 2750 yards. Tyler’s surf camp takes up 100 yards, which is .036 percent. Editor’s note: It’s actually 3.6 percent. Someone in the audience complained that the calculation was incorrect because Jenness State Beach should be excluded.
Jan Bourne, of Spruce Ave. in the Jenness Beach area, asked about safety issues. While the flags are great, only ¼ of the beach is reserved for swimmers only, the rest is for both surfers and swimmers. Her grandchildren were hit twice by surfers this year. Is this Beach Commission going to look at this issue? Mr. LaBrie responded that that is not what this committee was set up to do. The Beach Commission implements the flags and the lifeguards. The resource is limited however. Ms. Bourne stated that the lifeguards were positioned in about a 50 yard area towards Cable Rd. Beach. Editor’s note: The Beach Commission is separate from the Beach Use Ordinance Committee which was set up by the Selectmen on an ad hoc basis. Mr. LaBrie is Chairman of both.
Fire Chief Skip Sullivan interjected that they do not have professional lifeguards. The same kid that was cutting your grass last week is going to be a lifeguard the next summer. These are high school and college kids. They try, but they have no enforcement authority. They get tired people of individuals, not just surfers, who tell them “the hell with you kid, I’m not listening to you.” Editor’s note: The lifeguards fall under the authority of the Fire Chief.
An audience member stated that the beaches in New Jersey are a lot more crowded, with a lot more surfers. He has experience as a lifeguard there. But, they work things out.
Paul of Myrica Ave. stated that that the beaches are getting out of control. The flags do not work. He was run over by a sea kayak in the middle of the flag area.
Steve Hillman stated that that indicates a problem with the individual, not the flag system.
Paul asked whether there would be a public hearing connected with the permit. Selectman and Member Mills responded that the permit application would be on the agenda. Paul continued, stating that the problem is not the surf camps, but that there are too many camps squeezed in. Everything is getting more and more compressed. He applauds the committee.
Selectman and Member Musselman suggested that the Board take up the issue of the flag system before next summer. The surfers made the point that there needs to be an area where they are not inundated with swimmers. Every area that has taken up this issue has dealt with it successfully. There is an ordinance in place that can be enforced. It’s time that this be dealt with. The conflicts can be managed.
Jonathan of 800 Washington Rd., stated that he had grown to respect the council and the service that they had done. He was humored by Frank. Member Bill Epperson, after clarifying that it was the “Frank” who had left, interjected that he had rolled a hand grenade in. Joanathan asked what percentage of unsafe surfers were coming out of the shop, apparently referring to Summer Sessions.
Kate Winslow, 158 Clark, asked whether the Town of Rye could legally regulate the waters.
Selectman and Member Musselman stated that Town Counsel had responded yes to three questions: (1) whether the Town can, through an ordinance, regulate activity on the dry sand (i.e. above the intertidal zone); (2) whether the Town can regulate activity in the intertidal zone, which is State land; and (3) whether the Town can regulate activities beyond the low tide line which is State land out to some number of miles. They have not obtained a written legal opinion as that would cost money.
Steve Hillman stated that he had offered his services every spring to help lifeguards understand the flag system. He wanted to go on record with regard to that. The flag system works if implemented properly, he said.
Mr. Hillman continued, responding to Mr. McDermott’s comment that Summer Sessions is not being targeted. He referred to a bumper sticker being put all over Town property stating that reads “Summer Sessions Surf Shop, destroying surfing and our community since 2002.” It is counterproductive, and useless banter that gets nothing accomplished. It’s interesting that this comes up right before this meeting. Some people think that the permitting issue is directed at surfing, surf camps and Summer Sessions. Obviously there is a faction that is “right on board with that,” he said.
Selectman and Member Joe Mills held up a copy of the bumper sticker that Mr. Hillman referred to. Someone quipped “now we know were they came from.” The audience laughed loudly.
Mr Hillman said that that doesn’t fix the problem. The only way to do that is to work together.
Sally, 108 Old Beach Rd. suggested that parking could be used to control visitors who largely come from outside of New Hampshire. She is disappointed that the focus is only on commercial activity. There is a safety and pedestrian issue as well.
Nancy Crosby referred to Cinnamon Rainbows, which is not in Rye. Mr. LaBrie interjected that they are in Hampton. Ms. Crosby suggested that, for a business to get a permit to use a Rye beach they would have to be based in Rye. Audience members responded that that could not be done.
Tom Degnan, 41 Park Ridge responded to the comment about restricting parking. That would reduce a finite space owned by the State of New Hampshire. He stated that you cannot reduce parking to reduce the number of people. Public access is a major issue in this state. The beaches are advertised to attract people. You can’t restrict non-residents because the residents don’t want them in the community.
Someone interjected that this had been voted down. Editor’s note: This is a possible reference to 2012 Warrant Article 18, which asked that the Selectmen look at restricting parking on Locke Rd., which was voted down 627-718.
Joe Cummins asked whether the Selectmen associated themselves with Mr. Epperson’s comment regarding preferential treatment. Selectmen and Member Musselman indicated that he did not believe that such treatment had been given in the past. Each application would be approached individually, he said. Selectman and Member Mills interjected first come/first served. You’ve been to meetings and seen how we work, he said.
Member Bill Epperson explained what he meant. The permitting process would be seasonal. If Summer Sessions got its application in and it was approved early in the season then it would have preferential treatment for the rest of the season.
Scott, 762 Central Rd. asked about the comment about a permitting process already being in place pursuant to an ordinance. Selectman and Member Musselman clarified that there was one in place for road races, there is not one currently in place for the beach or Zumba classes.
Scott asked whether an ordinance in lieu of a permit, could be considered. Chairman LaBrie stated that this article allowing for permitting would be added to an existing ordinance.
Scott commented that the permitting process would be open to public comment at a Selectman’s meeting. He indicated that those comments could sway the Selectmen one way or the other, leading to preferential treatment.
Selectman and Member Mills responded that there would need to be substantial statements and a volume of people for this to happen. In 22 years as a Selectman he has not denied a permit yet.
Scott responded that he had heard committee members state that there would be permits that would be denied.
Selectman and Member Musselman indicated that a volleyball camp with the net sideways might block longitudinal access at high tide. Some activities that some might want to do might not be appropriate. He referred to a burn permit being denied for a pyrotechnic display in the intertidal zone. Each one would be taken on a case by case basis, he said.
Victor Azzi, Old Ocean Blvd. stated that some of the thinking had been coming out in the responses. Having heard all of this, it looks like a solution without a definition of the problem. He won’t belabor this as others have made the same point. That happens all too often when people are anxious to start writing without first collecting the facts. He indicated that the event permits heretofore granted had been one-time, special events, issued once a year. This is quite different. What if XYZ surf shop proposes surfing lessons for 7 hours per day during June, July and August? Would they get permits for all of those lessons in one fell swoop? Chairman LaBrie responded that the application could accommodate both one-time events and ongoing activities.
Mr Azzi asked whether the permit holders would have exclusive right to use a particular patch of land. If a family wants to use the beach at the same time would they be told to leave? Are the rights exclusive to the permit holders?
Selectman and Member Joe Mills stated that it is first come first serve, which is what he had told Victor’s wife.
Selectman and Member Musselman stated that the permit did not grant exclusive rights. The space would need to be worked out between the individuals involved, as has been done in the past. If it became more intense then there might need to be flags and limits.
Mr. Azzi asked about the space per camp.
Member Tyler McGill responded that camps of 30-35 people need about 50 yards of width. If there are other surfers they may split the camp. They run the camps on Sawyers because it is less crowded.
David Borden, 40 Walbach St., New Castle commented that he has two grandchildren that loved the Summer Sessions lessons. Editor’s note: Mr. Borden is one of the two State representative for New Castle and Rye. Mr. Borden stated that he would hate to see restrictions that put them out of business. He is here because of the State Parks. It is a small part, but they have a lot of the parking. He asked what the process would be after tonight. Chairman LaBrie stated that it would be up to the Selectmen. The State parks are understaffed, Mr. Borden said. He could help facilitate interactions. It would be good if the processes had some consistency. At a minimum, the State Parks should be fully aware of what the Town is doing.
Mr. Borden continued, stating that the more complicated this is the more oversight will be needed. He asked Police Chief Walsh whether there were three officers that could be put on the beach. Police Chief Walsh responded that there were not. There are two officers on duty at a time, and one officer on duty after 1:00 a.m. They call another officer in to handle the volume when needed so as to stay within the budget. The more conflicting uses there are the greater the need will be to sort things out.
Chief Walsh responded that he is 100 percent sure that this will fall in his lap. The State has not issued any permits during the peak season for Jenness State Beach or Wallis Sands because those are just for people using the beach. They do events at Ragged Neck State Park and Odiorne Point State Park. He is aware of those because the Rye Police are notified when alcohol is served because an officer must be there.
Selectman and Member Musselman stated that at Jenness Beach State Park there are no dogs, surfing or Zumba on the beach. Recently, an agreement has been signed permitting the Rye Police to enforce this.
Steven Borne, 431 Wallis Rd. asked what would happen if the group responsible for the bumper stickers put in 10 applications on January 1, locking Summer Sessions out. Chairman LaBrie responded that he assumed that the applicants would be capable of putting on a surf camp and have credentials. Selectman and Member Musselman stated that they would have the ability to quickly table a request like this and gather more information.
Kelly Mannis, 21 Carbee Dr., asked whether this is the end game. She asked whether they are they going to research other areas or whether this is this the final ordinance. Chairman LaBrie responded that the discussion about this would occur after this public hearing.
Member Katy Sherman commented that she had spent a lot of time calling other towns up and down the eastern seaboard and finding out what is allowed, what is not allowed, and what permits are required for. That has been shared during the meetings. Chairman LaBrie stated that he had been contacted by other towns. They are very interested because we are a little bit ahead of where they are.
Steve Hillman asked what would happen if there are changes. Chairman LaBrie stated that it would go to the Board of Selectmen. He stated that everything is public.
Victor Azzi asked for clarification regarding the Memorandum of Agreement signed with the state about 7 weeks ago. He asked whether an opportunity had been given for the Town to run the State beaches. Selectman and Member Musselman responded that it wasn’t an opportunity to run them, but to enforce state laws. Police Chief Walsh stated that it was an opportunity to enforce the DRED laws. Editor’s note: The reference to “DRED” is apparently to the New Hampshire Department of Resources and Economic Development, which oversees the State Parks and Beaches. These are in the process of being listed out, Chief Walsh said. He expressed uncertainty about exactly how this would work. It would need to start with education. They’re talking about water, so there’s a question of where the line is.
Peter Crawford, 171 Brackett Rd. stated that there were enough diverse views that he would hate to see this go directly to the Selectmen. There need to be more hearings. People need to be given the opportunity to mark up the ordinance and suggest changes to the board.
Mr. Crawford continued, stating that he believes that there are some serious constitutional issues, notwithstanding Town Counsel’s oral opinion. He cited State v. Moore, 91 N.H. 16, Village of Hanover v. Atkins, 78 N.H. 308, Appeal of Monsieur Henri Wines, 128 N.H. 191, and Ferretti v. Jackson, 88 N.H. 296. These cases all stand for the proposition that, if you have an ordinance that is so unclear as to the standards for granting or not granting a license, it can be challenged constitutionally. He stated that he believes that this ordinance is probably in that category. What few standards exist are enumerated in the purpose and they’re not clear to begin with.
Regarding Town authority over the beaches, Mr. Crawford stated that Lakeside Lodge v. Town of New London, 158 N.H. 164 provides that anything in the waters would be State, not Town, authority. That case related to a dock on a State lake. Above the high water mark, the authority is with the owners. This would apply all along Wallis Sands beach and some other beaches. Anything above the average high tide over 19.5 years belongs to the owners, Mr. Crawford said.
Selectmen and Member Mills asked Mr. Crawford where he got the information. Mr. Crawford responded that it was Purdie v. Attorney General, 133 N.H. 661. Selectman Mills stated that he had a letter from the Attorney General and would share it with Mr. Crawford. Mr. Crawford stated that the Supreme Court decision would override any opinion by the Attorney General. Mr. Mills stated that there was no determination as to the “dry sand” by the Supreme Court or the Attorney General. Selectman and Member Musselman stated that the case that Mr. Crawford had just cited left that undefined, purposely. Editor’s note: Mr. Mills subsequently provided Mr. Crawford with a copy of a 2003 letter from an Assistant Attorney General referring to the settlement in the Purdie case having left open the issue of ownership of “dry sand above the high water mark.” Like all settlements, this is only binding on the parties, and does not constitute a court precedent. The Purdie case clearly states that land above the mean high tide level cannot be taken from the owners without compensating them.
Mr. Crawford said that the case said that, if you want to take away the dry sand you need to compensate the owners. He stated that the owners have not been compensated, so they still own that land. Selectman and Member Mills stated that they do not, as New Hampshire is a public trust state. Editor’s note: While New Hampshire is a public trust state, all that that means is that the land below the mean high water mark is held in trust by the State for the benefit of the public. The attempt by the legislature to extend the State’s ownership beyond the mean high water mark to the highest level tide level achieved during the 19 year tidal cycle (a “syzygy tide”) was specifically rejected in the Purdie case.
Mr. Crawford continued, stating that some of the beach definitions would extend into what the Supreme Court has said is private property. He then referred to Little Harbor Beach, the beach beyond Sanders Poynt not being listed. He said that it should be listed. Although there may be a question of needing to cross private land to obtain access, those coming by kayak from the Seavey Creek Bridge with lunch are absolutely free to use that beach, Mr. Crawford said. Chairman LaBrie stated that he was not familiar with that beach. Selectman and Member Mills stated that it has nothing to do with this, it is on Wentworth Rd. and is in litigation and will be decided next year. Editor’s note: Robert Jesurum, a Town resident in the area sued the Wentworth-by-the-Sea Country Club in Rockingham Superior Court after the Club erected a fence to block off a parking lot adjacent to the beach. The Town had issued a building permit for the fence, but subsequently joined the suit on the side of Mr. Jesurum as boulders and shrubbery had also been installed and no amended site plan application had been filed. Mr. Crawford stated that whether the beach below the high water mark is in the public trust is not in question. The question of what the Town may regulate involves what can be regulated in the water.
There needs to be more investigation before this is passed along, Mr. Crawford continued. It is too bad that the public was prevented from speaking from the very first meeting. A lot of time could have been saved if that input had been taken into account much earlier. Selectman and Member Mills stated that it was a work session and was advertised as such. Mr. Crawford stated that he knew that, but his point was that a lot of time could have been saved if the public input had been taken into account earlier.
Deb White spoke in favor of public access.
Another audience member asked if there would be another meeting. Chairman LaBrie responded, indicating that that would be discussed.
Mr. LaBrie then closed the public hearing.
(at this point, many of the people that had been present left)
Committee discussion
(The Committee reconvened after a break)
Chairman LaBrie then suggested another meeting, open to the public, to digest what has been discussed here. Selectman and Member Musselman suggested that the public be permitted to speak. Selectman Mills stated that no public input should be allowed, like that from the “yahoo” who spoke at the end. All were in favor.
Selectman and Member Musselman suggested that, at the next Committee meeting, they consider whether the Beach Use Ordinance Committee should make a recommendation regarding increased enforcement of existing ordinances and the consideration of alternatives to manage swimmer/surfer conflicts.
Member Del Record stated that they had taken a beating tonight because they had not stuck with what the voters had said. He suggested that they stick to the charge.
Chairman LaBrie stated that the issue should not be clouded. Selectman and Member Mills stated that the Board of Selectmen and the Beach Commission could take care of this.
Member Tyler McGill indicated that he would be gone until the first week of November.
The next meeting was scheduled for November 13, 2013 at 6:00 p.m. at the Town Hall.
Whereupon the motion to adjourn carried unanimously and the meeting adjourned at approximately 9:00 p.m.
