HTML file for Civic News Links: BeachUseCommitteeNotes121213revA
NOTES OF DECEMBER 12, 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, Bill Epperson, Joe Mills, Mike LaBrie, Craig Musselman, Del Record, Tyler McGill, Police Chief Kevin Walsh (ex officio). Arrived late at 5:41 p.m. and sat in audience: Fire Chief Skip Sullivan (ex officio).
Members of the public present: Peter Crawford, Lori Carbajal, Keith Evelund, Steve Hillman (entered and left the room several times)
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.”
The video begins at 5:08:46 p.m.
- Tyler McGill of Summer Sessions indicates that local surf shops will not support proposed beach permitting ordinance insofar as it relates to rentals and ad hoc lessons.
- Police Chief Walsh and some Committee members argue for limiting surfboard rentals to control beach conflicts, but the Committee appears to reject that as unworkable.
- Tyler McGill and certain members get into heated arguments.
- Tyler McGill indicates he cannot support the proposed amendment as the ordinance provides no criteria for non-renewal and because grandfathering only applies to 2014.
- Selectman Musselman argues that the vague statement of purpose in the proposed ordinance establishes the criteria.
- Selectman Musselman rejects, as difficult to implement, Del Record’s suggestion that the proposed ordinance be amended to provide criteria for non-renewal of permits.
- The proposed ordinance is amended, on a 6-2 vote, to provide two years of grandfathering rather than one. Committee votes to recommend to the Selectmen for the March 2014 warrant.
- Del Record requests that data supporting the Committee’s conclusion be assembled and presented to the public. The matter is tabled until the January 6, 2014 meeting.
Approval of minutes (0:09 elapsed)
The minutes of the prior meeting were unanimously approved with one minor change.
Initial discussion the of draft ordinance and local surf shops (1:29 elapsed)
Chairman LaBrie indicated that he would like to review the recently provided draft of section 8 and then address the report of Katy Sherman.
Chairman LaBrie summarized the draft ordinance. There is language identifying designated beach equipment. If someone had a history of water-based activities during 2013 through the use of designated beach equipment, and an application not increasing the frequency or magnitude from that in 2013, a permit will be issued. Those without such a history would need to make a fresh application. Beyond that, permits would be issued based on section 13(a).
Selectman Musselman stated that this was the sixth draft between him and Mike as they had tried to say what the group had voted last time. Editor’s note: It appears that he was referring to Chairman Mike LaBrie, but he could have been referring to Town Counsel Michael Donovan.
Chairman LaBrie stated that an inventory of water-borne activity this past season had been provided by Tyler McGill. Editor’s note: Tyler McGill is the proprietor, along with his brother Ryan McGill, of Summer Sessions, located near Jenness Beach. Summer Sessions provides surf lessons and surfboard rentals. These have been key topics discussed by this Committee. Mr. McGill stated that the inventory includes Pioneers, The Shack, Cinnamon Rainbows and Summer Sessions. Mr. LaBrie stated that the level of camps by Pioneers is low. They are located on Route 1, next to the Fresh Market and Rite Aid. Editor’s note: See www.pioneersboardshop.com. They are located at 62 Lafayette Rd. in North Hampton according to their website. Cinnamon Rainbows is located in Hampton. According to its Facebook page, the Shack is located at 1209 Ocean Blvd. in Rye, which would be near the Red Roof Market at the intersection with Wallis Rd.
Selectman Musselman stated that they would want to know the frequency of Pioneer’s activities last year and specify that frequency in the permit.
Mr. McGill explained how he had compiled the information. He went through each surf shop that is both local and established. He inquired about group lessons, events, camps and programs, in terms of what is advertised on a website and could be used for planning purposes. He took the maximum and used that number as a worst case scenario. Nobody does large programs on weekends, as he understands. The only time multiple groups are active at the same time is after 5:30 p.m. He does not believe that there have been any complaints as the beaches are “mellow” by that time.
Objections of surf shops to the proposed permitting ordinance (8:45 elapsed)
Mr. McGill continued, stating that he had passed along to the surf shops information on the proposed permitting process. All of them had difficulty with the rental equipment and unscheduled lesson aspects.
To him, rental equipment seems to be outside the scope of what they are trying to do, primarily because surfboards may be rented in one shop and taken to a broad range of different beaches. To limit the number of boards seems to be difficult.
Mr. McGill then gave the example of ad hoc lessons for three persons.
The easiest thing for him and the other shops to agree to is the provision applying to scheduled programs. None of the shops could understand how the rentals and lessons could be permitted.
Chairman LaBrie stated that there would be some flexibility as to on-demand lessons. The process will evolve, he said.
Mr. McGill stated that everyone said that they had on-demand lessons which depend on the number of customers and whether coaches are available. It was easy for him to see how he would apply for a permit for lessons, camps, etc. There is a fixed maximum and an exact spot, he said.
Selectman Musselman stated that, with regard to rentals, the permit application should simply say that the activity is conducted. He does not think that they care about the numbers. For rentals, we’re interested in getting people to sign the document relating to liability, and insuring that an insurance certificate is in place, he said. For unplanned lessons, the application should specify that there are unscheduled lessons and the maximum persons and numbers of days per week and the duration. Nobody is trying to micromanage anyone, he said.
Discussion of quantitative limits on surfboard rentals (13:42 elapsed)
Chief Walsh stated that he is in support of them making money. However, when the weather is good, that draws in more customers. He knows that the management of this is all going to fall back on him. There needs to be a maximum set in stone so that it can be regulated. The natural inclination of businesses is to make money and maximize the number of participants.
Del Record asked Chief Walsh to confirm that he was talking about camps, not rentals.
Chief Walsh responded that it’s the same thing with rentals. The intake is being added to. If 50 boards are rented, all of those boards will be out there. It’s difficult for him to manage that. Kayaks are mixing with swimmers. If more boards are coming out it is going to be a challenge to manage.
Selectman Mills asked whether he wanted to regulate how many boards could be rented.
Chief Walsh responded that every permit should have an ultimate number.
Selectman Mills stated that those renting boards could take them to Maine.
Selectman Musselman stated that there needed to be an assurance that a board was being rented from a shop with a permit. He does not need to be concerned about the numbers. The boards in use could be owned or rented. He does not think that they are going to be in the business of controlling the number of boards.
Chief Walsh stated that he will do whatever the ordinance says and the people want, however it will be difficult to manage. This will be a long process and may take five years to fix.
In response to a question from Katy Sherman regarding the maximum number of boards that he rents in a day, Tyler McGill stated that he has to have 45 boards on hand for the kids camps. In response to a follow up question from Chief Walsh, Mr. McGill indicated that, on a hot day, most of their equipment would be on a beach or in a waterway. He also acknowledged that the 45 boards would be rented out on Saturday or Sunday.
Mr. McGill then stated that the issue is too many people on a specific beach. However, the boards can go anywhere. People move up and down the beach from The Wall to Jenness Beach depending on the state of the tide. Editor’s note: The Wall is in Hampton.
Mr. McGill said that to say that Jenness Beach can only support 20 rental boards does not make sense. There could be 1000 people that own surf boards. To limit the number is an overreach. Selectman Musselman agreed and indicated that rentals should not be limited. Chairman LaBrie stated that the rental process would include checking who is renting and making sure that the paperwork was in place and the proper information is disseminated. It is incumbent on the renters to stay 50 feet away and have a leash, just like any other surfer out there.
Mr. McGill agreed, and stated that for police officers to be at the beach asking people where they got their boards was not doable.
Chief Walsh stated that he would not be doing that. However, from his perspective, if Summer Sessions has 250 boards, on a hot day in July, they will all be rented. It’s easy to walk across the street to use them, he said. That is where the challenge is. The dynamics have changed. It used to be friends and family. This is a necessary part of what we’re doing, he said.
Selectman Mills said that no matter how many boards are rented out, the surf area must be designated and policed. They’re going to have to work together and take turns. He is not talking about the lessons, but the public, he said.
Chief Walsh said that Summer Sessions has always tweaked things quickly after their requests. Other businesses do not have the buy in. That is why it will be hard for the Police Department to regulate.
Mr. McGill pointed out that Pioneers is on Route 1 and people renting from Cinnamon Rainbows typically strap the boards to their cars. The Shack is close to the beach and Summer Sessions is the closest to the beach. He stated that the permit would apply to others beyond Summer Sessions, and asked how boards rented on Route 1 would be policed. Selectman Musselman said, “you’re not.“
Katy Sherman suggested that there be limits on numbers of surfboards associated with the permits. Mr. McGill asked why a business on Route 1 would have a restriction from Rye when the boards could go to Maine or Hampton or Massachusetts. Selectman Musselman argued that if rental boards are limited, people will buy boards.
Bill Epperson asked Mr. McGill how many rental boards he had. Mr. McGill responded that he had 45 for the camp, 10-12 SUPs, a lot of which go to lakes, probably a total of about 60. Editor’s note: “SUP” is an acronym for “stand up paddleboard.” This past season, which was not a good one for surf, they were completely out of boards on perhaps only one day, he said. He received two calls from Cinnamon Rainbows saying that they were out.
Katy Sherman stated that the Committee needed to listen to what Chief Walsh was saying. The businesses on the beach bring more people to the beach.
Chief Walsh stated that the businesses are providing a service which changes what is going on in the water. You have swimmers, surfers and kayakers all interacting, he said.
Selectman Musselman said that, as things change, they can deal with the issue through swimming and surfing zones. They beach is not remotely close to saturation compared to San Diego and other places. We’re going to have to have the flexibility to manage it properly so everyone can do what they need to do.
Selectman Mills stated that the parking would limit how many people can come to the beach unless there are buses shuttling people. Editor’s note: See the notes of November 23, 2013 Planning Board Site Walk at Foyes Corner. Mike LaBrie, who is seeking, through his business Bluestone Properties (which owns the southeast corner), to build a restaurant at Foyes Corner, stated that the parking lot there is currently used as a “Park and Ride” for the beach, and that that would continue.
Bill Epperson stated that the surfing area is not going to get any bigger. It is going to be frustrating for the surfers if there are 50-100 people. Chairman LaBrie stated that the surfing area would get a little bit smaller this next season. Selectman Musselman stated that the swimming and surfing zones can change in size.
Chief Walsh noted that this past year was not a good one for surfing as the storms did not come north. The storms generate additional activity, with people coming from out of the State and out of the country, he said. Mr. McGill stated that waist high waves would result in cancellation of the kids camps. Due to liability issues, their operation, including board rentals and camps, does not run when the surf is high. At that time, the better surfers come out.
Mr. McGill agreed that consistently, each year, there are more people. Everyone seems to be worried about the next business in Town. However, businesses are being converted to homes. An example is Saunders. The businesses on the beachfront are shrinking. If the Dunes ever sells, it’s going to be condos, he said. The local businesses need to be supported. If they’re not busy during “those” months, none of those businesses would exist. Editor’s note: He is apparently referring to the summer months. That would be a shame, he said, because they are an amenity.
Heated discussions between Mr. McGill and other members (27:52 elapsed)
Katy Sherman responded, stating that this was not about supporting small businesses, it is about businesses using public land and how the people of the Town are handling that. She imagines that everyone in this room supports local businesses, she said.
Mr. McGill referred to one of Ms. Sherman’s e-mails, and Ms. Sherman’s father, who had recommended a moratorium on all commercial activity. Editor’s note: Keith Evelund is her father. He was in the audience when Mr. McGill said this. He said that he did not understand how those kinds of stances could be taken and it still be said that they support local businesses.
Bill Epperson stated that it really did not matter how many people showed up at the beach with surfboards as long as they stay within the designated area. That’s less of a challenge than counting surfboards, he said.
Tom Farrelly spoke about the bad actors of the beach, and “fruit loops” that rent a cottage and got a board and go surfing with no skill. These are the people causing the problems, he said. If you are a business that cares, you should not just care about how many boards you can get out, he said. He referred to a comment that he asserted that Mr. McGill had made in the very beginning saying that “if I could push an infinite amount of boards and get a buck, I’d do it.” Mr. McGill responded, saying that the statement had been made as a joke. Mr. Farrelly then stated that there are people that think that’s what Summer Sessions is about.
Chairman LaBrie stated that, if we shut him down, someone coming to rent a cottage would get a board somehow.
Mr. Farrelly stated that the people who are renting from them are causing most of the friction. It’s people from outside the area, who don’t know what they’re doing and are trying to teach themselves how to surf that are the problem, he said.
Bill Epperson asked whether this was inside or outside of the surfing area. Chairman LaBrie responded that it was outside the swim area. Editor’s note: In Rye, there is not a surfing area per se, there is a swim area, of limited size, in which surfers are not permitted. Swimmers are allowed anywhere. Surfing is also prohibited at the State beaches in Rye.
Mr. Farrelly asserted that Chief Walsh knew the profile. The discussion became heated at this point. Mr. McGill asked to hear what the profile is. Mr. Farrelly described it as “people that rent, or come up for the day, who don’t know anything about surfing that rent a board from you that are down on the beach that aren’t staying 50 feet away.” Editor’s note: There is an existing Beach Ordinance that requires surfers to stay 50 feet away from swimmers. Chairman LaBrie noted that there are a lot of kids that get boards for Christmas that are in the same category.
(Fire Chief Sullivan is observed on the video arriving at 5:41:27 p.m.)
Mr. Farrelly stated that if the “volume level” of problems was to be reduced, they should deal with these people, who are causing the most problems.
Chairman LaBrie stated that adjustments could be made as the permitting process progresses and they get a handle on things. If they try to overreach they may end up with nothing, he said.
Mr. Farrelly asked why there couldn’t be cooperation from Summer Sessions with regard to rentals to unskilled surfers. Katy Sherman interjected that it would be hard to enforce. Mr. McGill stated that they do ask about surfing skill and whether the customer has surfed before. At the end of the day, everyone needs to learn how to surf, ski or play basketball. No one starts as a pro.
Further discussion about permitting of rental boards (36:02 elapsed)
Katy Sherman asked why Summer Sessions could not put in for a permit at the beginning of the year for say 65 boards. She said that she is trying to help with a solution as there are really two opposing sides. “This has gotten way out of control,” she said.
Selectman Mills asked Mr. McGill how many boards he had. He responded that he had been lambasted in the past, and did not actually know how many boards he had. Selectman Mills asked what would happen if he got a deal for 15 additional boards at a cut rate price. The number of boards is out the window as he could sit on them and not rent them, he said.
Del Record asked what jurisdiction they have to tell Cinnamon Rainbows, assuming they do not conduct lessons in Rye, that, to rent a board, they need a permit from Rye. Editor’s note: Cinnamon Rainbows is located in Hampton. Selectman Musselman stated that he believed that they did have authority. They could probably ask whether the board would be taken to Rye, and if so, some paperwork would need to be signed. Selectman Mills stated that the shop would refuse to implement that.
Bill Epperson stated that they were given a responsibility to study this and figure out a way to manage the profit-making businesses on the beach by designing a permitting process. They have done that. They should move forward with getting the permit approved. They should get that in place and then try to manage these collateral issues as they come up. To the Police Chief’s point, Mr. Epperson said, if the surfing area is “this big” (at this time he was holding his hands about two feet apart), that’s where they’re going to be, whether they have 50 or 100 boards. Editor’s note: As noted earlier, there is currently no surfing area of limited size at Rye beaches. There is a swimming area of limited size in which surfing is prohibited.
Mr. Farrelly stated that if Summer Sessions had been willing to limit some of what they are doing, we probably would not be at this table. Initially, he understood that the lessons had 25 people, but they have counted as many as 40.
Del Record said that limiting the number of boards still does not prevent the profile that Mr. Farrelly described. Chairman LaBrie stated that it was one more thing that would make it more difficult to put this in place.
There was then a discussion about a case with a surfer from Hampton which is going to court. Chief Walsh stated that he thought that the surfboard belonged to the surfer. Mr. Farrelly indicated that he had been there when that happened, and the individual is an excellent surfer. Selectman Mills stated that he was the only one they had trouble with last year, and he brought his own board.
Tyler McGill objects to absence of permitting criteria in the draft ordinance (41:59 elapsed)
Bill Epperson asked Tyler McGill whether he had read the proposed ordinance, with changes, and whether he agreed with it. Mr. McGill stated that he was comfortable with it, but it comes down to how they deal with lessons and beach equipment. He is comfortable with, and has the other surf shops on board for, the event-oriented activities that are scheduled, with set maximums. He does not believe that he will be able to get the other surf shops on board for lessons and beach rental equipment.
He continued, adding that they needed to clarify how the permit was to be granted or denied. He has heard the concern from the other businesses that each year they would be coming back for another permit and that it would be from a new Board of Selectmen.
Katy Sherman stated that, at the prior meeting Selectman Mills had asked what he would be comfortable with. He had said the addition of “this.” Editor’s note: She was apparently referring to the additional language adding a grandfathering provision for businesses at their prior levels. See the notes of the November 20, 2013 Beach Use Ordinance Committee notes. Ms. Sherman continued saying, “and now you’re saying that you also have…”
Mr. McGill interrupted and clarified that he was never in support of a permit. He explained that, when Selectman Mills had asked if there was any way he could support it, he had responded that if they were grandfathered in at their 2013 levels he believed that he could get overwhelming support for that measure. When he had told the other shops that they were grandfathered in for 2014, everyone had a concern as to what would happen after that. If a new BUC Committee is put together and it is all “Rescue Jenness Beachers” my permit one million percent gets denied, and so does Cinnamon Rainbows’ and Pioneers’. No one is willing to open up a permit unless we’re grandfathered in at that rate unless there is gross negligence, he said.
Mr. McGill continued, saying “So I don’t think any of us are willing to open up a permit unless we’re grandfathered in at that rate, unless there’s gross negligence of some kind. So that is our going rate, it is the current high water mark and other people that need to come for permits will have to address it as such.”
As he spoke, Chairman LaBrie leaned back in his chair and Selectman Musselman began twiddling a pen in his left hand. Mr. McGill’s statement elicited a number of simultaneous responses from the members of the Committee.
Ms. Sherman said “this is why we’re all here, though.”
Selectman Musselman said: “I think we’ve failed. I think we’ve all failed, quite frankly. We’re wasting our time.”
Chairman LaBrie said, “that’s a reach on your part.”
Ms. Sherman agreed, saying “even when we change things, you’re still opposed to this, that just… I’m a little surprised by that, to be completely frank with you…”
Selectman Musselman said “I’m surprised too, I’m shocked.”
Ms. Sherman said “we spent hours trying to make it work for you, Tyler. That’s why we’re all here. To make… And I’ve also heard ‘oh I’m going to go out of business.’ Your business is running on, right now on unapproved public land, and we’re trying to approve it. We’re trying to make a process so that Summer Sessions can safely run, so that the Town is giving you permission to do these activities, and you’re still arguing with us.”
Editor’s note: While the Town of Rye has the authority, pursuant to RSA 483-c:1, III, to make reasonable regulations relating to the beach, at least up to the mean low water mark, the beach and the submerged lands beyond are held by the State in public trust for the use and enjoyment of all, including for recreational activities. Lakeside Lodge v. Town of New London, 158 N.H. 164, 168-169 (2008). Use of the beaches for recreational purposes is not disapproved unless there is a law or ordinance specifically so providing. In this case there has been no assertion that there is any such current law or ordinance, which is of course why there is a proposal to require permitting.
Mr. McGill stated that, if he is grandfathered in at the 2013 rate and he does not have to come back each year for renewal, he is fine with the permitting process. If one season it’s 20 kids, and the next it’s 15 kids, and the one following that it’s 10 kids, then he is not OK with that. If the baseline is a grandfathered 2013 benchmark he is in support of that.
Chairman LaBrie stated that they could not possibly give someone, ad infinitum, the use of public property like that.
Selectman Musselman argues the criteria is in the purpose (51:13 elapsed)
Selectman Musselman asked whether the right would still exist in 2043. He then leaned over, held out a document, raised his voice, pointed to it and said “if you’re denied a permit, you have the right and the ability to point to the purpose and say ‘where are we not meeting the purpose?’ That’s your fundamental ability in the permit, and you can’t be denied at whim, you have, you can be limited if you don’t meet that purpose, it’s facilitate the safe and enjoyable and accessible use of beach resources by all beach users, which includes your surfers.” Editor’s note: At least as it stood at the public hearing on October 9, 2013, the purpose of the Beach Permit program, according to the draft warrant article “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.”
Mr. McGill responded, saying that he had shown this to two separate lawyers and asked them on what grounds his permit could be denied on the basis that his use intensity could result in unsafe or unenjoyable access to the beach. He raised his voice and continued “he says [sic] that it is 100 percent subjective. So you explain to me how I can feel confident that, so say, let’s not talk 2043, let’s talk the next BUC committee. How can I have any guarantee at all as a business that year-to-year I’m not continuing to be cut back?”
Ms. Sherman suggested that maximums be set up for each beach. That was initially the path that they were starting down, but you were opposed to that, she said.
Chairman LaBrie stated that they had tried an olive branch, to find a reasonable evolution that could work. If we’re not able to come together this is probably going to go forward and then there’s going to be a nasty Deliberative Session. It’s going to be like it was last year, but now these people will bring out their constituents. As he said this, he motioned towards Tom Farrelly and Katy Sherman. Both groups will come out in big numbers and it would be nice if that could be avoided, but it cannot be all one sided, Mr. LaBrie said.
Mr. McGill asked whether the permits would apply to just water-based activities or to land-based activities as well. Selectman Musselman said that, as it stands, the permit applies to both. However, he clarified that the 2013 activity level applies only to water-based activities.
Mr. McGill said that, last time, it had been said that no one wanted to cut back his activities. He asked why he could not have confidence beyond 2014. He has a hard time thinking that additions to his level of activity would pass.
Ms. Sherman interjected that it was a waste of time. We’re all taking care of Tyler over here, she said. We’re talking about the Town and the public beach, she said. It’s not your beach. The public owns it, she said.
Ms. Sherman stated that she had gotten e-mails that had come from Mr. McGill blasting the Beach Use Committee saying that they had not done a study. Mr. Farrelly made a somewhat inaudible comment that referred to Frank Drake. Editor’s note: See Mr. Epperson’s comments later herein. Apparently Mr. McGill had sent an e-mail to Frank Drake that had been widely distributed.
Del Record asked what the basis was for the permit that they voted to move forward with at the second meeting. He has said to everyone that they had not done a study. He never said that the permit was a bad idea. What he said was that the way they got there was a bad idea.
Chairman LaBrie flipped through the pages of a document and stated that they had addressed all of the commercial activities on the beach.
Selectman Mills stated that they gave out cabin licenses for people renting cabins during the summer. He challenged them to find one that had been rejected. He did not recall that any had been rejected in his 22 years. He cannot think of a case where a permit has been refused unless it has come with a recommendation from the Fire Chief or the Police Chief, something that is a danger to the people. “You’re paranoid that a Board of Selectmen is going to turn you down,” he said. “You have enough support, look what happened when we had the frog jumping contest. Okay. The Selectmen voted against it. The next week you couldn’t count the people that were here.” Mr. Mills went on to say that the meeting had to be held in the parking lot.
Mr. McGill stated that there was concern in the surfing community that there were factions in the community that would try to oppose their business. “You’re paranoid about that,” Selectman Mills responded.
At this point, Mr. McGill passed out copies of a document to the Committee. He stated that it was a letter from Devin and Tom that was passed out to the Rescue Jenness Beach people. Editor’s note: This is an apparent reference to Devin and Tom Farrelly. His mother and his brother went to the meeting, Mr. McGill said. A lot of people came by the shop asking about the group and what was going on. Mr. McGill read from the letter:
“We’re not here to create a consensus. We are a group of homeowners. Our experiences are facts. Our goals as taxpayers and homeowners, as parents and grandparents, is safety for our children and enjoyment of our homes and neighbors. Their [meaning the McGills’] goal is profit for their business. These goals are in conflict.”
Mr. McGill continued, stating that, yes, he had some reason for concern that the Rescue Jenness Beach people are cloaking themselves as being worried about security.
Tom Farrelly stated that, at the same time that Article 15 came up, people in the neighborhoods were venting about the same problems. They’re just people from the neighborhood, two and three generations of Rye people. At the meeting there were 60 people. After the meeting, he took the extra coffee and donuts to Summer Sessions and offered, to Ryan, to work together. He has not heard a peep.
Mr. McGill stated that they got the letter shortly after that, which led them to believe that little could be achieved by working together.
Chairman LaBrie asked whether the discussion could be taken down a notch.
Referring to his business, Mr. McGill said that “It’s also my hobby, my town, my community as well. So, for you guys to place this as simply profit-driven is ludicrous and slanderous.”
Chairman LaBrie stated that “it has always been my belief, Tyler, that putting a structure like this in place would give you a foothold in your business.” Mr. McGill responded “I agree.” Chairman LaBrie stated that it was in his best interest. If this fails, some of the people that want to restrict commercial activities on the beach would find other ways to make it happen, Chairman LaBrie said. Mr. McGill agreed. Chairman LaBrie stated that there were “ordinances in place that could be enforced and interpreted in a way to make that happen.” “I’m not threatening you,” he said. It’s in everyone’s best interest and in the Town’s best interest to come together. The boards are elected, and you can participate in that makeup, including the elections and appointments, he said.
Mr. McGill stated that he would like to be grandfathered and feel confident of 2015. It seems odd that he would have to come back every year. If there was a new makeup or an incident, everything that he worked 12 years to build would be in jeopardy, he said.
Ms. Sherman reiterated that he is using public land.
Selectman Musselman stated that “there are people who are pressuring the Town to end that.” “What we’re trying to do is allow it,” he said.
Bill Epperson said that “if we fail miserably at this… I guarantee you, tomorrow morning, you’re going to see a citizens petition to ban and outlaw any commercial activity…” He continued, saying that “it’s 25 signatures, it goes to the Deliberative Session. I guarantee it’ll pass.” Editor’s note: Under the SB2 process currently in effect in Rye, warrant articles may only be amended at the Deliberative Session in February. They do not go into effect unless a majority of the voters approve them in the March election. During the 2013 Deliberative Session, Warrant Article 15, which would have required permitting, was amended to require only a study. It passed 590-487, which is the reason for the formation of this Committee. This amendment was offered by Tyler McGill, and passed unanimously, or virtually so.
Selectman Musselman said, “I agree with you.”
Mr. Farrelly stated that “we had a flash mob at the Deliberative Session, if they had just trusted you guys, that they’ve known for their whole lives, if that had passed, none of this would be going on.” As he spoke, Mr. Farrelly was looking over at the end of the table, which was occupied by Selectmen Musselman, Chairman LaBrie and Selectman Mills. Editor’s note: As the time came up for consideration of Article 15 at the 2013 Deliberative Session a large number of people, perhaps 100 or more, and predominantly young, filed into the Rye Junior High gymnasium. Most appeared not to have been registered to vote in Rye, based on who was raising their cards to vote.
There was further discussion about the “Live Free Outside” signs, and who had paid for them.
Mr. Farrelly talked about the things that rub people the wrong way, including 40 person surf camps that no one else is doing.
Chairman LaBrie stated that Mr. McGill had stated his position and that he thinks that they should move forward.
Mr. McGill acknowledged that his surf camps have increased from 25 to 35. He is OK with the permit. His business is where he would like it to be. His concern is that, a year from now, the camps could be reduced from 35 to 25. The Board of Selectmen may agree with that. There is nothing in the permit that states what is reasonable.
Chairman LaBrie stated that what is appropriate in the future cannot be nailed down today, forever into the future. That is for the permitting process, he said.
Chairman LaBrie said that he was trying to work with Mr. McGill. He asked whether there was something specific that could be addressed.
Mr. McGill reiterated that it’s the ambiguity as to how permits would be granted or denied. That is not in there. It seems to be a judgment call based on safety, he said. Already, based on his current usage, Tom would say that it is unsafe, he said. While the current Board of Selectmen have stated that they do not have a problem with the current level, he is concerned about a different Board of Selectmen or BUC Committee, which could be a potentially less amicable group. The criteria are subjective, he said.
Selectman Musselman asked Mr. McGill to suggest some words.
Del Record suggested a denial clause stating that the permit could be denied “based on the following.” Mr. McGill said that that would make him feel better.
Selectman Musselman said that the biggest issue was going to be with the Zumba lessons. There are going to be no generators, no wires, no music allowed. That was 50 people, it could be 150, he said.
Apparently referring back to the surf camps, Selectman Musselman stated that he cannot think of anything that they would be denying, based on the application. We cannot lock in legally what you will have 40 years from now.
Specific criteria for permit denial rejected by Selectman Musselman (73:44 elapsed)
Del Record asked whether members of the Committee would have a problem with a clause in the ordinance that indicates reasons for denials. Selectman Mills and Bill Epperson indicated that they did not have a problem with this.
Selectman Musselman said that “it will be easier said than done.” They would have to run that by Town Counsel. He would have to pass judgment on each of the specific words and what could be contested as to each one. It will still, in the end, be broad. Frankly, to protect the public, if someone else comes in with a new permit application that conflicts, the Selectmen have to say no. One cannot predict what that is going to be in order to accomplish this objective. How it could be structured so that Mr. McGill’s attorney would not view it as being too broad is not clear, he said.
Mr. McGill asked how far they would be willing to extend the 2013 levels. He asked about 3 years or 5 years. Selectman Musselman suggested two year initial permits. Mr. McGill paused, made a sound and held his hand up to his head. Bill Epperson stated that they could not go longer than two years. Based on weather conditions, someone might make a case for more or less lenient provisions for surfing, he said.
Mr. Epperson asked whether this could be moved forward, that night, if the two year permitting process were included. Mr. McGill paused and again raised his hand to his head.
Ms. Sherman asked why the permit could not be applied for once a year. He is using public land, she said.
Mr. Epperson asked whether Ms. Sherman would support the two year process if it could be passed that evening. She stated that she would not, that it should be a year.
Mr. LaBrie stated that it would give him two years to let things shake out and for him to further get his support together.
Mr. Epperson suggested that a straw poll be taken, as it appeared that Messrs. McGill, Record, Farrelly and Ms. Sherman would vote against the two years. Editor’s note: That would have resulted in a 4-4 tie, assuming Messrs. Musselman, LaBrie, Mills and Epperson voted in favor.
Mr. McGill stated that he would vote for the two years, but was unsure whether he would support the entire proposed article.
Selectman Musselman asserted that, no matter what they agreed to, he was reserving the right to “go blast away” at it.
Del Record said that he would vote yes.
Tom Farrelly nodded his head no after Selectman Mills asked him whether he would support two years.
Selectman Mills stated that it would be 5-2. Editor’s note: Actually 6-2 as there were 8 members present.
Del Record moved to amend the Rye Beach Ordinance, Draft Article 13, to change “beach permits” to “two year beach permits,” and in 13(a) to change “the purpose of the beach permit program” to “the purpose of the two year beach permit program.”
Selectman Musselman objected to giving Zumba two years. There was discussion about that. Mr. Record then withdrew his motion, which had not been seconded. Selectman Musselman had an alternative motion. He read the changes, and explained that it would mean that someone new coming in would get an annual permit. The people that are there now get a permit for 2014 and 2015 and then go annually after that. This would apply only to water-borne activities, he said.
Selectman Mills seconded for discussion.
Ms. Sherman asked whether, if it read this way, Mr. McGill would be supportive and there would not be e-mails opposing the Beach Use Commission. He stated that he was not “100 percent” on that.
The motion to amend the draft to grandfather until 2015 passes (86:49 elapsed)
Referring to what Ms. Sherman was talking about, Mr. Epperson, speaking to Mr. McGill, stated that she was referring to “the e-mail that you forwarded to Frank Drake and he sent out to the world, you know, trying to garner support for your position, and you’ve got a right to do that, by the way, you can petition, that’s absolutely, you can absolutely do that, but, you know, to have an incendiary kind of discussion around this committee and what we’re trying to do. That would be unfair, I think. That would be unfair. I can’t tell you how to do it, but it would be unfair.” This going to be hashed out at the Deliberative Session and I have no idea what is going to happen, he said.
Selectman Mills stated that they had tried to work with Mr. McGill. He stated that Mr. Record was a friend of Mr. McGill’s and asked him whether he thought Mr. McGill had been treated unfairly. Mr. Record denied that he was a friend, said he did not have a dog in the fight, but said he did not believe that Mr. McGill had been treated unfairly. He has made some contributions, he said. He could have refused to disclose the details of his business.
Selectman Musselman then read his motion again and the changes to the draft ordinance.
Ms. Sherman asked why they were proposing this change if it would not have the support of the businesses in Town. Mr. Epperson indicated that they were acting in the best interest of the Town, and were not in the business of trying to placate every business that happens to use the beach.
Selectman Musselman stated that it is a reasonable step to take as they take a long-term view of levels of activity. He has no sense at this time that the businesses need to be brought back, but maybe they do. This is being done to forestall what might be 5 times this in 10 years.
Bill Epperson asked whether it would be appropriate to bring issues of surfing, urination, and nudity to create a commission to study that and overlay that on possible ordinance changes to see if the Town is covered. Selectman Musselman called it a committee to deal with “louts.” Chairman LaBrie stated that next year’s Beach Commission could deal with that. Editor’s note: Mr. LaBrie is Chairman of the Beach Commission, however it does not appear that they have met since 2011 or 2012. He has stated that he does not intend to continue on that Commission. Selectman Musselman stated that they need to define what the Beach Commission is doing.
Chairman LaBrie then called for a vote, which was 6-2 in favor, with Ms. Sherman and Mr. Farrelly voting no. Chairman Epperson then moved to submit the revised Article 13 for the Selectmen’s approval and placement on the warrant in March. Del Record seconded. All were in favor. Mr. McGill raised his hand only part way. Ms. Sherman and Mr. Farrelly initially did not raise their hands to vote for or against, but after the question arose as to whether they would like to abstain, Mr. Farrelly raised his hand and Ms. Sherman stated that she was for it.
Assembling the data and next steps (94:39 elapsed)
Ms. Sherman asked whether something would be presented to the public, referring to the information that she had prepared. There was then discussion about whether there would be another public hearing. Chairman LaBrie stated that the information could be provided to the public, even if there is not a public hearing.
Mr. Record stated that he would like to make a statement. He stated that Ms. Sherman had done yeoman’s work in collecting information. It has been stated that the minutes have been pointed to as information for a study. Josh Carroll provided a detailed process. Editor’s note: Josh Carroll’s 2010 study of New Hampshire beaches and surfing conflict issues may be found on the Rye Civic League website at https://ryecivicleague.org/wp-content/uploads/2013/11/PCI-present-3-31-101.pdf. The Committee chose not to follow his recommendations. Therefore, he moved that (1) the data be extracted pointing to the empirical data referenced, (2) the criminal and EMS statistics be compiled and the current usage data be assembled, (3) the e-mail statements of concern be amassed and (4) that it be explained why the Committee was charged to assess and not study, (5) the evaluation of the comparative space usage be presented and (6) a comment be provided on why they chose to ignore Josh Carroll’s recommendation. He asked that those results be presented at a public session.
Ms. Sherman asked who was going to put the information together.
Selectman Musselman said “who is this ‘we’ kemo sabe” and chuckled loudly.
Mr. Record said that they had said that the empirical data is in the minutes, so they need to get it out of the minutes. Chairman LaBrie stated that he did not recall the statement that was being attributed to him about the data being in the minutes.
Mr. McGill, apparently referring to the data gathered by Ms. Sherman, stated that he had spent four hours going through beach ordinances and that he has some issues with the facts.
Mr. Epperson suggested that Mr. McGill was asserting that the information was materially incorrect and that Ms. Sherman was mistaken or made it up.
Mr. McGill stated that he believed that she was mistaken.
Selectman Musselman stated that, if it were to be a Beach Use Committee report, they would have to edit the entire document and it would have to be voted on. It would be fine if Ms. Sherman presented her material without attribution to the Committee.
As Chairman LaBrie was shuffling papers and talking, Del Record quietly reminded Chairman LaBrie that he had a motion on the table. “Oh yes,” he said. Mr. McGill stated that he had seconded the motion.
In response to a question from Ms. Sherman, Mr. Record summarized how the information would be assembled and who would be responsible for each piece.
Mr. Epperson stated that he had disagreed with Josh Carroll’s study. There was then discussion about the validity of this study. Mr. Epperson stated that he would support the rest.
Mr. Record stated that he wanted to present this information to the public, and that there should be another public session.
There was then discussion about the difficulty of getting to a document that could be voted on and presented.
Chairman LaBrie stated to Mr. Record that he would like to be able to digest this more. Mr. Record asked whether he would like the motion withdrawn until the next meeting. The second was then withdrawn, followed by the motion.
There was then discussion about the next meeting. Chairman LaBrie stated that the next meeting would be to hammer out Ms. Sherman’s report and address Del Record’s motion.
It was agreed that the next meeting would be Monday, January 6 at 6:00 p.m
Adjournment (110:31 elapsed)
The motion to adjourn carried unanimously and the meeting adjourned at 6:59 p.m.