RCL Notes of July 24, 2013 Beach Use Committee

NOTES OF JULY 24, 2013 BEACH USE ORDINANCE COMMITTEE

Final Revision B – Provided by the Rye Civic League

Committee members present:  Selectmen Musselman and Mills, Members Del Record, Police Chief Kevin Walsh (ex officio), Tom Farrelly, Tyler McGill, Michael LaBrie, Bill Epperson, Fire Chief Skip Sullivan (ex officio), Katy Sherman.

Call to order (6:06:35 p.m.)

The meeting was called to order.  Chairman Mike LaBrie referred to an article in the New York Times regarding yoga and exercise in parks.  New rules are being adopted, prohibiting commercial use without a permit.

            In response to a question from Selectman Mills, Member McGill stated that a stand that had been set up near Eel Pond belonged to them, not a competitor.  The stand had been set up for convenience, he said.

Draft permit application (6:12:35 p.m.)

            Chairman LaBrie started to go through a draft of the proposed permit application, which requested full information, including:

            1.  Lesson schedule

            2.  Group size

            3.  Instructor/student ratio

            4.  Beach proposed for activity

            5.  Spectators

            6.  Time of high and low tide

Approval of minutes (6:13:45 p.m.)

            The group went back to address the minutes.  It was revealed that these had just been distributed.  Member Katy Sherman referred to a discussion that had occurred after the meeting had adjourned.  The substance of these discussions, which involved the waiver of liability, was discussed.  The conclusion was that, since they occurred after the adjournment, they should not be in the minutes of the prior meeting.  Member Tyler McGill indicated that these would be in the minutes of the ongoing meeting.  All were in favor of approving the minutes of the July 2, 2013 meeting.

Return to Draft Permit Application (6:16:05 p.m.)

            The discussion then returned to the draft “term sheet.â€Â  Member Bill Epperson indicated that the term “qualified,†in “qualified instructors†should be defined.  There was then a long discussion regarding the difference between CPR and first aid.  Multiple conversations were then engaged in at once.  Chairman Mike LaBrie then indicated that he and Member Craig Musselman had concluded that instructor qualifications make sense for surf lessons, but not for Zumba. 

            Member Tyler McGill then indicated the relationship between the Zumba and surf lessons.  For his business (Summer Sessions) anything that a group wants to do prior to surf lessons is OK.  Zumba lessons are not specifically provided by Summer Sessions. 

Member Musselman stated that there should be a separate permit for activities such as Zumba lessons, with a permit for Summer Sessions covering the entire year.  Chaiman LaBrie stated that a significant modification might require that they come back.  Member Tyler McGill asked what would happen if a lesson is delayed ½ hour because of a thunderstorm.  He questioned whether they should be required to come back to modify their permit in such a case.  Member Musselman stated that the Board of Selectmen doesn’t want to see them again either.  He was unaware that Zumba was on the table when this was drafted.

(6:35:30 p.m.)

The discussion then turned to various other documents, including the Release and the Indemnification.  Member and Selectman Musselman indicated that he believed that those using surfboards, kayaks and paddleboards should sign individual releases, but that individual releases were unnecessary for Zumba lessons.  There is no more Town liability for those types of activities than there is with the general public.  After someone asked about weight lifting and the possibility that someone might drop a weight and cause injury, Member Musselman agreed that “other equipment†could be added.  It would be a hassle, and provide no benefit, to get 40 releases and keep them for a year.  An insurance certification would still be required for activities like Zumba, as well as an indemnity and release for the benefit of the Town from the activity organizer, but not for each individual participant.

(6:42:50 p.m.)

Member Del Record reminded the group that they had voted to apply the proposed ordinance requirements only if the activity was conduced for remuneration.  Member McGill stated that the Town was equally liable whether the activity was conducted for a profit or not, if a surf board is being used.  If this is really about controlling who can use the beach, why make this distinction, he asked.

Member Katy Sherman asked whey the release could not be made part of the sign in sheet.  Member Musselman stated that, if they do that, they should require everyone passing a public access point to the beach to sign a release.  Member Tom Farrelly stated that releases should be signed whether or not the activity is for profit.  Member Sherman said that this issue had been covered at the prior meeting.  Mr. Farrelly stated that he had agreed only so that the meeting could move forward. 

Chairman LaBrie indicated that an indemnification would not prevent an attorney from suing.  Member Musselman indicated that there is still a benefit from the insurance requirement.

(6:53:50 p.m.)

Member McGill raised the issue of someone renting equipment in Hampton.  Member Musselman said that the “people†down there will be told that they have to obtain releases.  Some will slip through the cracks.  The discussion turned to how many are renting elsewhere and bringing equipment to Rye.  Chairman LaBrie indicated that a lot of equipment is rented from Cinnamon Rainbows and brought to Rye.  Member McGill asked whether Rye can ask businesses elsewhere to sign a release.  Member Musselman stated that there should be language stating that any rental equipment used in Rye requires a release.  Or, they could blow this off, he said.  Member Epperson stated that that was exactly what would happen.  The discussion then turned to the leverage that Rye would have over Cinnamon Rainbows, inasmuch as they conduct lessons in Rye.

Chairman LaBrie then read proposed language relating to insurance certificates and groups.  It provided that the Board of Selectmen could redefine the term “group†from time to time.  There was further discussion regarding the groups that are using the Town beaches and discussion of the annual Board of Selectmen approval process.

(7:04:15 p.m.)

Member Musselman suggested that there be language requiring that the forms of participants be maintained for one year and provided to the Town on request.

He then stated that some surfers are their own worst enemies.  They must be whistled out of the swimming zones repeatedly.  They are rude to lifeguards and use foul language around kids.  These constitute 15-20 percent of the people, and come from all walks of life.

Member Del Record stated that  Member Musselman had made a good observation.  That’s the bottom line, he said.  Member Musselman responded that he did not think that there was anything that could be done about this, other than to enforce the ordinance.

Member Farrelly stated that there were two classes of surfers.  He suggested that the surf boards be numbered so that rental records could be checked and the offending individual identified.  Member Sherman asked how this would work.  Member Farrelly responded that the Police Chief could be contacted by radio, or Summer Sessions could be informed. 

Chairman LaBrie agreed that it was a small minority that was causing the problems.  Member Musselman stated that he does not think that Summer Sessions can control this.  It is between the lifeguards and the Police.  It must be done under the ordinance.  A private company cannot be expected to do the enforcement.

(7:11:30 p.m.)

Member McGill stated that Summer Sessions is essentially putting 17 additional lifeguards on the beach.  The problem of courtesy is not coming from those taking their lessons.  The Committee is planning to impose a permit requirement on those that are not causing the problem, he said. 

Member Musselman asked how many were renting boards without taking lessons.  Member McGill stated that a lot of people take lessons and then rent afterwards.  Member Musselman said that a lot of the rude people that Member Farrelly is talking about may not even be renting boards.

Member Farrelly acknowledged that it is a small handful of people that are causing the problems.  When he asked the Police Chief how many tickets had been issued for violation of the 50 foot minimum distance between surfers and swimmers, the response was that there had been two in three years.  But this happens forty times per day, he said.

Chairman LaBrie stated that, if there is a problem, the police can be called.  Member McGill stated that this would put pressure on the police.  People speed 3 m.p.h. over the limit all of the time.  But the Police cannot enforce all of these.  Fire Chief and Member Skip Sullivan reminded the group that there were only two police on duty much of the time. 

In response to a question, Member Musselman stated that Town Attorney Donovan had not looked at the proposed documents, although he had looked at the documents related to the road races, which formed the basis for one of these documents.

(7:17:30 p.m.)

There was a question as to whether parents or guardians would sign for minors. Member Sherman asked whether parents would also need to be present.  After someone indicated that 13 year olds could take lessons without their parents being present, Ms. Sherman indicated that there might be a problem with 6 year olds.

Member Epperson suggested that Attorney Donovan look at the road race form a word smith it to turn it into an application related to beach requirements. 

(7:22:50 p.m.)

Member Musselman indicated that they needed to do a draft ordinance revision.  Chairman LaBrie suggested that they go through the entire ordinance.  Member Musselman stated that they should deal with the revised ordinance.  Then, if the Committee wants to look at other changes, this could be incorporated in the warrant article.  There could be one warrant article or multiple ones.  This would be a selectmen’s warrant article.  He assumes that the new ordinance would not be implemented before Town Meeting next year, so there is no rush.  Chairman LaBrie indicated that he would distribute a copy of the current ordinance, available on the Town web site, for discussion at the next meeting. 

Steve, present in the audience, attempted to say something.  Member Mills cut him off, indicating that he had to wait until the meeting had adjourned.  He stated that Selectman Musselman would probably leave immediately after that.

The next meeting was scheduled for Wednesday, August 28.

Dog incident at Wallis Rd. Extension (7:27:05 p.m.)

Member Mills then related an incident that had occurred the prior Saturday at 7:50 p.m. on the beach by Wallis Rd. Ext.  There were two dogs involved, one on a leash and the other not.  A ball went by the leashed dog.  The unleashed dog went for the ball and the leashed dog reacted.  In the process, “a lady†was bitten by a dog and was bleeding.  You never can tell, Member Mills said, the Town could get involved in this.  Editor’s note:  See notes of July 22, 2013 Board of Selectmen meeting (9:07:15 p.m.) where there was discussion of one or two summonses being issued in connection with the incident.

Member Musselman stated that there would be more of this type of contact if the dogs are on a leash than if they are unleashed.  Member Del Record suggested, apparently in jest, that the ordinance be changed to prohibit dogs from being on a leash.  Member Musselman stated that that would be Joe’s ordinance (apparently referring to Member Mills).  Member Epperson indicated that someday they could say that there could be no dogs on the beach, period.  Member Mills referred to the Deliberative Session where “we got hammered†on that issue.  Member LaBrie said, “probably not,†and said that he did not want to have this conversation now. 

Ownership of the Beach (7:28:50 p.m.)

Member Farrelly asked about the issue of Town ownership of the beach, specifically referring to the dry sand, and how indemnification of the Town could be required if the Town does not own the beach to begin with.

Chairman LaBrie stated that this was going to apply to Town beaches.

Member Epperson stated that he should read Purdie v. Rye.  Member LaBrie stated that it was Purdie v. State of New Hampshire.  Editor’s note:  In fact the case apparently being referred to is Purdie v. Attorney General, 143 N.H. 661 (1999).

Member Mills stated that he had a document in his car.  In fact, the Attorney General made no determination as to who owns the dry sand.  Chairman LaBrie indicated that not all property has been surveyed in modern times.  Member Sherman stated that State Senator Stiles had covered the issue.  Editor’s note:  At the July 9, 2013 round table session with Senator Stiles, she had stated that the private property owner owns the sand above the high water mark.  Member Mills stated that they did not call her on the issue at the time.  Member Musselman continued, stating that they believed that Senator Stiles had been incorrect.  The dry sand between the high tide mark and the revetments is of undefined ownership.  Member Farrelly responded that he had thought that there would be an entire session relating to this issue.  The Town would be governing something that it does not own.  Member Musselman responded, acknowledging that there is a question as to their authority to govern the land between the high water and low water marks at all.

Adjournment (7:31:59 p.m.)

Whereupon the meeting adjourned.