HomeMy WebLinkAbout1990-06-18; City Council; 690-2; Agua Hedionda LagoonPARKS & RECREATION COMMISSION - AGENDA BILL
DEPT.
TITLE:
AGUA HEDIONDA LAGOON (ACTION)
DEPT. HD.
CITY ATTY
CITY MGR.
RECOMMENDED ACTION:
Review and endorse the recommended action identified on the attached agenda
bill as prepared for City Council consideration.
ITEM EXPLANATION:
See the attached draft City Council agenda bill.
EXHIBITS;
1. Draft City Council Agenda Bill - Agua Hedionda Lagoon - Response to
litigation threat from Department of Boating and Haterways
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CITY OF CARLSBAD - AGENDA BILL
AB# -
MTG.
DEPT.
TITLE: AGUA HEDIONDA LAGOON - RESPONSE
TO LITIGATION THREAT FROM
DEPARTMENT OF BOATING AND WATERWAYS
HFPT HD.
CITY ATTY
T.ITY MGR.
oz3Oo
RECOMMENDED ACTION:
That the Council adopt Resolution No.rescinding
the supplement to the agreement between the City and Dr.
Sarkaria for the use of Agua Hedionda Lagoon to relieve
the operator of the obligation not to launch any boat
without insurance and direct staff to initiate steps to
terminate the lease with SDG&E.
ITEM EXPLANATION
The City Council, on November 4, 1980 adopted Resolution No.
6343 approving a supplement to the agreement between the City
of Carlsbad and Dr. Sarkaria, the operator of Snug Harbor
Marina, providing that boats launched from his property onto
Agua Hedionda Lagoon must have $300,000 of liability insurance
naming the City as an additional insured. A copy of the Reso-
lution and supplement is attached as Exhibit 1. It has pro-
vided a good framework during the last ten years for the public
to enjoy the Lagoon at an acceptable level of risk to the City.
The liability insurance requirement has protected the City
effectively against liability from the power boat and jet ski
users of the Lagoon. Insurance companies involved in the
Campsie case have recently settled the personal injury action
for $24,000 with all of the additional attorneys fees and costs
of defense being paid as well. The elimination of insurance
will subject the City's Self Insurance Fund to additional
liabilities. Unfortunately, the Department of Boating and
Waterways has mischaracterized the situation and threatened the
City with litigation. A copy of their letter in that regard,
dated October 18, 1989, is attached as Exhibit 2.
The Department claims the City is indirectly imposing an
illegal insurance requirement on its "concessionaire". The
fact of the matter is that Dr. Sarkaria has voluntarily
required insurance as a condition of allowing people to use his
private property. He told the Department that in a letter
dated June 1, 1989, a copy of which is attached as Exhibit 3.
The Department sought to buttress its position by obtaining the
Attorney General's opinion. The City Attorney, in a letter
dated June 6, 1989, pointed out the fundamental misunderstand-
ing of the situation that underlies the Department's position.
A copy is attached as Exhibit 4. The City Attorney believes
the Department is improperly attempting to impose its will on
a private citizen and that the City could prevail in litigation
against the State. However, the matter is complex involving
the ownership of the Agua Hedionda Lagoon, tide lands rights
Agenda Bill #
Page Two
and navigable waterways issues and it is not recommended that
we enter into extensive litigation with the California Attorney
General. A controversy between the City and State would serve
no useful purpose since both agencies share a common objective
of providing recreation access to the Lagoon.
City staff has also had discussion with SDG&E regarding the
Lagoon. SDG&E has suggested that the City take no action
regarding the Department of Boating and Waterways threatened
litigation and continue business as usual. SDG&E has offered
to defend the City against the claim by the State. A copy of
a letter dated May 17, 1990 is attached to the Agenda Bill.
Staff does not recommend that Council accept SDG&E's offer.
The issue of ownership of the Lagoon should be settled between
SDG&E and the State. The question of ownership of the Lagoon
is also an issue in the Encina Powerplant Expansion Proposal
and may be clarified during that permit process.
It is therefore recommended that Council adopt the attached
Resolution which would release Dr. Sarkaria of his obligation
under the supplemental agreement, cancel the lease with SDG&E,
and leave the existing Lagoon Regulations Program and Ordinance
in place. If the Council approves this recommendation, Dr.
Sarkaria, as a private property owner, remains free to condi-
tion use of his property as he sees fit, however, there would
no longer be a requirement that the City be named as an addi-
tional insured in boaters insurance policies. The City also
would no longer have an obligation to defend and indemnify
SDG&E and the Company would have to defend itself from claims.
However, the City would still have a liability exposure since
it would be exercising regulatory control over the Lagoon. If
the Council is able to identify public benefits which cannot
otherwise be achieved without City involvement, then it is a
policy question whether or not to continue the program and
assume the liability as a General Fund obligation. The Risk
Manager reports that insurance is not currently available
although the Attorney General suggests we could solve the
problem by increasing the permit fee and using the proceeds to
fund insurance. That, to our knowledge, is not a viable
alternative. Staff feels that accepting this liability is a
prudent risk to take since the present regulations have been
effective by reducing conflicts among users and increasing
safety at the Lagoon. City staff has also considered other
alternatives. The most viable alternatives the Council may
want to consider are as follows:
1. Get Out of Lagoon Business
Terminate the Lease with SDG&E and repeal lagoon
regulations. The City is presently responsible for lagoon
013
Agenda Bill #
Page Three
liability because we impose regulations on the users and
assumed all of SDG&E's responsibility in the lease which
is renewable from year to year. The City agreed to enter
into the lease and accepted the liability because it was
believed the Lagoon was private property and that was the
only way the public could use it. The facts have changed
since then. The reason for the lease is no longer true.
The Department and the Attorney General have concluded
that the Lagoon is navigable waterways. That means the
public has a right to use it. The lease, therefore, is
of no benefit to the City or the public and burdens the
City with a substantial liability, not only for the inner
Lagoon, but for all of the SDG&E lagoon properties. There
does not appear to be any reason why the City's General
Fund should be at risk for SDG&E's liabilities. If this
alternative is selected by the Council, it is recommended
that the Department of Boating and Waterways be put on
notice that they are now responsible for establishing any
necessary safety regulations on the Lagoon. Dr. Sarkaria
remains free to take such risk management, safety
regulation or other insurance actions as he considers
appropriate to protect his own interests. The City would
eliminate it's liability by terminating its lease with
SDG&E and repealing the Lagoon regulations. If Council
concurs, staff will return with the necessary documents.
2. Restrict Use of the Lagoon
Minimize the risk by additional use restrictions. The
primary source of accidents over the years has resulted
from either jet skis or ski boats. The City may impose
a 5 mph speed limit or otherwise restrict the uses allowed
on the Lagoon. That would eliminate most of the permit
revenue but also eliminate most of the need for the patrol
boat and other City regulations since ski boats and jet
skis would likely no longer use the Lagoon.
FISCAL IMPACT
It currently costs the City approximately $47,000 per year to
operate the Lagoon Program with revenues projected for fiscal
year 1989-90 at $17,000. The recommended alternative would
reduce the City's cost by approximately $15,000 a year since
the City would no longer need a part-time clerk to monitor the
insurance requirement. A slight increase in permit revenue
could occur since boaters who previously were unable to provide
014
Agenda Bill # _
Page Four
evidence of insurance may now be able to purchase a permit.
However, the City would have a higher risk exposure since there
would no longer be any assurance the boaters using the Lagoon
would have insurance.
The fiscal impact for the two alternatives are as follows:
1. Terminating the SDG&E lease and discontinuing the Lagoon
Regulatory Program would result in savings between $34,000
- $47,000 per year in direct costs plus eliminate a
substantial contingent liability which has not been
quantified although the City Attorney reports one case
was settled this year for $24,000 although the extent of
City liability, if any, is not known.
2. Adoption of new regulations would also save the $15,000
described in the recommended alternative. This savings
would be offset by projected revenue loss of approximately
$13,500 from lost permit sales for power boats and jet
skis.
Resolution No.
Exhibit #1 - Resolution No. 6343
Exhibit #2 - Department of Boating and Waterways letter dated
10/18/89
Exhibit #3 - Dr. Sarkaria letter dated 6/1/89
Exhibit #4 - City Attorney letter dated 6/6/89
Exhibit #5 - SDG&E letter dated 5/17/90
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RESOLUTION NO.
1
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
2 | CARLSBAD, CALIFORNIA WAIVING ITS RIGHTS AND
RELIEVING DR. SARKARIA OF HIS OBLIGATIONS UNDER
3 THE NOVEMBER 6, 1980 SUPPLEMENT TO HIS AGREEMENT
WITH THE CITY OF CARLSBAD FOR USE OF AGUA HEDIONDA
4 LAGOON.
5n
The City Council of the City of Carlsbad, California
i does hereby resolve as follows:
1. The November 6, 1980 supplement to the agreement
8
between the City of Carlsbad and Snug Harbor Marina owner for
9
the use of Agua Hedionda Lagoon approved by Resolution No. 6343
10
is rescinded. The City Council hereby waives the City's rights
under that supplement and relieves Dr. Sarkaria of his
12
obligations to comply with the provisions of the supplement.
13
2. That all the terms and conditions of the July
14
1, 1980 agreement between the City and marina operator on file
15
with the City Clerk shall remain in full force and effect.
16
PASSED, APPROVED AND ADOPTED at a Regular Meeting of
17
the City Council of the City of Carlsbad on the day of
18
19
1990, by the following vote, to wit:
20
AYES
21
NOES
22
ABSENT:
23
24
25 CLAUDE A. LEWIS, Mayor
26 ATTEST:
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28 016
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A RESOLUTION OF j\ii: CITY COUNCIL 07 TRi:
CITY OF CAF.L?E?'.», CALIFORuIA, .VrPn-JVIUG
A SiTi'LE^UNT TO f.GilEEMh'.-I'L' BFTV.'f'cN 'r!'E
CITV OF CARLf'D-.U A^D SLUG HrKIlC? V^T-Jl'iA
OWNT.R FOR UHV, OJ-1 AGUA HEDIONDA LAGOON
v.iiLREBy rr.E OVEHATOK AGREES XOT TO LAUNCH
ANY BOAT WITHOUT II!SUR?.NCE ?Nu AljTHORlZIKG
THE MAYOR TO EXErUTi" SAID AGrEEMEMT.
The City Council of the City of Carlsbad, California, does
hereby resolve as fellows:
1. That that certain Supplement, to Agreement between the
City and Marina Operator dated July 1, 1980, whereby Marina
Operator agrees not to launch any boat without insurance, a copy
of which is attached hereto as Exhibit A and made a part hersof,
is hereby approved.
2. That the Mayor of the City of Carlsbad is hereby
authorized and directed to execute said agreement for and on
behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a regular meeting of the
City Council of the City of Carlsbad, California, held on the
4th day of Novr-irAer , 1980 by the following vote, to wit:
AYES: Council Members Packard, Casler, Anear, Lewis end Kulchin
NOES: None
ABSENT: "^
ATTEST:
RONALD C. PACKARD, Mayor
ALETHA L. RAUTENKRANZ, City Clcrld
(SEAL)017
EXHIBIT TO CITY COL":VII
UT^il :;c. 5343
SUPPLEMENT TO AGREEMENT
BETWEEN THE CITY OF CARLSEAD
AND SNUG HARBOR MARINA OWNER
FOR USE OF AGUA HEDIOMDA LAGOON
This agreement is made this /j ^ day of /J o v£n\ ft f/ft 1980
between the CITY OF CARLSBAD, a municipal corporation of the State of
California (hereinafter rsferred to as "City") and Dr. Daljit Sarkaria
(hereinafter referred to as "Marina Operator").
RECITALS;
.•
1. The City and Marina Operator entered into an agreement, dated
July 1, 193O/ whereby the City granted Marina Operator non-exclusive
rights to provide launching and marina facilities for boats on the
surface of the Agua Hadionda Lagoon.
2. Marina Operator in return for such rights agreed to certain
*
obligations regarding the use of the Lagoon.
3. City wants to be assured that the people using the Lagoon for
boating purposes are aware of the need to observe safety rules and are
responsible people financially and otherwise, who will conform their
conduct to th* rules in order to insure a safe Lagoon. To help accom-
plish that purpose, both City and Marina Operator agree that liability
insurance should be required as a condition of launching a boat on the
Lagoon.
4. City and Marina Operator wish to supplement their agreement
whereby the Marina Operator will agree not to launch any boat that is
not insured.
- 018
NOW, THEREFORE, in consideration of their mutual covenants
and conditions, the parties hereto agree as follows:
1. The agreement between City and Marina Operator, dated
July 1, 1930, on file with the City Clerk and incorporated by
reference herein is hereby supplemented and amended to add the
following provision as a part of said agreement:
(8) The Marina Operator will not launch or allow to
be launched any boat onto the surface of the Agua Hedionda Lagoon
without first insuring that at least a $300,000 liability insurance
policy exists on the boat, naming the City as an additional insured,
which cannot be cancelled without notice to the City.
IN WITNESS WHEREOF, the parties hereto have executed this
«
agreement on the day and year first above written.
CITY OF CARLSBAD, a municipal corporation
of the State of California
ATTEST:
"V
By
RONALD C. PACKARD, Mayor
///y^gxA
ALETHA L. RAUTENKRANZ,
City Clerk
SNUG HARB
APPROVED AS TO FORM:
x"lVINCENT .F.
By---
City Attorney
DANIEL S.^HENTSCHKE, Assistant
City Attorney
-2-
019
ST».-| 2>. CMI>C*NI* —n*( ((SOURCES
DEPARTMENT OF BOATING AND WATERWAYS
-«9 S STUHT
CA 93114.77?!
9141 «
OCT 18\19)9
lTr 0|ieA..
CITY ATTO«
City Council
Cicy of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008-1989
Dear Council Members:
I am writing to you directly'to bring to your attention a long-
standing problem of concern to the Department of Boating and
Waterways. For the past eight years, the Department has attempted
to resolve issues of boating., access at Agua Hedionda Lagoon.
As a statutory responsibility/ the Department of Boating and
Waterways reviews state and local ordinances/ rules or
regulations relating to vessels for conformity with State law.
Section 660 of the Harbors and Navigation Code limits local
agencies to regulation of boating in four specified areas:
special use areas (defined in Section 651), time-of-day
restrictions/ speed zones/ and sanitation/pollution control.
In 1980, the City of Carlsbad enacted a boating ordinance
imposing a $300/000 liability insurance requirement on boaters as
a precondition to use of a navigable waterway/ Agua Kedionda
Lagoon. Boaters were also required to list the City of Carlsbad
on their liability policies. ''This requirement had the effect of
closing the Lagoon to all boaters outside of the City of
Carlsbad/ i.e./ boaters who were uninformed of the insurance
requirement/ boaters who chose not to insure their craft/ boaters
who are insured under general provisions of homeowner's policies
(under 25 horse power) but did not show the City as an
additional insured in such policy/ and boaters who were already
insured with companies which would not list the City of Carlsbad
as an additional insured at any cost.
After lengthy/ but unsuccessful, negotiations with the City to
remove this requirement/ a formal opinion was sought from the
Attorney General to address this issue. The Opinion (Mo. 80-901)
found the precondition of liability insurance to be in violation
of State law.
020
TYUTRTT
Carlscaci Ciry Council -2- np-
Memoers ^' ' '"••:*
Subsequent co than opinion, t-e City recealeci the oor-'on ~* --«
ordinance imposing an insurance requirement. " "* ~~
Recently, we received complaints from the public -aaa~^ na an
insurance requirement imposed by a concessionaire who "oVa-ar-a
the boat launching facility. We found that the City, fi-ouoh t'-e
concessionaire, was imposing an insurance r^qui^-eme-- * as "a
precondition to use of the launching facility, i «" Che
concessionaire is required to checlc that boaters have 'a 'pe-nT- -
before launching their boats on the Lagoon. To obtain a per-nl-
from the City, a. boater must produce an insurance policy wn'''<-h
names the City as an additional insured.
In investigating this complaint, we attempted to launch a state-
owned vessel on this navigable waterway and were denied access
solely on the basis of the insurance/permit requirement.
We have returned to the Office of the Attorney General to ask for
a supplemental opinion concerning the legality of the restrictive
access procedure currently in place. The opinion, attached,
reaffirms our findings ttiat the City may not impose such
requirement.
We are prepared at this time, to seek appropriate legal remedies
to remove locally imposed restrictions to waterway access which
are in conflict with State law. This letter is to solicit your
cooperation proactively so that both the Department and the City
of Carlsbad may avoid litigation and the attendant expenses. We
ask that the objectionable restrictions be removed, and that a
copy of your resolution or minute order so directing be forwarded
to the Department.
If you have any questions on this matter or the Opinion of the
Attorney General, please feel free to contact us.
Sincerely,
WILLIAM H. IVERS
Director
Copy: Honorable Robert Frazee, Assemblyman, Seventy Fourth
Assembly District
Vincent Biondo, Jr., City of Carlsbad i--**'
Jeremiah Blair, Office of the Attorney General
Jack Rump, State Lands Commission
Enclosure
021
DALJIT S. SARKARIA
Real Estate • Investments « Developements • Management
#
C <L\June 1, 1989 £s \ -•^** ^x ^V
Vincent F. Biondo, Jr.
City Attorney
City of Carlsbad
1200 Elm Avenue
Carlsbad, CA 92008
Dear Mr. Biondo:
Thank you for letting me know that the Department of Boating
and Waterways has raised an issue with the attorney general
regarding the legality of my requirement that any boat owner
wishing to use my property in the City of Carlsbad to launch
a boat onto Agua Hedionda Lagoon must be insured. Please
see that the deputy attorney general who is writing the opinion
gets a copy of this letter so he understands my position.
I own property in the City of Carlsbad generally located on
the north shore of Agua Hedionda Lagoon immediately to the
east of Interstate 5. My property extends into the water.
The property is developed with a boat launching facility in-
cluding a snack bar and rest rooms and is leased to an operator.
I strongly disagree with the position taken by the Department
of Boating and Waterways. As a private property owner and
prudent businessman I have the right, independent of any city
ordinance or state law of which I am aware, to set reasonable
conditions on people who wish to use my private property.
The launching of power boats is a high risk activity and I
think it's important that I protect myself from foreseeable
liability.
The City did not impose any insurance requirement on me. It
was something I deemed necessary. Liability insurance is
getting very expensive and difficult to get. When the state
forced the City to give up its own insurance requirement I
determined it was important to impose one myself. I won't
operate without it and would be forced to close the facility
in the absence of adequate proof of insurance by facility
users.
Having made that decision I can't see any reason why I shouldn't
also ask that the City be named as an additional insured. In
almost all cases, that can be done at no additional cost to the
people and it doesn't do me any good to require insurance if
the individuals are free to sue an uninsured city who can then
cross-complain against me for indemnity. Unless the City and
POTT OFFICE BOX B7M • OHAMGC CALIFORNIA
022
EXHIBIT^
myself are covered there is no protection
quirement has been imposed since November
of any complaints and the level of people
about the same as it has always been. I
service to the public at a fair price and
my property numerous power boaters would
the lagoon. I believe my policies are in
of all concerned and I intend to continue
of action.
The insurance re-
1980. I am unaware
using the lagoon is
provide a valuable
without access to
not be able to enjoy
the best interests
my present course
Please do what you can to convince the attorney general that
the Department is just not correct in trying to make an issue
of this matter.
tru-ly
*£'<*.//Calji't^S/.
023
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD. CALIFORNIA 92008-1989
VINCENT F. BIONDO. JR. (619) 434-2891
CITY ATTORNEY
RONALD R. BALL
ASSISTANT CITY ATTORNEY
June 6, 1989
Rodney O. Lilyquist
Deputy Attorney General
Department of Justice
110 West A Street
Suite 700
San Diego, California 92101
RE: OPINION NO. 89-503 - AGUA HEDIONDA LAGOON
Dear Mr. Lilyquist:* •
Thank you very much for your letter of Nay 5, 1989 soliciting the
city's views of the above referenced opinion request.
Mr. Ivers1 letter to you April 27, 1989 requesting an opinion
reflects the views of an over zealous member of his department who
has chosen to view Dr. .Sarkaria's efforts to protect himself as a
personal affront. It is apparent this individual had substantial
input into Mr. Ivers' letter because it does not accurately reflect
the facts of our situation. The true facts with comments on the
April 27 letter are as follows:
1. Mr. Ivers asserts the Aqua Hedionda Lagoon is a navigable
waterway. I don't think that has ever been determined. The
property underlying the lagoon is private property owned by
the San Diego Gas and Electric Company (SDGiE). The lagoon
was created by SDGiE's substantial dredging of a mud flat.
The lagoon closest to the ocean (outer lagoon) remains under
the control of SDGiE and the public is not allowed to use it.
The outer lagoon has direct access to the ocean. If any
portion of the lagoon can be considered navigable waterways
it is the outer lagoon. Nevertheless, the San Diego Gas i
Electric Company excludes the public entirely. Chained log
booms are maintained at the ocean entrance and the railroad
bridge which divides the outer and middle lagoons. Any
individual attempting to operate a boat or otherwise use the
surface of the water is arrested for trespassing. The
Department of Boating and Waterways has historically
acquiesced in SDG&E's exercises of dominion and control over
the outer lagoon and, in effect, agreed that it is not
navigable water. I don't think they should be allowed to take
a contrary position with the lagoon west of 1-5 (inner
lagoon). v 0r>4
mTVUiniT
2. Mr. Ivers states that th« City's insurance requirement which
we repealed at the insistence of the Department and your
office, "had the effect of closing the lagoon to all boaters
outside of the City of Carlsbad." That is false. it has
always been true and it is true today that a substantial
majority of people utilizing the lagoon for power boating
purposes are from outside the City of Carlsbad. Use of the
lagoon has not been affected since Or. Sarfcaria has been
enforcing his insurance requirement. (The permit figures from
the department are enclosed). Boat coverage is generally and
readily available either separately or as a part of people's
homeowner's policies and the City can be included as an
additional insured at no extra cost. It has been suggested
that Dr. SarJcaria (or the City) buy an insurance policy and
recover the cost from increased launch fees. Such insurance
is not available to the City. Dr. Sarkaria reports it is only
available to a limited extent and then only at a very high
price. Imposing that cost is uneconomic compared to the
minimal cost to the public under his present system. It also
does not meet his need of limiting the use of his property to
financially responsible operators. He doesn't want people who
can't get insurance or who won't on his land. If there is any
burden on boating it is minor when compared to a loss of a
public use which will result unless you can persuade the
department to be reasonable.
3. Mr. Ivers claims that his department has "received complaints
from the public." I don't believe the department has received
"complaints" from power boaters. The city has not received
any complaints. Our information is that the general reaction
from the boating public is extremely favorable and they
appreciate that the City allows public use of the lagoon.
4. Mr. Ivers states that Dr. Sarkaria's property is the only
trailer boat access on the lagoon. That is not correct.
Boats are launched from Whitey's Landing and Bristol Cove oracross the beach from the City's publicly maintained access
easement.
5. The City, under pressure from the Department, repealed its
ordinance requiring insurance in 1980. Although it was ay
opinion (with respect your opinion notwithstanding) that our
insurance ordinance was legal, the council decided to avoid
litigation. That does not mean it is settled that the Citycannot impose the requirement. However that is beside the
point since the City is not imposing an insurance requirement.
Mr. Ivers states that the City is attempting to indirectly do
what it could not do directly by imposing the condition on the
"concessionaires business permit." That is not true. When
I conveyed your inquiry to Dr. Sarkaria he was surprised. Itis his opinion that he was imposing the insurance requirement
on us and not vice versa. Re is not a concessionaire of the
city and we have not conditioned his business permit. Dr.
Sarkaria is a private property owner. He has a nonexclusivelicense with the City to operate his business which he has
voluntarily agreed to do with us in a societally responsible
manner. Enclosed for your information is a copy of the
agreement between the City and Dr. Sarkaria and the supplement
from November 1980. His consent was freely given. Dr
Sarkaria doesn't even need his "license" from us to operate.
The launching that occurs at White's and Bristol Cove have no
license. We have an agreement because we are both involved
in a high risk activity and it is only "common sense" to
"write down" our relationship to avoid litigating with each
other over a duty of care when accidents on the lagoon result
as they inevitably do in litigation.
6. The only reason the public gets to use the inner lagoon is
because SDG&E has leased the surface area to the City of
Carlsbad on a year to year basis for public recreation
purposes. That lease requires the City to take all necessary
steps to protect and indemnify SDG&E from any possible
liability. Thanks to Or. Sarkaria, to date, we have been able
to do that. It is ironic that the Department is objecting to
Dr. Sarkaria's insurance requirement in the name of boaters.
Without it the public won't be able to use the lagoon at all.
The City will not stay in the lagoon business unless we can
continue to benefit from Dr. Sarkaria's insurance requirement.
My clients will simply return the lagoon to SDG&E. Enclosed
is a copy of a letter dated June 27, 1988 stating SDG&E's
position if that were to occur SDG&E would close the inner
lagoon to the public.
7. Mr. Ivers' letter requests your opinion on whether or not the
City can "impose a liability insurance requirement." That
assumes a fact not in evidence. The City has imposed nothing.
Mr. Ivers has absolutely no evidence in support of his
position. Dr. Sarkaria has a right to require insurance of
people who use his private property. Dr. Sarkaria has
determined for his own protection that it is necessary to
limit the use of him property to financially responsible
individuals with insurance and we appreciate hie willingness
to include the City in his risk management program. Enclosed
with this letter is a letter from Dr. Sarkaria dated June l,
1989 which sets forth his understanding of the matter. Again,
am im the case with the gee and electric company, if a
reasonable risk management program cannot be provided Dr.
Sarkaria will cloee his launch ramp with substantial adverse
effect on the ability of the boating public to enjoy the
lagoon.
Mr. Ivers ham asked you to communicate with Mr. Bleir of your
office regarding this matter. We strongly object. Mr. Ivers and
Mr. Blair have been threatening to litigate with the City on this
issue. I am confident we could persuade a court our position is
correct both on the facts and the lav. This is a classic example
of "burning down the village in order to save it." This Department
nno which claims to be acting in the beet interests of the boating
v&v public ie in effect attempting to destroy one of the few remaining
places in Southern California where people can water ski. Dr.
Sarkaria«s business is financially marginal at best and the citv's
lagoon program which primarily benefits nonresidents is in effect
subsidizing a state recreational program at th« expense of citv
taxpayers. The Departaent should be supporting the city in its
efforts to aaxiaize the opportunity for th« boating public to use
the lagoon. Instead, they are pursuing their own perverted
bureaucratic interests which, if successful, can only have one
result and that is denying the public any use of the lagoon. I
don't think the Department's position will stand scrutiny in any
reasonable public forum either the court or the legislature. And,
frankly, I an at a lose to understand why they continue to pursue
it. In any case, having been threatened with litigation, I think
Mr. Ivers is attempting to secure an advisory opinion which will
buttress their interests in the subsequent litigation. That is the
worst kind of interdepartmental bootstrapping. We object. If an
opinion were written adverse to the City's interests we would
object strongly to any use of it as authority in court. Mr. Ivers
seems to me to be inviting the worst kind of self serving self
dealing. I trust you will have no communications with Mr. Blair
on this matter and will put out of your mind the fact that he is
apparently given Mr. Ivers some encouragement on his particular
"March of Folly.* (See, Barbara Tuckman. Pursuit of a course of
conduct directly contrary to your own best interests despite the
fact that the folly of that has b«en explained to you).
The true facts of the situation on the lagoon can b« verified with
SDGtE, Dr. Sarkaria, or our Parks and Recreation Department. The
fact that Dr. Sarkaria has voluntarily chosen to impose an
insurance requirement and given the City the benefit of that is no
concern of the Department. Substantial numbers of people have
enjoyed the lagoon under the present system for over eight years.
The Department has no legitimate interest in and no right to
regulate private consensual conduct. If they are truly interested
in the right of the boating public to use the lagoon they ought to
build, improve, operate and maintain their own public launch ramp.
Or, otherwise, take over responsibility for the lagoon. We would
be happy to assign our lease with SDG&I to the state. Otherwise,
I don't think there is any doubt that the boating public would best
be served by the state just leaving us alone.
VT
City Attorney
rah
enclosures
c: Mayor and City Council
city Manager
Parks and Recreation Commission
Parka and Recreation Director
027
San Diego Gas & Electric
NORTH COAST DISTRICT OFFICE
5315 AVENIOA ENCINAS • CARLSBAD, CA 92008
OCEANSIDE BRANCH OFFICE
1816 OCEANSIDE BOULEVARD • SUITE C • OCEANSIDE, CA 92054
May 17, 1990 FILE NO.
Mr. Frank Mannen
Assistant City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008-1989
Dear Mr. Mannen:
Your letter dated May 1st asked me to clarify further our
offer to the City of Carlsbad relating to the Agua Hedionda Lagoon.
San Diego Gas & Electric will defend the City of Carlsbad
against the claim by the State of California that the Agua Hedionda
Lagoon is subject to the public trust, including, but not limited to any
claim by the State that insurance cannot be required by users of the
Agua Hedionda Lagoon based on the imposition of the public trust
doctrine. San Diego Gas & Electric is willing to enter into a written
agreement with the City of Carlsbad to that effect.
Also, San Diego Gas & Electric is willing to amend the
existing lease agreement to delete the middle lagoon from the lease.
When you have had a chance to review your position, why don't
we set up a meeting date to discuss this matter further.
Very truly yours,
Paul O'Neal
Senior Governmental Representative
POibha
cc: Mr. Claude Lewis, Mayor
Mr. Raymond Patchett, City Manager
028