HomeMy WebLinkAbout1994-07-18; Parks & Recreation Commission; 794-3; Establishment of Subcommittee/Agua HediondaPARKS & RECREATION COMMISSION - AGENDA BILL
AB*
MTG. --
DEPT.
TITLE: ESTABLISHMENT OF SUBCOMMITTEE/
AGUA HEDIONDA LAGOON (ACTION)
RECOMMENDED ACTION:
Appoint three members of the Parks and Recreation Commission to a subcommittee to
develop alternatives relative to the continued recreational operation of the Agua Hedionda
Lagoon.
ITEM EXPLANATION:
During the May 1994 meeting, staff reported to the Parks and Recreation Commission that
a budget issue statement regarding the Agua Hedionda Lagoon Patrol Program was being
prepared and submitted for Council consideration. The issue statement (Exhibit 1) to
consider the elimination of funding for the Aqua Hedionda Lagoon Patrol Program was
presented as an option in order to fund other city wide programs of higher priority.
However, a savings of $34,000 per year through elimination of the program was not the
primary consideration for a staff recommendation to discontinue the program. Paramount
in staffs' consideration was the potential liability exposure which the City assumes through
its role of regulating recreational activities upon the lagoon. Futhermore, based upon recent
and past communication from the California Department of Boating and Waterways and the
State Attorney General's office (Exhibit 2 & 3) that the resource area is an open public
navigable waterway and subject to conditions of the California Harbors and Navigation
code; it was staffs' contention that the current recreational use of the lagoon would continue
and not be eliminated as recent public concerns have implied. Staff did indicate, however,
that the responsibility for providing levels of enforcement necessary to insure the safe
operation of the lagoon should be borne by SDG&E, the Department of Boating and
Waterways or entrepreneurs of Snug Harbor and Carlsbad Boat Club or the managing
agency of Bristol Cove Boat and Ski Club.
In essence, it is staffs' assertion that presently the City is in the precarious situation of
exposing itself to a lions share of liability by assuming the responsibility of insuring for the
safe operation of the lagoon while being subject to conditions mandated by a State agency
(Exhibit 4). In staffs' opinion, certain conditions under which the City must operate the
enforcement program are not in the best interest of the City.
Accordingly, on June 21,1994 staff presented the issue statement for Council consideration
during the budget agenda item. By a 5-0 vote, the Council recommended to eliminate the
City totally from the lagoon, have SDG&E take it over and that they be totally responsible
for the program. By recommending Alternative #1 (Exhibit 1), the Council eliminated
funding for the lagoon patrol as of January 1,1995 and directed staff to take necessary steps
to terminate the lease agreement with SDG&E for the inner lagoon.
On June 28, 1994 during the public comment portion of the City Council meeting, several
citizens addressed the Council with concerns related to their action on June 21, 1994.
Although a number of issues were raised, the principle concern was that the power vessel
recreational use of the Agua Hedionda Lagoon be continued without threat of interruption
or termination.
- 23
PAGE 2, AB #_
After considerable Council discussion, staff was directed to work with the affected citizen
groups to investigate alternates that would address their concerns and facilitate a successful
transition and/or that the recreational use of the lagoon would otherwise continue.
In order to implement Council's direction it will be necessary to discuss the issue not only
with the various citizen groups, but also with SDG&E and the Department of Boating and
Waterways. Staff also believes it would be beneficial to involve representation from the
Parks and Recreation Commission (Exhibits 5 & 6). Therefore, staff is recommending that
a subcommittee of the Parks and Recreation Commission be formed and that three members
of the Commission be appointed to assist staff and the citizen groups in developing
alternatives to insure that continued power vessel recreation on the lagoon will continue.
EXHIBITS:
1. Budget issue statement - Elimination of the AHL Patrol Program.
2. Letter to Ken Price from Unit Manager, Department of Boating and Waterways - 5/12/94
3. Attorney General's opinion #89-503, 8/29/89
4. Letter to Carlbad City Council from Director of Dept. of Boating and Waterways -
10/18/89
5. Memo to Assistant City Manager - 6/23/94
6. Memo to Assistant City Manager - 7/5/94
24
ISSUE STATEMENT
ELIMINATION OF THE
AGUA HEDIONDA LAGOON PATROL PROGRAM
Background
The Agua Hedionda Lagoon (AHL) patrol program is fully funded in the proposed 1994-95 budget
at $34,000. In addition to the $34,000 budgeted as a direct cost, there is also the indirect cost
of administrative staff, which is estimated at $20,000. Staff is presenting an issue statement for
Council's consideration which would eliminate this program. Elimination of this program would
allow the budgeted funds of $34,000 to be used for other citywide programs.
Although providing for the safe recreational use of the AHL is an integral part of the parks and
recreation element of the General Plan, staff is finding that the ability to provide this program on
a self sustaining basis is difficult. A comparison of revenues versus expenditures for this program
over the past several years has found that there is a recovery rate of 38 to 40%. This falls short
of the objective as identified in the parks and recreation element, to operate the lagoon on a self
sustaining basis. It is not anticipated that this level of recovery will improve in future years. Staff
has considered raising fees to a level which would make this program self sustaining. It is
estimated that the fee would need to be increased by $70, from $30 to an estimated $100 In
order to recover direct costs. Staff believes that a fee increase of this magnitude will decrease
use significantly as the market would not bear higher charges.
Condition
The City currently leases the water surface of the lagoon from SDG&E, the owners of the
resource area. Under the terms of the lease with SDG&E, the City agrees to police, regulate and
control the entry and activities in and upon the premises of the lagoon. As a result, the City has
assumed a significant degree of liability exposure. Even if the City were not leasing the water
surface of the lagoon, the State Department of Boating and Waterways has identified these
waters as open, public navigable waterways, which means the lagoon is available for public use.
The availability issue exists regardless of which agency is responsible for the water surface,
although SDG&E refutes this finding claiming the lagoon is privately owned.
To date, the City's lagoon program has been successful in avoiding accidents of major
consequence. However, the amount of near miss occurrences observed by and reported to staff
have been on the Increase. Additionally, the navigable water surface area is decreasing with the
build-up of sitt, reducing the area In which water craft activities can safely occur. These factors
make it difficult to esses* the potential costs associated with the City's liability exposure.
Services currently provided within the budget include regular on-water lagoon patrol during peak
usage periods which are from Easter week through Labor Day. Lagoon patrol is done on a
limited, as needed basis during the remainder of the year, which exposes the City to liability.
This is especially true, as we are required within the lease agreement with SDG&E to police,
regulate and control the activities upon the lagoon.
25 EXHIBIT 1
f Regardless of whether the City terminates the lagoon lease with SOG&E, the recreational use
would continue. However the responsibility for providing levels of enforcement necessary to
insure safe operation should be borne by SOG&E, the Department of Boating and Waterways or
perhaps the entrepreneurs of Snug Harbor Marina, Carlsbad Boat Club and the managing
agency of Bristol Cove who profit and/or benefit from providing launch facilities.
Alternatives
At this time the Council may wish to consider the lagoon patrol program as a method for
reducing the budget. Staff has developed three alternatives for consideration as outlined below.
1. Terminate lease agreement with SOG&E and eliminate funding for the lagoon patrol program
effective January 1,1995. This alternative would allow a six month notice of termination to
affected parties, Including permit holders. Estimated net savings (including lost revenues)
equal $8,550 for the six month period; $19,000 on an annual basis thereafter.
2. Terminate lease agreement with SDG&E and eliminate funding for the lagoon patrol program
effective July 1, 1995. Estimated net savings (including lost revenues) equal $19,000
annually.
3. Maintain existing service level of lagoon patrol program.
A:\BUDQET»4.95MS8USTAT.AHL
6- 26
jf CALIfORNIA—THE RESOURCES AGENCY PETE WILSON, Governor
APARTMENT OF BOATING AND WATERWAYS
1629 S STREET
SACR^'NTO, CA 9S814-7291
(916)- l6a"' May 12, 1994
Ken Price
Recreation Superintendent
City of Carlsbad
3096 Harding Street
Carlsbad, California 92008
Dear Mr. Price:
We have received Chapter 11.24 of the Carlsbad Municipal Code
which regulates boating on Agua Hedionda Lagoon and we have the
following comments:
Section 11.24.070. Bristol Cove
. Section 11.24.070 states: "Bristol Cove is a private residential
cove restricted to use by owners and tenants."
A review of local maps indicates that Bristol Cove is part of
che Agua Hedionda Lagoon.
We believe there is a conflict between Section 11.24.070
and:
(1) the. California Constitution,
(2) Sections 100 and 660 of the California Harbors and
Navigation Code, and
(3) several decisions of appellate case law, including Gunter
v. Geary (1851) 1 C 462.
Article X, Section 4 of the California Constitution states: "No
individual, partnership, or corporation, claiming or possessing the
frontage or title lands of a harbor, bay, inlet, estuary, or other
navigable water in this State, shall be permitted to exclude the
right of way to such water whenever it is required for any public
purpose, nor to destroy or obstruct the free navigation of such
water; and the Legislature shall enact such laws as will give the
most liberal construction to this provision, so that access to the
navigable waters of this State shall be always attainable for the
people thereof."
Section 100 of the Harbors and Navigation Code states:
"Navigable waters and all streams of sufficient capacity to transport
the products of the country are public ways for the purposes of
~avigation and of such transportation."
. 27 EXHIBIT 2
Ken Price
May 12, 1994
'Page Two
Section 660 of the Harbors and Navigation Code limits local
governmental agencies 'in adopting boating ordinances to four specific
areas: (l) time of day restrictions, (2) speed zones, (3) special-use
areas, and (4) sanitation and pollution control. The City's
restriction of allowing only owners and tenants of Bristol Cove to
use that water area is beyond the scope of allowable provisions in
Section 660.
The court held in Gunter v. Geary that:
"All that part of bay or river below low water or low tide, is
public highway, common to all citizens; and if any person
appropriates it to himself exclusively, presumption is, that it
is detriment to public."
Based on the aforementioned laws, Section 11.24.070 must be
rescinded.
Section 11.24.115 (3) _& (5), Ski Boats and Skiers -
Section 11.24.120. Vessels to stay Outside Boat Corridor
Section 11.24.130. Compliance of the Road
11.24.135. Rules of the Road
These sections of the Carlsbad Municipal Code are concerned with
the subject of navigation rules (rules of the road.) A state or a
political subdivision may not independently regulate in the area
commonly referred to as rules-of the road or navigational rules and,
therefore, these sections must be rescinded. Comprehensive federal
laws, applying to all waters within the United States, "occupy the
field" of navigational rules for vessels using such waters.
Additionally, California has adopted such rules by incorporation
(Title 14, California Code of Regulations, Section 6600.1) so that
state and local enforcement agencies may enforce them on waters
within their jurisdiction.
In addition, Section 660 precludes the passage of navigational
rules by local agencies.
The references to which boat has the right of way (Sections
11.24.115 (3) & (5) and 11.24.120) must be repealed. Generally, the
navigational rules do not allow any special privileges for a vessel
towing skiers, or for pass through vessels.
Deep-water starts and traffic-flow patterns around the lake are-
permissible, but a local agency may not independently determine
vessel right-of-way.
JCen Price
ay 12, 1994
Page Three
Section 11.24.115 m &(91. Ski Boat and Skiers
Subsequent to the City of Carlsbad adopting requirements for the
use of a red ski flag, the State passed Section 658.7 of the Harbors
and Navigation Code and amended Section 7009 of the California Code
of Regulations specifying when and what type of ski flag is to be
used. I have enclosed a copy of the "California Boating Law", which
includes these sections.
Section 660 of the Harbors and Navigation Code precludes a
municipality from regulating the use of ski flags.
That part of the city code relating to ski flag requirements
must be repealed.
If you have any questions or we may in any way be of assistance,
please feel free to contact me at (916) 322-1821.
Sincerely,
David L. Johnson, Unit Manager
Boating Operations Division
Enclosure
29
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August 1989 ATTORNEY GENERAL'S OPINIONS r /RECEIVED
' V i 1989SEP
crnr OF CARLSBAD
CITYATTOflNIY
Opinion No. 89-503—August 29,198?
Requested by: DIRECTOR, DEPARTMENT OF BOATING
AND WATERWAYS
Opinion by: JO.HN K. VAN DE KAMP, Attorney General
Rodney O. Lilyquist, Deputy
THE HONORABLE WILLIAM H. IVERS, DIRECTOR, DEPART-
MENT OF BOATING AND WATERWAYS, has requested an opinion on the
following question:
Where a city operates a boating program on an ocean lagoon, may the use
of a boat launching facility on private property adjacent to the lagoon be
conditioned upon each boat owner having liability insurance coverage naming
the city as an additionally insured party?
CONCLUSION
Where a city operates a boating program on an ocean lagoon, the use of
a boat launching facility on private property adjacent to the lagoon may not be
30 EXHIBIT 3
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150 ATTORNE Y GENERAL'S OPINIONS Volume 72
conditioned upon each boat owner having liability insurance coverage naming
the city as an additionally insured party.
ANALYSIS
In 63 Ops.Cal.Atty.Gea 874 (1980), we concluded that a city could not
impose by ordinance a requirement that boat owners obtain liability insurance
coverage naming the city as an additionally insured party in order to participate
in the city's boating program on an ocean lagoon located within the city's
boundaries.
The present inquiry involves the same city and lagoon,1 but the city
ordinance has since been repealed. Instead, the same liability insurance re-
quirement is imposed upon the use of a boat launching facility located on
private property adjacent to the lagoon.2 Does the repeal of the ordinance and
placing the requirement upon the use of private property merit a different
conclusion from the one reached in our 1980 opinion? We conclude that the
present liability insurance requirement violates state law.
The contract between the city and the boat launch owner excludes the
identical persons from the city's boating program as were excluded under the
former city ordinance. Those boat owners who do not carry liability insurance,
have insurance but cannot add the city as an additionally insured party under
the terms of their policies, or do not know of the requirement for naming the
city as an additionally insured party are prevented from launching their boats.
Obviously, if every city and county adopted such a requirement, boat owners
traveling throughout the state would be faced with substantial barriers in the
use of their boats. .
We know of no law that requires a city or private property owner to
maintain and operate a boat launching facility. Once the facility is made
available to members of the public, however, various provisions of law limit
the types of conditions that may be placed upon the public's use. The activity
of boating is of special concern to the Legislature since the Constitution directs
the Legislature to protect "the free navigation" of the navigable waters of the
state. Section 4 of article X of the Constitution provides:
"No individual, partnership, or corporation, claiming or possess-
ing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other
navigable water in this State, shall be permitted to exclude the right
of way to such water whenever it is required for any public purpose.
The li|oon bed U owned by • private utility company that dredged minhUnd to create the lagoon.
The city lease) the lagoon bed from the utility company and operate* an extensive recreational use program.
(63 Ops.01.Auy.Gen. 874. 876, m. 3 (1980).)
1 The city hat a contractual agreement with the owner of the boat launching facility under which
the city receives SI for each boat launched and the operator allows up to 80 boats to be on the water at any
given time.
31
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August 1989 ATTORNEY GENERAL'S OPINIONS 151
nor to destroy or obstruct the free navigation of such water, and the
Legislature shall enact laws as will give the most liberal construction
to this provision, so that access to the navigable waters of this State
shall be always attainable for the people thereof."
The Legislature is thus responsible for enacting laws that protect the
public's right of access to and use of the navigable waters of the state.1 It has
done so in pan by enacting such laws as Harbors and Navigation Code section
131 ["Every person who unlawfully obstructs the navigation of any navigable
waters is guilty of a misdemeanor"],* Penal Code section 370 ["anything which
... unlawfully obstructs the free passage or use, in the customary manner, of
any navigable lake, or river, bay, stream, canal, or basin ... is a public
nuisance"], and Civil Code section 3479 ["Anything which . . . unlawfully
obstructs the free passage or use, in the customary manner, of any navigable
lake, or river, bay, stream, canal, or basin... is a nuisance"].) With specific
regard to navigable waters located within the boundaries of a city, Government
Code section 39933 declares:
"All navigable waters situated within or adjacent to a city shall
remain open to the free and unobstructed navigation of the public.
Such waters and the water front of such waters shall remain open to
free and unobstructed access by the people from the public streets
and highways within the city. Public streets, highways, and other
public rights of way shall remain open to the free and unobstructed
use of the public from such waters and water front to the public streets
and highways." . . ' •
Because of these -constitutional rights of access and navigation, courts
have closely scrutinized any attempts to curtail or obstruct the people's use of
navigable waters. In People ex rel. Younger v. County of El Dorado (1979) 96
Cal.App.3d 403, for example, the court struck down a county ordinance
prohibiting the use of rafts on the American River. The court explained:
"However laudable its purpose, the exercise of police power may
not extend to total prohibition of activity not otherwise unlawful.
(Frost v. City of Los Angeles (1919) 181 Cal.22 (ban on supplying
waterless pure than purest available); Son Diego T. Assn. v. East San
Diego (1921) 186 Cal. 252 (ban on operation of hospitals treating
infectious or contagious diseases within city limits).) Courts are
especially sensitive to infringements upon constitutional rights under
the guise of exercise of police power. (See Scrutton v. County of
Sacramento (1969) 275 CaLApp.2d 412,421.) The public's right of
1 The lagoon in question meets the test of navigability. (See National Auduboit Socitty v. Suptrior
Court (1983) 33 CalJd 419.435: Fortstitr y. Johnson (1912) 164 Cat 24,34-40; ftopl* v. Tnickit Lumbtr
Co. (1897) 116 Cat 397. 401: Pteptt ex reL Baktr v. Mack (1970) 19 Cal.App.3d 1048. 1050; Bokn v.
/U6»ruwi(195l) 107 Ol.App.2d 738,749-757.)
4 All references hereafter to the Harbors and Navigation Code are by section number only.
32
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152 ATTORNEY GENERAL'S OPINIONS Volume 72
access to navigable streams is a constitutional right. (Cal. Const., an.
X, § 4; Marks v. Whitney (1971) 6 Cal.3d 251.)" (Id., at p. 406.)
In Lane v. City of Redondo Beach (1975) 49 Cal.App.3d 251, the court
recognized that cities were obligated to protect rather than defeat the public's
right of access to navigable waters. The court observed:
"The basic purpose in entrusting tidelands to municipalities in
trust, is to insure the right of free public access to tidelands or
navigable waters. [Citation.] The object of the trust is destroyed if a
municipality in the exercise of its admitted municipal power to vacate
municipal streets can deprive the public of its right of access to
tidelands or navigable waters. The municipality as a trustee of
tidelands, is obligated to achieve, not defeat the object of the trust. Its
municipal powers must be exercised in a manner which is consistent
with its trust duties. It may not use its municipal powers to destroy
its trust obligations." (Id., at p. 257.)
We do not question the right of the Legislature to reasonably regulate
access to and use of the navigable waters of the state. It may require boats to
be registered and licensed. (See Veh. Code. § 9850.) Although it has not done
so, the Legislature could require an owner to obtain liability insurance
coverage for his or her boat. It could also allow cities and counties to reasonably
regulate boating activities within their territorial boundaries.
Indeed, the Legislature has authorized cities and counties to place restric-
tions upon the navigation of boats, but only under narrowly defined conditions.
Subdivision (a) of section 268 provides: .
"Counties or cities may adopt restrictions concerning the naviga-
tion and operation of vessels and water skis, aquaplanes, or similar
devices subject to the provisions of subdivision (a) of Section
660,..."
Subdivision (a) of section 660 in turn states:
"The provisions of this chapter, and of other applicable laws of
this state, shall govern the use, equipment, and all other matters
relating thereto whenever any boat or vessel shall be used on the
waters of this state, or when any activity regulated by this chapter
shall take place thereon. Nothing in this chapter shall be construed to
prevent the adoption of any ordinance, law, regulation or rule relating
to vessels by any entity otherwise authorized by law to adopt such
measures, including but not limited to any city, county, city and
county, port authority, district or state agency; provided, however,
that such measures relating to boats or vessels shall pertain only to
time-of-day restrictions, speed zones, special-use areas, and sanita-
tion and pollution control, the provisions of which are not in conflict
33
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August 1989 ATTORNEY GENERAL'S OPINIONS 153
with the provisions of this chapter or the regulations adopted by the
department. Such measures shall be submitted to the department prior
to adoption and at least 30 days prior to the effective date thereof."5
These statutory grants of regulatory power to local governments cannot.
however, be reasonably construed to include conditioning the use of a vessel
upon the obtaining of liability insurance coverage for a city or county. (63
Ops.Cal.Atty .Gen. 874,876-877 (1980).)
In Tellis v. Municipal Court (1970) 5 CaLApp.3d 455, the court upheld a
county ordinance requiring boat owners to obtain permits to live aboard their
boats. The court found express authority in section 660 for such a "sanitation
and pollution control" regulation. (Id., at p. 458.) Unlike Tellis, a liability
insurance requirement does not fit within any of the areas of regulation
authorized by sections 268 or 660.
The fact that the boat launching facility is located on private property is
irrelevant for purposes of these statutory grants of power. Use of the facility
requires use of the lagoon; the latter is the sole purpose of the former. The two
activities are inexorably connected and are not reasonably divisible. The boat
launch operator is not acting independently of the city when requiring the
liability insurance coverage naming the city as an additionally insured party.
We find no meaningful distinction here between the city imposing the require-
ment by ordinance or by contract
What the city must do under its constitutional and statutory mandate is to
facilitate access to and navigation of the lagoon. The liability insurance
requirement for coverage of the city's interests is instead an unreasonable
impediment to access and use of the lagoon! Only those who know of and are
able to obtain the specified coverage may launch their boats. As we previously
stated, "If each county and city operating a boating program were free to adopt
the type of ordinance provision in question, a boat owner traveling throughout
the state would be faced with substantial barriers in the use of his boat" (63
Ops.Cal.Atty.Gen. 874,878 (1980).)
Hence, the adverse effect of the insurance requirement "'on the transient
citizens of the state outweighs the possible benefit to the municipality.'" (Ibid.)
In this regard, we acknowledged in our prior opinion the "benefit" to the city
of the insurance requirement but noted that "a city may insure against its own
negligent liability and pass on the costs of such a 'management' and
'maintenance* cost to those benefiting from the program." (Id., at pp. 878-
879.) This would also be true for fees covering the cost of a self-insurance
program. Moreover, it should be recognized that the Legislature has provided
a statutory immunity from liability for public agencies operating recreational
programs under a variety of circumstances. (Gov. Code, §§ 831.2-831.7.)
The "department" it the Department of Boating and Waterway*. (§ 32.)
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154 ATTORNEY GENERAL'S OPINIONS Volume 72
In answer to the question presented, therefore, we conclude that where a
city operates a boating program on an ocean lagoon, the use of a boat launching
facility on private property adjacent to the lagoon may not be conditioned upon
each boat owner having liability insurance coverage naming the city as an
additionally insured party.
35
ST-ME-2&-€AUfORNIA—THE RESOURCES AGE o GEORGE OEUKMEJIAN. Governor
DEPARTMENT OF BOATING AND WATERWAYS
1629 S STREET
SACRAMENTO. CA 93814-7291
(91 A) '-6281
OCT
OF CA..
CITYATTOf
City Council
City 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 He.dionda 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 Hedionda
Lagoon. Boaters were also required to list the City of Carlsbad
on their liability policies. Xihis 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 (No. 80-901)
found the precondition of liability insurance to be in violation
of State law.
36 EXHIBIT 4
o o •
Carlsbad City Council -2- OCT - -
Members '-^3
Subsequent to that opinion, the City repealed the portion of the
ordinance imposing an insurance requirement.
Recently, we received complaints from the public regarding an
insurance requirement imposed by a concessionaire who operates
the boat launching facility. We found that the City, through the
concessionaire, was imposing an insurance requirement as a
precondition to use of the launching facility, i.e., the
concessionaire is required to check that boaters have a permit
before launching their boats on the Lagoon. To obtain a permit
from the City, a boater must produce an insurance policy which
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 that 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 ^^
Jeremiah Blair, Office of the Attorney General
Jack Rump, State Lands Commission
Enclosure
37
June 23, 1994
TO: ASSISTANT CITY MANAGER
FROM: Community Services Director
AGUA HEDIONDA LAGOON (AHL)
On June 21, 1994 during the budget hearing, the Council recommended (5-0) to
terminate the AHL patrol program effective January 1, 1995. In order to implement
this direction, the following course of action should be taken.
1. Work with the Finance Department to modify the 1994-95 Lagoon budget
account to reflect 6-month reduction in program funding. (6/23/94)
2. Inform the Planning Commission of Council action and initiate steps to amend
the Parks and Recreation Element of the General Plan. The new General Plan
is scheduled for the City Council meeting of July 12, 1994. Any change to the
General Plan at this point would require Planning Commission action.
(Schedule for earliest Planning Commission date)
3. Prepare written notification to SDG&E regarding processing of termination of
lease and lagoon patrol program for use of the inner lagoon, (pending)
4. Prepare a written notification to the California Department of Boating and
Waterways regarding termination of lease and lagoon patrol program,
(pending)
5. Prepare written notification regarding termination of lease and lagoon patrol
program to Snug Harbor Marina, Bristol Cove Property Owners Association,
Carlsbad Boat Club, and Dr. Sakaria. (pending)
6. Prepare written notification to the 1994 AHL permit holders regarding
termination of lease and lagoon patrol program, (pending)
7. Prepam Parks and Recreation Commission agenda bill Informing the
Commission of recent Council action. Recommend deferring any action
regarding pending request to relocate slalom course and amend certain
sections of Carlsbad Municipal Code, AHL Chapter 11.24 (maintain status quo),
(schedule for July P&R Commission 7/19/94)
8. Coordinate with the City Attorney's office to repeal certain sections of Carlsbad
Municipal Code, AHL Chapter 11.24. (August thru November 1994)
38 EXHIBIT 5
AQUA HEDIONDA ALGOON
June 23, 1994
Page Two
9. Submit ordinance revision to City Council for action. (November-December
1994)
10. Amend lease agreements with Dr. Sakaria/Snug Harbor and Bristol Cove
Homeowners Association, (to coincide with ordinance revision/Council action,
November-December 1994)
11. Amend the Agua Hedionda Specific Plan.
12. Notify the Risk Manager of action taken.
At this point in time we have no idea of what action SDG&E will take regarding the
control, regulation, and use of the lagoon. It is our understanding that SDG&E
officials are evaluating what course of action should be taken. I have been informed
by Paul O'Neal, SDG&E Government Affairs Representative, that they do not want to
close the lagoon down at this time. They will probably be developing strategies to
find someone or another agency to run and regulate the aquatic program.
DAVID BRADSTREET
c: City Manager
City Attorney
Financial Management Director
Finance Director
Community Development Director
Planning Director
Risk Manager
Assistant to the City Manager
Recreation Superintendent
Agua Hedionda Lagoon File
39
JulyS, 1994
TO: ASSISTANT CITY MANAGER
FROM: Community Services Director
AGUA HEDIONDA LAGOON (AHL)
On June 21, 1994 during the City Council budget agenda item, the Council
unanimously recommended that the AHL Patrol Program be eliminated as of January
1, 1994, and that staff take necessary actions to return the operation of the AHL to
SDG&E via termination of the existing lease agreement for the Inner Lagoon.
On June 28, 1994, after hearing public testimony urging the City to insure that active
power vessel use on the lagoon would continue, Council directed staff to work with
the various citizen groups and associated agencies to develop alternatives which
would continue to provide a recreational program on the lagoon.
Currently, there are two (2) outstanding issues that relate to the operation of the
lagoon; they are:
1) Ordinance revisions(s)/request for slalom course relocation, and
2) Alternatives relative to the continued recreational operation of the Lagoon
Program.
Prior to Council action of June 21 and June 28, 1994, staff had been processing
(through the Parks and Recreation Commission) a request to relocate the existing
water ski slalom course and other revisions to the Municipal Code, Section 11.24
"Agua Hedionda Lagoon." Notwithstanding the most recent Council action (June 28),
staff recommends that these two (2) issues be facilitated and processed
independently of each other. In light of the timing required to adequately address
and implement the individual issues, staff believes this is the most appropriate way in
which to proceed. Therefore, an outline for processing the separate issues is as
follows.
Issue 1 - Ordinance Revisions'/Request for Slalom Course Relocation
Staff will present their recommendations to the Parks and Recreation Commission on
July 18, 1994. Contingent upon Commission action, staff may administratively
implement a relocation of the slalom course and begin processing revisions to the
Municipal Code, Section 11.24 - Agua Hedionda Lagoon for future City Council
action.
40 EXHIBIT 6
AGUA HEDIONDA LAGOON
July 5, 1994
Page Two
As a separate agenda item during the July 18, 1994 meeting, staff will outline
the Council's direction regarding alternatives for the future operation of the
Lagoon and request that the Commission establish a subcommittee to work
with staff and various community groups.
Issue 2 - Operational Alternatives
Staff will work with the Parks and Recreation Commission's subcommittee, citizen
groups, business owners and affected public agencies to present operational
alternatives for Commission and Council consideration. Pursuant to Council action of
June 21, 1994, any recommendation to continue the City's involvement in providing a
Lagoon Patrol Program past January 1, 1995 would require funding allocation. In
addition, staff will pursue the implementation of lagoon patrol citation powers if such a
recommendation is forthcoming. Staff anticipates a subcommittee report will be
scheduled for presentation by the end of this year.
DAVID BRADSTREET
DB:jm
c: City Manager
City Attorney
Risk Manager
Financial Management Director
Planning Director
Recreation Superintendent
AHLFife
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