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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 o co_ 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 o 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 o 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 o co_ 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 o 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.) 34 o 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 C:\WPflWWPOATA\OB4KB\MEMOS\AHL 41