Discussion Item A S T A F F R E P O R T TO: Property Committee FROM: Andrea K. Lueker, Harbor Manager DATE: November 7, 2019 SUBJECT: Code of Ordinances, No. 18.015 – Aircraft Recommendation / Proposed Motion • Recommendation: Review and discuss the staff report and the proposal from a local paraglider group in regard to landing on Avila Beach. Policy Implications District Code of Ordinances, Chapter 18 – Health and Safety Regulations, paragraph 18.015 – Aircraft. 18.015 - Aircraft It shall be unlawful for any aircraft, including but not limited to fixed and rotary winged craft, ultra light, flying vessels and any other craft that leaves the surface of the land or water capable of carrying a human to land, taxi, park or take off on any District properties, except for county, state or federal aircraft in the performance of official duty or in an emergency or with written approval of the Harbor District. District Major Objective/Goal Not applicable. Fiscal Implications / Budget Status None at this time. Alternatives Considered The following actions were considered but are not recommended at this time: • None at this time. Background Several months ago, a local paraglider contacted the Harbor District by e-mail in regard to the landing of paragliders on Avila Beach. While paragliders have been landing time- to-time on the beach, the District has an ordinance which specifically prohibits the activity. The issue was brought to the forefront this summer as a lifeguard on Avila Beach Property Committee - Code of Ordinances, No. 18.015 - Aircraft 2 November 7, 2019 approached several paragliders and informed them this activity was not allowed. Harbor Patrol followed up with the issue and reiterated the activity is not allowed and has not been allowed for some time. The local paraglider met with the Harbor Manager to more specifically discuss the issue and provide more information, forwarded material and descriptive YouTube videos to the Harbor Commissioners, as well as attended a Board of Commissioners’ meeting. The Board of Commissioners, at their July 23, 2019 meeting, agreed to a discussion on the ordinance under the Future Agenda Items section. The item was agendized for the September 24, 2019, Board of Commissioners’ meeting and the Board, by consensus, agreed they were open to receiving a detailed proposal from interested paragliders, which would be reviewed by staff and the Property Committee prior to returning to the Board. The Board indicated that any proposal received should take into account the conditions set forth in the staff report and Commissioner suggestions such as landings only allowed on Avila Beach between the Avila Pier and Fossil Point, no take-offs from District property, insurance requirements, and working with Harbor Patrol/Lifeguards regarding number of patrons on the beach. Discussion Attachment 1 is the proposal the interested paragliders have provided pursuant to the discussion from the September 24, 2019, Board of Commissioners’ meeting as well as Attachment 2, a release, waiver and assumption of risk agreement. Also, Attachment 3, the September 24, 2019 staff report, has been included which outlines District Staff’s concerns. Below, District Staff has included a brief review of the proposal provided by the interested paragliders for purposes of discussion at the Property Committee level. 1. The proposal indicates an exemption letter to the Harbor District’s Ordinance No. 18.015 is an option to allow the landing of paragliders on the beach. It is staff’s understanding that the District’s Ordinance must be amended through the designated process and District Staff questions the ability to exempt a particular group from a Harbor District Ordinance. 2. During their public comment, a member of the local paraglider group indicated they flew according to Federal Aviation Administration (FAA) regulations and the FAA considered paragliders to be aircraft. With that understanding, the FAA has published a Guide to Low Flying Aircraft, which cites Title 14 of the Code of Federal Regulations, Section 91.119 of the General Operating and Flight Rules. Paragraph C of this citation prohibits the flying of paragliders within 500 feet of any person, vessel, vehicle, or structure (Attachment 4). 3. While the Harbor District has an exceptional group of lifeguards and Harbor Patrol Officers, staff has concerns with adding additional tasks (estimating crowd size) to their long list of responsibilities. Additionally, this task does carry some added liability for the District. Property Committee - Code of Ordinances, No. 18.015 - Aircraft 3 November 7, 2019 District Staff is appreciative of the work the paragliding group has done in preparing their proposal. However, Harbor District Staff, including Harbor Patrol, Lifeguards, and Managers continue to recommend leaving the current prohibition in place with no exemptions and/or amendments to Ordinance 18.015 for this activity. This is based on the following factors: 1. Avila Beach is the most popular and busiest beach in the region due to the lack of fog, south facing exposure, and generally gentle surf. 2. Paragliding is dependent on wind and wind is unpredictable. 3. In addition to a busy beach, Avila Beach is a very small area as compared to other local beaches such as Cayucos, Morro Bay, and Pismo Beach. 4. While there are only a limited number of paragliders currently using Avila Beach, after an ordinance change to allow this activity, it may become a much more popular area. This would further impact the beach, beachgoers, and public safety staff. 5. The District does not allow for use of vehicles on the beach, so allowing for the landing of a paraglider, which can be at high speeds and potentially uncontrolled, would be a risk to public safety, resulting in additional liability on the District. 6. The Harbor District has been very diligent about reviewing the number of outside uses on District property. Currently, Avila Beach includes kayak and SUP rentals and lessons, surf lessons, Jr. Lifeguard Program, wetsuit and beach equipment rental, Yacht Club uses, and permitted special events, to name a few. 7. If the ordinance is amended to allow for paragliding, is a precedent set that will lead to other requests for powered paragliding equipment with gas engines/ spinning propellers or battery-powered electric paragliders with large lithium battery packs that could end up in the water? Attachment(s): 1. Proposal on Exemption (provided by paragliders) 2. Assumption of Risk (provided by paragliders) 3. September 24, 2019 Board of Commissioners’ Staff Report – Ordinance 18.050 - Aircraft 4. FAA/Guide to Low Flying Aircraft, citing Title 14 of the Code of Federal Regulations, Section 91.119 of the General Operating and Flight Rules ATTACHMENT 1 Paragliders landing on Avila Beach Pavlo Rudakevych 29sep2019 [proposed text for exemption letter] Subject to the conditions below, the Harbor District exempts paragliders from regulation 18.015 which prohibits aircraft from landing on the beach. 1) Paragliders are only allowed to land on the beach between Fossil point and Avila pier. 2) Pilots may not takeoff from any Harbor District properties. 3) If lifeguards are present, pilots must verify with lifeguards that there are an estimated fewer than 500 (TBR) people on the beach before any flight activities. 4) Pilots must be current members of United State Hanggliding and Paragliding Association (USHPA) and hold at least a P4 (Advanced) pilot rating. 5) Pilots must be current members of the San Luis Obispo Soaring Association (SLOSA). 6) Only non-motorized paragliders with total empty weight less than 45 lbs and no rigid structures larger than 2 ft are allowed. This exemption is for one year, but may be revoked at any time by notifying the president of SLOSA at [email protected]. [discussion and analysis of proposed conditions] 1) One board member expressed a desire to have this condition specifying the area include. 2) Again, included at the request of a board member. This seems useful as a secondary way (to condition 6) of excluding powered paragliders. 3) This is in lieu of a blanket ban on date ranges. Estimating the crowd size is a clear criteria so lifeguards are not burdened with the responsibility of deciding if it is “safe”. The crowd size number may need some adjustment. I was unable to locate any data for estimated beach crowds. For reference, typical summer traffic to Avila exceeds 15,000 cars/day. Large concerts in Avila draw 5,000 people, but these are not on the beach and are in more concentrated areas. 4) Membership in USHPA has three significant benefits of interest: pilot rating/certification, third-party liability insurance, and release of liability waivers. There are five levels of pilot rating. Advanced pilots (P4) have accomplished a significant number of flights at different locations using a variety of equipment. Only about 25% of the paragliding population holds a P4 rating or above. From the USHPA literature: “Pilots at this level have accumulated the flying experience and judgment necessary to handle conditions at a wide range of flying sites. A part of “judgment” is knowing when a site or conditions are beyond the pilot’s ability to handle them safely. Advanced pilots know when and where to fly, as well as when and where not to fly. They often serve as mentors and role models to less-experienced fliers. At some sites, advanced pilots are empowered to close the site or limit flying if they feel conditions are unsafe for lower-rated pilots. “ All USHPA pilots benefit from third party liability coverage for their recreational activities as an additional insured under USHPA’s General Liability (GL) Policy at $1 million per occurance. Also attached is a waiver that all members of USHPA are required to sign, releasing all parties from any injuries pilots may receive in the course of participating in the sport.