MOORING SQUEEZE
The following position paper was drawn up by Jamy Madeja, counsel for MMTA. It was occasioned by the situation in Harwich where it has been reported that the State Inspector General has instructed the town to retake control of all moorings located in municipal waters, including those under control of local boat yards. It is felt this will become a statewide issue very soon. MMTA is following the situation closely.)
Moorings permits have been the most controversial legal issue in the Chapter 91 setting this season. As more and more people seek access to the Commonwealth’s waterways, there has not been a commensurate increase in new public access points or new moorings fields or new marinas and boatyards. With no shortage of waterways users – only a shortage of the facilities users need to access and enjoy the waterways safely – “mooring envy” abounds. Some professionals in the recreational boating industry are faced with municipalities with severely limited budgets, equipment, space and staff nevertheless considering whether the municipality could be providing waterways services better than the existing facilities. The law generally allows the local Harbormaster to issue annual mooring permits, but what about existing marinas, boatyards and boat retailers who for years have been operating mooring fields and providing inspections, launch service, moorings hardware, parking and bathrooms, with the full blessing and support of the local Harbormaster? Don’t these existing professionals have rights as well as responsibilities?
Of course. Nothing in the annual mooring permit regulations is supposed to prevent moorings for which permits are issued to a recreational boating facility from being assigned to individual patrons or members of that facility. See 310 CMR 9.07. It is also perfectly legal for the permits to be renewed repeatedly by the same person or an immediate family member. Similarly, regarding berths and docking space, recreational boating facilities are specifically authorized to assign vacant berths based on vessel characteristics and to offer first refusal rights to existing patrons of the facility who wish to relocate to a vacant berth. 310 CMR 9.38.
What happens if a mooring permit is not handled fairly or is attempted to be “taken back” by the town? Harbormasters and towns, like all government entities, must provide due process and equal protection to all, such that taking away a previously granted right must be done with a rational basis for the action. Also, Chapter 91 statutorily protects “pre-existing water dependent” businesses in ways not common to all businesses, i.e. this endangered species has some special protections! The regulations do not detail the legal rights of permit holders who are denied a renewal after years of holding the same mooring permit, other than to state that anyone denied one can appeal to the state Department of Environmental Protection, and then on to court if rationality and fairness still do not prevail. It is also possible to “petition for review” of a whole local moorings permitting program. Unfortunately, rights can be expensive to defend, especially when hoards of people are clamoring for a piece of what is being defended. So every business owner should do everything possible to educate local authorities and their local state representative and senator about the public benefits and services and employment opportunities provided by established marinas and boatyards and how moorings permits are a necessary component of being able to continue to provide those benefits.
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