Chilmark advised to change mooring rules
By Steve Myrick
Published: April 3, 2008
Chilmark town counsel Ron Rappaport this week advised the town selectmen to redistribute mooring permits currently held by two local businessmen to people on the town's mooring waiting list, beginning next year.
"I am constrained to recommend," writes Mr. Rappaport in a 12-page letter to selectmen, "they [the private holders of multiple mooring permits] will only be entitled to mooring permits which are being utilized for their personal vessels or vessels of immediate family members, and that all remaining mooring permits should be available for assignment by the harbormaster under the town's waiting list procedure."
(The entire opinion is available here)
In Chilmark, two individuals hold blocks of moorings. Jonathan Mayhew and Lynn Murphy operate mooring businesses established long before Chilmark's current waterways regulations, and even prior to the state laws on which local regulations are based.
The opinion, requested by a sharply divided board of selectmen, cites state law, Department of Environmental Protection (DEP) regulations, and recent opinions by the state's inspector general. In the towns of Harwich and Chatham, the inspector general ruled private boatyards that held multiple mooring permits and controlled who used the moorings were violating state law.
"I think [town counsel] has given us a good road map for the issues raised," said J.B. Riggs Parker, who advocated clarification of the legal issues. "It's a long opinion and deserves careful study." Mr. Parker said he expects the harbormaster and the selectman Frank Fenner Jr., who are both also members of the town's mooring assignment committee, to step forward with plans to implement the recommendations.
The Times was unable to reach Mr. Fenner for comment.
Selectman chairman Warren Doty, who strongly opposed seeking the legal opinion, said "We'll be reviewing it over the next month or so. We decided not to act on it until May."
Harbormaster Denny Jason said he is still studying the opinion. "It's really in the hands of the selectmen," said Mr. Jason.
Mr. Rappaport's review found that four points are clear under state laws and DEP regulations.
- Permits for moorings in public waters cannot be issued for a period extending longer than the end of a calendar year and must be issued by the town (or the Army Corps of Engineers).
- No person has grandfathered rights or an entitlement to a mooring permit.
- The town must have a written mooring permitting system which is fair and equitable.
- Multiple mooring permits may be issued to an individual and utilized by the permit holder or immediate family members for personal use, but new or vacant moorings permits cannot be assigned by anyone except the harbormaster (or other assigned agent of the town) under a fair and equitable waiting list procedure.
"What remains unclear," writes Mr. Rappaport in his opinion, "is whether the moorings which have historically been utilized by persons other than the Mayhew and Murphy immediate family members must be assigned by the harbormaster under the town's waiting list procedure. The inspector general's opinion plainly intends that all moorings not utilized by immediate family members of the permit holder should be assigned by the harbormaster from the town's waiting list, and has urged DEP to amend its regulations to mandate this result."
The town counsel wrote that there is some ambiguity in the regulations governing private boatyards, called private recreational boating facilities, which hold multiple mooring permits. He said state law does not "address whether multiple mooring permits may be issued to a single person or entity," and does not "mandate procedures to be followed by a harbormaster (or any other town officials) in issuing mooring permits."
He cites DEP regulations that state "Nothing [in these regulations] shall be construed to prevent moorings for which permits are issued to a recreational boating facility from being assigned to individual patrons or members of such a facility."
Earlier in his opinion, Mr. Rappaport said the facilities operated by Mr. Mayhew and Mr. Murphy would likely not fit the definition of a recreational boating facility.
He advised selectmen to delay implementation of his recommendation until next summer, allowing time for Messrs. Mayhew and Murphy to pursue their right of appeal to DEP.
Mr. Mayhew holds 25 mooring permits in the Clam Point Cove area. In an earlier conversation with a Times reporter, Mr. Mayhew contended he does not rent the moorings, but charges his customers only the $100 fee the town charges him for the annual mooring permit. He provides parking on his land and services the moorings.
"What they actually pay me for is the access to my property and putting the mooring in and out each year," said Mr. Mayhew. "I would find it very ironic if the town says I can't have these 25 permits. Then there are going to be 25 families that feel very wronged. Now they will not have any access or ability to utilize their boats."
Mr. Murphy has permits for 15 moorings, which he considers part of his marine repair business. He rents some of the moorings by the week, month, or season. His wife Susan said many of their customers are on town waiting lists and use their moorings while waiting for a town mooring to become available.
Chilmark's waterways regulations have been a source of controversy. Completely revised in 2005, the regulations established standard policies aimed at preserving the historic uses of local waters and fair access to the limited number of moorings and slips available.
