Public moorings, private profit - Is it legal?

By Steve Myrick - February 28, 2008

Sharply divided Chilmark selectmen will await a legal opinion on whether allowing two people to operate mooring businesses in town waters violates state laws requiring fair allocation of the town moorings.

Only two individuals control large groups of moorings. Jonathan Mayhew, a former Chilmark selectman, leases 25 moorings from the town, and Lynn Murphy leases 15 moorings. They then assign these moorings to private boat owners.

The arrangement dates back at least 30 years, long before an extensive revision of the town's waterways regulations was approved by selectmen in November 2005. (The regulations are available here.) The revised regulations grandfathered in the people who leased multiple moorings.

"No more than one Mooring Permit will be issued to a household, except that existing multiple Permit Holders as of 2005 will have their permits honored," the regulations provide.

Each town mooring permit costs $100 annually. The multiple mooring permit holders determine the cost they charge their customers for renting the moorings. Mr. Mayhew allows his customers to park on his property while they use their boats.

The town leases a total of about 200 moorings. Last year there was a list of 44 people waiting for a mooring permit.

The Massachusetts inspector general, after investigating moorings controlled by private boatyards in Chatham, issued a recommendation that Chatham, through its harbormaster, assert control over all moorings in town waters.

Selectman J.B. Riggs Parker wants to know if the inspector general's opinion and the state laws cited in those opinion, have legal implications for Chilmark. His motion to seek a legal opinion, made during the selectmen's Feb. 19 meeting, illustrated the stark differences among selectmen over the regulations.

"We have a situation with our moorings that serves the town well," said Mr. Doty, according to a video recording of the meeting shown by MVTV. "It serves the public well. I don't see why we should even think of changing it."

Mr. Doty's position was to leave the current situation as is, unless someone challenges it. "Let's wait until somebody yells at us."

"That's an indefensible position," said Mr. Parker. "I will not stick my head in the sand."

"Since I've been on the board," said Mr. Doty, "our involvement with town counsel has tripled, quadrupled, times five. Why do we need a legal opinion when we as the board, when we are the political entity. We can decide what's right. I think the situation as it stands now is just fine. If we change it, it's going to cause us all kinds of problems. I think I can just act as a selectman. I don't need the town counsel to hold my hand all the time."

Harbormaster Dennis Jason, who is charged with implementing and enforcing the waterways regulations, recommended that selectmen find out whether the current practice violates state laws.

"They are pretty explicit," said Mr. Jason. " I think for us to think that it's something we can ignore is probably not wise in the long run."

Frank Fenner Jr., the third member of the board, was the swing vote.

"I don't want to change anything," said Mr. Fenner. "I think it's fine the way it is. I also don't believe it's right to deny someone a legal opinion." Though he said he did it hesitantly, Mr. Fenner joined Mr. Parker in voting to seek the legal opinion. "I think it's important that, if it's an illegal thing that we're doing, we find out, and put this to bed." Mr. Doty's was the only dissenting vote.

The investigation in Chatham was initiated after a citizen complained that the mooring permitting system was unfair. Two private boatyards were targeted in the investigation, and the inspector general determined that the boatyards were offering moorings to customers that bought expensive boats, while denying moorings to others. Getting a mooring from the boatyard effectively allowed those customers to bypass mooring waiting lists. The inspector general determined this practice to be inequitable and in conflict with state law.

"From this point forward, private entities should no longer be permitted to decide who is assigned to moorings under their control. All such assignments should be made by the harbormaster from a written waiting list, in a fair and equitable manner," the inspector general wrote in his recommendation to the town of Chatham. (The inspector general's opinion is available here.)

The spat over private individuals profiting from town-leased moorings in Chilmark is the latest in a series of disputes over the new harbor regulations. On Feb. 5, after a contentious public hearing, the selectmen voted to extend the deadline for mooring and slip leases, and for waiting lists. More than 40 people failed to renew their boat space or spots on waiting lists before the Jan. 15 deadline this year. Mr. Mayhew was among those who missed the deadline.