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Massachusetts Mooring Regulations Can Leave Boaters Adrift

Just as Boston-area drivers know the frustration of searching for a low-cost parking space, sailors can feel a similar pain in finding a spot to moor their boats during the summer months. Mooring sites are at a premium along Massachusetts’ 1,500 miles of coastline and spots are coveted among the state’s recreational boaters.

Issues surrounding moorings intersect complex issues of state and municipal regulation and case law. Massachusetts state regulations define “moorings” as “any man-made object which is intended to remain place in, on, over or under tideland, Great Ponds, or other waterway.” 310 C.M.R. 9.02. Although “boating” has not been defined legally, Massachusetts courts have recognized the interchangeable use of “boating” and “navigation.” Massachusetts law dating back to Colonial times preserves limited rights of the public even on private beaches, including navigating boats and other vessels across private land. The courts have held, however, that “mooring” is more akin to parking rather than navigation and not a protected public right. Due to the stationary and of longer duration than passing through water, the mooring of one boat can infringe upon the navigation the rights of another.

Massachusetts courts have ruled that an easement over another owner’s property does not necessarily include mooring rights. Some litigants have attempted to persuade the courts that private easements should be construed to allow them to build mooring structures to store their boats for the season. The courts, however, look at mooring as the storage of personal property on an easement and must determine on a case by case basis if such storage is permissible. The scope of a private easement may include the right to install structures, such as a ramp and float system if doing so is “reasonably necessary to use of the easement, having due regard for the plaintiff’s rights and interests.” Tindley v. DEQE, 10 Mass.App.Ct. 623, 628 (1980). The courts will analyze the language of the easement itself and the intent of the parties at the time the easement was created and how the easement was used over time to determine whether structures are allowed.

Frustrated boaters may be tempted simply to build their own mooring structure for the summer, but could be in for an unpleasant surprise if they fail to first obtain a permit from the local harbormaster. In Davis v. Zoning Bd. Of Chatham, 52 Mass.App.Ct. 349 (2001), the Appeals Court ruled that mooring rights are not available to all those engaged in boating; only those who obtain the requisite mooring licenses. If a boater installs a mooring structure without a permit, the local harbormaster can have it removed at the expense of the owner.

Harbormasters are charged with fairly and equitably assigning spaces when they become available. Moorings are limited and boaters in many communities must apply to be put on a waitlist, rather than an actual spot. Moorings are so limited that some towns’ waitlists date back 20 years. Mooring permits also are nontransferable, meaning an individual owner cannot sell his or her permit to another private individual, unless that person is an immediate family member. If a permit holder releases a spot, it goes back to the local harbormaster for reassignment.

Recently, the issue of whether mooring permits have been issued to commercial enterprises along the coast which, in turn, sell the permits at a higher rate and make a profit, has arisen in coastline communities. Law enforcement agencies have taken different stances on whether this should be permitted. The Inspector General interpreted state law as prohibiting the distribution of mooring permits to private entities to make a profit because waters along the coast must be open to the public and not parceled out to private interests. The Norfolk County District Attorney’s office takes the stance that waterfront businesses should be able to make a profit. The Patrick Administration views this issue as one the local harbormasters have authority to decide.

Since mooring regulations are established locally, be sure to check with town officials about mooring your boat.

Attorney advertising. This article does not constitute legal advice.
© 2014 Englander, Leggett & Chicoine, P.C.