Private businesses are cashing in on access to public waters while boaters wait years for affordable mooring sites
July 06, 2011
Robert Guimond is like a lot of retirees who stay in Massachusetts. The biggest attraction for him is the ocean, which is why the former salesman for General Motors and his wife left New Hampshire and took up residence in their one-time vacation home in Bourne.
Guimond’s pride and joy, aside from his family, is his 30-foot Mainship motor boat that he uses for fishing and pleasure trips. He spends weeks waxing it, cleaning it, and getting it ready for the relatively short New England boating season.
| Robert Guimond, and his 30-foot Mainship, tied up at his mooring in Bourne.|
About the only thing that he dislikes about boating is the mooring he ties up to each night. Moorings are like city parking spaces for boats. You have to have one and there aren’t enough of them to go around. Bourne assigns about 1,800 moorings to the public and charges an annual fee of $70 apiece for them, but they rarely turn over and people wait as long as 10 years to get one. Guimond has moved up to No. 13 on the town’s waiting list for his area since he put his name on it three years ago. He’s not alone. There are nearly 500 boaters on Bourne’s waiting lists.
While he waits, Guimond rents a so-called transient mooring for the four-plus months his boat is in the water, where he pays a $1,200 lump sum based on a daily usage rate. It’s a lot more expensive than the standard public fee but not as costly as renting a mooring from one of several private boatyards, yacht clubs, and marinas. They operate a little like ticket scalpers. The town grants about 650 moorings to them at a commercial rate of $150 apiece, but the businesses turn around and re-lease those moorings for whatever the market will bear—typically $1,800 and up.
Parker’s Boat Yard in the town’s Cataumet section has about 130 mooring permits, with about 85 or so that are leased out seasonally for $2,300 plus tax, plus the $150 town mooring permit fee. A woman named Cathy in the office at Parker’s who did not want to give her last name says the boat yard has about a dozen moorings available. If someone on one of Bourne’s 34 waiting lists—one for each public mooring field along the town’s coast—wants to lease one, she says, all they have to do is write a check.
“How is that fair to a guy like me when I’m waiting for a mooring?” Guimond asks in exasperation. “That’s not right. We pay our taxes and everything else. We should be entitled to something. It seems like there’s favoritism.”
Jennifer Chisser, who oversees mooring permits in Bourne’s harbormaster office, says the favoritism is by design. She says commercial moorings are issued to help waterfront businesses. “They can rent them out. That’s for them to earn a living,” she says.
But should private waterfront businesses be allowed to cash in on their access to public moorings? That question goes to the heart of a public policy debate taking place between the Patrick administration and Inspector General Gregory Sullivan. The Patrick administration takes a laissez-faire attitude on moorings, leaving it up to local harbormasters whether they want private businesses to make a profit on moorings. By contrast, the inspector general says state laws mandate that the waters along the coast be open and accessible to the public and not parceled out to private interests. Moorings, the IG says, should be distributed on a first-come, first-served basis with reasonable fees.
The policy split is visible up and down the state’s 192-mile coastline. Plymouth and Gloucester do not issue commercial mooring permits or allow private entities such as yacht clubs to dole out moorings, but many other communities do, including Bourne, Duxbury, and Beverly. There are other irregularities as well. State regulations clearly say that individuals cannot transfer their moorings to anyone other than immediate family members, but websites such as Craigslist and eBay are full of listings of mooring sites for sale. And even though state law prohibits it, many communities along the coast charge nonresidents more for moorings.
It’s a system where one harbormaster says he can give away publicly-owned property rights for a private business to cash in on, while the town next door says it won’t allow such a practice because it’s against state law. It’s a process where the state insists everyone is equal yet does little to ensure it. It’s a mishmash of interpretations of the law and regulations that in the end means the average boater is left adrift and, in many cases, upstream without a paddle.
Fair and equitable
According to state law and regulation, moorings are supposed to be granted in a “fair and equitable” manner. Cities and towns are allowed to collect “reasonable fees,” which for the season generally range from $1 per boat foot to several hundred dollars. Boston collected $171,133 in mooring fees in fiscal 2008, the most recent data available, while Duxbury, with about half the number of moorings, raked in nearly $135,000 in 2009. Barnstable, which has the most registered recreation boats of any community in the state with nearly 4,700, reported about $200,000 in mooring and waiting list fees last year.
When all moorings are taken, regulations require harbormasters to keep a waiting list and update it regularly. Moorings cannot be sold or leased by individuals and transfers can only occur among members of an immediate family. In most towns, there are people who have been on waiting lists as long as 20 years, with the average generally being 12 to 15 years. Marshfield has two people who have been waiting for nearly 40 years for moorings in the popular Green Harbor section of town.
Moorings, unlike the more expensive slips and docks, are “blue collar,” with far more people like Robert Guimond manning the helm than trust fund babies. According to Boat Owners Association of the US, registration data show three out of four boat owners have a household income of under $100,000.
Unlike slips, where boats can tie-up to land-based docks or piers for much higher fees, moorings are located offshore. Indeed, mariners need a boat ride to get to a boat that is secured on a mooring, which is usually identified by a large ball floating on the water’s surface. Moorings are secured to the bottom by a heavy anchor or concrete block.
The law and regulations are largely silent on the issue of commercial moorings. They don’t say whether moorings can be leased for a profit, although they do say that nothing in the regulations should be read to prohibit private entities from granting moorings to customers or members.
The state’s Department of Environmental Protection concludes “fair and equitable” is determined by the harbormaster in each town. Ben Lynch, head of the Waterways Division of the DEP, says the statute expressly delegates authority to harbormasters in each town.
“It’s kind of a classic home-rule situation,” he says. “For me, it seems like a very practical and good regulation because authority should rest locally. Due to the wide variety of different kinds of harbors, it makes sense to let them handle it rather than to have one overarching regulation.”
Lynch says it’s perfectly OK for a community to allocate moorings to businesses so they can sell them and turn a profit. “There are a lot of active waterfronts and businesses on those waterfronts that contribute to the local economy,” he says. “Many of them are reliant on having some guaranteed access to the local waters.”
The inspector general’s office acknowledges the authority of local harbormasters, but says that if they violate the law the state must step in. Citing a Supreme Judicial Court decision from 2000 and long-standing legal principles, the inspector general argues that the waters off the coast belong to the public, and that private businesses cannot be allowed to parcel out those waters for personal profit.
Jack McCarthy, a senior assistant inspector general, casts the debate in class terms. He says private yacht clubs and marinas tend to sell moorings to well-heeled boaters while average Joes get stuck for years on waiting lists. “Not every boater’s got that kind of money to burn. Not everybody has a yacht,” he says.
A report this spring by the inspector general found the town of Newbury, where there are scores of boaters waiting as long as 20 years for a mooring, had granted nearly 100 mooring permits for little or no money to four private businesses on the waterfront. The investigation found that at least one of the boatyards offered a mooring to people who purchased boats from it. It was similar to previous investigations in Harwich and Chatham that also found private businesses with mooring permits offering them to customers without regard to others who had been waiting for years.
Gloucester harbormaster James Caulkett
James Caulkett, the harbormaster in Gloucester, says his community views the law the same as the inspector general. He doesn’t give preferential treatment to waterfront businesses or allow them to resell moorings at a profit. “Everybody has to go through the harbormaster and everybody has to get on a waiting list. No exceptions,” he says.
But moorings go hand in hand with waterfront businesses in many other communities. Many boatyards in those communities view their mooring permits as their own personal property. In Mattapoisett, the Aucoot Cove Boat Yard is up for sale with an asking price of $1.3 million, and the owners say 30 moorings are part of the deal. In Marshfield, the private boat yard Mary’s Boat Livery is on the block for $3.8 million, and the sales pitch includes about 100 moorings. At an average of $1,500 per mooring for the season, the moorings alone are worth $150,000 a year.
Marshfield Harbormaster Michael DiMeo says whoever buys Mary’s should not bank on automatically having the moorings transferred, a fact he says he has conveyed to the owner, who did not return a call for comment.
“It’s illegal,” says DiMeo, who is also a patrolman in the town police department. “The moorings cannot go with it. All those moorings he has out there are not his moorings, they’re the town’s moorings. He’s fully aware of that.”
Many of the private businesses and yacht clubs that control moorings do not maintain waiting lists as required by law or offer the moorings to those on local harbormasters’ waiting lists. Some, such as the Squantum Yacht Club and Wollaston Yacht Club in Quincy, advertise quick and easy—but not cheap—access to moorings.
“Join now while mooring space and membership are not wait-listed!!” Squantum Yacht Club declares on its Craigslist ad offering memberships and mooring for $1,075 for the first year. Memberships alone are $475.
Norfolk County District Attorney Michael Morrissey, a former state senator and an avid boater, says he believes communities should be allowed to give moorings to waterfront businesses. To clarify the law, he introduced a bill in 2008 that would have given harbormasters the power to grant mooring permits to private for-profit or not-for profit entities. The bill died in committee.
Morrissey says the waterfront businesses are part of the economy and rely on mooring income to maintain profitability. He said their moorings should not be taken away without compensating them. “If you want to take them away, I’m all for it,” says Morrissey. “Just pay them for their loss.
Moor for me
It’s not just businesses that treat mooring permits as their own property. Many individuals look to cash in on their permits by either selling them when they get rid of their boat or move, or offering to sublease them. Despite regulations prohibiting such transfers, some individuals say they have the backing of local officials.
Since early April, I have found a number of mooring sites along the Massachusetts coast put up for sale or lease to the highest bidder on Craigslist and eBay. Posing as a potential buyer, I contacted many of the sellers and inquired as to how the moorings could be purchased while the city or town had scores of people waiting for moorings.
“The harbormaster told me when I sell it to come to the office with the new owner and he would collect the city mooring fee, which for me was the $130,” says one boat owner in an email. He was selling his spot and its accompanying mooring hardware in Salem Harbor near Beverly for $1,800. “When the fee is paid, he will transfer your information to the mooring ownership,” he says.
Including the mooring hardware in the sale is how most sellers justify their high prices. The mooring fee that communities charge covers just the space itself; to actually moor a boat at that space the boat owner needs a block anchored to the bottom as well as a chain and float to which the boat can tie up. The cost of mooring gear can vary considerably, but typically runs about $600.
A New Bedford boater named Ken, who did not want his last name used, charged considerably more for his gear. He says he sold his anchor, chain, and float for a mooring in the protected Pope’s Island area for $2,000. He says his buyer separately purchased the mooring spot itself for $150 from the city’s assistant harbormaster. The buyer wasn’t on the waiting list for moorings in that area.
“It was the gear that I sold,” says Ken. “All you own is the gear. I sat down with the guy that bought it along with the assistant harbormaster and did all the paperwork.”
Tommy Vital, the acting New Bedford Harbormaster, conceded that Ken’s story may be true. He says his oversight of moorings has been lax. “I started with the moorings and I kind of just got away from it,” he says, explaining his lack of involvement in the process. “I don’t really like to deal with it. . .We were a little more loose with the regulations.”
Harbor attendant John Anderson, who took over the mooring permitting duties from Vital in 2009, says because of the prior lax oversight and lack of local regulations along with the increasing popularity of New Bedford’s harbor, the city has begun enforcing mooring regulations more strictly. He says the waiting list has been updated, unpaid mooring fees have resulted in revoked permits, and moorings are no longer transferred to people not on waiting lists.
“They used to call it the Wild West down here,” he says. “We’re coming a little more of age.”
Christopher Sanborn, the Danvers harbormaster, requires boaters seeking a mooring to purchase the mooring gear from the previous owner. Sanborn says someone looking to unload a mooring in his community is given the names of the top three people on the waiting list. Sanborn says the owner is allowed to negotiate the best deal he can with one of those people, but he says the owner is technically selling his gear, not the mooring site itself.
Asked why buyers can’t just buy the mooring permit and install their own gear, Sanborn says: “We could throw out hypotheticals all day long. The laws, they’re interpreted differently in different towns. I think we have a good grasp of it here in Danvers.”
Dating back to the early Roman days, there is a legal principle commonly referred to as the “public trust doctrine.” Simply stated, the doctrine says the air, sea, and shore do not belong to any one person but rather the general public and, as such, restrictions cannot be placed by individuals claiming ownership.
The state’s courts and Legislature have consistently upheld the public’s right to access the coastal waters, whether through beach access or navigation. During colonial times, the laws were written to codify the so-called “public trust doctrine,” and in 1866 Massachusetts enacted the nation’s first laws regulating and licensing activities in the tidal areas.
State law prohibits coastal communities from discriminating against inland residents when it comes to accessing the water. But dozens of communities, including Boston, ignore that mandate and either charge a higher mooring fee for nonresidents or charge them higher fees for related permits or services.
“The statute says you can’t discriminate on basis of residence,” says Morrissey, the district attorney and former state senator from Quincy. He should know because, when he was a state senator, he wrote the law covering access to public waters. “People [in other towns] say it’s their shores, their waters, they can limit access to their residents. I tell them, ‘Fine. Just don’t travel on my streets in Quincy when you come up to Boston.’”
In 2006, in an appeal by a Truro resident who was charged a higher price than local residents to moor his boat in Provincetown, the Department of Environmental Protection ruled that a higher nonresident fee was illegal and ordered Provincetown to cease charging it.
Despite the ruling, many coastal communities continue to discriminate against nonresidents. A review of local regulations by CommonWealth found more than two dozen cities and towns are either charging nonresidents higher mooring fees or charging them more for related services and permits.
Boston, for example, charges its 849 residents with mooring permits $1 per foot for the season. The 876 nonresidents who have mooring permits pay $4 per foot.
Danvers makes it much harder for nonresidents to obtain a mooring permit, restricting them to every fourth mooring that becomes available. Nonresidents and residents pay the same amount for a mooring permit, but nonresidents pay twice as much as residents for a waterways fee.
|The Wollaston Yacht Club in Quincy offers quick and easy - but not cheap - access to moorings.|
In Marion, locals and out-of-towners pay the same $60 fee for stickers verifying that a boat is legally tied to a mooring plus $1 per foot for the mooring site, but nonresidents are charged an extra $100 for a “privilege permit.” In neighboring Mattapoisett, the mooring fee is the same for all, but nonresidents pay four times more per foot for a sticker. In addition, the town has racks for dinghies that boaters can use to access their moorings. There are 35 racks for town residents, but only five for nonresidents, which are assigned by lottery, and the fee for nonresidents is twice as much.
“It’s a shame that [communities] are choosing to flaunt this,” says Patrick Donovan, a Quincy attorney who has represented boat owners in appeal actions. “Boat owners at first blush are not the most sympathetic kind of class, but moorings are working class—people who don’t belong to yacht clubs or marinas. For towns to be charging [nonresidents] five times as much, it’s terrible what they’re doing.”
There are roughly 30 appeals of harbormaster decisions to the DEP each year and in nearly every instance the DEP sides with local authorities. “We look at the facts, ask the harbormaster and give him a chance to respond, and then we act,” says Lynch of the DEP. “Our regulations presumptively find in favor of the harbormaster.”
Even when the state rules against local officials, sometimes little, if anything, changes. Jim Fiset of Duxbury has a mooring for his 27-foot Catalina sloop, but it is far offshore, and he has been on a waiting list since 1992 to get one of the coveted deep-water basin spots in the inner Duxbury Harbor. He says he has watched as people who were not on the waiting list received moorings while others delinquent on their payments were given extra time to make good, a violation of town and state regulations.
He documented his concerns with mooring numbers and dates and filed an appeal with the DEP. In 2006, state officials informed the harbormaster that if the town did not offer Fiset the next available mooring, the agency would audit the dozen moorings Fiset cited in his appeal. In essence, they said, we won’t investigate potential illegal actions if you give this man his mooring.
“If the Harbormaster elects to continue the appeal process, the DEP will require written support to explain the rules used to assign each of these permits versus the permit denied James Fiset,” according to a letter in the appeals file.
But no one at the DEP ever told Fiset about the decision. DEP records indicate no appeal was ever filed so officials presumed Fiset got his mooring and the case was closed. The Duxbury harbormaster, who did not return calls for comment, did offer Fiset a mooring suitable for a 25-foot boat last year but Fiset could not take it because his boat is two feet longer, a fact the harbormaster had to know because the boat’s length is on the waiting list next to Fiset’s name.
Fiset says he is still waiting for an inner harbor mooring, sitting at No. 2 on the list. But he also did not want to rock the boat any more out of fear of losing his spot. He says he took a lot of flak when he took on local officials with his initial complaint.
“It is uncomfortable,” he says. “When I went through this, I didn’t have a lot of friends.”
Lynch concedes there is no consistent rule of law when harbormasters and towns make their own decision about what parts of what law applies to them.
“Enforcement is discretionary as well,” says Lynch.
The inspector general’s office says the state needs new mooring regulations and more uniform enforcement of existing rules. At press time, McCarthy and other officials from the inspector general’s office were planning to sit down with Rick Sullivan, the secretary of energy and environmental affairs, to discuss the situation.
“It makes sense for the DEP to let harbormasters enforce the regs, but when they don’t do their jobs, that’s when DEP has to step in,” says McCarthy. “And so far, they haven’t.”
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