ARE YOUR MARINA PERMITS SHIP SHAPE?

Blog, Real Estate

Posted in on March 30, 2015

The novelist Hammond Ines once wrote “(h)e who lets the sea lull him into a sense of security is in grave danger.” So too, owners of marinas who have lulled themselves into a sense of security that their permitting is shipshape, may find themselves in grave financial danger.

Having worked with many owners of marinas regarding permitting and compliance issues, it is commonplace to discover that their facilities either do not have all required permits or that the structures at their facilities are not in compliance with the permits that were obtained. Generally, compliance issues are discovered by the owners of marinas under three circumstances: (i) restructuring existing financing; (ii) applying for permits to expand or alter existing financing; or (iii) the sale of a marina. Under such circumstances, obtaining the required permits can be both time sensitive and costly.

The Waterways License requirement dates back to the Colonial Ordinances of 1641-1647, the enactment of M.G.L. c. 91 in 1869, and is currently under the jurisdiction of the Massachusetts Department of Environmental Protection (“DEP”). Since this license involves the use of Commonwealth tidelands, there are generally no grandfathering provisions.   A Waterways License is issued after it has been determined that the structure or activity does not interfere with navigation and conforms to certain engineering standards. Waterways Licenses, to include plans, are required to be recorded with the registry of deeds in the county in which the marina is located within a certain period of time from the date of issuance. The work is to be completed within five years and a certificate of compliance obtained. Failure to comply with the recording requirement or significantly deviating from the work authorized voids the License.

Many marina owners are not aware that federal permits may also be required. The Programmatic Permit requirement falls under the jurisdiction of the Army Corps of Engineers. The regulation of federal waterways dates back to 1899 and are issued either through the program for an individual state district or a regional program.  Different standards apply to “navigable” and “non-navigable” waters.

To avoid the possibility missing a deadline due to time constraint or incurring significant cost to correct an issue with a license, owners of marinas should undertake an inspection and survey of their existing permits.

Attorney Gene J. Guimond is a partner at Baker, Braverman & Barbadoro, P.C. concentrating in land use, environmental, and commercial and residential real estate law.