Attorney's letter re: Mooring fees

—VIA FAX AND US MAIL-
November 2, 2000

 Jensen Baird Gardner&Henry

Board of Selectmen
Town of Harpswell
Mountain Road
P.O. Box
39
Harpswell
, ME 04079-0039

Re: Mooring Fees

Dear Board Members:

 I am writing in response to Paul Bird's inquiry whether there is any restriction imposed by law on how mooring fees may be spent. The short answer is no.

 Maine municipalities may adopt mooring ordinances, including fee schedules, pursuant both to their general home rule authority, 30-A M.R.S.A. § 3001, and pursuant to the State statute governing harbor regulations, 38 M.R.S.A. § 7. Neither statute imposes a limitation on its face as to how any mooring fees raised pursuant to an ordinance adopted thereunder may be used. Similarly, your Harbor Ordinance contains no limitation on use of the mooring fee revenues.

 However, unlike the cable TV franchise fee, I feel that if this matter were litigated in State court, the Maine Supreme Court might well, at some point, limit how much "overage" the Town could generate beyond that reasonably necessary for harbor and mooring related matters. There is, in my opinion, no strict rule that excess mooring fee revenue cannot be spent on unrelated matters, such as the Town's general fund; on the contrary, it may be. However, if alitigant were to show that the mooring fees were grossly disproportionate to the Town's needs in the harbor/mooring area, I believe it likely a Maine court would strike down such an excessive fee schedule.

 Again, like the cable TV franchise fee, there is considerable latitude for the Town 'to raise money by mooring fee revenue for long term harbor projects such as dredging, pier replacement and the like. Consequently, the prospect of an illegal, excessive overage from mooring fees that are not dedicated in some general fashion to the waterfront can be avoided with a little planning on the Town's part.

If you have any questions or would like to discuss the matter further, please call me. Thank you.

Sincerely,

William H. Dale

WHD:ah

cc:        Paul Bird, Town Administrator