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—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 |