HomeMy WebLinkAbout1990-08-13 90-297 ORDERkrtl
Date 9-'13-90'v" Item No. 90-297
Item/Subject: Authorising Execution of Lease Agreement with Bureau
of Public Lands -- Bangor. Waterfront
Responsible Department Legal -
Commentary:
The State Bureau of Public Lands has proprietary jurisdiction
over submerged lands in the Stabs of Maine. Under 12 M.R.S.A.
g 558-A, the Bureau may lease property coming within its
jurisdiction to third parties for a period not to exceed 30
years. The lease should eliminate any question under State law
as to the City's authority to operate the docking systems
currently located on the Bangor Waterfront.
ceyertr „[Heed
Manageri Commands;/ L � f� f Na _ ,/
W o.lYa U sNtpy�
C'gat ..ger
AnociatM Information: Order, letter,
yagreement, ACG
'Basses Approval: 3y3.62 p..d.,-,
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Legal Approval: Ns,,g
v P y.� W)f* d 2t .coy selinsor
Ingo�uced For
Qpassage
❑ First Reading Pape _of_
❑ Referral
90-29]
Asugnedto Cuamdor Blanchette, August 13, 1990
ab CITY OF BANGOR
(TITLE.) (Drbtrg Authorizing, execution of Lease Agreement with
............ ._. _...._.. ......... _... ........ ...
By the City Conseil of the (Th of Barpm:
ORDERED,
THAT the city Manager is hereby authorized and directed,
on behalf of the City of Bangor, to execute.:a "Submerged Land
Lease" providing for the lease from the State of Maine certain
lands described therein for 30 -year period commencing on
April 17, 1990. A true copy of the lease is on file in the
office of the City Clerk.
IN CITY COUNCIL
August 13, P90
In Jd
ITY gdI
90-397
ORDER
Title,
Authorizing Execugtlon of Lease Agreement
with Bureau ofPublic Lands - Bangor
waterfront
....... ...........................
'Qwja• y
- Councilman
90-29]
toll RCMIXemea Ic - C FAxin Mn.evf
DEPARTMENT OF CONSERVATION
Telepbon, Can 289.3061
„ - April 17, 1990
Sohn Frawley
City Engineer's Office
City Hall
73 Harlow St.
Bangor, Maine 04401
Dear Mr. Frawley:.
As I have explained over the phone, the Bureau of Public
Lands in the Department of Conservation th has proprietary
-
jurisdiction over submerged lands of the State of Maine.
Submerged lands are defined a "the area between the mean low
water mark (or a of 100 reds seaward of the mean high
water mark) and threemile territorial boundary, including
the beds of tidall rivers
to the farthest natural reaches of the
tides."
The City has applied to the Army Corps of Engineers for a
permit to use a_portion of these lands for two seasonal float
systema. Pursuant to 12 M.R.S.A., Chapter 202 Subsection 558-A,
the Bureau of Public Lands may convey title to the City, for a
period not greater than 30 years, for public submerged land for
the purpose described in your Army Corps application File Va. 51-
89-1203.
Because these two float systems are being operated
commercially, the Bureau chargee an annual rental fee. The fee
is based on 28 (for water -dependent uses) of the square foot
value of the adjacent upland. The resulting value is then
multiplied times the amount of submerged land being occupied.
The upland square foot values shown were provided by you from
the City Assessor's Office. The 144' float system occupies 2,646
+/- square feet of submerged land at a square foot cost of $.0424
($2.12/s.f. x 28). The 368' float system occupies 6,118 +/-
square feet at a square foot cost of $.046 ($2.30/s.f. x 28).
The rental forthetwo areae is $.0424x 2,646 s.f. plus $.046 x
6,118 s.f. for a total of $393.62 per year.
The Bureau's submerged land lease year runs from October 1st
to September 30th and the term of the lease is 30 years. The
ental fee is payable on or before each October 1st throughout
the term hereof with rental for the current year being due and
e
payable upon execution of the lease. Accordingly, rental due and
payable on this lease is $180.40 ($32.80/month z 54''cmonths) plus
$100.00 processing fee making a total of $280.40. Please make
check payable to: Treasurer, State of Maine'.
Thoma[ A. Momw o cloacae, Sam,, of Nbli, Iwds
Smn!Hoam Station 22, MSUSla. Maine M333 — e/fiee, Located at AMH I. Haft, lewiti s
mwo copies of the. standard submerged land lease are enclosed
for your consideration. Please sign the enclosed documents where
indicated and return all copies to the Bureau of Public Lands
together with your remittance of $280.40. Once executed, I will
n
return o copy of the lease for your records. Acopy of the
Bureau's statutes relating to submerged land is also enclosed for
your information.
Please feel free to contact me if you have any questions at
289 -3061. -
Sincerely,
eap Zlt&ffo
CAROL OIB8LLO
Acting Submerged Lands Coordinator
90-29]
9flP1t� SPlO LG158
M0.10-19
This is a lease conveying to You certain, limited rights in the submerged
Janos of the State of Maine. It is not yon emdxonmental permit Louse these
lands. Please regi the lease carefully and abide by its terns.
MM L8A5E is entame into by the Bateau of Public r- 'a, an ageny of the
State of w'..o Department of C ervatfon, by its Dixstur acting pursuant to the
prwisinns of 12 M.R.S.A. Chapter 202, subse:tion 558-A hereinafter the "Lessor" and
City of Bangor of c/o Cit 's Office, Ci Hall, ]3 Harlow Street,
MuretidZlFereinafter ^Lessee". Lessee ( I v () p ( )
ccrpozatron ( ) other (Check rne). I£ I mae is °other" please describe below and
if Lessee is corporation, it is incorporate] unler the laws of Maine. Lessor hereby
bass to Lessee on the terns aml conditions hereinafter set forth, the following
describal (inteetidal and/Or submerged) l situated in Penobscot Canty, Maine, to
wit.
A certain parcel Of public sutrergei lane] IOCated in Bangor, Maine cwprising a
ictal ars of 8764 +/- square feet, abutting adjacent uplancl now, o xal by City of
Bangor as further described in Attachment(s) A, 8, C, D, E, F, G and H which are
hereby incorporated into this lease or so much of the above described preaises the
use of which is actually permitted by the terms of all permits issues by these
regulatory agencies of the Stats of N 'nee lawfully assuvury jurisdiction over the
above describe] prmdses or any alteration thereof within the calendar year next
following thecreationOf this leasehold. The intertidal anui/or submerged land
leased'hereunder is hereinafter referral to as the "leased premiss.•'
1. '38tH. This lease shall convenes on the 17th day of April, 1990 and continue to
the 30th day Of Septentw , 2019.
2. USE. lessee, his gusts, servants, agents, lessers or assignees are hereby
authorized to use the lesssi premises for the purpose of are 368' x 6' seasonal
float system ancl one 144' x 6' float syst which are not open to the general public
at no charge as descrMhai in U.S. Army Corps of Engineers File W. *51-89-1203 and
for n, other purposes.
3. 019®1 L . Lessor reserves the right w make such other uses of the leased
premises, including by way of example and without limitation, the right to permit
popes to be laid theroaxier or telephone wires to be maintainecl thereover, as shall
not unneasonalbly interfere with Lessee's use and enjoyment of the premises.
4. is irccrporat i herein by reference any and all
permits by any, regulatory agency of the Uwted States or the State of Maine or any
political mu vision thereof, having jurisdiction over the activities on the
intertidal and/or submerged lands contrsplatad by t Lease, which permits and
ccndit cns thereof, shall be a part of this Lease for all purposes including,
w thont limitation, for purposes of defining the extent and prcpese of any
alteration or nos of in, on or Over the leased premusrs. Unless all required
permits authorizing the uses contemplates hereby are issued prior to the epiratian
of the calendar year nextfollowing the creation of this leasehold, than this tease
shall be void. In the event any regulatory agency of the Wit 3 States or the State
of main or any political subdivision thereof denies or disapproves aM portion of
any application by the tessee for the use of the shoes described premises or any
thereof, this Ieass shall W void to the denial or disapproval use, as of
the ss date of such denial or disapproval. Rental payments made by lessee for such
denial or disapproved use say, upon proper request, he refundal or equitably
adjustei, subject to a service charge.
5. ASSI(RHdl'. No rights leases herein by Iessor nay tie sublet by lassos, without
the prior written consent of lessor. Notwithstanding any, such asafgnment or
su)hlease, Lessee shell main liable for compliance with the terms and coditiona o£
this lease.
No portion of an existing or Impose-] lease say be transferred fran a parson
subleasing that potion to provide berthing space for ary brat or vessel except for
a transfer to heirs upon death of the sublessee holder or a transfer to the original
leaseholder subject to turns agreed to by the lessor and sublessee at the time of
the sublease. This subparagraph shall not apply to any subleasing arrangements
entered into prior to Jure 15, 1989.
6. 1831ZQL. Rental shall be payable hereader as follows:
$393.62 per year payable on or before each October let throughout the term
hereof.
Payment is to be wade to the offices of the bureau of Public lands fn Augusta,
Baine. Any choo*e are to bs wade payable to the order of the Treasurer, State of
stains. Following the fifth amnivexsary date of the date hereof, lessor my adjust
the rental heronder from time to time, but not nore freguently than once in each
five year period &ring the temp hereof, except that an a Hitioal rental adjustuent
may be veole in each five year period when it is necessary t conform to officially
adopted policies of the Bureau, by giving Iessae at least 120 days notice of
lessor's intention to adjust the rental as of a Certain date (the "adjustment
date"). the rental shall be equal to the then fair market rental value of the
leas i preaises (exclusive of iepcovarents by Lessee herwndder) as nutually agreed
Upon by Lessor ani Sasses or, failing such agresent prior to the adjustient bate,
as set by binding azbitrdtion. Both parties agree to cooperate with each other ad
to take all reasonable steps to facilitate the epalitious resolution of any
arbitration. tessee shall pay upon darend all expenses of arbitration, as
e ntioeal rental hereunder, but lessee shall be entitled to a credit forone-half
a such expenses against the rental first doe follwing the adjustment date with
respect to which there was arbitration. idjusted rental shall be paid, retroactive
to the adjustment date, within 10 days following the establishment of the adjusted
rental by arbitration.
7. Fl Y'La%PS. Iassae shall pay wben due all tapes, charges, assesarents and
other impositions lawfully levied upon the leased praxises and the N ildings,
inprwemnt and fixtures on the leased prazdses by any goverrrental entity.
B. ]tII@fass. Lasseeagrees to defend or cause to be defended and to indmmify ael
hold the Lessor hanA ass from and against any and all neusrer of claims, suits,
,expenses, daneges or causes of action for damages arising cut of, or allegedly
arising out of, in whole or in part, the use or occupancy of the premises by Leasee,
its agents, contractors, awplgrees and invitees.
9. Leasee shall, at its expame, keep the leasel premises free of
garbage, refuse arch similar material adshall maintain all inpmvarenta on the
leazel promises in good c intim ani repair, reasonable war and tear only
excepted.
10. M,nuisance shall be pezmitted to exist on the leased
pzemises. No minerals (isoludiN sand and gravel quantity) shall be
raroved from the leasai prmuses and no ro=c, earth, ballast, garbage or other
material deposit i upon the leased promises without the prier written consent of
lessor.
11. �. in the event the . z..n✓arents erected on the leased Premises are
substantially destroyed by fire or other casualty and lessee does rot, within two
years £ollwv such casualty, reluilc[ the for the was ani at a size
not exceeding those specified in this Lease, the lessor nay cancel this Lease upon
notice to lessee.
12. r . The following events shall he dee, 3 to be events of default
hereuMer: (A) lessee shall fail to pay when &a any rat payable hereunder, (S)
Lessee shell fail to camply with any other provision of this lease ani shall not
cure such failure of compliance within 30 days after notice thereof to lessee, or if
such failure of compliance cannot be ouzel within 30 days, if lessee shall not
prc ptly and diligently unch rt e to cure such failure of cap lia:ce ani cause the
same to be canal as soon as the nature of the failure of c reliance permits, (C(
Leasee shall make a transfer in £rani of craiitors or he adjudged bankrupt or
insolvent in any proceedings, (D) a receiver or trustee shall he appointed for all
or s r,araatially all assets of Ifssee, (E) lessee shall atandon any snbstential
portion of the leases praises. Upon the occuaence of any such event of default,
Lessor may, in addition to (ad not instead of) any other renaz ies available at law
or in equity, cancel this lease without notice or deva i to Lessee and enter and
take possession of the leases pzemises. lasses shall be liable to lessor for loss
a l expsses incurred by reason of such termination.
13. HtfIliy. The lessor, its agents and representatives shall have access to the
pzsmises at all reasonable titres for the purpose of inspecting the sans and seoxing
crnpliaroe with the t cna arch conditions of this mase. _
14. H1P1CJ3. Any notice zequirei or permitted under this lease shall he ceased to
have been given who: actually deliverei or when deposited in the United States tail,
first class postage prepaid, addressed as follows: To the lessor: Bussu of Public
L ds, State House, Station 22, Augusta, Main 04333, ATlti: Submerged lards
Division. To the Iesses: at the address given by the lessen below or at sOCh othas
address as lassee nay have theretofore specifial by written notice actually swcwl l
and placei of record with lessor.
15. ➢UI&4flTCt4. leasee may make no alteration to the premises except that
Specifically authorizel by the regulatory permits which are issue] directly
£ollawing and which £one a part of this lease, without lessor's prior written
consent.
16. ]IQKVJ®ffii15. Upon the expiration or cancellation of the term hereof,
regardless of the reason for sore, lessor shall became the owner of all improvements
and structures erected upon the leased premises or lessor may, at its option,
a; i,a losses to �e all surh NQLP lhs and structures at Lesosa'5 erqaense
and to restore the pramises to the cadi.tian in which they existed at the
mmmcarent
Of the taro hereof.
17. 1Pus Lsase shall be binW g upon e:d shall inure to the benefit
of Lessor and lessee and their respective successors, assigns and legal
representatives. Failure of'ather party to chaplain of any act or mission on the
part of the other party, no matter how long the sane may cant nne, shall not be
deerei to be a waiver by said party of any of its rights hereunder. No waiver by
either party at any tine, express or implied, of any breach of any provision of this
lease, shall be deanoi a waiver of or a consent to any subsequent breach of the same
or airy other provision. Les6ae say not, without Lessor's prior written consent,
file this lease of record, or cause or perffit the same to be filed of record.
Lessor mekea no warranty of lessee's leasdnld estate and in the event of any lawful
ejectment: of Lessee, laasor shall refund to Lessee any rentals theretvfom paid to
lesser heramder. lessee Stull comply with all applicable laws, regulations and
ordinances of govermmtl entities having jurisdiction over the leasad premises.
TT S iease comrtains the entire agreement of the parties and may not be madifi
exrept by a writing subvcribst by both parties.
The lasses expressly agrees to all terms and conditions herein, and hinds
himself for the payment of the rental hereinbefore specified.
'Datai at Augusta, to ire this_. day of , 19
Pocepted and agreed to on
Lessor: State of Maine
Ds:yu:tment of Conservation
� DF PUBLIC LAFS6
(P By:
(Daiector)
Lessee's Address:
CONTINUATION TO RANCOR
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\I � 90-297.
DRpanreOMR! OF MNSBRVATION
BORBAU OF YUBLI0.LAN0S
SORKERGRD LANDS ACF ..
Title 12 M.R.S.A., Subsection 558-A. Submerged and intertidal lands
owned by the State. -
-1.- Definitions. As used, in this section, unless the context
otherw se rnrcates, the following words have the following meanings.
A. "Occupying' ref ere to the total- area of the structure x
alteration itself to the 'extent that the area within its
boundaries is directly upon or over the state-owned lands.
B. "permanent" means Occupying submerged and intertidal lands owned
by the State during I or more months during any one calendar year.
C. "Commercial fishing activity means- any activity involving the
landing or processing of shellfish, fln£ish or other natural
products of the sea or other activities directly related to
landing or processing shellfish, finfish or natural sea products,
including fueling, loading or selling these products.
D. "Submerged land" means: _
(J)All
land from
the Mass
low-water
mark
cherf
feet seaward ofthe mean mark whichever closer
ser
to the mean high-water mark, out to the seaward boundary of
coastal waters as defined in section 6001;
(2)lan below the
eal rmean achatf the tidea
lwater mark of
dal rivers upstream
tothe
(3)All land below the natural mean low-water mark of ponds which
in their natural state are 30 or more acres in size; and
(4)The river bad of international boundary rivers, defined as all
land lying between defined banks, created by the action of
surface water and characterized by a lack of terrestrial
vegetation and devoid of topsoil, and the international
boundary line.
2. Lases. The director may lease, for a terns of years net exceeding
30 antl wrth conditions the director deems reasonable, the right to
dredge, fill or erect permanent causeways, bridges, marinas, wharves,
docks, pilings, moorings or other permanent structures on submerged
i and intertidal land owned by the State. The director may refuse to
i lease submerged lands if the director determines that the lease will
unreasonably interfere with customary or traditional public access
was to, or public trust rights in, on or Over the intertidal or
submerged lands and the waters above those lands.
-A. For fill, permanent causes bridges, marissae, wharves,
docks, pilings, moorings, or othe mmanent structures and
for nonpermanent structures that occ totai__�f 500
square feet or more of submerged. land or 'occupy a total of
2,000 square feet or more of submerged land if used
exclusively fob commercial fishing activities
(1)The director shall charge the lessee a base rent that
practically approximates the fair market rental value of
the land. ..Fair market rental value .shall be the
`municipally assessed value per square foot for the
adjacent .upland multiplied by a reduction factor based
n the use of .the leased submerged land. - The reduction
factors for.use categories shall be as fullness
(a)A reduction factor of 0%. or no rental fee, for
nonprofit organisations or publicly. owned facilities
thatofferfree public use or public use with nominal
user fees. Public use include, but are not limited
to, municipal utilities and facilities that provide
public access to the water, town wharves, walkways,
fishing piers, boat launches, parka, nature reserves,
swimming or skating areas and other projects designed
to allow or enhance public recreation, fishing,
fowlingandnavigation andforwhich user fees are
used exclusively for the maintenance of the facility{
(b)A reduction of factor of l% for commercial fishing.
uses of renewable aquatic resources. Commercial uses
or renewable aquatic resources include, but are not
- limited to, facilities which are directly involved i
commercial fishing activities. Such facilities shall
include, but not be limited to, fish piers, lobster
impoundments, fish processing facilities, berthing for
fishing boats and floats or piers for the storage of
gear. To qualify as a commercial use of renewable
aquatic resources, a marina must have at least 50% of
its slips in use by commercial fishing boats year
roundp
(c)A reduction factor of 28 for water dependent
coerce, industry and private uses. Nater dependent
commerce, industry and privateuses other than
conmiercialof renewable aquatic resources
include, but ware not limited to, all facilities that
are functionally dependent upon a waterfront location,
cannot reasonably be located or operated onan upland
site or are essential to the operation of the marine
industry. Such facilities shall include, but not be
limited to, privately owned piers and docks, cargo
porta, private beat ramps, shipping and ferry
terminale, tug and barge facilities, businesses that
are engaged in watercraft constructiont maintenance or
repair, aquariums and marinas that have less than 50%
of their slips in use by commercial fishing boats year
round; and
(d) A reduction factor of 108 for upland uses and fill.
Upland uses include, but are not limited to, all uses
that can operaterm a location other than on the
waterfront or. which are not essential to the.operation
of the marine industry. Such facilities shall
include, but not be limited to, residences, offices,
restaurants and parking lots. Fill shall include the
placement of solid material other. than pilings o
other open support structures upon submerged lands.
When the director determines that the - municipally
assessed value of the adjacent upland is not an accurate
indicator of the value of submerged land, the director
may require the applicant to provide an appraisal of the
submerged land. The appraisal moat be approved by the
director;
(2)(Text repealed.)
(3)After October 1, 1990, the director may revalue all
fisting rents to full fair market value. Rents may be
adjusted annually until the full fair market rental
value is reached. Thereafter, the director may revalue
rents. every 5 years;
(4)The director may also lease a buffer zone of not more
than 30 feet in width around a permanent structure
located on submerged or intertidal land, provided the
lease is necessary to preserve the integrity and safety
of the structure and the Commissioner of Marine
Resourcesconsents to that lease;
(5)Any existing or proposed lease may be subleased for the
period of the original lease for the purpose of
providing berthing space for any beat or vessel.
(SA)No portion of an existing or proposed lease may be
transferred from a person subleasing that portion to
provide berthing space for any boat or vessel except for
a transfer to heirs upon death of the subleases holder
or a transfer to the original leaseholder subject to
terns agreed to by the lessor and subleases at the time
of the sublease. This subparagraph shall not apply to
any subleasing arrangements entered into prior to June
15, 1989; and
(8)The director may grant the proposed lease if the
director finds that, in addition to any other findings
that the director may require, the proposed Lease:
(a) Will not unreasonably interfere with navigation;
4
(b)Will not unreasonably interfere with fishing or other
existing marine uses of the area;
(c)Will not unreasonably diminish the availability of
services and facilities necessary for commercial
marine activities,. and
(d)Will not unreasonably interfere with ingress and
egress of riparian owners...
The bureau shall promulgate tinea pertaining to this
subparagraph by Watch 15, 1990.
B. For dredging, impounded areas and underwater cables and
pipelines, the director shall develop such terms and
conditions as the director deems reasonable. -
C. The director shall charge an administrative fee of $100.00
for each Lease in addition to any rent..
D. The director may establish a reasonable minimum rent to
which any lease is subject, but it shall not exceed $75.00
per year. 1
(3) - Easements. The director may grant, upon such. terms and
conditio—s the director deems reasonable, assignable easements for
a term of years not exceeding 30 for the8eof submerged and
intertidal lands for the purposes permitted insubeection 2. The
lessee shall pay an administrative fee of $50.00 for each easement at
the time of processing and a registration fee of $25.00 due every 5
years. The director may refuse to grant an easement for the use of
submerged lands if the director determines the easement will
unreasonably interfere with customary or traditional public access
ways to, or public trust -rights in, on or over the intertidal or
submerged lands and the waters above those lands. The director may
grant an easement for submerged lands if a structure:
A. Is for the exclusive benefit of the abutting upland owner
for charitable purposes- as defined in the United States
Internal Revenue Code, Section 501, (c) (3);
S. Occupies a total of not more than 500 square feet of
submerged land for any Lawful purpose and is permanent; or
C. Occupies a. total of not more than 2,000 square feet of
submerged land for the exclusive purpose of commercial
fishing activities and is permanent.
(4)Mj�ustment of terms. The director may adjust from time to time,
conssis ant witwitF t a provision of this section, conditions applicable
to any leasehold or easement entered into under this section in any
parcel of state-owned submerged or intertidal land. Rent shall not be
charged for leases entered into prior to July If 1984, if the actual
use.of the leased land is eligible for an easement under subsection 3.
(5) Review of uses. The director shall review from time to time, in
the cases oi. easements, the purposes for which the land conveyed has
actually been .used, and in the event any such purpose is found to be
inconsistent with the criteria set forth in subsection 3 for
eligibility for an easement, the easement shall terminate and the
director may enter inte•a leasehold agreement with the holder of the
easement in accordance with subsection 2.
(6) Constructive Basements. The owners of allstructures actually
upon suergm g u�tidal lends on October 1, 1975, shall be
deemad to have been granted a constructive
on tructive easement for a'term of. 30
years on the submerged land directly: underlying the structure.
Beginning. on January 1, 1991, the bureau shall undertake a
registration programfor all structures granted constructive
'easements. Constructive easements shall be subject to administrative
and registration fees for easements pursuant to subsection 3. The
director shall develop procedures, rules and registration forma
necessary to accomplish the purposes of this subsection. The bureau
shall complete the registration of constructive easements on or before
December 31, 1995.
(g)COnsultdtian. The director shall consult with the Commissioner of
Conservation, Commissioner of Marine Resources, Commissioner of Inland
Fisheries and Wildlife and such other agencies or organizations as he
deems appropriate in developing and implementing terms, conditions and
consideration for conveyances under this section. Notwithstanding
section 551, the director may determine to make proprietary
conveyances under this section solely on the basis of the issuance of
environmental or regulatory permits by other appropriate state
agencies.
(8)Rules. The director shall promulgate whatever rulesare necessary
and appropriate to administer this section.
(9)Public commnsatien. When the director determines that the public
should compensated for the lose or diminution of traditional and
customary public uses resulting from the activities proposed by the
lessee, the director may negotiate with the lessee to provide,, as a
condition of the lease, walkways, boat launching ramps, parking space
or other facilities. The determination of loss or diminution of
traditional and customary public uses and appropriate public
compensation shall be made in consultation with local municipal
officials.
(10) Reportre required. The Director of the Bureau of Public Lands
shall study the issue or equitable lease fees for submerged lands for
great ponds that cross several municipal boundaries or cross into the
jurisdiction of the Maine Land Use Regulation Commission. The
director shall report back to the Joint Standing Committee on energy
and Natural Resources by February 10, 1990, with the director's
findings and any recommendations for legislative changes.
Subsection 559. Filled-in submerged lands
1. Legislative intent; purpose. The Legislature finds that the
ownership of certain areas along Maine's coast and great ponds is
uncertain because portions of the, submerged and intertidal lands have
been filled in so as sew not to be subject to tidal action or below
water. .These lands were filled prior tothe enactment of Public Law
1975,, chapter 287, the Submerged Lands Act, as recodified by Public
Law 1979, chapter 565. It .appears that .prior to the enactment of the
Submerged Lands 'Act, and to some degree afterwards, these filled-in
portions of the submerged or intertidal lands have been sold, leased,
taxed and otherwise treated in good faith by municipalities- and
private citizens as if they were owned -in fee by private parties.. Due
to the lack of readily available documentation of the natural low and
high watermarks in most areas along the coast- and great panda, the
process of setting the boundaries between submerged or intertidal
lands and the upland would consume enormous time and expense for the
State and the private parties.
The Legislature recognizes that the submerged leads are owned by
the State for the benefit of the public. These lands are .impressed
with a public trust. This ownership and public trust is derived from
the Massachusetts Colonial Ordinance of 1691-1697. As a result of
this, submerged land is not, like ordinary private land, held in fee
simple absolute but is impressed with the public treat which gives the
public's representatives an interest and responsibilityin its -
development.
.The Legislature finds that those portions of the submerged and
intertidal. lands which have been filled in prior to October 1, 1975,
the date the Submerged Lands Act was effective, are substantially
valueless for trust uses and such lands can be disposed of without
impairment of the public trust in what remains. The public benefit
Will be promoted by clarifying the status of real estate titles to
such filled lands, thereby permitting full use and development.
2. Definitions. As used in this section, unless the context
otherwise an r`a nates, the following terms have the following meanings:
A. "Pilled land" means portions of the submerged and intertidal
lands which have been rendered by the sets of man to be .no
longer subject to tidal action or below the natural low
watermark on October 1, 1975.
5. "Intertidal land,. means all land affected by .the tides
between natural high watermark and either 100 rods seaward
therefrom or the natural low watermark, whichever is closer
to the natural high watermark.
C. "Person" means individuals, partnerships, corporations and
other private legal entities, but does not include the State
and its political or governmental subdivisions or the
Federal government.
D. "Submerged land" means all land affected by the tides
seaward of the natural low watermark or 100 rods from the
natural high watermark, whichever is closer. to natural high
watermark and all land below natural low watermark under
grant ponds.
3. Declaration of clear title. Titles to properties and lands
that once were o may ve u rged or intertidal lands subj act
to theState's owherehip in public trust that were filled on October
1, 1975, are declared and released to the camera of any such filled
lands by the State free of any claimed',ownership in public trust to
the extent the areae of these properties-and.lands were not submerged
or intertidal lends on that date.
4. Confirmation. Any person claimingan interest in such -land
may, seek bio Frew the Bureau of Public Landsthat particular
land is filled land and receive a declaration that may be filed in the
appropriate registry of deeds. Such confirmation shall not be
construed to create any rights of ownership in any person pease, but
shall be declaratory of the status of the land as to whether it had
been filled on October 1, 1975. The application for confirmation
shall be filed on a form prescribed by the Bureauof Public Lands
which shall contain the following information:
A.. Same and address of applicant;
B. An accurate legal description of the filled land; proof that
the land was filled on October 1, 1975 and sufficient
details, such as a survey by a registered land surveyor, to
locate the filled land on a map of general acceptability;
C. The area of acreage of the filled land;
D. The date acquired;
E. evidence thatwritten notice of the application for
confirmation has been sent to any other owners of record;
and
F. Other information necessary for the purposes of this
section.
A filing fee of $50 shall accompany each application to cover
administrative costa, which moneys shall be deposited in and disbursed
in accordance with section 557 to accomplish the purposes of this
section.
5. Filing. The following provisions apply to filing.
A. The application may be filed with the Bureau of Public Lands
at any time.
B. If the applicant demonstrates that the land is filled land
as defined in subsection 2, paragraph A, the Director of the
Bureau of Public Lands- shall issue a declaration to the
effect. The director shall respond to. the application
within 30 days of the date the application is received by
the director. -
6. Texadnation of leases. My leases entered into by the
Director o t e Burrea�6i3e Lands pursuant to section 558 for
filled land, as defined in subsection 2, paragraph A, are terainated'.
Lessees shall not be reimbursed for rental paid under such leases.
7. Operation of this section• retroactive date. This section
shall not eras e a cause o act on on behalf of any person against .the
State for damages or otherwise arising out of state ownership of lands
prior to the effective .date of this section. A declaration of
confirmation by the Bureau of public lands pursuant to subsection 4
shall not constitute a decision by the State as to which claimant, if
any, say have title, and the State, its officers, agentsmd employees
shall' not be liable to any person by reason of having de or having
refused to make such a declaration. Failure to apply for or receive
onfirmation or a declaration under subsection 4 shall not affect any
rights granted or released by this section. This section shall not be
construed to affect the rales of law otherwise in force relating to
accretion or reliction of filled or other Lands along the great ponds
orthe coast, nor to either- convey or release rights or interest
acquired by the State in filled lands by gift, purchase or the power
of eminent domain or toaffect any obligations, rights or liabilities
created by the operation of sections 4701 to 4709 as laterreplacedby
Title 38, sections 471 to 478 or by permits issued under those
actions. This section shall be retroactive to October 1, 1975.
REVISED
AUGUST 1989