CHAPTER 574
S.P. 730 - L.D. 1930
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 33 MRSA c. 6-A is enacted to read:
CHAPTER 6-A
WORKING WATERFRONT COVENANTS
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Commercial fisheries businesses. "Commercial fisheries businesses" means any enterprise directly or indirectly concerned with the commercial harvest of wild or aquacultured marine organisms, whose primary source of income is derived from these activities. "Commercial fisheries businesses" includes without limitation:
A. Licensed commercial fishermen, aquaculturists and fishermen's cooperatives;
B. Persons providing direct services to commercial fishermen and aquaculturists or fishermen's cooperatives, as long as provision of these direct services requires the use of working waterfront real estate; and
C. Municipal and private piers and wharves operated to provide waterfront access to commercial fishermen, aquaculturists or fishermen's cooperatives.
2. Qualified holder. "Qualified holder" or "holder" means a governmental entity authorized to hold an interest in real property or a nonprofit organization organized under state law whose purposes include the permanent protection of working waterfront or the enlargement of working waterfront opportunities for commercial fisheries businesses.
3. Third-party right of enforcement. "Third-party right of enforcement" means a right provided in a working waterfront covenant to enforce any of its terms granted by the grantor and holder of the covenant to a governmental body or nonprofit corporation that meets the qualifications of a holder.
4. Working waterfront covenant. "Working waterfront covenant" means an agreement in recordable form between the owner of working waterfront real estate and one or more qualified holders that permits a qualified holder to control, either directly or indirectly, the use, ownership and sales price of working waterfront real estate for the primary purpose of making and preserving the permanent availability and affordability of that real estate for commercial fisheries businesses. A working waterfront covenant may include a 3rd-party right of enforcement.
5. Working waterfront real estate. "Working waterfront real estate" or "real estate" means land, legally filled lands, piers, wharves and other improvements to lands all adjacent to the navigable coastal waters of the State.
§132. Creation; conveyance; acceptance; duration; filing
1. Working waterfront covenant. Except as otherwise provided in this chapter, a working waterfront covenant may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other real estate covenants created by written instrument.
2. Right or duty. A right or duty in favor of or against a qualified holder may not arise under a working waterfront covenant unless it is accepted in writing by the qualified holder.
3. Limitation. Except as provided in this chapter, a working waterfront covenant is unlimited in duration unless a change of circumstances renders the working waterfront covenant no longer in the public interest as determined in an action under section 133, subsection 2.
4. Filing. A working waterfront covenant must be recorded in the County Registry of Deeds, and a copy of the covenant must be filed with the Executive Department, State Planning Office together with a map showing with specificity the location of the affected real estate on the form or forms that the State Planning Office requires.
5. Other interest. An interest in real property in existence at the time a working waterfront covenant is created is not affected by the covenant unless the owner of the interest is a party to the covenant or consents to the covenant.
6. Right to enter land. The instrument creating a working waterfront covenant must provide for the right by the qualified holder to enter the real property to ensure compliance.
1. Owners; qualified holders. An action affecting a working waterfront covenant may be brought or intervened in by:
A. An owner of an interest in the real property burdened by the covenant;
B. A qualified holder of the benefit of the working waterfront covenant;
C. The municipality in which the real property burdened by the covenant is located; or
D. The Attorney General.
2. Power of court. The court has the following powers.
A. The court may enforce a working waterfront covenant by injunction or other proceeding at law or in equity.
B. Acting in accordance with charitable trust principles, the court may modify, terminate or deny equitable enforcement of a working waterfront covenant in an action brought by a party pursuant to subsection 1. In taking such an action, the court must find that, due to a change in circumstance, the covenant no longer serves the public interest in protecting or enhancing the commercial marine fisheries or related businesses of the State. The Attorney General must be made a party to any action under this paragraph and written notice must be provided to the Commissioner of Marine Resources.
C. If the court modifies, terminates or denies equitable enforcement of a working waterfront covenant, the court may order payment by the landowner of money or other damages to the holder or the State, which shall apply the same in a manner consistent with the purposes of this law as approved by the court.
The fact that a working waterfront property might be used for more valuable economic purposes may not be considered in determining whether a working waterfront covenant is no longer in the public interest.
§134. Scope of working waterfront covenant
A working waterfront covenant must include without limitation at least one of the following terms:
1. Resale price of working waterfront real estate. Limitations on the resale price of working waterfront real estate;
2. Amount of equity appreciation. Limitations on the amount of equity appreciation that a landowner may derive from ownership of working waterfront real estate;
3. Improvements to working waterfront real estate. Limitations on the type, extent, use or dollar value of improvements that may be made to working waterfront real estate;
4. Uses to which working waterfront real estate may be devoted. Restrictions on the uses to which working waterfront real estate may be devoted, which must be consistent with the purposes of this chapter;
5. Options to purchase. The grant of rights of first refusal or options to purchase to qualified holders or their assigns, subject to the terms and conditions of the working waterfront covenant;
6. Maintenance and insurance of working waterfront real estate. The obligation to maintain, operate and insure working waterfront real estate;
7. Construction and materials. The right to restrict or specify types of buildings, structures and materials that may be used in improvements on working waterfront real estate; and
8. Acts that may enhance affordability of working waterfront real estate. The right to prohibit, limit or require other acts that may enhance or allow the affordability and availability of working waterfront real estate to commercial marine fisheries businesses in the future.
A working waterfront covenant is valid and enforceable notwithstanding any of the following conditions.
1. Not appurtenant to interest in real property. The working waterfront covenant is not appurtenant and does not run with an interest in real property.
2. Assignable to another holder. The working waterfront covenant can be or has been assigned to another qualified holder.
3. Not recognized at common law. The working waterfront covenant is not of a character traditionally recognized at common law.
4. Imposes negative burden. The working waterfront covenant imposes a negative burden.
5. Imposes affirmative obligations. The working waterfront covenant imposes affirmative obligations upon the owner of an interest in the burdened property or upon the qualified holder.
6. Benefit does not touch or concern real property. The benefit of the working waterfront covenant is held by a qualified holder who has not retained property that would benefit from enforcement of the working waterfront covenant, or the benefit does not touch or concern real property in any other way.
7. No privity of estate or contract. There is no privity of estate or privity of contract.
8. Does not run to successors or assigns. The working waterfront covenant does not run to the successors or assigns of the qualified holder.
9. Unreasonable restraint on alienability. The working waterfront covenant may be considered to be an unreasonable restraint on alienability.
10. In violation of rule against perpetuities. The working waterfront covenant may violate the rule against perpetuities.
1. Interest created after effective date. This chapter applies to any interest that complies with this chapter created after the effective date of this chapter, whether designated as a working waterfront covenant or an equitable servitude, restriction, easement or other interest in real estate.
2. Working waterfront covenant created before effective date. This chapter applies to any working waterfront covenant created before the effective date of this chapter if the working waterfront covenant would have been enforceable had it been created after the effective date of this chapter, unless retroactive application contravenes the Constitution of Maine or the United States Constitution.
3. Chapter does not invalidate interest. This chapter does not invalidate any interest, whether designated as a working waterfront covenant or an equitable servitude, restriction, easement or other interest in real estate, that is otherwise enforceable under other laws of this State.
Effective August 23, 2006.
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