Understanding 91’s Amnesty Program

Chapter 91 of the Massachusetts General Laws, otherwise known as the Public Waterfront Act, is the primary law protecting the public’s rights to use and access the coastal tidelands of the Commonwealth. First adopted in 1866, the law has roots extending back to ancient Rome, where the Justinian code established that the seashore was a common resource held by all citizens. After the Magna Carta, English common law developed a legal theory of the shore below high tide, which the Crown held as a representative of the people. This public trust theory made its way across the pond and became part of the common law of the Massachusetts Bay Colony, at least until the 1640s when the colonial legislature passed an ordinance extending private land ownership to low tide instead of high tide to incentivize the construction of wharves for maritime commerce. The colonial ordinance retained, however, the rights of the public for fishing, fowling, and navigation in the area between low and high tide that came under private ownership.

Today’s Chapter 91 preserves these historic public trust rights by establishing a licensing system to ensure that development along the waterfront does not unreasonably interfere with the public’s rights. The law, now administered by the Department of Environmental Protection’s Waterways Division, provides for the issuance of licenses and permits for structures and uses located in private tidelands (the area between high and low tide) and Commonwealth tidelands (the area below low tide out to sea). The Supreme Judicial Court has likened the public’s rights in private tidelands to an easement for fishing, fowling, and navigation and has required that any use or structure in Commonwealth tidelands have a predominantly public purpose tied to a water-based use.

Despite the law’s long history, many structures located in tidelands remain unlicensed and subject to removal or fines if left that way. Other structures exist in a sort of regulatory limbo where they are officially unlicensed but have received amnesty under Department regulations passed in 1990. Now codified at 310 CMR 9.28, the Chapter 91 amnesty program allowed unauthorized fill or structures that had been in use before January 1, 1984, to avoid having to comply with certain licensing requirements if they applied for amnesty before October 4, 1996, and continued the fill or use without modification. Although the regulations contemplated an abbreviated process for ultimately receiving a license, many amnesty applicants (commonly docks, piers, seawalls, and bulkheads accessory to a single-family residence) never pursued the license beyond the initial application.

Some communities are renewing efforts to secure the public benefits protected under Chapter 91. For example, the Town of Provincetown has been documenting the license status of harbor front properties to spur Department enforcement, secure public access to the shore, or otherwise ensure that property owners make required payments to the local harbor fund. Unlicensed or unfinished amnesty structures are ripe targets for these enforcement initiatives. The attorneys at Verrill can assist property owners in navigating these complex licensing issues.