Leasing Town Shellfish Beds
Leasing Town Shellfish Beds
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Topic:
SUPREME COURT DECISIONS; MARINE RESOURCES; RETAIL TRADE; COMMERCE COMMITTEE;
Location:
MARINE RESOURCES;

OLR Research Report  


October 18, 2005

2005-R-0756

LEASING TOWN SHELLFISH BEDS

By: Paul Frisman, Associate Analyst

You asked whether state law allows towns to lease local shellfish beds to commercial entities. The Office of Legislative Research is not authorized to provide legal opinions and this should not be considered one.

SUMMARY

It is unclear whether towns may lease shellfish beds to commercial entities, although the state agriculture department believes they may, and several towns do so.

By law, towns may “designate” shellfish beds under their jurisdiction for the cultivation and harvesting of oysters, clams, and mussels. Such designations must be in writing, and made only after a public hearing. The town, or its shellfish commission, may receive money in return. Case law indicates that the designations may last forever.

Arguments against the power to lease include (1) the state’s failure to explicitly grant such authority (towns only have the powers the state delegates to them), and (2) a law authorizing towns to tax their shellfish grounds as they do other real estate, but prohibiting them from collecting any other tax or rental on them.

Arguments in favor of the power to lease are (1) the authority over shellfish beds granted to local shellfish commissions, and (2) the agriculture department’s policy construing the law to allow such leases.

Several towns now lease shellfish beds to commercial entities. The agriculture department is interested in legislation that would specifically allow such leasing.

STATE LAW AFFECTING LOCAL SHELLFISHERIES

State and Local Jurisdiction

State laws extensively regulate state shellfisheries (CGS § 26-192 to 26-237c) and local shellfisheries (CGS § 26-239 to 26-294). CGS §§ 26-192 and 26-193 specify which coastal areas are under the state’s jurisdiction. Towns with jurisdiction over their own shellfish grounds are Branford, East Lyme, Fairfield, Greenwich, Groton, Guilford, Madison, Norwalk, Old Lyme, Old Saybrook, Stamford, Stonington, Stratford, Waterford, Waterford/East Lyme (Niantic River), Westbrook and Westport. According to Connecticut Sea Grant, a collaboration of the University of Connecticut and the National Oceanic and Atmospheric Administration, shellfish commissions in East Lyme, Fairfield, Groton, Guilford, Norwalk, Stonington, Waterford, and Waterford/East Lyme (Niantic River) lease shellfish beds to commercial entities. Connecticut Sea Grant appears to use the word “lease” generically to refer to any transferred use. However, towns may use different terminology. Guilford, for example, refers to “license agreements” because the law specifically allows shellfish commissions to enter into such agreements.

POSSIBLE LIMITATIONS ON TOWNS’ ABILITY TO LEASE SHELLFISH GROUNDS

Background

By law, the agriculture department can lease, for up to 10 years, shellfish grounds that have been conveyed to the state or that are undesignated and in the state’s exclusive jurisdiction. However, by law, towns with shellfish grounds under their jurisdiction may only designate suitable locations for shellfish cultivation and harvesting. The law does not explicitly give towns the power to lease.

Designating Local Shellfish Grounds

Anyone seeking to plant or cultivate shellfish in waters within a town’s jurisdiction must apply to the local shellfish commission or board of selectmen, which may designate a suitable location. The applicant (1) must make a good faith effort to cultivate and harvest shellfish from the designated area, and (2) cannot enter into a contract requiring him to refrain from cultivation or harvesting. The shellfish commission or selectmen must describe, in writing, the location of the designated site and the time of the designation. It is not clear if “time of designation” refers to the date on which the designation was made, the length of the designation, or both. A designation cannot take effect until a public hearing is held on it. Money derived from the designation is paid to the commission or town, whichever is appropriate (CGS § 26-240).

The law requires towns to tax their shellfish grounds in the same manner as other real estate, but bars them from collecting any other tax or rental on them (CGS § 26-250).

ARGUMENTS FOR TOWNS’ AUTHORITY TO LEASE SHELLFISH GROUNDS

Local Shellfish Commissions

A town may create a shellfish commission with authority over shellfish grounds under local jurisdiction. The commission has the power to: (1) designate suitable places within its jurisdiction for the planting or cultivating of shellfish; (2) issue licenses and set fees for the taking of shellfish; and (3) designate the amount of shellfish to be taken, the sizes of the shellfish, and the methods of taking. The commission must prepare and periodically update a shellfish management plan and submit it to the agriculture commissioner and appropriate town officials for review (CGS § 26-257a).

The Connecticut Supreme Court has suggested that towns, like the state, can designate “perpetual [shellfish] franchises,” (Town of Clinton v. Bacon, 16 A. 548 (1888)). A town might argue that included in the ability to designate permanent ownership of a shellfish ground is the power to lease it for a lesser term.

LEASING PRACTICE

A number of towns allow for commercial leases in their shellfish management plans. (Commercial harvesters, unlike recreational harvesters, must obtain state licenses and permits.)

For example, the May 2005 draft of East Lyme’s plan includes as a goal the allocation of “appropriate areas for leasing to commercial shellfishers for transplant, relay beds and aquaculture activities.” Fairfield’s plan includes maintenance of “a shellfish permit and lease program to provide for a sustained and equitable use of the town’s shellfish resources for recreational, commercial and educational/scientific purposes.”

East Lyme town attorney Edward O’Connell says the East Lyme shellfish commission designates grounds appropriate for shellfish cultivation and leases them on terms on which the commission and applicant agree.

Guilford signs license agreements with commercial shellfish growers because town attorney Chuck Andrews has advised the shellfish commission that CGS § 26-257a(b) specifically authorizes local commissions to enter into such agreements.

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