An Act Regarding Working Waterfront Covenants under the Land For Maine's Future Board
Maine Legislature, Session 122, LD 1930
Committee: judiciary
Sponsors: DAMON, ANDREWS, SULLIVAN, ASH, BOWEN, EBERLE, PINGREE, RECTOR, SCHATZ

Legislative Document 
No. 1930 
S.P.730 
In Senate, January 4, 2006 
An Act Regarding Working Waterfront Covenants under the Land 
For Maine's Future Board 
Submitted by the State Planning Office pursuant to Joint Rule 204. 
Reference to the Committee on judiciary suggested and ordered printed. 
Presented by Senator DAMON of Hancock. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Senators: ANDREWS of York, SULLIVAN of York, Representatives: ASH 
of Belfast, BOWEN of Rockport, DUGA Y of Cherryfield, EBERLE of South Portland, 
PINGREE of North Haven, RECTOR of Thomaston, SCHATZ of Blue Hill. 
Printed on recycled paper 
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 WATERFRQtT COVENANTS 
S131. 
Definitio~ 
As 
used 
in this 
chapter, 
unless 
the 
context otherwise 
indicates, the following terms have the following meanings. 
1. 
Coumae.Lcial 
fisber.ieJLb~1i-Ii.e...$.. 
"CoJ1l1llercial fisherie..s. 
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 
limi tation: 
A. 
Licensed 
commercial 
fishermen, 
aguaculturists 
and 
fishermen's cooperatives; 
B. 
Individuals and businesses providing direct services to 
commercial 
fishermen 
and 
aguaculturists 
or 
fishermen's 
cooperatives; and 
C. 
Municipal and private piers and wharves operated to 
provide 
waterfront 
access 
to 
cOmmercial 
fishermen, 
aguaculturists or fishermen's cooperatives, 
2. 
Ou..a,;Ufied 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. A gualified holder may also 
include a 
3rd party meeting the same qualifications met by a 
nonprofit organization that holds a right of enforcement of the 
working waterfront covenant, either in addition to or in lieu of 
the other gualified holders. 
3. 
Working 
waterfront 
covenant. 
"Working 
waterfront 
covenant" means an agreement in recordable form between the owner 
of working waterfront real estate and one or more gualified 
holders 
that permits 
a 
qualified holder 
to 
control, 
either 
directly or indirectly, 
the use 
and sales price of working 
waterfront real estate for the primary purpose of making and 
preserving tpe 
permane~~availab..ility and affordability of that 
real estate for commercial fisheries businesses. 
Page l-LR303l(1) 
~_. __ 
"'Qrkip9----.!f;;lt~td·~QPt..----x_e.~1 
est~te",-~, __ 
""-,W-",orking~9.terfront 
real estate" or "real estate" means land, legally filled lands, 
piers, wharves and other improvements to lands all adj acent to 
the navigable coastal waters of the State. 
S132. Cre~tion: conveyance: ~cceptance; duration: filing 
1. 
Wod:i,ng 
1f~terfront 
C.9yenant. 
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 
~alified 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 3. 
4. 
Filing. 
A working waterfront covenant must be recorded 
~~he 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 its location on the 
form or forms that the State Planning Office requires. 
5. 
Mortgagee's interest. 
A mortgagee's 
property in existence at the time that a 
covenant is created is not impaired by the 
covenant as long as the mortgagee's interest 
the working waterfront covenant. 
interest in real 
working waterfront 
working waterfront 
is subordinated to 
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. 
S133. Judicial actions 
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: or 
C. 
The Attorney General. 
2. 
Municipality. 
An action affecting a working waterfront 
covenant may be intervened in by the municipality in which the 
real property burdened by the covenant is located. 
J~~~r of 
cou~. 
The 
court 
may 
enforce 
a 
working 
waterfront covenant by injunction or other proceeding at law or 
in 
equity. 
Acting 
in 
accordance 
with 
charitable 
trust 
principles, the court may modify, 
terminate or deny equitable 
enforcement of a 
working waterfront covenant in an action in 
which the Attorney General is made a party when the Commissioner 
of Marine Resources finds that, due to a change in circumstance, 
the 
covenant 
is 
no 
longer 
necessary 
to 
advance 
the public 
~rest in the commercial marine fisheries of the State. 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. 
§l34. 
Scope of working waterfront covenant 
A 
working 
waterfront 
covenant 
mu~s~t~~i~n~c~l~u~d~e~ __ w~i~tdh~o~u~t 
limitation at least one of the following terms: 
1. 
Resale 
price 
of 
working 
water-front 
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 
Limitations 
on 
the 
type, 
improvements that may be made 
working 
waterfront 
real 
estate. 
extent, 
use 
or 
dollar 
value 
of 
to working waterfront real estate; 
4. 
PerjiQR~~QIP 
__ 
wo:r.~i_:g,~_terfront real 
est_~te m~~ 
sold. 
Consistent with the purposes of this chapter, restrictions 
on the types of persons or businesses to whom working waterfront 
real 
estate 
may 
be 
sold, 
leased 
or 
used 
as 
long 
as 
such 
restrictions do not unlawfully discriminate against any person. 
~5'"--1-' _-,Op~t,j.OtlS to 
pur~",_s~-"-._-,T,,,-,h±!e,,--.9!'_ant of 
refusal or options to purchase to qualified 
assigns, 
subject to the terms 
and conditions 
rights of first 
holders or their 
of the working 
waterfront covenant: 
-",6~._---,M=~,inteAanc~~g_iP'§!1~ce 
_~s~~te. 
The obligation to maintain, 
of working wi!terfront reJll 
operate and insure working 
waterfront real estate; 
2_. _C9nst~1l.ctj.QP_~d ma~t~~.i.~l_s~e 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 __ 
tlJ,a,t 
maY--~Dl1~ce 
affordability 
of 
wo_t:king 
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 operators in the future. 
§135. Validity 
A 
working 
waterfront 
covenant 
is valid 
and 
enforceable 
notwithstanding any of the following conditions. 
1. 
Not 
app_urt~nant to interest in real 
prope~. 
The 
working waterfront covenant is not appurtenant and does not run 
with an interest in real property. 
2. 
Assigpg.b}e to another holder. 
The working waterfront 
covenant can be or has been assigned to another qualified holder. 
3. 
Not recognized at co~n law. 
The working waterfront 
covenant is not of a character traditionally recognized at common 
law. 
4. 
Imposes 
~~p_tive 
bur~d~e~n~.~_~T~h~e~_w~o~r~k~i~n~g~~w~a~t~e~r~f~r~o~n~t 
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 gualified holder. 
9~enefit qQ~_s_~ot touch~~..oAcern r~~Lpro~rty. 
The 
benefit of the working waterfront covenant is held by a gualified 
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 pr i vi ty 
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 gualified 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. 
§136. Application 
1. 
Interest created after effective date. 
This chapter 
~ies to ap.y interest that complies with this chapter created 
after the effective date of this chapter, whether designated as a 
working 
waterfront 
covenant 
or 
an 
eguitable 
servitude, 
restriction, easement or other interest in real estate. 
2. 
Working waterfront covenant created before effective 
~te. 
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. 
Cha~~r does not invalidate interest. 
This chapter does 
not invalidate any interest, whether designated as 
a 
working 
waterfront 
covenant 
or 
an 
eguitable 
servitude, 
restriction, 
easement or other interest in real estate, that is otherwise 
enforceable under other laws of this State. 
SUMMARY 
This bill implements authority given to the Land for Maine's 
Future Board to be a party to working waterfront covenants. 
This 
bill 
provides 
the 
necessary 
definitions 
and 
provisions 
for 
creation, 
conveyance, 
acceptance 
and 
duration 
of 
working 
waterfront covenants, along with provisions for the scope and 
validity of such covenants, as well as applicability provisions.