MALSCE Opposes H 804

MALSCE President David W. Humphrey, PLS sent the following letter, presented as text here, to key leaders in the Massachusetts House of Representatives: 

April 9, 2013

Senator Karen Spilka
Majority Whip
Room 320
State House
Boston, MA   02133

Re: Please Oppose House Bill #804

Dear Senator Spilka:

I am writing to you as President of the Massachusetts Association of Land Surveyors and Civil Engineers (MALSCE).  We are a professional society representing professional land surveyors throughout Massachusetts.  As land surveyors, we are responsible for determining property boundaries of private and public owners state-wide.  We are the ones who will be directly affected by the proposed law.

House bill 804, "An Act preserving public trust rights in land affected by ocean erosion", will change the current laws related to littoral ownership boundaries along the coast.  For several reasons, MALSCE does not support passage of this bill.

Littoral land ownership (land abutting a body of water) is, by definition, constantly changing due to erosion and accretion.  Laws related to the transient nature of littoral ownership boundaries have been developed over many centures.  Originally based on British Common Law and now adapted into the American tradition, the related laws developed to apply a level of equity to ownership of the changing landforms.  Current, well-established law holds that an upland owner gains any land deposited adjacent to his property and loses any land eroded away.  But the actual application of the laws to specific situations can become very complicated and often results in litigation.

The proposed legislation will ad an unnecessary layer of complexity to the determination of littoral ownership boundaries.  H-804 would create a special law to be applied in very specific circumstances.  When a "barrier beach" moves into a Great Pong (a pond over 10 acres that is owned by the Commonwealth of Massachusetts), the newly created land would, under the proposed law, become the property of the Commonwealth and not the property of the abutting land owner (as would be the case under current law).  This will be a new complication to an already complicated issue.

Furthermore, this bill can certainly be viewed as a taking against private citizens becaus, under the new law, the public would own any new land created instead of the private land owners under the existing law.

Although the name of the bill "an act preserving public trust rights in land affected by ocean erosion" sounds very positive and beneficial for the public, I fail to see how this goal will be accomplished.  First of all, there are very limited situations where it would actually create new public land.  And when it does, the public would not have any means to accessing the new land because it would be isolated from any existing public trust land (except the Great Pond).  And if we look at the situation more broadly, we see that, as they are want to do, barrier beaches will continue moving landward, through the Great Pond, and will eventually occupy an area that was previously dry land.  In that case, the proposed law would have absolutely not effect.

Furthermore, the bill is poorly worded.  One of the critical featurs, "barrier beach" is not defined.  The term "any other public land" is not defined and I'm not sure what affect a barrier beach moving into "other public land" would have anyway.  

Of major significance, there is no specified date on which the law will go into effect.  Is it intended to apply to all movements of barrier beaches, past and future, or will it only apply after the effective date of the law?  If we apply it forward from a critical date, part of a former Great Pong would be under private ownership and part would become public land.  If we saw it is retroactive, all land that was created by a barrier beach moving through a Great Pong will become public land regardless of any previous or existing ownerships.

On a parallel issue, the existing laws related to Chapter 91 licenses and filled tidelands are very complicated and contentious.  The proposed legislation will likely create similar problems for past and present Great Ponds subject to encroachment by barrier beaches.

It seems this bill has been proposed by someone who feels they were adversely affected by a very specific situation.  I do not believe that, if passed, this bill will benefit any broad section of the general public and it will not "preserve public trust rights".

For these reasons, I ask that you oppose House Bill #804.  Thank you and please feel free to contact me if you have any questions regarding MALSCE's position on this bill.

Sincerely yours,

David W. Humphrey, P.L.S.

MALSCE Past President


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