Friday, September 11, 2015

Analysis of AG's Opinion on Boathouses and Piers

In July of this year, the Pearl River Valley Water Supply District ("the District") made known their position that piers and boathouses extending beyond the water line may be without authority, unless that area was included in a lease. We blogged about it here, and it generated much activity and discussion on this blog. 

On August 21, 2015, the Mississippi Attorney General ("AG") issued an opinion at the request of the District on the following question:
Is the District required to issue leases for additional compensation for the utilization of submerged properties for boathouses and piers adjacent to upland leases issued by the District?
Note the phrasing of the question.  The District did not ask if they could, they merely asked are they required to?

The AG began its analysis grumbling over the broadness of the question asked.  The AG states, as a result, the answer he is giving will be general in nature, and will resolve nothing regarding specific properties.

(additional analysis and the AG Opinion below the break)

The Opinion stated that as a general matter, the District "does not necessarily have to obtain additional compensation for the use of waterfront property in connection with prior boathouses."  The AG discussed the 2002 case of Stewart v. Hoover, 815 So. 2d 1157 (Miss. 2002), where the Mississippi Supreme Court held the Department of Marine Resources -- which regulated littoral rights on the Mississippi Gulf Coast -- had the authority to issue permits for the construction of boathouses without requiring additional compensation from the landowners.

In the present case, the District similarly holds the authority to lease District lands (including, presumably the littoral rights), and therefore enjoys the authority to determine the conditions on which such permits are issued. 

In my opinion, the practical result of this opinion is leaseholders with pre-existing piers and boathouses can breath a sigh of relief.  However, this opinion does not resolve the issue on a going-forward basis; rather, it reinforces the authority of the District to determine lease conditions. Interestingly, the AG left with this parting shot:
Absent a contrary provision in a lease or in the District's regulations, it is logical to assume that lease rental payments include permitted littoral uses, i.e., uses for which the District has issued a permit to the lessee.

1 comment:

Ray said...

Politispeak: talking without saying anything