DANVERS — Some residents of the Congress Avenue neighborhood are asking the town for help in obtaining free boat slips they say the Danversport Marina owes people who live along Millett Creek.
The free slips were one of the conditions from when the town took a vote of no opposition to the marina's expansion for the use of Parker's Island in 1984, which included a proposal for a new bridge to the island.
The construction of a "permanent bridge" between Parker's Island and the Danversport Yacht Club across the creek even required special legislation in 1987, an act that also mentioned a covenant with the community that carried the requirement for no-cost boat slips.
The existing bridge, which is a wooden footbridge that spans two floats, effectively cuts off Millett Creek from the Porter River by boat, save for being able to paddle a canoe under it.
Jane Fuller and her husband, Robert, along with neighbors and some Town Meeting members, went before selectmen last Tuesday to ask for the town's help in obtaining the free slips, which they said they lost the right to in 2013.
This 1987 state law authorized Joseph DeLorenzo to apply for a license and approvals "to construct a permanent bridge to replace a temporary bridge" 1,000 feet north of the junction of the creek and the Porter River.
The law required any temporary bridge to be removed with the construction of a permanent bridge.
A temporary bridge, similar to the one that is there now, is shown on the application for a Chapter 91 waterways license from 1987, an application that is still pending.
Representatives for the marina say the requirement for free slips is not in force because a much larger, permanent bridge to connect the yacht club across the creek with the marina at 107R Elliott St. was never built.
Beverly attorney Marshall J. Handly, who represents the yacht club, said the bridge envisioned more than 30 years ago would have created a "permanent impediment to navigability," which is why the marina sought the special act of the state Legislature in the first place.
But, he added, Millett Creek is not navigable, anyway, save for being able to paddle a canoe at high tide.
Over time, Handly said, the marina has offered two or three free slips to residents who live along the creek, including the Fullers.
On Tuesday, Jane Fuller told selectmen that from 1998 to 2013, she and her husband, who live at 30 Congress Ave., applied for the free slips at the yacht club for various sized boats, including a 22-foot Century motorboat.
Then, in June 2013, the Fullers received a letter from the marina director that they would no longer be offered a complimentary slip, but would have to pay for it.
Jane Fuller said they kept their boat on a trailer in 2013, then berthed it in Salem in 2014 and 2015, then sold it in the summer of 2016 because of the expense and the hassle of going back and forth to Salem.
While Jane Fuller acknowledges the price of a slip is part of boating, she notes she would not have had to rent one if the footbridge did not exist and she could moor her boat in the creek.
Town Manager Steve Bartha met with the Fullers last Thursday.
Prior to that meeting, he explained via email that the footbridge is governed by the Massachusetts Public Waterfront Act through the state Department of Environmental Protection, which limits cities and towns from registering objections to structures like the footbridge.
"There are no provisions in statute for terms, conditions, or enforcement of covenants in connection with such votes," Bartha said.
Bartha said that in 2015, both state Sen. Joan Lovely, D-Salem, and Rep. Ted Speliotis, D-Danvers, wrote the DEP commissioner and asked the department to honor a 1984 memo, which is consistent with the town's understanding that the DEP, not the town, has jurisdiction.
"The Town doesn’t dispute that the intention of the covenant was clear, nor does the town assume that there wasn’t a genuine interest among all private parties to that covenant to coexist amicably, but there is simply no present mechanism of local enforcement consistent with state law," Bartha said.
The yacht club's general manager, Paul DeLorenzo, says the permanent automobile bridge envisioned by his father, Joseph, was never built. While they went through much of the permitting for it, it would have proved too costly.
"We never went that route," he said.
DeLorenzo said the creek itself is mud at low tide and not a place for boating. However, some residents with smaller boats were given free slips "to be friendly with the neighbors."
"We gave her a slip for years and we never said anything about it," DeLorenzo said.
Handly said if Jane Fuller wants a slip, the marina "is prepared to give her one ... Up to 14 feet is free."
In regard to the size of boats, the covenant was vague, saying: "for the size boat currently used, or, if there is no current use, then the average size of boats used by other residential owners, plus twenty percent, as of the year 1984."
Fuller said Friday that, after meeting with the town manager, she is in a Catch-22. The DEP has told her the agency cannot enforce the covenant, "and the town is telling me they can't enforce it, it's the DEP." Bartha advised her to hire an attorney because the case seemed clear cut, she said. Fuller said she has contacted the state Attorney General's office to find out who might be able to enforce the covenant.
Chapter 91 license problems
A few years ago, Precinct 3 Town Meeting Member Andrea Daley, who has been critical of the yacht club in the past — such as when it encroached on town-owned land on Parker's Island for boat storage — became involved in the Fullers' plight.
She said her research into the footbridge found the marina does not, in fact, have a Massachusetts Public Waterfront Act Chapter 91 license from the DEP, "for their piers, floats, piles, footbridge, rip-rap walls etc.," Daley wrote to selectmen on Aug. 6.
While her research at the Registry of Deeds in Salem found numerous "permits and compliances" from the Zoning Board of Appeals and the Conservation Commission over the years, Daley said, the underlying license does not exist.
A Chapter 91 license is required for doing work in and along waterways, such as building docks and piers and other activity such as dredging, and is intended to protect the public's interest in the state's bodies of water.
DEP spokesperson Ed Coletta confirmed, via email Thursday, that the yacht club has been operating without a Chapter 91 all these years, but, he noted, the license is in the process of being finalized.
"The marina has submitted all of the information and items necessary for MassDEP to issue the draft Chapter 91 license for the marina and modified footbridge," Coletta said. The marina has not been fined.
But Daley argues the situation is like "serving alcohol without obtaining a liquor license."
"To me," Jane Fuller said, "it's like they are not following all the rules that everyone else has to follow."
DeLorenzo disputes that. "We are absolutely right up to snuff with all the necessary permits," he said.
"Right now we are progressing toward the finalization of a Chapter 91 license," said Handly, the yacht club's attorney.
It's unclear why the application for the marina's Chapter 91 license has been pending since 1987.
The state issued a temporary license to the marina in 1976 "to maintain existing piers and construct additional walkways and piers in the Porter River," according to an administrative consent order from May 2017. The marina filed an application for the Chapter 91 license in 1987, that included plans for, among other things, the footbridge, according to the order.
The May 2017 consent order also says the DEP said the marina could continue to maintain its floats, piles and footbridge.
Handly said both sides are pushing to complete the process.