Anchorage battle could reverberate

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Boater David Dumas has won the first round in his challenge to Marco Island, Fla.’s anchoring ordinance, and the victory is getting notice in other localities that restrict anchoring across the state.

Boater David Dumas has won the first round in his challenge to Marco Island, Fla.’s anchoring ordinance, and the victory is getting notice in other localities that restrict anchoring across the state.

Florida’s county and municipal governments have enacted a patchwork of local anchoring regulations — rules that cruisers long have argued are an unconstitutional restriction of their use of public waterways.

On Oct. 25, Collier County Circuit Court Judge Rob Crown agreed with cruisers in the case of Marco’s ordinance, ruling that part of the ordinance is unconstitutional “because it is an unlawful local regulation of publicly owned sovereign waterways in violation of Florida law.”

The decision was clear and forceful, and well worth Dumas’ knotted stomach as he waited 36 hours at anchor on MarcoIsland’s FactoryBay so he could be cited for illegal anchoring and challenge the law.

The judge says the city ordinance “is in direct conflict with state statute,” Dumas says, which is what the 65-year-old retiree thought when he was ticketed Jan. 18 on his 42-foot Kadey-Krogen named Kinship.

“As a result of Judge Crown’s decision and current state statutes, many local governments around the state have advised me that they will not be enforcing their anchoring ordinances, and will look to the state for guidance in the form of a uniform anchoring regulation,” Donald Day, Dumas’ pro bono lawyer and a boater, told BoatU.S., which has advocated for more equitable anchorage laws.

On Nov. 5 the City of Marco Island announced its intent to defend the ordinance and appeal Crown’s ruling.

“This is a boating town,” says MarcoIsland city manager Bill Moss. Many of its residents own boats but two-thirds also are waterfront owners, and they don’t want boats anchored indefinitely in their “backyard,” he says.

“What our citizens told the council is that they invite all boaters to use the waters, but they are less enthusiastic about people who anchor their boats and leave them unattended or [stay on their boats and] anchor for long periods of time in front of their properties,” Moss says. “We have received more citizen input about anchoring than any issue since I came down here 10 years ago,” he says. “The vast majority of our citizens want some kind of regulation.”

Dumas and members of the Sailing Association of Marco Island, a group formed to fight the anchoring law, say opposition to anchoring has been orchestrated and bankrolled by a single wealthy waterfront property owner who has spread unsubstantiated stories about anchor-outs being polluters, nuisances and potential menaces. Dumas, who keeps Kinship at a dock behind his Marco Island residence and doesn’t need to anchor out, says the city could show the court no hard evidence — police or water-quality reports — of anchor-outs causing problems affecting the health, safety or welfare of Marco Island’s residents.

“They just look at the water as theirs,” says Herman Diebler, another retiree and co-founder of SAMI. “It’s so easy to villainize the boater.”

Marco’s 2-1/2-year-old ordinance prohibits boats from anchoring more than 12 hours within 300 feet of shore, and sets a 72-hour anchoring limit anywhere in the city. A 72-hour permit can be extended an additional 72 hours if a boater can show a current sewerage pumpout receipt. Illegal anchorers face a $500 fine and six months in jail.

Florida Statute 327.60, amended in 2006 to clarify its language, says local governments can prohibit or restrict mooring or anchoring floating structures (houseboats without motors, for instance) and liveaboard vessels, that is, boats used solely as residences (people live on them, they never go anywhere on them and don’t have the ability at the moment to use them for transportation) and boats that are legal residences (they are listed on a driver’s license or voting registration card as someone’s home). Local governments also can regulate vessels that tie up to moorings in state-permitted mooring fields.

However, cities and counties are prohibited by this law from regulating anchorage of non-liveaboard vessels in navigation, except in the mooring fields. The MarcoIsland case is the first to challenge a local anchoring ordinance since clarification of the state statute last year.

FactoryBay is the last good anchorage before the Keys for cruisers headed south on Florida’s west coast. Diebler says the number of anchor-outs on Factory Bay have never been large — usually fewer than three at a time in summer and three to six, occasionally up to 12, in winter.

If the Second District Court in Lakeland hears the appeal, a ruling for Dumas would affect the enforceability of anchoring ordinances in west central Florida from CollierCounty north to PascoCounty.

“A friend from Miami Beach [which has an anchorage ordinance] says the municipalities hope that the infection that started here on MarcoIsland doesn’t spread through the state of Florida,” says Diebler.

Moss says if his city doesn’t prevail in court, Florida cities may have to go to the legislature to secure a right to regulate anchoring.

A showdown is expected is 2009, when the Florida Fish and Wildlife Conservation Commission plans to propose a model county and municipal anchoring ordinance based on a series of workshops it hosted this spring to talk to boaters and property owners about anchoring.

Diebler says cruising boaters must be ready to fight for their view of anchoring rights when that legislation comes to the fore.

“Otherwise boaters are going to be trampled,” he warned.