Silberberg to Landowners & Shell Fishermen: Work it Out

letter to the editor

Dear Editor:

I read an article today (March 15) in one of Greenwich’s news sources about the ongoing battle between a local shell fisherman and some property owners whose land abuts the waters where his leased shellfish beds are located.

While I can appreciate the concerns of the landowners, I can also understand the concerns and needs of the shell fisherman as well.

However, I think I can lend a perspective different from those I have heard expressed.

I am both a real estate broker here in town and also involved in Greenwich harbor management issues.

The columnist refers to the landowners’ littoral rights, and refers to their desire to use the waters adjacent to their properties.  The shellfish bed tenant/operator cultivates and farms these beds and pays property taxes on the submerged land he farms.

Here’s where it gets interesting.  The landowners appear to be looking at this problem in two-dimensions while the shellfish bed operator is looking at it in three dimensions, which is exactly what it is.

The land and waters seaward of the high water mark are held in Public Trust by the State (or the Federal Government, if applicable) for the public to use.  Notice that I used the term land and waters.  Although it is submerged, the seabed is still land and subject to the control of the State or Federal government.

To prevent confusion, I will refer to the adjacent property owners landward of the high water mark as “landowners” and the tenant/operator of the adjacent shellfish beds seaward of the high water mark as the “shell fisherman” or “operator.”

I don’t think anyone is disputing the rights of the landowners to use the water, on the surface, the dispute seems to be over their right to use the submerged land and waters which the State has leased to the operator.

When thinking in three dimensions, the dispute is similar to “air rights” and “mineral rights” or “sub-surface rights.”

As many of us know, especially if you go to New York City often, “air rights” and “sub surface rights” are valuable, quite valuable.  Look at how buildings are built on top of land owned by others.  The Met Life Building, for instance, is built over the property of Grand Central Terminal and is one that comes to mind immediately.  Or think of the discussions concerning using the air rights to build over the rail yards in Manhattan.

But sub-surface rights are equally important.  In our local area it is not so much in terms of mineral rights, but think of all the connecting tunnels and underground malls in Rockefeller Center, and think about how much all this is worth in terms of income and taxes.

Think how you would react if you were a landowner, or lessee, and your neighbor decided to build an observation platform above your land so he could sit out there and view the passing scene?  He might have built it on a cantilever so it doesn’t physically touch your land, and he may have done so to still allow you to get underneath to mow the lawn, but even still, your property has been impacted and impaired.  You can’t plant a tree under his observation platform, nor can you build your home there without hitting his structure.

In simple terms, he has encroached onto your property or leasehold.

Now lets look at the other side… the underside.  The sub-surface.

What if this same neighbor decided to build the underground garage of his dreams so he could house his car collection and wanted to place it under your lawn or house?  You wouldn’t necessarily see the garage, but it could impact your ability to drill a well for potable water, or run a line for natural gas to heat your home.  It might even cause problems with the foundation of your home.  Again it is a “taking” of property that was rightfully yours.  After all, you paid for it, either by a purchase or a lease, and you paid taxes on it, then suddenly, someone else was planning to use it without payment or permission.

Clearly, in either case, the landowner, or in this case, the lessee/operator, has a right to deny unauthorized use of his leasehold, or if they agreed, to allow use under certain reasonable conditions in compliance with the lease.

Applying these principals to the matter at hand, these conditions might be: (1) requesting permission from the Landlord, in this case, the State, by way of a mooring permit (2) requesting permission from the lessee, the shell fisherman, (3) payment of reasonable compensation, in part to cover the taxes and expenses the lessee has, (4) removal of the mooring gear during cultivating and harvesting time so as not to interfere with the shell fisherman’s operations.

I suspect, when looked at in this light, the dispute takes on a different aspect.

In the article, the columnist mentioned that State Senator Scott Frantz introduced a bill to allow waterfront property owners adjacent to shellfish beds to be allowed to place moorings in these beds without the permission of the shellfish bed owner or lessee.

While well-intentioned to ameliorate the problems of his impacted constituents, I suggest that were this bill to go farther, it would wind up being a slippery slope for landowners everywhere, for the simple examples I cited above.

While the adjacent landowners might cry, “Foul,” I’m not sure that is really the case.  When the properties were first purchased, and a title search performed, I’m sure there was some clause in title documents which started out with the words, “Subject to the rights of others in….”.  Normally, this clause is overlooked as legalese boilerplate, and it often is.  But now I suspect these landowners are re-reading their title documents and trying to figure out how they went wrong.

Apparently, from the article, they have tried to engage the efforts of  First Selectman Peter Tesei to help resolve the matter in their favor.  But here’s the rub:  Even if Mr. Tesei wanted to help, he is completely hamstrung.  The matters are controlled by State laws regarding property rights, not local ordinances.

While I understand and can sympathize with the litigants’ plight, I cannot support it.

Consequently, rather than take up the time of the Courts, State and Municipal Executives and employees, numerous lawyers and the shellfish bed operators, the protagonists should realize that the most expedient way of resolving this, and having use of their boats for the upcoming season, is either to pay a reasonable sum requested by the shellfish bed operator, obtain a state mooring permit and comply with other reasonable conditions, or move the location of their desired moorings to a spot that is wholly outside a shellfish bed and within an approved Town mooring area.

Otherwise, please come forth with the documents which show that you are notSubject to…” the rights of the guardians of the Public Trust.”

I suggest that they cannot.

Respectfully submitted,

Gary Silberberg

*Gary Silberberg is a real estate broker and owner of Intriguing Realty, licensed in CT and NY.   He is also a member of the Greenwich Harbor Management Commission.  The views expressed are strictly his own and may not reflect those of the Town of Greenwich or the Greenwich Harbor Management Commission.