Great Ponds, Part II

Henry Lane, Attorney
Lane & Hamer PC
Whitinsville, MA

Recent attempts by the Town of Webster to limit the use of Webster Lake by commercial vessels took another interesting turn recently when the Office of the Attorney General disapproved of a bylaw voted by the town meeting on October 17, 2012.

As we have previously noted, Webster Lake is a great pond and therefore, subject to some interesting legal provisions originating in the Colonial Ordinances of 1641 to 1647.  Under the Colonial Ordinances, great ponds were available to all of the citizenry for fishing and boating as well as other uses such as ice harvesting.  As Massachusetts and particularly eastern Massachusetts became more densely populated and industrialized, inevitable conflicts arose concerning access to and use of the waters of great ponds,  and matters in one town came to a head in the 1860's.   The dispute concerned Jamaica Pond which was a great pond originally located in the Town of Roxbury (now a part of Boston).  The first disputes concerned operations of a grist mill which was located at the outlet of the pond and ground grain for local residents.

Apparently, over time the grist mill business grew and began using more and more water, lowering the level of Jamaica Pond, which resulted in complaints that excessive amounts of water were being used by the grist mill to grind grain being imported from Boston and elsewhere.  Various regulations were adopted by the Town to limit the use of water by the grist mill for grinding "foreign grain", which appeared to resolve the matter for a time.

More serious problems arose when competing ice companies began fighting with the Town about the right to cut ice for refrigeration.  The Town voted to impose a fee on every ton of ice removed from the pond.  When the largest ice company refused to pay the fee, the Town went to court accusing the company of stealing 8,000 tons of ice.   The case ended up in the Massachusetts Supreme Judicial Court  which affirmed the ongoing vitality of the Colonial Ordinances relating to great ponds, and, accordingly, that the Town of Roxbury did not own Jamaica Pond or the ice on the pond and therefore, was not entitled to sell the ice.

On the other hand, the Court also ruled that "towns may regulate the use of ponds by reasonable bylaws adopted and approved according to the statute…".  Although the Supreme Judicial Court reaffirmed the historic rights of the citizenry to utilize great ponds , it also recognized the need to regulate competing uses so that chaos did not ensue.  However, the Court also explicitly recognized that there is an established procedure for adopting local bylaws.

In Webster's case, the final procedural requirement is that bylaws adopted by the town must be approved by the Attorney General. M.G.L. c. 40 § 32.  We assume that the requirement that town bylaws need to be approved by the Attorney General was a reflection of the fact that in the early days of the Commonwealth many small towns did not have access to sophisticated legal counsel.  Therefore, it was quite possible for a small town to adopt bylaws that were clearly unconstitutional or violated some other statutory requirement or limitation.  Presumably cities were expected to have legal departments that were sufficiently familiar with municipal law to insure that ordinances adopted by the city council complied with constitutional or statutory requirements.

In this case, the Webster bylaw adopted on October 17, 2012, attempted to regulate the time within which commercial vehicles could operate on Webster Lake.  In disapproving that bylaw, the Attorney General determined that although towns generally have the right to control the use of great ponds by bylaw, that right has been legislatively limited to great ponds that are less than 500 acres in size (M.G. L. c. 131 § 45).  Since Webster Lake is approximately 1200 acres in size, the legislature has given regulatory authority to the Department of Environmental Protection.

More research would be required to determine why the legislature decided that the Department of Environmental Protection rather than the local municipality should regulate the use of great ponds that are more than 500 acres in size, but it may have decided that in the case of very large lakes the Department is better able to balance the historic interests of all of the citizens of the Commonwealth as a whole against the interests of the immediate community and lakefront property owners.

Of course, although the Attorney General's office has substantial experience with municipal matters, its decisions are not necessarily infallible; its decisions approving or disapproving municipal bylaws are subject to review by the courts.