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MARCO ISLAND — Marco’s anchoring case is drifting away despite attempts to hold on to a city ordinance, which some boaters’ rights advocates say is unconstitutional.
Earlier this month, Governor Charlie Crist’s signature was expected on house bill 1423, which may void the ordinance that the city has been spending more than two years and about $60,000 in legal fees to enforce in court.
Defense attorney Donald Day of Naples-firm Berry, Day & McFee, is representing the Marco boater Dave Dumas, who intentionally challenged the city’s ordinance in 2007. Day said he doesn’t understand the city’s decision to spend money on this case during an economic recession.
“The new law will make all local ordinances obsolete. Therefore, any outcome of our current litigation is of no use. This is what I suggested to the city at the onset of our case. We all knew the state was coming with this. That is why I cannot understand spending tax dollars to fight on an issue that is dead.”
The bill which is titled “An act relating to the Fish and Wildlife Conservation Commission” deals with several waterway issues including the definition of live aboard vessels and the establishment of anchorages and mooring fields.
The overall legislation takes effect July 1, 2009, however certain portions do not go into effect until October 2009.
All existing ordinances that limit anchoring that do not qualify as live-aboard by the new legislation are to become null and void.
Marco Island’s attempts to restrict boat anchoring have run aground more than once, but are slowly dragging on again.
In January, the local appellate court had dismissed the city’s appeal of a Collier County Court ruling that declared the city ordinance restricting anchoring in its waterways unconstitutional.
The dismissal was on procedural grounds. A three-judge panel ruled the city did not file its appeal on time.
City Attorney Alan Gabriel, of the Fort Lauderdale-based law firm Weiss Serota, fought that ruling and recently won the battle by having the appeal reinstated on May 22.
City Council Vice Chairman Frank Recker said the council chose to pursue the appeal hoping that the court would provide more guidance on the issue.
“ ... And we only chose to do so after being assured that our legal expenses would be nominal for the appellate process.”
Recker said if there has been a waste of money, it may have occurred on the state level.
“If the legislature had acted sooner and clearly specified sole jurisdiction in this area it might have saved everyone a lot of time and money. This entire issue could likely have been avoided with the proper parties talking to other reasonable folks. At least we can see an end in sight.”
Dumas was cited in January 2007 for violating an ordinance which restricts mooring in certain areas. Dumas said he admittedly and purposefully moored a 42-foot motor yacht, the Kin Ship, for 12 hours within 300 feet of a seawall near the Esplanade, in the hopes of having the city ordinance ruled as unconstitutional. Dumas has said he hoped it would set a precedence against all similar ordinances enacted by cities and counties.
Marco resident Don Dilks, an Island boater and member of the city’s waterways committee, said he is pleased with the new state legislation. “Any legislation to make anchoring more consistent throughout the state is welcomed by me.”