(a) Any person desiring to plant or cultivate oysters, clams or mussels, in any waters within town jurisdiction, may apply in writing, to the shellfish commission or to selectmen authorized to act, of the town where such grounds are situated, to designate a suitable place to be used by him for that purpose, and such commission or selectmen may make such designation and such applicant shall make and stake out such place and may enclose it with buoys or with stakes, set at suitable distances and distinctly visible above the surface at high water. Such designation shall require the applicant to make a good faith effort to cultivate and harvest shellfish from the designated area. Such designation shall prohibit the applicant from entering a contract with another person that requires the applicant to refrain from cultivating or harvesting shellfish for any period of time except upon approval by the shellfish commission or selectmen, as applicable. Such commission or selectmen shall make a written description of such designation and enclosure, by ranges or otherwise, as may be most convenient, which shall state the time of such designation. The money derived from such designation by selectmen shall be paid to the town in which the same is made. The money derived from a designation by a shellfish commission shall be paid to the commission. A designation may be made to several in common, as well as to individuals. No such designation by the commission or the selectmen shall become effective or be established until after a public hearing in relation thereto has been held by the commission or selectmen authorized to act for that purpose at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days and the last not less than two days before such hearing. A copy of the written application for the designation shall be filed in the office of the town clerk in such municipality for public inspection at least fifteen days before such hearing and shall be published in full in such newspaper.

(b) Notwithstanding the provisions of subsection (a) of this section, any owner of a utility line or public use structure that impacts a designated area shall pay to the designee the costs of removing or relocating any shellfish. Nothing in this subsection shall be construed to prohibit the state, the shellfish commission, the board of selectmen or a designee from recovering damages incurred by the state, the shellfish commission, the board of selectmen or the designee caused by the installation, construction or presence of such utility line or public use structure.

(1949 Rev., S. 5074; 1949, 1955, S. 2565d; P.A. 86-225, S. 1; P.A. 03-263, S. 3; P.A. 04-109, S. 18.)

History: P.A. 86-225 transferred the functions of oyster committees to shellfish commissions and added provision specifying that money derived from designation by shellfish commission is paid to the commission; P.A. 03-263 designated existing provisions as Subsec. (a) and amended said Subsec. by adding provisions re designation to require the applicant to make a good faith effort to cultivate and harvest shellfish and prohibit the applicant from entering a contract the requires the applicant to refrain from cultivating and harvesting shellfish, and added new Subsec. (b) re costs and damages owed by the owner of a utility line or public use structure that impacts a designated area, effective July 9, 2003; P.A. 04-109 amended Subsec. (b) to make a technical change, effective May 21, 2004.

Designation of natural oyster ground is invalid; may be so shown by parol. 37 C. 320; 42 C. 255; 56 C. 509; 64 C. 217; 66 C. 285. There can be no title by adverse possession, as against the state; section is constitutional; town designation is seemingly perpetual. 56 C. 509. No right, adverse to the public, is acquired until the ground is staked. 57 C. 576. Right of upland proprietor to wharf and channel is not affected by an oyster-ground designation to another. 62 C. 132. Evidence as to boundaries considered. 74 C. 374. Cited. 89 C. 7. Recipients of designations took the same subject to such rights as existed in town to discharge sewage; nature of rights acquired. 112 C. 215.