by Thomas F. Schiavoni
Since 1989 an inscribed bronze plaque, embedded in granite beneath a towering flagpole, has clearly established the identity of a magnificent public space on Boston’s waterfront. Long Wharf Park offers panoramic views and serenity at the edge of the sea – a stone toss away from a bustling hotel, commuter boats and throngs of tourists lined up for harbor cruises and whale watches. But, if the Boston Redevelopment Authority has its way, a significant chunk of this park, including a shade pavilion, will be privatized for a revenue-generating bar-restaurant. It would mean the disfigurement of a precious recreational gem and create a precedent for the unilateral confiscation of parkland.
The BRA seeking to ‘enliven’ this unique spot and pocket some rent, has decided in Alice-in-Wonderland fashion, that the eastern tip of Long Wharf is no longer protected under Article 97 of the Massachusetts Constitution which requires a two-thirds vote of the legislature to commercialize parkland. So badly does the agency want to make this happen that its planners in a glaring omission failed to disclose the special status of the land on an environmental notification form filed with the state Department of Environmental Protection. And, they have spent tens of thousands of dollars of public funds in denying that city maps and surveys – even the BRA’s own press releases – are relevant in assigning constitutional protection for Long Wharf Park.
Ten grey-haired residents of the North End were not prepared to accept the BRA’s scheme with blithe resignation. They were outraged enough to challenge the agency in lengthy administrative and court litigation spanning three years. A team of five opposing private and public lawyers ventured out on a legal limb with head-scratching logic and filed a thousand pages of exhibits and pleadings. Meanwhile the ten North Enders had no choice but to take on the BRA and DEP pro se. They were castigated as busybody interlopers and misguided meddlers, but they never gave up hope as they swam upstream against a swift current of procedural maneuvers. Sometimes it felt more like swimming up a fire hose as the volume of paperwork flooded over the counter of the Suffolk Superior Court clerk’s office.
In 2011 Judge Elizabeth M. Fahey vacated a DEP hearing officer’s findings and assigned Article 97 protections to Long Wharf Park. In an interesting footnote, the judge specifically referred to the commemorative plaque at the base of the flagpole. Upon issuance of the decision, the BRA immediately filed a notice of appeal although newly-appointed BRA director Peter Meade claimed that he needed time to consider his options. The state DEP also appealed the outcome. Undeterred, the North End Ten alerted public interest and environmental organizations because the consequences of a municipal agency’s confiscation of parkland will ripple across the Commonwealth, not just in the tidewater lapping against the granite stonework at the tip of Long Wharf.
On June 11, 2012 the Supreme Judicial Court issued a call for amicus curiae (friend of the court) briefs to weigh in on the constitutional implications of changing the use of the land at the eastern end of Long Wharf. The case has been scheduled for argument in the fall.
One gets the impression that this struggle might turn out to be more than just a legal footnote.
Thomas F. Schiavoni is one of the ten plaintiffs in the civil case of Mahajan et al. vs. Mass. Dept. of Environmental Protection and Boston Redevelopment Authority.
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