Long Wharf “Park” Briefs Filed at SJC Pitting BRA & DEP Against “North End Ten”

Plaintiff and defendant legal briefs were recently filed with the Supreme Judicial Court in preparation for an epic and precedent setting battle set to erupt this Autumn over Long Wharf “park,” the open space area at the eastern end of Boston’s famous Long Wharf pavilion on Boston Harbor. The SJC is scheduled to hear oral arguments in late September or early October. (See Case Docket.)

Last June, a group of neighborhood residents, known as the “North End Ten” scored a major win in Superior Court against the Boston Redevelopment Authority (BRA) and the State’s Department of Environmental Protection (DEP). The court agreed with the NE10 argument that the BRA-owned space on Long Wharf is “public waterfront parkland” and therefore protected by State law Article 97 which states that “agencies shall not change the control or use of any right or interest in Article 97 land” without approval by the State Legislature.

In 2007, the BRA announced a lease to “Doc’s Long Wharf,” for an enclosed 4,655 square-foot waterfront restaurant with outdoor cafe tables. The BRA was granted a license by the State’s Department of Environmental Protection under Chapter 91 laws.

After the June 2012 Superior Court Decision against its licensing rights, the BRA/DEP immediately appealed and the case was accepted for argument in front of the State’s highest court, the Supreme Judicial Court.

The North End Ten have set up a website at SaveLongWharfPark.org. (Also see a recent commentary on their case: Long Wharf Park: Just a Footnote?)

The legal briefs recently filed by both sides focus on the key points to be presented the Massachusetts Supreme Judicial Court. The summary arguments are reiterated below, along with links to the three briefs.

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North End 10 – Resident Plaintiffs-Appellees: Sanjoy Mahajan, Victor Brogna, Stephanie Hogue, David Kubiak, Mary McGee, Anne M. Pistorio, Thomas Schiavoni, Pasqua Scibelli, Robert Skole, Patricia Thiboutot
Summary of Argument from Brief of Plantiffs-Appellees

“BRA claims, without any legal support, a broad exemption from Article 97 for all land taken for urban renewal purposes. BRA’s position would eviscerate Article 97. (pp. 19-20).”

“Article 97, enacted in 1972, provides that any disposition or change of use of land held or acquired for natural resource purposes must be approved by a two-thirds vote of the general court. In addition, Massachusetts has long recognized the prior public use doctrine requiring explicit legislation to dispose or change the use of parkland, including the land at issue here. Article 97 applies retroactively and the description of natural resources in it should be construed broadly. (pp. 20-28).”

“The Superior Court correctly ruled that the eastern end of Long Wharf was taken for Article 97 purposes. The Urban Renewal Plan pursuant to which Long Wharf was taken in 1970 identifies among its aims several Article 97 purposes. This area has for decades been identified as open space or parkland by BRA, the City of Boston, and the Commonwealth in official planning documents. (pp. 28-30).”

“Although BRA’s principal argument is that Article 97 does not apply to land taken for urban renewal, Article 97 contains no such exemption, nor does BRA cite any statute or case on point. Nor could it: G.L.c. 121B, sec. 45 provides that the purposes for which land can be taken for urban renewal include parks, recreation, and open space. (pp. 30-38).”

“The License authorizes a change of use from parkland to a restaurant and bar, with a 30-year lease, renewable for another 30 years. Pursuant to G.L. c. 91, sec. 15, a c. 91 license conveys a mortgageable interest. It must be recorded and runs with the land. It conveys valuable property rights.”

“It is not a mere license, revocable at will. The Superior Court’s conclusion that the License is an Article 97 disposition or change of use is correct. Its conclusion that the License is tantamount to an easement is correct. DEP’s indifference to Article 97 is contrary to its c. 91 Regulations, which require it to foster Article 97. (pp. 38-45).”

“The Superior Court correctly determined that mandamus should issue. Several cases have held that mandamus is the remedy for violation of Article 97 or of the prior public use doctrine. (pp. 45-50).”

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Boston Redevelopment Authority, Defendant-Appellant
Summary of Argument from Brief of Appellant

“The Superior Court erred in finding that the Long Wharf Pavilion is subject to Article 97 because the BRA took it by eminent domain for urban renewal purposes. Pp 23-31. M.G.L. ch 121B empowers urban renewal agencies to take land or easements by eminent domain for the purpose of eliminating blighted, substandard, or decadent open areas. Pp. 23-27. Urban renewal is a public purpose distinct from Article 97, which is focused on the conservation of natural resources. Pp 23-31. Regardless of the use to which land is put under an urban renewal plan, it is not within the ambit of Article 97. Pp. 25-27. Requiring urban renewal agencies to seek specific legislative authorization under Article 97 is not contemplated by Article 97 and would thwart the objectives of the urban renewal statue. Pp. 23-31.”

“Also, the Superior Court erred in granting the extraordinary remedy of mandamus to the Resident Appellees. Pp. 31-38. Mandamus is not an appropriate remedy in this case because the BRA does not have the power to take under Article 97. Pp. 31-34. The Resident Appellees lack standing to seek relief by way a mandamus because the public duty doctrine is inapplicable here and they do not have a particularized harm different from that of the general public. Pp. 34-38. Moreover, the Massachusetts Appeals Court recently held that the public duty doctrine should not be utilized in an ordinary land use controversy. Pp. 35-37.”

“This Court should affirm the issuance of the Chapter 91 License because both BRA and DEP provided overwhelminingly and uncontroverted evidence demonstrating that the proposed project fully complies with all requirements of the Waterways Regulations. Pp. 38-47. DEP’s Final Decision is correct as a matter of law and the Chapter 91 License should be reinstated.”

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Department of Environmental Protection, Defendent-Appellant
Summary of Argument from Brief of Appellant

“The Residents lack standing to bring this action against DEP. First, they do not have standing under the Administrative Procedure Act because they did not allege, and the record does not show, that the BRA’s proposed project will significantly affect their ability to enjoy harbor views or otherwise enjoy the waterfront. They also lack standing to seek a writ of mandamus against DEP where DEP hand no duty to apply, interpret, or enforce Article 97 here. That DEP owes no duty to them under Article 97 also dooms their request for relief under the Declaratory Judgment Act.”

“Second, judicial review of final DEP decisions proceeds under G.L. c. 30A, S14. Under that statue, the trial judge could reverse DEP’s decision only after concluding that the decision contained legal error and that such error prejudiced the Residents’ substantial rights. But the trial judge did not reach either conclusion. Instead, ignoring the exclusive method of judicial review prescribed by the Legislature, she improperly vacated DEP’s decision through declaratory relief and a writ of mandamus.”

“This error is highlighted by an internal inconsistency in the trial judge’s decision. On one hand, she agreed with DEP that the agency had no power to decide whether BRA’s land is subject to Article 97. Inconsistently, however, she then went on to hold that DEP committed legal error by refusing to apply and enforce the very same constitutional provision – Article 97.”

“On the merits, the Chapter 91 License here did not itself transfer or convey a property right. Thus DEP’s decision to issue the Chapter 91 License could not have triggered the two-thirds vote requirement under Article 97.”

“Significantly, the Chapter 91 License does not excuse BRA from complying with other laws, including Article 97. Accordingly, if BRA’s proposed project does in fact trigger Article 97, an issue that is itself open to debate, BRA cannot rely on the Chapter 91 License to start its project before complying with Article 97 or any other applicable law. But those issues do not conern the Chapter 91 License. This Court should not, as the trial judge did, allow the Residents to use a challenge to the Chapter 91 License as a vehicle to air their Article 97 issues and to drag DEP into aspects of the BRA’s project that do not related to DEP’s duties under Chapter 91.”