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At Long Wharf, Concentrate on the Constitution

The Supreme Judicial Court (SJC) case of Sanjoy Mahajan et. al. v. Department of Environmental Protection (DEP) and Boston Redevelopment Authority (BRA), about the conversion of the Long Wharf pavilion, has provoked much discussion on the pros and cons of converting a portion of Long Wharf Park into a late-night restaurant and bar. This discussion leaps over a fundamental issue: the constitution.

The constitution is why the case is going to the SJC: The BRA and DEP appealed the June 2011 decision by Superior Court Judge Elizabeth Fahey that the constitution requires a two-third vote of the legislature in order to hand over a public park. In particular, the Massachusetts Constitution, in Article 97 of its amendments, specifies:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

It then gives teeth to that right:

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court [the legislature].

Parkland is covered under this amendment, and the City of Boston Parks Department’s Open Space Plan, on page 19 of the Open Space Inventory (Appendix 2), lists Long Wharf as protected by Article 97.

This amendment, Article 97, was passed by referendum of the citizens of Massachusetts in November 1972. It was a time of social progress. The public, outraged by the polluted Cuyahoga River’s catching fire, inspired by Rachel Carson’s Silent Spring, and building on widespread questioning of institutions, asked, “How can we improve our environment and make our planet fit to live in?” The last liberal president, Richard Nixon, expanded the Clean Air Act (1970) and signed the Clean Water Act (1972)—which provided the legal basis for the lawsuits forcing a court-ordered cleanup of Boston Harbor. This publicly funded cleanup makes the Boston waterfront such a beautiful and therefore contested, place today. (For the history of the cleanup lawsuits, see this law-review article.)

In the SJC case, the substantive issues now before the court are two:

  1. Whether Long Wharf, simply because it was taken by the BRA for urban renewal, is exempt from Article 97 and its two-thirds vote requirement.
  2. Whether the DEP’s Chapter 91 license is a disposition or change of use of the land protected by Article 97.

(The third, and procedural, issue concerns the appropriate remedy.)

The pros and cons of a late-night restaurant and bar are not among the issues. Rather, the fundamental issue is constitutional: Can Article 97 protections apply to urban-renewal land? This case will therefore determine the fate of Long Wharf and all parks created through urban renewal, anywhere in the state.

Constitutional government is a recent invention, not lightly discarded. Even Magna Carta, forced upon King John by the barons of 13th century England, was not as innovative. It confirmed only that the barons themselves could be part of government and could check the absolute power of the king. But who checked the power of the government? Constitutional government, where the people subject the government to law, was the great invention of the American colonists.

The plaintiffs say that the Constitution governs Long Wharf. The BRA says that it does not. That is what Sanjoy Mahajan et. al. v. Department of Environmental Protection (DEP) and Boston Redevelopment Authority (BRA) is all about.

By Sanjoy Mahajan

Mr. Mahajan is one of the ten plaintiffs in the civil case of Mahajan et al. vs. Mass. Dept. of Environmental Protection and Boston Redevelopment Authority. welcomes commentaries on community issues via email to Opinions are those solely of the author. Comments or responses to this commentary can be posted below in the comment section.

10 Replies to “At Long Wharf, Concentrate on the Constitution

  1. A lot of it comes down to motive. What is your motive in all of this? Are you really that concerned with the constitution or do you just want to block a late-night restaurant? That may no longer be the point. But lets not foget this started because some people didn’t want a cafe there. Others were fine with that, including me.

    1. I am concerned about subverting the constitution, with its principle that government be subject to law: that government be the servant, not master, of the people. People sacrificed their lives, many in this state (then a colony), for that principle. I would not lightly discard it.

      In this particular case, I would preserve the principle that a park may be changed to private use only after a clear expression of public’s intent to do so, as shown by a two-thirds vote of each house of the legislature, and as a roll-call vote so that each representative is accountable for his or her decision. These are the wise requirements placed upon the government by our fellow citizens in 1972.

    2. Group hits Long Wharf ‘booze joint’

      Liquor license review, lawsuit loom over eatery

      By Thomas Grillo
      Thursday, May 5, 2011 – Updated 1 year ago
      + Recent Articles

      A group of North End residents is trying to put the brakes on a $1 million waterfront restaurant, arguing it will eliminate prime public space at the tip of Long Wharf.

      “We object to the Boston Redevelopment Authority’s bid to hand over a park to a private developer for operation of a booze joint,” said Victor Brogna, vice president of the North End/Waterfront Residents’ Association.

  2. What a useful article! Obviously the case wouldn’t have stayed in the courts so long if the issues were not constitutional, but I needed them to be spelled out, which you have done here. It would be awful if the BRA could just grab publicly owned land whenever it wanted to. We need these constitutional guarantees–and are lucky to have them.

  3. I applaud, support and appreciate the efforts of the North End Ten to protect our beautiful open and peaceful waterfront areas. There are plenty of places to get a drink and food without taking this area away from us. There is no other city with an entity like the BRA. A place which is cronyism and insider deal making at its worst! The BRA has always been a bully!

  4. Have any of you walked through this area at 6:00 AM?
    There are over a dozen people making the sheltered area and the boardwalk their home.
    Clean air? Hardly.
    Clean area? Not
    One morning two weeks ago, one of the “residents” was urinating into the harbor.
    There is much to be done before debating the need for place to get food and beverages.
    John G Hussey

    1. The restaurant was supposed to be build in the location you describe. One of the benefits of a restaurant would be to eliminate that shelter and keep the homeless away from the area by activating it. But this North End 10 group is hell bent on keeping it “open” (nothing would be blocked by the restaurant since the structure was already there and the sides were supposed to be enclosed with glass). I doubt any of them even spent much time there. They are much like our Republican controlled congress…a group of obstructionists who say no to everything.

      1. I am one of the “North End Ten” and I go to Long Wharf Park regularly. I was there last night, as a matter of fact. It is a very nice circuit to walk from the North End to the Charlestown Navy Yard, take the T boat to Long Wharf and then walk back to the North End – I recommend it. It is amazingly quiet, especially in contrast to the bar scene at the beginning of Long Wharf. Last night at around 8:30 p.m. I saw an assortment of strollers and several pairs of young lovers – no homeless people or skateboarders. I can believe that you might find an encampment at 6:00 a.m. – just as you would at numerous other spots along the Harborwalk. This is a significant problem, whether it involves urinating into the harbor or defecating in playgrounds. However, I don’t think the solution is giving over our public spaces to private development without the required legislative approval. It makes sense that the BRA is not doing enforcement at Long Wharf Park. They want us to believe that our only choice is between a restaurant or a park experience which might be marred by lax enforcement of rules. I think we have the right to keep our park and to expect that it will be policed and maintained like other public venues. So that is my personal motivation – telling the BRA they have to follow the same rules which apply to everyone else and trying to protect a beautiful park in the process. Not sure why that offends some people so deeply. If we had a shortage of restaurants, the anger would be easier to understand.

  5. Mary McGee – Do you really know whats going on as one of the ‘ten’? You don’t have to wake up at the early hour of 6am to see the homeless hotel at the end of Long Wharf. Just get there by 8am and you can see it all, bottles, puddles of urine, homeless taking baths in the harbor. But at the 8am hour, the police come and ask them to leave. Then they go to the 7/11 for the day till nightfall. If there is one place in Boston I would not be with my ‘lover’ or kids, it’s there. Wake up. You’re stonewalling something that doesn’t effect you in any way and are hiding behind the Constitution in doing so. Beautiful park? Yeah right, it’s the best hostel on the east coast, fabulous views.

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