A legal fight that started in 2007 over Long Wharf neared its conclusion on Friday as the Supreme Judicial Court rejected the open space and park protection arguments of a North End citizens group, paving the way for a restaurant or development at the site. The SJC supported the Boston Redevelopment Authority (BRA) and Mass. Department of Environmental Protection (DEP) in the case against a resident group, known informally as the “North End Ten.”
The Supreme Judicial Court is the highest court in Massachusetts and tackled two questions as part of this case:
1 – Whether the Long Wharf Pavilion project site, which the BRA took by eminent domain for urban renewal purposes, is subject to Article 97 and,
2 – If it does apply, whether the DEP may issue the Chapter 91 license to the BRA without triggering the requirement of a two-thirds vote of the Legislature.
While recognizing Long Wharf as a “designated national historic landmark” and historical references to the site as an “observation platform,” the SJC concluded:
art. 97 does not apply to the project site, and therefore, a two-thirds vote of the Legislature is not required to approve the planned redevelopment. [SJC Opinion, March 13, 2013]
The SJC reasoned that regardless of its park-like attributes or classification, the project site was not taken or acquired for Article 97 purposes. Instead, the SJC characterized the 1964 Urban Renewal Plan as an attempt to “eliminate urban blight through the comprehensive redevelopment of the waterfront area” giving an “overarching purpose” that supersedes Article 97 protection of “certain open spaces” such as Long Wharf. Per the ruling, the BRA does not need 2/3 vote of the State legislature as required for most parkland under Article 97 to “slightly revise” the area with a restaurant.
“We are pleased with the SJC’s decision on Long Wharf,” said BRA Director Peter Meade in a statement. “It paves the way for yet another great destination on the edge of the Boston Harbor that will be enjoyed by residents and visitors for decades to come.”
The North End plaintiffs have yet to make an official comment after the SJC ruling.
The dispute started when the BRA announced a lease in 2007 to Michael Conlon’s East Drink Laugh Restaurant Group to build and operate “Doc’s Long Wharf,” 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. Shortly thereafter, ten North End residents started a campaign to preserve what they considered to be protected open space and parkland. They argued that the proposed restaurant would “create unnecessary noise and would damage public open space, parkland, and scenic quality.”
After several back and forth rulings by local officials, the “North End Ten” scored a major win in June 2012 at Superior Court. 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.
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 March 15, 2013 SJC ruling is coincident with the BRA’s kickoff this week of a planning effort known as the Downtown Waterfront & Greenway District Zoning Planning Initiative (see the project overview video). Long Wharf is in the middle of the target zoning area under consideration for waterfront activation.
It is unclear whether Michael Conlon’s group is still interested in opening Doc’s Long Wharf. Conlon also operates the Paramount in Beacon Hill, among other local restaurants. Long Wharf has lately become a victim of sea level rise and severe coastal flooding. This was most recently witnessed during the 2013 blizzard and the 2012 Hurricane Sandy.
There is still at least one more legal ruling before the case wraps up. The SJC sent back the matter of the Chapter 91 provisions to the lower Superior Court. However, the SJC does not give park advocates much hope on that front either in its written statement.
… with art. 97 inapplicable and relief in the form of mandamus therefore inappropriate, we have serious doubts whether the [North End] plaintiffs can demonstrate standing to otherwise challenge the chapter 91 license.
After oral arguments were heard by the SJC, new evidence became available including a National Park Service map, classifying the end of Long Wharf as public waterfront “parkland.” However, this map was not available in time for consideration by the SJC in its decision, nor is not clear whether this would have impacted the SJC’s decision. In its ruling, the SJC recognized the “park” designation in the BRA’s own databases and the plaque on the site that says, “Long Wharf Park.”
The citizens known informally as the “North End Ten” are listed in the ruling as Victor Brogna, Stephanie Hogue, David Kubiak, Sanjoy Mahajan, Mary McGee, Anne M. Pistorio, Thomas Schiavoni, Pasqua Scibelli, Robert Skole, and Patricia Thiboutot.
The briefs filed by both sides can be found here. The North End Ten have a website at SaveLongWharf.org. You can also follow the history of the five year case through the tag, Doc’s Long Wharf (including amicus briefs submitted by Shirley Kressel and the Sierra Club, as well as the brief submitted by the Conservation Law Foundation, Massachusetts Association of Conservation Commissions, the Nature Conservancy, and the Trustees of Reservations.)