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The Boston Redevelopment Authority (BRA) lost its appeal in federal appeals court this week in what has been a decade long effort by the city agency to lease the end of Long Wharf for a restaurant development, once proposed as Doc’s Long Wharf, a 220-seat, 4,655 square-foot eatery/bar with outdoor tables.

On September 23, 2016, the appeals court affirmed a decision made last year by a federal judge who ruled in favor of the National Park Service (NPS). The NPS is intent on keeping the area as open space parkland under the Land and Water Conservation Fund Act, one of the restrictions on the property when $825,000 in federal funds were used for a 1980 renovation. The federal appeals court agreed saying, “When a party applies for and receives a federal grant, there is nothing either unfair or unconstitutional about holding the grant recipient to the terms of its bargain.”

“North End 10” and families celebrate Long Wharf as open space in September 2015. Retired NPS employee Ed Rizzotto donated a picnic table symbolizing the area as a park. The table has since been removed by the city.

The NPS had taken up the case originally started over a decade ago by the North End Ten, a group of residents that challenged the BRA’s intent to privatize the space with a restaurant license. The disputed space includes an existing open brick pavilion currently used for emergency Blue Line egress and an extensive open waterfront area at the end of Long Wharf. The end of Long Wharf is primarily used today as passive open space by residents and visitors taking in the scenic sights and sounds of Boston Harbor.

Key to the case was a map recalled by former National Park Service employee, Ed Rizzotto, who became involved in 2012 when he read news of the case and reminded his former employer of a 1980 map showing the space was protected under the Land and Water Conservation Fund Act. The map became the centerpiece in the court battle when the BRA subsequently sued the NPS. The BRA tried to use a 1983 map that did not show the site was restricted from development. In September 2015, the US District Court favored the National Park Service in its ruling, confirming Rissotto’s contention that the Long Wharf Pavilion was part of the 6(f) restricted area in the 1980 map and established by a LWCF grant.

National Park Service 6(f) boundary map for LWCF project at Long Wharf

The latest appeals court ruling was scathing in its review of the BRA’s arguments. Sanjoy Mahajan, one of the North End Ten, who previously argued to a lower court, points out some of the many choice words the court had for the BRA in its decision.

Moreover, the BRA’s argument that the NPS is simply “attempt[ing] to encumber land” elevates wordplay to an art form. (page 10)

If more were needed — and we do not think that it is — these asseverations are plainly devoid of merit. (page 16)

The BRA’s procedural due process argument is equally flawed. (page 17)

The BRA’s substantive due process argument fares no better.  (page 17)

The BRA complains that, by upholding NPS’s decision, we will be
allowing the agency to “restrict the entirety of an invaluable piece
of [the Boston] waterfront in perpetuity.”  This complaint is
groundless. (page 18)

Read the Federal Appeals Court Ruling on Long Wharf (PDF)

Should the BRA to continue to fight the case, it could ask for an “en banc” review by all the judges on the federal appeals court. After that, the next court in line would be the U.S. Supreme Court. Through 2015, the BRA has spent over $500,000 on legal expenses toward the Long Wharf case. The entire Long Wharf area is currently under BRA review for “revitalization” as part of the ongoing Downtown Waterfront Municipal Harbor Plan.

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