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].
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:
- 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.
- 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.
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