We last left the Doc’s Long Wharf case in Superior Court where a case review hearing was held in early May to consider issues previously remanded by the higher Supreme Judicial Court. At hand is (1) whether the North End citizens group (aka, North End Ten) have “standing” as plaintiffs, (2) an amended complaint by the NE10 and (3) a ruling on Chapter 91 license provisions that could allow for the licensing of a restaurant at the end of Long Wharf supported by the defendants, Boston Redevelopment Authority (BRA) and Department of Environmental Protection (DEP).
This week, the group of North End residents submitted new documents and a motion to amend their complaint, geared toward keeping the end of Long Wharf as open parkland space. Specifically, the NE10 allege the BRA wronged based on its own contracts for the space and a National Park Service map showing the seaward end of Long Wharf is protected under the Land and Water Conservation Fund (LWCF) Act.
As defendants, the BRA and DEP oppose the amended motion saying that the documents are too old, the agreements have been superseded and regardless, the plaintiffs are not personally impacted and therefore don’t have standing. The BRA and DEP are looking for the case to be dismissed.
A few excerpts from the NE10 reply arguments:
The BRA argues that plaintiffs’ motion is futile, because plaintiffs, as members of the general public, do not have standing to enforce either the Land and Water Conservation Fund (LWCF) Project Agreement1 or the BRA–DEM (Department of Environmental Management) agreement, because plaintiffs are merely “incidental beneficiaries.” … The argument of futility is futile … the public are intended, not incidental, beneficiaries. The BRA–DEM Agreement provides for a restriction (an easement) at Long Wharf for “public open space use.”
The BRA’s claim is disproved by many pieces of evidence, all leading to the same conclusion: that the map from the NPS, showing the entire end of the wharf as LWCF-protected parkland, is the correct map. Therefore, the entire end of the wharf is protected by federal law, by legal agreement, and by both public-trust doctrines.
The BRA failed to disclose the latest, supervening, email from the state LWCF coordinator.
DEP further argues that the motion to amend should be denied due to “unexcused delay” and “futility.” Neither reason is valid. First, the unexcused delay applies not to the plaintiffs, but to the BRA for not disclosing these documents in prior proceedings. Similarly, DEP argues that the “Plaintiffs’ new arguments are based on documents that were never submitted to DEP.” That is once again a failure not of the plaintiffs but of the BRA. DEP’s gun is pointing in the wrong direction.
The DEP is in a difficult position because the documents were not disclosed by the BRA—its co-defendant. Perhaps the only way to cut this Gordian knot is with mandamus, whereby the court orders DEP to perform its clear public duty, which it cannot otherwise agree to do due to its entanglement with the BRA in these proceedings.
Next up in the case is a Superior Court hearing on June 18, 2013.