North End Ten File Reply in Doc’s Long Wharf Case

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defendants, the BRA and DEP oppose the amended motion saying that the documents are too old, the agreements have been superseded and regardless, the plaintiffs are not personally impacted and therefore don’t have standing.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.

In response to the BRA’s opposition, the NE10 filed the following reply:

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.

4 Replies to “North End Ten File Reply in Doc’s Long Wharf Case

  1. Wish I had this much free time to fight a new restaurant opening in a place that is barely used. Find a better cause to waste your time with.

    1. This is America, so nobody not in jail has free time. It just means you sleep less.

      The reason to spend the time is to uphold the constitution as a check on the actions of government. That is government by the people. The idea was developed on these shores, a lot in Massachusetts, and its time hasn’t yet passed.

      There’s no law that says a restaurant can never be put at the end of Long Wharf. The laws just say that a mere desire by the BRA is not sufficient to turn public parkland, to which the public has contributed upwards of ten million dollars, into a late-night restaurant and bar.

  2. Thank you for sticking with this important issue. The area is a wonderful, peaceful respite from all of the city stressors and crowds.
    Keep up the good work!

    1. As a 20yr resident I find myself in the middle of this disagreement.

      It is a great spot to sit and enjoy a view of the harbor and can be peaceful.

      At the same time, you take your chances that your “peaceful respite” will be interrupted by the homeless that inhabit the pavilion….and you can bet that day or night the pavilion reeks of urine (as stated in a previous post).

      “They” suggest a restaurant….what do you suggest??

      I’ve yet to hear a plausible response other than protect the parkland. What does the NE10 offer as a compromise? Our tax dollars are clearly not being used to create a safe place…they made it pretty then walked away.

      I don’t know what the answer is…but there needs to be a serious discussion on options other than do nothing and leave it as it is.

      Perhaps FOCCP have some ideas as it is gateway to the pavilion?

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